Mbabazi’s contribution to passing of the public order law revealed

For years, Amama Mbabazi was an influential member of President Museveni’s cabinet. Now that he is challenging Museveni for the leadership of the NRM and the country, he finds himself up against state machinery he helped to build.

His opponents, who want Museveni to remain in charge, recently celebrated when police used the Public Order Management Act (POMA) to block Mbabazi from carrying out consultations on his bid.

They celebrated that the same law Mbabazi had championed was being used to beat him. To recap Mbabazi’s role in the passing of the POMA, SULAIMAN KAKAIRE has studied the Hansard, the record of parliamentary proceedings – with some interesting findings.

Despite the widespread perception that Mbabazi was the force behind the controversial legislation, the former prime minister and leader of government business in parliament was not the sponsor of POMA, although he contributed in support of the law during debate in Parliament.

According to the Hansard, POMA, which was introduced in Parliament in 2011, was promoted by the then minister of Internal Affairs Ali Kirunda Kivejinja who was dropped before the law’s passage.

When Hilary Onek, the disaster and preparedness minister, replaced Kivejinja as Internal Affairs minister in 2011, he became the promoter of the law much as James Baba, his junior minster, was the de facto promoter of the law when it was under scrutiny by the Legal and Parliamentary Affairs committee.

In May 2013, when the bill was brought back to the whole House for debate (second reading), its main promoters were Baba and Fred Ruhindi, then deputy attorney general.

Indeed, out of the six sittings in May, during which some clauses of the bill were discussed, Mbabazi attended only two as leader of government business. Moses Ali, the deputy leader of government business, and Justine Lumumba, the then government chief whip, alternated as leader of government business for the rest of the four sittings.

On May 15, 2013 when the House passed clause 6, Mbabazi attended Parliament but his only contribution was a little guidance on what  marginal notes mean in the context of legislation. During the same sitting, he also raised a point of order in respect of a comment made by Kasese Woman MP, Winfred Kiiza, to suggest that some members had turned up in the House to vote yet they had missed most of the debate.

“Is it in order for my good friend, Hon. Winfred Kiiza, the Woman MP for Kasese district, to suggest that the members of this august House who have been following the debate using modern methods...to suggest that these honourable members whom she was demanding to see, who have now come in, have not been following?” Mbabazi submitted. 

On May 16, when the House debated clauses 7 and 8, Mbabazi was in the House but did not speak.

REGULATION, NOT PROHIBITION

On May 22, when MPs passed clause 7 and considered in detail clause 8 but did not take a decision, Mbabazi argued that the provision for police to regulate assemblies is intended to comply with the constitutional test. Mbabazi, however, added that regulatory power does not include prohibiting assemblies.

“Prohibition means to forbid; regulatory simply means to align the conduct of a group or individuals to be in accordance with the law. That is what ‘regulate’ means...Where the police is required to perform its function [when some people are exercising their right to assemble], does it actually require the police to perform their regulatory function to make sure that those who are exercising their rights are doing so within the law? To me, that is the critical question. If it was prohibition, it would be forbidding or saying, ‘you cannot do it’.”

Mbabazi also added that the requiring of notice to police, for those holding assemblies, it is for purposes of regulation but it does not give the police power to approve the holding of a meeting or assembly.

“The police should not unreasonably act in a manner that denies an individual or a group of people to exercise their freedoms. However, it should be noted that the police have a duty to actually protect people in the exercise of their freedoms. That way, they will be performing their constitutional function, which we have been reading out over and over as provided for under Article 212,” he said as recorded by the Hansard of May 22.

Eventually, during the sitting of May 22 there was no consensus on clause 8, which prompted the deputy speaker Jacob Oulanyah to shelve the matter. The debate on the bill resumed in July.

Mbabazi’s argument during the May 22 sitting remains his current position on the law. During a recent Capital Gang radio talk show, Mbabazi reiterated the view that police has no powers to prohibit assemblies.

Bugweri MP, Abdu Katuntu, the shadow attorney general agrees with Mbabazi, telling The Observer: “That is the position of the law. Police cannot prohibit an assembly. Even where it is to stop or prevent the holding of a meeting, it has to comply with the requirement provided by the Act.”

According to section 8 of POMA, a police officer can only stop a public meeting by giving orders, as are reasonable in the circumstances and, in doing so, must have regard to the rights and freedoms of those being given the order. 

Katuntu, who was a member of the committee that scrutinised the Public Order Management bill before it was passed, said that the current position of the law is the most reasonable standard you can achieve in any free and democratic society.

“We deliberated extensively on that matter. What the police is doing is in total abuse of the law,” he said.

On July 25, 2013, when Parliament adopted clause 8, which gives police powers to regulate assemblies, Mbabazi was not in the House but Baba and Ruhindi defended the executive’s position on the bill, which position was also agreed to by the Legal and Parliamentary Affairs committee. Katuntu and Medard Sseggona, the shadow minister for justice and constitutional affairs, also acceded to the position.

RECOMMITTAL

On July 31, 2013, when the House was due to pass the bill into law, Mbabazi was not in the House. Prof Tarsis Kabwegyere, then minister in the office of the prime minister (general duties), acted as leader of government business during that debate.

Parliament did not pass the bill that day following a motion moved by Butambala MP Muhammad Muwanga Kivumbi (DP) seeking the recommittal of clauses 8, 9, 7 and 10, which provisions were deemed by Kivumbi to run against a Constitutional court judgement. During the tense debate on Kivumbi’s motion, Ruhindi and Lumumba vehemently defended the executive’s position on the law.

Eventually, Parliament did not take a decision that day due to lack of quorum, prompting Oulanyah to adjourn the matter to August 1, 2013. During that sitting, Mbabazi attended and largely reiterated what he had previously said.

“Actually by passing this law, we are limiting the powers of the police because we are defining them. It is, therefore, important for the proper maintenance of law and order and good governance of this country...Yes, the laws are blind as the  attorney general said - I will be a victim if I behave like you – (Interjections)- I would be a victim if I behaved in breach...we have heard these arguments from Hon Kivumbi and we heard the effective response by the Attorney-General and as I said, there is nothing new,” Mbabazi submitted.

Subsequently, Kivumbi’s motion was put to a vote and he lost. Speaker Oulanyah suspended MPs Odonga Otto (Aruu), Ssemujju Ibrahim Nganda (Kyadondo East) and Theodore Ssekikubo (Lwemiyaga) for violating parliamentary rules.

When time came to vote on whether the bill is to be passed into law, as the House proceeded to vote by roll call and tally, the list from which the names of members were being read was confiscated by Otto and as such the House could not vote since the roll call register had been torn by Otto, prompting Oulanyah to adjourn the matter to August 6.

According to the Hansard, when the House passed the bill on August 6, 2013, Mbabazi was absent.

skakaire@observer.ug