HUMAN RIGHTS AND CRIMINAL JUSTICE

The Public Order Management Act (POMA) of 2013 was enacted by Parliament assented to by the President making it a law. The Act provides for the regulation of public meeting duties and responsibilities of the police and organizers including participants. Police officers majorly invoke Section 24 which offers for preventive arrest, Section 33 empowers police to stop and order to disperse assemblies and processions unlawfully convened among others.

Demonstrations may take the form of political rallies, crusades among other activities. However, this right is derogable and can be limited should the powers that be deem it necessary the individual right to assemble and demonstrate is infringed upon by the provisions of the P.O.M.A in the following ways:-

01.   Public Order Management Act – requires the organizers or agents to notify police about the intended demonstration three days before the D-day.  This leave police with discretionary powers to refuse such a peaceful demonstration, in pretext of exaggerated intelligence survey of a possibility of chaos and terrorist attacks.  Thereby the right under Article 29 of the 1995 Constitution is infringed upon. For example in 2009 during the Kabaka’s planned visit to Kayunga – Bugerere, police intercepted the Katikiro                Mr. Walusimbi, this didn’t go well with the kingdom in subjects, the situation became chaotic, several people were arrested, and a police station at Nateete a Kampala suburb was burned leading to loss of lives, one would wonder what criteria or standard they used to arrest the rioters cause Kampala is not only for Baganda who were by then aggrieved.

02.   The provision under section 24 of Police Act allows police to effect arrest as a preventive action.  This occasionally has been invoked rather unfairly targeting the politicians with dissenting views especially those on opposition for instance on 3^rd April 2011 government outlawed the opposition linked Activists for Change (A4C) group while relying on section 56 of the Penal Code Act.  This followed arrests of Dr. Besigye, Mr. Munyagwa and Mr. Lukwago and many others that they couldn’t leave their homes to go to their gainful duties.

03.   Criminalizing organizers of the demonstrations in case prior notice is not given to police under section 5(1) of the Public Order Management Act.  Such a public meeting without recourse to the compliance automatically makes it unlawful and basing on section 33 of the Act gives/mandate police to stop and order to disperse such assembly.  This is a direct infringement on the right to assemble and demonstrate. On 4^th October 2011 security officers in Kampala arrested one Moses Tumukunde a driver to opposition leader Kizza Besigye for participating in what they called an unlawfully assembly, surprisingly he was released without a charge though tortured and incarcerated beyond 48 hours by police.

04.  Excessive powers to police under section (1) and (4) of the Public Order Management Act in relation to a mere refusal to comply with such an order to stop and disperse also considering that some instances the enforcement officers are not properly identified from the jilted excited crowd has left several individuals arrested and detained in several places of the country.  For example on 20^th April 2011 the police assaulted leader of opposition Forum for Democratic Change one Ingrid Turinawe as the AGC activists group attempted to organize a public rally in Nansana a Kampala suburb.

05.  The use of that “force” to disperse demonstrations; under the Public Order Management Act – and the Police Act, as mandated to police is not prescribed which particular force is reasonable, this has given the police options to the extent that even live ammunitions can be used to unarmed demonstration, this was evidenced in Bulange Mengo when a security officer one Magara Ramathan killed some people in the pretext of quelling the demonstration.  Furthermore the 21^st March 2011 incident while Police was down town stopping the demonstration, one police officer John Bosco Ariong lost his life a sign that the public was tired of the actions of police.  Also coupled with the use of chemicals to spray demonstrators’ eyes, body, which might be a healthy hazard, leaves one worried whether they are medically sage. The live example while stopping Besigye Kiiza Kifeefe to go to town the police officer ASP Arinaitwe broke the windscreen of his car and sprayed teargas directly to his eyes at Mulago round about which almost cost his life to the extent of being referred to South Africa as the case couldn’t be handled in our hospitals.

06.   Double standard (unfair and unequal treatment) while authorizing demonstrations, in Uganda a demonstration for members of the ruling party will be guided well and any mistakes done, teargas will not ruin such a demonstration and the time prescribed 7.00p.m under the P.O.M.A and Police statute tend not to be an issue while it’s the contrarily with a demonstration of the opposition members. So one wonders if at all such “special treatment and vice versa is in line with the provisions of section 9(b) of the P.O.M.A.

07.   Sometimes police has gone ahead to limit or refuse the demonstrators to use amplified voice machines citing nuisance, one wonders if the police have a gauge to detect the so called nuisance and what degree, how could the demonstrators pass on their message, it should be noted that  demonstrations in Uganda turn into riots after police interfere with the procession.  The spray of teargas, pink spray and heavy deployments of mambas and armoured vehicles worsen the situation and crowds become unruly resorting to loot property, destroying infrastructure, etc. It should be noted however that the constitution petition of Muwanga Kivumbi Vs Attorney General – 9 of 2005.  Court annulled Section 32 (a) of the Police Act which they held was inconsistent with Article 29(1) of the 1995 Constitution on freedom of Association and Assembly.

There are avenues to redress police misconduct and violations.

Section 49 of the Police Act establishes the police disciplinary courts, these courts have their hierarchy right from the unit, division, regional and headquarters which is the last level of appeal.  These courts are established in order to enforce discipline to errant officials especially who infringe on the rights of the citizens for instance an incident at Mukwano factory where former worker/employee of the factory was beaten and mishandled, the officers were tried and convicted and some of the action taken in such courts includes:

1-            Demotion

2-            Fines

3-            Caution

4-            Dismissal among others.

Also to mention on 6^th November 2011, the government officially apologized to Turinawe for police misconduct and a statement by the Prime Minister was to the effect that one Arinda, a police officer Turinawe’s tormentor would appear before a police disciplinary on charges of discreditable conduct and behaving in a cruel, disgraceful and indecent manner under the Police Act.

Secondly, the enactment of the Anti-Torture Act by the Parliament is another way an infringement of a right by police can be handled; several police officers have been dragged to court using this Act.  And the establishment of the professional standards unit, the legal department of police, human rights desk at the police and the courts are some of the avenues where one who claims his/her rights are violated especially right to demonstration and assemble.

However, it is also worth to note, that the public has some responsibilities and duties to ensure that the assemblies and demonstrations are carried out peacefully, without interfering with rights of other stakeholders.

Article 17(f) of the 1995 Constitution provides that “it’s a duty of all citizens of Uganda to cooperate with lawful agencies in the meatiness of Law and Order” section 6(4) of the P.O.M.A. provides or mandates the organizer of such assembly to appeal to a magistrate incase he/she is dissatisfied with the decision of the authorized officer.

Section 10 of the P.O.M.A places responsibility on the side of the organizer for instance informing the participants on the traffic plan, coordinating with the authority and ensuring that the participants are peaceful and unarmed and respect the guidelines so as not to infringe on other stakeholders’ right it is also worth to note again that this right to assemble and demonstrate is not derogable, that it can be halted in case of emergencies and security risks of the public.

Having been mandated to regulate, assemblies and demonstrations one would wonder why it degenerates into violation of a right to assemble and demonstrate. The following are reasons in support of police action in regulating the right to assemble and demonstrate.

By targeting business centres in order to vandalize and loot property, Ugandan demonstrations are coupled with hooliganisms and unruly crowds which the organizers can’t control. This has resulted into chaotic situation and loss of property. Therefore, one who wants to demonstrate would rather consider or put in mind those who are not demonstrating.

Expenses incurred while stopping such riot/anarchy has cost a lot from the tax payer.  Whenever such liberty is left unattended to the business community loses millions in terms of closing fire gutting property why then allows such a right.

Violence exhibited coupled with lack of cooperation on police directives.  Whenever police directs the demonstrators to certain routes, the crowd becomes defiant for instance when Besigye Kiiza was told to move via Mulago then to Yusufu Lule Road, when he reached a the roundabout of Mulago wanted to go to Wandegeya and other defiant with the other oppositions at several intervals including the Black Monday demonstrations which has tarnished the image of the country.

The Mabira demonstration started well however it turned violent and the minority race of Indian origin was targeted, this implies we need regulations in whatever we do in response to our rights and rights of others.

Political motivations with genuine demonstrations imply the government will automatically have an interest in such demonstration as such activities would aim at discrediting the government. Therefore a just cause is interfered with and hence a reason to halt such nonsense.

Article 212(b) of the Constitution, the Police Act and the provisions of the Public Order Management Act empowers the police to regulate, stop, authorize, identify traffic plan, and assess risks. It’s therefore important to allow police to do their duty as they are simply implementing the provisions therein and infringements occur due to defiance, uncoordinated and uncooperative organizers.

In conclusion, its pertinent to note that the provisions of the Public Order Management Act and the Police Act to a large extent  indeed infringe on the individual right to demonstrate and assemble especially section (5) and (6) as well as section 65 pertaining to unlawfully assembly, 32 which empowers police to regulate assemblies and processions, section 35 which empowers, the internal affairs Minister to gazette – areas from which no assembly can take place without the permission of the police and as such police  has used the opportunity to abuse the individual right to demonstrate and assemble although the government through Parliament where it has a majority number has struggled to make the provisions on the two Acts compatible and on conformity with the Constitution as enumerated above.