Failure of Due Process: Police infringe on Civil Liberties under the Public Order Management Act, 2013
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The debate on whether the Public Order Management Act (POMA) is a case of “bad law or poor law enforcement” has now been settled by its arbitrary, and partisan enforcement by the Uganda Police Force.
Recent examples do not only confirm the generally held view among civil rights activists that POMA is a retrogressive legislation being selectively enforced, but also that in its spirit and enforcement, it is an unjustifiable of the freedom of expression, association and assembly.
On August 4th 2016, members of the Uganda Police Force (UPF) raided a beauty pageant organized by members of the Lesbian, Gay, Bisexual, Transgender and Intersex community (LGBTI) to commemorate Pride; a celebration of resilience, ordinary lives of LGBT Ugandans and the movement as a whole. The event was taking place at a private nightclub in Kampala.
When the police stormed it, all participants were ordered on their knees, guns drawn and pointed in their faces of a peaceful and unarmed group of people. The police, camera in hand, forcefully took photographs of the participants while pulling wigs and hair off the heads of transgender individuals at the event.
As many as 16 people were bundled onto police cars and driven to a police station where they frisked, ridiculed and their private parts fondled to determine their sexuality before they were briefly locked up in police cells.
No explanation was offered for the police’s conduct at the time of the incident.
A police statement issued a day after the raid indicated that police intervention was carried out under the provisions of the Public Order Management Act. The statement noted in part,
“…as per the provisions of the POMA, Section 3, 4 and 5 such an event would require that the organizers notify the police within the specified period for the purposes of security of those in attendance and those who may be affected directly or indirectly by the event.”
This, of course, was an erroneous application of the law but there was no opportunity to explore whether sections cited by the Police actually apply to a social event like the beauty pageant at a nightclub. Such an event falls under the exception in Section 4 of the Act, of activities for which a person is not required to notify the police.
In another event on September 13th 2016, women activists under the umbrella ‘Women4UG’ organized a prayer meeting dubbed the “Jericho walk” to protest the proposed extension of the age limit for judicial officers and members of the Electoral Commission from 70 years to 75 years; a public interest matter which many have perceived as a ploy to extend the presidential age limit.
The police, who had signed the letter of notification about the event and agreed to provide security for the women, forcefully disbanded the gathering. After detaining 25 of the women activists, the police met with the organizers and “cautioned them against planning public events without duly giving notice to the relevant security departments tasked with the safety of people in such a jurisdiction”, a statement which has become common after such incidents.
Despite the explanations offered by Police about the incident, none of the individuals who were detained by police during the Pride Uganda and Women4Ug incidents were arrested, or charged with any offence under the POMA or any other law.
In the Women4Ug incident, the organizers presented the notification letter which Police had earlier received and approved the action to proceed. However, police officers who were presented with the letter of authorization allowing the event confiscated the letter, thereby removing the single piece of evidence that the action had been approved.
A similar scenario arose when organizers of Pride Uganda attempted to have the rescheduled event on 24th September 2016, this time having obtained written authorization from Police. The event was disbanded despite written acknowledgment from the police of receipt of notification about the event.
It is clear that the Uganda Police Force has now made it a habit to escalate peaceful protests with violence, take people into remote police stations, and record statements without informing the detainees of their rights.
With regard to freedom of assembly, association and expression, the UPF have essentially ordained itself the authorizing body, a jury and the judge in their own matters.
The due process obligation of the government to protect the recognized rights of a person from the overreaching arm of the state, to safeguard against abuse of power by government officials, and to follow established rules and procedure, is no longer an aspect of law enforcement in Uganda. The principle of legality and the requirement of a fair trial guaranteed under the Constitution of Uganda are fast fading into the many unfulfilled promises of this country’s democracy.
POMA’s promise “to ensure that conduct or behavior conforms to the requirements of the Constitution” is continuously violated by police’s unchecked actions.
The constitutional challenge to the procedural and substantive aspects of the POMA that was filed by human rights groups more than two years ago appears to have fallen into the crack of case backlog and the 2013 law remains an obstacle to the exercise of the fundamental right to freedom of assembly, association and expression in Uganda.
It is imperative that law enforcement officers abide by the very laws that they seek to enforce and that the judiciary takes proactive steps to offer redress in what seems to be a dire situation on the rule of law in Uganda.