Reference
Constitutional Reference No 022 of 2020
Country
Uganda
Database
Civic Space
Date of ruling
March 17, 2023
Crimes/ violations
Freedom of expression, Freedom of Peaceful Assembly
Parties involved
Uganda (Petitioner).
There is no respondent in this case. The trial court on its own volition sought a constitutional interpretation in accordance with Article 137 of the Constitution.
Summary of Ruling
Legal issue
Whether Sections 5 and 10 of the Public Order Management Act, 2013 contravene or are inconsistent with Article 29(1)(a) and (d) of the 1995 Constitution. The petitioners questioned the constitutionality of the provisions of the Public Order Management Act, because the charges levied against them arose from their alleged breach of duties imposed on them under these provisions.
Ruling
The Court ruled that the imposition of a penal sanction under Sections 5(8) and 10 (3) and (4) of the POMA is disproportionate to purposes of ensuring orderly meetings and constitutes limitations that are not acceptable and demonstrably justifiable in a free and democratic society and thus amount to contravention of Article 29(1)(d) of the 1995 Constitution.
Reasoning of the Court
The Court reasoned that any measures taken in relation to limiting a right, must, under Article 43 (2) (c) of the Constitution be “acceptable and demonstrably justifiable in a free and democratic society”. For a limitation to be acceptable and demonstrably justifiable in a free and democratic society and proportionate, it must be the least intrusive and oppressive means available for achieving the intended purpose. The requirement to give police a notice before conducting an assembly is only reasonable if it is imposed in good faith.
Summary of facts
The Petitioners were charged before the Chief Magistrate’s Court with disobeying a statutory duty under the Penal Code Act. They had been arrested during a demonstration they organised against the Over the Top Tax (OTT). Sections 5 and 10 of the Public Order and Management Act require organisers of a public meeting to give prior notice regarding the meeting to the police, and impose responsibilities to organisers and participants in public meetings, respectively. The Trial Magistrate referred the matter to the Constitutional Court because it raised issues that required constitutional interpretation.
Summary of the proceedings
In July 2018, Uganda introduced the Over the Top Tax (OTT) which sought to regulate access to microblogging and social networking platforms like Twitter and Facebook, and to increase the tax base, among other reasons. On 11th July 2018, the petitioners organised a demonstration in Kampala. The police dispersed the demonstrators and later arrested and detained five of the organisers. The organisers were later charged before the Chief Magistrate’s Court with disobeying a statutory duty contrary to Section 116 of the Penal Code Act Cap. 120. They all pleaded not guilty. Their trial commenced on 28th September, 2020, the Trial Magistrate, in accordance with Article 137 (5) of the 1995 Constitution, referred the matter to the Constitutional Court because the case raised issues that required constitutional interpretation. On 17 March 2023 the Constitutional Court handed down its decision.
Key jurisprudential elements
Imposing a limitation on the enjoyment of freedom of assembly should be proportionate and in good faith.