The Constitutional Court has nullified Section 8 of the controversial Public Order Management Act, the law that regulates public gatherings, which has been a point of contention for opposition politicians and rights campaigners.
The ruling follows a consolidated petition filed by Human Rights Network Uganda, The Development Network of Indigenous Voluntary Associations, the Uganda Association of Female Lawyers, Muwanga Kivumbi and Bishop Dr Zac Niringiye.
Section 8 of POMA provides for duties and responsibilities of Police, organizers of public events and participants.
Sub section 1 states that “Subject to the directions of the Inspector General of Police, an authorized officer or any other Police officer of or above the rank of Inspector may stop or prevent the holding of a public meeting where the public meeting is held contrary to this Act”.
Sub section 2 states that an authorized officer may issue orders including an order for the dispersal of the public meeting as are reasonable in the circumstances.
“An authorized officer shall in issuing an order under Subsection 2 have regard to the rights and freedoms of the persons in respect of whom the order has been issued and the rights and freedoms of other persons,” Sub section 3 reads.
The Section further states that a person who neglects or refuses to obey an order issued under the same Section “commits the offence of disobedience of lawful orders and is liable on conviction to the penalty for that offence under section 117 of the Penal Code Act”.
Four of the five Justices of the Constitutional Court that Section 8 is unconstitutional and is null and void.
Justice Kenneth Kakuru ruled that the POMA through its unregulated application by Police sets limitations that are far beyond what is demonstrably justifiable in a free and democratic society and as such is inconsistent with Article 2(2), 21 (1) and (2), 21 (3), 29 (1), 30, 38 (2) and 43 of the Constitution.
Justice Kakuru added that while the case for the respondent (Attorney General) is hinged on the need to keep peace, order and tranquility by protecting businesses from undue interference from demonstrations, the economy in every democracy is propelled by democratic principles and not by repression.
“Repression stifles economic progress. Traders would want to be free to demonstrate against unjust taxes or their enforcement… the market vendors, students, teachers, doctors all have their grievances which they would require to raise through public gatherings, precessions and demonstrations,” Justice Kakuru said.
Justices Kenneth Kakuru, Geoffrey Kirabwire, Elizabeth Musoke and Chebrion Barishaki ruled by majority that Section 8 is unconstitutional. They also said all acts done under the law are hereby declared null and void.
POMA was crafted against the backdrop of the chaos and running battles that erupted from FDC strongman Dr Kizza Besigye’s walk-to-work demonstrations and and ‘Save Mabira’ riots in Kampala.
But since its enactment, the law has largely been evoked to quell rallies by the political players in the opposition considered ‘unlawful’ by the Police.POMA gives police legal powers to stop a ‘public meeting’ and under Section 5, an organiser of such a meeting is compelled to give notice in writing to the authorized officer, at least three days but not more than 15 days before the proposed date of the public meeting.
The same law gives Police the discretion to grant or deny permission to the person intending to hold the event, if either Police learns that the venue or the event is likely to be used to break the law.
But the bone of contention especially for Opposition and other actors such as the civil society has been the interpretation or misinterpretation of the law, claiming the authorities (particularly the Police and government) wrongfully use it to sabotage their activities.