How constitutional court ruling rendered People Power, Independents irrelevant

Sam Mayanja

The Constitutional Court recently declared Section 8 of the Public Order Management Act 2013 unconstitutional.

Removing that section essentially renders the entire Act meaningless as the powers of the police in getting involved in the holding of public meeting has been thrown into obsolescence.

The Public Order Management Act 2013 must be seen within the context of the referendum held on July 28th 2005 pursuant to Article 74 of the Constitution wherewith Ugandans voted for a Multiparty Political System.

The Political Parties’ Organisations Act, 2005 was enacted as the enabling Act, putting in effect the will of Ugandans.

The Act provides for the formation of parties, registration, funding, membership, code of conduct, consultative formula e.t.c.

The other necessary legislation in the multiparty political era was the Presidential Election Act, 2005 which was enacted to provide for elections to the office of the President and qualifications of Presidential candidates.

This Act further made provisions, for the nominations, campaigning, polling procedure, counting, tallying, declaration of results, and the procedure for challenging the declared results.

The Public Order Management Act 2013 on the other hand, was enacted eight years later to provide for regulation of Public meetings and clarified the duties and responsibilities of the police, organisers and participants public meetings and prescribed measures for safeguarding public order.

The Public Order Management Act specifically defined a Public meeting to exclude meetings of the organs of a political party convened in accordance with the Constitution of the Party and convened exclusively to discuss the affairs of the party.

Accordingly, the Public Order Management Act, 2013 excluded from its purview meetings which are organised by political parties.

People Power, or other independent candidates by whatever name called, not being political parties can only hold such public meetings assembly, procession or demonstration in a public place only within the provisions of the Public Order Management Act.

After Ugandans had expressed themselves in the referendum and opted for a multiparty system, Article 72 (4) which referred to independent candidates, became obsolete and consequently parliament did not exercise its mandate under Article 72 (5) to enact an enabling legislation which would regulate the manner of participation in, and financing of elections by individuals, seeking political office as independent candidates.

The Public Order and Movement Act coming eight years after the referendum on the political parties, seems to have come to give room to independent candidates who had come up to stand for presidential candidates or other elective offices but having no allegiance to any political party.

Thus not being a Political Party and therefore not regulated by the Political Parties and Organisations Act, 2005, the independents would need to comply with section 8 of the Public Order Management Act and work with the police to insure law and order in the conduct of such public meeting.

The Constitutional Court having in effect nullified the Public Order Management Act, 2013, the independents are in a limbo regarding the law which regulates their public meetings.

It is not worth that the sum total of the definition of consultation within S. 3(2) of the Presidential Elections Act can only be referring to political parties, for example it is only political parties which can hold delegates conferences.

There cannot be any tears shade by the nullification of the Public Order and Management Act.

If parliament had wanted to put in place a law regulating the conduct of independent candidates it should have done so under Article 72 (5) of the Constitution.

However as stated parliament could not enact any such legislation when the country had decided for a multiparty system.

A political party dispensation would only be operationalised by the enactment of the Political Party and the organisations Act, 2005 and the twin Presidential Elections Act, 2005.

An act operationalizing independent candidates under Article 72 (5) would contradict the will of Ugandans expressed in the referendum for a multiparty system.

Independent Presidential Aspirants therefore, be they of People power, or by any other name called cannot skip the process of registration as a political party in a multiparty constitutional dispensation and at the same time, demand full rights of an aspirant to an elective office, be it presidential or otherwise.

They cannot have their cake and eat it.

They cannot neglect or decline to register as a political party in a multiparty constitutional dispensation and at the same time demand to enjoy all those rights which the law confers to political parties.

A playing field populated by independent candidates in a multiparty dispensation is a constitutional contradiction.

The Referendum of 28th July 2005 was not in vain.

It was a serious political exercise which ushered the multiparty political dispensation in Uganda.

The annulment of the Public Order and Management Act 2013 which People Power or other independent individuals or groups by whatever name called, not affiliated to any political party would have invoked to express views on a matter of public interest, has hammered the last nail in their coffin.

The author is a senior partner Kampala Associated Advocates

smayanja@kaa.co.ug www.kaa.co.ug