The petitioner, advocate Rashid Ahmed Kilindo petitioned under
articles 26(2) and 30(3) of the Constitution, sections 4 and 5 of the Basic
Rights and Duties Enforcement Act, [Cap. 3 R.E. 2019] and Rule 4 of the
Basic Rights and Duties Enforcement (Practice and Procedure) Rules, 2014,
G.N. No. 304 of 2014 to impugn the constitutionality of the above-mentioned
provision of POTA. He filed his petition by way of Originating Summons
supported by his own affidavit.
His specific account on section 9(1) of POTA is to the effect that the
provision is challenged for criminalizing mere possession or access of
information obtained in usual or ordinary way which is protected by article
18(b), (c) & (d) of the Constitution. Besides, it criminalizes the right to access
by workers, servants or employees to working tools or information in the
course of performance or execution of their employment which is protected
under articles 22(1) and 22(2) of the Constitution.
That, sections 11 and 31(4) of POTA have assumed supremacy against
the Constitution due to their generality and deny an accused person all legal
and Constitutional rights and freedoms under articles 13(1) and 13(6)(b) of
the Constitution. That, POTA derogates article 26(1) of the Constitution by
inviting, encouraging and allowing abuse of powers and authority.
As regards section 30(1) of the POTA, it is challenged for contravening
articles 16(1) & (2) of the Constitution in violating right to privacy by
interfering with private communications and does not safeguard and or
prescribe the circumstances, manner and extent under which one's rights
can be encroached without prejudicing his right to privacy.
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