Summary of Pom Bill and Why You Have to Say No to It!

8/3/2019 Summary of Pom Bill and Why You Have to Say No to It!

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TWELEVE (12) REASONS WHY THE

PUBLIC ORDER MANAGEMENT BILL 2011;

SHOULD NOT BE PASSED IN ITS CURRENT FORM

A SUMMARY OF CONCERNS ON THE PUBLIC ORDER

MANAGEMENT BILL-2011

Below are some of the pressing anomalies incarnate within the Public

Order Management Bill-2011 as it stands currently. The Bill is meant to

‘provide for the regulation of public meetings: duties and responsibilities of police; organizers and participants in relation to public meetings; to

prescribe measures for safeguarding public order without compromising

the principles of democracy, freedom of association and freedom of

speech.’ The Bill has been tested against International Human Rights Law,

CIVIL SOCIETY REFLECTIONS ON THE PUBLIC ORDER

MANAGEMENT BILL-2011;

WHY YOU HAVE TO SAY NO TO THE POM-BILL IN ITS

CURRENT FORM

Her e Are 12 Reasons Why &

What You Can Do About It



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Regional Human Rights Law Standards as set by the United Nations and the

African Union General Assemblies and the Constitution of the Republic of

Uganda 1995 as amended in 2005 which is the supreme law of Uganda. On

the whole, the POM Bill is unconstitutional for it contradicts a substantial

number of human freedoms and rights both directly and indirectly as

provided for under the Bill of Rights in the Constitution of the Republic of

Uganda as explained briefly below.

A. THE GOOD IN THE BILL:

On a progressive note, the Bill under section 3 notes that the principle of

public order management shall rest largely on the notion of shared

responsibility between the police, organizers and participants of the public

meeting, local authorities, owners and custodians of the venues of public

meetings. This partnership is the cornerstone of maintaining security and

safety. It is an affirmation that security is not a reserve for the state or the

security agencies but rather for all the public. This section though

progressive, it is not a standalone and has to be viewed in tandem with the

other sections within the Bill.

B. THE POTENTIAL CHALLENGES ARE DISCUSSED BELOW;

1. Reason 1: Constitutionality of the bill in relation to the right to

freedom of speech and expression; thought and belief; assembly,

association and demonstration

By legislating to control as opposed to democratic regulation of public

assemblies/ meetings that focus on the efficacy of government and its

agencies and political organs, the Bill infringes on Article 29 (1) (a) (b) (c)

(d) and (e) of the Constitution of Uganda which provides for the freedom



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of speech and expression; freedom of thought,

conscience and belief; freedom to assemble and

to demonstrate together with others peacefully

and unarmed and to petition; freedom of

association which shall include the freedom to

form and join associations or unions, including

trade unions and political and other civic

organizations respectively.1 The Bill subjects the

exercising of the above rights to the discretion

of the Inspector General of Police who can

prohibit or allow the holding of a public

meeting.

Incarnate in the section (6) (1) is barring of political participation since a

discussion on ‘the principles, policy, actions or failure of any government…’

is indeed political participation. Thus, the section infringes on Article 38 of

the Constitution of Uganda. It provides that ‘every Ugandan citizen has

the right to participate in the affairs of government, individually or through

his or her representatives in accordance with law.’ It further provides that

‘every Ugandan has a right to participate in peaceful activities to influence

the policies of government through civic organizations.’

2. Reason 2: Undermining the Rule of law and Constitutionalism in

Uganda

The Bill undermines the rule of law, constitutionalism and independence of

the judiciary by seeking to revive section 32 of the Police Act which was

held unconstitutional by the Constitutional Court in Muwanga Kivumbi v.

Attorney General (Constitutional Petition No. 9/05). Court noted that the

1 The same right is also protected under Article 19 of the International Covenant on Civil and Political Rights(ICCPR) and the Universal Declaration of Human Rights (UDHR) and Article 9 of the African Commission

on Human and Peoples' Rights.

By legislating to control as

opposed to democratic

regulation of public assemblies/

meetings that focus on theefficacy of government and its

agencies and political organs,

the Bill infringes on Article 29

(1) (a) (b) (c) (d) and (e) of the

Constitution of Uganda



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section which required Ugandans to seek permission from the Inspector

General of Police before exercising their right to demonstrate and

assemble was unconstitutional. It held that these powers to the IGP to

determine the holding of an assembly were "prohibitive" rather than

"regulatory." The annulled section 32 is revived in sections 4, 5 & 7 of the

POM Bill.

3. Reason 3: Introduction of

Retrospective Legislation

In relation to the above, the Bill introduces

retrospective legislation when it grants the

Inspector General of Police (IGP) immense

discretionary powers of refusing or accepting

the holding of assembly/public meeting.

Section 32 of the Police Act which provided

these powers were annulled in Muwanga

Kivumbi v. Ag (Constitutional Petition No. 9/05).

Even in light of that glaring constitutional

Court judgment, sections 4, 5, 7 and 8 of the

POM Bill resurrect the above unconstitutional section. This results into a

contradiction with Article 92 of the Constitution of Uganda which provides

that ‘Parliament shall not pass any law to alter the decision or judgment of

any court as between the parties to the decision or judgment.’

4. Reason 4: Immense discretionary powers of the Inspector

General of Police hence susceptible to abuse

Section 4, 5 and 7 of the POM Bill provides the Inspector General of Police

(or an authorized officer) with enormous powers to ‘direct the conduct of

all public meetings….’ There under, there is no established mechanism that

can or should be followed by the IGP in exercising his power of ‘regulation,

or ‘directing’. It’s all upon the IGP’s will!

Uganda‟s past experience with

security authorities that yielded

much discretionary powers and

how they run government business are a warning enough

about what violations this

power can be used to do to the

detriment of the Citizens of

Uganda.



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The lack of precision in the grant of these

powers of regulation gives room for

exercise of unlimited, unsafeguarded

discretion with serious ramifications for the

rule of law and human rights and ultimately

the right to assembly and demonstration.

The process or/ and procedures or/and

grounds of this ‘regulation/direction’ should

not be left to the whims of the IGP’s

discretion but should be made clear with

guidelines upon which the IGP can base execution of this power of

regulation. Uganda’s past experience with security authorities that yielded

much discretionary powers and how they run government business are a

warning enough about what violations this power can be used to do to the

detriment of the Citizens of Uganda.

5. Reason 5: Intimidating, deterrent, burdensome and fear prone

legislation: threatening and shrinking the public space

The Bill is largely covered with deterrent, impractical, burdensome

provisions branded ‘responsibilities’ placed upon the organizers and

participants of public meetings which are unattainable. Among them include

Section 12 which provides for the responsibilities of the participants and

organizers. They include among others ensuring that all the participants are

unarmed and peaceful; ensure that statements made to the media and

public d o not conflict with any existing laws of Uganda and undertake to

compensate any party or person that may suffer loss or damage from anyfall out of the public meeting. There are already existing laws that can deal

decisively with the spoilers of public meetings without burdening the

organizers with duties beyond their capacity to handle. The organizers of

public meetings are not trained in security, or intelligence related skills in

order to identify and disarm an assailant. This is the work of the Uganda

Uganda‟s past experience with

security authorities that yielded

much discretionary powers and how they run government

business are a warning enough

about what violations this

power can be used to do to the

detriment of the Citizens of



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Police Force and the organizers can only offer at most, co-operation and

not take on duties they have no mandate and skills to execute.

Requirement to state estimated number of people to attend and

to obtain a clearance letter

Section 7 of the POM bill provides for the need for a person who intends

to hold a public meeting to get a clearance letter from the proprietor of

the premises where the public meeting is going to take place (Section 7(3))

and the estimated number of people expected at the gathering (Section

7(2) (c)). Owing to the fact that public meetings are platforms of mass

political participation, this provision thus is a burdensome and impracticableas it is complex to approximate the number of people who will attend the

public meeting. It is a restraining provision meant to discourage organizers

of the public meetings.

The clearance letter from the proprietor cannot be divorced from past

conduct of government where those thought or perceived to be

sympathizers to the opposition have been bullied and hassled such as radio

stations that have hosted opposition leaders in the past. Consequently, this

section may be deterrent since not so many people in Uganda today may

want to be dubbed oppositional as a result of hiring out their premises to

the members of the community with divergent views from those of the

government.

6. Reason 6: The Bill is an infringement on the right to political

participation

It seeks to not only control the public gatherings but also what the

participants discuss therein. The Bill subjects the holding of a public

meeting to the whims of the Inspector General of Police or his authorized

officer and further provides under section 6 (1) that a public meeting means



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a ‘ gathering, assembly, concourse, procession or demonstration...of three or more

persons in or on any public road…or other public place or premises wholly or

partly open to the air at which principles, policy, actions or failure of any

government; political party or political organization, whether or not-that party of

organization is registered under of any applicable law, are discussed.‟ By this, it

defeats National Objectives and

Directive principles of State policy II

which provides that the state shall be

based on democratic principles which

empower and encourage the active

participation of all citizens at all levels

in their own governance. When one

harasses members of the populace

convened lawfully to discuss the

principles, policy, actions or failure of

any government, political party or

political organization yet these notions

are central to the governance of the

country, participation is denied henceinfringing on their constitutional right.

7. Reason 7: The Bill is marred with broad interpretation and non-

precision in definition of various terms used hence susceptible to

abuse

In particular, the definitions of „public place‟, „public meeting‟ are so wide in

application that they are subject to abuse yet they are central to the

determination of a lawful public assembly. The latter is defined as a

gathering…of three persons…‟ (Section 6). Other terms include ‘Reasonable

Cause‟ under section 8 (1) (c) The Bill provides that where the authorized

officer has “reasonable cause” as to why the proposed meeting cannot take

place, then it cannot take place. How reasonable is reasonable? There may

In particular, the definitions of „public place‟, „public meeting‟ areso wide in application that they

are subject to abuse. The latter isdefined as a gathering,

procession, demonstration…of three persons…‟ Under Section2, a public place is defined as „a

high way or any road within themeaning of the Traffic and Road Safety Act. The terms used aredefined in such a way that they



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be risks that what is reasonable to the authorized officer may be actually a

blatant violation of the right to assembly and demonstration and therefore

unjustified before the Courts of the law.

The practicality of monitoring any possible ‘three persons’ discussing

actions or failure of government is questionable.

The provision may be abused by law enforcement officers hiding under its

ambiguity.

The fact that this offers notions of wide spread interpretation, means that

the authorized office can/may read into this law or provisions anything that

suits the interests of the Executive or higher authorities above him/her or

him/herself. This may have grave ramifications for human rights the

ultimate being the total banning of demonstrations/or public gatherings

hiding under the convenient legal phrases of ‘reasonable cause.’

7.1Way forward

There is need for sufficient precision, to define the above terms and make

their scope clear by the law in the interpretation section or they should be

subject to court’s interpretation which calls for the need for the Judiciary

to play a bigger role than the Inspector General of Police or the officer heauthorizes as the bill proposes currently.

8. Reason 8: The Blemished Provision for Judicial Supervision

Sections 8(4) and 8(5) of the POM Bill provide that a person aggrieved by

the decision of the authorized officer other than the Inspector General of

Police under this section, may within 14 days appeal to the Inspector

General of Police. Section 8 (5) provides that a person aggrieved by the

decision of the Inspector General of Police may, within thirty days-appeal to

the High Court. On appealing to the IGP who disallows the meeting in the

first, one is asking the IGP to review the lawfulness of his own decision, at

least implicitly. The above two sections are an infringement on the right to



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a fair hearing and contradiction of the old

time rule that a man cannot be a judge in

his own case. How fair and just is a

mechanism where one aggrieved by a

decision by the IGP appeals to the IGP?

The IGP or his authorized officer is not an

independent and impartial adjudicating

authority established by law as is required

by Article 50 of the Constitution.

Although an aggrieved person is given a

right to appeal to the High Court for judicial review of the IGP’s decision, this forum comes long after the harm

will have occurred.

8.1 What is the way forward then?

In a democratic society, every person is entitled to a fair hearing by an

independent adjudicating tribunal established by law in the determination of

the existence or extent of his or her rights and obligations. Article 28 of

the constitution of Uganda is clear on this right. The section defeats this

cardinal principle of justice and as thus unconstitutional.

9. Reason 9: Time Factor and Delay tactics in the Process; How

facilitative of upholding the rights?

Under section 8 (4), one can only appeal the decision of the authorized

officer to the IGP within 14 days. Under section 8 (5), a person aggrievedby the decision of the IGP may within 30 days appeal to the High Court. In

total, the time an aggrieved party can take is 44 days until his or her

appeal is accorded a listening ear . The above provisions are defeatist in

nature aimed at suppressing further the rights and freedoms of Ugandans to

demonstrate and assemble. The nature of demonstrations/assembling by

In a democratic society, every

person is entitled to a fair hearing

by an independent adjudicating tribunal established by law in thedetermination of the existence or

extent of his or her rights and obligations. Article 28 of the

constitution of Uganda is clear onthis right. The section defeatsthis cardinal principle of justice



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people is prompted by immediate concerns to

which people have to express their stand/view

point on the matter and as thus for maximum

impact, time is of the essence.

9.1What is the Way Froward then?

The process of appealing the refusal to hold a

demonstration should be subjected an independent

and impartial judicial tribunal in particular the High

court at first instance and within the shortest time

possible. In this forum, the state would have to

satisfy the court, the custodian of the rule of lawand human rights that it has a case that warrants

the refusal of a particular group from holding the

demonstration or gathering. This is the notion of

checks and balances (accountability) of the organs

of government that is currently lacking in the bill

and thus makes it prone to abuse.

10. Reason 10: Superfluous discretionary

powers of the Minister

Under section 15 (1) of the POM Bill, the Minister

as a lone individual is empowered to declare that in

any particular area in Uganda, it is unlawful for any

person to convene a public meeting. The Minister

is supposed to reach this decision guided by his

‘opinion that it is desirable in the interests of public

tranquility’, to restrict the people of Uganda from

exercising the right to assembly! Powers of the

Minister to gazette a place for purposes of public

The provisions of Section 8

of the Bill are defeatist in

nature aimed at suppressing

further the rights and

freedoms of Ugandans todemonstrate and assemble

The nature of

demonstrations/assembling

by the people is prompted

by immediate concerns to

which people have to

express their stand/view

point on the matter. Some

of these issues can only be

handled at the time of

happening so as to have an

impact. So, some

demonstrations are

spontaneous in nature.

This is so especially when

one considers that

demonstrations is a form of

activism and political

participation in one respect

The above time lag

frustrates the actual

purpose of demonstrations.

Justice rendered when an

issue of contention has

become stale is justice

denied.



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tranquility are too wide; there is no procedure for an oversight mechanism

to check the powers granted to the IGP and the Minister under the

instrument. This can further be abused when and if left to the will of an

individual or the executive without any supervision for checks and balances.

11. Reason 11: The inclusion of use of fire arms during public

assemblies is unwarranted

Section 11 of the POM Bill provides for the use of fire arms by the Police

Force. The provision encompasses various cases or circumstances

warranting the use of fire arms but does not provide safeguards or

guidelines on when one should resort to this force. Indeed, the provision is

generally below the standards set in the Police Act which introduces

safeguards such as imploring the officer to only resort to fire arms only

after exhaustion of other possible ways of fulfilling calming a situation; issue

a warning to the offender that he or she is going to resort to the use of

arms and only use arms if the offender heeds not to the warning; presence

of reasonable grounds to believe that he or she or any other person is in

danger of grievous bodily harm if he or she does not resort to the use of arms.



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International law and indeed the Police Act provide

for use of only such force as is reasonable in the

circumstances. The inclusion of the use of fire

arms within the Bill against civilians during public

order management is unwarranted more especially

so when they are no safeguards in position.

Indeed, this should be the last resort when all

avenues of calming the situations have been

exhausted. Arguably the Criminal Procedure Code

and the Police Act already provide for the

circumstances envisaged by the bill and as thus

render the section redundant.

12. Reason 12: Erroneous provision for

criminal liability to organizers for criminal

acts committed by the participants

attending the public meeting

Section 12 (1) (d)-(h) of the proposed law provides

for the responsibilities of the organizers and among

them including undertaking to ‘compensate any

party or person that may suffer loss or damage

from any fall out of the public meeting; ensuring

that statements made to the media and public do

not conflict with any existing laws of Uganda.’

The damage to property during a public meeting

can only be adjudged to be a criminal act and asthus requiring personal responsibility by the

perpetrator hence organizers cannot be held liable

for the actions or omissions of the participants

especially when they are of a criminal nature. The

section is misconceived, proposed in bad faith,

It is the responsibility of the

Police Force to maintain public

order and security. It is

trained and skilled in executin

this work including detecting

arms and disarming thosearmed illegally. The Police

cannot abscond from its duty

of intelligence gathering to

ensure that participants in a

public meeting are not armed

The most that it can seek

from the organizers is

installation of metal detecting

equipment as a way of co-operation. The Police shifting

responsibility of security to the

organizers is not only

undesirable but it defeats the

purpose for their existence

and obligations under article

212 of the Constitution of the

Republic of Uganda.

The malicious damage to

property, if it occurs, during a

public meeting and it is found

to be a criminal act points to

personal responsibility by the

perpetrator. The organizers

cannot be held liable for the

actions or omissions of the

participants especially when

they are of a criminal nature.

The Section is redundant and

defeats legal maxims upon

which a functional legal

framework is based that

criminal responsibility is

personal save for vicarious

liability grounds for which are

not existent under the

circumstances.



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redundant and defeats legal maxims upon which a functional legal

framework is constructed.

The law seems to be dealing with symptomatic offshoots of gatherings gone

wrong but does not address the underlying causes. It is the role of the

police working closely with the conveners of the public meetings to ensure

that they are peaceful. This derives from their mandate to protect life and

property as provided for under article 212 of the Constitution of Uganda.

Shifting this role to organizers, the police is in away escaping from

performing its role.

2.0 Other Possible Mechanisms of Dealing with Public Order

Management

Whereas the law is good to set the standards of dealing with public order

management, it should not and cannot be the only solution to this

challenge. Indeed, the approach to the management of public order in

Uganda should be multi-faceted involving all the stakeholders (the

organizers-political parties, civil society organizations, the participants andthe law enforcement agencies) so as whatever the solution that is proposed

is owned by all and implemented as a whole.

3.1 The Guidelines on Public Demonstrations: A first point of

reference

Long even before public disorder degenerated to the all low levels that

Ugandans have witnessed in the past 2 years, there had been efforts by the

civil society working together with the Uganda Human Rights Commission

and the Uganda Police Force to come up with regulations necessary to

regulate public demonstrations. Among some of the developments that

emerged from this collaboration were the Guidelines on Public

Demonstrations in Uganda. The guidelines were widely distributed to the



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populace so as to equip them with the knowledge of the various

responsibilities that come with the rights of assembly and freedom to

demonstrate. The Guidelines presents practical ways of dealing with

demonstrations without infringing on the freedoms of the demonstrators.

‘Holding a planning meeting/s with the chief organizer/s of the public

meeting or assembly 5 days before the meeting/demonstration for

preparatory purposes;

In case the demonstration cannot be held for any reason, then the Police

has to provide the organizers with a ‘written explanation and legal

justification’ as to why the demonstration has been denied or plans of traffic

changed;

The Police can also intervene in the demonstration/public meeting with

only reasonable force if found necessary for the sake of maintaining peace

and halting criminal behavior.

The Demonstrations and Processing Planning Unit (DPPU) to be based at

the District Commander’s Office to deal with all public meeting/assembly

related issues with the Police and the organizers of such demonstrations or

public meetings. This could further be facilitated by the presence of the

Assigned Police Contact Officer (APCO) to deal with the traffic plan of the

demonstration.’2

a) The need for Crowd Marshals (Stewards) in Public Order

Management

There is need to share responsibility between the various stakeholders

most especially the event organizers (mostly during demonstrations and

street matches). Thus, there is need to develop the capacity of event self-

policing by helping establish and train event facilitators (crowd marshals orstewards) in crowd management and to act as a link between the police and

the crowd/assembly leadership. The stewards would (Crowd Marshals)

could come from the different political parties, CSOs among other

2 Guidelines on Public Demonstrations in Uganda, at 16-19.



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organizations, associations within the public that have used demonstrations

in the past or hope to use them in the future as a forum of freedom of

expression. Such stewards could be trained by the police personnel to

specifically highlight what is needed of them in self-policing the

crowd/assembly.

b) The monitoring, review and evaluation of public gatherings (In

the aftermath of a demonstrations)/ event Monitors

The main focus should be targeted towards the building of an independent

monitoring, review and evaluation of public assemblies’ mechanism. The

evaluation is vital to undertake in the aftermath of a public gathering. This

should be aimed at evaluating the standards used by the police in the

policing of demonstrations with the sole aim of informing the

transformation process of the police.

C. Conclusion

Against such background, it is difficult to hit equilibrium between legitimate

law enforcement objectives and individual liberties such as freedom of

expression and the right to demonstrate. For now, the bill remains a

repressive legislation aimed at shrinking democratic, public space unless it’s

brought in conformity with human rights standards enshrined both in the

Constitution of Uganda and international human rights instruments to

which Uganda is a party.

Not all vices that have rocked public order management in the past shall be

solved by the law. If anything, in some instances, the incapacity of the

police in negotiation and engagement with public assembly organizers has

contributed to the violence in these gatherings. Indeed, the role of the

police under article 212 of the constitution of Uganda is to detect and

prevent crime, preserve law and order and protect life and property. This

it cannot do in isolation. The police should work with the public towards



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creation of a conducive environment within which all these rights of

assembly, demonstration and expression can be enjoyed by the populace.

We recommend the adoption of the Public Demonstration Guidelines

produced by the Uganda Human Rights Commission, the police and other

members of the civil society fraternity.

D. What Should I Do To Help?

Circulate this analysis to as many people as possible, both within the

CSOs fraternity, business, political parties, general public among others.

If you can afford a letter or an article in the newspapers, kindly write

a few lines to the tabloids and main stream decrying the Bill. If you have a mobile number of your MP or you know someone who has it,

please text him and say No to the POM Bill in its current form.

You can upload this summary on your website and thereafter share the

link with other people within your network.

Join in with other members of the CSOs as they go to make their

presentations to the Legal Affairs Committee of the Parliament from 29th

November to the 6th December.

Issue a press release on your own behalf as an organization decrying the

various provisions in the Bill which are inconsistent the Constitution.

COME FOR THE CSO PRESS CONFERENCE ON THE 28TH NOVEMBER 20

AT 11AM AT HOTEL AFRICANA AND LETS US SHOW SOME SOLIDARIT

AND CONVERGENCE OF STRENGTH OVER THIS POM BILL.

If it is Passed Into, It May Not Affect You But You cannot Guarantee that It May N

Affect Your Brother, Sister, In-law, or the democratization Process of our Country



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Documents

Summary of Pom Bill and Why You Have to Say No to It!