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Why Constitutional Court struck out sections of Police Act that requires suspects to provide evidence to police during questioning?

Constitutional Court judges during a hearing. They struck off sections of Police Act that requires suspects to provide evidence to police during questioning

KAMPALA – Five justices of the Constitutional Court have struck out sections of the Police Act that requires suspects to provide evidence to police during questioning.

These led by the deputy chief justice Alfonse Owiny concurred with the judgment of Justice Kenneth Kakuru that the penalty provided in the Police Act against suspects who fail to honour summons or produce documents required by interrogators is unconstitutional.

Others justices are; Egonda Ntende, Cheborion Barishaki and Ezekiel Muhanguzi.

The judgment followed a 2010 petition filed by the then Uganda People’s Congress (UPC) party president, Dr Olara Otunnu, in which he challenged Section 27A (3) & (4) which gave Police wide-ranging powers to summon, compel appearance and production of evidence by witnesses. Non-compliance under provisions of the Police Act that court has quashed, gave detectives powers to jail or impose monetary fines on a person.

“In construing the impugned provisions, we are obliged not only to avoid an interpretation that clashes with the Constitutional values, purposes and principles but also to seek a meaning of the provisions that promotes constitutional purposes, values, principles and which advances rule of law, human rights and fundamental freedoms in the Bill of Rights,” justice Kakuru noted.

“We are obliged to pursue an interpretation that permits development of the law and contributes to good governance. I am satisfied that in alleging that the acts of the Assistant Inspector General of Police/ CID set out in this petition contravened the specified provisions of the constitution and infringed his constitutional rights, the petitioner(Dr Otunnu) has established that his petition raises issues for Constitutional interpretation. The petition is not frivolous nor is it vexatious,” he added.

Court noted that summoning a person for purposes of investigations limits the right to liberty, but such a limitation is justifiable in a free and democratic society and therefore when a person is summoned for questioning under the impugned subsections, it does not in any way violate their rights as provided for under Articles 23(1), 28(1) and (11), 29(1)(a)(b)(d) and (e) 29(2)(a) and (b) and 38 of the Constitution.

However, court declined to accept the arguments of the petitioner that summoning a person to the Police station for questioning curtails their personal liberty, beyond what is justifiable under a free and democratic society. “Summoning for questioning does not amount to an arrest. Therefore the above subsections are inconsistent with and or in contravention of the aforementioned provisions of the constitution,” the justices noted.

“The principle applicable is that in determining the constitutionality of legislation its purpose and effect must be taken into consideration, Both purpose and effect are relevant in determining constitutionality of either an unconstitutional purpose or an unconstitutional effect animated by an object the legislation intends to achieve,” ruled the justices.

Court noted that Section 27A subsection 4 of the impugned law is not in harmony with subsection 3 while the former penalizes a person for refusing to answer questions the latter requires a person not to answer questions which might expose him or her to any criminal charge thus making the impugned provision ambiguous.

The justices ruled that the effect of Section 27A(3) is to permit police in practice to act in violation of article 28(3)(3)(a) of the Constitution which provides for the presumption of innocence.

Court also observed that the person required to report to police may have a good reason for failure to attend to police to produce documents or information yet the person may not have any documents to produce or useful information to provide.

“The police has a duty to investigate crime coming up with evidence that points to suspects and not just suspect persons and proceeds to extract information from them in hope that they will incriminate themselves,” court ruled.

Adding…”The law is arbitrary, oppressive and can only be applied subjectively by the police. The assumption by police that a person summoned my have any documents or information maybe baseless, false or unjustified.”

The justices also noted that failure to produce the documents on account that the person, in fact, does not possess it may lead to prosecution.” Where one is indeed in possession of such documents or information may require it for his or her defence, secondly producing it to police may deprive him or her defence or he or she may incriminate him or herself. It must be noted that the offence comes into effect before a person is charged with any offence”.

The court ruled that Section 27A Subsection 3 and 4 are unconstitutional and declare them null and void.

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