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TRACING THE PATH OF THE PUBLIC ORDER

MANAGEMENT BILL: THE STARTING POINT, THEAMENDMENTS IN PARLIAMENT, AND THEIRCONSTITUTIONAL AND POLITICAL IMPLICATIONS

Introduction

1.1 The recently enacted Public Order Management Bill1 generatedintense debate amongst the public, civil society and politicalactors. The Bill, polarizing since its introduction in 2009, haswitnessed significant change since its re-introduction into

Parliament. Amendments introduced by Parliament significantlyaltered some of the most controversial features of the Bill. Despitethese changes, however, the core of the bill, the reintroduction ofpolice powers to regulate public meetings, the definition of publicmeeting and the requirement for notice before a public meeting is

held, have substantially remained unchanged. The changes madeto the bill, following the report of the Parliamentary Committee onLegal and Parliamentary Affairs2, changed the Bill in a substantialway but still left its core elements intact. The Bill, as passed, hassignificant political and constitutional ramifications that will shapethe political and constitutional discourse in the run up to the 2016

elections and beyond. In its final version, the Bill places significantrestrictions on the enjoyment of fundamental rights and freedom.

1.2 The bill was introduced in the backdrop of the Mabirademonstrations in 2007 and the Buganda riotsof 20093, shelved

1 The Bill awaits Presidential assent. For a law to become enforceable, theconstitution requires the President to assent to it. Before it is assented to, it isunenforceable.2 The Committee, a Select Committee of the House, received views from thepublic on the Bill in a public hearings spanning months. The committee report

reflect, in large measure the various proposals made in the submissions itreceived.3 The Mabira demonstration was initially started, as a peaceful demonstrationagainst the proposed giveaway of the Mabira forest to sugar company forsugarcane growing, turned violent leading to the murder of five Indians andseveral Ugandans. The Buganda riots were riots that erupted following theblocking of the Kabaka, the Buganda king, by the central government fromvisiting Kayunga District, a part of his kingdom, on account of a potentialbreach of peace.


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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 throughits 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 Workdemonstrations. These demonstrations were brutally suppressedby Ugandan security and caused significant disruptions in theCentral Business District of Kampala.

1.3 The bill was also introduced in response to the ConstitutionalCourt case of Muwanga Kivumbi v Attorney General4, whichdeclared unconstitutional the wide discretionary powers of theInspector General of Police (IGP) to prohibit the conduct of publicassemblies 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 toreintroduce the expunged provision of the Police Act rather than tocomply 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 and2011 versions of the bill are similar. They provide for the regulationof public meeting, the duties and responsibilities of the police, the

organizers and participants in relation to public meetings; providemeasures to safeguard public order. The difference between the

two bills is that the 2011 version provides and an extension to thelong title. It provides that the measures prescribed will be carriedout without compromising the principles of democracy, freedom ofassociation and freedom of speech. It further introduces theprinciple of quadripartite partnership between police, localauthorities, owners of private premises, organizers andparticipants of a public meeting. The provision is also included in

4 Constitutional Petition No.6 of 20065 The CSO Perspective on the Public Order Management Bill signed byHuman

Rights Network-Uganda, National NGO Forum, Foundation for Human RightsInitiative, National Association of Professional Environmentalists, Oil Watch,Commonwealth Human Rights Initiative and Human Rights Watch stated thatThe Bill under clauses 7 and 8 undermines the rule of law, constitutionalismand independence of the judiciary by seeking to revive Section 32 of the PoliceAct that sought to prohibit rather than regulate public assemblies which washeld unconstitutional by the Constitutional Court in Muwanga Kivumbi v.Attorney General(Constitutional Petition No. 9/05). Art. 92 of the Constitutionforbids parliament from passing any law to alter the decision of court
http://www.ulii.org/ug/judgment/constitutional-court/2008/4http://www.ulii.org/ug/judgment/constitutional-court/2008/4http://www.ulii.org/ug/judgment/constitutional-court/2008/4http://www.ulii.org/ug/judgment/constitutional-court/2008/4http://www.ulii.org/ug/judgment/constitutional-court/2008/4


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the Bill as substantive clause 3. At the committee stage, theobjective of the Bill as amended in the 2011 version was not the

subject of any contention. It thus was not among therecommendations 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 presidentialassent. This 2013 version drops the long title of the secondversion. This may be because the explanatory note or long title wasintended to be a sort of forward to the contentious issues of theBill. These were eventually subjected to intense parliamentarydebate. It may have been felt that the 2013 Act represented thefinal compromises agreed to in the Bill. As seen below, no final billwas 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 MinisterAmama Mbabazi. His statement and the 2013 Act reflect theconcessions undertaken. Essentially the concessions were aimedat avoiding a constitutional collision where the 2013 Act would be

seen as designed to defeat a court ruling- which would leave thelaw open to further challenge, and secondly, trimming thelanguage of the bill to allow the police to stillrestrict the conduct of a public meeting. What is meant by thelatter is now obviously street protests after a careful exclusion of

lawful meetings as well as public places that departs from theprevious two draft bills.

1.6 What however is curious is that the explanatory note to the 2011version of the bill, which provides for the additional phraseologywithout compromising the principles of democracy, freedom ofassociation and freedom of speech is not reflected in the actualtext of the 2011 version of the bill. While the explanatory noteprovides a hint about the intention of the lawmaker, it is unhelpfulif it is not reflected in the text of the law. The quadripartitepartnership principle is captured in clause 3 of both versions of the

bill. The final text has shed references to partnership between thepolice, organizers of meetings and participants. It uses the

minimalist language of most legislation, stating simply that the Actis to provide for the regulation of public meetings, provide for theduties and responsibilities of the police, organizers and

participants ..[and] prescribe measures for safeguarding publicorder.

1.7 The object of the bill is thus significant in the sense that it wasalive to the restrictions on derogation of rights contained in article


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43 of the constitution. The provision prohibits derogations that arenot justifiable in a free and democratic society. The changes to the

long title of the bill reflect sensitivity to the criticism to the billwhen 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. Thepresumption then is that the long tittle of the bill reflects thegeneral spirit of the sections of the bill. The analysis below willreflect on whether the spirit and wording of the long title runsthrough the bill.

The definition section of the Bill

1.8 The definition clause of the Bill interprets certain words or phrasesin 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 asany organisation which has among its objectives any politicalpurpose or which pursues a political purpose or any politicalorganisation 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 thematerial time the public, or a section of the public has access, onpayment of a fee or otherwise, as of right or by virtue of express ofimplied permission as defined under the Penal Code Act is neutral

but potentially very broad in the venues to which it could apply.

1.9 These definitions were considered overly broad and beyond thedefinitions of political organisations contained in the PoliticalParties and Organisations Act, 2005. It was opposed at thecommittee stage by civil society organisations as possibly beingcouched to entrap civil society organisations. Consequently, theLegal and Parliamentary Affairs Committee refined the definition.The Committee recommended that the phrase politicalorganisation should be substituted to read any organisation theobject of which includes the influence of political process or

sponsoring a political agenda whether or not it also seeks to sponsoror offer a platform to a candidate for election to a political office or

participate in the governance of Uganda at any level.Despite thisproposal by the Committee, the definition of political organizationremains the same as in the original draft of the 2011 Bill and couldencompass an extremely broad range of organizations.

The Substance of the Bill: What Changed and What Remained?


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1.10 The National Resistance party in the wake of post-voting debatemade a statement through its Secretary General Mr. Amama

Mbabazi. His statement makes claims to the effect that publicoutcry 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 areoverstated. This is especially so because the 2013 Act still achievesthe intent of the government. This intention put simply is tolegalize the prohibition of public meetings with political designsopposed to the establishment. It must be understood that thegovernment politically argued that the law was meant to regularizeactions by the police that continued in the period of the Bill sconsideration, to prevent public gatherings or in some casesconduct 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 agenthad been reduced from within 7 days to 3 days. In the 2011

bill, clause 7 states that an organizer would give notice inwriting to the IGP of an intention to hold a public meeting atleast seven days. The committee of parliament in their reportproposed an amendment of the clause to include at least 4days. The 2013 Act now clause 6 indeed provides a 3-day

notification period.

b)The Minister, in discussing the meaning of a public meetingstates that its definition, one of the main challenges to the Billduring debate and at committee stage, was a gathering held forthe purposes of discussing, acting upon, petitioning orexpressing views on a matter of public interest. He focuses onthe meaning of public interest as anything which the public ora section of the public has a stake or is concerned about andargues that the bill exempts social, cultural and religiousgatherings 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 criticizesgovernment policies and actions. Clause 6 (1) b in the 2009and 2011 versions also included in this definition meetings by

pressure groups intended to support or mobilize action againstspecific government policies, institutions or administrativebodies. The definition of public meeting therefore isconsiderably different in the 2013 version. While the definitionof political organizations was challenged as being too broad and


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not in conformity with the Political Parties and OrganisationsAct, 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 publicmeeting as being any gathering of 3 or more persons. He alsoindicated that the final legislation provided for spontaneousdemonstrations such as may, by way of his example, happenwhen a politician visits his constituency. This inclusion of ameeting as unplanned, unscheduled or unintended is citedby the minister as one of the compromises reflecting consensuson the final law. It appears as clause 8 in the Act. Thecommittee 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 morein the direction cited in the prime ministers statement. Theblanket inclusion of any organizations which may engage inactions however lawful but with political ramifications has

been shaved off. In its place the words public interest hasbeen used which is perhaps more general. So public meetingsare meetings (within the practical meaning of the term laterdefined as well by location) are those gatherings were mattersof public interest are discussed, petitioned or expressed.

While less aggressive the definition is still broad enough tocanvass the earlier one but significantly different in character.

c) According to the minister the contentious provisions onnotification too had been altered. This was extensivelydiscussed as an attempt by the Bill to reintroduce the power ofthe police to prohibit as opposed to regulate public meetings inthe earlier interpretation of the Constitutional Court in theMuwanga Kivumbi case. While the statement acknowledgesthat the court ruling was essential in the government decisionto bring the legislation in the first place, the ministers

discussion holds the view that the bill is not at variance withthe constitution- by acting to standardize the meaning of

regulation and not subverting the courts considered views onthe powers of the IGP. The committee summarized thestandard of law based on the UN Human Rights Committee in

General Comment No. 34 of 2011 on the relationship betweenright and restriction and between norm and exception sayingthey must not be reversed. According to the minister thegovernment 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


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reject the holding of a public meeting amongst others for anyother reasonable cause. These provisions were challenged by

the committee. The minister claims the only remaining body ofclause 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. Earlierboth versions of the bill had provided for in clause 8 (4) that anaggrieved party would appeal to the IGP if the agent of thepolice head has initially prohibited a public meeting. Thecommittee recommended that a magistrate be the rightinstitution for an appeal. This according to the minister wasagreed to and is what the 2013 Act provides for. The police,however, have through their own guidelines the power todetermine if a venue were suitable, a power that is not open toany other criteria other than the wisdom of the IGP.

d) Finally, the minister focuses on clause 12 that imposesresponsibilities on organizers arising out of the consequencesof a public meeting. The wide criteria include for example thatmeetings are concluded before 6PM in the 2011 draft and

includes criminal liability in the 2009 version. The committeerejected the broad interpretation of the consequences of abreakdown of order being imposed on an organizer on thegrounds that it would be impossible for such an organizer toknow beforehand or anticipate problems. This extends

somewhat to the duties of the police, which the committeeproposed were meant to assist and not obstruct a public

meeting. The Act does include all the compromises in theministers statement including that meetings be concluded at7. However these compromises only cover the mostcontroversial sections of the bill. For example, the Bill stillimposes a duty on the organizer not to make utterances thatconflict with the law, which was challenged on the grounds offree speech and expression. It goes further and criminalizesany breaches on the responsibilities of the organizer, imposinga one-year jail sentence or fine. The 2013 Act also retains the

provisions that impose a fiduciary duty on organizers tocompensate anyone affected by their actions as organizers-

where such an organizer has been found guilty of breachingthe duties under the Act.

Broader political and constitutional implications

The Act to be passed in 2013 is an expanded version of the earlierBill that injects some detail into specific clauses, but does notdeviate substantially from the intent of the Act. It is discernable


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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 waspassed 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 thanblocking it or leading to significant amendment. In summary allversions of the Bill are similar, in that they give sweeping powers tothe Uganda Police to determine the conduct of public meetings;they impose a duty on organizers of public meetings to seek formalpermission 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 predeterminewhether or not a meeting is suitable by its potential effect onpublic 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 theychip away at constitutionally guaranteed freedoms of association

and speech- fundamental to the exercise of a democracy.6 Inpractice the Police have ventured even further in restrictingfreedoms; 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 thatthe law as conceived does not provide a clear criteria for thepurposes of public order, but such a criteria is a creature ofpolitical benchmarks and practices. In particular, given theobviously political context of the Bill, the assigning of power to thepolice and the Minister not just to regulate the conduct of publicgatherings but to do so by determining ex parte (without hearingthe persons demonstrating) for purposes of such action thatgathering poses a threat to the peace. This is the importance of

provisions in both laws that define what a public place is, what a

6 See for instance ARTICLE 19, Uganda: Public Order Management Bill, LegalAnalysis, August 2013. In this analysis, ARTICLE 19 warns that the Bill willseriously erode the rights to freedom of expression and peaceful assembly inUganda if given the Presidential assent. See also Amnesty International,Uganda: Public Management Order Bill is a serious blow to open politicaldebate, August 2013


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public meeting is, and then creates conditions under which suchan 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 retainthe same definitions of what a public meeting is as well as thedefinition of a public place. Specifically public meeting is defined inboth versions as a gathering, assembly, procession ordemonstration in a public place or premises held for the purposesof discussing, acting upon, petitioning or expressing views on amatter of public interest. Secondly the interpretation of publicplace as defined in the Traffic and Road Safety Act notwithstandingor the inclusion of public places as commercial venues, the policeand the Minister through the powers of regulation can designateany 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 intoeffect of any of the provisions or purposes of this Act. Thus eventhe expanded version of the POMA, that for instance, createsreasonable exceptions to the interpretation of public meetings like

those held by corporate organizations, trade unions, religious andcultural organizations or political parties, these widely definedpowers of the minister can conflict with those provisions allowingthe law to give with one hand and take with the other.

1.13 Perhaps the most troubling provisions of the Bill are its seemingdisregard for constitutional guarantees or interpretation. Other

analyses, indicated above, have pointed out for example that in thecase of Muwanga Kivumbi Vs Attorney General (ConstitutionalPetition 9/2005) that the POMA was a political response to amatter of settled law. The constitutional court in this case hasresolved the very contentions in the POMA- the central agency ofwhich is the power of the police to regulate public meetings. ThePOMA was thus a legislative response to what the judicial branchhad resolved, contravening the rule that no law should be madespecifically to overturn a judicial ruling. In the Kivumbi case, theConstitutional Court concluded that such power, and, byextension, such a law that empowers the police to restrict the

freedom of association, et al, was unconstitutional and dismissedit. The various articles of the Constitution cited in the case go tothe heart of what are considered fundamental freedoms. The caseis still law and it is arguable whether any of the actions emanatingfrom the POMA can be enforced thus. This dispute between the law

and the Constitution remain unresolved.

Towards a conclusion


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1.14 While the objectives of the POMA target public peace and order, the

content of the Bill serves as an instrument to regulate politicalcompetition. This regulation may cause significant damage to

constitutionally guaranteed freedoms of speech, assembly and

association. The Bill re-institutes provisions of the Police Act thatwere declared unconstitutional in the ruling on the Kivumbi case,and thus may face similar constitutional challenges if enacted.

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