Why the Public Order Bill needs a major surgery

Sunday November 20 2011

An officer beats one of the National Alliance for Free and Fair Elections demonstrators

An officer beats one of the National Alliance for Free and Fair Elections demonstrators in Mbale last year. 

By Yasiin Mugerwa

So much water under the bridge. Professionalising the Forces: In a society that is becoming more complex, less comprehensible and more diverse, the policing function has also become more complicated and vulnerable. Further adjustment of professional capabilities are therefore required for police officers mandated to keep law and order.

Psychologists support the contention that civil disorder can emerge during crowd events as a consequence of the indiscriminate and disproportionate use of police force under the guise of maintaining law and order. However, people like Dr Clifford Stott, a prominent psychologist of crowd behaviour and public order policing, believes that increasing police capability for ‘dialogue’ and communication with crowds and formally recognising this as a primary tactical option for public order policing is fundamental.

Having said that, in its efforts to maintain law and order in the midst of civil disturbances in the country, the Ministry of Internal Affairs has proposed a bill for the management of public order—The Public Order Management Bill, 2011. While the import of this ignominious Bill appears irredeemable, as we are going to find out in this column, the objective of the proposed Bill is to provide for the regulation of public meetings, duties and responsibilities of police, organisers and participants in relation to public meetings.

The Bill tabled on October 25 was sent to the Legal and Parliamentary Affairs Committee for further scrutiny although it should have been handled by the Committee on Defence and Internal Affairs. But that’s not much of a problem. The difficulty here is that unlike other Bills, the handling of this piece of legislation undoubtedly needs clear-headed and nonaligned minds.

Even though legal minds, civil society groups and political analysts have disparaged this Bill as unconstitutional, the government insists it intends to lay down measures for safeguarding public order without compromising the principles of democracy, freedom of association and freedom of speech.

But if truth is to be told, the Public Order Management Bill in its current form poses serious challenges to Ugandans in the exercise of their fundamental freedoms and human rights guaranteed by the 1995 Constitution and in several regional and international human rights instruments.

For instance, Clause 4 of the proposed law which gives the Inspector General of Police (IGP) powers to direct the conduct of all public meetings clearly seeks to reintroduce the provisions of the Police Act, Cap 303 which were nullified by the Constitutional Court in the case of Muwanga Kivumbi v. The Attorney General of Uganda (Constitutional Petition No. 9/05). I am reliably informed that the Legal Committee chaired by Kajara MP Stephen Tashobya will soon be holding public hearings on this Bill. But MPs should not read this draft Bill in isolation of Article 29 of the 1995 Constitution.

IGP usurping court’s role?
More so, the architects of this Bill seek to usurp the basic functions of a trial and appellate court and grant them to the IGP. When you critically read Clause 5 of the draft Bill, you realise that there is something amiss. This particular Clause gives the IGP powers to grant permission to hold a meeting and to hear appeals from a refusal to grant the permission. The Committee also needs to revisit Clauses 7 and 8 which require the IGP’s approval for any “public meeting” of three people or more. This is uncalled for and even if it’s approved in its current form, it will definitely fail the public interest test.

Indeed, one of the devoted readers of this column, Siraje Nsanja, a lecturer at Kampala University, in an online chat on this matter, reminded MPs on the Legal Committee that attempts by the government to reintroduce provisions in the Police Act which were declared null and void by the Constitutional Court is contrary to Article 92 of the 1995 Constitution, which prohibits the enactment of legislation designed to defeat or overturn a judicial ruling.

For the benefit of the proponents of this Bill, this Article 29 of the Constitution reads thus: “Every person shall have the right to—freedom of speech and expression which shall include freedom of the press and other media; freedom of thought, conscience and belief which shall include academic freedom in institutions of learning; freedom to practice any religion and manifest such practice which shall include the right to belong to and participate in the practices of any religious body or organisation in a manner consistent with this Constitution; freedom to assemble and to demonstrate together with others peacefully and unarmed and to petition; and freedom of association which shall include the freedom to form and join associations or unions, including trade unions and political and other civic organisations.”

While Section 15 of the proposed law gives minister for Internal Affairs immense powers to issue statutory instruments, gazetting some areas and declaring others as unlawful for any person or persons to convene a public meeting, Article 29 (2) says, “Every Ugandan shall have the right— to move freely throughout Uganda and to reside and settle in any part of Uganda…”

Reading through this 19-page proposed draft Bill, I have come to realise that it grants the IGP and the minister of Internal Affairs wide discretionary and uncalled-for powers over the management of public meetings. In the same way, unless it’s amended, this Bill places numerous extensive and impractical obligations on the organisers and participants in public meetings, which are impossible to satisfy.

For instance, as clearly highlighted under Section 12 of the Bill, how can the organisers provide a steward for every 50 demonstrators or participants in every meeting? How can organisers ensure that people are unarmed and peaceful? Why should it be a responsibility of the organisers to compensate people who may suffer loss or damage from any fall out of a public meeting? Who is supposed to keep law and order? I though the fundamental role of the state is to protect Ugandans and their property.

Who will be affected?
To put the public concerns about this Bill into perspective, in his email, Mr Nsanja says the only public meetings that the Bill proposes to regulate are those which focus on the effectiveness of government and its organs and political organs. According to Mr Nsanja, this goal by any measure is at odds with Paragraph II of the National Objectives and Directive Principles of State Policy of the Constitution, which provides: “The state shall be based on democratic principles which empower and encourage the active participation of all citizens at all levels in their own governance.”

The concern here is that if MPs choose to engage in tittle-tattle instead of paying attention to this Bill, the implications Would be far reaching for the ordinary Ugandan. Since this draft law is in breach of the Constitution, passing it in its current form will not guarantee public order but make the situation worse.