Public Order Management Act: Bad law or poor enforcement?
A police officer reads to Dr Kizza Besigye a section of the Public Order Management Act, while making a case for blocking the launch of his campaigns in Kasangati, Wakiso District, last week. Many analysts say the Police has misunderstood the law. PHOTO BY RACHEL MABALA
Kampala- The contest between former prime minister Amama Mbabazi and his erstwhile political soulmate President Museveni has brought to the fore the Public Order Management Act (POMA).
The law came into force in 2013 in the wake of the walk-to-work demonstrations and laden with the background of the Kayunga and ‘Save Mabira’ riots.
Across the country, police have waved the law like a conventional flag in a war zone signaling ‘cease-fire’ to, especially Opposition activities. Perhaps, more than any other law, POMA’s prominence is highest on the pecking order of public debate.
That means it has been understood and misunderstood, applied rightly and abused in equal measure.
Do you need police permission to hold meetings?
One of the misconceptions about the law, for instance, is that one requires police permission to hold a meeting of more than three people.
Mr Mbabazi has particularly found himself in the defence witness’ dock, shielding POMA in local and international media interviews.
“In my view or even law, nobody has the powers to stop the meetings. I refer you to the Constitution of Uganda, the Public Order Management Act (POMA), the Penal code Act, Chapter 120, the Traffic and Road Safety Act and Political Parties and Organisations Act,” he told journalists last week.
In the POMA, Mr Mbabazi adds: “The powers of the Inspector General of Police (IGP) or authorised officer are restricted to regulate the conduct of all public meetings. Police neither have authority nor a role in the organisation or conduct of public meetings.
In fact, Section 2(2) defined the meaning of regulate to be as to ensure that the conduct or behavior of those who are gathered conforms to the requirements of the constitution”.
So what does the law state?
Shadow attorney general Abdu Katuntu and Busiro East MP Medard Segona observe that the law in its current form, is actually refined compared to the restrictive law it was in its original form.
“There is nothing in that law which I debated and wrote which gives police those powers (to stop public meetings). We provided for exceptions, among others, to activities of political parties and organisations,” says Mr Katuntu.
So is the police wrong to cite POMA as a legal ground for blocking political activities?
Section 4 of the law defines a public meeting as “a gathering, assembly, procession or demonstration in a public place or premises held for the purpose of discussing, acting upon, petitioning or expressing views on a matter of public interest.”
Section 4(2) (e) states that a public meeting shall not include “a meeting of the organs of a political party or organisation convened in accordance with the constitution of the party and held exclusively to discuss the affairs of the party.”
Police condemned
For police to cite POMA as happened in Mbale last week where Mr Mbabazi’s supporters were dispersed with a police officer reading the Act, Mr Katuntu says, “is an opportunistic abuse of the law to go back to the original legal regime which provided that police had powers to stop public meetings.
What we provided for is notification so they facilitate the meetings with security. What they are doing is to use the law to go back to the original position that was unconstitutional.”
MP Kivumbi says: “One is only meant to give police a notice three days in advance and police respond in writing if they have a query. They can object if the venue has been booked, and if there are issues with traffic and crowd control, they have to write, inviting you to discuss an alternative.”
Muwanga Kivumbi Vs Attorney General is the case Katuntu alludes to where MP Kivumbi challenged section 32(2) of the Police Act which stated: “If it comes to the knowledge of the Inspector General of Police that it is intended to convene any assembly or form any procession on any public road or street or at any place or public resort, and the inspector general has reasonable grounds for believing that the assembly or procession is likely to cause a breach of the peace, the inspector general may, by notice to the person responsible for convening the assembly or forming the procession, prohibit the convening of the assembly or forming the procession.”
However, NRM lawyer Kiryowa Kiwanuka disagrees with Mr Mbabazi and Mr Katuntu, who argue that police have no power to stop public meetings under POMA.
“I disagree with my learned friends. I invite them to read section 8 of the law.”
Section 8 (1) reads: “Subject to the directions of the IGP, an authorised officer or any other police officer of or above the rank of inspector, may stop or prevent the holding of a public meeting where the public meeting is held contrary to this Act.”
It adds: “An authorised officer may, for the purposes of subsection (1), issue orders, including an order for the dispersal of the public meeting, as are reasonable in the circumstances.”
The objections
Whereas Mr Katuntu argues that this provision does not give police arbitrary power to stop a public meeting with unclear parameters on what is ‘reasonable in the circumstances, human rights lawyer Ladislaus Rwakafuuzi, who successfully argued in the Constitutional Court as Kivumbi’s attorney, opines: “We argued against sub section 32(2) of the Police Act that gave the IGP power to allow or disallow public assemblies, the same were reintroduced in POMA (section 8) which has been used to stop public assemblies.”
In a December 13, 2013 petition by the Human Rights Network Uganda, The Development Network of Indigenous Voluntary Associations (DENIVA), FIDA, Bishop Zac Niringiye and Mr Kivumbi challenged several sections in the law that directly and indirectly give police power to limit the right to assembly.
These sections (3, 8), they argue, in the yet-to-be heard petition by the Constitutional Court, reintroduce Section 32(2) of the Police Act that contravenes 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”.
‘POMA, a bad law’
Former chairman of the Uganda Law Reform Commission Fredrick Ssempebwa agrees with Mr Rwakafuuzi.
“I totally disagree with Mr Mbabazi, it is a bad law which is ill-conceived and as a lawyer, he should know better that it was passed after a court ruling pronouncing people’s right to assemble, that the people are free to assemble and there is no need for them to beg police to allow them. That the role of police is to keep peace and not block assemblies.”
Still on the Kivumbi case, Mr Mbabazi has persistently said the justices of the court commented that there was a need for a law to regulate public meetings.
Kampala Lord Mayor Erias Lukwago says: “I have read the ruling severally but I don’t think there is such a clause in which the court directed that draconian law to be instituted. I think my brother is trying to extricate himself out of that situation being the proponent of a law catching up with him.”
Mr Lukwago adds that nowhere in the ruling did court advise government to come up with POMA.
“Enforcement is not the only problem as he argued.
The law itself is absurd and unconstitutional as it concentrates power over assemblies on the IGP but he is certainly right to say the police is overstepping its powers,” he says.
OVERVIEW OF ACT
POMA gives police rather wide leg room to find an excuse to stop a public meeting. Under section 5, an organiser is enjoined to give notice in writing to the authorized officer of the intention to hold a public meeting, at least three days but not more than 15 days before the proposed date of the public meeting.
The law only asks one to notify police but it subsequently gives police room to find an excuse to stop your meeting.
For instance, if the owner of the venue denies you permission, and under section 6 (b), where the officer considers the venue unsuitable for traffic and crowd control or interference with lawful business, The law requires the officer to within 48 hours write to the organiser, communicating that it is not possible to proceed with the meeting and invite him to discuss an alternative venue or date. Where the organiser is dissatisfied, he can appeal to a magistrate’s court against the officer’s decision.
Section 10 enjoins the organiser to ensure statements made to the media and public are not in conflict with the law and ensure the meeting is peacefully concluded by 7pm as well as coordinate with police to ensure law and order.
Section 12 of the law, which establishes gazetted places, has come under attack. Where the minister is of the opinion that it is desirable in the interests of public order, he may, “by statutory instrument declare that in any particular area in Uganda referred to as a gazetted area, it is unlawful for any person to convene a public meeting.” The restricted areas are Parliament, state lodges, State House, international airports and courts.
By and large, POMA, it appears is not as bad as its critics may paint it. However, like in South Africa and UK where police have come under attack for misusing the public order laws, it appears POMA’s loophole is its abuse more than restrictiveness.
