TRACING THE PATH OF THE PUBLIC ORDER MANAGEMENT BILL: THE STARTING POINT, THE AMENDMENTS IN PARLIAMENT, AND

THEIR CONSTITUTIONAL AND POLITICAL IMPLICATIONS

Introduction 1.1 The recently enacted Public Order Management Bill1 generated intense debate amongst the public, civil society and political actors. The Bill, polarizing since its introduction in 2009, has witnessed significant change since its re-introduction into Parliament. Amendments introduced by Parliament significantly altered some of the most controversial features of the Bill. Despite these changes, however, the core of the bill, the reintroduction of police powers to regulate public meetings, the definition of public meeting and the requirement for notice before a public meeting is held, have substantially remained unchanged. The changes made to the bill, following the report of the Parliamentary Committee on Legal and Parliamentary Affairs2, changed the Bill in a substantial way but still left its core elements intact. The Bill, as passed, has significant political and constitutional ramifications that will shape the political and constitutional discourse in the run up to the 2016 elections and beyond. In its final version, the Bill places significant restrictions on the enjoyment of fundamental rights and freedom. The bill was introduced in the backdrop of the Mabira demonstrations in 2007 and the Buganda riots of 20093, shelved

1.2
1

The Bill awaits Presidential assent. For a law to become enforceable, the constitution requires the President to assent to it. Before it is assented to, it is unenforceable. 2 The Committee, a Select Committee of the House, received views from the public on the Bill in a public hearings spanning months. The committee report reflect, in large measure the various proposals made in the submissions it received. 3 The Mabira demonstration was initially started, as a peaceful demonstration against the proposed giveaway of the Mabira forest to sugar company for sugarcane growing, turned violent leading to the murder of five Indians and several Ugandans. The Buganda riots were riots that erupted following the blocking of the Kabaka, the Buganda king, by the central government from visiting Kayunga District, a part of his kingdom, on account of a potential breach of peace.

and then reintroduced in the run up to the 2011 general elections. After the elections, the leading opposition forces particularly the main opposition party, the Forum for Democratic Change through its leader, Dr. Kiiza Besigye urged his supporters and others to sweep the regime aside through civil disobedience. Subsequently a spate of demonstrations was initiated, dubbed the Walk to Work demonstrations. These demonstrations were brutally suppressed by Ugandan security and caused significant disruptions in the Central Business District of Kampala. 1.3 The bill was also introduced in response to the Constitutional Court case of Muwanga Kivumbi v Attorney General4, which declared unconstitutional the wide discretionary powers of the Inspector General of Police (IGP) to prohibit the conduct of public assemblies that, in the IGPs opinion, would cause a breach of peace. These powers were provided for under section 32 (2) of the Police Act. In many respects, the law is viewed as an attempt to reintroduce the expunged provision of the Police Act rather than to comply with the decision of the constitutional court.5 Object of the Bill 1.4 The objectives of the Bill contained in the long title of the 2009 and 2011 versions of the bill are similar. They provide for the regulation of public meeting, the duties and responsibilities of the police, the organizers and participants in relation to public meetings; provide measures to safeguard public order. The difference between the two bills is that the 2011 version provides and an extension to the long title. It provides that the measures prescribed will be carried out without compromising the principles of democracy, freedom of association and freedom of speech. It further introduces the principle of quadripartite partnership between police, local authorities, owners of private premises, organizers and participants of a public meeting. The provision is also included in

Constitutional Petition No.6 of 2006 The CSO Perspective on the Public Order Management Bill signed by Human Rights Network-Uganda, National NGO Forum, Foundation for Human Rights Initiative, National Association of Professional Environmentalists, Oil Watch, Commonwealth Human Rights Initiative and Human Rights Watch stated that The Bill under clauses 7 and 8 undermines the rule of law, constitutionalism and independence of the judiciary by seeking to revive Section 32 of the Police Act that sought to prohibit rather than regulate publi c assemblies which was held unconstitutional by the Constitutional Court in Muwanga Kivumbi v. Attorney General (Constitutional Petition No. 9/05). Art. 92 of the Constitution forbids parliament from passing any law to alter the decision of court
4 5

the Bill as substantive clause 3. At the committee stage, the objective of the Bill as amended in the 2011 version was not the subject of any contention. It thus was not among the recommendations for amendment contained in the committee report. The rationale perhaps could be the collective acceptance by the committee of the requirement to regulate public meetings. 1.5 There is a third final version of the Bill is due for presidential assent. This 2013 version drops the long title of the second version. This may be because the explanatory note or long title was intended to be a sort of forward to the contentious issues of the Bill. These were eventually subjected to intense parliamentary debate. It may have been felt that the 2013 Act represented the final compromises agreed to in the Bill. As seen below, no final bill was publicly available for several weeks ostensibly to rework the language of the Bill. In its place and reminiscent of the long title of the 2011 bill was a long but detailed statement by Prime Minister Amama Mbabazi. His statement and the 2013 Act reflect the concessions undertaken. Essentially the concessions were aimed at avoiding a constitutional collision where the 2013 Act would be seen as designed to defeat a court ruling- which would leave the law open to further challenge, and secondly, trimming the language of the bill to allow the police to still restrict the conduct of a public meeting. What is meant by the latter is now obviously street protests after a careful exclusion of lawful meetings as well as public places that departs from the previous two draft bills. What however is curious is that the explanatory note to the 2011 version of the bill, which provides for the additional phraseology without compromising the principles of democracy, freedom of association and freedom of speech is not reflected in the actual text of the 2011 version of the bill. While the explanatory note provides a hint about the intention of the lawmaker, it is unhelpful if it is not reflected in the text of the law. The quadripartite partnership principle is captured in clause 3 of both versions of the bill. The final text has shed references to partnership between the police, organizers of meetings and participants. It uses the minimalist language of most legislation, stating simply that the Act is to provide for the regulation of public meetings, provide for the duties and responsibilities of the police, organizers and participants ..[and] prescribe measures for safeguarding public order. The object of the bill is thus significant in the sense that it was alive to the restrictions on derogation of rights contained in article

1.6

1.7

43 of the constitution. The provision prohibits derogations that are not justifiable in a free and democratic society. The changes to the long title of the bill reflect sensitivity to the criticism to the bill when it was first introduced in 2009. The Act today further reflects the response to that criticism especially attempts to abandon the general language and definitions of the first two drafts. The presumption then is that the long tittle of the bill reflects the general spirit of the sections of the bill. The analysis below will reflect on whether the spirit and wording of the long title runs through the bill. The definition section of the Bill 1.8 The definition clause of the Bill interprets certain words or phrases in the Bill. Two phrases in the clause were the focus of debate. These phrases are political organisation and public places. The 2009 and 2011 versions of the Bill defined political organisation as any organisation which has among its objectives any political purpose or which pursues a political purpose or any political organisation within the meaning of the Political Parties and Organisations Act, 2005. The definition is retained in the final law. The final definition of public places as a place which at the material time the public, or a section of the public has access, on payment of a fee or otherwise, as of right or by virtue of express of implied permission as defined under the Penal Code Act is neutral but potentially very broad in the venues to which it could apply. These definitions were considered overly broad and beyond the definitions of political organisations contained in the Political Parties and Organisations Act, 2005. It was opposed at the committee stage by civil society organisations as possibly being couched to entrap civil society organisations. Consequently, the Legal and Parliamentary Affairs Committee refined the definition. The Committee recommended that the phrase political organisation should be substituted to read any organisation the object of which includes the influence of political process or sponsoring a political agenda whether or not it also seeks to sponsor or offer a platform to a candidate for election to a political office or participate in the governance of Uganda at any level. Despite this proposal by the Committee, the definition of political organization remains the same as in the original draft of the 2011 Bill and could encompass an extremely broad range of organizations. The Substance of the Bill: What Changed and What Remained?

1.9

1.10 The National Resistance party in the wake of post-voting debate made a statement through its Secretary General Mr. Amama Mbabazi. His statement makes claims to the effect that public outcry was unjustified because what was being debated were the old version of the Bill. However claims by him that the final document was over 80% altered to reflect challenges to it are overstated. This is especially so because the 2013 Act still achieves the intent of the government. This intention put simply is to legalize the prohibition of public meetings with political designs opposed to the establishment. It must be understood that the government politically argued that the law was meant to regularize actions by the police that continued in the period of the Bills consideration, to prevent public gatherings or in some cases conduct preventative arrests. 1.11 Changes in the Bill include the following. a) That the final bill in its stipulation requiring notice to be given to the Inspector General of Police by organizers or his agent had been reduced from within 7 days to 3 days. In the 2011 bill, clause 7 states that an organizer would give notice in writing to the IGP of an intention to hold a public meeting at least seven days. The committee of parliament in their report proposed an amendment of the clause to include at least 4 days. The 2013 Act now clause 6 indeed provides a 3-day notification period. b) The Minister, in discussing the meaning of a public meeting states that its definition, one of the main challenges to the Bill during debate and at committee stage, was a gathering held for the purposes of discussing, acting upon, petitioning or expressing views on a matter of public interest. He focuses on the meaning of public interest as anything which the public or a section of the public has a stake or is concerned about and argues that the bill exempts social, cultural and religious gatherings or meetings of members of regulated bodies, who are also exempted he says from the requirement to give notice. The definition of the 2009 and 2011 versions of the Bill defined a public meeting to mean any gathering that criticizes government policies and actions. Clause 6 (1) b in the 2009 and 2011 versions also included in this definition meetings by pressure groups intended to support or mobilize action against specific government policies, institutions or administrative bodies. The definition of public meeting therefore is considerably different in the 2013 version. While the definition of political organizations was challenged as being too broad and

not in conformity with the Political Parties and Organisations Act, 2005, this appears unchanged. The committee report dwelt in some detail about these restrictive interpretations, particularly on what constitutes public by way of numbers not simply the object of the gathering. The Ministers statement excluded any reference to a public meeting as being any gathering of 3 or more persons. He also indicated that the final legislation provided for spontaneous demonstrations such as may, by way of his example, happen when a politician visits his constituency. This inclusion of a meeting as unplanned, unscheduled or unintended is cited by the minister as one of the compromises reflecting consensus on the final law. It appears as clause 8 in the Act. The committee recommended the deletion of the reference to numbers and this too has changed. Evidently the 2013 Act does depart significantly from the two previous bills and more in the direction cited in the prime ministers statement. The blanket inclusion of any organizations which may engage in actions however lawful but with political ramifications has been shaved off. In its place the words public interest has been used which is perhaps more general. So public meetings are meetings (within the practical meaning of the term later defined as well by location) are those gatherings were matters of public interest are discussed, petitioned or expressed. While less aggressive the definition is still broad enough to canvass the earlier one but significantly different in character. c) According to the minister the contentious provisions on notification too had been altered. This was extensively discussed as an attempt by the Bill to reintroduce the power of the police to prohibit as opposed to regulate public meetings in the earlier interpretation of the Constitutional Court in the Muwanga Kivumbi case. While the statement acknowledges that the court ruling was essential in the government decision to bring the legislation in the first place, the ministers discussion holds the view that the bill is not at variance with the constitution- by acting to standardize the meaning of regulation and not subverting the courts considered views on the powers of the IGP. The committee summarized the standard of law based on the UN Human Rights Committee in General Comment No. 34 of 2011 on the relationship between right and restriction and between norm and exception saying they must not be reversed. According to the minister the government had conceded on clause 8 (1 and C) and on on a (1) and (b). Clause 8 (1) is where the IGP or his agent may

reject the holding of a public meeting amongst others for any other reasonable cause. These provisions were challenged by the committee. The minister claims the only remaining body of clause 8 in the final document is on notice of a public meeting and on determination of the suitability of the venue. This concession appears to have made it to the 2013 Act. Earlier both versions of the bill had provided for in clause 8 (4) that an aggrieved party would appeal to the IGP if the agent of the police head has initially prohibited a public meeting. The committee recommended that a magistrate be the right institution for an appeal. This according to the minister was agreed to and is what the 2013 Act provides for. The police, however, have through their own guidelines the power to determine if a venue were suitable, a power that is not open to any other criteria other than the wisdom of the IGP. d) Finally, the minister focuses on clause 12 that imposes responsibilities on organizers arising out of the consequences of a public meeting. The wide criteria include for example that meetings are concluded before 6PM in the 2011 draft and includes criminal liability in the 2009 version. The committee rejected the broad interpretation of the consequences of a breakdown of order being imposed on an organizer on the grounds that it would be impossible for such an organizer to know beforehand or anticipate problems. This extends somewhat to the duties of the police, which the committee proposed were meant to assist and not obstruct a public meeting. The Act does include all the compromises in the ministers statement including that meetings be concluded at 7. However these compromises only cover the most controversial sections of the bill. For example, the Bill still imposes a duty on the organizer not to make utterances that conflict with the law, which was challenged on the grounds of free speech and expression. It goes further and criminalizes any breaches on the responsibilities of the organizer, imposing a one-year jail sentence or fine. The 2013 Act also retains the provisions that impose a fiduciary duty on organizers to compensate anyone affected by their actions as organizerswhere such an organizer has been found guilty of breaching the duties under the Act. Broader political and constitutional implications The Act to be passed in 2013 is an expanded version of the earlier Bill that injects some detail into specific clauses, but does not deviate substantially from the intent of the Act. It is discernable

that certain compromises were made in the final version of the Bill. The compromises however did not strike at the core of the Bill but rather on largely procedural matters in the Bill. The law was passed by the superior numbers of the ruling National Resistance Movement party. There was internal resistance to the Bill within the NRM and opposition alike but delayed the Bill rather than blocking it or leading to significant amendment. In summary all versions of the Bill are similar, in that they give sweeping powers to the Uganda Police to determine the conduct of public meetings; they impose a duty on organizers of public meetings to seek formal permission by requiring such notice to be in writing (Schedule 2), in both versions, they provided for restricted places (Schedule 3); and most importantly include provisions meant to predetermine whether or not a meeting is suitable by its potential effect on public order even against the claim by the minister that the police have no power to refuse a public meeting but simply to outfit it within the logic of circumstance. These provisions have come under severe criticism because they chip away at constitutionally guaranteed freedoms of association and speech- fundamental to the exercise of a democracy.6 In practice the Police have ventured even further in restricting freedoms; the patterns of their action target political actors, including the imposition of the so-called preventive arrest rule. Seen from this angle, even if the POMA gives police legal powers to intervene, the police are likely to exercise this power selectively. This is a problem outside the law but impinging on it; namely that the law as conceived does not provide a clear criteria for the purposes of public order, but such a criteria is a creature of political benchmarks and practices. In particular, given the obviously political context of the Bill, the assigning of power to the police and the Minister not just to regulate the conduct of public gatherings but to do so by determining ex parte (without hearing the persons demonstrating) for purposes of such action that gathering poses a threat to the peace. This is the importance of provisions in both laws that define what a public place is, what a
See for instance ARTICLE 19, Uganda: Public Order Management Bill, Legal Analysis, August 2013. In this analysis, ARTICLE 19 warns that the Bill will seriously erode the rights to freedom of expression and peaceful assembly in Uganda if given the Presidential assent. See also Amnesty International, Uganda: Public Management Order Bill is a serious blow to open political debate, August 2013
6

public meeting is, and then creates conditions under which such an event is permissible. The final version of the bill attempts to provide broad guidelines due to opposition to previous versions. 1.12 The 2009 and 2011 versions of the bill and subsequent Act retain the same definitions of what a public meeting is as well as the definition of a public place. Specifically public meeting is defined in both versions as a gathering, assembly, procession or demonstration in a public place or premises held for the purposes of discussing, acting upon, petitioning or expressing views on a matter of public interest. Secondly the interpretation of public place as defined in the Traffic and Road Safety Act notwithstanding or the inclusion of public places as commercial venues, the police and the Minister through the powers of regulation can designate any place a public space for purposes of law. In clause 15 in the 2009 bill and the final bill, clause 17, the minister has statutory power to make regulations generally for the better carrying into effect of any of the provisions or purposes of this Act. Thus even the expanded version of the POMA, that for instance, creates reasonable exceptions to the interpretation of public meetings like those held by corporate organizations, trade unions, religious and cultural organizations or political parties, these widely defined powers of the minister can conflict with those provisions allowing the law to give with one hand and take with the other. 1.13 Perhaps the most troubling provisions of the Bill are its seeming disregard for constitutional guarantees or interpretation. Other analyses, indicated above, have pointed out for example that in the case of Muwanga Kivumbi Vs Attorney General (Constitutional Petition 9/2005) that the POMA was a political response to a matter of settled law. The constitutional court in this case has resolved the very contentions in the POMA- the central agency of which is the power of the police to regulate public meetings. The POMA was thus a legislative response to what the judicial branch had resolved, contravening the rule that no law should be made specifically to overturn a judicial ruling. In the Kivumbi case, the Constitutional Court concluded that such power, and, by extension, such a law that empowers the police to restrict the freedom of association, et al, was unconstitutional and dismissed it. The various articles of the Constitution cited in the case go to the heart of what are considered fundamental freedoms. The case is still law and it is arguable whether any of the actions emanating from the POMA can be enforced thus. This dispute between the law and the Constitution remain unresolved. Towards a conclusion

1.14 While the objectives of the POMA target public peace and order, the content of the Bill serves as an instrument to regulate political competition. This regulation may cause significant damage to constitutionally guaranteed freedoms of speech, assembly and association. The Bill re-institutes provisions of the Police Act that were declared unconstitutional in the ruling on the Kivumbi case, and thus may face similar constitutional challenges if enacted.