Since its passage in 2013, the Public Order Management Act, POMA, has stood up against undiminished opposition. But in a 4-1 majority judgment late February, 2020, the Constitutional court justices struck down the dreaded section 8 of the Act, used by police over the years to block and disperse opposition gatherings. DERRICK KIYON- GA breaks down four takeaways from the judgment.
POMA not totally annulled?
When Human Rights Network Uganda, Indigenous Voluntary Associations, FIDA, Butambala County MP Muhammad Muwanga Kivumbi and Bishop Zack Niringiye petitioned the Constitutional court in 2013 they asked the justices to quash the entire Public Order Management Act.
However, on February 29, 2020, when the case came up for hearing, Onyango Owor, the petitioners’ lawyer, introduced a new issue that ultimately split the five judges. Owor, without giving the judges prior warning, said his written arguments were restricted to challenging only section 8 of POMA.
The petitioners believed that once section 8 was struck down, which grants the inspector general of police unrestricted powers to stop public gatherings – the entire Act would be without a bite.
Justice Cheborion Barishaki, who wrote the lead judgement, said that although he found it rather peculiar and unwise for the petitioners to let other sections of POMA stand, he had no option but to go with the new position since the petitioners had the right to prosecute their case as they deemed fit.
Eventually, Barishaki was joined by Justice Geoffrey Kiryabwire in tearing apart section 8 of POMA. Justice Kenneth Kakuru didn’t agree with the petitioners’ decision to challenge only section 8.
“It seems to us that counsel for the petitioners did not realize that this court, even without further submissions on his petition, is required to pronounce itself on the constitutionality of the provision of the law once the same has been challenged in the petition such as the present one,” he said, alluding to the Gerald Karuhanga petition in which the Ntungamo Municipality MP challenged President Museveni’s decision to reap- point Justice Benjamin Odoki as chief justice without the Judicial Service Commission’s recommendation.
Karuhanga’s lawyers led by retired Supreme court judge George Wilson Kanyeihamba stormed out of court before arguing the case but Justice Kakuru said that that in itself didn’t stop the court from ruling in favor of Karuhanga without his lawyers.
“.... It was irregular for the petitioners to abandon the grounds set out in the [main] petition, without leave of this court and or without amending the petition. The court only became aware of this development from the petitioners’ written submissions, after the closure of the oral hearings,” Justice Kakuru noted.
Eventually, unlike Barishaki and Kiryabwire, Kakuru was joined by Justice Elizabeth Musoke in annulling not just section 8 but the entire POMA on grounds that it is inconsistent with articles 2 (2), 21 (1), 21 (2), and 21(3) 29(1), 29 (1) (d), 29(1)(e),30,38(1) of the Constitution.
This means the judges were tied on this issue (two against two) but the official position of court is that section 8 is now nullified unless the attorney general successfully appeals.
Attorney general unserious
In defense of POMA, Gerald Batanda, then a lawyer with the Attorney General’s chambers, told the Constitutional court that sections (5), (6 I), 3, 7(2),8,9,10,12 and 13 of the law did not place restrictions on people’s ability to exercise fundamental rights and neither did they grant police broad authority to use force to disperse assemblies nor did they impose criminal liabilities on organizers and participants of public meetings.
Batanda insisted that the challenged sections were not inconsistent with Uganda’s international commitments and national objectives plus articles 2 (2), 21(2) (3), 29 (1)) (a)(d), 30,38(1) (2) of the Constitution.
But Justice Kakuru dismissed the argument as a common denial without particulars.
“The laxity and the casual manner in which the Attorney General handles serious constitutional matters in this court is appalling to say the least. It verges on neglect of duty if not outright abuse of office. A serious constitutional matter such as the one before us necessitates serious attention by the Attorney General,” Justice Kakuru said, adding, I would on account of the respondents’ (Attorney General) failure to justify the limitation in their pleadings allow this petition since the Attorney General had failed to discharge its legal burden.
Parliament, Executive Vs Judiciary The petitioners premised their case on the ground that the spirit of parliament in enacting POMA was to sidestep the Constitutional court’s judgment in the “Muwanga Kivumbi case” which quashed the Police Act. They said parliament contravened the doctrine of separation of powers buttressed in Article 92 of the Constitution.
For the uninitiated, in his constitutional petition of 2005, Kivumbi successfully challenged section 32 (2) of the Police Act, which gave police powers to regulate public gatherings. Owor said since POMA’s section 8 gives police similar powers as those under the quashed section 32 (2) of the Police Act –it means it was deliberately enacted to overturn the import of court in the Kivumbi case, a contention Barishaki agreed with.
“Without any hesitation, therefore, I find that the provisions of section 8 of the Public Order Management Act 2013 are in pari materia with the nullified section 32 (2) of the Police Act. The justices of the Constitutional court who determined Muwanga Kivumbi vs Attorney General labored to explain in individual judgments, the reasons why the police cannot be permitted to have powers to stop the holding of a public gathering including a protest or demonstration ostensibly on grounds that such public meetings would cause a breach of the peace. It is a pity that their explanations of nullifying section 32 (2) of the police Act were contemptuously ignored by Parliament and the Executive.” Justice Barishaki ruled.
Crushing dissent Though the Attorney General, represented by George Kalemera, said POMA was largely meant to operationalize article 29, Justice Kakuru said, “Clearly its principle purpose, as discernable from section 8, is to enable the police to suppress enjoyment of a constitutionally guaranteed freedom of assembly using very arbitrary measures...In my view, law enforcers, particularly the police force, believe that POMA empowers them to ban or violently disperse public meetings of a political nature or even social gatherings organized by certain categories of individuals. This is most unfortunate.”
He wasn’t done: “It is for that reason that this court must express itself unequivocally that the police have absolutely no legal authority to stop the holding of public gatherings on grounds of alleged possible breach of peace if such gatherings are allowed to proceed.”