Legal issue

Whether the enactment of section 8 of POMA is inconsistent with and in contravention with the Article 92 of the Constitution which prohibits Parliament from passing law to alter the decision or judgement of any court.

Ruling

The Court found that similar to the nullified Section 32(2) of the Police Act, Section 8 of POMA is not couched in a regulatory manner and it is prohibitory in nature and thus had a similar effect as the defunct provision of the Police Act. The Court further stated that the supervision of public order is a core duty of the police and it cannot be discharged by prohibiting sections of the public from exercising their constitutionally guaranteed right to demonstrate peacefully or hold public meetings of any nature. The Court concluded that the impugned Section 8 of POMA violated Article 92 as well as Article 29 that guarantees freedom of assembly and the right to demonstrate peacefully and unarmed.

Reasoning of the Court

The Court reasoned that in as much as the impugned Section 8 of POMA is not in similar words as with the nullified section 32(2) of the Police Act, the latter’s subject matter, purpose and effect were only modified and varied in some degree but its true identity was never lost or destroyed. Section 8 of the POMA is clearly a reincarnation of the nullified Section 32(2) of the Police Act for all intents and purposes. The Court revealed that subverting the import of a court’s decision/judgment in this manner, interferes with the doctrine of separation of power contained in the Constitution. Passing legislation that alters or undermines a judicial decision has dire implication for the future application of the checks and balances necessary for the functioning of a civilised democracy and prevention of peremptory behaviour by the three pillars of government, namely, the Legislature, Executive and Judiciary.

In December 2013, the petitioners brought Constitutional Petition No. 56 of 2013 challenging the constitutionality of various Sections of the Public Order Management Act, 2013 (POMA). They later filed an amended petition in June 2016 restricting their petition to challenging the constitutionality of section 8 of POMA. They argued that section 8 of POMA sought to reintroduce section 32 of the Police Act in conflict with Article 92 of the Constitution which states that Parliament shall not pass law to alter the decision of any court. In 2005, Hon. Muwanga Kivumbi had successfully challenged the constitutionality of section 32 of the Police Act that granted powers to the Inspector General of Police to regulate the conduct of assemblies.

In Constitution Petition No. 9 of 2005 Muwanga Kivumbi v Attorney General, the Court nullified Section 32(2) of the Police Act, declaring the provision unconstitutional. In 2013 the Parliament of Uganda passed the Public Order Management Act 2013 (POMA) which reintroduced the exact provisions of Section 32 (2) of the Police Act. In December 2013, Human Rights Network Uganda & 4 Others filed Constitution Petition No. 56 of 2013 in the public interest challenging the constitutionality of various provisions of POMA. The petition was later amended to only seek a declaration of nullity against Section 8 of POMA which, similar to the defunct section 32(2), granted powers to the police to stop or prevent the holding of a public meeting where the public meeting is held contrary to its provisions.

Parliament has no powers to pass legislation to alter the decision of a court.