Constitutionality of the Public Order Management Bill (POMB)

What if the Public Management Order Bill passes? What next…

Uganda is yet to witness the passing of laws that undermine enjoyment of rights but also limit the citizen’s role in governance and holding the state accountable. The Public Order Management Bill (POMB) is one of such proposals raised. The POMB is before Parliament’s Committee on Legal and Parliamentary Affairs, which is receiving views on the Bill and if finally passes into law, the POMB will do away with citizen participation hence infringing on their constitutional rights.

Proposers of the Bill have argued that the POMB is necessary to protect public order in Uganda due to increased demonstrations that many times have resulted in destruction of property and inconvenience to those not taking part in the demonstrations (as we all could have witnessed lately).

However, Section 4 of the Bill states that the Inspector General of Police (IGP) shall have the power to direct the conduct of all public meeting hence the Bill seeks to not only control the formation of public gatherings but also control the content of discussions of public meetings and it also subjects the holding of a public meeting to the unfettered discretion of the Inspector General of Police or his authorized officer.

National Objectives and Directive principles of State policy II provides that the state shall be based on democratic principles which empower and encourage the active participation of all citizens at all levels in their own governance which will be infringed by this bill if passed into law.

Constitutionality of the Bill

The Bill defines a public meeting which includes a meeting or gathering,  assembly, concourse, procession or demonstration of three or more persons in or on any public road at which government policy, actions, omissions or failures are discussed; or a meeting organized to form pressure groups to submit petitions to any person or to mobilize or demonstrate support for or opposition to views, principles, policy, actions or omissions of any person or body of persons or institution, including any government administration or government institution. Section 4, 5 and 7 of the Bill provide the IGP (or an authorized officer) with enormous powers to ‘regulate the conduct of all public meetings’, but does not provide a mechanism to be followed by the IGP in exercising his power of ‘regulation.’ The lack of precision in the grant of these powers of regulation gives room for exercise of unlimited, unsafeguarded discretion with serious ramifications for the rule of law and human rights and ultimately the right to assembly and demonstration.

On the other hand, the Constitution guarantees people’s fundamental rights to freely assemble, associate; and express themselves. Article 20 of the Constitution provides that fundamental rights and freedoms of the individual are inherent and not granted by the State.

The Constitution further states that 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. However, by giving the IGP powers to direct the conduct of all public meetings; and giving Police wide discretion to disperse defiant or unruly crowds at public meetings, this would result in limiting citizens’ freedoms of expression, assembly and association as guaranteed by the constitution.

The issue of police powers in relation to freedoms of assembly, expression and association was already exhaustively discussed and concluded in the Constitutional case of Muwanga Vs. Attorney General (Constitutional Petition No. 9 of 2005). In this case, Muwanga petitioned the Constitutional Court requesting that s.32(2) of the Police Act should be declared unconstitutional because it infringed on people’s constitutional rights of free association and Assembly.

s. 32(2) of the Police Act stated that: “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 of 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”

Indeed, one of the key issues in that case, was whether the Police have the powers to disperse lawful assemblies. The Court noted that whereas these freedoms are not absolute, there is an objective standard outlined in Article 43(2) to limit people’s fundamental freedoms. These legal principles were enunciated in the case of Charles Onyango Obbo and Another Vs. the Attorney General where the Supreme Court noted among others that Article 43(2) of the Constitution presupposed the existence of universal democratic values and principles to which every society adheres. It also underscores the fact that by her Constitution, Uganda is a democratic state committed to adherence to those principles and values. In Onyango Obbo’s case, the Court noted that any justification of a law imposing limitations on people’s guaranteed rights must pass the following test:

(a)    The legislative objective which the limitation is designed to promote must be sufficiently important to warrant overriding a fundamental right;

(b)   The measures designed to meet the objective must be rationally connected to it and not arbitrary, unfair or based on irrational considerations

(c)    The means used to impair the rights of freedom must be more than necessary to accomplish the objective

In the case of Muwanga Vs. Attorney General, the Court stated that the fundamental rights of freedom of expression, right to peaceful assembly, belief, opinion and religion when taken together, protect the rights of individuals not only to individually 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.

Court further noted that: ‘In every society there is always tension between those who desire to be free from annoyance and disorder on one hand, and those who believe to have the freedom to bring to the attention of their fellow citizens matters which they consider important. Peaceful assemblies and protests are a vital part of every democratic 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 prepared to go out on the streets and protest … 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 expression 

(There are examples of countries where protests have been used as a powerful tool, Egypt to mention but a few)

The Constitutional Court thereby ruled that the S. 32 (2) of the Police Act gave the IGP excessive powers which he may use as he wishes to curtail people’s rights and freedoms of conscience, speech, association and assembly, yet these rights are very necessary in a multi-party political system. Court found section 32(2) of the Police Act to be inconsistent with the Constitution and held it to be null and void. Therefore, since this matter was exhaustively discussed and concluded in the case of Muwanga Vs. the AG, government is now using a back-door approach, using sections 4 and 5 of the Bill to reintroduce legislation that was held to be unconstitutional. The annulled section 32 is revived in sections 4, 5 & 7 of the POM Bill. 

 This would infringe Article 92 of the Constitution which provides that Parliament shall not pass any law to alter the decision or judgment of any court as between the parties to the decision or judgment.

I am not writing this to cause any argument or discontentment, but am looking at the constitutionality of this bill if it’s finally passed into law. There will be many consequences to that cause. Are the citizens ready for this? Because it could pass.

What if it passes?  - Take or leave Opinions.