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URA demand for banking information is unconstitutional

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Added 11th April 2018 01:40 PM

The right to privacy is an extensive right which in my view covers the citizens’ banking information

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The right to privacy is an extensive right which in my view covers the citizens’ banking information

PRIVACY | INFORMATION

By Kalule Ahmed Mukasa

Recently, the Uganda Revenue Authority (URA) wrote to all banks in Uganda demanding for an omnibus release of banking information of customers served by banks in Uganda for the period 2016 – 2017.

According to URA, this is meant to check the same against citizens’ compliance with their tax obligations. The tenor of that letter and its basis is unconstitutional in so far as it invades the citizens’ guaranteed right to privacy. 

The right to privacy, according to the Black’s Law Dictionary is ‘‘the right to personal autonomy - the right of a person and the person’s property to be free from unwarranted public scrutiny or exposure’’. Article 27 of the Constitution guarantees the right to privacy of the person, home and other property. So far as it is material, that Article provides that:

‘‘27(2) No person shall be subjected to interference with the privacy of that person’s home, correspondence, communication or other property’’

It is a well-accepted principle of constitutional interpretation that a constitution and in particular that part of it which protects and entrenches fundamental rights and freedoms to which all persons in the state are to be entitled must be given generous and purposeful construction.  The Constitutional Court has variously stated so in many decisions in the past. In the US, the right to privacy has unlike in our jurisdiction, received wide judicial interpretation/consideration. Speaking about it sometime in 1928, Justice Brandeis of the Supreme Court of the US in Olmstead =Vs= The Unites States of America (1928) had this to say:

‘‘The makers of our Constitution understood the need to secure conditions favourable to the pursuit of happiness, and the protections guaranteed by this are much broader in scope, and include the right to life and an inviolate personality - the right to be left alone - the most comprehensive of rights and the right most valued by civilized men. The principle underlying the Fourth and Fifth Amendments is protection against invasions of the sanctities of a man's home and privacies of life. This is a recognition of the significance of man's spiritual nature, his feelings, and his intellect.’’ (Emphasis added)

The right to privacy is without doubt a right of the individual to enjoy those privileges long recognised at common law as essential to the orderly pursuit of happiness by free men. The right to privacy is so rooted in the traditions and conscience of our people as to be ranked as fundamental.

The right to privacy is an extensive right which in my view, obviously covers the citizens’ banking information. It is secret information kept by the banks in trust for the citizens cannot be so brazenly invaded. The protection guaranteed by the right, therefore, clearly covers such information. The protection/guarantee in Article 27 is a promise of the Constitution that there is a realm of personal privacy which other people must be shut out from save for the exceptions in Article 43 of the Constitution, which we do not need to set out here so far as we find them irrelevant and inapplicable.

While struggling to reach its tax collection targets, the URA cannot be allowed to disparage the privacy of tens of thousands of citizens sought to be protected by the Constitution.  Surely, no average man’s feelings and dignity would be soothed by an unceremonious and continuous invasion of their privacy and exposing it to public scrutiny. Whatever the justifications of the URA,  our constitutional heritage so far as this right is concerned and rooted in Article 27 of the Constitution rebels at giving any green light to the tax men to invade the sacrosanct privacies of especially, harmless citizens – those against whom there is no primafacie evidence of non-compliance with the tax law.  

The framers of our Constitution in Article 27 recognised the significance of man's feelings, and sensitivity of privacy. They sought to protect the people of this country in their private lives and all those things which they own privately. They guaranteed, as against anyone else, the right of people to be let alone.
This is the right sought to be asserted by this country’s citizens protesting this outrageous demand. It is the right to be free from inquiry into and publication of their banking information. Surely, it would be a major derogation from the spirit of Article 27 of the Constitution to allow the URA to enforce this demand, especially given the nature of society. It is a society in which income disparities and wealth accumulation are pegged on criminal and/or exploitative conduct.

No doubt, the banks will suffer a plethora of litigation arising from such disclosure and an unnecessary massive turbulence in the banking sector. All this is uncalled for.

The writer is partner at Crane Associated Advocates
akalule@craneadvocates.com

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