Lugonvu & 3 Ors v Attorney General (Constitutional Petition No. 24 of 2009) [2015] UGCC 15 (17 December 2015)

THE REPUBLIC OF UGANDA

IN THE CONSTITUTIONAL COURT OF UGANDA AT KAMPALA

{Coram: Kasule, Mwangusya, Aweri Opio, Tibatemwa Ekirikubinza & Egonda-

Ntende, JJA)

Constitutional Petition No. 24 of 2009

BETWEEN

Edward Kamya Lugonvu

Dr Adam Kimala

Charles Senkungu Walugendo Salongo

Savida Najjuka……………………………………………………..Petitioners

And

Attorney General…………………………………………………Respondent

JUDGMENT OF FMS EGONDA-NTENDE, JA.

Introduction

1. The Kabaka of Buganda was scheduled to visit Kayunga District on the 13^th September 2009. Prior to this date the Government of Uganda, for reasons it provided, stopped the Katikiro of Buganda from proceeding to Kayunga District to arrange for the visit and subsequently ordered the Kabaka not to proceed to Kayunga on the scheduled date for his visit. The order by the Government of Uganda preventing the Kabaka from visiting Kayunga on the 13^th September 2009 aggrieved the petitioners who have come to this court seeking a declaration that such an order was inconsistent with Articles 20, 21 (1) (2) & (3), 24, 29(1) (d) (e) & 2 (a), 37, 43, 246, and clauses III and XXIV of the National Objectives and Directive Principles of State Policy in the Constitution of Uganda.

2. The respondent contends, in its answer to the Petition, that the Government of Uganda acted constitutionally in stopping the visit to go ahead and prays that this petition should be dismissed. The answer also contended that the petition did not disclose a constitutional cause of action. This point was abandoned at the hearing of the petition by Ms Ijang, learned counsel for the respondent.

3. The answer to the petition is supported by 2 affidavits sworn by Mr Richard Mivule, the Regional Police Commander, with police responsibility -over Kayunga District and that of Major General Kayihura, the Inspector General of Uganda Police Force.

The Case for the Petitioner

4. The Petition states,

‘Your Petitioners, Edward Kamya Lugonvu, Dr. Adam Kimala, Charles Ssenkungu Walugendo and Saida Najjuka are affected and aggrieved by the following matters being inconsistent with the Constitution:-

That the act of the Government of Uganda barring the Kabaka of Buganda, the Katikkiro of Buganda, and the interested people of or in Buganda, both residents and visitors to the county of Bugerere, in the District of Kayunga, from going to or visiting the county of Bugerere, in Kayunga District, a part of the region of Buganda, was inconsistent with, and contravened Articles

20. 21 (2) & (3), 24, 29(1) (d) (e) & 2 (a), 37, 43, 246 and clauses 111 and XXIV of the National Objectives and Directive Principles of State Policy, all enshrined in the Uganda Constitution.

2. Your Petitioners state that by reason of the matters stated in paragraph 1 above, the acts of the Uganda Government were unconstitutional.

3. Therefore, your petitioners pray that court may grant declarations: That the act of barring the Kabaka of Buganda, the Katikkiro of Buganda and all the people from wherever from attending, enjoying, promoting and performing the functions connected with the visit of the Kabaka to Kayunga District projected for 12^th September 2009, from visiting Bugerere in Kayunga District, or visiting any part of the Buganda Kingdom; or any part of Uganda; freely and without any impediment from any person or authority, basing it on any ostensible reason whatsoever; or barring assembling for and carrying out peaceful activities associated with the function of hosting the Kabaka in Kayunga District of Buganda, or hosting the Kabaka anywhere in Buganda, was in contravention of the Constitution.’

5. The petitioners prayed for costs of this petition.

6. The Petition was accompanied with four affidavits which provide the factual basis for the petition. There is no need to set out the same in this judgment as the answer to that petition does not put those facts in issue. Rather the answer to the petition contends that the actions of the Government were lawful and constitutional. It is necessary to set out the answer to the petition and supporting affidavits that seek to justify actions of Government

The case for the Respondent

7.The Answer to the Petition states in part,

‘2. In reply to paragraph 1 of the petition, the Respondent:-

1. avers that the act of the Government of Uganda in advising the Kabaka of Buganda not to go (to) Kayunga District and stopping the Katikkiro of Buganda from entering the District of Kayunga, was both lawful and Constitutional.

2. Denies that there was a breach and or contravention of Articles 20 and 21 (1), (2), (3) of the Constitution as alleged in paragraph 1 of the Petition or at all.

3. Denies that there was a breach and or contravention of Articles 24, 29(1), (d), (e), & 2(a) of the Constitution. The Respondent, again, avers that the action of the Government of Uganda in advising the Kabaka of Buganda not to go (to) Kayunga District and stopping the Katikkiro of Buganda from entering the District of Kayunga, was both lawful and Constitutional, it did not denigrate their human dignity and or divest them of their freedom of conscience, expression and of association.

Consequently, breach of Articles 24 and 29 of the Constitution is denied, (d) In further reply to paragraph 1, the Respondent contends that the actions of the Government of Uganda did not contravene Articles 37, 43, 246 and Clauses 111 and XXIV of the National Objectives and Directive Principles of State Policy in the Constitution.’

8. The respondent contended that the petitioners were not entitled to any of the prayers sought in the petition and prayed that the petition be dismissed with costs.

8. We shall set out in full the 2 supporting affidavits to the Petition. The first one of Mr Richard Mivule, states,

1. That I am a male adult Ugandan of sound mind and I am the Regional Police Commander Central Region consisting of the Districts of Mukono, Kayunga, Nakaseke, Luwero, Nakasongola, Mityana, Mubende and Mpigi and I am conversant with the facts of this case and I am competent and authorised to swear this affidavit.

2. That I have read and understood the petition and accompanying affidavits and I respond thereto as here below.

3. That on 24 August 2009 Florence Bagunywa Nkalubo “Minister” of Youth and Employment of Buganda Kingdom wrote to the Resident District Commissioner (RDC) Kayunga and copied the letter to the District Police Commander (DPC) Kayunga informing the RDC that the Kabaka of Buganda would be visiting Bugerere County in Kayunga and requesting that the necessary security be provided to the Kabaka. A copy of the letter is attached hereto and marked “Annexture 1 ”

4. That on 3^rd September 2009 Senkatuka Martin the “Prime Minister” of “Obukama bwa Banyala” handed a letter dated 2" August 2009 addressed to the Inspector General of Police to the DPC Kayunga requesting for permission to hold a peaceful demonstration against the planned visit of the Kabaka of Buganda. The letter further stated that they would hand over a petition to the RDC against the planned visit of Kabaka scheduled for September 12^th 2009. A copy of the letter is attached hereto and marked “Annexture 2.”

5. That on the 3^rd September 2009 the DPC Kayunga wrote to me in his letter referenced KAY 28/06/20 informing me of the Kabaka’s intended visit to Kayunga and the intended demonstration by the Banyala Community and further requesting for additional deployment of Anti Riot Police and logistical support in case of any security lapses in the District. A copy of the letter is attached hereto and marked “Annexture 3.”

6. That on 4^th September 2009 I travelled to Kayunga with the Anti Riot Police to access the security situation and to further ensure that the intended demonstration is peaceful.

7. That I heard on CBS Radio that one million people were being mobilized to accompany the Kabaka to Kayunga and participate in the Buganda Youth Week.

8. That I further received Intelligence Reports that the Banyala community was also mobilizing Banyala of Busoga and Kidera, the Baruli of Nakasongola, the Abarusura a group in Bunyoro and some people from the Mount Elgon area to come to Kayunga and disrupt the Kabaka’s visit.

9. That further the proprietor of Kayunga Light College and “Prime Minister” of the Banyala Mr Senkatuuka Martin complained to the Police that the he had gotten wind of plans to bum his school by Baganda loyalists.

10. That as a result of the mobilization on both sides and reports of threats and counter threats it became apparent that the security situation in Kayunga could get out of hand leading to, a destruction of life and property and a breakdown in the social cohesion of Kayunga District.

11. That I was informed by the Inspector General of Police that the Central Government had invited both sides to engage in constructive dialogue so as to ensure a peaceful visit of the Kabaka to the District of Kayunga.

12. That on 6^th September 2009 around 10.30am, I found some youths digging holes to erect stalls at Ntenjeru Sub county Headquarters where the function of the Kabaka was slated to take place.

13. That with the above background and cognizant of the fact that constructive dialogue between all the protagonists was being arranged by Government I advised the youth to stay the construction of the stalls pending the outcome of the discussions to ensure that the Kabaka visits Kayunga in a secure and stable environment. The youth agreed to stay the construction provided I and the officers that had accompanied me also left the site. I agreed and the youth and the police abandoned the site.

14. That on the 7^th September 2009 four Buganda Ministers came from Kampala with a number of Youths and began to construct the stalls at Ntenjeru Sub county headquarters.

15. That I realized the Kampala group was militant, unruly and noisy and I knew they would confront the armed officers I was with so I commanded the armed

officers to move further away from the scene and I sent my car to pick the Anti Riot Police in the event of any disturbance.

(16)-That I then approached the group unescorted in order to engage them in a civil way.

17. That as I approached the group the four “Ministers” came to me and introduced themselves as ministers of Buganda who had come to prepare for the Kabaka’s visit.

I asked the “Ministers” if their preparations could await the outcome of the discussions which were underway.

17. That the noisy and rowdy youth took over the discussions heckling that the Kabaka must come to Bugerere as others sang the Buganda Anthem while others still continue erecting the stalls.

18. That I asked the Ministers to prevail over the unruly youth they had come with but they could not.

19. That the youth began to pull my uniform and informed me that they are the ones who “bought it”. On realizing the situation was getting out of hand I uttered the words of proclamation to wit, “All people here assembled, are informed in the name of the Sovereign State of Uganda to disperse peacefully and go back to your respective duties and homes. Anybody who does not abide by this order will be dispersed by force which includes tear gas and rifle fire.” I then repeated the words in Luganda. I uttered the words of the proclamation more than once in English and Luganda to ensure that the rowdy youths left peacefully and without incident.

20. That at that time the Anti Riot Police had arrived and taken position. Realizing the words of proclamation were not being obeyed I signalled to the anti riot police to disperse the rowdy group. The group was then dispersed and five youths arrested.

21. That on the 9^th September 2009 I received information that some youth were erecting an arch in the town centre. I went to the town centre with some policemen and officers of the Anti Riot Police and I found the youth digging with a pick axe trying to erect the arch.

22. That on the basis of the information deponed to hereinabove 1 requested the youth to stop, pending the outcome of the discussions in Kampala.

33. That I know that at all material times herein mentioned, the actions of the Uganda Police Force were intended to protect life and property, preserve law and order and to prevent and detect crime and were notintended to violate the constitutional righis of any person as alleged or at all.’

10. Annexture 1, written by Oweek. Florence Bagunywa Nkalubo, Minister for Youth and employment, Buganda Kingdom and addressed to the Resident District Commissioner, Kayunga District, with copies to the DFC and DISO, Kayunga, stared,

‘RE: KABAKA’S VISIT TO BUGERERE COUNTY.

ON behalf of the Ministry, I thank you for the good works you render to the Kingdom and the country at large. His Majesty the Kabaka will be making the above mentioned visit to celebrate the Buganda Youth Day on 12^th September 2009. We are expecting very many youths to attend this occasion. The purpose of this letter therefore, is to request you provide the necessary security to His Majesty.

Looking forward to your cooperation.’

10. Annexture 2, written by the Prime Minister of Bukama bwa Bunyala, dated 2^nd August 2009, with copies to RDC, DISO, and DPC, Kayunga, addressed to the Inspector General of Police stated,

‘RE: PEACEFUL DEMONSTRATION AGAINST HIS HIGHNESS MUWENDA MUTEBI’S PLANNED VISIT TO BUNYALA

We are writing to inform you that we have planned a peaceful demonstration as stated in the reference above during which we shall match from Kayunga Town Council to the District Headquarters where we shall hand our petition to the Resident District Commissioner. The assembling point will be the hospital Ground. The purpose of this letter is therefore to seek permission to hold the demonstration and security coverage.’

10. Annexture 3 was from the District Police Commander, Kayunga to the Regional Police Commander, Central, and is dated 3^rd September 2009. It states,

‘RE: VISIT OF THE KABAKA TO BUGERERE COUNTY.

On the 31/08/09 I received a letter addressed to the DPC Kayunga without reference dated 24/08/09 signed by the Minister of Youth and Employment for Buganda Kingdom. Immediately I communicated the same message to the District Committee and later our district Committee (Police). Today 3/09/09 I again received a similar letter addressed to the Resident District Commissioner Kayunga without reference dated 24/08/09 signed by the Ministry of Youth and employment for Buganda Kingdom copied to the DPC,

DISO Kayunga. I have attached copies of your reference.

Further more today"?^-, September 20091 have received two written communications from the Prime Minister of Banyala without a reference addressed to the Inspector General of Police and the DPC Kayunga dated 2^nd September and 3^rd September, 2009 respectively copies of which I have also attached herewith for your information and advice.

The chairperson of the District Security Committee in her verbal communication to me in the presence (of) the District Internal Security Officer and our District Crime and Intelligence Officer advised that the Police make enough security deployment, monitor and gather intelligence for the above public functions. The RDC herself cautions on the district security leaders against any press release.

1. have mobilized personnel from the Police Posts and some from Kayonza MPPU Detach who are to report at the Main Station by 0600 hours of 4^th September 2009. Meanwhile further to our security deployment, we shall intensify both foot and motorised patrols day and night plus the Force Transport officer have been requested for some logical support and fuel. It could also be better if the Anti-Riot Squad can be stationed at the District Police headquarters in case of any short comings prior to the commencement of the above said public functions.’

10. A supplementary affidavit sworn by the Inspector General of Police, Major General Kale Kayihura was filed in support of the respondent. I shall set out what it states below.

‘ 1. That I am a male Ugandan of sound mind and I am the Inspector General of the Uganda Police Force and I am conversant with the facts of this case and I am competent to swear this affidavit.

2. That I have read and understood the petition and its accompanying affidavits and I respond thereto as below.

3. That I know that the District of Kayunga did prior to the intended visit of the Kabaka have insecurity leading to communal violence and murders in the District. Examples of the communal violence include the following; On 30^th July 2009 Sekamatte, a land surveyor was murdered by a

mob in Kayunga. On 15^th August 2009, Sakajugo Jabula was attacked and killed. On 16^th August 2009, Samuel Mubiru a landlord who was trying to survey his land was beaten to death by a mob and his dead body was torched in his ear. His surveyor was fortunate enough to escape alive.

2. That as a result of the tension and violence in parts of Kayunga District, I travelled to Kayunga District on 21^st August 2009 accompanied by the Regional Police Commander (RPC), Central Region Mr Richard Mivule, and the Regional CID Central Region Ms Florence Okot, to appraise myself with the security situation on the ground.

3. That I directed the RPC Central Region and the Regional CID Officer to remain in the District of Kayunga and ensure that peace and security are maintained in the District. I, also, deployed officers of the Mobile Police Patrol Unit / Anti- riot Police in Kayunga to ensure peace, security and stability in the area as necessitated by the situation.

4. That I know that on 24^th August 2009 Florence Bagunywa Nkalubo ‘Minister’ of Youth and Employment of the Buganda Kingdom wrote to the Resident District Commissioner (RDC) Kayunga informing the RDC that the Kabaka of Buganda would be visiting Bugerere County in Kayunga and requesting that necessary security be provided to the Kabaka. A copy of the letter is attached and marked “Annexture 1”.

5. That I subsequently received intelligence reports of plans to disrupt the Kabaka’s intended visit to Kayunga and I further was aware of massive mobilization in Buganda area by Buganda loyalists from Baganda to go to Kayunga and ‘protect’ their Kabaka.

6. That I knew both these groups meeting in Kayunga would be a recipe for disaster and lead to a breakdown of law, order, peace and tranquillity in the District of Kayunga.

7. That as a result of the already tense atmosphere the National Security Council on which I sit representing the Uganda Police, discussed the issue of the Kabaka’s visit to Kayunga and tasked the Chairman of the Council Hon. A1 Hajji Kirunda Kivejinja to ensure that the Kabaka’s visit to Kayunga was peaceful by inviting the Katikiro to meet with Banyara groups and engage in constructive dialogue.

commit acts of sectarian violence and as a result, demonstrations, acts of looting, sectarian violence and generalised violence broke out in Kampala leading to the burning of Natete Police Station and other police posts in and around the city, looting of property and tragic death of over twenty people in the city of Kampala.

2. That the Police reinforced by the military quelled the riots and restored peace, order and tranquillity back to the city of Kampala.

3. That on the 11^th September 2009 realising that the security situation in the City and surrounding suburbs was getting out of hand, I issued a statement advising that the Kabaka of Buganda should not go to Kayunga so as to stabilize the security situation in the country.

4. That late in the evening of September 11^th 2009 the Kabaka of Buganda called off his intended visit to Kayunga an act that helped restore calm and order in the Country.

5. That I know that our preventive deployment in Kayunga and later in Kampala helped to restore calm and order in the country.

6. That I know that the Uganda Police Force is commanded by Article 212 of the Constitution to protect life and property, preserve, law and order and to prevent and detect crime and the actions of the Uganda Police Force were bona fide and intended to obey the Constitutional command and not violate the constitutional rights of any person or authority as alleged or at all.

28.1 swear this affidavit in support of the respondent’s Answer to the Petition.’

Analysis

The law in relation to the right and freedom to assemble

10. The main contention on this petition is with regard to the fundamental right of the people to assemble and movement and to what extent that this can be curtailed by the Police. I shall begin this analysis by setting out the relevant provisions of the Constitution and the Police Act.

11. Article 29 of the Constitution states,

19.lt is contended for the respondent that the actions taken by the Police Force in relation to the Kabaka’s visit to Kayunga were authorised by law in terms of the Articles 43 and 212 of the Constitution in that the Police Force is mandated to protect life and property, preserve law and order and to prevent and detect crime. In doing so limitations were appropriately imposed on the fundamental rights and freedoms.

20.It is important at this stage to note with regard to the law that this is not the first time that this court is considering the powers of the Police with regard to peaceful assemblies. This Court in Muwanga Kivumbi v Attorney General Constitutional Petition No. 9 of 2008 [unreported] considered this very question and came to the conclusion that section 32 (2) of the Police Act was unconstitutional. This decision was handed down in May 2008 well before the events complained of in this petition.

21 .Byamugisha, JA., writing the lead judgment in that case, which was endorsed by all the judges, found,

‘In the matter now before us, there is no doubt that the power given to the Inspector General of police is prohibitive rather that regulatory. It is open ended since it has no duration. This means that rights available to those who wish to assemble and therefore protest would be violated. The justification for freedom of assembly in countries which are considered free and democratically governed in my view is to enable citizens come together and express their views without government restrictions. The government has a duty of maintaining proper channels and structures to ensure that legitimate protest whether political or otherwise can find voice. Maintaining the freedom to assemble and express dissent remains a powerful indicator of the democratic and political health of a country.

I, therefore, find that powers given to the Inspector General of Police to prohibit the convening of an assembly or procession an unjustified limitation on the enjoyment of fundaments right. Such limitation is not demonstrably justified in free and democratic country like ours. The subsection is null and void. The petitioner is entitled to a declaration to that effect.’

22.Mukasa Kikonyogo, DCJ, opined,

‘As long as there is no contravention of Article 43 of the Constitution and the rights are exercised within the confines of the law, there would be no justification for invoking the powers under S. 32 (2) of the Police Act.

There is no convincing reason for restricting or stopping convening rallies or assembly or demonstrations.

It was argued for the respondent that if that subsection was nullified, the police would be powerless to maintain law and order. I do not, with respect, accept that argument because the police still have the power to arrest any person who conducts himself/herself in the assembly or procession in a manner contrary to the law or who threatens violence. That is what is required to maintain law and order. To prohibit the convening of a lawful assembly or ,fanning a lawful procession in any public place on subjective reasons is not regulating the assembly or procession but a denial of the enjoyment of the fundamental right in contravention of Article 29(1 )(d) of the Constitution.

It is for these reasons that I support the conclusion of Byamugisha, J A that section 32(2) of the Police Act is inconsistent with Article 29(1) (d) and therefore unconstitutional and hence null and void.’

24.Mpagi-Bahegeine, JA, [as she was then] stated,

‘This court has on many occasions stated that the right of assembly is the aggregate of the individual liberty of the person and individual liberty of speech. The liberty to have personal opinions and the liberty to express them is one of the purposes of the right to assemble, which right or freedom constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and therefore each individual's self-fulfillment.-

Consequently, where individuals assemble, if the police entertain a “reasonable belief ’ that some disturbances might occur during the assembly, all that can be done is to provide security and supervision in anticipation of disturbances. It is the paramount duty of the police to- maintain law and order but not to curtail people's enshrined freedoms and liberties on mere anticipatory grounds which might turn out to be false. Lawful assemblies should not be dispersed under any circumstances. Most importantly in such cases the conveners of the assemblies can be required to give an undertaking for good behaviour and in default face the law.

I would thus hold Section 32 of the Police Act to be null and void’

25.This court in Muwanga Kivumbi v Attorney General (supra) was unanimous in holding that the Inspector General of Police and therefore all officers under his command have no prohibition powers in relation to Article 29 of the Constitution. The Police have no power to prohibit the enjoyment of this fundamental right or fundamental freedom. What is permitted for the Police Force to do is regulation in order for the right and or freedom to be enjoyed rather than diminishing or annihilating the same.

1. am not aware that this decision of this court has been overturned. We are obliged to follow it. In light of the foregoing decision sections 32 (3), 33 and 34 of the Police Act were also rendered otiose. I suppose that explains the subsequent enactment of the Public Order and Management Act 2013. As it was not in force at the time of the occurrence of the matters complained of it has not been referred to, and is inapplicable to these proceedings.

27. Turning to the facts of this case there are four incidents that stand out for consideration. But before considering each one of them, I must mention that the evidence in this case is largely provided by the respondent in the two affidavits it filed and it is what we shall largely follow as it has not been contradicted by the petitioners. Similarly the evidence of the petitioners on the factual issues is also not contradicted. I accept it. When the evidence of the both parties is considered together it is not contradictory. What is in issue is basically the application of the law to those facts as well as the inferences to be drawn from the facts before this court.

28. The district authorities in Kayunga received notification of the intending visit of the Kabaka as we have seen above. The Kabaka’s visit was to be centred at Ntenjeru Sub-County headquarters. It was intended to celebrate Buganda Youth Day. A show was planned to be held at Ntenjeru Sub-County headquarters grounds. The Police also received notification of the intention of the Banyala to hold a peaceful demonstration against the Kabaka’s visit and desire to march from Kayunga Hospital to the RDC’s Office and hand the RDC, a petition. The initial reaction and only reaction we have from the district authorities is expressed in the letter of the District Police Commander of 3 September 2009 in which he notified that the District authorities including the police were making arrangements for the successful holding of the said two functions and they needed, as a precautionary measure, some stand-by force, which he requested for.

29. From the evidence on record the Regional Police Officer, Mr Mivule was instructed by the Inspector General of Police to go to Kayunga and take over the command of the situation and ensure that there was peace and security in the area prior to and during the visit.

30.0n the 9 September 2009 some Baganda Youths started making preparations for the Kabaka’s visit by building stalls at Ntenjeru Sub County Headquarters. The Regional Police Officer found them engaged in this task. He ordered them to stop on the ground that he was aware that the Government had called for talks between the Buganda Kingdom and the Banyala leaders. At this point the youths were engaged in any unlawful activity". No allegation of unlawful activity against this group is alleged. Neither were these youths threatening anybody or being threatened by anyone.

31. Clearly the reason given by the Regional Police Commander for stopping these preparatory acts for the Kabaka’s visit is not sound in law. The Regional Police commander had no authority to interfere with the persons who were engaged in a lawful and peaceful activity. The building of stalls posed no threat to anyone. Neither was this activity infringing on anyone else’s rights or freedoms for that matter. No one had reported to the Police or any other authority of the District that the stalls were being constructed where they were not supposed to be constructed.

32. The second incident was the following day on 7^th September 2009. Four Buganda Ministers came with a number of youths to build stalls at Ntenjeru Sub County headquarters. The Regional Police Commander again intervened when this group of persons was engaged in an activity that has not been claimed to have contravened anyone’s rights or freedoms or caused a breach of peace. He claims to have advised them to stop constructing stalls pending the outcome of the Kampala Talks. The advice was not accepted. He was heckled and decided that the group had become riotous and decided that it disbands.

33. Again the Regional Police Commander had no lawful reason he put forth for the group to desist from carrying out an activity in preparation for the Kabaka’s visit which was neither unlawful nor threatening anyone else’s rights and freedoms. The group was not confronting any person whatsoever, nor was it being confronted by any other group save for the police. Clearly the Regional Police Commander was acting unlawfully in stopping a peaceful activity that threatened no one. Having acted unlawfully the Regional Police Commander had no legal basis for issuing the proclamation to disperse and use of tear gas to disperse citizens that were lawfully going about their business of preparing for the Kabaka’s visit. It appears that it was the Regional Police Commander who was, contrary to the law, restricting the youths from carrying out, what to all intents and purpose, was a lawful activity, they were carrying out in order to properly welcome the Kabaka.

34. The third incident, again from the evidence submitted by the Respondent, occurred on the 9^th September 2009. Some youths started building an Arch in Kayunga Town as part of the preparations for the Kabaka’s visit. The Regional Police Commander again attended to this in his usual manner. He told them to disperse telling them there can be no preparation for the Kabaka’s visit until the conclusion of the Kampala talks. When the youths resisted he ordered them to disperse and dispersed them forcefully, resulting in some fracas and fighting.

35. It may be pointed out that construction of temporary structures in urban areas is an activity that is controlled by law. Permission of the urban authority is required for this kind of activity. The Regional Police Commander was not concerned with the law at this point. He did not inquire whether the group had permission for the activity they were engaged in. He could well have been in his rights to stop the activity if they did not have the permission of the local authority. He continued with his position that not until the Kampala talks concluded would he allow preparatory actions for the Kabaka’s visit. The reason provided to disperse this group is again clearly not good enough in law, even though it may amount to good politics.

36. The last incident was the visit of the Katikiro, again to prepare, for the Kabaka’s visit on 10^th September 2009. The Katikiro was stopped at River Sezibwa bridge where the police had a stop and search station established. The Katikiro was stopped from proceeding to Kayunga, and was told his security in Kayunga could not be guaranteed. The Police cited no legal authority for this interference with or rather restriction of the Katikiro’s right to free movement within Uganda including proceeding to Kayunga town in contravention of Article 29(2) (a) of the Constitution. Clearly the Katikiro had not threatened anyone’s right or freedom. He was not involved in any unlawful activity.

37. The only logical inference from these four incidents is that the Police Force had decided to prevent all preparatory acts for the Kabaka’s visit.

38.Of course the Central Government may have decided that it should broker talks between the Katikiro and the Banyala of Kayunga. Whether these talks went ahead or not was no justification in law for stopping preparatory visits for the Kabaka to Kayunga. The functions of the Police must be carried out in accordance with the law. The law is clear. The Police has no prohibition powers in relation to the exercise of fundamental rights and freedoms. Neither are these fundamental rights and freedoms enjoyed only at the pleasure or with the fiat of the Police Force or Government. The rights are inherent to the people in accordance with Article 20(1) and not granted by the State. The fundamental rights and freedoms are simply recognised and protected by Chapter 4 of the Constitution and all agencies of State are obliged under Article 20(2) to respect, uphold and promote their enjoyment.

39. Following the barring of the Katikiro from entering Kayunga riots broke out in Kampala and they were so serious that the Kabaka called off his visit to Kayunga on the 11^th September 2009. It is contended by the respondent that the riots in Kampala were the result of incitement by Central Broadcasting Station. Without wishing to enter the debate on the causes for this breakdown of law and order in pans of Kampala it is clear that the Police actions in Kayunga in relation to the four incidents enumerated above may have provided the trigger or spark to those riots or added ‘petrol’ to the ‘fire’.

40. Both the Inspector General of Police and the Regional Police Commander have alluded to the existence of 2 protagonist groups in Kayunga which they named as the Buganda Kingdom and the Banyala. However, on a review of the facts that the Regional Police Commander has outlined in his affidavit, it is clear that the only confrontations we have evidence of is between Buganda Kingdom officials or followers and the Police. The only incidents of confrontations show the Police in action against people lawfully going about their business.

41. There is no evidence brought forth to suggest that the Buganda Kingdom officials were threatening the Banyala or vice versa though the Police claim that intelligence suggested that this was likely to happen and was a toxic mix. The initial police response was that the planned activities by either group could be held. And even if that were not to be the case the duty of the Police would be to arrest and prosecute those threatening violence rather than to suggest that those engaged in lawful activity should cease such activity until they attended to talks with those bent on disrupting their lawful activity.

42. The Prime Minister of the Banyala stated that they wanted to peacefully demonstrate and had asked for permission from the Inspector General of Police to do so. In his affidavit the Inspector General of Police did not show that he had responded to this letter directly. The Banyala were entitled to peacefully assemble and demonstrate for any legitimate reason and this was an activity that they could pursue without infringing on the right of those associated with Buganda Kingdom who wanted to assemble and celebrate with the Kabaka of Buganda their Youth Day.

43. From a review of all available evidence in this matter it is clear that the Police Force acted without justification in stopping preparations for the Kabaka’s visit to Kayunga and I would hold that the Police unconstitutionally interfered with the Petitioners’ rights and freedom to assemble and associate with other like minded Ugandans on the occasion of the Kabaka’s visit to Bugerere or Kayunga District slated for 12^th to 13^th September 2009 in contravention of Article 29(1) (d) of the Constitution. The police actions as recounted by the Regional Police Commander in his affidavit, and repeated by the Inspector General of Police in his affidavit, were in the main unconstitutional. The police, in respect of the four incidents enumerated above, was disrupting lawful activities and in that regard

its claim to be maintaining law and order is not supported by evidence adduced by the Police itself. The Police had determined that it would not allow the Kabaka’s visit to go ahead and Mr Mivule the Regional Police Commander, in concert with the Inspector General of Police, implemented this position, in disregard of the constitutional rights and freedoms of the Petitioners and its constitutional duty to respect, uphold and promote the said rights and freedoms under Article 20(2) of the Constitution.

Discrimination against the Kabaka

44.It was contended that Article 21 of the Constitution had been violated by the actions of the Police and Government of Uganda in so far as the Kabaka had been the subject of discrimination. This claim is without merit as no cause of action was made out upon which such a claim could succeed. Discrimination ‘means to give different treatment to different persons attributable only or mainly to their respective descriptions by sex, colour, ethnic origin, tribe, creed or religion, social or economic standing, political opinion or disability.’ See Article 21(3) of the Constitution. It has not been alleged on the petition that the Kabaka was treated differently from other persons on account attributable only to or mainly on account of any of the categories enumerated in Article 21(3). Nor was it shown on the petition which other persons were treated differently. Clearly no cause of action was made out on this account in the petition. It cannot succeed.

Decision

I would hold that the Uganda Police Force acted unconstitutionally to prevent the Kabaka of Buganda visiting Kayunga District by disrupting all lawful activities for the preparation of the Kabaka’s visit. The Police contravened articles 29 (1) (d) and (2) (a); and 20(2) of the Constitution of Uganda in this regard. I would grant a declaration to that effect. I would allow this petition with costs.

Dated, signed and delivered this 17^th day of December 2015

FMS Egonda-Ntende

Justice of Appeal

THE REPUBLIC OF UGANDA

IN THE CONSTITUTIONAL COURT OF UGANDA AT KAMPALA

CONSTITUTIONAL PETITION NO. 24 OF 2009

BETWEEN

1. Edward Kamya Lugonvu

2. Dr. Adam Kimala

3. Charles Senkungu Walugendo Ssalongo

4. Saida Najjuka:::::::::::::::::::::::::::::::::::::::::::::::::Petitioners

AND

The Attorney General of Uganda::::::::::::::::: Respondent

Coram: Hon. Justice Remmy Kasule, JA/CC

Hon. Justice Eldad Mwangusya, JA/CC

Hon. Justice Rubby Aweri-Opio,JA/CC

Hon. Justice Prof. Lillian Ekirikubinza Tibatemwa, JA/CC

Hon. Justice F.M.S. Egonda-Ntende, JA/CC

JUDGMENT OF HON. JUSTICE REMMY KASULE

I have had the advantage of reading the draft of the lead Judgment by my brother Hon. Justice F.M.S. Egonda-Ntende, JA/CC, and I agree with the conclusion he has arrived at. I have however a few observations to make by way of emphasis.

HON. JUSTICE REMMY KASULE, JA HON. JUSTICE ELDAD MWANGUSYA, JA HON. JUSTICE RUBBY AWERI OPIO, JA HON.JUSTICE PROF. LILLIAN EKIRIKUBINZA TIBATEMWA, JA HON. JUSTICE FMS EGONDA-NTENDE, JA

JUDGMENT OF HON. JUSTICE RUBBY AWERI OPIO, JA Introduction

I have read the draft judgment of my brother Hon. Justice F.M.S Egonda-Ntende, JA with which I do agree.

THE REPUBLIC OF UGANDA

IN THE CONSTITUTIONAL COURT OF UGANDA AT KAMPALA ,

CONSTITUTIONAL PETITION NO. 0024 OF 2009

1. EDWARD KAMYA LUGONVU

2. DR. ADAM KIMALA

3. CHARLES SENKUNGU::::::::::::::::::::::::::: PETITIONERS WALUGENDO SALONGO

4. SAVIDA NAJJUKA

VS.

ATTORNEY GENERAL:::::::::::::::::::::::::::_::;:::;::: RESPONDENT CORAM: HON. JUSTICE REMMY KASULE, JA

HON. JUSTICE ELDAD MWANGUSYA, JA

HON. JUSTICE RUBBY AWERI OPIO, JA

HON. JUSTICE PROF. L.E. TIBATEMWA, JA

HON. JUSTICE F. M. S. EGONDA NTENDE, JA

JUDGMENT OF ELDAD MWANGUSYA, JA (Dissenting)

I have had the opportunity of reading through the draft Judgment of my brother, Hon. Justice F.M.S. Egonda- Ntende, JA. The same sets out the case for the petitioners and that of the respondent plus the affidavits in support of the respective cases very well. I need not repeat them except where it shall be necessary to emphasize a point.

As a brief introduction, the Kabaka of Buganda was scheduled to visit Kayunga District on 13* September 2009. The visit was stopped by

the Uganda Police ostensibly on the ground that the visit would create chaos between the Banyala Community who had expressed disquiet at the intended visit and the Baganda Community who were ready to welcome the Kabaka on a visit within his kingdom. The affidavits of Mr. Richard "Mivule, the Regional Police Commander Central Region and General Kale Kayihura, the Inspector General of Police, indeed create a very grim picture of the security situation in the area to justify the action of the respondent to stop the Kabaka’s visit.

The central issue of the petition which the lead judgment answers in the positive is whether the Uganda Police acted unconstitutionally to prevent the Kabaka of Ruganda visiting Kayunga District by disrupting all lawful activities for the preparation of the Kabaka’s visit. The discussion of the issue revolves around the following Articles of the Constitution:-

Article 29 (2) (a) in particular provides:

“Every Ugandan shall have the right to move freely

throughout Uganda and to reside and settle in any part of

Uganda”

Article 43 on the other hand provides:

1. "In the enjoyment of the rights and freedoms prescribed in this Chapter, no person shall prejudice the fundamental or other human rights and freedoms of others or the public interest.

2. Public interest under this article shall not permit_

1. Political persecution;

2. Detention without trial;

• •

3. Any limitation of the enjoyment of the rights and freedoms prescribed by this Chapter beyond what is acceptable and demonstrably justifiable in a free and democratic society, or what is provided in this Constitution.”

From the interpretation of the two Articles, an issue arises as to whether the right to move freely in Uganda is absolute or it may be restricted in certain circumstances.

During the trial, court inquired of Mr. Godfrey Lule SC as to whether there may be circumstances where the Police can analyse a situation and in the interest of peace, prevent someone from proceeding to a particular area. His response was that there may be such a situation but hastened to add that every incident has to be looked at on its own merit. From the response of Mr. Lule, it is not invariably unconstitutional to restrict freedom of movement because a particular situation "warrants it and that is how I view this petition.

The respondent argues that it was within the mandate of the Inspector General of Police to stop the visit of the Kabaka to Kayunga District because the security situation created by the impasse between the Banyala and the Baganda Communities warranted it. According to the respondents, the acts of violence were reported and intelligence reports projected violence during the visit. The -Government would have failed in its duties if it had allowed a volatile situation to escalate and the intervention by the Police was within its mandate. The Police analysis of a situation may include its own capacity in terms of equipment and personnel to handle it and if in their own assessment they may not contain it, they would be obliged to take measures to stem it under Article 212 of the Constitution.

Article 212 of the Constitution defines the constitutional mandate of the Police in Uganda. It provides:

“The functions of the Uganda Police Force shall include the following:

1. To protect life and property;

2. To preserve law and order;

3. To prevent and detect crime; and

4. To cooperate with the civilian authority and other security organs established under this Constitution and with the population generally.”

Article 43 provides for instances when the freedom of movement may be restricted. Article 29 (2) (a) provides that every Ugandan shall have the right to move freely throughout Uganda and to reside and settle in any part of Uganda.

The central issue is whether the right to move freely is so absolute that it will not be restricted in justifiable circumstances. In my view, a balance has to be struck.

A balancing test is any judicial test in which the jurists weigh the importance of multiple factors in a legal case. Proponents of such tests argue that they allow a deeper consideration of complex issues than a bright line rule can allow. But critics say that such tests can

be used to justify any conclusion which the judge might arbitrarily decide upon.

The case of Ryan v Attorney General [1965] IR 294, established that no personal rights are unlimited. Kenny J observed:

“None of the personal rights of the citizen are unlimited: their exercise may be regulated by the Oireachtas when the common good requires this.”

The above view involves a balancing exercise between affording rights to citizens, but not letting those rights be abused. The question then becomes, if no right is absolute, when may grounds for legitimate interference emerge (i.e. when can rights be infringed upon?) There are several grounds: The “common good”, “Public order and morality” and the “principles of social justice”

In addition to the above, the proportionality test is in fact the best measure. This requires that the limitation imposed on the right must be proportionate to the objective being pursued. Proportionality can be understood and assessed as explained in R v Oakes [1986] 1

S.C.R. 103. A party must show that:

"First, the measures adopted must be carefully designed to achieve the objective in question. The}' must not be arbitrary, unfair or based on irrational

considerations. In short, they must be rationally connected to the objective. Second, the means, even if rationally connected to the objective in this first sense, should impair “as little as possible” the right or freedom in question. Third, there must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of “sufficient importance”.”

Applying the above test to the instant case, it is evident that the halting of the Kabaka’s visit to Kayunga at the time it was, was based on the need to restore calm and peace since from the evidence adduced from the respondent, there was a likelihood of violence and chaos. The action was preventive and precautionary and its constitutionality is embedded in Article 212 of the Constitution already cited. The decision to halt the visit was not only based on

reliable Intelligence information but there were already signs of violence evidenced by the rowdy behavior of the Buganda youths and inciteful messages going on across some Radio stations.

The above test points out further that the objective should ‘impair as little as possible’ the right or freedom in question. It was stated by counsel for the petitioners that once the chaos that characterized the cancelled visit was settled, the Kabaka eventually visited Kayunga District and was given maximum support and security by the Uganda Police. This to me, vindicates the Police action to stop the visit when there was mayhem.

Finally, on the need for proportionality between the ‘effects of the measures which are responsible for limiting the right or freedom, and the objective which has been identified as of sufficient importance’, in the instant case, it is notable that it was important to halt the visit so as to restore calm and peace in the area.

From the above, it is my view that the right to movement may be limited where it is established and justifiable that to do so is for the greater good and to secure the other stakeholders, in this case, the public. Of course, each case must be determined according to its

unique facts to avoid the limitation of certain rights being abused by those limiting.

The issue of proportionality has been addressed by Ugandan courts. In the case of Charles Onyango Obbo & Anor v Attorney General Constitutional Petition No. 15 of 1997, while looking at the limitations permitted under Article 43 of the Constitution, court observed:

“This is the phrase used in article 43 (2) of our Constitution. In the Canadian Constitution they use "reasonable and demonstrably justified." In my view there is no significant difference between the two phrases. In the Canadian case of Regina Vs Oakes (supra) the phrase was given meaning as follows:-

"To establish that a limit (to rights and freedoms) is reasonable and demonstrably justified in a free and democratic society, two central criteria must be satisfied. First, the objective that the measures responsible for the limit on a charter right or freedom are designed to serve must be of sufficient importance

proportionality test. First, the measures adopted mast be carefully designed to achieve the objective in question. They must not be arbitrary, unfair or based on irrational considerations. In short they must be rationally connected to the objective. Secondly, the means, even if rationally connected to the objective in the first sense, should impair "as little as possible" the right or freedom in question: R Vs Big M Drug Mart Ltd Supra. Thirdly, there must be a proportionality between the effects of the measures which are responsible for limiting the charter right or freedom and the objective which has been identified as of "sufficient importance." (sic)

In effect, I find that court must find that the cause for limiting the freedom or right was proportional or fell under Article 43 of the Constitution. That is where I differ from my colleagues. The Police halted the intended visit by the Kabaka at the time they did in the performance of their constitutional duty of keeping peace and order. Counsel for the petitioners observed that the Kabaka eventually visited his subjects in Kayunga District without any incidence whatsoever. Therefore, the Police in initially halting the visit acted constitutionally and I would thus find that this petition has no merit and should be dismissed with no order as to costs.

I so find.

Dated at Kampala this 17^th day of December 2015

Eldad Mwangusya

JUSTICE OF APPEAL