Police have no powers to stop public gatherings, court rules

The Constitutional Court yesterday ruled that the police have no powers to stop or disperse public gatherings as it annulled the contentious Section 8 of the Public Order Management Act (POMA).

In a majority decision of the court of 4:1, the court observed that POMA contravenes several provisions of the Constitution that warrant freedom of assembly to its citizens in a democratic society.

The verdict of the court comes as good news mainly to the Opposition politicians, whose gatherings as they prepare for the 2021 General Election, have always been dispersed by the police basing on the same law.

“By majority decision of Kenneth Kakuru, Geofrey Kiryabwire, Elizabeth Musoke and Cheborion Barishaki, it is declared and ordered that Section 8 of the Public Order Management Act is unconstitutional, null and good,” ruled the majority justices.

Argument

In his analysis, Justice Kakuru said evidence was not laid by the State to prove that public gatherings stifle economic growth or disrupt businesses beyond what is justifiable in a free and democratic society.

He added that the government and its agencies including the security organs have frequently used demonstrations to publicize their own programmes.

The judge cited President Museveni, who in the past, led a huge demonstration across the capital city highlighting the evils of corruption in public institutions.

He further cited other events that have attracted a big number of people such as the Kampala carnival, Martyrs Day celebrations, the visits by very high profile people such as the Pope, late Nelson Mandela and US presidents that have brought businesses to a standstill but also with a good measure.

“Nonetheless, none of those public gatherings resulted into violence nor did they disrupt businesses, commerce or public order beyond what is demonstrably justifiable in a free and democratic society,” held Justice Kakuru.

“The point is that in a democratic society, one cannot choose and pick. It is a whole package and everything goes together. Any attempt to remove one component destroys the other,” he said.

Justice Kakuru went on to observe that POMA had made it more less impossible to hold a public meeting in Uganda unless police permits them.

Likewise, Justice Cheborion held that while he agrees that it is the mandate of the State to ensure that there is no breach of peace resulting from peaceful assemblies by carrying out objective regulation, this duty does not amount to permission to wantonly disperse public gatherings or groups that are agitating for political causes that are opposed to the government of the day.

“As I have elaborated, the concept of breach of the peace is subject to an objective test. It is not true that public gatherings or meetings are the cause of breach of peace,” Justice Cheborion ruled.

He added: “It may in some cases, be caused by law enforcement unduly interfering with the rights of protesters or demonstrators or individuals gathered in a particular space. Police actions must be directed against those causing a breach of peace by either interfering with peaceful gatherings or those who in the course of the peaceful protest depart from its objectives.

“That is the proper duty of the State and it is not to be confused with the attempt in Section 8 of POMA of providing blanket powers to the police officers to stop any intended public meeting as they have been denying the same permission on falsely claiming that they are in possession of intelligence that that certain gathering will lead to chaos.”

Justice Stephen Musota was the only judge who dissented.

In his dissent, he said the enactment of POMA was not in contravention of the Article 92 of the Constitution.

The petition was filed by a number of civil society organisations in 2013. They include; Human Rights Network Uganda, the Development Network of Indigenous Voluntary Association, the Uganda Voluntary Association of Female Lawyers (FIDA), MP Muwanga Kivumbi and Bishop Zac Niringye.

They were represented by Mr Francis Onyango Owor.

“The ruling means that the current criminal proceedings under POMA against Dr Kizza Besigye and other politicians are unlawful and must be discontinued,” Mr Onyango said by telephone yesterday.

The Attorney General was the only respondent who had argued that POMA was not in contravention with the Constitution.

According to the petitioners, they had argued that POMA, especially section 8, placed burdensome restrictions on an individual’s ability to exercise their rights to hold public meetings and processions as it granted the IGP or any other authorised police officer, discretion to stop, control and use force to disperse the said gatherings.