A city lawyer and human rights activist has filed a petition at the Constitutional court challenging the so-called ‘idle and disorderly’ laws.
Francis Tumwesige Ateenyi of the Human Rights Awareness and Promotion Forum (HRAPF), says he is challenging sections 168 (1)c and 168 (1)d)of the Penal Code Act.
Ateenyi says these provisions are vague, and as a result are used to violate the rights of the poor and marginalised members of society who are arrested and prosecuted under this law.
“This petition seeks to have the sections nullified on account of the fact that it contravenes the constitutionally guaranteed right to equality and non-discrimination before the law,” he said.
“The right of liberty and right to fair hearing requires an offence to be clearly defined by the law.”
But the prevailing law states in part that “…every suspected person or reputed thief who has no visible means of subsistence and cannot give a good account of himself or herself; and every person wondering in or upon near any premises or in any road or highway or any place adjacent thereto or any public place at such time and under such circumstances as lead to the conclusion that such person is there for an illegal or disorderly, shall be deemed to be a rogue and vagabond and commits an offence and is liable for six months and for every subsequent offence to imprisonment for one year...”
Ladislaus Kiiza Rwakafuuzi, a celebrated human rights advocate, who will be the lead lawyer in the petition, said Uganda like most African countries just copied and pasted what the colonialists left behind.
“Police carry out swoops yet they don’t have intentions of taking people to court but to extort money from people; the swoops always target people on foot, well dressed people are left,” he said.
“You cannot target people who are poorly dressed assuming their thieves. Under the law you have to prove someone is a thief but not with assumptions,” he said.
He observed that such arrests don’t have complainants unlike other cases hence they are unconstitutional.
Patricia Kimera, a programmes director, HRAPF, said in 2016 they conducted a study on how the law is enforced and found out that those in charge of enforcement misuse the law, and the effect is felt more by the poor and marginalised.
“The study found out that there were at least 957 arrests on charges of being a rogue and vagabond within Kampala alone for a period of five years,” she said.
Kimera said these figures were retrieved from records in the five divisional police stations of Katwe, Kawempe, Old Kampala, Kira Road and Central Police.
“Out of the 957 charges preferred by police, 597 were sanctioned by the Director of Public Prosecutions this is despite the fact that there is insufficient evidence and can’t be proved without reasonable doubt in court,” she said.
“To show that such charges are indeed unjustified, 52.4 per cent of the cases ended up getting dismissed while 47 per cent ended up as convictions on a plea guilty.”
Kimera said magistrates and state attorneys who were interviewed observed that the dismissals arise from the fact that the law is ambiguous and therefore making the crime difficult to prove in court.
“The convictions arise from the fact that the accused persons charged under ‘idle and disorderly’ often lack resources to secure legal representation and thus plead guilty as the easier way out so as to get lighter sentences,” she said.
According to Rwakafuuzi although this law has been brought to the Constitutional court in 2018, it may take time to be heard because of the huge case backlog courts are dealing with.
“Our Constitutional Court is not encouraging, I know the hearing will be in 2023. There are many [petitions] that have been there since 2010 but not heard… our courts have been made emaciated and it’s done deliberately. President Museveni should abolish the law because it s affecting his voters,” he said.
When contacted, police management said people are not being arrested under the law on being ‘idle and disorderly’.
“Nobody is being arrested under the law of ‘idle and disorderly’ since the president suspended it sometime back. What we are using is the ‘rogue and vagabond’,” Patrick Onyango, the deputy police spokesman, said.