Following chaotic scenes that occurred in Arua on the evening of August 13, President Museveni issued a statement in which he declared that processions after political rallies were against the law.
“Processions are illegal and the NRM leaders should not be part of them because they inconvenience the public,” he wrote.
It was not possible to establish what the legal basis of his proclamation was, but it was not on the advice of the office of the Attorney General. The Deputy Attorney General, Mr Mwesigwa Rukutana, told Sunday Monitor that he was out of the country at the time and had not had a look at the statement.
It is, however, worth noting that the following Saturday the Inspector General of Police, Mr Martins Okoth-Ochola, made a similar proclamation while addressing a joint press conference with the Chief of Defence Forces, Gen David Muhoozi, at the police headquarters in Naguru.
“Now I want to inform the country that we shall no longer accept those unlawful processions,” he said.
He used the words, “unlawful processions” twice in less than a minute, blaming processions for the deaths that had occurred in Arua and Bugiri before it.
Like the President, the police boss did not cite any section of the law that the procession holders were breaching. This has raised questions about the legality of the two men’s pronouncements.
“There is no law which allows them to ban a procession,” constitutional lawyer Wandera Ogalo says.
However, both the spokesperson of the Uganda Police Force (UPF), Mr Emilian Kayima, and one of Mr Museveni’s lawyers, Mr Kiryowa Kiwanuka, leap to the two men’s defence.
Silence of the EC
“The Electoral Commission (EC) has never said that processions are allowed as a campaign activity. So they cannot be allowed,” argues Mr Kayima, but that is a hard sell given that the EC has also never said that they are not allowed.
The spokesperson of the EC, Mr Jotham Taremwa, says the EC is in the process of finding solutions to all potential causes of conflict and violence during elections.
“We are looking at all areas that are potential causes of violence. We shall take action on those that are within our mandate and make recommendations for an amendment to the electoral laws for those that are outside our mandate,” he said.
The two men also say that both the President and the IGP were invoking provisions of the Public Order Management Act (POMA).
“Section 8(1) of the Public Order Management Act gives the police powers to stop or prevent an assembly,” Mr Kayima says.
The problem though, is that that section is a replication of Section 32 of the Police Act which the Constitutional Court declared unconstitutional on May 27, 2008, while delivering judgment in the suit, Muwanga Kivumbi versus the Attorney General.
That section previously empowered the police to disperse or prohibit gatherings where the Force “had reasonable grounds for believing that the assembly or procession is likely to cause a breach of the peace”.
Mr Muwanga Kivumbi petitioned the court to declare it unconstitutional after the police used it to block rallies that his pressure group, Popular Resistance Against Life Presidency (PRALP) had planned to hold rallies in Lugazi, Nkokonjeru and Seeta.
Mr Ogalo, however, questions the POMA the people in authority are reading from. He says they might be reading from the Bill and not the Act that was passed by Parliament in September 2013.
“They are behaving as if the POMA was passed in the form that government had wanted when it tabled the Bill before Parliament. There is no law that allows them to ban a procession. It would be a contravention of Article 29 of the Constitution,” he argues.
Section 2(d) of Article 29 of the Constitution provides for “freedom to assemble and to demonstrate together with others peacefully and unarmed and to petition”, while section 2(e) provides for “freedom of association” which includes freedom to form and join, among others associations and political and civic organisations.
Mr Ogalo argues that the Constitutional Court had limited the police’s role in the management of processions to “directing the conduct of assemblies and processions on public roads or streets or at places of public resort and the route by which and the times at which any procession may pass”.
Regulation versus prohibition
Mr Kiryowa Kiwanuka, however, argues that whereas the word “prohibited” is not explicitly used anywhere in the POMA in regard to public processions, it is implied to the extent that the Act sets conditions prior to police moving in to regulate the procession.
“They (processions) are unlawful if you have not notified the police that you are going to hold them. If I say do not do this unless you have done the other, it means that it is prohibited unless you have fulfilled the conditions around it,” he says.
However, Mr Ogalo says he is baffled that anyone might interpret the provisions of POMA that way and let it take precedence over the Constitution.
“You wonder whether these people read the Constitution and the interpretation by the Constitutional Court. Does the law matter in this country or should we simply put it aside and say that when a ‘big man’ says something it becomes law?” he wonders.
The debate will no doubt continue until the President and IGP come out to tell Ugandans the law on which their respective pronouncements were based.
For now, the danger is that even if they are wrong, because the two men who swore, one to “uphold, preserve, protect and defend the Constitution and observe the laws of Uganda” and another to “bear true allegiance to the Republic of Uganda”, have said so it becomes easy for the common man and law enforcement officers to think that they were right.
We are likely to see overzealous law enforcers, many of them ignorant of the law, latching onto those proclamations to infringe on the rights of Ugandans. No one wants that. We already had enough of it in Arua.