In June last year, the Constitutional Court declared Section 36 of the Public Order Management Act (POMA) unconstitutional. It meant that the police no longer had the power to disperse public gatherings, but the Force has continued to fire tear gas and live ammunition as it disrupts public rallies and consultative meetings around the country.
Now with less than a year to the 2021 general election, POMA is hovering like a dark cloud over the election as it remains that one tool that the police are using to disrupt Opposition activities. That is casting serious doubts about the possibility of a credible, free and fair election.
The situation raises serious questions about the ruling NRM’s democratic credentials and its ability to win an election without doing it the ugly way, but the communications’ officer at the NRM Secretariat, Mr Rogers Mulindwa, insists that the NRM remains very popular and that it would win an election at any given day and time.
Suppression of Opposition
“We are stronger than any political party in Uganda right now. Winning is guaranteed,” he said.
If looked at from a boxing angle, Mr Mulindwa’s comments suggest that the NRM party is an undisputed heavy weight champion – one with the skill and style of a fusion of Muhammad Ali and Sugar Ray Leonard, and the punching power of a fusion of Mike Tyson and Deontay Wilder.
The problem though is that the NRM has a lengthy history of trying to systematically silence dissent, both internally and externally. In the initial years, it banned political party activity and formed a broad-based government, which had a predatory effect on the parties.
During the writing of the 1995 Constitution, the NRM ensured that political parties were constitutionally barred from operating beyond their headquarters. Article 269 barred parties from engaging in “any activities that may interfere with the Movement political system.” They could not operate branches, hold public rallies or sponsor candidates for public office.
Now, more than 10 years after Uganda returned to a multiparty dispensation, it would appear that the NRM is still operating in Article 269 mode. Political parties are not free to operate as they should and even elected MPs aligned to the Opposition are often barred from addressing gatherings in their own constituencies. It would appear that Mr Mulindwa’s undisputed heavy weight champion prefers to disrupt challengers training camps and have them shackled before they enter the ring. The police have been central here.
Questions about the police’s partiality have been here for a while. Mr Gerald Siranda, the secretary general of the Democratic Party (DP), says the Force is partisan.
“Why would you on a normal day block an MP from holding a meeting in his own constituency? He might have other ambitions, yes, but that is his constituency. The police are behaving like a youth wing of the NRM,” Mr Siranda says.
The spokesperson of the police, Mr Fred Enanga, disagrees and instead accuses the Opposition of viewing the police with squinted lenses.
“What do you expect them (Opposition) to say? We have a mandate, which is policing the electoral process. We have a road map, which is in line with the Electoral Commission’s road map. So if we have been partial it should be the Electoral Commission to be saying so,” he told Sunday Monitor.
EU election observer teams
The problem though, is that even others have accused the Force of bias. A report issued by the European Union election observation team after the 2011 general election indicted the Force for lack of objectivity.
“The Uganda Police Force has not yet embraced its constitutional role as an impartial enforcer against breaches of electoral law,” the report read in parts.
The report accused police of roguish behaviour towards the Opposition. It was called out for hiding behind “preventive measures” to use “excessive force against Opposition, media and the public and maintaining an intimidating presence at polling centres.”
“While a peaceful atmosphere prevailed during campaign events, excessive use of force by police, including the use of tear gas and assault rifles, to disperse crowds during presidential candidates’ Kizza Besigye’s…and Amama Mbabazi’s…rallies was observed on several instances. Intimidation and harassment of Opposition by law enforcement bodies, including arrests of Opposition supporters and voters, were reported from more than 20 districts,” the report read in parts.
Mr Enanga declined to comment on the EU observer missions’ reports on grounds that he had not read them.
Prior to 2008, police used to invoke the Police Act to block public assemblies and demonstrations, but on May 27, 2008, the Constitutional Court ruled in the case, Muwanga Kivumbi vs Attorney General (Constitutional Petition No. 9 of 2005), that Section 32(2) of the Police Act behind which the Force used to hide was inconsistent with the provisions of Article 29(1)(d) of the Constitution, which guarantees freedom of co-science, expression, movement, religion, assembly and association including the right to demonstrate.
Whereas the judges had in their ruling observed that empowering the Inspector General of Police to prohibit the convening of an assembly or forming of a procession in any public place “contravened the fundamental rights to freedom of assembly and to demonstrate together with others peacefully”, the same provision returned under POMA.
Commonwealth election observers’ report
The former president of Nigeria, Mr Olusegun Obasanjo, who headed the Commonwealth Election Observers’ team in 2016 pointed out that the playing field had been uneven, adding that the Opposition had been disadvantaged by several restrictions.
“Restrictions were imposed to basic freedom of assembly and movement affecting the fairness of the campaign for Opposition candidates and lack of transparency with regard to campaign financing,” Mr Obasanjo pointed out.
AG’s advice ignored?
The situation gets even more worrying as the advice of Attorney General William Byaruhanga tendered to the minister of Internal Affairs on April 26, 2019. Mr Byaruhanga had pointed out that Kyadondo East MP Robert Kyagulanyi and Opposition activist Kizza Besigye were committing no crime by traversing the country to do politics. Mr Byaruhanga said the two were within their rights as provided for under Article 29 of the Constitution.
“Accordingly, the two individuals are permitted by the Constitution to travel to any part of the country and to peacefully express their views on government policies,” Mr Byaruhanga wrote.
In the same letter, which was copied to, among others, the Inspector General of Police, Mr Byaruhanga pointed out that there is also no law barring people from wearing red berets, adding that putting on a red beret in a courtroom does not amount to contempt of court.
Sunday Monitor established that the Inspector General of Police, Mr Okoth-Ochola, forwarded copies of the Attorney General’s advisory to all district police commanders on January 7. Inscribed on the top right corner were the words, “Take note of this legal opinion of the AG.”
Why then is the police ignoring the letter and AG’s advice?
Prime Minister ignored?
It would, however, appear that the police have also ignored Prime Minister Ruhakana Rugunda. On May 15 last year, after a meeting of the Interparty Platform for Dialogue (Ipod) at his office, Dr Rugunda directed the police to stop imposing own guidelines while implementing POMA.
He said police had to let parties who notify them hold their meetings in order to be able to move in line with the Electoral Commission road map for the 2021 general election.
“It is the responsibility of security agencies, especially police, to ensure that we have a peaceful environment and hold meetings without clashes with the wananchi (citizens) who want to sit down and listen to their leaders without disturbances,” Dr Rugunda said.
Political parties and the Netherlands Institute for Multiparty Democracy (NIMD) have been pushing government to amend POMA for quite a while now.
Last year, NIMD organised a series of meetings which were attended by the Prime Minister, the Attorney General, ministers of Defence, Security and Internal Affairs.
According to the country representative of NIMD, Mr Frank Rusa, a raft of regulations that would guide the police’s interpretation of POMA, including one where the police would only be notified of a political party’s activity were drawn up and presented to the Ipod summit of May 20, 2019.
“The President received the regulations, but said he wanted the national security team to look at them before they could be presented to Parliament. He said the process would have been complete by July (last year), but we haven’t yet gotten any feedback,” Mr Rusa said.
The credibility of the 2021 general election is at stake.
“It would not be good for us to go into a general election without resolving those issues (around POMA). I have asked the leadership of Ipod to consider convening a summit to resolve them” Mr Rusa says.
Watchers of the situation, however, believe that Mr Museveni is not keen on having POMA amended as the prevailing situation favours him and the NRM, an assertion that Mr Richard Todwong, the deputy secretary general of the NRM, rejects.
“We play in the same field and also experience hardships, only that we do not overcry. We have also been complaining about the many controls, which curtail party activity. We too would want to see the playing field levelled. We too would like to engage government to see to it that the regulations in POMA and the Police Act are relaxed,” Mr Todwong said.
The problem is that there is a mocking tone to his remarks.
Section 3- Power of the Inspector General of Police or authorised officer:
• IGP’s powers under the Act be decentralised
• There shall be an authorised officer at the rank of, or above Inspector for purposes of implementing the provisions and regulations of POMA
• IGP may designate an authorised officer at any place below the district police commander to implement provision and regulations of the Act
Section 5(4) filing a notice with the IGP or authorised officer
• Notice shall be filed in triplicate and IGP or authorised officer shall endorse all copies indicating the name of the receiving officer, the rank, police identification number, date, time and signature.
• Upon filing notice, the person shall register in register of notices established under section 11 of POMA indicating the name of the person submitting the date, time, identification card number and signature.
Section 6- notifying the organiser under section 6 (1) of POMA, 2013
• Where IGP or authorised officer finds that it is not possible to hold the proposed meeting at a proposed venue, he/she shall notify the organiser indicating the reasons why he/she believes it is not possible.
• If venue had earlier been booked, notice shall specify details of the person who has already booked the venue and where possible a copy of the extract of the register shall be attached indicating who had earlier booked the proposed venue.
• For purposes of crowd and traffic control or interference with other lawful business, public meetings will not take place on streets, public parks and gardens, schools, hospitals and churches unless with express consent of the owner.
• Where IGP or authorised officer does not respond to notice within 48 hours it will be deemed that the proposed meeting has fulfilled all requirements under the Act.
Section 7- Spontaneous public meeting
• A spontaneous public meeting shall not exceed more than 20 minutes.
• Where a spontaneous public meeting has to be dispersed, the authorised officer has to ensure that it is dispersed in a lawful and orderly manner giving notice to all participants to leave venue within 10 minutes and; escort organisers or participants out of venue.
• A person who violates the regulation is liable to one year in jail or a fine of Shs400,000
Section 11- Provisions on the register
IGP or authorised officer must open and maintain a register of all notices received under the Act
The register must be maintained, may be informed in any form that allows for information to be readily accessed when required.
Contents of the register
The register shall contain:—
• Name, identification card number and address of the person filing the notice; date of filing, date of the public meeting; description of venue and contact of owner; time of filing the notice; name of officer receiving the notice and police identification; and a place of filing of notice
• A person filing the notice shall countersign on the register.
Search and inspection of register
• A person may apply to the IGP or authorised officer to inspect the register
• The IGP or authorised officer prescribes the time or any conditions relating to the request
• Applications may be made to the IGP or authorised officer for copies of some of documents on register