Justice Izama Madrama & Four Other Constitutional Court Justices Declare Penal Code Act Section 168 (1) "Unconstitutional".

Idle and disorderly. Police arrest men presumed idle and disorderly during a crackdown in Kapchorwa District in 2017. The Constitutional Court on December 2, 2022 declared sections 168 (1)(c) and 168(1)(d) of the Penal Code Act null and void. PHOTO/ FILE

By Johnson Mayamba.

The Constitutional Court on Friday declared sections 168 (1)(c) and 168(1)(d) of the Penal Code Act null and void. 
Section 168(1)(c) of the Penal Code Act, criminalises every “suspected person or reputed thief who has no visible means of subsistence and cannot give a good account of himself or herself” while section 168(1)(d), criminalises every “person found wandering in or upon or near any premises or in any road or highway or any place adjacent thereto or in any public place at such time and under such circumstances as to lead to the conclusion that such person is there for an illegal or disorderly purpose.”

Justices Frederick Egonda-Ntende, Elizabeth Musoke, Christopher Madrama Izama, Monica K. Mugenyi, and Christopher Gashirabake, in a unanimous decision, declared these provisions as unconstitutional and therefore, null and void. 
The provisions are parts of the offence of being a ‘rogue and vagabond’ which are routinely used by law enforcement officers to arrest and persecute the poor and marginalised people, including sex workers, sexual minorities and street vendors, according to a study by Human Rights Awareness and Promotion Forum (HRAPF), a non-governmental organisation.

The court decision was made following a case of Francis Tumwesige Ateenyi v Attorney General, Constitutional Petition No. 36 of 2018. The petition was filed in 2018 with the support of HRAPF to decriminalise poverty and status.

Justice Egonda-Ntende, who wrote the lead judgment, found that the provisions “fail to provide a precise definition for the offences they create” thereby violating Article 28(12) of the Constitution on the principle of legality. 

He also found the provisions to be contrary to the presumption of innocence in Article 28(3)(a), as they reverse the burden of proof, imposing it on the accused person instead. He stated: “It must be noted that presumption of innocence is a constituent element of the right to a fair trial… There is an absolute bar imposed by the Constitution against whittling away or diminishing the content of the right to a fair trial.”
He also found that arresting a person on the basis of vague offences is a violation of the right to liberty under Article 23(1)(c) and Article 4(1)(b), as well as the right to freedom of movement under Article 29(2)(a) of the Constitution.

Nullifying these provisions is in line with the call by the African Commission on Human and Peoples’ Rights, which in its Principles on decriminalisation of petty offences in Africa in 2018 called upon states to decriminalise petty offences including those on rogue and vagabond as they contravened the African Charter on Human and Peoples’ Rights. 

This was confirmed by the African Court on Human and Peoples’ Rights which, in 2022, issued an advisory opinion finding the criminalisation of petty offences, which include rogue and vagabond, to be in contravention of the African Charter on Human and Peoples’ Rights. 

The petitioner, Mr Francis Tumwesige Ateenyi, said: “I am very happy that this provision is now off the law books, as it has been used to systematically arrest and harass the poor without any basis, except for being undesirable in some public spaces.”
Mr Adrian Jjuuko, the executive director of HRAPF and lead counsel for the petitioner, said this was a progressive decision. 

“This decision, following so closely on the heels of a presidential pardon for petty offenders in 2020 and presidential pronouncements denouncing the arrest of persons on charges of being ‘idle and disorderly’ since 2015, indicate to us that the government is progressively taking steps to protect the citizens from systemic marginalisation,” he said.  

He called upon the police to take notice of the change and tasked Parliament to formally remove these provisions from the law books, and decriminalise other similar petty offences such as being idle and disorderly and being a common nuisance.
Ms Flavia Zalwango, the Coordinator of the Coalition to Decriminalise and Declassify Petty Offences, a continent-wide campaign to decriminalise poverty and status, was also happy with the court’s decision. 
“This decision is a great stepping stone towards eliminating laws that discriminate against people based on their status. Uganda has joined the league of countries, such as Angola, Kenya, Malawi, and Rwanda that have shed this yoke from the colonial era and freed their people from its oppression,” she said.