Uganda’s Constitutional Court should repeal the Public Order Management Act as unconstitutional

OnOctober 2, 2013, President Yoweri Museveni signed into law the Public OrderManagement Act (POM Act), which was passed by Parliament in August and aims to“provide for the regulation of public meetings; to provide for the duties andresponsibilities of police, organisers and participants in relation to publicmeetings; [and] to prescribe measures for safeguarding public order”, insteadof giving powers to the police to protect the enjoyment of freedoms. Althoughprotecting public order is a legitimate concern recognised by internationalinstruments, the scope and nature of the restrictions provided by the POM Actgo well beyond the restrictions permitted under international and regionalhuman rights law and therefore contradict Uganda's international and regionalcommitments.

“Whereas it is important to ensure law and order duringprotests, the POM Act seems to be intended to stifle freedoms of associationand expression and thereby to undermine civil society working space by settingvery difficult conditions to hold public meetings, demonstrations and any formof gathering in public places”,said Gerald Staberock, Secretary General of the World Organisation AgainstTorture (OMCT). “The Constitutional Court of Uganda should therefore repeal it immediatelyas unconstitutional”, he further urged.

The POM Act fails to establish a presumption in favourof the exercise of the right to freedom of peaceful assembly as it fails torecall the duty on the State to facilitate peaceful assemblies, in particularas Article 6(3) provides that “where the authorised officer notifies theorganiser [of an assembly] or his or her agent that it is not possible to holda proposed public meeting on the date or venue proposed, the public meetingshall not be held on that date or at the venue proposed”. The coincidence of twodemonstrations at the same location and time as well as an unsuitable venue canbe the basis for rejecting a notification (Article6(1)). It is feared that these two grounds may be used abusively.

Whenassemblies are held contrary to the Act, law enforcement authorities may stopor prevent the holding of a “public meeting”, which is widely defined as “agathering, assembly, procession or demonstration in a public place or premisesheld for the purposes of discussing, acting upon, petitioning or expressingviews on a matter of public interest” (Article 4 (1)), without defining theconcept of “matter of public interest”. In circumstances where a public meeting is held contrary to the Act, participantsin the meeting may be criminalised and are liable of an imprisonment notexceeding 12 months or a fine not exceeding 480,000 Uganda shillings (about 140€) or both (Article 10(3)). This provision seriously jeopardise the exercise ofthe right to peaceful assembly, as organisers should not be subject to criminal sanctions, oradministrative sanctions resulting in fines or imprisonment.

In addition, the POM Act grants powers to the Inspector General of Police(IGP) or an authorised officer "to regulate the conduct of all publicmeetings in accordance with the law" (Article 3), which reintroduces Section32 of the Police Act, which was found unconstitutional by the ConstitutionalCourt in the case of Muwanga Kivumbi vs.Attorney General (Constitutional Petition No.9/2005). The Court noted that Section32 of the Police Act required Ugandans to seek permission from the IGP beforeexercising the right to demonstrate and assemble, which contradicts Article 29of the Constitution. The POM Act therefore contradicts Article 92 of theConstitution of Uganda, which provides that “Parliament shall not pass any lawto alter the decision or judgment of any court as between the parties to thedecision or judgment”.

Article12 (1) of the POM Act grants the Interior Minister the power, subject toParliamentary approval, to declare any area as “gazetted” where public meetingsare absolutely prohibited.

Further, the POM Act prohibits public meetings at and aroundpublic institutions by designing them as “restricted areas”, where entry isprohibited with punishment of two years’ imprisonment and/or a fine of 960,000 Uganda shillings or both (Article 13(3)).These areas notably include Parliament and Courts. It is also worrying thatwide-ranging and discretionary powers are given to the law enforcementauthorities to disperse spontaneous assemblies under certain vaguely definedcircumstances (Article 7(2)) and public meetings “in order to prevent violence,restore order, and preserve the peace” (Article 9(2)(f)).

Accordingly,the Observatory fears the POM Act will lead to a further deterioration of thecivic space in Uganda, and may hamper civil society actions that involvediscussions related to governance and accountability, rule of law and moregenerally human rights, or anything within the spectrum of “public interest”will only be held provided police permission and supervision is granted.

“The law clearly contravenesinternational and regional standards, including Articles 19 and 21 of theInternational Covenant on Civil and Political Rights (ICCPR) and Articles 9, 10and 11 of the African Charter on Human and Peoples’ Rights, and also violatesArticle 29 of the Ugandan Constitution that promotes and protects the rights tofreedom of expression and association. Indeed, instead of giving powers to thepolice to protect the enjoyment of freedoms, this new law empowers the policeto restrict the enjoyment of rights”, saidKarim Lahidji, President of the International Federation for Human Rights(FIDH).

The Observatory further recalls the provisions of theUnited Nations Declaration on Human Rights Defenders concerning the recognitionof the right of all persons “individually and in association with others, toparticipate in peaceful activities against violations of human rights andfundamental freedoms” (Article 12.1) as well as the right of all individuals tomeet or assemble peacefully (Article 5). According to Article 12.2, StatesParties should take “all necessary measures to ensure the protection by thecompetent authorities of everyone, individually and in association with others,against any violence, threats, retaliation, de facto or de jure adversediscrimination, pressure or any other arbitrary action as a consequence of hisor her legitimate exercise of the rights referred to in the presentDeclaration”.

Accordingly, the Observatory calls upon the UgandanGovernment to comply with its obligations under international and regional lawto respect and protect the right of everyone in Uganda to exercise their rightsto freedom of expression and peaceful assembly by conforming provisions of thePOM Act that are contrary to the effective exercise and enjoyment of thesefundamental rights, which in turn also affect the important role of humanrights organisations and defenders in the country.

For furtherinformation, please contact:

• OMCT: Delphine Reculeau: + 41 (0) 22 809 49 39

• FIDH: Audrey Couprie: + 33 (0) 1 43 55 25 18