National security shouldn’t strangle democracy

Wednesday January 27 2021
comm03pix

Mr Daniel Walyemera

By Guest Writer

The notion of democratic accountability espouses the idea that elected leaders are answerable to the citizens of a State in the execution of their periodic mandate. All public officers who serve under elected leaders, including intelligence and security officers, are also answerable to the people and execute their mandate for the benefit of the citizens of a State.

Regrettably, on the African continent, several intelligence and security officers are under the mistaken impression that they execute their mandate to solely serve the interests of the elected leaders and not the citizens.

Principles II(i) and XXVI(i) of the National Objectives and Directive Principles of State Policy of the Constitution of Uganda, 1995 (as amended) provides that all public offices are held in trust for the people and all persons occupying them are answerable to the people of Uganda. The Constitution further provides for the principle of democratic accountability in several constitutional provisions, including Articles 1, 2, 3, 17, 20-45, 59, 79, 99, 126, and 221, among others.

In order for elected leaders and other public officers to be held accountable to the people, there must be a free flow of information between the elected leaders and citizens. When the platforms like media houses and Internet through which the free flow of information is exercised are shut down, the concept of democratic accountability is violated. Moreover, if the elections are to be called free, fair and transparent, this free flow of information is essential before, during and after those elections.

The free flow of information during the electoral period prevents the rigging of the electoral process and subsequent ‘manufacture’ of the free will and consent of the citizens. This idea of the free flow of information in society has been established in various international, regional and sub-regional human rights instruments, to which Uganda voluntarily signed as a State party.

The concept of the free flow of information in society is known as the right to freedom of expression. This freedom of expression can justifiably be limited by the State in certain circumstances. These circumstances include national security.

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In order for the State authorities to justifiably limit this fundamental right on the grounds of national security, the restriction must pass the so-called “Oakes” test. The “Oakes” test is a three-part test that a restriction to freedom of expression must pass, in order for the restriction to be legally justified. The “Oakes” test revolves around the question(s) on whether the restriction is provided for by the law, is necessary and “proportionate to the legitimate aim pursued” by government.

In other words, the government must, within the boundaries of the law, engage in a balancing act between two important social values to the existence of the society - the free flow of information and national security.

The challenge is that national security is a broad social value that is shrouded in secrecy, and is often used to achieve selfish political interests of (s)elected leaders in Africa. National security is often used to suppress critical voices within society, and often these critical voices belong to Opposition politicians and journalists.

In view of this overly broad and vague restriction on freedom of expression, experts from all-over the world converged in Johannesburg, South Africa, with the aim of clarifying the legitimate restriction of national security on freedom of expression.
On October 1, 1995, the experts birthed a soft law instrument known as “The Johannesburg Principles on National Security, Freedom of Expression and Access to Information.”

These Johannesburg Principles have set precise parameters upon which national security may be used to justifiably limit the free flow of information in public interest. I encourage Ugandan intelligence and security officers to read these principles.
The Johannesburg Principles will enable intelligence and security officers to write more citizen-centred recommendations to our elected leaders to make sober decisions, to avoid rule by anarchy in our beloved nation.

Mr Daniel Walyemera is the managing partner at Walyemera & Co Advocates. dwalyemera@walyemeraadvocates.co.ug

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