The High Court in Kampala has dismissed an application in which Legal Brains Trust, a non-profit organization sued the Government challenging the move to introduce vehicle tracking devices.
Legal Brains Trust had sought an injunction against the implementation of the plan until the main application was disposed of. The injunction was to restrain the government from implementing the plan that arose from President Yoweri Museveni as a way of fighting crime involving motor vehicles and cycles.
The government had engaged a Russian company, Joint Stock Company Global Security to execute a compulsory digital surveillance system for all motor vehicles, motorcycles and other vessels in Uganda.
But the lawyers argued that the compulsory digital surveillance system would enable the government to gather data including location information without the owner or user’s knowledge. They alleged that this was done without consulting the public.
“Although the stated purpose of the surveillance is to help the government investigate criminals, parliament and the people were not consulted before it was launched and there are no clear safeguards for protecting the privacy and data of people without a connection to criminality,” the applicants argued, adding that the technology could be used for unauthorized purposes.
The Applicant further states that the contracted company lacked the technical and financial capacity to execute a lawful surveillance programme, and neither was it registered nor certified by Uganda Registration Services Bureau and National Information Technology Authority Uganda to conduct IT business in Uganda.
They also stated that the government breached Public Procurement Regulations and its obligations to carry out due diligence and a data impact assessment among others. “As such, the implementation of the programme is in breach of the Respondent’s obligations to respect, uphold and promote the rights to privacy, dignity, good governance and equality of opportunities,” read the application.
In response, the government side, through an affidavit in reply affirmed by Haji Kakande Yunus, the Secretary, Office of the President, stated that the decision was taken “upon the background of shocking gruesome crimes and deteriorating security in Uganda.”
He stated that due diligence was conducted by a technical committee which concluded that the company had the capacity to undertake the project. He said a Memorandum of Understanding was executed with the company on 22nd March 2019 to carry out a feasibility study for an Intelligent Transport Monitoring System (ITMS) and an agreement was executed on 23rd July 2021.
The government side insisted that the law permits the collection of data for national security, prevention, detection and investigation of an offence or breach of the law and the data collected shall be subject to data collection principles. Kakande added that although the financial model has not yet been approved, it was not mandatory for a foreign company intending to do business in Uganda to register with URSB. According to him, the agreement in issue is not governed by procurement laws.
He said the implementation is not a breach of the right to privacy as it will not be used to trail ordinary law-abiding citizens but only serve to aid law enforcement in case of commission of a criminal offence “and, as such, the derogation of the right to privacy is demonstrably justifiable under the law”.
In dismissing the application on Tuesday, Civil Division Judge Boniface Wamala said that he did not find merit in it and ordered the applicants led by Legal Brains Trust chief Executive Isaac Ssemakadde to pay costs to the respondent. The judge noted the applicant’s fears of loss of privacy if the system was implemented, but said the state had the mandate to ensure national and personal security.
“It is therefore clear to me that the dispute in the main suit is to be based on the balancing of rights and obligations. The Court will have to examine the evidence to establish whether any alleged limitations to the enjoyment of the named rights and freedoms occasioned by the planned ITMS are reasonable and demonstrably justifiable in a free and democratic society.”
He added; “I do not expect that after hearing evidence, the Court is likely to totally prohibit the Government from undertaking any transport monitoring system. What the Court is likely to do is to give directions that ensure that whatever monitoring system is put in place does not unreasonably interfere with the fundamental human rights and freedoms of the persons concerned.”
But he added that the court should not be expected to give a go-ahead to the implementation of the ITMS in the form proposed if the evidence is adduced showing that the same is likely to occasion an unjust interference to the rights and dignity of persons. He opined therefore that the applicant’s case cannot be one likely to lead to a total prohibition of the planned establishment of an ITMS system.
“If that was the intention of the Applicant in bringing the main cause, then I would find that no prima facie has been established by the Applicant with a possibility of success,” the judge said. He added that such would not be a case that requires the issuance of an order of a temporary injunction before the issues in the main cause can be investigated.
In his view, the Applicant failed to establish a prima facie case that warrants the grant of an order of a temporary injunction pending the hearing of the main cause, while he ruled out irreparable injury in those circumstances. It also becomes unnecessary to dwell on the ground of balance of convenience.
He, however, explained that if the case was for the avoidance of any unreasonable limitation on fundamental human rights and freedoms then he would find a serious case that requires investigation by the Court.
“In light of the above findings, therefore, the application is devoid of merit and is accordingly dismissed with costs to the Respondent,” he ruled.
Contacted for a response, the group’s Stanley Oketcho said; “Upon receipt of the ruling electronically I have informed the C.E.O Legal Brains Trust Adv. Isaac Ssemakadde. Our instructions are to appeal forthwith.”
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