ULS and USAID-SAFE delegates at the End of Project meeting for the "Promoting Access to Justice: An ADR Based Justice Delivery Approach funded by USAID-SAFE Managing Land Conflicts Using ADR" project held at Silver Springs Hotel on 19th June 2015
“Freedom of assembly enables individuals collectively to publicize and campaign for the causes they believe in more effectively than any of them could hope to do on their own” – Tom Bingham
Article 29 (1) (d) of our Constitution guarantees the right to freedom of assembly and to demonstrate together with others in a peaceful manner. Police should not prohibit a public assembly in their own discretion but they should regulate the time, place, and manner of peaceful assembly, provided that constitutional safeguards are met. The Constitutional Court, in Muwanga Kivumbi Vs Attorney General (Constitutional Petition No. 9 of 2005); held that subsection (2) of Section 32 of the Police Act authorizing the Police to prohibit assemblies, including public rallies and demonstrations was unconstitutional as it would be giving the Police powers to impose conditions which are inconsistent with the provisions of Article 29 (1) (d) of the Constitution.
Muwanga Kivumbi was a member and coordinator of Popular Resistance against Life Presidency (PRALP), which on 14th April 2005 wrote to Police informing them of their intention to hold a rally and demonstration in Masaka town. The DPC advised PRALP to hold a seminar or consultative meeting in a closed place. He warned them that if they went ahead to hold any rally or demonstration, the Police would disperse it. They held the rally and the Police dispersed it. Muwanga Kivumbi and others were arrested. On 18th May 2005, the PRALP wrote to the DPC Mukono informing him of their intention to hold a public dialogue in Lugazi, Nkokonjeru and Seeta towns. They intended to distribute leaflets. The DPC replied to the letter and advised them to hold consultation meetings in a closed place. Police officers were quoting sections 32, 34 and 35 of the Police Act and the now repealed Article 73 of the Constitution. Muwanga Kivumbi aggrieved by the conduct of Police, filed the petition to have Section 32 of the Police Act declared unconstitutional.
The Constitutional Court delivered its Judgment on 27th May 2008 nullifying subsection 2 of Section 32 of the Police Act. The nullified subsection provided 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 in writing to the person responsible for convening the assembly or forming the procession, prohibit the convening of the assembly or forming of the procession...
Their Lordships observed that subsection (2) which empowered the Inspector General of Police to prohibit the convening of an assembly or forming of a procession in any public place, on subjective reason contravened the fundamental right to freedom of assembly and to demonstrate together with others peacefully. However, the Court carefully considered the limitation on fundamental rights and freedoms enshrined in Article 43. That Article limits the enjoyment of rights and freedoms so that no person shall prejudice the fundamental or other human rights and freedoms of others or the public interest, in the enjoyment of their rights. Under Article 43 (2), Public interest shall not permit; (a) political persecution; (b) detention without trial; (c) any limitation of the enjoyment of the rights and freedoms…..beyond what is acceptable and demonstrably justifiable in a free and democratic society or what is provided in the Constitution.
The salient points about this Judgment to note are that:-
As long as there is no contravention of Article 43 of the Constitution and the rights are exercised within the confines of the law, there is no convincing reason for restricting or stopping convening rallies or assembly or demonstrations.
The Police has powers to maintain law and order and the Police will not be powerless without the powers under the nullified subsection 2 of Section 32 of the Police Act; they can deploy more security personnel.
If the Police entertain a “reasonable belief” that some disturbances might occur during the assembly, what needs to be done is to provide security and supervision in anticipation of disturbances. It is the paramount duty of the Police to maintain law and order but not to curtail people's enshrined freedoms and liberties on mere anticipatory grounds, which might turn out to be false.
Powers given to the Inspector General of Police to prohibit the convening of an assembly or procession is an unjustified limitation on the enjoyment of fundamental rights. Such limitation is not demonstrably justified in a free and democratic society.
Government has a duty of maintaining proper channels and structures to ensure that legitimate protest whether political or otherwise can find voice. Maintaining the freedom to assemble and express dissent remains a powerful indicator of the democratic and political health of a country.
Of great concern is the fact that a provision in terms similar to the nullified subsection 2 of Section 32 of the Police Act, found its way into the Public Order Management Act (POMA) of 2013. Section 8(1) of the POMA gives powers to an officer to stop or prevent an assembly. This section is unconstitutional.
As we go into elections, Government should allow the peoples’ voice to be heard and create the space for that voice. Peaceful dissent and dialogue is a hallmark of a free and democratic society. The conduct by Police to prohibit peaceful assemblies including public rallies or demonstrations is unconstitutional.