AN ASSESSMENT OF THE LAW ON PROTECTION OF FREEDOM OF EXPRESSION AND ASSOCIATION IN UGANDA BETWEEN 1995 AND 2018.
BY
EGIMU AARON JOEL
LLB/44339/143/DU
A DISSERTATION SUBMITTED TO THE SCHOOL OF LAW IN PARTIAL FULFILLMENT FOR THE REQUIREMENT OF THE AWARD OF BACHELOR OF LAWS AT KAMPALA INTERNATIONAL UNIVERSITY
SUPERVISOR
MR. MASABA PETER
JUNE 2019 DECLARATION
I, EGIMU AARON JOEL solemnly declare that this dissertation is my original research work both in substante and in style and that to the best of m y knowledge it. h as never been submitted in any academic institution for any academic award.
I further declare that. a ll materials cited m this dissertation which are not my own have been fully acknowledged.
Dale ..?;~ -~- ~- b. .t~~ . ~1 .....
EGIMU AARON JOEL APPROVAL
This dissertation has been submitted for examination w ith the approval of the supervisor.
Mr. Masaba Peter ?-\o1 tl1 Date: ......
ii DEDICATION
This paper is dedicated to my parents for seeing me through school, especially my father for making this dream come true.
Thanks to my family and friends for the encouragement and moral support.
Great thanks to the Lord God who has enabled this with the gift of faith and hope.
iii ACKNOWLEDGEMENT
Special Acknowledgement goes to my supervisor Mr. Masaba Peter who provided a lot of technical and professional guidance whenever 1 approached him in order to produce this quality work.
Special thanks also go to my father Ochen Julius Peter who decided to forego other things and endeavored to S!Jpporl my education.
Sincere thanks also go to my brothers and sisters, my friends Okello Christopher Oryem, Kiscmbo Fred, Lactlla Johnmary, Apedu Naboth ,Ekiru Yuven, Agitta Beth and Nagawa Barbra , the staff Kampala International University main campus, and relatives for any form of support they gave me during the struggle.
I cannot forget my fellow students of bachelors of laws, academic year 2015- 2019 for the encouragement, guidance and counseling they rendered to me especially while pursuing this course.
Lastly, I thank the Almighty God who enabled me to finish this course.
iv LIST OF ACRONYMS
ACHPR African Charter on Human and Peoples Rights
HRW Human Rights Watch
ICCPR International Covenant on Civil and political Rights
ICESCR International Covenant on Economic, Social, and Cultural
Rights
NRM National Resistance Movement
UBOs Uganda Bureau of Statistics
UN I-IS Uganda National rlousing Statistics
UNUDI-IR United Nations Universal Declaration of Human Rights
ECPHRF' Guropean Convention for the Protection of Human Rights
and fundamental Freedoms.
UPF' Uganda Police 'Force ucc Uganda Communication Commission
UPFD Uganda People's Defence Force
UHRC Uganda Human Rights Commission
EOC Equal Opportunities Commission
PCA Penal Code Acl Cap 120 as amended in 2007
LRA Lord's Resistance Army
NGOs Non Governmental Organizations
FDC Forum for Democratic Change Party
v EMA Electronic Media Act
ULRC Uganda Law Reform Commission
OTT Over The Top Services
UNHS Uganda National Housing Statistics
UBOS Uganda Bwrcau of Statistics
DNMC District Non-Governmental Monitoring Committee
MOUs Memorandum of Understanding
UEC Uganda Electoral Commission
CCEDU Citizen's Coalition for Electoral Democracy
LGBT Lesbians, Gays, Bisexual and Transgcnda
NOTU National Organization of Trade Unions
UMA Uganda Manufacturers Association
JLOS The ,Justice, Law and Order Sector
SAPs Structural Adjustment Programmes
MPs Members of Parliament
SMUG Sexual Minorities Uganda
vi LIST OF STATUTES National Legislations
1. The 1995 Constitution of the Republic of Uganda, as amended 2. The Registration on Interception of communication Act 2010 3. The Computer Misuse Act 201 1. 4. Public Order and Management Act 2013 5. The Press Censorship and Correction Ordinance No 13 of 1948 6. The Penal Code Act Cap 120 7. The Press and journalists Act Cap I 05 8. The Anti-Terrorism Act 2009 9. The Presidential Election Act No. 16 of 2005, as amended. 10. The Uganda Police Force Act Cap 303 11. Uganda Communications Act Cap 106 12. Electronic Media Act Cap 104 13. Equal Opportunities Act 2007 14. Uganda law Reform Commission Act Cap 25 15. Parliamentary Elections Act No 17 of 2005,as amended. 16. Exercise Duty (am.cndment) Act 2018 17. Non-Government Organization (NGO) Act of 2016 18. Uganda Communications Commissions (amendment) Act 2013 19. Labour Unions Act No. 7 /2006
vii Regional and International Instruments
1. International Convenient on Civil and Political Rights 2. International Covenant on Economic, Social and Cultural Rights 3. African Charter on Human and People's Rights. 4. The European Convention for the Protection of Human Rights and Fundamental Freedoms 5. United Nations Charter 1945 6. Universal Declaration of Human Rights 7. The American Convention on Human Rights 8. Treaty for the Establishment of the East African Community. (as amended on 14'11 December, 2006 and 2Qth August 2007)
viii LIST OF CASES 1. Muwanga Kivumbi V Attorney General Constitutional Petition No. 9 of 2005 2. Rev. Christopher Mtikila V. Attorney General Civil Suit No. 5 of 1995 3. Charles Onyango Obbo & Anor V. Attorney General (Constitution Appeal No.2 of2002) (2004) UGSCI (10th February 2004).
4. Dr. Paul Ssemwogerere &, 5 Others V. Attorney General Constitution Petition No. 512002 (CC) (unreported)
5. Dr. James l' 11. Andrew Muju~i Mwenda &, East African Media Institute V Attorney General Consolidated Constitutional Petitions No. 12 of 2005 and 3 of 2006 12. Victor ,Juliet Mukasa and anor V Uganda miscellaneous cause No 24106 High Court of Uganda, Civil Division, 22 November 2008; (2008) AHLR 248 13. Kasha ,Jacqueline, David Kato Kisule &, Onzima Patience V. Rolling Stone Lld &, Anothers Miscellaneous cause No. 163 of 2010 (unreported) 14. Marbury V Madison 5 US. 137 (1803 15. Expartc Matovu Case (1966) EA 514 ix 16. Christine Mularidika & 7 others V The people (Supreme court of Zambia) 21 November 1995, 10 .January 1996 17. Dr. Sam Lyomoki & 5 Others V Attorney General Constitutional Petition No. 8/2004. X TABLE OF CONTENT DECLARATION ...... i APPROVAL ...... ii DEDICATION ...... iii ACKNOWLEDGEMENT ...... iv LIST OF ACRONYMS ...... v LIST OF STATUTJ.<:S ...... vii LIST OF CASES ...... ix TABLE OF CONTP.;NT ...... xi ABSTRACT ...... xiii CHAPTER ONE ...... I 1.0 GENERAL INTRODUCTION ...... 1 1. 1 Background of the ·study ...... 5 1.2 Statement of the Research Problem ...... 7 1.3 Research Questions ...... 8 1.4 Scope of the Study···············'···································································· 9 1.4.1 Subjective Scope ...... 9 1.4.2 Time Scope ...... 9 1.4.3 Geographical Scope ...... 9 1.5 Literature Review ...... 9 1.6 Objectives of the Study ...... 12 1. 7 Justification of the Study ...... 13 1.8 Hypothesis ...... 13 1. 9 Methodology ...... : ...... 14 l. 1 0 Synopsis ...... 14 CHAPTER TWO ...... 15 ' HISTORICAL DEVELOPMENT OF FREEDOM OF EXPRESSION AND ASSOCIATION ...... 15 2.0 Introduction ...... 15 2.1 Historical development of the right to freedom of expression ...... 15 2. 1.1 Historical development of the right to freedom of association ...... 16 2.1.2 The current legislative and regulatory framework on right to freedom of expression ...... 19 xi 2.1.3 The current legislative and regulatory framework on the right to freedom of association ...... 22 2.1.4 Conclusion ...... 24 CHAPTER THREE ...... 26 CONDUCT OF UGANDA GOVERNMENT AUTHORITIES ...... 26 3.0 Introduction ...... 26 3.1 Conduct of the Uganda Police Force (UPF) ...... 26 3.1.1 Conduct of the Uganda Communications Commission (UCC) ...... 28 3.1.2 Conduct of Courts of Law ...... 30 3.1.3 Conduct of the Uganda Law Reform (ULRC) ...... 35 3.1.4 Conduct of Uganda Human Rights Commission (UHRC) ...... 37 3.1.5 Conduct of the equal opportunities commission (EO C) ...... 39 3.1.6 Conclusion ...... 40 CHAPTER FOUR ...... 4 1 OBSTACLES TO THE ENJOYMENT OF THE RIGHTS TO FREEDOM OF EXPRESSION AND ASSOCIATION ...... 41 4.0 Introduction ...... 41 4.1 Obstacles to the enjoyment of the right to freedom of expression and associ a Lion ...... 4 1 4.1.2 Impact of Icgul restrictions to the freedom of expression and association in Uganda ...... 50 4.1.3 Conclusion ...... 53 CHAPTER FIVE ...... 54 FINDINGS, RECOMMENDATIONS AND CONCLUSION ...... 54 5.0 Introduction ...... 54 5.1 Findings ...... 54 5.1.2 Recommcndutions ...... : ...... 62 5.1.3 Conclusion ...... 63 REFERENCES ...... 65 xii ABSTRACT Freedom of expresswrt which connotes the right to hold opmwns without interference and the right to impart, seek, and receive information and ideas, regardless of form, content, or source is so fundamental for the functioning of a democratic society in the sense. that it offers an avenue for the citizens to influence their government. The right to freedom of association in most case when exercised, is used as stepping stone for the enjoyment of the freedom of expression as citizens come together to discuss and disseminate the infonnation churned from the association, group or organizational get together meetings. This report examines the right to freedom of expression and association m Uganda from 1 995 to 2018. It first focuses on the nature of freedom of expression and association, making a comparison of the international legal instruments with the Ugandan legal framework and then turn to the government's harassment of the freedom of expression and association. The subsequent sections portray the. conclusions on the enjoyment of freedom oj' association and expression and thereby, make recommendations for their full realization. xiii CHAPTER ONE 1.0 GENERAL INTRODUCTION The rights to freedom of expression and association arc some of the fundamental rights which are provided and protected by the 1995 constitution of the Republic of Uganda as amended 1. Fundamental rights are which are not provided by the state but arc rights which accrue to every individual by virtual of being a human being. Therefore, freedom of expression is the concept of inherent human right to utter an opinion publicly unaccompanied by fear of censorship or punishment. Thus, right to freedom of expression is a vital right in the functioning of a democratic society. Indeed, as one of the factors for determining the existence of democracy, it is observed that democracy exists if, there is freedom of expression on all matters, and equally for all, to communicate with other members of the society.2 The Ugandan Constitution of 1995 provides for freedom of expression under Article 29 and furthermore prescribes the neighboring rights such as freedom of speech, freedom of press and mcdia,3 Freedom of thoughts, conscience and belief entailing academic freedom in institutions of learning,'1 freedom to practice any religion and manifest such practice of religious body or organization in a manner consistent with this constitution,5 Freedom to assemble and to demonstrate together with others peacefully and unarmed to pelilion,6 Freedom of association which shall include the freedom to form and join associations or unions including trade unions and political and other civil organizations7 Tension has been raised considering the mann~r in which people of expression and association and this discloses that. they arc highly contended rights. A remarkable observation 1 Article 29 of the 1995 constitution of Uganda as amended 'Howard Zim in points of view n'" Edn by Robert E. Diderico/AIIan s. Hammack pg. 2,3 3 ibid Article 29 (1) (a) 4 ibid Article 29 (1) (b) 'ibid Article 29 (1) (c) 5 ibid Article 29 (1) (d) 1 ibid Article 29 (1) (e) 1 is that due attention should be accorded to the existence (provision) of these rights in the constitution and other legislations and on the other side, the enforcement and realization of the rights in question. Thus, it is in light of this background that this research paper presents an assessment of the practice of the right to freedom of expression and association as well as examines the existing legal regime/ framework in which the right to freedom of expression and association is envisaged to be enjoyed. Various international and regional human rights instruments provide for freedom of expression and the freedom of association. For example, the UNUDHR, lCCPR, lCESCR, ACHPR which arc accorded recognition by the laws of most of the nations. Nevertheless, the extent to which these rights arc adhered to is dislincl among nations. The ICCPR under Article 19 (2) and the ACHPR under Article 9 stipulate for lhc protection of the right to freedom of expression. Freedom of association is duly recognized by the ICCPl'< under Article 19. The freedom of expression and association arc provided for under Articles 9,10 and 1 1 of the ACHPR. Therefore, the right of peaceful assembly without arms is recognized and everyone has a right to associate freely for ideological, religious, political, economical, labour, social, cultural, sports etc. For the full realization of the freedom of expression and association as rights, the members of the public or the individuals as well as media outlets should, with liberty, be able to operate freely without the unreasonable government inconvenience even if the media outlet is government owned. Ultimately, freedom of expression is constituted by the aspect having the right to make opinions devoid of in~crfcrence and the right to impart, seek, and receive information and ideas, regardless of form, content, substance or source. Thus, an avenue through which citizens influence government and their leaders either individually or collectively ,or in association with others. The trajectory of right to freedom of expression and association in Uganda has undergone through a number of limitations dating back to the colonial times. Later on in 2 1986, a new liberal approach for the enjoyment of the right to freedom of expression and association was ushered in by the NRM government under the brilliant leadership of Yowcri Muscvcni. Shortly after attaining power, a new Constitutions Was enacted and it is believed that its' promulgation was a result of the ratification of the international covenants. It is important to underscore that the right to freedom of expression has been limited mostly where the media, both electronic and print, have indulged the government into political debates, dialogues or criticism, which has provoked government's response inform of punitive laws and establishment of institutions with the aim of suppressing media houses and restricting access to information. Thus, creating on obstadc to the media's cardinal role of disseminating information and being the watchdog to government excesses. There has equally been an infringement on the right to freedom of association evidenced by the obj~ctivc behind the enactment of some lcgislations9 This paper discusses the historical evaluation of these freedoms in Uganda and examines the legal framework governing freedom of expression, then identify the legal and other practical limitations to full realization of these rights. Freedom of association connotes the right to form societies, clubs and other groups of people, and to interact with people individually, without government interference. Fundamental to democracy is the proposition that. people arc at. libcrly t.o engage in mutual intercsls, deliberate or discuss or dcmonslrale or rather, create organizations to handle certain matters peculiar to their interests. The freedoms of association and assembly arc both interrelated and arc protected by the law globallylo. In Uganda, every person shall have the right. to 8 The 1995 constitution of the Republic of Uganda as amended 9 For instance, the public order management Act 2013 10 Article 20 of the 1948 UNUDHR, Article 21·22 of the UN ICCPR and Article 11 of the ECPHRFF 3 freedom of association which shall include the freedom to form and join associations or umons, including trade unions and political and other civic organizations11 Thus, three rights arc envisaged here; forming a union, joining it for collective bargaining and t-epresentation and the right to strike. This is what constitutes the right to freedom of association. The right is further emphasized in dctails12 that every worker has a right to form or join a trade union of his or her own choice for the promotion and protection of his or her economtc and social interest. Collective bargaining and representation, and withdraw his or her labour according to the law. Significantly, Uganda has ratified the relevant conventions ,that stipulate for full realization of freedom of association13 even in employer-employee relationship must be respected and enforced H The right to freedom of expression is closely related to freedom of religion, belief and opinion, the right lo dignity, the right to freedom of religion, belief and opinion, the right to dignity, the right to freedom of association and the right to peaceful assembly. These rights are inherent and not granted by the state. It is the duty of all government agencies who include the police to respect, promote and l!Phold these rights- these rights and many others taken together protect the right of individuals not only to individually form and express opinions of whatever nature, but to 'establish associations' of groups of likeminded people to foster and disseminate such opinions even when those opinions arc controversiaJ15 suffice if to note that, the right is not absolute. [l may be enjoyed subject to certain restrictions, but such measures must be prescribed by law and necessary in a free and democratic society in the interest of national security or public safely, public order, the protection of public 11 supra "Article 40 (3) ibid 13 Freedom of Association and Protection of the Right to organize Convention 1948 (Convention 87) 14 Right to organize and collective bargaining Convention 1949 (Convention 98) 15 Justice Byamugisha in Muwanga Kivimbi V. Attorney General Constitutional Petition No. 9 of 2005 4 health or morals or the protee~ion of the rights to freedoms of others, the generic test which is applied under the Ugandan constitution.16 1.1 BACKGROUND OF THE STUDY Freedom of speech can serve a multitude of functions, dissemination of information, expression of the will of the people and general idcas17 One of the most disputed areas in contemporary human rights law is that of freedom of expression which begs a question; how far does this right extend particularly when threats to natioNal security exist'?18 When freedom of expression or free speech provisions arc contaminated in bills of rights or charters of rights, it is clear that these rights are entitled to some protection from the government interference19 So, what is the scope of freedom of expression or free speech? Written constitutions and bill of rights invariably protect freedom of speech as one of the fundamental liberties guaranteed against stale suppression or regulation 2 0 Barcndl found out that the philosophical and political arguments about the justifications for a free speech principle are on this approach highly relevant to constitutional intcrprelalion21 Therefore, freedom of expression and association if fully realized are sufficient for democracy lo be enhanced. The right to vote or take part in decision making is curtailed from the citizens if they are not allowed to have free access lo information and ideas and arc not able to express their opinions freely thus contravening the conslilulion22 v'iolations of freedom of expression usually goes hand in hand with other violations, specifically the right lo freedom of association and assembly. The press and other forms of media are essential 16 Amnesty international, "We come in and Disperse them" Violations of Right to Freedom of Assembly by the Ugandan Police. 17 Rhona, S (2012) International Human Rights, s'h ed. Oxford University press, pg 303 '"Claude E (1998) He in online (hLtp:L,Ihemonline.org) accessed on 20'" May 2019 19 Barendt, E (2007) Why protect Free speech-freedom of speech 2"d Ed Oxford University Press, 201, pg 1-40 20 Ibid 21 ibid 22 Articles 59 and 20 of the 1995 constitution of Uganda as amended 5 tools of governance in free and democratic societies since they investigate and research about and disseminate all that which is good or bad in society. This research will analyse the manner of enjoyment of freedom of association from 1995 to 20 18 as well as considering the historical backdrop of the situation in Uganda. Both the colonial masters and the post colonial leaders paid less attention to the concept of human rights instead were determined to impose their respective administrations. Thus freedom of association may be traced from the provisions of the 1992 Constitution of Uganda which provided for freedom of assembly. This gave room for the establishment of political parties but under the supervision of the state. Professor Oloka Onyango,23 contended that the various governments Look what their leaders fell was beneficial Lo their extra constitutional and usurpation and exercise of power and suspended or simply ignored what they fell was a hindrance. This testifies that the post colonial governments were interested in restricling the enjoyment of right Lo freedom of association. Even when Jdd Amin took over power, the space for political parties shrunk due to his dictatorial approach 2 ~ Culminating into a severe restriction on the right to freedom of as~em bly and association. This continued even throughout the succeeding governments though they had short tenures until in 1986 when President Muscvcni Look over power and as a means of consolidating power, promptly imposed the movcmcn~ system and superintended the enactment of the 1995 Constitution of Uganda. The relief brought by this new constitution was long overdue, as it recognized the right to freedom of assembly25 and association which is enjoyed/ rcali:wd but subject to the limitations under Article 43 of the 1995 constitution. 23 Pluralism and the Right of Association CBR Working paper No. 1 29/1997 24 Suspension of Political Parties Decree No. 14 of 1971 "Article 29 (1) (d) of the 1995 constitution of Uganda as amended 6 Assemblies may be di'spersed if deemed violent but the dispersal should be with a reasonable force rather than excessive force. This extent of limitation was considered by court m Mitikila V Attorney GeneraJ26 where court observed that when considerating the extent of the limitation that" ...... fundamental rights are fundamental but not restrictions." This invites the view that limitations must be reasonable and in accordance with the law27 Whether the NRM government has fulfilled its mandate or not is debatable but what is vivid is that. those who demonstrate or feel like their fundamental human rights have been infringed upon and have always been suppressed by the use of this constitutional provisions.2s The victims are at times tortured and this raises the threshold of good governance for away from the NRM government. 1.2 STATEMENT OF THE RESEARCH PROBLEM The concept of human rights, "refers to the freedoms, immunities and benefits that according to modern values, all human beings should be able to claim as a matter of right in the society in which they live."29 Fundamental human rights arc rights which are inherent to all persons, that is, rights which cannot be granted by state.30 This tallies positively with the natural law scholars3t despite the fact that positivists content that human rights are provided by 'the sovereign and so, the sovereign can take away such a right.32 26 Miscellaneous civil cause No. 5 of 1993 77 ibid Article 43 (2) (c) 18 ibid 19 The Black's Law Dictionary 8"' Edition by Bryan A. Garner (A Thompson Reuters Business) pg 758 30 Article 20 (1) of the constitution of Uganda 1995 as amended 31 For instance, Aristotle (384-322 B. C) in the Elements of Moral philosophy by James Rachels 6'" edn. By Stuart Rachels page 53-57. "For instance John Locke Locke (1932-1704 AD) 7 The freedoms of expression and association are rights recognized by the legal framework in Uganda33 although their enjoyment and protection have been trampled upon under the mask of keeping law and order thereby rendering their existence as sour grape. That is; the existence of restrictions against the enjoyment of these rights, and inefficiency of the regulatory mechanism thus amounting to violation of right to freedom of expression and association. This research aim at exploring the reasons for these violations and offer some alternative solutions. 1.3 RESEARCH QUESTIONS The major research question for my research will be; is the application of the right to freedom of expression and association in Uganda in conformity with international standards'? Write answering the main question, I will propound on the following sub questions; 1. Whether the Ugandan legal framework is in conformity with the international human rights instruments on rights to freedom of expression and association? 2. Whether the government's actions are 111 conformity with both domestic and international legal instruments on freedom of expression and associa lion? 3. Whether the enjoyment of right to freedom of expression and association is suffocated? 33 Supra 8 1.4 SCOPE OF THE STUDY 1.4.1 Subjective scop.e This study entails freedom of expression and association, identity the challenges to the enjoyment of such freedoms and how that affects the enhancement of human rights in, Uganda as well and drawing conclusions and make recommendations which would offer alternative remedies to the prevailing state of affair. 1.4.2 Time scope The study will cover the period from the promulgation of the 1995 constitution to 2018 but with a brief historical account of human rights from the colonial period to the onset of the NRM government in 1986. 1.4.3 Geographical scope The geographical scope of the study will mainly be limited to Uganda although comparisons will be made to other countries. 1.5 LITERATURE REVIEW The right to the freedom of association has received mtmmum attention in Uganda law literature although internationally, there is much written about the subject. However, a more indcpth dis-course pertaining the subject has taken place particularly in light of the labour laws. Barya (200 1 )3·1 analyses the development of labour law and trade unions from the colonial period up to 1987. 1-le was majorly concerned with the role of law in the development of trade unions in Uganda- instead of fortifying the need to protect and promote the rights to freedom of association. However, the same author later on analyzed the Ugandan labour laws and made some proposals which arc now reflected in the current labour laws of 2006. 34 Barya PhD (2001), Trade Unions and the Struggle for Association space in Uganda. Working paper No. 63 9 Having the new labour laws which intend to expand the organizational space and provisions in Uganda's 1995 constitution relating to labour rights without a clear mega focus on. the right to association met with unclear restrictions/ requirements falls far below the international standard threshold set by ILO. A considerable work by Barya deals with specific and broader perspectives on the issue of work rather than the right to freedom of association. For instance, one deals with the comparison between NOTU and UMA (2002), another deals with vanous aspects inlighi of termination of employment contract in different African countries and, another focusing on the relationship between trade unions and policies in Uganda since 1986. Angeret (1998),35 ln his literature delves majorly on the relationship between rights and government economic policy specially in regard to health and education but left out l.he relationship to workers' freedom of association. Juma Okuru (2005)36 examined the impact of trade unions involvement in the political and economic reforms under the NRM government, the contact with civil society and NGOs, the impact of globalization and neoliberalism on the labour movements generally and implications for the democratic process. He also stresses out the negative effects of SAPs and neolibcralism on Ugandan society and the labour movement in particular. Of note is that, the author was not specifically addressing the law concerning the right to freedom of association but instead points out thai SAPs have brought in a formula of casual labourers whose labour rights may not be easily enhance and enforced by law. J. Mugerwa (1999)37 specifically elaborates on a broad perspective on the rights of workers during the process of privatization. Throughout his discourse, the author recognizes the rights of persons to work and job security while in the 35 Angeret (1998) Trade Union law in Uganda, Kampala. 35 Juma Okuru (2005) "Trade Unions; lmpacl on the political and economic Reforms on Government policies and the civil society" 31 J. Mugerwa (1999) "Job Secueity during privatization" 10 trajectory of privatization. However, the author left out a more and pertinent aspect of right to freedom of association. Nowhere does he, in his writing, highlight or even mention the law regarding right to association in Uganda. Asuman Kiyingi3B on the other hand, focused on the limitations imposed by the existing social security law in Uganda. These testifies that a number of authors have dealt with the issues of labour in a more general perspective without considering a minimal focus on the right to freedom of association and yet this constitutional right ought to be agitated for by all citizens and has to be protected by the state and made available to all people. Ogenga Otunnu ( 1992)39 observes that there is a close link between human rights and economic development and that, the economic underdevelopment of Uganda imposes further constraint on the capability of the state to perform its role in the area of J:uman rights. However, the author seemed not have recognized and appreciated the economic boom which Uganda would enhance due regard is accorded to the right to freedom of association and expression. Therefore, he does not consider the impact of trade unions to the economic development of the economy brought about by a well-intentioned legal regime. Henry Odimbc Ojambo ( 1992)~0 Discusses the constitutionality of the limitations on the freedom of expression specifically, the author opposed the sedition law by condemning its objective. He also discussed the vigina monologues and the mabira forest demonstrations as a case study in his book. Thus, he points out that the freedom of expression is being affected by; The achaic provisions of the law which claw back the right and the weakness of the regulatory framework employed by government. 38 Asuman l 11 Although the author's view is meritorious, he does not demand the government to be subject to the law instead he limits his findings to the weakness of the regulatory mechanism used by government. Edison Lanza (20 17)" 1 observed that although freedom of expression enjoys the same protection, whether it is exercised on the internet or through other media, the conditions for the lawfulness of limitations on the right to freedom of expression on the internet reqwre addressing the special characteristic inherent to the web. The author does nol realize that all persons are equal before the law irrespective of the consideration on the impact of the restrictions on the individual private citizen directly affected by the measure as well as the impact on the operation of the internet. F'rank La Rue (20 11 )42 propounds that although freedom of expression IS guaranteed by law, the limitations imposed on it make it a non-absolute right but the limitations must be immunized against interpretive abuse or disproportionate application, including the opportunity to challenge and remedy an unjustified restrictions. The above consideration deserves no amount of doubt of its veracity except thal the author left out the need lo demand the disclosure of the legislative objective aimed through the imposition of limitations on the right to freedom of expressiOn. 1.6 OBJECTIVES OF THE STUDY 1.6.1 General Objective To assess the law on protection of freedom of expression and association in Uganda between 1995 and 2018. 111 Edison Lanza; "National case Law on Freedom of Expression" 2017. 112 Frank La Rue; 'promotion and protection of the Right to Freedom of Opinion and Expression' par 24. 12 1.6.2 Specific Objectives To explore the right to freedom of expression and association as well as identify the obstacles to their full enjoyment and offering alternative solutions. To investigate, gather and carry out an assessment of the information related to the freedoms of expr-ession and association. 1.7 JUSTIFICATION OF THE STUDY The study benefits the ignorant sections of the public which are not well acquainted with the right to fre~dom of expression and association right from the time they plan to make speeches, plan to assemble, during the assemblies or association meetings and also when government intervenes while exercising their right. The study benefits government bodies like security agencies the judiciary and the legislature that arc duty bound to enforce, draft and interpret law respectively. A benefit ~o human rights activists is hereto envisaged and adding to the body of knowledge already in existence. 1.8 HYPOTHESIS 1. The study scnsiti;ccs the masses that the right to freedoms of expression and association or assembly arc inherent and not grant by the state. 2. The study endeavours to assess the law providing for freedom of expression and association while in persuit of justice. 3. The study is so timely that it was conducted at the time of rampant cases of torture against those who exercise the right to freedom of expression and association. 13 1.9 METHODOLOGY This research was based on qualitative research paradigm where data is obtained from both primary and secondary methods (sources) that is; library research was extensively and intensively carried out. Information was obtained from the judicial and annual reports, government documents, textbooks, law journals and internet etc. The data obtained was used for examining the legal framework on the rights to freedom of expression and association in Uganda and determining their applicability. The doctrinal method of research was preferred to the other method because of ready materials obtained from the named sources above. 1.10 SYNOPSIS Chapter two covers the historical development of right to freedom of expression and association as well as the current legislative and regulatory framework and how it affects the freedom of expression and association. Chapter three deals with the conduct of the Ugandan authorities when enforcing and interpreting the legal framework on freedom of expression and association. Chapter four covers obstacles t.o the enjoyment of freedom and association after the assessment of the current legal regime on freedom of expression and association in Uganda. Chapter five covers the findings, alternative suggestions and recommendations for improvements of the freedoms of expression and association in Uganda and thereby makes a final conclusion. 14 CHAPTER TWO HISTORICAL DEVELOPMENT OF FREEDOM OF EXPRESSION AND ASSOCIATION 2.0 Introduction This chapter discusses the historical development of the right to freedom of expression and association right from 1995 as well as the current legislative and regulatory framework propounding on the right to freedom of expression and association. 2.1 Historical development of the right to freedom of expression Freedom of expression, as a right in Uganda, has been in existence right from the colonial lime but the administrators of the time then, harshly reacted against the criticisms and political views held in the press. This infringement on freedom of expression climaxed with the enactment of legislations43 to buttress the negative resentment held by the colonial masters. The rhythm continued up to the post-colonial era. Currently, the freedom of expression is part of the rubric of rights guaranteed under the law~~ The freedom extends to the press and other media and there has been libcralisation of the press and the media, a process that occurred long prior to the 1995 constitution. This has been evident in the mushrooming of privately owned radio and television stations and newspapers. The enactment of the press and Journalists Act in 1995 was largely to foster freedom of expression by providing for a regulatory framework for the press and media as well as the practice of the profession of journalism45 The Act (then Statute) repealed the notorious Newspapers and Publications Act and Press and Censorship Act. "The Press Censorship and Correction Ordinance No. 13 of 1948 are the Penal Code Act of Uganda (now Cap 120) 5.49 and 53 "Article 29 (1) of the 1995 Constitution of Uganda as amended "The press and Journalists Act Cap 105-The preamble to the Act states that the law is aimed at ensuring freedom of the press. The Act was before the law revision in 2000, statute No. 6/1996. 15 Despite of the liberalization of the media and the press, the exercise and enjoyment of freedom of expression and the press has since 1995 remained hampered by a number of laws (some are remnants of the colonial period) as well as by administrative measures. In that regard, although the government repealed key restrictive laws, it retained the penal law provisions on among others sedition and publication of false ncws46 that continue to exist including those on libel and defamation, obscene and pornographic publications, incitement of violence (hate speech) and publication of information prejudicial to security.47 The retention of these penal law provisions a serious setback on the enjoyment of freedom of expression and press. Furthermore, even if the press and Journalists Act repealed repressive laws, it nonetheless sought to provide for supervision and control of the profession of journalism through a government appointed and controlled media council. Infact, litigation before the courts since 1995 with regard to media freedom has been in respect of restrictive provisions of the law, including the press and Journalists Act. On the other hand, the administrative measures have included cconom1c blockades, conseorship and seizure- The media council and government have used these measures in a number of instances since 1995. 2 .1.1 Historical development of the right to freedom of association Freedom of association is one of the rights provided for under Article 29 (1) of the Constitution of Uganda as al?endcd. Alongside with freedom of expression and assembly, these rights have been held to form the foundation upon which a democratic society is built on.1s However, before the promulgation of the 1995 constitution, a so called "gentleman's agreement' to suspend political party activities (in favour of non partisan broad-based government) would give way to almost ten years ( 1986 - 46 Penal Code Act Cap 120 S.40 and SO 47 Penal Code ActS. 37, 51, 179 a'nd 180 "On free expression in a democratic society; see Onyango Obbo & Anor V Attorney General Constitution Appeal No. 2/2002 for association and assembly See Dr. Paul Ssemwogerere & 5 ors V Attorney General Constitution Petition No. 5/2002 (CC) (unreported) 16 1995)•19 of severe restrictions upon the freedoms of association and assembly an attempt, in 1994, to challel)ge the restrictions upon these freedoms by provisions of the 1993 constituent Assembly statute was unsuccessful50 As a ray of hope, the enactment of the political parties and organizations Act51 was expected to finally deal with the regulation of the activities of political parties. However, this law was equally challenged before court due to the infringement it orchestrated upon the rights to freedom of association and assembly. The proponents of the movement system contended that the constitutional provisiohs do not bar off multi-party advocates from contesting for political offices (and in fact many have done so) However, this is one of the premise of the highly 'dubious individual merit' principle. In preventing one form contesting on a party ticket, this would nonetheless constrain one's exercise of the freedom of conscience and political opinion52. Ultimately, with no official opposition (with a monopoly of the political space in favour of the movement), this gave way to political repression and intolerance of divergent and alternative ideologies and political opinions The ostracism of Dr. Kiiza Besigye for this criticism of the movement in 2002 is a manifestation of this calamitous situation, as well the sacking of the ministers (Eriya Kategaya, Bidandi Sali and Maria Matembe) who voiced opposition t.o the 'third term' in March 2003.53 However, even long before the, concerns over the in-fighting and the re thinking of the direction of the movement by some of its 'historical, and even long before the decision of the courts as regards certain of the inhibitive provisions of the political parties law, there had already been controversy over a number of issues. Firstly, there was the concern over the implications of 49 This was manifested in the de facto one-party state of Obote I regime (1969 -1971) and Amin's suspension of political activities See: Suspension of Political Activities Decree No. 14/1971 50 Dr. James Rwanyarare & Nor. V. Attorney General, Constitution. Case No. 1/1994 (HC) unreported) 51 Political parties and Organisations Act, No 18/2002 51 Protection and Enforcement of Human Rights P. 31 53 Ibid P.31. This law found in Article 270 was later Repealed due to its absurdity. 17 monopolization of political space, m favour of the movement, upon freedom of association and assembly. It was argued that articles 69, 70, 71, 73 and Article 270 of the 1995 constitution not, only denied the political space to the parties, but also curtailed the freedoms of association and assembly, especially the activities that were proscribed and yet underpinned these freedoms.54 The Human Rights watch aptly summed the situation as follows; The emphasis on the right to freedom of association as a right to engage in effective association in community with others is of crucial importance in the context of Uganda, and points out the incompatibility of the restrictions which were contained in article 270 of the constitution with the right to association. Although Article 270 allowed parties to exist in name, it effectively deprived them of their essential purpose for being, by prohibiting them from engaging in any way in a contest for political power ..... Article 270 prohibits political parties from 'opening and operating branch offices', 'holding delegates' 'conferences', 'holding 'public rallies', sponsoring or offering a platform to or m any way campaigning for or against a candidate for public office', and 'carrying on any activities that may interfere with the movement political system for a time being. 55 Secondly, there was concern over the true nature and character of the movement, so conveniently characterized as a 'political system' under the constitution- for inspitc of the movement leadership's denials that the movement was a political organization, the reality has been that the movement Act of 1997 replicated the struc;tures of an organization that was a political party in all but name. ln its continued denials of its true charact.cr, the movement. sought to shed itself of t.hc constit.utional restrictions that would otherwise apply to it if it were a party while, at the same time, allow it to continue to show case that it. had not created a situation of a one- party state. 54 supra 55 Human Rights Watch, Hostile to Democracy: The Movement System and political Repression in Uganda, New York, October 1999. This exposition parallels the reasoning of the constitutional court later in 2003 in respect of certain provisions of the 2002 po'litical parties law 18 In the end, inspite of manipulations that defined the 1999 referendum law and 2002 political parties law, the pretcntions of the movement eventually caught up with it. 56 2.1.2 The current legislative and regulatory framework on right to freedom of expression. The enjoyment of freedom of expressiOn without interference is one of the highly coveted component of democracy thus, it is submitted that democracy exists when there is freedom of expression on all matters, and equally for all, to communicate with other members of the society.s7 The Ugandan Constitl,ltionss provides for the right to freedom of expresswn proceeds further to prescribe the neighbouring rights such as freedom of speech, freedom of press and media, freedom of thoughts, conscience and belief entailing academic freedom in in,stitutions of learning. However, Article 43 of the Constitution provides that limitations on human rights must be acceptable and demonstrably justifiable in a free and democratic socicty.59 Despite of the freedom of cxpresswn being a fundamental right, numerous criminal legislations in Uganda claw back the constitutional protection bestowed on it. PCA criminalizes some conducts by the journalists, such as the crimes of sedition, promoting sectarianism incitement to violence, and libcJ.60 Journalists in a number of instances have been charged and arrested for allegedly having breached the law.6J The Anti-Terrorism Act of 2002 bears the attitude that a journalist may be imprisoned for up to 10 years if found guilty of publishing or airing information that is deemed to promote terrorism. Under "Since 2002, The Movement has sought to recast and portray itself as a' political organisation' (rather than as a' political party'), which is merely intended at a new variety of confusing nomenclature. 57 Howard Zinn in Points of view 11 19 the act, coverage of opposition politicians, dissidents, and rebels is potentially criminal. The PCA grossly shrinks the media operations and criminalize certain actions due to its restrictive provisions. ~n fact, these provisions are "(either in total or in very significant part) manifestly unconstitutional, (and) ... almost all relics of the colonial epoch."62 The PC/\ under 8.37 also criminalises the publication of information regarding military operations, strategies, troop location or movement, location of military supplies or equipment of the armed forces or of the enemy. This provision hampered the work of journalists in Uganda most especially during the LRA insurgency in Northern Uganda, where according Uganda Media Development Foundation, journalists could not accurately and objectively report on the conflict due to this provision. F'urtherly, the PCA outlaws63 the dissemination of seditious material that includes any intention to bring il'lto hatred or contempt or to excite disaffection against the person of the president, the Government as by law established or the constitution or to subvert or promote the subversion of the Government or the administration of a district. A violation of this provision attracts a penalty of imprisonment upto five years or a fine not exceeding fifty thousand shillings. The legislation further grants courts of law the authority to confiscate printing machines on which seditious materials was pointed and to prohibit the production of the pub.lication for upto one ycar.64 Thus, the ultimate sum of these strigent provisions within the PCA is that they impinge on the journalists' or the broadcaster's ability to fully realize end enjoy his or her right to freedom of expression. Besides, they forcqfully instill a concept of self-censorship that is grossly hazardous to press freedom due to the self restriction. 62 Joel Oloka- Onyango, "The limits of free Expression under Museveni," Uganda journalism Review, No 1, 1999 page 19. 53 5.39 of the penal Code Act Cap 120 64 5.40, 42 of the Penal Code Act Cap 120 20 In the wake of the twin bombing of the world Trade center in USA,65 the parliament of Uganda joined the global fight against terrorism by enacting the Anti-Terrorism Act, a law that piles extra burden on the media fraternity, specifically in regard to coverage of any particular terrorist organization, and imposes a possible sentence of death on those found to have violated the law. Again, journalists arc viewed as criminals if they meet or speak with people or groups labeled as terrorists and equally attract a possible sentence of death one conviction.66 It further condemns disclosure of information that may prejudice on investigation concerning tcrrorism.67 The Anti-Terrorism Act also coerces the journalists to disclose the sources of information6s which is widely protested against by the media practitioners as being a means of discouraging their news sources from providing leads to stories. The Act also makes reporting in conflict areas particularly difficult because it docs not offer a clear definition of a terrorist organization; instead it lists a series acts which once cbmmittcd "for the purpose of influencing the government or intimidating the public or a section of the public and for a political, religious, social or economic aim, indiscriminately without due regard to the safely of others or property ..... " The Presidential Election Act and the Parliamentary Elections Act 2005 (as amended) avails equal provision of access to information and the media as well as the duties of the media houses in regard to campaigns and candidates. That is; "all candidates are to be given equal treatment by state-owned media.69 And that, a "candidate in an election shall not be denied reasonable access to and 65 See https:www.greatdreams.come/trade.htm last visited on 17/6/2019. "FHRI. The right to Freedom of Association and Assembly, Human Rights Status Report for period January May 2007, p.66 67 S.ll of the Anti- Terrorism Act 2009 68 Ibid. 69 S.24 of the Presidential Election Act 200S 21 use of state-owned communication media.70 This was upheld by court m the case of Dr. Kiiza Besigye V UBC. The Uganda communi.cations Act also sets the requirements of broadcasters that, "No person shall, without a license issued under this Act- (a) establish or use any radio communication station, posses radio communications apparatus, or provide radio communications services (c ) manufacturer, possess, install, connect or operate any radio communications apparatus or interference causing apparatus,7t 2.1.3 The current legislative and regulatory framework on the right to freedom of association The right to freedom of association connotes the right to form societies, clubs, and other groups of people, and to meet with people individually, without inference by the govcrrimcn t. The right to freedom of association ts secured in Uganda's constitution72 that provides for the right to associ~tion which shall include freedom to join and form associations or unions including trade unions. Furtherly fortified in the sense that workers have a right to form or join a trade union of his or her own choice for the promotion and protection of his or her economic and social interest or for collective bargaining and representation. The precious weight of this constitutional provision is that, as a central aspect of democracy, people should be at liberty to gather to engage in common interests, discuss or demonstrate and that organi:;;ations can be formed for different purposes. 70 State owned media include radio and television under the Uganda Broadcasting Corporation and the New Vision and its local language subsidiaries 71 Uganda communications Act Cap 106 S.23 72 The constitution of Uganda 1995, as amended Article 29 (1) (e) and further elucidates on that under Article 40. See the labour unions Act No. 7/2006 S.3 and 4. See public standing Orders 2010 (under part Gin respect to public Officers) 22 It is the concept of interdependence and indivisibility.73 Of human rights which links the freedom of association to the freedom of assembly in that improvement on one right denotes improvement of the other and infringement of one amounts to the violation of the other. Suffice to note that the framers of the Ugandan constitution of 1995 were alive to this concept and engraved it within the legal regime inforce71 These rights (right to association in particular) are universally protected by UNUDHR,75 UN1CCPR76 and the European Convention for the protection of Auman Rights and Fundamental Freedoms.77 Interestingly, Uganda has ratified the relevant freedom of association international labour Organisation Conventions namely Convention 8778 and Convention 9879 Under Convention 8·7, freedom of association is guaranteed for both workers and cmploycrs80 to establish or join organisaiton of their own choice without prior authorization. Secondly is, the right to formulate their own constitution, elect their own representatives, organize their administrations and activities and also formulate their own programmes. The convention also envisages the right to strike as part of the freedom of association. Workers and employers also have a right to freedom to exist and not to be dissolved by administrative authority except through proper proceedings by judicial process of law as well as the freedom to form federations, confederation and to affiliate internationally. Convention 98 on the other hand, majorly delves into the relationship of employers and their employees in regard to collective bargaining.st Collective bargain is essentially a right of workers, organization but not individuals. 73 See interdependence and indiVisibility principle in Salvatori Abuki V Attorney General Constitutional Case No. 2/1997 (CC) 74 Ibid Article 29 75 Article 20 of UNUDHR 1948 16 Article 21 :22 of UNICCPR 77 Article 11 UCPHRFF 78 Freedom of Association and Protection of the Right to organize conventions 1948 ratified in 2005 79 Right to organize and collective Bargaining Convention 1949 ratified in 1963 80 Convention 87 Article 2, 3, 4, 5 and 6 81 The right to collective bargaining in a collective right endorsed by all members of ILO and also reiterated in the 1998 Declaration on freedom of Association and Fundamental principles 23 Organizations must be independent and must not interfere with each other's activities. In particular, workers organizations must not be under the control of employers or employers' association. However, under Article 6, the convention does not apply to armed forces and the police thus, national laws may exclude them from its application but provide alternative protection through relevant legal instruments. The relevance of these conventions IS to enhance the right of everyone to associate freely for ideological, religious, political, economic, labour, social, cultural, sports or other purposcs.S2 Cognizantly, its worthy to appreciate the dual nature of the right to "assembly: and "association" which arc usually used interchangeably. When reference is being made to congregation, demonstrations, or gathering for legal purposes, then "assembly" is the most appropriate feature of the right. Conversely, where reference is being made to the act of formation of groups and organizations, "association" is the more relevant component of the Right.83 Freedom of association applies to any group of individuals or the legal entities brought together in order to collectively act, express, promote, pursue or defend a field of common in tcrcst. This right co,vcrs civil society organizations as well as trade unions, political parties, foundations, professional associations, religious associations, cooperatives and any other forms of group-not-for -profit activity. 84 2.1.4 Conclusion Freedom of association 1s guaranteed in the constitution but often restricted. Workers' rights to organize, bargain collectively, and strike are recognized by law, except for workers providing essential government services. However, legal 87 See the American convention on Human Rights Article 16 83 Political Question Doctrine in Uganda: An analysis of the technicalities on the realization of the freedoms of expression, association and Assembly. By J. Oloka- Onyango P. 28 also see Chapter Four, A simplified Guide to Freedom of Expression and Assembly in Uganda: What you need to know about your expression and assembly freedoms, at P. 12 " supra 24 protections often go unenforced. Many private firms refuse to recogni>:c unions and strikers arc at time arrested. The civil society in Uganda remains vibrant, and several NGOs address politically sensitive Issues. However, their existence and activities are vulnerable lo legal restrictions and the manipulation of burden some registration requirements. Freedom of expression is one of the fundamental human rights provided for under the constitution of Uganda 1995. It entails the individual liberty of every person to freedom of speech and .expression and extends lo the press and other media. This has accelerated the swift development of mushrooming radio stations, television stations, news paper publications. It is also accountable for the available space of political dialogues carried out by both government officials and the opposition politicians. Its worthy to note that some members of the general public arc equally free to participate in any political debates and talk shows. Any member of the public mandated to air out his or her opinion in relation to the field of.social, economic and political to the extent that it docs not infringe on the rights and freedoms of others in Uganda. However, much as the constitution provides for right to freedom of expression, the enjoyment of such right has' been limited in a number of cases under the auspices of Article 43 of the constitution of Uganda 1995 as amended. Right to freedom of expression and association are some of the first generation human rights which majorly deal with liberty and participation in political life. They are fundamentally civil and political in nature and serve to protect the individual from excesses of the stale. Hence, first generation rights are political norms which prim':rily Impose responsibilities on governments and international organi>:alions thus establishing standards for all countries. 25 Cl:J:APTER THREE CONDUCT OF UGANDA GOVERNMENT AUTHORITIES 3.0 Introduction This chapter discusses the conduct of Uganda authorities when enforcing and interpreting the legal framework on the right to freedom of expression and association. 3.1 Conduct of the Uganda Police Force (UPF) The UPF is a government institution established by law to majorly preserve law and ordcrss. The UPF is therefore mandated to protect life property, prevention and detection of crime, keeping law and order, and maintenance of overall security and public safety in Uganda.86 It's often said that no other profession demands a higher ethical standard than that of law enforcement. Police work is a career that requires utmost dedication to doing the right thing. It undeniably and understandably places a tremendous degree of expectation upon officers leading the standards for police ethics to be some of the highest among any profession.87 However, a number of incidences arc notably unprofessional; Police failed to make progress on accountability for over two dozens break-ins at NGO offices, all known for work on sensitive subjects- including human rights and corruption. In two instances, guards were killed, but no one was arrested. ss In September 2018, police raided the three NGOs offices, alleging "illicit financial transactions" and "subversive activities" and froze bank accounts. The organizations publicly opposed amending constitutional limits "See Article 211 and 212 (b) of the constitution of Uganda 1995 as amended 80 See https://www.upf.go.ug/history-of-upf/ accessed on 17'" /6/2019. also see Uganda police Force Act Cap 303 87 See Timothy Roufa in Ethics in law enforcement and policing (www.thebalancecareers.com/timothy-roufer- 974433) visited on llth/6/2019. See also JCS citizen's Handbook on Law and Administration of Justice in Uganda pp.45·46 88 See World Report 2018 by Human Rights Watch https://www.hrw.org/world·report/2018/country chapters/Uganda. accessed on 17th /06/2019 26 on presidential age. The raids were widely seen as part of a crackdown on civic activism opposed to the change.89 The police failed to end the practice of forced anal examinations of men and' transgender women accused of consensual same-sex conduct. These examinations lack evidentiary value and are a form of cruel, inhuman, and degrading treatment that may constitute torture. Such actions of the police have been orchestrated on the grounds that same-sex conduct remains criminali: The police repeatedly interrupted the campaign rallies for Besigye by usmg force against protesters and even arresting Besigye himself, detaining him before releasing him with no charges laid. Police even opened fire on F'DC supporters in Kampala, killing one and injuring many others. Throughout the 2016 election process, the police targeted F'DC supporters and anyone associated with Bcsigye's campaign. Also, the police raided the F'DC party headquarters as part of the response to government order to monitor all events, ceremonies and functions or civil, and submit reports to the Directorate of Crime Intelligencc.91 All these actions amount to a threat on freedoms of expression and association. The police arrested the Lord Mayor of Kampala Lukwago from his home as he was preparing to leave in a procession to the city centre to demonstrate against age limit rcmovaJ.92 The manner in which the arrest was carried out is inhuman and contravenes the constitution. Such actions are against the right to freedom of expression. The police Besieging of the Action Aid offices in Kampala with about 20 police officers who took charge of the premises and stopped all employees from 89 Supra 90 ibid 91 See the www.theeastafrican.co.ke/news/ea/police-rnonitor-meetings-kampala.accessed on 18th /6/2019 92 https://newvision.co.ug/new-;ision/video/1462069/police-arrests-lukwago-age-lirnitprotests. accessed on 18/6/2019 27 leaving before they started ransacking the offices,93 amount to violation of the right to freedom of association. During the riots in Kampala in September 2009 that left at least 40 people dead, Uganda police and soldiers beat and detained journalists who were trying to report on unfolding events or debate the cause of the riots on the radio. The government shut down four Kampala radio stations without notice or hearing. It also arbitrarily banned open-air broadcasting, known as 'bimeeza', a popular forum for public debate. That. ban remains in force.94 It should be appreciated that the police force is meant to be a pro-people institution. This is c~pccially because their task of keeping law and order requires community confidence, cooperation and participation. What is on the ground however is that Uganda police has been politically abused as a source for reprcsswn and suppres~;non of political opposition and public demonstrations, however peaceful. The use of police to oppress people with political and other socio-economic grievances has made the institution highly detestable and Ugandans hold police in ridicule and contempt. Ultimately the police have not been effective partly because they lack this public support.95 3.1.1 Conduct of the Uganda Communications Commission (UCC) UCC is a body corporate with perpetual succession established under 8.3 of the Uganda Communications Act96 which is duty bound to monitor, inspect, license and regulate communications services; to allocate and license the usc of the radio frequency spectrum and to process applications for the allocation of satellite orbital locations, among othcrs.97 In radio communications systems, UCC considers as conditions and terms for one to be mandated to operate radio systems, "the position and nature of the 93 See. https://ugandaradionetwork.net/story/police·raid·aid-ofices accessed on 18/6/2019 "See. www.hrw.org/news/2010/05/02/uganda-journalists-under·threat.accessed on 18/6/2019. 95 Ayebare Tumwebaze; Salient Concepts in Administrative Law in Uganda September 2008 P. 103 "Cap 106 97 See: S.4 of Uganda Communications Act Cap 106 28 station, the purpose for and circumstances in which and the persons by whom the station may be installed or used.98 The same powers are held by UCC in regard to conditions for telecommunications licenses. ".... to ensure the orderly development and efficient operation of radio communications in U&anda, the commission shall be the exclusive authority to issue (a) licenses for radio communications apparatus and spectrum use."99 "Notwithstanding any other law, the commission shall have the exclusive duty to (g) plan, monitor, manage and allocated to use of radio frequency spectrum"lOO The commission is also legally mandated to "enter and inspect any reasonable lime any place owned by or under the control of an operator in which the inspector believes on reasonable grounds to be any document, information, or apparatus relevant to the enforcement of this Act and examine or remove it for examinations or reproduction"lOl Likewise "any place in which the inspector has reasons to believe that there is any radio apparatus or interference- causing apparatus, and examine any radio apparatus, logbooks, reports, data, records, documents or other papers, and remove the information, document, apparatus, or equipment. For examination reproduction ... "102 Of note is that, the UCC AcL!03 does not specify the nature of interaction between UCC and the Broadcasting council. However, due to the duplication of functions between the two bodicsl01 proposals for their merger were made105 and later realized when an order for their merger was made106_ The merger sparked off legal and constitutional issues which affect the role of law. That is, 98 Supra 99 Ibid 5.27 100 Ibid 28 101 Ibid 5.54 101 Ibid 5.54 103 Supra 100 See 5.6 and 10 of the Electronic Media Act compare with 5.2, 4 and 6 of the UCC Act Cap 106. Compare 5.5 of UCC Act and 5.10 of Electronic Media Act. 105 FHRI interview with Fred Otunnu, Corporate Affairs Officer, UCC. June 18, 207 106 On 15th of March 2009, the then Minister of information and Communication Technology ordered a merger of the UCC and the Broadcasting Council two bodies established by law in Uganda 29 the merger did not result as the amendment of the UCC Act and the EMA which provided for the two bodies, thus, the minister was in effect amending two laws, an action which amounts usurping the powers of the legislature/ parliament and inconsistent with the constitution!07 which lays down the principle of separation of powers. The merger also creates a new body which is mandated to handle both investigation and complaint handling thus comprom1smg with its neutrality thereby making it susceptible to violating natural justice provisions of the law los In April 2017, parliament passed, the much criticized Uganda Communications (amendment) Bill, 2016 which amended 8.93 (1) of the Uganda Communications Act, 2013 to eliminate the system of checks and balances on the minister's supervision of the communications sector. The strengthened power of the minister was witnessed when he ignored parliament's motion to extend Sim card re-registration and instead directed the UCC to switch off all unverified cards in May 2017109 3.1.2 Conduct of Courts of Law The courts of judicature in Uganda arc mandated to administer justice in Uganda 11 0 by virtue of the provisions of Article 126 of the Constitution. Thus, in administering justice courts' of judicature are bound to recognize the following principles; (i) Equality of all persons before the law (ii) Justice shall not be delayed thus justice delayed is justice denied. (iii) Adequate compensation shall be awarded to all victims of wrong. (iv) Substantive justice shall be done without undue regard to technicalities. 107 Article 79 of the 1995 Constitution of the Republic of Uganda as amended 108 Article 28 and 42 of the Uganda's Constitution 1995 and provisions on right to fair hearing under the UDHR and ICCPR. 109 See Uganda Country Report on Freedom on the Net 2017 by Freedom House available at https://freedomhouse .org/ repor t/freedom-net/2017/uganda .accessedon 18/6/2019. 110 Article 129 of the 1995 constitution of Uganda as amended 30 Justice is the upholding of legal rights and the punishment of wrongs by the law enforcement institutions and the courts. Administration of justice is the management and control of the enforcement of laws and dispensation of justice. Dispensation of justice involves the resolution of disputes that arise between individuals, business entities or the state.III Therefore, there are a number of cases in which the attention of courts have been focused to the rights to freedom of expression and association in Uganda; In Nabagesera & 3 others V Attorney General & Another,I12 the applicants sued the respondents seeking a declaration, inter alia, that the action of the second respondent (The minister,of Ethics and Integrity) of ordering the closure of the workshop organized by Freedom and Roam Uganda {F'ARUG) an association, constituted an infringement of the applicants and the participants 'right to freedom of speech and expression guaranteed under Article 29 (I) (a) of the constitution. One of the issues before court was whether the applicants' constitutional rights were unlawfully infringed when the second respondent closed down their workshop. In light of Article 43 ·of Constitution of Uganda, the court held that, "the exercise of individual rights can be validly restricted in the interest of the wider public as long as the restriction docs not amount to political persecution and is justifiable, acceptable in a free democratic society" F'urtherly that, "whereas the applicants were exercising their rights of expression, assembly etc, in so doing, they were promoting prohibited acts which amounted to action prejudicial to public interest. Promotion of morals is widely recognized as a legitimate aspect of public interest which can justify restrictions ..... " Indeed, court was more interested in striking a balance between the rights of individuals in regard to freedom of expression and association as it also observed that, "it was not persuaded on the balance of probabilities that the 111 A citizens Handbook on law and Administration of Justice in Uganda 3rd ed. By Judicial Service Commission P.S 112 (miscellaneous cause No. 33 of 2012) (2014) UGHCCD 85 (24 June 2014) 31 closing of the applicants' workshop slopped participants from discussing human rights and developmental' topics thus violating their rights to freedom of expression." The court recognized and adored the rights to freedom of expressiOn and association but travelled further to state that any activities carried out as to enhance such rights must be within the width of the existing law and in light of Article 21, of the constitution regarding equality before the law, the court in the above case held that, ." .... since the applicants were engaging in promotion of acts contrary to the law which law has not yet been declared unconstitutional they could not enjoy the same protection of the law persons were acting in accordance with the law were enjoying" in other words, court points out that it ' . is the existing law which is prohibiting the applicants from enjoying their rights. This brings to mind the decision made by court in Uganda v Haruna Kanabi and Anorll3 concerning the story involving "Rwanda as the Uganda's 401h district" in which court left our judicial activism and held that, "this court is not a constitutional court. It therefore lacks capacity to interpret the provisions of the constitution beyond their literal meaning. As such, I am of the view that where a state having regard to its supreme law keeps on its statute books a law that makes it an offence to do a certain act and hence limit the enjoyment of a specified freedom, this court shall accept that restriction as lawful and shall go ahead to punish any transgression of the same according to the existing law until such a time as the slate deems if fit to lift such restriction after realizing such restriction violates a certain right." Thus, the court applied the law 'as it is' In Charles Onyango Obbo and Andrew Mwenda Mujuni V. Attorney General, 11 4 the appellants were jointly charged in the magistrates' court on two counts of the criminal offence of "publication of false news" contrary to 8.50 of 113 Crim. Case No. /1997/1995 114 (Constitutional Appeal No.2 of 2002) (2004) UGSCI (10'h February 2004) 32 the PCA. The charges arose out of a story that the appellants extracted from a foreign paper called 'The Indian Ocean Newsletter' and published in Sunday paper monitor of 21st September ·1997 under the headline, "Kabila paid Uganda in Gold, says report" It is in this petition that the courts eventually declared the penal law provision on false news unconstitutional as it unanimously found that the law severely restricted the exercise of the freedom of expression and the press and declared provisions on false news unconstitutional. The justice observed. that, ..... "it is evident that the right to freedom of expression extends to holding, receiving and importing all forms of opinions, ideas and information. It is not confined to categories such as correct opinions, sound ideas or truthful information. Subject to the limitation 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, controversial or unpleasant. Everyone is free to express his or her V1eW. Indeed the protection is not relevant and required where a person's views arc opposed or objected to by society or any party thereof as 'false' or 'wrong'11 S The supreme court regarded that the objective of the law limiting rights according to the Constitution 116 is to prevent prejudice to the public interest while the provisions on false nt;ws in the penal law aims at preventing the publication likely to cause 'fear' and 'alarm' to the 'public' or disturb 'public peace' and in that context, the 'public interest'. Thus, the objective envisaged by the false news provision is not actual danger to the public interest, instead it rather seeks to pre-empt danger to the public interest and, therefore, introduces a speculative clement to endangerment of public interest. Therefore, 115 Page 10 in the Lead Judgement by Mulenga, JSC in Charles Onyango Obbo & an or V Attorney General {constitutional Appeal No. 2 of 2002) 116 Article 43 {2) of the 1995 Constitution of the Republic of Uganda as Amended 33 the objective of Article 43 is not sufficiently important to warrant overriding the right to freedom of expression and the press since the benefit derived in 'self fulfillment from the exercise of the freedom, or from receiving information or ideas from those who impart it' on part of individuals in society outweighed the 'non-quantifiable benefit derived from protecting the public, not against real or actual danger, but in effect against the speculative or conjectural danger' Courts of law have always discharged their mandate or obligations vehemently as envisaged by the constitution.ll7 However, courts have often been obstructed by the political question doctrinellS in which the rights of individuals are jettisoned as a consequence of circumstances dictated by political perspectives. ·A case in point, is the position taken by court in regard to the freedom of expression in Kyagulanyi T/a Bobiwine V. Kampala Metropolitan Police Commander and anorll9 where the respondents were sued for cancelling the applicants music shows, one of the issues before court was whether the cancellation of the applicants' music shows amount to a violation of his right to freedom of expression. Surprisingly, court resolved the issue infavour of the respondents without elaborating more legal justification to support its decision. The court upheld the norms, values and aspiration of the people of Uganda envisaged in Article 126 (I) of the 1995 constitution of Uganda as amended and struck off or declared unconstitutional the Anti-homosexuality Act of 2014. This move appeared to have given the LGBT people a leeway in enjoying their rights including freedom of as~ociation and expression since the law had criminalizcd and imposed gross penalties on the LGBT community. However, the case of Oloka-Onyango and 9 others V Attorney GeneraF20 was a litmus test imposed on the constitutional court which it passed successfully by declaring the Anti-Homosexuality Act 2014 as unconstitutional in light of 117 See JLOS Annual Performance Report2016-2017 118 See political question Doctrine, By. Oloka- Onyango 119 (Miscellaneous cause No 313 of 2017) (2019) UGHCCD 113 (10 May, 2019) 120 (Miscellaneous Cause No. 33 ~~ 2012) (2014) UGHCCD 85 (24 June 2014) 34 Article 2 (2) of the 1995 constitution of Uganda and 126 (1) and 88.145 and 8.146 of the Penal C~dc Act Cap 120 (as amended in 2007). In the case of Nabagesera & 3 Ors V Attorney General & anor,l21 the High Court made a legit decision because it followed the direction taken by the constitutional court in the case of Oloka-Onyango ~ 9 Ors V Attorney GeneraF22 by outlawing the convening of participants to promote homosexuality in Uganda. The judiciary is an independent legal organ comprised of courts of judicature as provided for by the Constitution. The judiciary is entrusted to administer justice through courts of judicature including the supreme court, the court of Appeal, the High Court and other courts or tribunals established by parliament. To thwart the dust of political interference on the duties of the courts of judicature, it's pertinent to consider that the rights to freedom of expression and association can be fully realized when courts are not confronted with executive interruptions as propounded in the doctrine of separation of powers by Montesquieu 123 as well as upholding the rule of law. However, while administering justice, the courts of law ought to be independentl2~ lest there be another occurrence of the 'Black Mamba' incedent.t25 3.1.3 Conduct of the Uganda Law Reform (ULRC). The ULRC is established under Article 248(1) of the constitution of the republic of Uganda. Its primary mandate is to study and keep under constant review the acts and all other laws comprising the laws of Uganda with a view to making recommcnda tions for their systematic improvement, development, modernization and reformt26. 171 Supra 127 Article 129 (1) of the Constitution of Uganda 1995. Also see Sarlient concepts in Administrative law in Uganda, by Ayebare Tumwebaze (2008) P.82 173 Baron de Montesquieu, Charles-Louis de Second at (Stanford Encyclopedia of philosophy) 1 " J. Nyerere; Freedom & Socialism, 1969, pp. 109-104; also see, Montesquieu; L'Esprit des Lois, Hafner publishing Co. 1949, Book IX Cap vi. 125 Uganda; Government Gunmen Storm High Court Again; Security forces Used to Intimidate Judiciary in case of "PRA Suspects": New York, March 5, 2007. 126 See https://u/rc.go.ug last visited on 17/6/2019 35 The mam function of the commiSSIOn as set out under the lawl27, is to study and keep under constant review the acts and other laws of Uganda with the view to the making of recommendations for their systematic improvement, development, modernization and reform with a particular emphasis on; a) The elimination of anomalies in the law; the repeal of obsolete and unnecessary laws and the sim,plification and translation of the law; b) The rel1ection in the laws of Uganda of the customs, values and norms of society in Uganda as well as concepts consistent with the UN charter for human rights and the charter of human and people's rights of the African unton; c) The development of new areas m the law by making the law responsive to the changing needs of the society in Uganda; d) The adoption of new or more effective methods or both for the administration of the law and dispensation of justice; and c) The integration and unification of the laws of Ugandal28. The silence and inaction exhibi-ted by the ULRFC towards harmonizing the various legislations geared towards stiOing freedom of expression and association, is appalling. The laxity perpetuated by ULRFC amidst urgent need to review the law given the enormous mandate bestowed on it, makes the existence of the right to freedoms of expression and association a laughable notion because these laws tend to claw back such constitutional rights and freedoms. For instance, the surveillance on people's telephones and other media under the authnrity of the Regulation on Interception of Communication act 2010 infringes on the right to expression, assembly, association as well as right to privacy. Governments globally have embarked on espionage of their citizensl29 and this comes with .a cost of human rights violations which the ULRFC ought to covert by harmonizing the existing legislations with the 127 S.10 of the Uganda Law Reform Commission Act Cap 25 128 See a Study Report on Electronic Transactions Law 2004. by Uganda Law Reform Commission. 129 See www .cogwri ter. com/ news. prophecy If acts~a bout -geo rge-o rwels-n igh teen-eigh tyfo u r-an d-n ow-o ffica il asset-forfeiture. accessed on 18/6/2019 36 constitution through making recommendations to parliament to effect the change and, where need be, agitate for the repeal of the offending laws by parliament. 3.1.4 Conduct of Uganda Human Rights Commission (UHRC) The Uganda Human Rights Commission (UHRC) as established under the 1995 constitution of the Republic of Uganda.t3o The decision to establish a permanent body to monitor the human rights situation in the country was m recognition of Uganda's violent and turbulent history that had been characterized by arbitrary arrests, detention without trial, torture and brutal repression with impunity on the part of security organs during the pre and post independence cra.t3t The constitution lays down inter alia, the following functions of UHRC; 132 To educate and encourage the public to defend the constitution at all times against all forms of abuse and violation, and to monitor the government's compliance with international treaty and convention obligations on human'rights. In recent past, the UHRC has noted a number of incidents around the country which have caused great concern given their human rights implications thus, the commission has been receiving a number of complaints of alleged human rights violations against some members of the security.t33 According to UHRC, Article 221 of the constitution of Uganda obliges the police to observe and respect human rights and freedoms in performance of their functions. The practice of the police seemingly using and working with stick wielding men to beat up people and disperse public demonstrations in the name of keeping law and order is undesirable. The right to freedom of speech and expression is provided for under Article 29 of the constitution of Uganda and regulated under the laws like the Public Order Management Act 2013, 130 Article 51 of the 1995 Constitution of the Republic of Uganda 131 See www.uhrc.ugibackground visited on 17/6/2019 132 Ibid Article 52 (1) 133 See the zo'" Annual Report pdf by UHRC 2017 available www.uhrc.ug/reports visited on 17 June 2019 37 among others. However, these rights were regularly transgressed by security agencies in the course of their work the UHRC further recommends that, it is the duty of state security agencies to ensure the observance of the enjoyment of rights and freedoms as long as such activities are not in breach of public peace and security.t34 The UHRC is notably to have not ensured the promotion and protection of the right. to freedom of association and assembly in RE: The Free Movementl35 in which the complaints were challenging the provisions of Articles 69, 70, 71, 73, 269 and 271 (3) as inconsistent, with the exercise of freedoms of association and assembly under Article 29 (1) (d) and (c) of the constitution. The UHRC held that it would be beyond its constitutional powers and mandate to declare some provisions of the constitution as unconstitutional. This observation is no less different. from the court's ruling in the earlier case of Dr. James Rwanyarare and Another V. Attorney Genera}l36 where the court held that its impractical to declare the provisions in question as unconstitutional. However, UHRC was .actually congnizant of the provision (Article 269 (now repealed by Article 270) although it never dealt with it when the matter was before it, but instead opted to report it to parliament in this terms; "The Freedom of Association is restricted by Article 269 of the constitution which as the commission has pointed out in its previous reports, is the cause of controversy between the movement and multiparty supporters"1 37 From thence onwards, the UHRC continued to advocate for the protection and promotion of human rights in Uganda.tJS 134 1 See UHRC 20 h Annual Report-pdf also see; www.uhrc.ug/reports last visited on 18/6/2019 135 Complaint UHRC No. 671/1998 135 Constitutional Petition No. 11/1997 137 UHRC second Annual Report to Parliament 1999 P.60 138 See.www.uhrc.ug accessed on 18th June 2019. also see; JSC citizen's Handbook P.l48 38 3.1.5 Conduct of the equal opportunities commission (EOC) The EOC is a statutory body established by an act of parliamentJ39 to operationalizc Article 32(3) and 32(4) of the constitution of Uganda. Thus, the EOC is mandated to eliminate discrimination and inequalities against any individual or group of persons on the ground of sex, age, race, color, ethnic origin, tribe, birth, creed or religion, health status, social or economic standing, political opinion or disability. The EOC is also mandate to monitor, evaluate and ensure that policies, laws, plans, programs, activities, practices, traditions, cultures, usages and customs of (a) organs of state of all levels; (b) statutory bodies and agencies, (c) public bodies and authorities; (d) ' private businesses and enterprises, (c) nongovernmental organizations, and (f) social and cultural communities, arc compliant with equal opportunities and affirmative action in favor of groups marginalized on the bases of sex, race, color, ethnic origin, tribe, creed, religion, social or economic standing, political opinion, disability, gender, age or any other reason created by history, tradition or customt4o. Therefore, the EOC is likewise given an opportunity to investigate or inquire into, on its own initiative or on a complaint made by any person or group of persons, any act, conduct which seems to amount to discrimination or otherwise undermine equal opportunities. rt's also mandated to examine any law, proposed law, policy, culture, tradition, usage, custom or plan which is likely to have effect of nullifying or impairing equal opportunities to persons in employment or enjoyment of human rights 141 . With the rampant violations of the rights to freedoms of expression and association in Uganda142, coupled with the existence of restrictive laws which inhibit the full realization of rights to freedom of expression and association, the loud silence and inactivity towards seeking for a redress is questionable. 139 Equal Opportunities Act 207 S.2 140 Ibid s.14 also see eoc.go.ug/about-eoc visited on 17/06/2019 141 See ibid S.14(2) 142 See Political Question Doctrine, Gy J.Oioka O~yango 39 3.1.6 Conclusion During election periods, the process is often obstructed by removmg the freedoms of expression, assembly and association of citizens. Mostly, violations of this freedom arc done by the security forces. The entire country, Africa and the whole world should be concerned with the violations of human rights in Uganda. Mostly in recent years, events including the halting by the police, in ,January 2002, of a planned UPC procession at the constitutional square and a later attempt to address a I?Ublic rally of the party head quarters at Uganda house that ended with the police firing into the crowds, killing a journalism student at the scene. The major incidents in 2005 include the several tear-gas battles between police and processions _of FDC supporters in the city [Kampala] and the dispersal of a procession of the 'Batalca' heading to parliament. Ultimately, the nature of the movement governments intolerance for any opposition has resulted in the involvement of the police (and other armed groups) in the forceful dispersal of even gatherings for burials and graduation ceremonies as well as MP's eonsuitative meetings with constituents. This amounts to infringement of the rights to freedom of expression and association as well as assembly among other human rights. 40 CHAPTER FOUR OBSTACLES TO THE ENJOYMENT OF THE RIGHTS TO FREEDOM OF EXPRESS~ON AND ASSOCIATION 4.0 Introduction This chapter discusses the obstacles to the enjoyment of the right to freedoms of association and expression after the assessment of the current legal reg1me in Uganda. 4.1 Obstacles to the enjoyment of the right to freedom of expression and association Restrictive laws; gover.nments decision to retain and promulgate some of the laws which restrict the enjoyment of freedom of expression and association is grossly repugnant to the spirit of the constitution 1 ~3 in regard to Article 29( 1)(a) and (e). These lawsi 4 4 derogate on the freedom of association a right to freedom of expression and press as well as the freedom of association. Although social media is castigated for propagating propaganda, OTT14 5 is not the solution. Instead, government has opted to stifle the role played by technology in spurring enterprise, innovation, exchange of idea and quick flow of ideasl•l6. On the legal palour, OTT tax is inconsistent with the right to freedom of expression and free media and so. It is illegal as it further amounts to double taxation. Article 29 of the constitution provides for freedom of speech and expression which entails freedom of the press and other media to every citizen. It is a prudent practice to be well acquainted with the fact that law is never static but rather dynamic' and this comes into play when the cardinal principle of constitutional interpretation 1s invoked which v1cws the constitution as a living document and requires that the constitution be constructed to not. only accommodate the present, but also the future vn Supra. 144 The Exercise Duty (amendment) Act 2018 145 Over the Top tax introduced under the Exercise Duly (Amendment) Act 2018 146 Denis Birungi, ITT tax is violation of Freedom of speech, published on Daily Monitor 3/7/2018 P.4 41 generations, hence, the framers of the 1995 Constitution of Uganda by including the phrase "other media" were alive to the consideration that technology would bring about other forms of expression to which social media now falls. Whereas, access to media, including social media is a right available to every person as envisaged by the Constitution of Uganda 1995 as amended, the right is not absolute. Thus, it can be curtailed legally by government. However, it is never a sound legal practice that having paid a price, for example in form of airtime (which comes along with an indirect tax), the citizens/people who arc the right bearers, should pay extra if they choose to use the already paid for media platform for particular activities, namely connecting to social media platforms. To do is to suggest that for one to exercise their freedom of speech and expression in particular ways, they need a license/permission from government. That permission is now given to use by the government after payment of extra tax. The purpose of this tax is clear, it is a disguised restriction on freedom of speech and expression. Of course, proponents of the tax will argue that freedom of speech and expression is not absolute and may be limited by law1<1 7 However, the depth of the law is vehemently vivid; that government can only limit the enjoyment of a right where the enjoyment prejudices the rights of others or public interest and that the limitation must not be beyond what is acceptable and demonstrably justifiable in a free and democratic society. Should we say Uganda has now joined other 'democratic societies' such as China, North Korea etc in limiting internet freedom? It has been argued that OTT tax is partly used to curb what the president calls "gossip"l48_ While government has a legal mandate to usc fiscal policy in controlling the behavior of citizens, the mandate becomes an overreach when it intrudes a citizens constitutionally guaranteed rights. The criteria upon which a stale may limit citizens right under Article 43 was stated in the case of "'Article 43 of the Constitution of Uganda 1995 as amended. "' https:/(www.dignified.com/32755/uganda-tax-on-ott-services-effected-1st -july-2018 accessed on 18/6/11 42 Onyango-Obbo V Attorney Genera}H9 where the court held the to limit a non absolute right; the legislative objective, which the limitation is designed to promote, must be sufficiently important to warrant overriding a fundamental right. The measures designed lo meet the objective must be rationally connected to it and not arbitrary unfair on irrational considerations. The means used to impair the right must not be more than necessary to accomplish the objective. Thus, for a limitation to be constitutional, it must pass the above. With regard to the OTT lax, the legislative objective of is to control gossip and raise revenue, both objectives not sufficient to warrant overriding freedom of expression. The measures used namely, payment of lax is unfair to citizens because it amounts to double taxation. Article 29(l)(a) provides for every person's right to "freedom of speech and expression which shall. include freedom of the press and other media [provision should be read together with Article 41 (1) which states that citizen has a right of access to information in the possession of the or any other organ or agency of the slate except where the release information is likely to prejudice the security or sovereignty of the or interfere with the right to privacy of any persontso_ The provision of Article 41 have been furthered elaborated in the Access To Information Act (2005) and Access to Information Regulations of 2011. Limitations to both freedoms arc preserved under Article 43 of the Constitution. Other laws affecting the freedom of expressions are; the Press and Journalists Act 2005, the Anti-Terrorism Act of 2002, The PCA151 Public Order Management Act, 2013, The Regulation of Interception of Communication Act 2010, the Uganda Communications Act 2013, The Anti Pornography 2014, and The Referendum and Other Provisions Act 2005 among others. All these laws have provisions with serious implications for the "' Onyango- Obbo V Attorney General Constitutional Appeal No. 2 of 2002 150 Supra p.17 151 Supra 43 protection of freedom of expression in the county. A number of them have been challenged in the courts of law with varying degrees of success. F'or instance the case of Andrew Mujuni Mwenda & East African Media Institute V Attorney Generalt52 which added more fuel to the stoked fires of expression, following remarks made on radio about public holidays announced to mourn the late south Sudanese President ,John Garang, Mwcnda was charged with sedition. The petitioners challenged both the offences of sedition and that of sectarianism in the PCA. While finding that the charge of sedition offended the provisions of 1995 Constitution on freedom of expression, the constitutional court held that, " ...... The wording creating the offence of sedition is so vague that one may not know the boundary to stop at, while exercising one's rights under Article 29(1)(a) .... It is too wide and it catches everybody to the extent that it incriminates a person in the enjoyment of one's right of expression of thought. Our people express their thoughts differently depending on the environment of their birth, upbringing and the education. While a child brought up in an elite and God fearing society may know how to address an elder or leader politely, his counterpart brought up in a slum environment may make annoying and impolite comments, honestly believing that, that is how to express him/her self. All these different categories of people in our society enJOY equal rights under the constitution and the law. And that they have equal political power of one vote each ... we find that, the way the impugned sections were worded have an endless catchment area, to the extent that it infringes ones right enshrined in Article 29(1)(a)." 153 The case marked only a partial victory since the court refused to find that the offence of sectarianism - an offence that is both nebulous and vague- similarly offended the Constitution. Nevertheless, it was a robust, vigorous defence of the right to free expression and a movement away from the colonial privileging of governmental authority. This therefore, means' that penal provisions were repealed , except the sectarianism section, in the case of Charles Onyango Obbo And Anor V 152 Consolidated Constitutional Petitions No 12 of 2005 and 3 of 2006 153 1bid 44 Attorney Generaltso, in which the supreme court struck down the offence of publishing false news contrary to S.SO of the Penal Code Act Justice Mulenga pointed out that such a charge was not only inconsistent with the freedom of expression of the press, but it did not. meet the requirements if seeking to limit or restrict human rights in terms of Article 43(2) of the constitution. Before it was repealed, The Anti-Homosexuality Act, 2014 constituted a clear violation of a host of righ ls, including that to freedom of association especially by imposing criminal sanction~ on persons found to be involved "Act of homosexuality", those who aided the act as well as those who promoted it in this respect, the AHA posed as serious risk to non-governmental organizations (NGO's) which were involved in fighting for the rights of this minority group.tss challenged in the case of Prof. J. Oloka-Onyango and 9 others V Attorney GeneraFS6 for not being passed in accordance with the law since these was no quorum in parliament at. the time the bill was put to vote, court held that, the of parliament in e:wcting the Anti-Homosexuality Act without quorum was inconsistent with and in contravention of Article 2(1) and (2) and 88 of Constitution rule 23 of the parliamentary rules of procedure and null and void, and; that the act of t.he speaker of not. objecting that there was no quorum was an illegality which tainted the process and rendered it a nullity. Although decided on what many viewed as technicalities, the case quite clearly marked a very important. one of the court in terms of the safeguard of human rights157 The same cannot. be said of the case of Jacquline Kasha Nabagesera & 3 Ors V Attorney General & Anor (Kasha-2)158, which demonstrated that the political question doctrine can find manifestation even in situations where the facts appear obvious. In kasha-2, minister of ethics and integrity, the Hon. Simon Lokodo broke up a seminar organized by the group Sexual Minorities 4 " Constitutional Appeal No. 2 of 2002 155 Political question Doctrine by J. Oloka Onyango P. 32 156 Constitutional Petition No 8 of 2014 ' 157 Ibid P.33 158 Judgment of Justice Stephen Musota in Jacqueline Kasha Nabagesera & 3 Ors V Attorney General & Anor, Msc. Cause No. 33 of 2012, (2014) UGHC 49 45 Uganda [SMUG[ in Entebbe. The applicants were the organizers of the meeting and sued the Attorney General (in his official capacity) and minister Lokodo in his personal capacity for violations, among others, of the freedoms of assembly and associations. In responding to the claim, the judge concluded that the minister was indeed justified in forcibly closing down the workshop. Turning the reading of the notion of 'public interest.' on its head, court stated, "my reading of the above P,rovisions-i.e Article 43 of the constitution defining the term 'public interest' persuades me that it recognizes that the exercise of individual rights can be validly restricted in the interest of the wider public as long as the restriction docs r;ot amount to political persecution and is justifiable, (and) acceptable m a free democratic society. Whereas the applicants were exercising their rights of expression, assembly etc .... in so doing, they were promoting prohibited acts (homosexuality) which amounted to action prejudicial to public interest. Promotion of morals is widely recognized as a legitimate aspect of public interest which can justify restrictions." It is quite clear that was essentially concerned with freedom of expression and assembly and the arbitrary exercise of state power by an errant government official. Indeed, the judgment in this case was all about homosexuality, moreover approached with a thinly-disguised homophobia a fact evident from the following quote from the judgment; "in my ruling I have endeavored to come to conclusions that while the applicants enjoyed the rights they cited, they had an obligation to exercise them in accordance with the law. I have also concluded that in exercising their rights they participated in promoting homosexual practice which arc offences against morality. This perpetuation of illegality was unlawful and prejudicial to public interest. The limitation on the applicants rights was thus affected in the public in the public interest specifically to protect moral values. The limitation filled well within the scope of scope of valid restrictions under Article 43 of the Constitution. Since the applicants did not on a balance of probabilities prove any unlawful infringement of their rights, they are not entitled to any compensation. They benefit. from an illegality" 46 Suffice to note that, the kasha-2 case is an illustration of a departure from the set up established 111 a series of cases like; Victor Juliet Mukasa and Another v Ugandal59, and Kasha Jacqueline, David Kato Kisule & Onzima Patience V Rolling Stone Ltd & Giles Muhame [Kasha-1]160 where sexual minority groups registered success in obtaining/ enhancing their constitutional protection. In the earlier cases of Mukasa and kasha-1, the courts were careful enough to avoid making the connection to sex orientation or questions of identity but rather chose to protect the right of the LGBT individuals by simply treating them like other human beingsl61. However, the kasha-2 case had implications beyond the LGBT community was also a negative case with respect to the position of the court on the freed of assembly and association. By inordinately conferring excessive' powers government agent to act in arbitrary and draconian manner simply account of the sexual orientation of the individuals involved, the issue well beyond the matter of some-sex erotic's. In effect, the decision basically gave government officials carte blanche not only to arbitrarily decide that certain action is illegal, but also on the most appropriate action to in the circumstances. The kasha-2 case is especially dangerous because reversed basic principles of the law such as the burden of proof and presumption of innocence, underscoring a threat that should alarm an even those who arc not gay. In other words, the political question doctrine162 becomes more dangerous brew once mixed with prejudice and discrimination 163. The NGO lawl6~ passed recently a clear illustration of the executive and legislature's determination to frustrate enjoyment of fundamental rights and freedoms. Where the fight is lost in court, legislation often becomes the new 159 Miscellaneous case No. 24/06, High Court of Uganda at Kampala, Civil Division, 22 November 2008; (2008) AHLR 248 160 Miscellaneous case No. 163 of 2010, unreported, available at: htto://ighre.org/sites/default/files/2010% 20 kasha%20 Jacqueline% 20% 20 Rolling% 20 slone.pdf 161 Political question Doctrine in Uganda by J. Oloka Onyango. P. 34·35 162 Marbury V Medison 5 US. 137 (1803) and Exparle Malovu case (1966) EA 514 163 Ibid p. 35 164 Non-Government organizations (NGO) Act of 2016 47 battle ground. The NGO Act suppresses the freedom of association by subjecting NGOs to harsh, unp)casant and manifestly unfair rules. The act introduces monitoring committees at both district and sub-county levels closely supervise the work of NGOs, who are also subjected to numerous procedures involving the security of permits from the NGO board. To crown it all, 8.44 of the Act bars organizations from doing anything deemed, " .... prejudicial to the security of Uganda and the interest and dignity of Ugandans." The vagueness of such a provision and others of a similar nature is outstanding, although they reflect the broader problem of checkered progress in this area; one step forward can many times be marked by several steps backl65. The threat of stale surveillance stifles the enjoyment of freedom of expression. The government has reportedly 1>ought lo increase surveillance of the internet and mobile phone communications in the context of antiterrorism campaign under the 2002 Antiterrorism Act, and the Regulation of the Interception of Communication Act 20 I 0. The government in 2011 begun a secret program to use an invasive form of spywarc to remotely monitor the computers and communication devices of opposition members, journalists, and activistsl66. Although government denied, the report by privacy international ,The report states that the program sought information that could be used to blackmail its targets. Embarking on such programmes is an intention to depart from the spirit of the constitution which fosters the rights of people to the freedom of speech expression and assembly by ushering in a totalitarian government where the state controls the movements of people, the freedoms expression and speech-a clear restriction in broad day lightJ67 Yet, in Charles Onyango Obbo and Andrew Mujuni Mwenda V Attorney Generall68 the supreme court observed the beauty of article 29(a) 169 that the constitution does not dictate to u;s Supra. 166 See the Report released by Privacy International in October 2015 167 See Nineteen Eighty-Four By George Orwell published in 1949. 168 Constitutional Appeal 2/2000 169 Constitution of Uganda 199 as amended Article 29 (1) (a). 48 any person what should be said or nol. Thus, it is impugned for the constitution, in its current state, to accommodate such state surveillance. Attacks on individual journalists; the exercise of right to freedom of expression has fallen short of the constitution's expectation as journalists are physically assaulted/ attacked by government officials. A case in point is in March 2016, Buganda Road Court Magistrate Gladys Kamasango convicted ,Joram Mwesigye, The F'ormer Old Kampala Division Police Commander (DPC) for assaulting a journalist, Andrew Lwanga. However, Mwesigye escaped the one year jail term when he paid the sh.5m compensation to Lwanga on top of shl million court finet7o Blocking access to news scenes is inconsistent with the freedom of expression as envisaged by Article 29 of the Constitution. Government acts of blocking journalists to news scenes is incompatible with Article 29(1)(a) of the Constitution which tallies positively with an international force under the ausptccs of declaration of principles of on freedom of expression in Africa, which states that right to freedom of expression includes access to information, right to seck, receive or impact information and ideas, either orally, in writing or m pnn. In most cases, government has increased intolerance against what calls "negative press" and thus, rushed into media publication with brutal measures which has led to arrest, detainment, torture and suspension or closure of some media stations. In the run the 2016 elections security officials attacked media outlets they critical of government policies and actions. On 20'11 January 2016 Endiggito F'M, a privately owned radio station, was closed down after opposition Amama Mbabm:i was a guest on a showl71. Thus, with the existence of intolerance to press reporting, it becomes inevitable to sum up that right to freedom of expression is being given a narrow enjoyment in Uganda. •m See https://hrn1uganda-org,_?. I tag=Andrew-lwanga accessed on 13 ~II6 2019 171 https://cpj.org/20 16/02L\Jga '"dan-radio-host -arrested-mid -broadcast-php accessed on 1316119 49 The tough and negative administrative measure employed by government against the negative press is manifested in the manner in which it implements its administrative measures. A case in point is when the police raided the daily monitor offices following the publication of the 'helicopter gunship' story in October 2002 172, on election day, the office of Uganda Communication Commission (UCC) blocked access to Face book, Twitter and Whatsapp between 6am and 9:30am citing an unspecified threats to national security173. In September 2017 owmg to the constitutional amendment fracas m parliamentl 7 ~, Uganda communication commission (UCC) issued a directive to the media houses to selective broadcast parliament proceedings so as not to upset the public pcrsuant to S.31 of the UCC act 2013175. Such actions by government through its agencies casts doubt on Uganda's credence to the African charter on human and people rights specifically Article 9(c) and (2) which provides that, "every i·ndividual shall have the right to rcce1ve information. Every individual shall have the right to express and disseminate his opinions with law." Hence, subject to article 43 of the constitution, it is sound observation that the right to the freedoms of expression, press association are not being sufficiently enjoyed by the people in Uganda. 4.1.2 Impact of legal restrictions to the freedom of expression and association in Uganda. Freedom of cxprcssio11 is best known as the freedom to hold opinions, seek, receive, speak·· and imparl information without undue interference from the slate or other actions. The right to freedom of expression is a fundamental right for all individuals and is key m media prolcction176 . It 1s provided internationally under article 19 of the UNUDHR as well as article 19 of ICCPR. In Uganda, it. is legally stipulated by Article 29(1)(a) of the constitution as a "'Oloka-Onyango.J. 'it is not just media freedom at stake', The Monitor, 22 Oct 2002, P.8 173 http://ci pes a. org/2 016/05/ u ga nda-aga in ·bl ocks-soci a 1- media ·t o-s ti ffle-an ti-m us even i-p retests accessed on 13/6/19 174 https://www.bbc.com/news/av/world.-/Uganda-mps-fight-during -parliament-debate last accessed 13/6/19 175 Ibid 116 The impact of legal Restrictio~s to the Freedom of Expression in Uganda by Francis Kagolo p.l so right though not a non-derogable right within the meaning of Article 44 of the constitution. Thus, its enjoyment is subject to the restriction levied by Article 41(1) which states that, "every citizen has a right of access to information in the possession of the state or any other organ or agency of the state except where the release of the information is likely to prejudice the security or sovereignty of the state or interfere with the right to privacy of any other person". This provision leaves some questions unanswered as it hardens the work of journalists; that us whose privacy is protected, and who decides when privacy invasion has occurred? This stil1es the smooth operation of journalism and thus an obstacle to th(O enjoyment of right to freedom of expression. Article 43 of the constitution further introduces a general restriction on the enjoyment of rights for the good of other people's rights, public interest and security of the state. Indeed the "right of otpers" has become a broad and unspecific justification for limiting freedom of expression in Uganda 177 The right to freedom of association, according to the constitution includes the freedom to form and join associations or unions, including trade unions and political and other civic organizations. The substance of this article is an import from Article 23(1) of the UNUDHR178 which states that "everyone has the right to work, to free choice, employment among other rights of workers. This is further widened to the extent that, "everyone has the right to form and join trade union for the protection of his interests." Thus disclosing the depth of the right to "assembly and associationi79" The ICESCRISo provides that; "the state parties to the present covenant undertake to ensure;( 1) the right of everyone to form trade unions and join the trade union of his choice, subject only to the rules of the organization 177 Supra. 178 Universal Declaration of Human Rights (UDHR) 1948. 179 Article 23 (4) of the UDHR 1948, see also Article 29 (1) (e) of the constitution of Uganda 1995. 180 The 1966, International Covenant on Economic Social and Cultural Rights (ICESCR) Article 8. 51 concerned, for the promotion and protection of his economic and social interests. No rcstrictio!' may be placed on the exercise of this right other than those prescribed by the law and which arc necessary in the democratic society in the interest of national security or public order or for the protection of the rights and freedoms of others, the right of trade unions establish national federation of confederations and the right of the latter to from or join international trade union organizations, the right of trade unions to function freely subject to ·no limitations other than those prescribed by law and which are necessary in a democratic society in the interests of national security or public order or protection of the right and freedom of others. The right to strike provided that it is exercised in conformity with the laws of the country. (2) Thus article shall not prevent the imposition of lawful restrictions o the exercise of these rights by members of the armed forces or of the policies or of the administration of the slate. (3) nothing in this article shall authorize the state parties to the international labour organization convention of 1948 concerning freedom of association and protection of the right to organize to take legislature measure which prejudice the guarantees provided for in that convention." Comparing the ICESCR provisions on right to association to those of convention 87 yields various differences. The restrictions in the ICESCR limit the extent of protection provided by the convention, via the limitations or restrictions allowed on the exercise of the right by "members of the armed forces, of the police or the administration of the state the latter referring to civil servants. Secondly, the covenant also introduces limitations, " ...... necessary in a democratic society in the interest of the nationals security or public order or for the protections afforded by convention 87 are saved by clause 3 of the article 8 of the ICESCR which obliges the state never to "take legislative measures which would prejudice, or apply the law in such a manner as lo prejudice the guarantee provided for in that convention." Thirdly, unlike convention 87, "in conformity with the laws of the particular country." 52 4.1.3 Conclusion The right to freedom of expression and association are rights enjoyable in the society as provided by the law and regard must be held to the fact that these rights are not absolute therefore, their enjoyment can be restricted by government and its agencies. However, the restrictions limiting their enjoyment must be of a reasonable standard within the parameters of the law and such limitation is demonstrably justifiable and acceptable in a democratic society. 53 CHAPTER FIVE FINDINGS., RECOMMENDATIONS AND CONCLUSION 5.0 Introduction This chapter discusses the findings obtained after the assessment of the law on the right to freedoms of as~ocialion and expression in Uganda there by make suggestions and recommendations. 5.1 Findings Obstacles in the enforcement; the freedoms of expressions and association arc rights guaranteed by law in Uganda but the enjoyment is insufficiently enhanced due to the problems of enforcement which is shaped up by the kind of government policies and attitude of government towards these rights. Government's stand, as reflected by the president and the minister of finance indicates that these rights arc viewed as 'populists which hamper investment and economic development and growth of the economy, thus, government views the achievemcn t of rights t() delay the achievements of its objectives. The political question doctrine is a major threat towards the realization of the rights to freedom of expression and association as the judiciary always in a number case tends to vindicate its self from entertaining cases involving the executive with the reason that it is in capable of resolving questions which arc politically charged/motivated and therefore such questions ought be presented before the other two arms of government. The right to freedom of association is not enhanced fully in employment sector, the workers often opt to unionize but unfortunately their union is never recognized by their employers and yet the constitution provides for the rights of workers to form to join associations. Suffice to observe that the right to freedom of association and expressiOn are not absolute. However, the limitations envisaged by Article 43 of the 1995 54 Constitution of Uganda should not be viewed as an open gate for suffocating the enjoyment of fundamental human rights such as freedom of expression. This has been dealt with in Tanzania where the court declared the requirement for a police permit in order for a peaceful assembly to take place as a unlawfu]!Sl It is a considered view that democracy flourishes in a state where the freedoms of expression and association arc upheld by the powers that be so that citizens are free to assemble together or unionize to form groups, associations or organizations wi,th the aim of obtaining a collective vmce as they express their views on matters of public concern ranging from political, social to economic pcrspcctivcs182 Ultimately, at no time should the protection of human rights be left out by any government amidst various national objectives perused for the sake of development. From 1995, whenever Uganda approaches to the election period, the freedoms of expression and association are significantly jeopardized. The human rights watch reports shows· that since 2005, attempts by Uganda journalists lo conduct independent political reporting and analysis in print and on radio have been mel by increasing government threats, intimidation and harassment183 Thus, increased in violation of freedom of expression, assembly and association raises serious concerns especially in regard to the negative measures employed by government such as banning of a political pressure groups calling for peaceful change, harassment and intimidation of journalists and willful obstruction of civil societies activities in 2012184 . The HRW report also indicates interference in and unlawful obstruction of, public gatherings coupled with arrests and detention of organizers and participants. The mayor 181 Rev. Christopher Mtikila V Attorney General ~f Tanzania civil suit No.5 of 1995 181 See Article 7 (2) of the Treaty Establishment of the East African Community as amended on 14'h December, 2006 and 20'h August, 2007 183 Human Rights Watch (2010) The media minifield Report P.2 184 Ibid P.l 55 of Kampala and opposition leader were charged with orgamzmg unlawful assembly with purpose inciting the members of the public against the policetas. Considering the government's actions towards the enjoyment of the freedoms of expression and association, it's an indication that the government is afraid of the internet which now contains websites of Ugandan newspapers and some FM radio stations plus the blogs of individuals. Criticism, once compressed m of a single publication, now swirls around the globe through a myriad of outlets186_ This fear has been exhibited by government since 1986 evidenced by Uganda's journalists their concerns about the impact. of intimidation and government pressure, and al limes the .... Government has cracked down publications that dissent too radically. For example between 1986 and 2004 more than 24 journalists were arraigned before courts on criminal publication offcnccs187 , and this raises questions on the interest, honesty and commitment of government in signing the Windhoek Declaration On Press Freedom and yet this kind of international instrument hold the governments directly accountable for their h.uman rights rccordstas. The threat of state surveillance is escalating as governments repeatedly seeks to increase surveillance of the internet mobile phone communications in the context of anti-terrorism camp'aign under the 2002 antiterrorism act (as amended) and 2010 Regulation of lnterccption of Communication Act. The Computer Misuse Act 2011 is also used by the government to restrict freedom of expression. Despite the fact that the courts of law have declared that Article 29(1 )(a) of 1995 constitution of Uganda does not dictate to any person what should be said or not189 and that it is impugned for the constitution, in its current state, to accommodate such state surveillance, government has 185 Ibid 186 Benard Tabaire (2007) The Press and political Repression in Uganda Back to the future? Journal of Eastern African Studies, 1:2, 193·211, DOl: 10:1080/175310 50701452408 P.208 187 See; Bernard Tabaire (2007) p 205 and 206 188 B. Tabaire (2007) P. 204 189 Charles Onyango & a nor V Attorney General Constitutional Appeal No. 2 of 2002, Supreme court of Uganda, 11 Feb, 2004. 56 further shrunk the space available for enjoyment of freedom of expression by enactment of the excise duty (amendment) act of 2018 which imposes excise duty of sh .200 per day of access to over the top (OTI) services on telecommunication service operalorsl90 _ Most of the Ugandans are unemployedl91 with a household income of less than sh.1 200 s pent per day h oweverl92; there is increase in ownership of phonesl93 most especia lly among the youth. The question then is, can every Uga ndan afford the OTI tax? Evidentially, no due .to the economic con straint and therefore failure to enha n ce a conducive ambience for the enjoyment of freedom of expression. The extent and criteria upon which a s late may limit a citizen s' rights under ' Article 43 was laid down in the case of Onyango-Obbo V Attorney General194 that the legislative objective, which the limita tion is design ed to promote, must be sufficiently important to war rant overriding a fundamental right. The m easures design ed to meet the objective must be rationally connected to it and not a rbitrary, unfair or based on irrational consideration s . The means used to impair the right or freedom must be no m ore than necessary to accomplish the objective. There has been a considera ble e njoyment of the right to freedom of expression a nd association in Uganda. The persuit of legality demands that any actions by government must be contemplated within the law and are rational. However, the real position in Uganda may not be rosy as it may seem due to th e encumbrances to freedoms of expression and association commonly invoked under Article 43 of the 1995 constitution of Uganda as amended. Neatly, for a limitation to be con stitutional, it must pass the a bove tests prescribed by court. 8.9(1) of the Anti-Terrorism Act 2002 crimina lizes the publication and dissemination of news materia ls 'that promote terrorism', a n expression that is 190 5.3 {b) and 5.6 (e) of the Exercise Du ty (amendment) Act 2018 191 UBOS Report of 2014 shows that 58% of Ugandans are unemployed 192 UNHS Report 2016/2017 by UBOS P. 133 193 According to UNH S Report 2016/2017 by UBOS, only 27% of Ugandans do not have phones. 194 Co nstituti onal Appeal No.2 of 2002, Supreme court of Uganda. 57 obscurely defined and IS predisposed to m1suse and exploitation by the echelons of power. The POMA was enacted to provide a regulatory framework for public assemblies. It however gives wider discretionary power to the Uganda police force to deny and disperse any assembly. It controls rather than regulate assemblies when it subjects free expression to the whims of the inspector general of police to determine whether people as individuals or collectively as associations can freely exercise the freedom of expression. It goes beyond to control the content of. the meeting or gathering - discussions on politics or examining the performance of the elected government, not least its failures. The law contravenes Article 20( I )(2) and 29( 1)(d) of the 1995 constitution of the republic of Uganda for its provisions reverse a constitutional court ruling which repealed 8.32(2) of the Police Act that granted the police to prohibit public assemblies and processationsl95. The PCA196 is a law which was promulgated by the colonialists in 1950. It majorly surfaced to protect the interests of the colonialists. Surprisingly, some of the offending ant-freedom and rights provisions still remain prevalent therein to date. For instance, the act still maintains some provisions that arc injurious to free speech such as 8.41,179 and 180 among others. 8.41 provides that; "a person who prints, publishes, makes or utters any statement or docs any act which is likely to; (a) degrade, revile or expose to hatred to contempt; (b) create alienation or despondency of; (c) raise discontent to disaffection among; or (d) promote, in any other way, feelings of ill will or hostility among or against, any group or body of persons on account of religion, tribe or ethnic or regional origin commits an offence and is liable on conviction to imprisonment for a term not exceeding five years." Interestingly, 8.53 provides, "any person who, without such justification or excuse as would be sufficient in the case of the defamation of a private person, publishes anything intended to be read, or 195 Mwanga Kivumbi V Altorney General Constitutional Petition No.9 of 2005 196 cap 120 (as amended in 2007) 58 any sign or visible representation, tending to degrade, revile or expose to hatred or contempt any foreign prince, potentate, ambassador or other foreign dignitary with intent to disturb peace and friendship between Uganda and other country to which such 'prince, potentate, ambassador or dignitary belongs, commits a misdemeanor." Moreover, Sections 53 [foreign dignitaries], 179 (libel) and 180 [defamation] of the PCA have been invoked by various government officials with questionable credentials of accountability and abuse of public office to shield themselves from public scrutiny by journalists197 The regulation of interception of Communications Act 2010 is a law meant to be a legitimate framework for surveillance, tracking, intercepting and monitoring communications [telecommunications and any other related mode of communication I of persons injurious to national security. The Act provides for the issuance of an 'interception warrant by a judge on receipt of an oral application from a government agency that has 'reasonable grounds' to believe that; (a) a felony has been or will probably be committed; (b) the gathering of information concerning an actual threat to national security or any national economic interest is ncccssary;(c) the gathering of information concerning a potential threat to public safety, national security, or nay national interest is necessary; (d) there is a threat to the national interest involving the states international relations or obligations. With such over sweeping provisions for surveillance, there is fear that sources of journalists shall be prone to disclosure, a negative precedent in the quest for media rights in Uganda198, which includes freedom of expression and association as well. The Anti-Pornography Act 2014 under 8.2,3, 16 and 14 have a great potential top inhibit media freedom in Uganda in regard to the right to expression and association. 8.3( 1) in particular provides that, "a person shall not produce, ,, See https: II hrnuganda.org I ?page-rd=ll65. accessed on 17 'h//6 2019 198 Ibid 59 traffic in, publish, broadcast, procure, import, export, sell, or abet any form of pornography." Under S.3(2) on conviction, the offences attract a fine up to Uganda shillings ten million or imprisonment no exceeding ten years or both. In regard to freedom of association, the two major impediments faced by workers in Uganda and trade unions even after the enactment of the labour laws in 2006 arc; non-recognition of the unions and yet the constitution provides for the workers freedom of association which is fortified by relevant other domestic legislations and international instruments. This discloses that there is a considerable obstacle of laxity on the enforcement of law in Uganda although the right to freedom of association is guaranteed. This right is not absolute in most legislation and this is not a peril given the nature of the right to freedom of association allows such limitations. The international and regional instruments that provide for the right also consider such limitations such as consideration of rights of others, public interest and public order and safety. For these limitations to be legitimate they have to be 'necessary' and acceptable in any democratic socictyl99. There is a narrow legal space for civil society m Uganda which amounts to infringement of the right lo freedom of association. A case in is 8.8 of the Public Order Management Acl 2013 grants the police powers to prohibit public meetings, whereas 8.9 grants the police powers to decide suitable avenues for holding public meetings. Ever since the promulgation of the act, there have been cases of disproportionate isolation and targeting of meetings organized by opposition members and , or civil society representatives. Similarly, 8.44 of the Non-Governmental Organizations Act 2106 prohibits NGOs from carrying out activities in any part of the country unless they have approval from the district Non-Governmental Monitoring Committee (DNMC) and the local government and have signed a memorandum of understanding (MOU) to that effects. NGOs are further restricted from extending their operations to new areas unless 199 Esete B. Faris (2012), Restrictions on the operation of civil society organizations in Africa violate freedom of association 60 they have received a recommendation from the national bureau for NGOs through the DNMC of that arca2oo. The act further requires an NGO to have MOUs with all donors, sponsors, affiliates, and foreign partners, and the MOUs must specify the terms and conditions of ownership, employment, resources mobilized for the NGO, and any other relevant matter. In addition, 8.5 establishes a national bureau for NGOs that is granted broad powers, which under 8.7 includes the power to revoke an NGOs permit. Pressure is being mounted on the NGOs that engage m advocacy and monitoring of government activities. Por instance, on ,July 4, 2018, the UEC informed CCl<:DU that it was suspending its accreditation for its election related activities and did not grant the group the right to be heard. CCEDU was accused of being partisan and failing to adhere to the electoral commission's legal framework and guidelines. Efforts to seek dialogue with the electoral commission did not yield any response, although in February 2019 the suspension was finally lifted2Dt. Despite of the decisions of the courts of law upholding the freedom of expression and the press, several penal law provisions still exist in the statute books and journalists and reporters as well as opposition politicians continue to be arrested and harassed under the cover of these provisions of law. This has been manifested in the arrests (and detention) and abandoned (or penning) criminal proceedings against individuals202 The freedom of association is recognized with regard to not only political parties but also workers orga1iizations. That is; trade unions203. However, the exercise of association rights of workers since 1995 has been uneasy. This is majorly owing to government policies of economic liberalization, which has resulted in the emphasis being placed on encouragement of foreign and local investment 200 Also see www.icnl.org/reseorch/monitor/uganda.htmllast visited on 17/6/2019 201 Supra. 202 Christine Mulandika & 7 Others V The people (supreme court of Zambia 21 November 1995, 10 January 1996 203 Article 29 (1) (d) and 40 (3) of the Constitution of Uganda as amended 61 of the expense of labour rights. The economic policies have been paralleled by a keenness to keep in place labour laws that militate against the growth of a vibrant labour movcmcnt204 Thus, although workers' rights are guaranteed under the 1995 Constitution, respect for them often appears in political rhetoric, but not fully so in practice. A petition to the courts of law in 20042os resulted in workers association rights being upheld, and the provisions of the 1976 trade unions law hindering exercise of those rights being declared unconstitutional-. in particular, the courts recognized the right of 'choice of union' and the formation of wc)rkcrs' associations irrespective of number of workers. The government has since replaced the antiquated trade union law with a new Labour Union Act206 Concerns remain that the 2016 NGO law effectively criminalizcs legitimate advocacy on rights or lesbian, gay, bisexual and transgender [LGBT[ people. 5.1.2 Recommendations The government of Uganda should; Borrow a leaf from other well developed nations like United States of America and United Kingdom on how the rights to freedom of expression and association arc enjoyed and rcg~latcd. This can also be done or realized by offering foreign trips to Ugandan government officials for benchmarking. Discourage some of its officials [most especially[, who contemplate pleasing their political capital/ cloud, from singing to the gallery and concentrate on performing their constitutional obligations thereby enhancing better service delivery as envisaged by the constitution. Adhere to the rule cif law because law ts the one catchment area that constantly puts us to check. That is; government should recognize and respect 204 Bary. J.J. Trade Unions and the struggle for association space in Uganda, working paper No. 63 (2001). 205 Dr. Sam Lyomoki & S Ors V Attorney General 'constitutional Petition No. 8/2004 206 Labour Unions Act, No 7/2006-See e.g S. 9 (1) provides that; 'A registered labour union may affiliate to a registered federation of labour unions'. This new provision recognizes the right of 'choice of union' and replaces 5.2 (1) of the 1976 law that required all trade unions to be affiliated to NOTU 62 its duties and obligations levied upon it by Article 20(2) of the Constitution; "the rights and freedoms of the individuals and groups enshrined in this Constitution arc to be respected, upheld and promoted by all groups and agenCies of government." Specifically, government should recogmzc and respect the right to freedoms of expression and association in Uganda as provided in the 1995 Constitution. Government should recognize and honor all international conventions it's a party/ signatory to in regard to freedom of expression and association. Eliminate anomalies in the law as well as repeal of obsolete and unnecessary laws. Making the laws of Uganda reflective of the custom, values and norms of the society in Uganda as well as international human rights standards. Adoption of more effective methods of the implementation and administration of the law and justice. To the citizens; Citizens need to adopt tolerance of one another and disregard violent political words as not amounting t.o contempt.. Striking a balance between the interests of those who want to express themselves against the interest of others to carry out their business without interference. Make contributions on areas for reform of laws and actively participate in the law making process as well as make suggestions for new areas of law making. 5.1.3 Conclusion The impact of freedoms of expression and association on the democratization process cannot be underestimated. For budding democracies, the challenges remain notably higher, as the measures that govern the proper regulation of 63 the rights to freedom of expressiOn and association are subtle and inexhaustible. Attainment of a reasonable standard of enjoyment of the rights to freedom of expressions and association remains distantly far from realization most especially in Uganda where the constitution and legislative provisions regulating enjoyment of rights to freedom of expression and association arc always being contended against and therefore remain in tension. Hence, the measure of a reasona.ble standard of enjoyment of the rights of freedom of expression and association is not based on the higher number of media houses or NGOs but rather existence of a legal regime that enables their full enjoyment. Human rights advoc<;1tcs have noted that there is a high degree of self-censorship by Ugandan journalists and NGOs as well as a decrease in the level of public debate on the media (radio especially) due to the intimidation mounted on by the government agcnc!Cs. 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