Unlawful assembly: Is it the new tool to muzzle political dissent?

“Henceforth, before expressing any opinion on any constitutional or political matter, I shall seek the guidance and authority of the appropriate organs of the army,” he promised during the said meeting.

Col Dr Kizza Besigye escaped being arraigned before the General Court Martial thanks to the “intervention” of elders from his home district of Rukungiri. His crime? Authoring the 1999 document, An Insider’s View of How the NRM Lost the Broad Base, in which gave his take on how the Movement had lost its way.
Lt Gen Henry Tumukunde was also court-martialled for making statements that were deemed to have contravened Article 208 (2) of the Constitution and Section 3(a) of the UPDF Act 2005 which require officers to be “non-partisan, national in character, patriotic, professional”.
 
Persecution?
It is, however, incomprehensible that a reverend who was ordained to, among other things, preach the gospel to a church or any other congregation, or pray for congregants who many not be at Church, can be accused of participating in an unlawful assembly or using a wrong forum.
Section 65 of the Penal Code Act defines an unlawful assembly as, “when three or more persons assemble with intent to carry out some common purpose, conduct themselves in such a manner as to cause persons in the neighbourhood reasonably to fear that the persons so assembled, will commit a breach of the peace or will by such assembly needlessly and without any reasonable occasion provide other persons to commit a breach of the peace”.

Were the accused by their actions causing fear or a breach of the peace? That is for the prosecution to argue and the court to conclude, but Dr Baryomunsi dismisses any talk about persecution.
“Why do you announce that you are going to pray? If you want to pray why don’t you pray quietly? Do you have to announce that we go in a group?” he asks.
That argument is, however, a hard sale given that Uganda holds well publicised national prayer breakfasts at both State House Entebbe and in Parliament.

Precedence

It is, however, worthy noting that whereas Rev Muhanga became the first cleric to be arrested for allegedly participating in an unlawful assembly, his is only the latest entry on long spreadsheet of accused persons which is growing lengthier by the day.

Dr Besigye has been arrested so many times that one would get dizzy counting. Others on the list include Kampala Lord Mayor Erias Lukwago, former FDC Women’s League leader Ingrid Turinawe, former Kawempe South MP Mubarak Munyagwa, former Kampala Woman MP Nabilah Sempala, FDC activist Catherine Dembe, Soroti Woman MP Anna Adeke, Kampala Deputy Lord Mayor Doreen Nyanjura and Ms Margaret Wokuri.

The most recent entries include Ms Stella Kyeone, Ms Nakiku Allen, Ms Milly Namatovu, Ms Fiona Nankya, Ms Rukia Sselonga, Ms Jackie Bulungi, Ms Allen Nantume, Ms Flavia Ramuto Apio and Ms Elizabeth Nyanzi.

Government in panic?
It would now look like any gathering of people aligned to the Opposition almost always ends up in arrest, charges of unlawful assembly and violent dispersal. That perhaps explains why Opposition Members of Parliament (MP) can hardly consult or have functions in their constituencies.

On March 30, for example, a belated Women’s Day celebration for Mityana District which had been organised by Woman MP Joyce Bagala and Busujju County MP David Kalwanga was violently dispersed while, Ms Bagala’s political rival, the Minister for Lands and Urban Development, Ms Judith Nabakooba’s gathering was allowed to go on without any hindrance.
It has always been baffling that Uganda continues witnessing such blatant displays of double standards almost 20 after it embraced a return to a multiparty political dispensation.

Dr Livingstone Sewanyana, the executive director of the Foundation for Human Rights Initiative (FHRI), says government has over the years become increasingly jittery because it has failed to find solutions to issues such as runaway corruption, rampant poverty and youth unemployment which are often likely to feed into and fuel insurrections. 

The jitteriness, he says, borders on paranoia, hence the decision to use all sorts of means to suppress dissent or shows of discontent.
“There is zero tolerance to public assemblies because of the fear that it would turn into a major show of discontent. As a country, we have serious challenges. We have high levels of unemployment, growing poverty, corruption and so on. So the State is always in fear that there could be an uprising,” Dr Sewanyana says.

But Dr Baryomunsi dismisses talk of fear in government.
“The government is not afraid of anything. Why would we be afraid? We do not want to reduce this country into a country of drama. Ugandans should also be serious,” Dr Baryomunsi says.

Under the microscope

Prof Sabiti Makara, who teaches Political Science at Makerere University, says the continued arrest of people on charges of unlawful assembly is a sign that the worst is yet to come.

“It seems that maybe even within your own family, you are going to ask for permission from the State, which is really unfortunate. People have a right to demonstrate. They should be allowed if they are not violent,” Prof Makara argues.

The Uganda government has for quite a while now been under the microscope for violating the citizenry’s right to assemble.

In December 2015, for example, Amnesty International published a report, We Come in and disperse them which detailed police’s violations of that right. It accused the Force of, among other things, disrupting peaceful Opposition gatherings, arbitrary arrests of Opposition politicians, torture and use of excessive force.

“Restrictions on freedom of assembly hindered the ability of Ugandans to receive information and engage with politicians” during the campaigns ahead of the February 2016 general election, the report concluded.
The same accusations were made in regard to the 2021 general election. Nothing, it would seem, ever changes.

Disrespect for the law?
Constitutional lawyer Dan Wandera Ogalo says the problem is really down to failure by the relevant institutions, including police, to respect and observe the rule of law.

“We are not bothered by the law. Otherwise, the question of unlawful assembly, the question of demonstrations, was settled by the Constitutional Court in the case Muwanga Kivumbi vs the Attorney General. The court laid down exactly what is supposed to happen. First and foremost, you do not need the permission of police to assemble. It is simply because the police do not want to accept the law,” Mr Ogalo says.

On May 27, 2008, the Constitutional Court ruled that Section 32(2) of the Police Act, which the Force had been invoking to block public assemblies and demonstrations, was inconsistent with Article 29(1) of the Constitution, which guarantees freedom of association, including the right to demonstrate.

The judges ruled that empowering the Inspector General of Police (IGP) to prohibit assemblies “contravened the fundamental rights to freedom of assembly and to demonstrate together with others peacefully”.

In 2020, the same court struck down Section 8 of the Public Order Management Act which had returned those powers to the IGP, but police continues to stop public gatherings, which Dr Baryomunsi defends.

“The law requires that you must notify the police and work with them if you are going to have an assembly of more than three people. The importance of the police working with you is to make sure that you express yourself without disrupting the activities of others,” he says.

Mr Ogalo, however, insists that this is mere semantics, adding that police still hide behind the provision on informing them to violate the right to assembly.

Nowhere to run?
The problem though is that the citizenry seem to have nowhere to run to for redress. The courts continue to preside over cases that are built on charges that are no longer on the statute books.
In April 2011, for example, journalist Yoweri Musisi was arraigned before court in Buwama, Mpigi District, on charges of publishing false news, even when the law that was being invoked had been stricken out by the Supreme Court seven years before.

The courts also continue to hear cases of unlawful assembly which the Constitutional Court pronounced itself on in 2008.

Mr Jameson Karemani, the spokesperson of the Judiciary, points an accusing finger at the lawyers representing such accused persons.

“The lawyers know the law as well and that is their duty (to guide court) when they are representing an accused person. So did they raise it and court ignored it? The lawyer would be alert of it and say that the charges that these people have been put on are based on a law which was repealed or which was struck out by the Constitutional Court. Court would then making a ruling,” he argues.

Mr Karemani hastens to add that the presiding judicial officer should be able to read and do what the court is supposed to do. That is yet to happen.