Why Museveni ban on ‘disorderly’ law may not stop police arrests

Thursday October 03 2019

Idle and disorderly. Police arrest men presumed idle and disorderly during a crackdown in Kapchorwa District in 2017. President Museveni on Tuesday ordered police to stop arresting people on idle and disorderly law. FILE PHOTO

President Museveni on Tuesday ordered police to stop arresting people over the idle and disorderly law.
However, legal experts say there are several other provisions in the Penal Code Act that police are using to detain people on similar offences.

Dr Adrian Jjuuko, the executive director of Human Rights, Awareness and Promotion Forum, said the presidential directive is a step in the right direction, but there are more than seven offences in the Penal Code Act that are in the same family like the idle and disorderly law that need to be repealed.

“We want to go to different government agencies such as the Director of Public Prosecutions and Attorney General to work on a range of all these laws,” Dr Jjuuko said yesterday.

In the directive, the President also asked the Attorney General to start the process of repealing the law on being idle and disorderly.
Dr Jjuuko said the President meant repealing all laws in the same family.
In 2009, police officers started using the Rogue and Vagabond law under Section 168 of the Penal Code Act after President Museveni asked them to stop arresting people under the idle and disorderly law.
The two laws apply to similar category of offenders.

Other laws
Dr Livingstone Sewanyana, the executive director of Foundation for Human Rights Initiative, said laws like one of being a rogue and vagabond, which are not in conformity with the democratic society should also be repealed.

The law on idle and disorderly under Section 167 of the Penal Code Act, which President Museveni wants repealed, targets prostitutes, beggars, those involved in gambling games, persons likely to breach peace and those, who wander around pretending to have physical deformities in order to solicit food and money from the public.
The law attracts a seven-year sentence on conviction for prostitutes, those, who publicly engage in indecent acts and those who loiter for immoral purposes. The other categories attract a three-month sentence or a Shs3,000 fine or both on conviction.


Until 2009, police were also using the idle and disorderly law to target suspected protesters, participants in illegal assemblies and those who take the President’s photographs without permission.
In January 2006, Mr Deus Tubemanzi was charged with being idle and disorderly when he took a photograph of President Museveni during a campaign rally in Kabale District. He was sentenced to a month in jail after pleading guilty. However, the sentence was quashed after the High Court reviewed the law.

“Merely taking a photograph of the President without permission does not constitute an offence under section 167 (d) of the Penal Code Act (Cap. 120),” Judge Edmund Sempa Lugayizi ruled in the revisional order in 2006.
In 2009, when President Museveni directed the police to stop arresting people using the idle and disorderly law, police turned to the law of Rogue and Vagabond under Section 168 of the Penal Code Act, which also targets the same people, such as beggars, people who have no visible means of subsistence and cannot give a good account of themselves.

“Every person found wandering in or upon or near any premises or in any road or highway or any place adjacent thereto or in any public place at such time and under such circumstances as to lead to the conclusion that such person is there for an illegal or disorderly purpose, shall be deemed to be a rogue and vagabond, and commits a misdemeanor and is liable for the first offence to imprisonment for six months, and for every subsequent offence to imprisonment for one year,” reads Section 168 (d) of the Penal Code Act.
Dr Jjuuko said offences like common nuisance under Section 160 and loitering under Section 301 of the Penal Code Act need to be repealed since they give the same punishment to the same group of people.

For instance, Section 139 of the Penal Code Act on prohibition of prostitution gives a seven-year sentence for offenders as does the idle and disorderly law to those engaged in commercial sex.
Mr Isaac Semakadde Kimeze, a renowned lawyer for providing pro bono (free legal services) to vulnerable groups, said the presidential directive is too little too late for the victims of the bad law, especially in urban areas.

“Articles 274, then 2 and 20 of 1995 Constitution gave the President and his executive power to repeal laws that aren’t in conformity with the Constitution. We have seen government enforcing such colonial laws for political, economic and social exclusion of sections of people in society,” Mr Kimeze said.

Article 275 of the Constitution states that: “The first President elected under this Constitution may, within 12 months after assuming office as President, by statutory instrument, make such provision as may appear necessary for repealing, modifying, adding to or adapting any law for bringing it into conformity with this Constitution or otherwise for giving effect to this Constitution.”
Mr Kimeze said the presidential directive is not a law per se and, therefore, the President should have made use of his attorney generals soon after the promulgation of the Constitution in 1995 to repeal the laws that criminalise poverty.

Most popular times
Idle and disorderly law was most used between 2000 and 2006 against Opposition supporters, who protested in public spaces such as Constitution Square and Freedom Square. They were charged with breaching peace contrary to Section 167(d) of the Penal Code Act.
Police are in the habit of switching to another law after an existing one has been declared unenforceable either by the President or courts of law.

When the courts nullified the Police Act which was used to suppress political Opposition by blocking them from holding or addressing public gatherings, the police in 2013 quickly adopted a newly enacted Public Order Management Act, which criminalises the same activities.
Mr Kimeze said the presidential directive to discontinue charges against suspected idlers is an indictment to the Director of Public Prosecutions (DPP) that the directorate is not independent as per the law.

“The DPP can’t be ordered by anyone on what to do by law. This directive has proved what we have always said that the DPP isn’t independent,” he said.
The spokesperson of the DPP, Ms Jane Kajuga, said they had seen the reports on the presidential directives, but they had not received an official copy. “Once we do, we shall advise you on the steps going forward,” Ms Kajuga said.

How a law is repealed
For any law to be repealed or scrapped from the statutory law books, the Uganda Law Reform Commission has to recommend to the Attorney General about the targeted law that requires repeal.

The Attorney General presents the proposal to cabinet where it is debated for approval and passed.
The Attorney General thereafter presents it to Parliament where the Members of Parliament debate and pass the repeal.

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