Special Series: Perspectives from Undergraduate Law Students
LL.B. Student Contribution
—Rahul Garg, National Law University, Jodhpur, and Paras Ahuja, National Law University, Jodhpur
On 26th March, 2020, the Constitutional Court of Uganda, in a five-judge bench decision, held Section 8 of the Public Order Management Act, 2013 [hereinafter, “POMA”] to be in violation of the Constitution of Uganda. The provision entitled the Inspector General of Police with the power to stop or disperse public assemblies/meetings upon the fulfilment of certain conditions. This landmark decision in Human Rights Network Uganda v. Attorney General [hereinafter, “HRNU”] marks itself as a critical-point in the history of free speech, right to protest and freedom of assembly in Uganda. Additionally, it also serves a clarion call to the entire world, since legislations like POMA and provisions akin to Section 8 specifically, are not exclusive to Uganda but resonate across jurisdictions (here, here, and here). In this post, we provide a critique on the reasoning of the court and its digression from the core principles of constitutional law and statutory interpretation.
The primary ground of challenge against Section 8 was the violation of Article 92 of the Ugandan Constitution. The latter is a restriction on retrospective legislation in the sense that it forbids the Parliament from passing any law which alters a decision of any court as between the parties to the decision or judgment. On 27th May, 2008, in the case of Muwang Kivumbi v. Attorney General, the Constitutional Court of Uganda had struck down Section 32(2) of The Police Act (Cap. 303 Laws of Uganda), a provision that is purportedly similar to Section 8 . The Section provided the Inspector General of Police with the power to prohibit the convening of any assembly or forming of any procession if he/she had reasonable grounds for believing that the assembly/procession is likely to cause a breach of peace. The same was held to be violative of the right to freedom to assemble enshrined under Article 29(1)(d) of the constitution. The court in HRNU, however, allowed for this challenge against Section 8 to succeed on the ground that Section 32(2) of the Police Act and Section 8 of POMA are pari materia to each other and therefore enactment of Section 8, POMA would be tantamount to re-enacting the former, thereby violating Article 92 by altering the decision of the court in Muwang Kivumbi.
We first argue that this interpretation is erroneous for two reasons. One, the court while interpreting Article 92 and its application in the present case failed to appreciate the true import of the constitutional provision by disregarding the latter part of its phraseology, that is, “as between parties to the decision or judgement”. We argue that the same confines the application of Article 92 to only in personam proceedings. Interestingly, Barishaki J. referenced to that in passing, while acknowledging that the history of the provision has been limited to the issues of personal litigation, and has been foreign to the application on issues of public justice. However, he swiftly justified the ignorance of the latter part of the provision in the present case by calling for a “broader and purposive interpretation” of the entire provision even to decisions made in public interest. We argue this course to be a misguided approach. Purposive rule of statutory interpretation allows the judiciary to forego the plain meaning of the provision (literal interpretation) and give effect to the legislative intent behind it, when faced with ambiguity in the legislative framing. The rule, however, loses its applicability when the provision is clear and unambiguous, paving way for the literal rule to be employed. The court in the present case eschews from ascertaining the legislative intent of Article 92, which we argue to be a quintessential step to purposively interpret a provision, besides taking a big leap forward by overlooking its unambiguous nature and its semantics, and therefore, in our opinion, grossly misinterprets Article 92 under the garb of giving it a purposive, and thus a mistakenly broader interpretation.
Second, in holding Section 32(2) of the Police Act and Section 8 of POMA pari materia to each other, the court overlooks the patent differences between the two. Upon the perusal of the two sections, we observe that the powers provided to the police are different under both the provisions. The former provides the Inspector General of Police with the power to prohibit the convening of any assembly or forming of any procession if the Inspector General has “reasonable grounds” for “believing” that the assembly/procession is likely to “cause a breach of peace”. In fact, the court in Muwang Kivumbi held the “open-ended” nature of this power to be a major ground for the declaration of this provision as unconstitutional. Section 8, on the other hand, provides the police with the power to stop/prevent/order for dispersal of the meeting only in a scenario where public meeting is held in violation of the provisions of the Act, thereby, massively restricting the scope of arbitrary and subjective usage of the power by police. Section 8, therefore comes with a clear mandate as opposed to Section 32, which was prone to be morphed into fanciful interpretations of specific instances.
Additionally, Section 8(3), POMA also markedly differentiates Section 8 (POMA) from Section 32 (Police Act). It provides for a cautionary restriction on the power of the police in issuing an order for the dispersal of the meeting by having to “regard the rights and freedoms of the persons against whom the order is sought to be issued”. Any such provision, that furthers the telos of actualization of the rights and freedoms, does not feature anywhere in the framing of Section 32(2) or anywhere else in the Police Act, thereby stretching the ambit of the latter beyond constitutional limits. Therefore, the amplitude of the two provisions is in no way analogous.
Furthermore, Kakura J. in his judgement against the constitutionality of Section 8 reasoned that the object of POMA, i.e. to maintain public order acquires redundancy vis-à-vis Chapters VI and VII of the Penal Code of Uganda, since the chapters also deal with unlawful assemblies, riots and maintenance of public order. He extends this to conclude that Section 8 fails the law that the object which is designed to be promoted by the limitation on a fundamental right must be sufficiently important to warrant the over-riding of a fundamental right (freedom of assembly, in the present case). In other words, Justice Kakura concludes that the redundancy of POMA, not only renders it useless as a piece of legislation, but also incapacitates it of its ability to limit a fundamental right. We observe this reasoning to be erroneous. The logic behind Justice Kakura’s dialectical opinion assumes a penal code to be exhaustive of the contents of the entirety of criminal law which is not the case (here, and here). Assuming arguendo, POMA distinctively distinguishes itself from the Penal Code of Uganda, as the latter is predominantly substantive law, while the former is procedural, thereby nullifying the possibility of a mirror-image overlap between the two.
In writing his judgment against the existence of POMA, in its entirety, Musota J. observed that the restrictive definition of the word “public meeting” (used interchangeably with assembly) provided for under Section 4 of POMA undermines the constitutional protection of right to freedom to assemble and demonstrate with others under Article 29. He asserted that a public meeting/assembly is any gathering of persons with a purpose to express themselves and that there should be no further qualification to its meaning. We argue this reasoning is fouled by ignorance of the phrase, “for the purposes of this Act” which used in Section 4, in defining public meeting. Section 4(2) mentions an enumeration of meetings which shall be excluded from the meaning of word “public meeting”, such as meeting of members of trade union, meeting for any social/cultural/religious/charitable/educational or a commercial purpose, or a meeting held for a lawful purpose of a lawful body etc. We argue that the definition of public meeting under Section 4 does not limit the scope of the fundamental right of freedom of assembly provided for under Article 29 of the Constitution, in fact, it does the opposite by limiting the application of POMA, and thereby the power of the police to stop/prevent meetings. The restrictive definition therefore braces the actualization of freedom of assembly by limiting the scope of meetings on which POMA can be made applicable, rather than undermining it.
In our opinion, the bench in its present ruling against the Act seems to be guided by the poignant use of power by police officials in Uganda in the past. For instance, Musoke J. emphatically observes that POMA gives blanket power to the police officials to stop citizens from exercising their right to assemble; and that POMA may have the effect of encouraging police to presume that assemblies should be stopped, therefore justifying its unconstitutionality. We argue that the bench sees the provision from the lens of “how-it-is-being-used”, or “how-it-may-be-misused”, and not “what-the-provision-is”. As mentioned above, the Act under Section 8(3), and additionally under Section 2, makes it obligatory for the police to respect the rights and freedoms of the people. Any supposed/actual misuse by the police does not make the Act in itself to be unconstitutional, but rather renders the acts of the violators unjustified.
The possible misuse of the Act needs to be intercepted instead, for which detailed guidelines may be released to ensure its strict and non-arbitrary use. Enforcement can also be tightened by imposing criminal sanctions against misuse by the police. One could possibly take inspiration from the words of Hidyatullah J, who while deciding on the constitutionality of Section 144, Code of Criminal Procedure, 1973 (a provision similar to Section 8, POMA) in the Supreme Court of India case of Madhu Limaye v. Sub-Divisional Magistrate held that the fact of a provision being abused or its capability of being abused should never be a ground for striking it down as unconstitutional. The bench in HRNU, however, chose otherwise. In its supposed trail towards the realisation of democratic ethos, it left behind a trajectory of complications as it detoured from the actualisation of its judicial function.
Suggested Citation: Rahul Garg and Paras Ahuja, Special Undergraduate Series–Uganda’s Recent Decision on Public Order Management Act, 2013: When the Constitutional Court Failed Constitutional Interpretation, Int’l J. Const. L. Blog, May 31, 2020, at: http://www.iconnectblog.com/2020/05/special-undergraduate-series–uganda’s-recent-decision-on-public-order-management-act,-2013:-when-the-constitutional-court-failed-constitutional-interpretation