• Francis Obonyo
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It is unconstitutional for Parliament to use its powers to enact legislation which has been prohibited by the Judiciary

Says Justice Cheborion in the case of Human Rights Network Uganda & 4 Others V Attorney General, Constitutional Petition No.56 Of 2013 in the Constitutional Court of Uganda at Kampala.

CORAM; HON. JUSTICE CHEBORION BARISHAKI, Judgment delivered on the 26th of March 2020.

This petition was brought under Article 137 of the Constitution of the Republic of Uganda following the enactment of the Public Order Management Act (POMA). This petition challenged the POMA enacted by the Parliament, stating that it is contrary to Article 92 of the constitution. Article 92 of the constitution prohibits the Parliament from enacting a law that goes against a decision of the Judiciary. After this petition, a petition challenging S.32 of the Police Act was brought in court, and the issue for determination was whether this section contravened Article 29 of the constitution which provides for freedom of association and assembly. The courts, in this case, held that S.32 was unconstitutional and thus it was struck out. Following this decision, the Parliament went ahead and enacted the POMA, which was more of prohibitory law than regulatory. The petitioners then petitioned this court stating that the POMA is a regurgitation of S.32 of the Police Act that was repealed by the courts of law and they sought that the POMA be declared unconstitutional and in contravention with Article 29 of the Constitution of the Republic of Uganda.

In resolving the issue at hand, the honourable Justice of the court reminded himself of the history of this country while enacting Article 92 of the Constitution. On this note, he based on the principle of separation of powers to hold that the POMA was unconstitutional. This is because it contravened Article 29 of the Constitution. Still, most importantly, it was enacted to counteract the court’s decision to repeal S.32 of the Police Act, which is strictly prohibited by the Constitution of the Republic of Uganda.

In conclusion, therefore, it is unconstitutional for the Parliament to use its powers to enact legislation which has been prohibited by the Judiciary because it undermines the Judiciary as an arm of government and its mandate as a whole.