JUDGMENT OF C.N.B KITUMBA J.A
I have had the benefit of reading the draft judgment of Byamugisha J.A I entirely agree with
The powers given to the Inspector General of police by section 32(2) of the police act are in clear contravention of the constitution.
Article 20(1) and (2) of the Constitution guarantees the fundamental rights and freedoms of the individual. In particular Article
“The rights and freedoms of the individual and groups enshrined in this chapter shall be respected, upheld and promoted by all organs and agencies of government and by all persons”.
Article 29 of the constitution provided, inter alia, protection of people’s freedom of conscience, association and assembly.
In the instant petition the petitioner complains about section 32(2) of the police Act, which gives the police powers in the following
“(2) if is comes to the knowledge of the inspector general that it is intended to convene any assembly or form any procession
on any public road or street or at any place or public resort, and the inspector general had reasonable grounds for believing that
the assembly or procession is likely to cause a breach of the pace, the Inspector General may, by notice in writing to the person
responsible for convening the assembly or forming the procession, prohibit the convening of the assembly or forming of the procession”.
The constitution while providing for fundamental human rights and freedoms also set standard, which can be used in limiting the same
According to Article 43 of the constitution in the enjoyment of those rights and freedoms one must not prejudice the fundamental
or other rights and freedoms of others or public interest.
Article 43(2) states:-
Public interest under this article shall not permit-
Detention without trial
“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.”
It is my considered view that section 32(2) of the Police Act gives the inspector general of police excessive and powers which he
may use as he wishes to curtail people’s rights and freedoms of conscience, speech, association and assembly. Those rights
are very necessary especially in a multiple political system.
In a free and democratic society the police is supposed to keep law and order. In case the inspector general of police sees any possibility
of a breach of peace at any assembly, the police should provide protection. The citizens should be allowed to exercise their fundamental
rights and freedoms.
I would declare section 32(2) of the police act a being inconsistent with the constitution and therefore, declare It null and void.
Dated at Kampala this 27th day of May 2008
Justice of Appeal
JUDGMENT OF BYAMUGISHA J.A
This petition was filed in the year 2005 under Article 137(3) of the Constitution challenging the constitutionality of section 32
of the police Act (Cap 303 Laws of Uganda). The petitioner’s case is that the said section contravenes Articles 20(1) (2),
21(1) (2), 29(1) (a) (b) (e), 38(2), 42, 43(3)(a)(c) of the constitution. He was seeking declaration and orders to that effect.
The petition is supported by the affidavit of the petitioner himself. There are a number of annextures attached to it.
The respondent opposed the petition on the ground that the impugned section is lawful and does not contravene any of the provisions
of the constitution.
The answer to the petition was accompanied by two affidavits deponded by Mr. Henry Oluka, a senior state Attorney in the respondent’s
chambers and Alfred Bitwire, the District Police Commander of Mukono District.
At the time of filing the petition, the petitioner was a member and coordinator of an organization calling itself Popular Resistance
against Life Presidency (PRALP). On 11th March 2005 the organization wrote a letter the Ministry of Internal Affairs seeking permission
to hold a political rally in Masaka District.
The Permanent Secretary in the same Ministry in his reply dated 15th March 2005 declared the planned really illegal as the organization
tat was planning the rally was not registered.
On 14th April 2005 the Masaka branch of the organization wrote to the District Police informing him of the organization’s intention
to hold a really and demonstration in Masaka town. The DPC in his letter dated 18th April 2005 advised the organization to hold
a seminar or consultative meeting in an enclosed place. He warned them that if they went ahead to hold any rally or demonstration,
the police would disperse it. The rally was held and the police dispersed it. The petitioner and some other people were arrested.
On 18th May 2005 the organization wrote to the District Police Commander Mukono informing him of the organization’s intention
to hold a public dialogue in Lugazi. Nkokonjeru and Seeta towns. They intended to distribute leaflets. The DPC replied to the letter
and advised them to hold consultation meetings in an enclosed place as the organization was unregistered.
In all these letters the police officers were quoting sections 32, 34 and 35 of the Police Act and also the now repealed Article
73 of the Constitution.
The petitioner felt aggrieved by the above acts of the police and he filed the petition to have the section declared unconstitutional.
The following issues were framed for court’s determination namely:
Whether section 32 of the police Act contravenes Article 20(1) and (2), 21(1) and (2), 29(1) (a) (b) (d) and (e). 38(2), 42, 43(3) (a) and (c) of the constitution
Whether the police under section 32 have power to disperse lawful assemblies
Whether the petitioner is entitled to the relief sought.
Mr Rwakafuzi represented the petitioner. In his submission he stated that the petition was filed in 2005 when there was concern that
the police had become highly political by censoring the political activities of the opposition including the petitioner. He stated
that the police were citing section 32 of the police Act when they dispersed and broke up the rallies. He further stated that the
rallies were for influencing the political process that was going on at the time which led to the amendment of the constitution.
Learned counsel pointed out that section 32(2) of the Police Act is still on the statute books and the Police is still using it.
He complained that the unfettered discretion on the part of the police contravenes article 20(1) (2) of the Constitution. He claimed
that the section is unconstitutional as it gives powers to the
police whether to allow or disallow political rallies or assemblies.
The freedom to assemble, demonstrate peacefully unarmed and to petition counsel pointed out, is guaranteed in article 29(1) (d).
Mr Rwakafuzi pointed out that the right is not absolute it should not prejudice public interest. He pointed out that the police can
put restrictions as is provided under section 32(1 (b), the police is there to direct rallies but not to disperse them.
He invited us to find that section 32(2) is unconstitutional and in the alternative the section should not be used to stop rallies.
Ms Rwakoojo, learned Principal Attorney who appeared for the respondent, did not agree that the impugned section contravenes the
mentioned provisions of the Constitution. She submitted that the provisions of the section blend in well with the functions of the
police which are spelt in Article 212 of the Constitution. She pointed out that Article 43 restricts the enjoyment of fundamental
rights and freedoms in public interest. The learned Principal State Attorney pointed out that the impugned section prohibits certain
assemblies and this is rooted in community well being and public security.
She reminded us about the general rules of Constitutional interpretation as enunciated in the case of Paul Ssemogerere & another v Attorney General Constitutional Petition No.3/2000. This decision quoted with approval the decisions of the Supreme Court, the Constitutional Court and from other jurisdictions.
She further submitted that the section is within the limits of article 43 and the limitation is demonstrably justifiable in a free
and democratic society. She relied on the judgment of Mulenga JSC which laid down the test in the case of Onyango Obbo & another v Attorney-Constitutional Appeal No. 2/02 at page 25-26. .
She further submitted that section 65 of the Penal Code Act defines unlawful assemblies and riots and it does not contravene the Constitution.
On the second issue, 'Ms Rwakojo submitted that the section is clear and precise. It empowers the police to regulate assemblies and
to disperse lawful assemblies which conduct themselves in a manner which is not in accordance with the law.
She invited court to dismiss the petition with costs as the petitioner is not entitled to any relief.
The facts that led to the institution of the petition occurred at the height of the political debate to amend the 1995 Constitution.
The petitioner was a member of an organization calling itself the Popular Resistance against Life, Presidency. As the name suggests,
it was opposed to the lifting of term limits that had been enshrined in the Constitution under Article 105(2). At the time political parties and organization were officially not allowed to operate as legal entities. The situation was changed
by the amendment of the Constitution which ushered in a multiparty dispensation and freed political parties and organizations to
That means that the allegations which the petitioner made in the petition have been overtaken by events. This Court cannot pronounce
itself on the constitutionality of the section since there is no live dispute between the parties at this point in time.
However, Mr Rwakafuzi submitted that the police are still using the section to disperse rallies of opposition political parties.
That may as well be true.
However no evidence was adduced before us to prove that this is so. It remains a statement from the bar. Learned counsel also submitted
that the petitioner has no quarrel with the whole of section 32. Their complaint according to counsel is against subsection (2).
For purposes of clarity I shall reproduce the section in question. It is titled "powers to regulate assemblies and processions":
(1) Any officer in charge of police may issue orders for the purpose of-
(a) regulating the extent to which music, drumming or public address system may be used on public roads or streets or at any festivals or ceremonies;
(b) directing the conduct of assemblies and processions on public roads or streets or at places of public resort and the route by which and the times at which any procession may pass.
(2) if it comes to the knowledge of the Inspector General that it is intended to convene any assembly or form any procession on any public road or street or at any place or public resort, and the inspector general has reasonable grounds for believing that the assembly or procession is likely to cause a breach of the peace, the inspector general may, by notice to the person responsible for convening the assembly or forming the
procession, prohibit the convening of the assembly or forming the procession.
The provision of the subsection empowers the inspector general of police to prohibit the convening of any assembly or procession on
any public road, street or any place of public resort, if he has reasonable grounds to believe the assembly or procession is likely
to cause a breach of the peace.
The operative word in the section is “prohibit”. The ordinary meaning of the word is to forbid someone from doing something.
In order for the petitioner to succeed under the subsection he has to show that the powers given to the inspector general of police
by the above subsection prima facie contravene the provisions of Articles 20(1) (2), 21(1) (2), 29(1) (a) (b) (e), 38(2), 43(3)(a)(c) of the constitution.
The burden will then shift to the respondent to justify the prohibition as being a justifiable limitation of the rights as envisaged
by Article 43.
For purpose of clarity, I shall reproduce each article in question. Article" 20 states as follows:
(1) Fundamental rights and freedoms of the individual are inherent and not granted by the State.
(2) The rights and freedoms of the individual and groups enshrined in this Chapter shall be respected, upheld and promoted by all organs and agencies of Government and by all persons.
Article 21 provides as follows:
"(1) All persons are equal before and under the law in all spheres of political, economic, social and cultural life and in every
other respect and shall enjoy equal protection of the law.
(2) Without prejudice to clause (1) of this article, a person shall not be discriminated against on the ground of sex, race, colour,
ethnic origin, tribe, birth creed or religion, social or economic standing, political opinion or disability. "
Article 29(1) provides as follows:
"(1) Every person shall have the right to-
(a) freedom of speech and expression which shall include freedom of the press and other media;
(b) freedom of thought , conscience and belief which shall include academic
freedom in institutions of higher learning;
(d) freedom to assemble and to demonstrate together with others peacefully and unarmed and to petition; and
(e) freedom of association which shall include the freedom to form and join associations or unions, including trade unions and political
and other civil organizations.
The rights and freedoms which are enshrined in these articles are not absolute. . There are subject to restrictions enshrined in
article 43 of the Constitution which provides as follows:
(1) In the enjoyment of the rights and freedoms prescribed in this Chapter, no person shall prejudice the fundamental other human rights and freedoms of other or public interest.
(3) Public interest under this article shall not permit-
(a) political persecution; (b) detention without trial;
(c) 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".
The standard against which every limitation on the enjoyment of fundamental rights and freedoms as set out in article 43(2) (c) is an objective one. This legal principle was enunciated in the case of Onyango-Obbo & another v Attorney General (supra). Mulenga JSC who wrote the lead judgment with which other members of the court concurred.
The brief facts of the case were that the appellants were journalists working with one of the local newspapers in this Country. They
were jointly charged with publication of false news contrary to section 50 of the Penal Code Act. They filed a joint petition in
the Constitution Court challenging the constitutionality of the section under which they were being prosecuted. They claimed that
their prosecution violated their rights guaranteed by the Constitution.
The petition was dismissed by the Constitutional Court by a majority of three to two and they appealed to the Supreme Court.
"The provision in clause 2(c) clearly presupposes the existence of universal democratic values and principles, to which every democratic
society adheres. It also underscores the fact that by her Constitution, Uganda is a democratic state committed to adhere to those
principles and values, and therefore, to that standard. While there may be variations in applications, the democratic values remain
the same. "
The learned justice further stated:
"Under Article 43(2) democratic values and principles are the criteria on which any limitation on the enjoyment of rights and freedoms guaranteed by the Constitution has to be justified. The court must be guided by the values and principles essential to a free and democratic society. In Mark Gova &Another v Minister-of Home Affairs &Another; [S.C.36/200:Civil Application No.156/99] the Supreme Court of Zimbabwe formulated the following summary criteria, with which I agree for justification of law imposing limitation on guaranteed rights-
the legislative objective which the limitation is designed to promote must be sufficiently important to warrant over riding a fundamental right;
the measures designed to meet the objective must be rationally connected to it and not arbitrary, unfair or based on irrational considerations.
The means used to impair the right of freedom must be more than necessary to accomplish the objective”
Peaceful assemblies and protests are a vital part of every domestic society. They can be a very powerful tool and some of the rights
and freedoms that some countries enjoy today were gained because some people were to go out on the street and protest.
The Supreme Court was dealing with the fundamental right of freedom of expression.
This fundamental right is closely related to freedom of religion, belief and opinion, the right to dignity, the right to freedom
of association and the right to peaceful assembly etc. These rights are inherent and not granted by the State. It the duty of all
Government agencies who include the police to respect, promote and uphold these rights~
These rights and many others taken together protect the rights of individuals not only to individually to form and express opinions
of whatever nature, but to' establish associations of groups of like-minded people to foster and disseminate such opinions even when
those opinions are controversial.
In every society there is always tension between those who desire to be free from annoyance and disorder on one hand to those who
believe to have the freedom to bring to the attention of their fellow citizens matters which they consider important.
The way therefore, any legal system strikes a balance between the above mentioned competing interests is an indication of the attitude
of that society towards the value it attaches to different sorts of freedom. A society especially a democratic one should be able
to tolerate a good deal of annoyance or disorder so as to encourage the greatest possible freedom of expression, particularly political
The right to peaceful protest is not absolute. The police have a wide range of powers to control and restrict the actions of protestors.
These powers should not be exercised by the police in an unaccountable and discriminatory manner.
In am attempt to justify the powers given to inspector general of police to prohibit the convening of a procession or assembly, Mrs.
Rwakojo availed us a copy of the United Kingdom public order Act 1986. Section 13 of the Act gave to the chief officer of police
to prohibit a procession if had reasonable ground to believe that the holding of a public procession would result in public disorder.
The prohibition was limited to a period not exceeding three months.
It should be remembered that the United Kingdom had no written constitution. This position had changed with the enactment of the
human rights Act in 1998 which domesticated the European convention on human rights.
With regard to political protest the convention emphasized four key areas namely:
The right to peaceful assembly in article 11
The right to freedom of expression in article 10
The right to freedom of thought, conscience and religion in article 9 and
The right to respect for private and family life in article 8.
Article 29 of our constitution is modeled along the lines of the European Convention on Human Rights
Mrs. Rwakojo also provided the First Amendment Assemblies’ Act form the District of Columbia in the United States of America
with regard to police powers in dealing with lawful assemblies. The right of peaceful assemblies is entranced in the United States
constitution. The act gives powers to the police to arrest persons who engage in disorderly conduct, or who threaten violence etc.
It does not give powers of prohibition to the police. The reason for this is obvious. Freedom of assembly is an entrenched right
in the United States constitution to restrict or prohibit it would be a violation of the rights of protestors.
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 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 give 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
The petition is allowed with costs
Dated at Kampala this 27th day of May 2008
Justice of Appeal