How police continue to disobey court rulings by enforcing POMA

Politicians tap into football as they look to win or retain political positions and that was the case when Joel Ssenyonyi – the Nakawa West Member of Parliament (MP) – organised a football tournament whose climax was to be on Easter day.

All was set, but police at the last minute came in and chased away all those that had gathered on grounds that organisers had not notified them. 

At Ssenyonyi’s gathering, no arrests were made but one day later, seven disenchanted Makerere University students who attempted to organise a press conference weren’t that lucky as they were brutally arrested on charges of holding an illegal assembly.

The arrests come after the Constitutional Court last month nullified Sections 5 and 11 of the Public Order Management Act (POMA) which in a way gave police powers to ask organisers of public gatherings to give it notice.

Section 5 of POMA stipulated that: “Notice of public meeting (1) An organiser shall give notice in writing signed by the organiser or his or her agent to the authorised officer of the intention to hold a public meeting, at least three days but not more than 15 days before the proposed date of the public meeting.” 

“An organiser or his or her agent who holds a public meeting without any reasonable excuse and fails to comply with the conditions set out in Section 5 of the said Act commits an offense of disobedience of statutory duty and is liable on conviction to serve two years.

Section 10 of POMA stipulated: “An organiser or his or her agent shall (a) be responsible for adhering to the required criteria for holding public meetings; (b) inform all participants of the traffic or assembly plan and provide sufficient stewards proportionate to the number of participants in the public meeting who shall be clearly identified with name tags; (c) coordinate and cooperate with the police to ensure that all participants are unarmed and peaceful.”

POMA’s  Section 10 further stipulated that an organiser must ensure that statements made to the media and public by the organiser do not conflict with any law; ensure that the public meeting is concluded peacefully by 7pm; be present at the public meeting and coordinate and corporate with the police to maintain peace and order; A person who participates in a public meeting shall act in a manner that ensures that obstruction of traffic, confusion or disorder is avoided. A person who contravenes this Section 10  of POMA was liable on conviction to a fine not exceeding 24 currency points, or imprisonment not exceeding 12 months or both. 

The two sections came under contestation in 2018 when musician-turned-politician Robert Kyagulanyi   Ssentamu, alias Bobi Wine, with four others were arrested and charged with staging unlawful assembly after participating in a protest against the government’s move to tax social media.

Buganda Road Court Magistrate Doreen Olga Karungi, first referred the matter to the Constitutional Court such that it can interpret if Sections 5 and 10 of POMA are indeed consistent with the Constitution, particularly Article 29.

In normal constitutional petitions, it’s the Attorney General who defends actions by the State, but in this constitutional reference it was prosecutors from the office of Director of Public Prosecutions (DPP) that served that purpose and indeed they wanted Sections 5 and 10 to remain on Uganda’s legal books. 

The DPP submitted that the right to freedom of speech and expression guaranteed under Article 29 (1) (a) of the 1995 Constitution and the right to freedom to assemble and to demonstrate together with others peacefully and unarmed and to petition guaranteed under Article 29 (1) (d) are not absolute and may be subject to lawful limitations in accordance with Article 43.

The DPP submitted that, under Article 43 (L), such derogations may be necessary to protect the rights of others or to protect the public interest. In her analysis, Justice Elizabeth Musoke, who wrote the lead judgment, said the fact that Sections 5 (b) and 10 (3) and (4) of POMA provide for the imposition of penal sanctions on organisers and participants in peaceful albeit unauthorised demonstrations is disproportionate for achieving the intended purpose of ensuring orderly public meetings.

“More proportionate measures would involve asking the organisers to disband illegal meetings, failing which the authorities would then disperse the illegal meetings. It is only in the event of actual violence that it would be necessary to impose penal sanctions against the perpetrators of the violence. I would, therefore, find that the imposition of a penal sanction under Section 5 (B) and Sections 10 (3) and (4) of the POMA is disproportionate for purposes of ensuring orderly meetings and constitutes limitations that are not acceptable and demonstrably justifiable in a free and democratic society and that contravene Article 29 (1) (d) of the 1995 Constitution,” Justice Musoke ruled.

Sections 5 and 10 of POMA, 2013, Justice Musoke said to the extent that they impose penal sanctions on organisers and participants in peaceful albeit unauthorised public meetings, including demonstrations and assemblies, contravene Article 29 (1) (d) of the 1995 Constitution and are, therefore, null and void.

“I would declare that the charges against the accused persons that were based on their participation in a peaceful albeit unauthorised public meeting constituted an impermissible limitation on their right to freedom of assembly, and contravene Article 29 (1) (d) of the 1995 Constitution,” she said.

This latest Constitutional Court judgment comes three years after another Constitutional Court panel – Geoffrey Kiryabwire, Cheborion Barishaki, Elizabeth Musoke, Stephen Musota and Kenneth Kakuru – annulled Section 8 of POMA.  

Initially, the petitioners – Human Rights Network Uganda, Indigenous Voluntary Associations, FIDA, Butambala County MP Muhammad Muwanga Kivumbi, and Bishop Zack Niringiye – asked the Constitutional Court in 2013 to quash the entire Public Order Management Act, but later they amended  the petition asking them to quash only Section 8 of POMA, which granted the Inspector General of Police unrestricted powers to stop public gatherings, thinking that without that Section the entire Act would be left with no bite.

Justice Barishaki, who wrote the lead judgment in 2020, said although he found it rather unusual and imprudent 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. 

Justice Barishaki reprimanded both the Executive and Legislature when he agreed with the petitioner’s argument that POMA was passed into law to undercut the Constitutional Court’s judgment that nullified Section 32(2) of the Police Act – in what’s known popularly in the legal circles as the ‘Muwanga Kivumbi case’.

For the uninitiated, in his constitutional petition of 2005, Kivumbi, who is now a Butambala County legislator, fruitfully challenged Section 32 (2) of the Police Act, which gave police powers to regulate public gatherings and Justice Barishaki wasn’t happy that Section 8 of POMA was trying to weaken that judgment.

“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 laboured 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.

“All efforts must be made by all arms of government to protect this young constitutional democracy. The enactment of Section 8 of POMA by the Legislature following this court’s decision striking down a similar provision in the Police Act was a blatant attempt at disregarding the checks on legislative powers.”

Justice Kakuru, who has since passed on, had no kind words with the way the police were enforcing POMA.

“Clearly its principle purpose, as discernible 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 organised by certain categories of individuals. This is most unfortunate,” he said.

“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.”

It’s now three years after the judges made themselves clear, but police still foil Opposition gatherings with National Unity Planform (NUP) feeling this crackdown when its mobilisation gathering in the western district of Kyenjojo was last week violently dispersed on grounds that it was “an illegal assembly”.

“All those who intend to organise any assembly or demonstration need to notify police and their notice should indicate the date, time, location, size of venue, purpose of meeting and other basic information which is justified, to ensure the smooth conduct of the assembly,” Rwenzori west police spokesperson, Vincent Twesige said.