Written by Magelah Peter Gwayaka
Uganda has in recent times witnessed the passing of laws that undermine enjoyment of rights and an increase in proposals for draconian legislation that would not only undermine the enjoyment of rights but also limit the citizen’s role in governance and holding the state accountable.
The Public Order Management Bill, 2009 (POMB) is one of such proposals. Presently the POMB is before Parliament’s Committee on Legal and Parliamentary Affairs, which is receiving views on the Bill. If passed into law, the POMB will negatively affect the enjoyment of human rights not only for the general public but also for media practitioners in Uganda.
Proposers of the Bill have argued that the POMB is necessary to protect public order in Uganda. This is against a background of increased demonstrations that many times have resulted in destruction of property and inconvenience to those not taking part in the demonstrations.
Indeed, protection of public order is a duty of the state and the state can restrict or suspend the enjoyment of human rights where such enjoyment of rights will lead to a violation of public order, in this case the freedom of assembly and expression. However, article 43 of the Ugandan Constitution and the international human rights law limit such restrictions to what is demonstrably justifiable in a free and democratic society.
The POMB in its current form prohibits rather than regulates public meetings and demonstrations. This defeats the purpose for which such laws are made.
The Bill also focuses on the content of the public meetings. It is for this reason that it prohibits public meetings that are aimed at discussing government policies and affairs of management.
Under clause 6(a) the Bill seeks to regulate and penalize Ugandans who will be discussing the failures of government. This not only undermines public participation in decision making but also is contrary to article 29 on freedom of expression, assembly and conscienceless.
To media practitioners, limitations in clause 6(a) will limit their role of seeking, receiving and imparting information, which is an important aspect of freedom of expression.
Clause 6(a) of POMB is likely to contravene article 38 of the Uganda Constitution, which allows Ugandans to use peaceful means, including demonstrations, to participate in governance. Limiting the criticism of government in public as the bill suggests is tantamount to limiting public participation in decision making and holding government accountable for its misdeeds.
According to the Bill, a meeting of three or more persons in a public place or a place declared as so by a police officer is a public meeting. Broadly taken, any meeting of three or more people may need police authorization. The provision is broad and can cover private social meetings and work related meetings such as addressing a press conference. A media practitioner covering such a meeting will be treated as part of the participants with liability similar to the organizers of the meeting. This provision generally will muzzle the media through creating an indirect censorship of the media on what to cover and what not to be covered.
More so the Bill puts safety of individuals and the media covering demonstrations in the hands of the organizers of such meetings. It gives the organizers a duty to ensure safety of participants and bystanders. By this police will be relinquishing its duty to organizers of public meetings.
Public safety and security is a sole duty of the police who should do it while promoting and respecting rights of others. Since the duty to protect is on the organizers of the meetings, we can expect a more brutal police that does not expect to be held accountable for as long as they have protection of the law.
On the other hand POMB prohibits organizers of meetings from telling the media anything if it is against the laws of Uganda (clause 9 of the Bill). The Bill presupposes that the journalists and the organizers of meetings will know what is illegal so as not to say it before the press. The press on the other hand have an indirect limitation of not reporting what was said if it is against the law. Whereas on the face of it, clause 9 looks clear, the problem arises where a person is opposed to a law and is seeking to have it changed. In future it will be possible for police to stop the media from attending certain meetings because they (police) suspects the organizers intend to say something against the law.
Finally the clause 14 of the POMB gives the minister powers to declare some places unfit for public meetings of more than 25 people. This clause seeks to reinstate the position of S. 32 of the Police Act which was ruled unconstitutional by the Constitutional Court in Muwanga Kivumbi Vs Ag. S. 32 gave powers to the Inspector General of Police to prohibit a public meeting if he/she thought it was necessary for public safety. Court was of the view that this was a limitation on the rights to freedoms of assembly and association. By reintroducing the same provision Parliament will not only be limiting the rights against the constitution but will be undermining article 92 which prohibits parliament from enacting laws to overturn the ruling of courts.
Generally the POMB, if passed in its present form, will limit enjoyment of rights for several Ugandans and remove means through which Ugandans can hold government accountable for its deeds or misdeeds, a fact for which it should be rejected.