SUMMARY FINDINGS ON REVIEW OF LAWS AFFECTING FREEDOM OF ASSEMBLY, ASSOCIATION AND EXPRESSION IN UGANDA

 

Background

Uganda is experiencing clear patterns of repression against peaceful assembly, association and expression as well as constrained work of activists and journalists. The government should do far more to protect freedoms of expression, association and assembly and provide justice for crimes committed by government agencies. Human rights defenders in Uganda are experiencing an alarming backsliding on human rights characterized by governments increased use of violence and repression to silence peaceful dissent while failing to ensure accountability for abuses of the security forces.

 

The right to freedom of peaceful assembly and association is both a human right itself and an enabler of citizens’ political participation in democratic governance. This right is also key to the achievement of economic, social and cultural rights. The right to freedom of peaceful assembly and association is enshrined in the main universal legal instruments for the protection of civil and political rights, namely, in Article 20 of the Universal Declaration on Human Rights (UDHR) and Articles 21 and 22 (respectively) of the International Covenant on Civil and Political Rights. At the regional level, freedom of expression is protected under the African Charter for Human and Peoples’ Rights (ACHPR) – also known as the African Charter. The Charter provides under Article 9 that:

(i)                Every individual shall have the right to receive information.

(ii)       Every individual shall have the right to express and disseminate his opinions within the law. From the African Charter, it can be noted that it subjects the enjoyment of this right to the law; that is, the freedom of expression according to the African Charter should be exercised within the limits of the law.

 

This has been criticized for allowing states to substantially limit the enjoyment of this right using laws, which has been common in many African countries. At the national level, the right to freedom of expression is guaranteed under Article 29 of the Constitution of Uganda 1995. It provides that every person has a right to:

(i)                Freedom of speech and expression which shall include freedom of the press and other media;

(ii)       Freedom of thought, conscience and belief, which shall include academic freedom in institutions of learning;

(iii)           Freedom to assemble and to demonstrate together with others peacefully and unarmed and to petition; and

(iv)            Freedom of association which shall include the freedom to form and join associations or unions, including trade unions and political and other civic organizations.

 

It’s against this background that Action Aid International Uganda (AAIU) commissioned a review on  how the various legislations impact on civic space for citizens participation in their governance and how this participation is governed, enabled or disabled to influence their political, social and economic lives. This review was conducted by Ms. Sarah Bireete – Center for Constitutional Governance (CCG) together with Mr. Sylver Kyagulanyi R.MACKAY Advocates/Copyright Institute Uganda, Mr. Moses Kiyemba, Gitta & Co Advocates and Mr. Peter Magelah - Chapter Four Uganda.

Key Findings

1. Public Order Management Act (POMA), 2012

Sections 3, 5, 6 and 8 of The Public Order Management Act contradict articles 29, 43, 212, 214 of the Constitution and article 21 of the International Convention on Civil and Political Rights (ICCPR) as follows:

Ø      Section 3 - power of IGP to regulate public meetings is very often misconstrued to include authority to allow or deny public meetings. This provision is susceptible to abuse and contradict articles 29, 43 and 212 of the Constitution namely: article 29 (i) (d) on freedom to assemble and demonstrate together with others peacefully and unarmed and to petition; article 43 on general limitations on fundamental and other human rights and freedoms; and article 212 on the functions of police. Interpretation of this section should be sought from constitutional court. There is need to sensitize the people on the difference between regulation and prohibition and functions of police as enshrined in article 212 of the Constitution.

Ø      Section 5 - Notice of public meetings:  The work of police during public meetings should be limited to providing security (keeping law and order). This provision is the re- enactment of the repealed section 32 of the Police Act in the Muwanga Kivumbi case. Provision also contradicts article 29 (i) (d) on freedom to assemble and demonstrate together with others peacefully and unarmed and to petition; article 43 on general limitations on fundamental and other human rights and freedoms; and article 212 on functions of police; article 214 on the role of parliament in regulating the police force; and article 21 of the International Convention on Civil and Political Rights (ICCPR) which provides for a right to peaceful assembly. The provision should be amended to limit the power  of police to providing security for public meetings

Ø      Section 6 gives police powers to authorize or deny public gatherings which is unconstitutional. This is a re – enactment of the repealed section 32 of the Police Act in Muwanga Kivumbi case. It contradicts article 21 of the ICCPR on the right to peaceful assembly. Police has no powers to prohibit peaceful assemblies or public meetings

Ø      Section 8 (1) -Powers of authorized officer: Police does not have the powers to stop or prevent public gatherings.  Articles 29(1) (d) on freedom to assemble and demonstrate together with others peacefully and Article 21 of the ICCCPR. *In a recent decision in the case of HURINET & 5 Ors vs AG, the Constitutional Court declared Section 8 of POMA unconstitutional but AG has since appealed the decision

Ø      Section 11- Responsibilities of organizers and participants: b) and (c) shifts the burden of keeping law and order from the police to the organizers. This contradicts functions of police as contained in article 212 of the Constitution. It should be challenged and repealed.

 

2. Non-Governmental Organizations Act, 2016

Ø      Sections 7, 44 and 45 of the NGO Act contradict national objectives and directives of state policy ii (vi) and Articles 23, 38 of the Constitution

Ø      Section 7 provides for powers of the Bureau to summon, discipline and punish NGO actors without stating the offences contradicts article 23 of the Constitution which states that all offences must be written down with their punishments. Only exception is the offence of contempt of court.

Ø      Section 44(a) on MOUs and approval of District NGO Monitoring Committee (DNMC) for already licensed organizations creates duplication of roles and multiple obligations. This needs revision to provide clarity on required permits and these should be issued by one agency.

Ø      Section 44 (b) gives more powers to the DNMCs rendering the Bureau advisory. Bureau powers should be distinct from those of the district.

Ø      Section 44 (g) – the requirements for NGOs to be nonpartisan under special obligations is susceptible to abuse on the political rights of NGO Leaders as citizens. Contradicts II (i) (v) and (vi) of the National Objectives and directives of state policy on civic organizations retaining their autonomy in pursuit of their declared objectives under democratic objectives and article 38 of the Constitution on the autonomy of civic organizations to determine their objectives. This should be repealed.

Ø      Section 54 on Ministers powers allows the minister to give the bureau mandatory instructions of a general or specific nature relating to its functions. This is subject to abuse. Minister’s powers should be limited to making regulations.

 

3. Computer Misuse Act, 2011

Ø      The definition section needs to be amended to include government which is the most culpable in violating provisions of the Act

Ø      Section 24 (2) (a) on making a request or suggestion which is obscene, lewd, lascivious or indecent - is vague and inconsistent with articles: 27(2) which provides that no person shall be subjected to interference with the privacy of that person’s home, correspondence, communication or other property; 29(1) on freedom of speech and expression which includes freedom of the press and other media and, 43(2) (c) – any limitations of the enjoyment of shall not go beyond what is acceptable and demonstrably justifiable in a free and democratic society or what is provided in the Constitution.

 

4. The Uganda Communications Act 2013

Ø      The interpretation section is too broad and unfair because it includes functions that are meant for association, expression, educative and charitable purposes. This promotes censorship and discrimination against social lives of the poor and vulnerable.

Ø      Sections 7 and 8 on powers of the Minister and Independence of the Commission create a contradiction about the independence of the Commission and powers of the Minister to give guidelines to the Commission, The independence of the commission created under section 8 is already taken away by mandatory directives of the minister under section 7. This contradiction should be resolved either through an amendment or repeal of 7 of the act.

Ø      The law has no appellant recourse for aggrieved parties in section 55(9). There is need for amendment to give aggrieved parties an opportunity to seek redress.

Ø      Section 60 establishes a tribunal but has never been operationalized. There is need for mandamus to compel government to establish the tribunal.

Ø      Section 80 prohibits interception of government communications yet the law does not define what constitutes government communications.

Ø      Section 31 in the 4th Schedule provides that a broadcaster shall not contradict public morality yet public morality is not defined and society norms differ from society to society. They also change over time.

Ø      Provision on false news in the 4th schedule contradicts the Supreme Court decision on publication of false news in the case of Charles Onyango Obbo and Anor vs AG, Constitutional Appeal No.2 of 2004 as well as Articles 29 and 43(2) of the Constitution and Article 19 of the Universal Declaration on Human Rights. The right to freedom of expression protects not only that which can be proven to be true. This should be repealed.

Ø      The law is not clear on what constitutes balanced reporting yet it’s a requirement under minimum broadcasting standards in the 4th Schedule. Law should be amended to define meaning of balanced reporting.

 

 

5. The Stage Plays and Public Entertainment Act, Cap 49

Ø      Under the interpretation section, definitions of public entertainment, stage play and theatre are broad and subject to abuse. Definitions should be clear and precise. This requires amendment for clarity purposes.

Ø      Section 2 on licensing of theatres and safety of persons attending them is too broad in regard to who should get a license. It covers all kinds of venues and acts. This should be amended to make it practical for both the artists and the law enforcers

Ø      Section 4 on necessity for permit for performance of stage play amounts to censoring of content. This is in violation of article (29(1) (a) and (b)) on freedom of expression and conscience and article. 2 of UN General Assembly resolution 53/144 declaration on rights and responsibilities of individuals, groups and organs of society. This should be repealed.

Ø      Section 7 provides for refusal of permits giving the Council too much powers to grant or not grant a permit. The provisions give the Council discretion to grant a permit when it deems fit. This is contrary to provisions in articles 28 and 42 of the Constitution on a right to just and fair treatment in administrative decisions.

Ø      Section 9 provides for permission for exhibition of posters. This may be potentially abused to curtail freedom of expression. May violate article 29 on freedom of expression since it requires approval and this goes to the content in the poster. This should be repealed

Ø      Section 13 provides for appeal to the Minister and Ministers decision is final. This undermines the right to seek redress and violates articles 28 and 42 of the Constitution. This should be repealed.

Ø      Section 16(2) creates Council’s power to order for surrender of the script. The provision where the council can give conditions as it deems fit to release the script is excessive and can potentially undermine freedoms of expression, speech and access to justice. This should be repealed.

 

6. The Regulations of Interception of Communications Act, 2010

Ø      The object of the Act is to provide for lawful interception and monitoring of certain communications in the course of their transmission through a telecommunication, postal or any other related service or system in Uganda; to provide for the establishment of a monitoring Centre; and to provide for any other related matters. This violates article 27 and is unconstitutional.

Ø      Section 4(3) provides for authorized persons to apply for warrant of interception. The language gives wide powers to officers that warrants a breach of right to privacy and contradicts article 27 of the Constitution. There should be a centralized place for data collection and handling. NIRA should handle all such data. Telecommunications companies should only access basic data

Ø      Section 9 provides for duties of telecommunications service providers in relation to customer. Provision allows telecommunication companies to receive and keep private data. Tis undermines the right to privacy. Only data necessary for registration should be collected. This undermines principles put under the Data Protection Act, 2019. Undermines Article 27 on right to privacy and Article 41 which limits grant of right of access to information where it will undermine the right to privacy and should be repealed.

Ø      Section 10 provides for Notice of disclosure of protected information. The section allows a 3rd party to disclose information to an authorized person without informing the person whose information is about and without getting a court order. Law should be amended to require a court order before such information is disclosed.

 

7. Anti-Money Laundering Act, 2013

Ø      Section 3 (a) provides for proceeds of crime. This is too wide a scope and provisions could lead to victimization. Other laws on money laundering look at economic crimes whereas Uganda looks at proceeds of crime. Law should be amended to target economic crimes only.

Ø      Section 6 (a) creates accountable persons including NGOs in part 15 of the second schedule. This creates legal burdensome provisions on NGO leaders yet same information is already available with banks and regulators. Advocate for NGOs to be scrapped off the list of accountable persons because all their records are already captured in the banking system.

Ø      Section 6 (b) creates numerous obligations of accountable persons that are broad in nature, problematic to fulfil and susceptible to abuse. Obligations should be narrowed down through amendments.

Ø      Section 7 provides for maintenance of records for a period of 10 years but the required period to keep records after transactions is unnecessarily too long. This should be harmonized with the period in the Limitation Act.

Ø      Section 8 provides for recording and reporting cash and monetary transactions. This is burdensome yet the required information is already available with financial institutions and regulating agencies; and can be easily accessible by the Financial Intelligence Authority.

Ø      Section 9 provides for monitoring and reporting of suspicious transactions. This is subjective and it gives way for selective application of the law which is susceptible to abuse. Transactions of NGOs are all in the banks and this makes it easy for the agencies to see all the transaction and block those they consider suspicious.

Ø      Section 21 (d) provides for guidelines for NGOs. The said guidelines for NGOs are not yet in place. NGOs are operating in the dark. The Financial Intelligence Authority should first put these NGO guidelines in place before implementing the law on NGOs.

 

8. Anti – Pornography Act, 2014

Ø      Definition of pornography is very broad and the law targets women, their bodies and particular cultures like that of the karimojong. This requires amendments.

Ø      Section 13 which provides for prohibition of pornography violates freedom of expression, right to culture, right to education, women rights and punishes victims. This should be amended for clarity on what amounts to pornography, a way from culture, among others.

Ø      Section 16 provides for authorities to issue directives to offenders by writing to editors or publishers not to publish what is perceived as pornographic material. This violates the right on freedom of expression as contained in article 29 of the Constitution and should be repealed.

Ø      Section 17 (1) promotes surveillance and this violates the right to privacy as enshrined in article 27 of the Constitution. It should be repealed.

Ø      Sections 17 (2) and 18 provide for suspend business. This provision violates article 40 of the Constitution on economic rights and should be repealed.

Ø      Section 24 provides for keeping a register of offenders. There should be hierarchy on these offences with a concentration on child pornography.

 

9. The Anti - Terrorism Act, 2002

Ø      Sections 8 provides for offences on aiding and abetting terrorism. This section is too broad and leads to victimization especially for political opponents. It should be amended for clarity to prevent victimization.

Ø      Section 19 provides for powers of authorized officer. Interception of communication violates the right to privacy as provided for under article 27 of the Constitution; and permission is sought from minister instead of court; violates articles 27 and 28 of the Constitution on right to privacy and a right to a fair hearing.

 

10.  The Copyright and Neighboring Rights Act

Ø      Sections 9 provides for economic rights of author. This right is violated through blocking of concerts which is an abuse by state agents. There is need to sensitize the rights holders to push back as well as challenge actions of state agents individually using the Human Rights Enforcement Act.

Ø      Section 21 provides for Neighboring rights and persons entitled to these rights. The same rights are violated through blocking of concerts by Police.

Ø      Sections 41 and 42 provides for copyright administration. The administrative gap of copyright has led to a trial to shrink the sector through use of ad hoc arrangements to regulate the industry. Most affected category are the musicians who amplify conscience messages. This contradicts obligations under the TRIPS (Trade Related Aspects of Intellectual Property Rights agreement and ARIPO (African Regional Intellectual Property Rights). There is a need to create a statutory body to administer copyright as it in other jurisdictions like Kenya.

Ø      Section 57 (2) provides for registration of Collecting Societies.  This provision violates article 26 of the Constitution on the right to own property as it warrants monopoly of only one collecting society to represent a bunch of rights. This section should be amended to reasonably allow other collecting societies and give members options for freedom of choice.

 

11. Press and Journalists Act, Cap 105

Ø      The interpretation section does not define who a journalist is and offers no professional privileges. It should be amended to define who a journalist is.

Ø      Sections 8 and 9 provide for establishment and functions of the media council. Media council is not fully constituted and unable to execute their full functions as contained in section 9 of the Act. This creates a gap in matters that require arbitration between the state and the media and other functions. There is need to advocate for Media council to be fully constituted and operationalized.

Ø      Sections 13 and 14 provide for establishment of the National Institute of Journalists in Uganda.  This institute does not exist yet the objective of the institute is to promote professional journalism and enforce ethics, among others. In the absence of the institute, who carries these functions? Stakeholders should apply for mandamus to have this institute established.

Ø      Section 26 provides for Registration of journalists. This undermines citizenry journalism and the media right to seek, receive and impart information. This contradicts article 29 (1) of the Constitution, article 19 – UDHR and art 19 of the ICCPR which provides that “Everyone has a right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive, and impart information and ideas through any media and regardless of frontiers”. In order to make freedom of expression a reality, there must be:

(i)    A legal and regulatory environment that allows for an open and pluralistic media sector to emerge

(ii) A political will to support the sector and rule of law to protect it

(iii)                        Laws ensuring access to information especially information in the public domain and

(iv)                        The necessary media literacy skills among news consumers to critically analyze and synthesize the information they receive to use it in their daily lives and to hold media accountable for its actions

 

12. Data Protection and Privacy Act, 2019

Ø      Sections 3 provides for principles of data protection. There is no sanction on violations of the principles of data protection. The law should be amended to provide for sanctions against abuse of principles of data protection.

Ø      Section 7 provides for consent to process data. There is need for a move from consent to prior informed consent. Personal data might be collected and processed where there is a requirement by law for security, public duty, etc. This is subject to abuse and likely to undermine the whole provision on consent. Provisions are wide in language and susceptible to abuse. There should be provisions for withdraw of consent.  The provision violates the Hippocratic Oath of doctors who always require consent of patients. There is need to sensitize people about their rights to privacy and advocate for an amendment of the provision.

Ø      Section 9 provides for Prohibition of collection and processing of special data.  Much as the provision prohibits collection of personal data without consent, it allows data to be collected under other laws or by the employer. Law gives with one hand and takes away with other. This contradicts the right to privacy as contained in article 27 of the Constitution. It should be amended or repealed.

Ø      Section 23 provides for notification of authority about security breach of data. Notification is not to the data subject but to the authority. There is no accountability to the subject. This should be amended to provide for notification to the data subject.

Ø      Section 24 (3) - right to access personal information. The implication is that personal information may not be given to the subject if the identification information given is not satisfactory. This provision should be amended to provide for other forms of identification.

Ø      Section 25- right to prevent processing of personal data. This right can be suspended by a person holding your data. It should be amended.

Ø      The law does not provide for transition of data already held by so many agencies like driving permits, National IDs, NSSF and URA. Data held by several agencies should be consolidated under one central entity.

 

13. The Uganda Peoples Defence Forces Act, 2005

Ø      Section 160 provides for protection of defence stores. It states that the minister shall, by notice published in the Gazette, declare and make known what mark or marks when applied to any arms, clothing, equipment, vehicle, aircraft, or boat shall denote then as property of the state. In the extraordinary gazette published in September 2019, the minister of defence gazettes UPDF uniform to include clothing and headgears leading to the purports ban of red berets – a symbol of the people power movement. The gazette is outside the provisions of sections 160 and 164(5) of the UPDF Act. This violates articles 29 and 209 of the constitution and contradicts article 29 of the ICCPR on freedom of association. The gazette should be challenged in courts of law. Officers who carry out any arrests of people power activists should be sued in their individual capacities under the Human Rights Enforcement Act.

 

14. The Police Act, Cap 303

Ø      Sections 23 – arrest without warrant - A police officer may, without a warrant, arrest a person, if he or she has reasonable cause to suspect that the person has committed or is about to commit an arrest-able offence. The section is open and gives police unlimited powers to arrest citizens whenever they suspect they are about to commit crimes in total disregard of constitutional provisions under article 23 of the Constitution on protection of personal liberty. The provision also violates international protocols on liberties of citizens. This is unconstitutional, subject to  abuse and should be challenged in the constitutional court for repeal

Ø      Section 24 (1) (d) (e) - preventive arrest from committing an offence against public decency in a public place; from causing unlawful obstruction on a highway. Aspects of the provision violate article 23 of the Constitution and should be challenged.

 

15. The Penal Code Act, Cap 120

Ø      Section 37 - Delivery of publication of information prejudicial to security. The law has broad provisions which can be used to abuse civic rights e.g. words such as engaging in war like activities or disrupting public order are not defined. The provision contradicts the article 29 of the Constitution on freedom of expression and should be challenged.

Ø      Section 53 – Defamation of princes. International approach is that defamation should be a civil wrong and should be decriminalized. All defamation provisions in the Penal Code Act should be repealed

Ø      Section 56, 57 and 58 - Unlawful Assembly. The police uses this provision wrongly to infringe on peoples fundamental right of freedom of assembly and expression. There is need to sensitize the people about contents of this section to prevent abuse by the duty bearers.

Ø      Sections 165 – Chain letters. The provision prohibits sharing of information and fundraising for legal activities. This provision violates freedom of expression as enshrined in article 29 of the Constitution and should be repealed.

Ø      Section 180(1) – Criminal libel a matter likely to injure the reputation of a person by exposing that person to hatred, contempt, ridicule, or damage any person’s profession. Deliberate publication of defamatory lies which the publisher knows to be false. This section is related to the repealed section 50 on publication of false news except that this is to an individual as compared to alarming the public in the repealed S.50. The provision leaves unfettered discretion which opens way for those in power that perceive criticism in bad light. It’s subject to abuse. The decision in the challenge of false news equally applies to other laws that limit the right of freedom of expression. This provision contradict article 29 of the Constitution on freedom of speech as well as the standard set in Clause 2 of article 43 of the Constitution and universal values and principles to which every democratic society adheres to. It also contradicts rights of freedom of speech, expression, media and other press and acceptable constitutional limitations in a free and democratic society.

(i)    Freedom of expression extends to holding, receiving and imparting all forms of opinions, ideas and information. It’s not confined to categories such as correct opinions, sound ideas or truthful information.

(ii) Subject to limitations under Article 43, a person’s expression or statement is not precluded from constitutional protection simply because it is thought by another or others to be false, erroneous or unpleasant.

(iii)                     There is need to sensitize people about the fundamentals of freedom of speech and expression

(iv)                     There is need to have all sections related to publication of false news challenged and nullified by the constitutional court

 

16.  The Criminal Procedure Code Act, Cap 116

Ø      Section 11 of the Criminal Procedure Code Act on arrest of vagabonds and habitual robbers undermines the notion of presumption of innocence, is unconstitutional and should be repealed. The whole provision undermines the presumption of innocence, promotes jeopardy and contradicts article 28 of the Constitution on a right to a fair hearing.

 

General Recommendations

1. Advocate for amendments of the reviewed laws to align them with the Constitution.
2.  Challenge infringing provisions of the laws in the Constitutional Court and have them repealed.
3. Advocate for NGO leaders to be scrapped off the list of accountable persons in the Anti-Money Laundering Act because all the required records are already captured in the banking system.
4. NGO Bureau powers should be distinct from those of the District NGO Monitoring Committee and should be qualified to restrict powers to the offences created under section 40 of the Act.
5. Section 3 of Public Order Management Act (POMA) should be amended to clearly state that power to regulate conduct of meetings does not include power to authorize or deny meetings. The role of Police should be limited to providing security for public meetings in line with Police functions as contained in article 212 of the Constitution.
6. There is a need to create an independent statutory body to administer copyright as it with other jurisdictions like Kenya and the need to reasonably allow formation of other collecting societies to give members options.
7. There should be a centralized place for personal data collection and handling. NIRA should handle all such data. Telecommunications companies should only access citizens’ basic data.
8. Section 24 (2) (a) of the Anti-Pornography Act should be expunged from the act; provisions create floodgates of misinterpretation (obscene, indecent, etc.)
9. In order to make freedom of expression a reality, there must be: a legal and regulatory environment that allows for an open and pluralistic media sector to emerge; a political will to support the sector and rule of law to protect it; laws ensuring access to information especially information in the public domain and the necessary media literacy skills among news consumers to critically analyze and synthesize the information they receive to use it in their daily lives and to hold media accountable for its actions.

10. The Data Protection Act should be amended to provide for sanctions against abuse of the principles of data protection.
11. Challenge the extra ordinary gazette by the Minister of defence dated 18th September in courts of law and prepare to sue individuals who will arrest any people power activists for wearing the berets in their personal capacities. The suit should also include the economic component of traders who had stocked berets and loses occasioned to them by the retrospective ban.
12. Challenge unconstitutional provisions in the police act, penal code act and the criminal procedure code act and have them expunged from the law books.

 

For More Information, please visit www.uganda.actionaid.org for a detailed report on the review of civic space laws in Uganda