Uganda: 5 Years Later, Case Against Public Order Law Not Heard

30 December 2018

A Constitutional petition filed against the controversial law on public order management is gathering dust at the Constitutional Court more than five years after activists and civil society organisations filed it.

"Not an inch," said lawyer and human rights activist Sarah Bireete, when asked how far the petition filed in December 2013 against the Public Order Management Act (POMA) has moved through the court system.

Despite the challenge, the law which came in force in the wake of the walk-to-work demonstrations against the rising cost of living in the country, remains in force and activists argue that it has been "selectively" and "partially" implemented to target and quell anti-establishment voices.

The major contention is, especially, on whether the police and other such authorities have the power to stop public gatherings as they have continuously done. Law enforcement agencies, particularly the police, have been faulted for assuming wide-ranging powers outside "notification" three days prior to the event for police to provide and advise on issues such as the venue, traffic and crowd control.

Questions about the intention and applicability of the controversial law have, for example, gained momentum after police and other State agencies relied on the same, among other things, to block music events of singer Robert Kyagulanyi Ssentamu, better known as Bobi Wine. Mr Kyagulanyi also represents Kyadondo East Constituency in the 10th Parliament.

The challenge

Ms Bireete of the Centre for Constitutional Governance together with six other organisations including Human Rights Network Uganda, Development Network of Indigenous Voluntary Associations (Deniva), the Uganda Association of Women Lawyers (Fida-Uganda), Chapter Four, Butambala MP Muhammad Muwanga Kivumbi and the retired assistant bishop of Kampala, Dr Zac Niringiye, are challenging the constitutionality of POMA.

The group wants court to declare the law inconsistent with the 1995 Constitution and in contravention of Uganda's international legal obligations.

"The action of the respondent in enacting and assenting to Section 5 and 6 of the Public Order Management Act, which sections are substantially and materially similar to Section 32(2) of the Police Act that was declared unconstitutional by the Constitutional Court in the constitutional petition number 9 of 2005 - Muwanga Kivumbi Vs Attorney General - is inconsistent with and in contravention of Article 92 of the Constitution," the petition reads in part.

"We went to court in 2013 after the enactment of POMA and we challenge sections that contravene the Constitution in as far as freedom of association and expression are concerned," Ms Bireete said.

She added: "We also challenge the retrospective legislation - the act of re-enacting sections of the Police Act repealed by the Constitutional Court in Muwanga Kivumbi vs Ag (2005)."

Mr Vincent Mugabo, the Judiciary spokesperson, said pending matters before the Constitutional Court will be held next year. He, however, did not specify whether this particular issue will be among those to be handled.

"Two constitutional [court] sessions are going to be held in April and in September to handle pending petitions," he said.

Ms Bireete told this newspaper that following numerous excuses from court officials, the matter had been brought to the attention of Chief Justice (CJ) Bart Katureebe.

"We have challenged the CJ to explain why petitions that are meant to solve political contestations are ignored save for those where the President or regime has vested interests and he has no answer - hiding behind lack of enough judges in courts. My take is that the petition challenging POMA has been intentionally ignored by the Judiciary because they fear deciding legal matters against State interest," she said.

Citing a challenge to the NGO law which took the same court 10 years to determine, Mr Patrick Tumwine, the programmes manager of Human Rights Network Uganda, said there tends to be inaction by the Judiciary on important cases which he said government is likely to lose.

"It shows lack of commitment on the part of government, specifically, the Judiciary to determine matters of public interest," he said.

Background of the law

Opposition: Despite strong opposition, both local and international, including Opposition Members of Parliament staging a boycott of three parliamentary sittings, the Public Order Management Bill was, controversially passed on August 5, 2013 and assented to on October 10, the same year by President Museveni.

Calls: A group of United Nations experts have since called for the amendment of the law to remove contentious clauses which they termed as "restrictive" to the freedoms of association.

Aim: Proponents of the law argue that it is aimed at regulating the conduct of public meetings, curbing lawlessness and encouraging discipline among political leaders. In the law, the police is empowered to allow or block any gathering of more than three people meeting to discuss political issues.

Roles: POMA, as the Act is commonly known, specifies the duties and responsibilities of the police, organisers and participants of public gatherings. It also prescribes measures for safeguarding public order without compromising the principles of democracy, freedom of association and freedom of speech.

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