( Human rights , Commercial, Land and Environment lawyer, Security, Media,Communications Consultant and trainer)
Sunday, September 8, 2013
UNDERSTANDING UGANDA' S CONTROVERSIAL PUBLIC ORDER MANAGEMENT LAW
UNDERSTANDING THE PUBLIC ORDER MANAGEMENT LAW
By Moses Sserwanga
The Public Order Management Law which was recently enacted by parliament and awaits President Yoweri Museveni’s assent has caused mixed reactions among the public with some arguing that it will curtail civil liberties of Ugandans or narrow down political space while others say it’s a good law to ensure public order and safety.
Foreign Affairs Minister Sam Kutesa and State Minister for Internal Affairs James Baba have both described the new Law as an attempt to define the roles of different stakeholders- the police, organisers and participants in public gatherings while taking care of those who might be affected by such meetings.
Over 80% of the law was amended by the Parliamentary Legal committee before it was presented to parliament and enacted into law , according to Abdul Katuntu the MP for Bugweri.
On 27th May 2008, The Constitutional Court on May 27 2008 in a constitutional petition No. 9/06 of Muwanga Kivumbi vs Attorney General annulled section 32 (2) of the Police Act.
Section 32 (2) empowered the Inspector General of Police to prohibit public assemblies or demonstrations where the assemblies or demonstrations posed a likelihood of breach of peace.
The learned judges of the Constitutional Court, held in their elaborate ruling that section 32 (2) of the Police Act authorized the police to prohibit assemblies, rallies or demonstrations and this was inconsistent with article 29 (1) (d) of the Constitution which guarantees the enjoyment of the freedom to assemble and demonstrate.
The impugned Section provided as follows;
“If it comes to the knowledge of the Inspector General that it is intended to convene any assembly or form any procession on any public road or street or at any place or public resort, and the Inspector General has reasonable grounds for believing that the assembly or procession is likely to cause a breach of the peace, the Inspector General may, by notice in writing to the person responsible for convening the assembly or forming of the procession, prohibit the convening of the assembly or forming of the procession”.
The Court ruled that the powers given to the police were discretionary, prohibitive and not regulatory.
After the court’s annulment of section 32 (2) of the Police Act, it means that the Police no longer has the power to prohibit a procession or assembly. The Court further ruled that if the Police entertained reasonable belief that some disturbance might occur during the assembly, then police should provide security and supervision in anticipation of the disturbances.
But its also imperative to understand that while court annulled section 32 (1), section 32 (2) of the same law which gives power to police to regulate the management of assemblies and processions was retained.
The learned Attorney General while presenting the law for enactment in parliament argued and rightly so that the individual or public’s right to assemble and to demonstrate as enshrined in Article 29(i) (d) of the Constitution is not absolute, it is qualified.
The right is qualified in a sense that it must be enjoyed “peacefully and unarmed”. which means that this right to be enjoyed the above provision of demonstrating peacefully and unarmed should be observed.
Article 212 of the Constitution gives the Uganda Police Force the following mandate; to protect life and property; to preserve law and order; to prevent and detect crime; and to co-operate with civilian authority and other security organs established under the Constitution and with the population generally.
SO what does the new law entail
The objective of the law is to regulate public meetings, to provide for the duties and responsibilities of the Police, organizers of public meetings and participants. Regulate is defined in the law to mean ensuring that conduct or behavior conforms to the requirements of the Constitution and the law.
The law also lays out measures aimed at safeguarding public order without compromising the principles of democracy, freedom of association or assembly and freedom of speech.
It is the constitutional duty of the Police to ensure that any person exercising that freedom does so peacefully and unarmed.
Article 43 of the Constitution provides a general limitation on the fundamental and other human rights and freedoms in the Constitution. It provides as follows: that the enjoyment of the rights and freedoms prescribed in this Chapter, no person shall prejudice the fundamental or other human rights and freedoms of others or the public interest.
The constitution further provides that Public interest shall not permit;-
political persecution; detention without trial; any limitation of the enjoyment of the rights and freedoms prescribed by this Chapter beyond what is acceptable and demonstrably justifiable in a free and democratic society, or what is provided in this Constitution”.
The framers of our Constitution therefore envisaged the need to have a balance between the enjoyment of one’s rights and freedoms and not prejudicing the rights and freedoms of others and the general public interest.
Notice of public meeting in sections 2 and 7
In order to regulate public meetings, the law provides for an organizer of a public meeting to notify the IGP or an authorized officer of the intention to hold a meeting at least 3 days before the proposed date of the meeting.
The debate on notification in parliament was between 7 days by the government side while the opposition proposed instant notification. After debate both sides agreed to 3 days notice as a compromised position.
According to the law an organizer of a meeting means any person or his or her agent in charge of calling the public meeting.
A public meeting is defined as a gathering, assembly, procession or demonstration of persons in or on any public place or premises held for the purposes of discussing, acting upon, petitioning or expressing views on a matter of public interest.
The public interest includes anything in which the public or a section of the public has a stake or is concerned about.
The essential elements in regulating public meetings are the place which should be public and the purpose for which the meeting is being held. The law thus exempts social, cultural and religious gatherings and meetings of members of regulated bodies.
The following meetings are also exempted from the requirements of giving notice: meetings of organs of a political party or organization convened in accordance with the Constitution of the party or organization and held exclusively to discuss the affairs of the party or organization
Other meets exempted from getting permission from police are meetings convened by a group, body or leader of a group or body at the ordinary place of business of that body, group or leader or any other place which is not a public place in the course of the lawful business of the group, body or leader.
Requirements for the notice, the notice required to be given by an organizer should include: the name and address of the organizer. the proposed date and time of the public meeting which should be after 7.00 a.m and not beyond 6.00 p.m.
Others requirements are the proposed site (venue) of the meeting, the estimated number of persons expected at the meeting, the purpose of the meeting, indication of the consent of the owner of the venue, where applicable, and any other relevant information.
Notification by authorized officer under section 8
There some legal minds who have argued that section 8 of the new law restores powers of police to ‘prohibit’ gatherings and yet such powers were annulled by the Constitutional Court ruling refered to earlier in this article.
So, what does section 8 provide?
The law requires the organizer of the meeting/demonstration to give
notice to Police specifying the dates, the time and venue of the public meeting. The Police has no authority to accept or reject the notice.
If however the Police has renewed previous notice from another body indicating that they would hold another meeting in the same place, date and time, then the law allows Police to notify the later organizer that the place is already booked so that, in the interest of security, to reschedule or find another day or venue. So does this provision give police a leeway to say stop an opposition gathering by giving flimsy reasons that the venue was booked or unsuatble for a meeting because either it is a market place, business centre, hospital, school
I think we cant say for certain and maybe this is an area if applied wrongly the affected persons can petition court.
The law provides an appeal mechanism for a person aggrieved by the notification of the authorized officer. The appeal may be made against the notification to a Magistrate in the area where the meeting was scheduled.
Spontaneous meetings under section 9
The law provides that spontaneous public meetings may be held without the requirement of notifying the authorized officer.
A spontaneous meeting is defined as an unplanned, unscheduled or unintended public meeting. For instance if a member of parliament visits his or her constituency and people gather around him, and he is compelled to address them then in such a situation he may not notify the police because the gathering is spontaneous.
Duties of the Police section 10
In order to protect the persons exercising their rights or freedoms to assemble or associate and the general public, the law provides for the following duties on the police: to provide security and safety for both the participants and other members of the public affected by the meeting; to ensure fairness and equal treatment of all parties by giving consistent responses to organizers of public meetings.
Other duties are to carry out risk assessment on all factors before the public meeting; to identify an appropriate traffic plan to allow the flow of both vehicles and human traffic; to direct traffic and the routes to and from the event to prevent obstruction of pedestrians, traffic or lawful business; to disperse defiant or unruly persons in order to prevent violence, restore order and preserve peace.
The writer is an advocate of the High Court of Uganda and a Communications ,Media consultant
I’m a Development Communication ,Media and Legal Consultant specializing in good governance and development communication . I’m also a human rights, Commercial and Environment lawyer. I have served as Editor at Saturday and Sunday Monitor and Advocate of the High Court with 10 years of
governance and development consultancy work;16 years of reporting and editing and 11 years of providing legal advocacy services, respectively.
I have initiated and participated in capacity building programmes as
a Promoter of good governance and rural development communication , peace and respect for human rights in war affected areas . I have worked as a Trainer, Presenter, Rapporteur and Resource person at different fora. I have written widely about issues of media and communication ,law reform ,human rights, gender balance,public policy , national development , good
governance and the rule of law and environmental protection in Germany and Uganda.