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Constitutional Court Nullifies Section 8 of POMA

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However, in a majority decision of four Constitutional Court Judges against one delivered this morning, the Justices noted that parliament bluntly passed POMA in total disregard of article 92 of the constitution, which stops the house from passing any law that may alter any decision or court judgment.
Justice Kenneth Kakuru was Part of the Panel that has nullified Section 8 of POMA Act. File Photo
The Constitutional Court has nullified section 8 of the Public Order Management Act-POMA on grounds that it violates the constitutional freedom of assembly and the right to demonstrate peacefully. This particular section grants discretionary powers to the Inspector General of Police who in turn can delegate or authorise any other officer to stop or prevent public meetings. 

However, in a majority decision of four Constitutional Court Judges against one delivered this morning, the Justices noted that parliament bluntly passed POMA in total disregard of article 92 of the constitution, which stops the house from passing any law that may alter any decision or court judgment. Those who ruled in favor of the petition are Kenneth Kakuru, Geoffrey Kiryabwire, Elizabeth Musoke and Cheborion Barishaki while Justice Stephen Musota delivered a dissenting judgment. 

In their judgment, the Justice noted that the said provision was purposely made by the legislature to water down the 2008 decision delivered by the same court in the suit where Butambala County MP, Muwanga Kivumbi challenged section 32 of the Police Act, which almost gave police similar orders. In their view, section 8 of POMA was clearly a rebirth of section 32 of the Police Act, which had earlier been nullified by the same court. 

They contend that subverting the import of a court’s decision or judgment like the way Parliament did interferes with the doctrine of the separation of powers contained in the constitution. They noted that such decision undermine judicial decisions, which has dire implications for the future application of the checks and balances necessary for the functioning of a civilised democracy and prevention of dictatorial behaviors by the three arms of government.

“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 and balances on the legislative powers”, reads Justice Barishaki’s judgment.

They contend that the only way parliament could have reacted to Kivumbi’s petition without offending Article 92 of the constitution could have been by amending the article in question alongside the articles in the constitution, which guarantee freedom of assembly. They however, warn that this would have also created several complicated constitutional questions since it would infringe on human rights freedoms as well. 

“It therefore defeats logic as to why parliament would rush to pass an Act containing provisions that are in pari material with those that were declared unconstitutional,” the Judges ruled. The decision by the Constitutional Court arises from a successful petition filed by five human rights activists including individuals and Civil Society Organizations on December 10th, 2013.

The petitioners included Human Rights Network Uganda, the Development Network of Indigenous Voluntary Associations –DENIVA, The Uganda Association of Female Lawyers FIDA, Muwanga Kivumbi, the Butambala County MP and Bishop Zac Niringiye.  They ran to court challenging the constitutionality of various provisions of the POMA. However, they later filed an amended petition on June 27th 2016 in, which they only zeroed on section 8 of the same act. 

Muwanga Kivumbi welcomed the court decision, saying he hopes it will reduce police impunity with, which it has been violating the constitutional rights of citizens.  He said that he was humbled to have been part of the democracy frontiers in the country.

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