Five Constitutional Court Justices have nullified sections of the Public Order Management Act-POMA that criminalize public assemblies.
In a unanimous decision written by Justice Elizabeth Musoke, the court found that Section 5 (b) and Sections 10 (3) and (4) of POMA are inconsistent with article 29 of the 1995 Constitution and therefore null and void.
In 2018, Robert Kyagulanyi Ssentamu aka Bobi Wine together with others were arrested in Kampala after staging what was called an unlawful assembly protesting a tax on social media.
After their arrest, Kygaulanyi and others were arraigned before the Buganda Road Chief Magistrate’s Court where they were charged with the offenses under POMA. However, on September 28, 2020, Magistrate Karungi Doreen Olga, referred some sections of the POMA to the constitutional court for interpretation as they looked like they were in contravention or inconsistent with Article 29 (1) (a) and (d) of the 1995 Constitution.
Particularly, the magistrate wanted the Constitutional Court to interpret Sections 5 and 10 of the POMA. Mark Muwonge and Susan Akello, both State Attorneys in the Chambers of the Attorney General, defended the constitutionality of the said sections. They submitted that the right to freedom of speech and expression guaranteed under Article 29 (l) (a) of the 1995 Constitution and the right to freedom to assemble and to demonstrate together with others peacefully and unarmed and to petition guaranteed under Article 29 (1) (d) is not absolute and may be subject to lawful limitations.
They also submitted that, under Article 43 (L), such derogations may be necessary to protect the rights of others or to protect the public interest. They acknowledged that Sections 5 and 10 of the POMA constitute a limitation of the rights guaranteed under Article 29 but that the said limitation is permitted under Article 43.
Kyagulanyi and the group didn’t have representation. In her judgment, Musoke notes that the complained-about sections give the Inspector General of Police or authorized officer power to regulate public meetings including assemblies and regulations.
The POMA also sets in place requirements to be met before a person can lawfully participate or organize a public meeting, including the requirement that an organizer gives notice of his or her intention to hold a public meeting, at least three days prior to the meeting. The section also imposes punishments for organizers and participants who participate in unauthorized assemblies.
In her ruling, Musoke said the said sections in fact go beyond what is provided for in the constitution and therefore, can’t stand. “The fact that Sections 5 (B) and 10 (3) and (4) provide for the imposition of penal sanctions on organizers and participants in peaceful albeit unauthorized demonstrations are disproportionate for achieving the intended purpose of ensuring orderly public meetings. More proportionate measures would involve asking the organizers to disband illegal meetings, failing which the authorities would then disperse the illegal meetings. It is only in the event of actual violence that it would be necessary to impose penal sanctions against the perpetrators of the violence.
She added “I would therefore find that the imposition of a penal sanction under Section 5 (B) and Sections 10 (3) and (4) of the POMA is disproportionate for purposes of ensuring orderly meetings and constitutes limitations that are not acceptable and demonstrably justifiable in a free and democratic society and that contravene Article 29 (t) (d) of the 1995 Constitution,” Musoke held.
She subsequently declared that the charges against Kyagulanyi and others that were based on their participation in a peaceful albeit unauthorized public meeting constituted an impermissible limitation on their right to freedom of assembly, and contravene Article 29 of the 1995 Constitution.
“I would make an order permanently staying the criminal proceedings against the accused persons… I would direct the Registrar of this Court to notify the Buganda Road Chief Magistrate’s Court of the decision in this Reference,” Musoke held.
The other justices who concurred with her reasoning are; Fredrick Egonda-Ntende, Christopher Izama Madrama, Monica Mugenyi, and Christopher Gashirabake.