Public assemblies: Why ‘tomato seller’ argument is quite flawed

In theory and principle, the right to freedom of assembly is straightforward. People are free to peacefully assemble and to petition. The role of the state is simply to ensure that all of us enjoy our rights equally – not one over the other.

The contestation has been rather on how assembly rights can be exercised without infringing on the rights of others and legitimately threatening political interests. Of course, this approach is fatally flawed and unconstitutional because it negates fairness of rights.

Look around, we happily inconvenience others on non-controversial assemblies quite regularly. Why is the standard different when the expression is critical, dissenting or unpopular?
When President Museveni penned an article on public assemblies, he noted that the State will not allow gatherings that are not “legitimate”. His opinions are partly supported by a law that enables the flawed approach.

In 2013, the Public Order Management Act (POMA) was enacted. Whereas the objective of the law was to provide a law that facilitates the enforcement of the right to freedom of assembly as guaranteed under the Constitution of Uganda, the law is littered with outrightly repressive and vague provisions that narrow assembly freedoms.

Sixty nine days after its enactment, Chapter Four Uganda and partners, moved to court to challenge the law under petition number 56 of 2013. Specifically, the petitioners contest the definition of “public meeting”, re-introduction of Section 32(2) of the Police Act that was declared unconstitutional by court in Muwanga Kivumbi vs Attorney General, and other sections that provide prohibitive restrictions on individual liberties.
Six years on, the Constitutional Court continues to fail to dispose of the matter.

And so, the madness of an undemocratic society continues to unfold before us. We cannot distinguish the difference between notification and permission for assemblies. We openly, and brazenly, promote chaos to stop critical citizens from expressing themselves. In all fairness, the preliminary part and a few sections of the law are progressive. But that is all.

The spirit of POMA is fundamentally troubling. The law envisions enjoyment of assembly rights by a group without any inconvenience on others. Further, enforcement – which is often selective I must add – compounds the problem. There will always be inconveniences.

What we need is a conversation about necessity, proportionality, and how to limit inconveniences suffered by others. To ask a group of people to go and assemble in a forest, away from a public place, is to defeat the very purpose of the right.

The law purports to provide for a ‘notification’ regime while in fact providing for a ‘permission’ regime. The bullish and domineering presence of police authority can be felt from a far. The notification regime should provide a presumption in favour of holding assemblies. Failure to notify the police does not render an assembly illegal.

On whether an assembly is peaceful or not; the organisers intentions should suffice. It is not the place of police to declare assemblies violent simply because it involves dissenting or unpopular views. Peaceful includes conduct or expression that is annoying, dissenting or temporarily obstructing activities of third parties.

Further, isolated acts of violence do not render the entire assembly non-peaceful. The police should arrest suspects and refraining from dispersing the assembly.
The limitations to freedoms must be necessary and proportionate. As noted by J. S. C Mulenga in the landmark Charles Onyango-Obbo case, limiting the enjoyment of freedoms is an exception to their protection, and is therefore a secondary objective.

In the eventuality, only minimal impairment of enjoyment of the right, strictly warranted by the exceptional circumstances is permissible. Current restrictions on assembly rights are unconstitutional.

Mr Masake currently works with
Chapter Four Uganda.
[email protected]
Twitter: @masakeonline