This was an order to revise and clarify the definition of an idle and disorderly person per the Penal Code Act. The accused person was charged with photographing the president without permission. He entered a plea of guilty before the magistrates’ court. The magistrate court accordingly convicted the accused on the plea of guilty.
The High Court called the lower court to revise the decision. The case was then referred to the Directorate of Public Prosecution (DPP) for an opinion on the propriety of the conviction and sentence. The DPP interpreted section 167(d) of the Penal Code Act, which provides that a person commits an offence against public order when he or she "publicly conducts himself or herself in a manner likely to cause a breach of the peace". The DPP differentiated between actual breaches of the peace and constructive breaches of the peace, in relation to the offence. The DPP interpreted "breach of the peace" to mean causing an unnecessary disturbance of the peace by engaging in a riotous and unlawful assembly or a riot or affray or instilling fear or terror by sending challenges or provoking others to a fight or going about armed in public with unusual weapons or attendance without lawful excuse etc. The DPP was of the opinion that the trial Magistrate erred in law in convicting the accused. Merely taking a photograph of the President without permission does not constitute an offence under section 167(d) of the Penal Code Act (Cap. 120).
The court in agreement with the DPP, held that the facts did not fall within the offence and held that the magistrate court erred in law by convicting and sentencing the accused.
The conviction was thus quashed, and the prison sentence was set aside.
IN THE HIGH COURT OFUGANDA AT KAMPALA
CRIMINAL REVISION NO. HCT-00-CR-CR-02-2006
(Arising from Kabale Criminal Case No. KAB-00-CR-CO-004)
Before: The Honourable Mr. Justice E.S Lugayizi
"Tubemanzi Deus on the 02nd January 2006 at Nakayiba Printers in the Kabale District publicly conducted himself in a manner likely to cause a breach of the peace when he photographed the President without permission.”
In response to the above charges the accused had this to say:
“It is true”.
In turn, the learned trial Magistrate (Ms. Irene Akankwasa) recorded a plea of guilty for the accused in respect of the charge. The prosecutor, then, narrated the facts of the case in roughly the same way this Court has recounted them above. The accused reacted to those facts as follows:
“Facts are correct”.
Accordingly, the learned trial Magistrate convicted the accused on his own plea of guilty in respect of the above charge and sentenced him to a term of one month's imprisonment. Subsequently, one of the newspapers reported the proceedings of the above case. As a result, this Honourable Court called for the lower court's record to ascertain what transpired. After reading the lower court's record Court referred the matter to the Directorate of Public Prosecutions for an opinion on the propriety of the conviction and sentence. In his letter dated 28th September 2006, Mr. Wamimbi Jude who signed on behalf of the Director of Public Prosecutions had this to say:
"Reference is made to your letter dated 31st May 2006 requiring our opinion on the priority of the conviction and sentence in the above case.
For the sake of clarity, Court will, below, reproduce the provisions of section 167(d) of the Penal Code Act (Cap. 120). Those provisions read as follows:
“167. Idle and disorderly persons.
Any person who-
(d) Publicly conducts himself or herself in a manner likely to cause a breach of the peace;
shall be deemed an idle and disorderly person, and is liable on conviction to imprisonment for three months or to a fine not exceeding three thousand shillings or to both such fine and imprisonment ... "
According to Collins English Dictionary and Thesaurus at page 133 the phrase "breach of the peace" means,
“…. Causing an unnecessary disturbance of the peace”.
In Britain certain offences against public order are referred to as offences relating to "Breach of the Peace". BYRNE'S LAW DICTIONARY at page 134 describes such offences as follows:
"Breaches of the peace are offences against public order. They are commonly divided into actual, constructive and apprehended.
Actual breaches of the peace include riotous and unlawful assemblies, riots, affray, forcible entry and detainer, etc.
Constructive breaches ... include ... sending challenges and provoking to fight, going armed in public without lawful occasion, in such manner as to alarm the public, etc.
An apprehended breach of the peace is where one man threatens another with bodily injury ... or where a man goes about with unusual weapons or attendance, to the terror of the people ... "
E.S Lugayizi (JUDGE), 2/11/2006