Uganda's Constitutional Court should repeal the Public Order Management Act as unconstitutional
|Publisher||International Federation for Human Rights|
|Publication Date||19 December 2013|
|Cite as||International Federation for Human Rights, Uganda's Constitutional Court should repeal the Public Order Management Act as unconstitutional, 19 December 2013, available at: http://www.refworld.org/docid/52de4d7512.html [accessed 10 December 2016]|
|Disclaimer||This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.|
Last Update 19 December 2013
Geneva-Paris, December 19, 2013. The Observatory for the Protection of Human Rights Defenders, a joint programme of OMCT and FIDH, calls upon the Uganda's Constitutional Court to repeal the Public Order Management Act, which restricts freedoms of expression and peaceful assembly and further deteriorates an already shrinking space for civil society and human rights defenders in the country.
On October 2, 2013, President Yoweri Museveni signed into law the Public Order Management 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 and responsibilities of police, organisers and participants in relation to public meetings; [and] to prescribe measures for safeguarding public order", instead of giving powers to the police to protect the enjoyment of freedoms. Although protecting public order is a legitimate concern recognised by international instruments, the scope and nature of the restrictions provided by the POM Act go well beyond the restrictions permitted under international and regional human rights law and therefore contradict Uganda's international and regional commitments.
"Whereas it is important to ensure law and order during protests, the POM Act seems to be intended to stifle freedoms of association and expression and thereby to undermine civil society working space by setting very difficult conditions to hold public meetings, demonstrations and any form of gathering in public places", said Gerald Staberock, Secretary General of the World Organisation Against Torture (OMCT). "The Constitutional Court of Uganda should therefore repeal it immediately as unconstitutional", he further urged.
The POM Act fails to establish a presumption in favour of the exercise of the right to freedom of peaceful assembly as it fails to recall the duty on the State to facilitate peaceful assemblies, in particular as Article 6(3) provides that "where the authorised officer notifies the organiser [of an assembly] or his or her agent that it is not possible to hold a proposed public meeting on the date or venue proposed, the public meeting shall not be held on that date or at the venue proposed". The coincidence of two demonstrations at the same location and time as well as an unsuitable venue can be the basis for rejecting a notification (Article 6(1)). It is feared that these two grounds may be used abusively.
When assemblies are held contrary to the Act, law enforcement authorities may stop or prevent the holding of a "public meeting", which is widely defined 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" (Article 4 (1)), without defining the concept of "matter of public interest". In circumstances where a public meeting is held contrary to the Act, participants in the meeting may be criminalised and are liable of an imprisonment not exceeding 12 months or a fine not exceeding 480,000 Uganda shillings (about 140 €) or both (Article 10(3)). This provision seriously jeopardise the exercise of the right to peaceful assembly, as organisers should not be subject to criminal sanctions, or administrative 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 public meetings in accordance with the law" (Article 3), which reintroduces Section 32 of the Police Act, which was found unconstitutional by the Constitutional Court in the case of Muwanga Kivumbi vs. Attorney General (Constitutional Petition No.9/2005). The Court noted that Section 32 of the Police Act required Ugandans to seek permission from the IGP before exercising the right to demonstrate and assemble, which contradicts Article 29 of the Constitution. The POM Act therefore contradicts Article 92 of the Constitution of Uganda, which provides that "Parliament shall not pass any law to alter the decision or judgment of any court as between the parties to the decision or judgment".
Article 12 (1) of the POM Act grants the Interior Minister the power, subject to Parliamentary approval, to declare any area as "gazetted" where public meetings are absolutely prohibited.
Further, the POM Act prohibits public meetings at and around public institutions by designing them as "restricted areas", where entry is prohibited 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 that wide-ranging and discretionary powers are given to the law enforcement authorities to disperse spontaneous assemblies under certain vaguely defined circumstances (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 the civic space in Uganda, and may hamper civil society actions that involve discussions related to governance and accountability, rule of law and more generally human rights, or anything within the spectrum of "public interest" will only be held provided police permission and supervision is granted.
"The law clearly contravenes international and regional standards, including Articles 19 and 21 of the International Covenant on Civil and Political Rights (ICCPR) and Articles 9, 10 and 11 of the African Charter on Human and Peoples' Rights, and also violates Article 29 of the Ugandan Constitution that promotes and protects the rights to freedom of expression and association. Indeed, instead of giving powers to the police to protect the enjoyment of freedoms, this new law empowers the police to restrict the enjoyment of rights", said Karim Lahidji, President of the International Federation for Human Rights (FIDH).
The Observatory further recalls the provisions of the United Nations Declaration on Human Rights Defenders concerning the recognition of the right of all persons "individually and in association with others, to participate in peaceful activities against violations of human rights and fundamental freedoms" (Article 12.1) as well as the right of all individuals to meet or assemble peacefully (Article 5). According to Article 12.2, States Parties should take "all necessary measures to ensure the protection by the competent authorities of everyone, individually and in association with others, against any violence, threats, retaliation, de facto or de jure adverse discrimination, pressure or any other arbitrary action as a consequence of his or her legitimate exercise of the rights referred to in the present Declaration".
Accordingly, the Observatory calls upon the Ugandan Government to comply with its obligations under international and regional law to respect and protect the right of everyone in Uganda to exercise their rights to freedom of expression and peaceful assembly by conforming provisions of the POM Act that are contrary to the effective exercise and enjoyment of these fundamental rights, which in turn also affect the important role of human rights organisations and defenders in the country.