Lominda Afedraru,Al-Mahdi Ssenkabirwa and Ephraim Kasozi
28 May 2008
Kampala — The Constitutional Court yesterday nullified a law that made it mandatory for Ugandans to seek written permission from the Inspector General of Police before holding an assembly or forming a procession in any public place.
In their landmark ruling, the five Constitutional Court judges unanimously agreed that the law represented a limitation "on the enjoyment of a fundamental right to freedom of assembly and association".
Section 32 of the Police Act gave the Uganda Police powers to prohibit assemblies and demonstrations organised by political parties that did not have their prior permission to do so.
Yesterday's ruling also effectively nullifies the Police Declaration of Gazetted Areas Statutory Instrument, in force since September 2007, that requires anyone who wants to hold an assembly of more than 25 people to get written permission from the Inspector General of Police before proceeding.
That administrative instrument was seen as intended to tighten the law, even though the practical realities said something else. Wedding meetings, for example, are typically attended by people who may add up to, or even exceed 25.
The ruling is not the outcome that would have been expected by the government, which is increasingly being accused by opposition politicians of using the law to frustrate them.
The Constitutional Court ruled that such a law has no place in a functioning democracy. "In the matter now before us there is no doubt the power given to the Inspector General of Police is prohibitive rather than regulatory.
"It is open ended since it has no duration. This means that the rights available to those who wish to assemble and therefore protest would be violated," reads the lead judgment by Justice Constance Byamugisha.
"The justification for freedom of assembly in countries which are considered free and democratically governed in my view is to enable citizens to gather and express their views without government restriction...Maintaining the freedom to assemble and express dissent remains a powerful indicator of the democratic and political health of a country."
Other judges on the panel were: Deputy Chief Justice, Laetitia Kikonyogo, Justice Galdino Okello, Justice Mpagi Bahigeine, and Justice Christine Kitumba.
"I therefore find the powers given to the Inspector General of Police to prohibit the convening of an assembly or procession unjustified limitation on the enjoyment of a fundamental right," the lead judgement said.
"Such a limitation is not demonstrably justified in a free and democratic country like ours, therefore that provision of the Police Act is null and void. The petitioner is entitled to a declaration sought to that effect with costs."
In 2005, Mr Kivumbi Muwanga, the head of Popular Resistance Against Life Presidency, a political pressure group, filed a petition against the Attorney General in which he challenged Section 32 of the Police Act, which says: "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, street or at any place of public resort and the Inspector General has reasonable grounds for believing that the assembly or procession is likely to cause a breach of peace, the Inspector General may, by notice in writing to the person responsible for convening the assembly or forming the procession, prohibit the convening of such assembly."
Mr Ladislaus Rwakafuzi, a Kampala lawyer, who represented the petitioner, argued that his client, on April 14, 2005 at Masaka, wrote to the Ministry of Internal Affairs seeking permission to hold a political rally in Masaka, a request that was denied. And when he wrote to Masaka's top police commander informing him of the intended rally, he was advised to organise a seminar in a closed place.
But Mr Muwanga, ignoring that the public rally would be dispersed, went ahead to organise the rally.
It ended in the arrest of some participants, the Constitutional Court heard. Mr Rwakafuuzi submitted that the section had been used by the state to stifle alternative political thought in the country. The petitioner, Mr Kivumbi, said the judgement was one that would keep democracy alive.
"This is a landmark judgment and indeed a milestone in advancing the frontiers of democracy, he said, adding: "It is a lead for those with democratic aspirations and the struggle in the enjoyment of freedom."
The executive director of the Foundation for Human Rights Initiative, Mr Livingstone Ssewanyana, said the ruling was a welcome development. "Because we have always argued that the right to associate should not be restricted and subject[ed] to executive control," he said, adding that the ruling has reaffirmed an inherent human right.
"I would call upon the state to immediately disregard such restrictions and allow for the freedom to associate and assemble," Mr Ssewanyana said. Kampala Central MP, Mr Erias Lukwago, who has had his own skirmishes with the police, said the ruling had set him free.
Deputy Attorney General Fred Ruhindi refused to comment before studying the judgement.
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