Is the Public Order Bill a ploy to numb the citizenry?

Rights vs Creed? Faced with mass protests led by the opposition in April over high commodity prices, government found itself grappling with how to contain further protests. It came up with the Public Order Management Bill that, if passed into law, will mandate the police to regulate public gatherings and violently quell protests. Saturday Monitor analyses the Bill.

Demonstrations became a common phenomenon in Uganda starting in November 2005 following the arrest of opposition politician Dr Kizza Besigye, they escalated in 2007 when a major demonstration against a non-political matter, a plan to give 7100 hectares of Mabira Forest Reserve to a private developer resulted in the death of at least four people.

The Mabira protests that turned riotous after police intervened resulted in the issuance of Statutory Instrument No 53 by then Internal Affairs Minister Dr Ruhakana Rugunda that declared most urban areas in the country gazetted areas where no public demonstrations or protests could be held without express permission of the Inspector General of Police. The current Bill borrows heavily from the instrument.

Repeated attempts to seek the permission by, especially political actors, resulted in persistent denials from the police that produced excuse after excuse for its decision. As a result, political parties especially resolved to ignore the police and went ahead with their planned processions and demonstrations that often turned riotous and destructive giving impetus and justification for the government to seek to “regulate” the assemblies.

In September 2009 government sought to actively block a planned visit of Buganda King Muwenda Mutebi to Kayunga district, known in the Buganda as a territory of the kingdom known as Bugerere County, the resulting standoff saw major riots in the entire central region that resulted in the killing of at least three dozen people. Government put the official death toll at 27 while independent counts, including one by the international human rights watchdog Human Rights Watch, put the number at more than 40.

Repeated clashes between police and opposition political party supporters through 2010 galvanised government’s resolve to push the Bill through with the April and May Walk-to-Work protests whose central figure was Dr Besigye underlined the agency for the law.

Violations of the Constitutional Court ruling

By trying to push the Bill through Parliament structured in the way it is especially on the powers and responsibilities of the police, critics of the Bill say government is attempting an “unclever” attend to re-introduce a matter that was ruled against by the Constitutional Court and is therefore a direct affront on the judiciary.

This school of thought argues that even if the government goes ahead and pushes the Bill through it will be dead on rival because it will be unconstitutional following the successful challenge of S32 of the Police Act on powers of the police to regulate assemblies and processions.

In petition No 9 of 2005 to the Constitutional Court, Democratic Party activist Muwanga Kivumbi, then leader of the Youth Platform Against Life Presidency, petitioned the Constitutional Court with a prayer that it declares the section unconstitutional, a prayer he won by unanimous decision in 2008.

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When Constitutional Court watered down police powers

On May 28, 2008, a panel of judges at the Constitutional Court led by then Deputy Chief Justice Mukasa Kikonyogo, sat to rule on a petition filed in public interest by Muwanga Kivumbi. The petitioner was challenging the powers of the police under Section 32 of the Police Act to mandate assemblies and demonstrations.

It was, inter alia, argued for the petitioner and his colleagues that by calling rallies or convening assemblies across the country, people were exercising their fundamental rights of association guaranteed by the Constitution and not given to them by the State. The rights are inherent and as such have to be respected, promoted and upheld by the three organs of the State.

The petitioner contended that it is unconstitutional to read Section 32 (2) of the Police Act as giving the police powers to restrict political activities. He submitted that the Constitution permits peaceful and unarmed demonstration. It is, therefore, the duty of the police to see that there is no breach of peace committed. He argued that the right to demonstration was only restricted by Article 43 of the Constitution.

The Coram unanimously ruled that as long as there is no contravention of Article 43 of the Constitution and the rights are exercised within the confines of the law, there would be no justification for invoking the powers under Section 32 (2) of the Police Act. There is no convincing reason for restricting or stopping convening rallies or assembly or demonstrations.

The Police have powers under other provisions of the law to maintain law and order or deal with any situation for instance the one envisaged under Section 32 (2) of the Police Act. The police will not be powerless without the powers under sub-section 2 (See utility above); they can deploy more security men. Further, they have powers to stop the breach of peace where it has occurred by taking appropriate action including arresting suspects.