Understanding Uganda’s illegal car and vehicle tracking system and the right to privacy in Uganda

by Administrator · Published February 22, 2022 · Updated April 11, 2022

The government of Uganda has engaged a Russian firm called Ms Joint Stock Global Systems to estalish its illegal motor vehicle tracking system. According to Gen Muhwezi, the Russian firm is going to establish various centres in the different parts of the country working with Luwero Industries to install the tracking devices in new number plates. Each motor vehicle then will be required to obtain new number plates with monitoring systems.

We explained to you the technical hurdles that government will need to overcome to install tracking devices on each vehicle in Uganda. We also explained to you the financial and legal constraints that it would need to overcome to successfully install and utilize the tracking system. The government has decided to use its power to register and license motor vehicles to compel Ugandans to buy number plates containing a tracking device. By requiring Ugandans to buy the number plates, it has overcome the financial constraints and by relying on its licensing power it has found a neat trick which it hopes will overcome the legal constraints. It is not yet clear if Ugandans will be required to pay a yearly licensing fee or not but as we explained to you earlier, the state taxing power is nearly limitless. However, direct taxes are usually difficult and expensive to enforce. If an annual licensing fee is imposed by parliament, it is difficult to successfully challenge given the breadth of Parliament’s taxing powers.

The geniuses in the Ministry of Justice seem to think that the licensing power of the state is wide enough to allow the state to electronically tag every motor vehicle in Uganda. It is true that the state has power to regulate commerce, other commercial activities and even social activities to protect legitimate state interests. However, the state power to regulate commercial and social activities is not limit less. The right to carry out any trade of ones choosing and the right to own property impose limits on the state power to regulate commerce. For example the right to property prevents the state from imposing restrictions that amount to a state taking of personal property without compensation. Obviously the intended tracking system does not raise to the level of government taking of property and may not be so severe as to amount to an impediment to a person’s right to engage in gainful trade.

The state lawyers were clever in relying on the licensing power of the state. This power allows the state to regulate both social and commercial activities to protect or achieve legitimate state interests. The concept of state interest is very broad because the state has various functions that it can achieve through imposing limits on individual liberties. State interest include but are not limited to ensuring law and order, investigating and preventing crime, raising revenue, ensuring public health and safety, amongst many others. The state power to regulate individual conduct and property is limited by Article 43 of the Constitution. Under this provision though the state can limit the enjoyment of Constitutionally protected rights provided the limitations are necessary and reasonable.

The right most burdened by the state actions of installing a tracking device in the number plates of each motor vehicle is the right to privacy. The right to privacy protects individuals from illegitimate state intrusions into their private affairs in which it has no legitimate interest. The right to privacy is protected by the Universal Declration of Human Rights, 1948 under Article 12. It provides that no one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. It is also protected by Article 17 of the International Covenant on Civil and Political Rights (ICCPR) 1966. Under domestic law, the right to privacy is guaranteed by Article 27 of thr Constitutional which provides that.

No person shall be subjected to Unlawful search of the person, home or other property of that person; or unlawful entry by others of the premises of that person.
No person shall be subjected to interference with the privacy of that person’s home, correspondence, communication or other property.”

Unlawful search and entry into property of a person must mean entry or search without following the relevant law that allows public officials to enter or search personal property. Though the Police Act and Criminal Procedure Code Act allow warrantless entry into and searches of personal property where there is reasonable cause to believe that there is a crime taking place or there is imminent threat to life or property, they do not allow premeditated entry or search of personal property without a warrant. In the first instance warrantless searches and entry require reasonable suspicion that a crime has taken place or is about to take place. Secondly the circumstances must be such that it unreasonable or impossible to obtain a warrant in order to justify a warrantless entry or search. When investing a murder, none of these circumstances ordinarily apply since the offense is complete and there is usually time to obtain a warrant. What the state wants to do is to give itsself the means to keep track of all motor vehicle regardless of whether they are suspected of having been used in a crime or not.

There is no case law in Uganda discussing the extent of the right to privacy and its application to the surveillance activities of the state. However in Lubega-Butanaziba v MTN Uganda Limited (Civil Suit-2009/156), the High Court held that there is a fiduciary duty on Telecom service providers to protect the privacy of its customer’s sensitive information. Though the courts in Uganda have not clearly defined the boundaries of the right to privacy in Uganda, scholars and judges in other jurisdictions have defined it to serve two purposes.

First, the right to privacy seeks to secure the privacies of life of individuals against arbitrary power. See Boyd v. United States, 116 U. S. 616, 630 (1886). According to Chief Justice John Roberts, the “basic purpose of the right to privacy is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials.” See. Carpenter v The United States and Camara v. Municipal Court of City and County of San Francisco, 387 U. S. 523, 528 (1967).
Second, the central aim of the right to privacy is to place obstacles in the way of a too permissive police surveillance. See. United States v. Di Re, 332 U. S. 581, 595 (1948).

In Carpenter v the United States, the police accessed information revealing where Timothy Carpenter had traveled with his phone. The police, wanted to connect Carpenter to the scenes of various robberies. They obtained months’ worth of Carpenter’s detailed location data from his cellphone company without a warrant. That data exposed Carpenter’s daily routines, including where he slept and attended church.The court held that government access to such detailed location data provides a method of “near-perfect surveillance,” The Supreme court held that the Fourth Amendment protects expectations of privacy “that society is prepared to recognize as reasonable” so that official intrusion generally qualifies as a search and requires a warrant supported by probable cause.

The right to privacy protects the person from unwarranted government intrusions into a dwelling or other private places. The right to privacy is wide enough to prevent the state from criminalising homosexuality that occurs in private and to give a woman a right to abort before reaching viability. The Supreme Court of India headed ruled in Justice K. S. Puttaswamy (Retd.) and Anr. vs Union Of India And Others that the Right to Privacy is a fundamental right under the Constitution of India. The distinction between fundermental and none fundermental rights is flawed but a the right to privacy protects vital personal interests in property and its violation can impact other important rights. The right to privacy protects personal activities and interests that the state has no interest in knowing such as your sexual preferences, your secrets, your associations, your perversions, your afflictions and other activities that you want to keep private. The state can restrict your privacy to protect legitimate interests but it should not be able to needlessly invade your privacy especially where there are other less restrictive means of achieving the state interest in issue or where the restriction is futile or ineffective.

The state power to regulate individual conduct and property is limited by Article 43 of the Constitution. Under this provision though the state can limit the enjoyment of Constitutionally protected rights, the limitation imposed by the state must be necessary and reasonable. The limitations must pass a three requirements;

The regulations or restrictions should serve or be for a legitimate and compelling state interest,
The regulations or restrictions imposed on the rights should not unduly burden the right (.i.e. it should not over burden the exercise of the right by individual by making it difficult for the citizens to exercise the right);
The regulations or restrictions imposed on the rights should be the least burdensome means or method of achieving the state interest.

The state must have a legitimate purpose for the limitations beyond merely restricting the conduct of individuals. Though state interests are numerous and most desires of the government in power can qualify as a state interest, legitimate state interests are those that allow it to achieve any of its functions and duties. Usually this requirement is easily met by the the government because only arbitrary or unreasonable purposes can fail to qualify as legitimate state interests. In the circumstances the state interest in making investigation of brutal murders or deter the use of motor vehicles armed murders is a legitimate state interest. Surely the state is at liberty to empower itsself to easily track, apprehend and prosecute armed thugs who use motor vehicles to kill its citizens.

The right to privacy protects individuals from state intrusion in their homes, property and other private activities unless the state has a legitimate purpose for the intrusion. The state can intrude on your private activities by convincing a judge to issue a warrant allowing such intrusion to, for example investigate a crime or prevent the commission of a crime. The requirement under article 43 of the Constitution as interpreted in Sharon Dimaniche v Makerere University is that the restriction imposed by the state on the Constitutional right must be reasonable. It must be such that it does not prevent a person from enjoying the right all the time or make the enjoyment of the right unduly difficult or expensive. For example if the state imposed a deterrent license fee on churches that is difficult for most churches to afford, it would violate the right to free exercise of religion. By imposing the very high license fee, the state has unduly burdened the exercise of the right to religion in violation of Article 43. If the license fee is affordable and any person who desires to start a church can easily pay it, then though the fee restricts the right to religion, the fee is not unreasonable. In determining whether the restriction is reasonable or not the court considers the nature of the restriction, its impact on the exercise of the right in issue, the purpose of the restriction, the ease of compliance and the relative strength of the public right to enjoy the right in issue and the state interest in issue. For example in Roe v Wade the court examined the state interest in protecting the life of an unborn baby and the individuals interest in doing as they please with their body. The court determined that the individual right to privacy was stronger than the state interest until the point viability where the unborn baby is capable of independent existence. Court concluded that after viability, the state interest in protecting the unborn baby became stronger than the mother’s right to do as she pleases with her body.

The state interest in easing the investigation of brutal murders must be compared to the right of an individual to privacy. What the state is trying to do is give itsself the right to know everywhere that an individual goes from the moment he or she enters his or her car to the moment he or she parks the car. The state will be able to know who you visit, who visits you, where you pray from and everywhere else you go. The state will know your afflictions, your hideouts, your associations and every place you have ever travelled to whether you are suspected of a criminal offense or not. The state is not giving itsself the power to find out where your vehicle had travelled to in circumstances where there is need for that information but rather the power to know your every move. For example if the state desires to track the whereabouts of its political opponents, all it has to do is access the tracking device in the number plate and track the individual. If I am a jealousy husband and I need to track the movements of my wife, I can use my connections in the state agency responsible for the system to obtain her travel history or I can simply bribe a person in that agency to sell me the information I need or hire a hacker to steal the information for me. In all these circumstances, the motor vehicle owner has no right to withhold the information other without giving up the right to own a motor vehicle and no recourse against the state for forcing him or her to disclose his or her travel history and location. The right of privacy exists to prevent exactly such abuses whereby the state defacto takes away the privacy of individuals in the name of protecting state the interest in combating crime. The state is not restricting the right to privacy by requiring an individual to disclose his or travel history where there is reasonable cause but it is ordering individuals to disclose where they drive to all the time without reasonable suspicion that the specific individual is involved in a criminal enterprise. The state will argue that they will only access the information where there is reasonable suspicion that a crime has been committed but what prevents them from accessing the travel history for other illegitimate purposes. What will prevent them from following dissidents, political opponents and other law abiding citizens for political or other personal reasons. After all, this is the same government that beats members of Parliament, tortures opposition politicians and supporters, employs hacking tools against law abiding citizens, illegally turns off internet connectivity and intimidates media houses against hosting opposition politicians.

There are other less restrictive means of combating organized crimes such as undercover operations, surveillance and regulation of fire arms. Other factors that make the installation of a tracking device on every motor vehicle unduly burdensome to the right of privacy are.

The ownership of fire arms is tightly controlled in Uganda but the criminals some how manage to get access to fire arms. The state already has a less restrictive means of ensuring that criminals have no access to the means of committing brutal murders. They should strengthen the process of acquiring firearms instead of violating the privacy of Ugandans. If the gun men did not have the firearms they would not be able to gun down Ugandans on the streets.
Armed gunmen usually drive cars with stolen number plates. In such circumstances what purpose will it serve to compromise the privacy of citizens when criminals use motor vehicles with stolen number plates or stolen vehicles other than putting law abiding citizens in the cross hairs of a corrupt Police Force. Imagine the horror that will befall law abiding citizens whose vehicles are stolen and used in such criminal enterprises.
Any electronic device that uses radio signals or Internet connectivity can be obstructed by lead or other heavy metals or simply disconnected. A tracking device in the number plate can be disconnected by cutting power or merely smatching the number plate with a big stone.
Criminals can defeat the tracking device by walking on foot or using motor vehicles for part of the journey and walking for the rest.

Given the ease with which criminal can bypass or beat the tracking device and the dangers to privacy araising from continuous tracking of law abiding citizens, the state interest in combating organized crimes is not strong enough to justify indiscriminate and continuous tracking of the movements of law abiding citizens without reasonable suspicion that a crime has been committed or is afoot. The placing of a tracking device in motor vehicle of every Ugandan is not a limitation to the right to privacy, it is a wholesome and continuous invasion of the privacy of law abiding citizens. The state will be able to use the tracking device to discover the location of any individual using a motor vehicle at anytime anywhere in Uganda at any time of day and night. The state is not giving itsself the power to access the travel history of a motor vehicle where there is reasonable cause, it is making it possible to continuously surveil and pinpoint the location of every motor vehicle at its discretion. The right to privacy protects individuals against exactly such intrusion by the state into their personal matters.