FREEDOM OF SPEECH, ASSEMBLY,
ASSOCIATION AND EXPRESSION IN UGANDA – WHICH WAY FORWARD?
By Sarah Bireete
Director of
Programmes
CCG
Enabling Law:
Article 29 of the
Constitution on the Protection of freedom of Conscience, expression, movement,
religion, assembly and association. Art 29 (1), (a-e) is about Freedom of
Assembly, Association and Expression.
Freedom of speech is the political right to
communicate one's opinions and ideas using one's body and property to anyone.
The term freedom of expression is sometimes used synonymously, but
includes any act of seeking, receiving and imparting information or ideas,
regardless of the medium used.
The right to assemble peacefully rests at the core of functioning
democratic systems and is closely related to other cornerstones of democracy
and pluralism, such as freedom of expression and freedom of association. It is
enshrined in a number of international human rights instruments. The right to
assemble, demonstrate, picket, rally, March and protest is an important aspect
of all democratic societies. As such, the freedom of peaceful assembly is
associated with the right to challenge the dominant views within society, to
present alternative ideas and opinions, to promote the interests and views of
minority groups and marginalized sections of society, and to provide an
opportunity for individuals to express their views and opinions in public,
regardless of their power, wealth or status.
Freedom
of Peaceful Assembly is an individual right that is always expressed in a collective
manner. Article 5 of the
Declaration on Human Rights Defenders expressly states that the right applies
to individuals in association with others, which implies that this right
is also protected for associations of individuals, such as non-governmental
organizations. The right to freedom of assembly is a fundamental freedom
critical for maintaining and strengthening democratic participation.
The right to freedom of expression is not
defined in international instruments or the Constitution of Uganda. However,
the Supreme Court of Uganda has defined it as extending to holding, receiving
and imparting all forms of opinions, ideas and information. Freedom of speech
is premised on the realization of the individual human personality, the
‘marketplace of ideas’ and the related human intrinsic propensity to inquire
debate and develop knowledge. It is the bedrock of democratic government and
pluralism. Freedom of expression is closely associated with other human rights
like freedoms of thought, opinion, belief, association and assembly.
Every government restricts
speech to some degree. Common limitations on speech relate to: libel, slander, obscenity, pornography, sedition, hate speech, classified
information, copyright
violation, trade secrets, non-disclosure agreements, right to privacy, right
to be forgotten,
and campaign
finance reform.
Whether these limitations can be justified under the harm principle depends upon whether
influencing a third party's opinions or actions adversely to the second party
constitutes such harm or not.
The term "offense principle" is
also used to expand the range of free speech limitations to prohibit forms of
expression where they are considered offensive to society, special interest
groups or individuals. For example, freedom of speech is limited in many
jurisdictions to widely differing degrees by religious legal systems, religious offense or incitement to ethnic or racial hatred laws.
The right to freedom of expression is
recognized as a human right under Article 19 of the Universal Declaration of Human Rights and recognized in international human rights law in the International Covenant on
Civil and Political Rights (ICCPR). Article 19 of the ICCPR states that "everyone
shall have the right to hold opinions without interference" and
"everyone shall have the right to freedom of expression; this right shall
include freedom to seek, receive and impart information and ideas of all kinds,
regardless of frontiers, either orally, in writing or in print, in the form of
art, or through any other media of his choice". Article 19 goes on to say
that the exercise of these rights carries "special duties and responsibilities" and may
"therefore be subject to certain restrictions" when necessary "for
respect of the rights or reputation of others" or "for the protection
of national security or of public order (order public), or of public health or
morals".
Concepts of freedom of speech can be found in
early human rights documents. England’s Bill
of Rights 1689
granted 'freedom of speech in Parliament' and is still in effect. The Declaration of the Rights
of Man and of the Citizen, adopted during the French Revolution in 1789, specifically
affirmed freedom of speech as an inalienable right. The Declaration provides
for freedom of expression in Article 11, which states that:
The free communication of ideas and opinions
is one of the most precious of the rights of man. Every citizen may,
accordingly, speak, write, and print with freedom, but shall be responsible for
such abuses of this freedom as shall be defined by law.
International Legal
Instruments
Everyone has the right to freedom of opinion
and expression; this right includes freedom to hold opinions without
interference and to seek, receive and impart information and ideas through any
media and regardless of frontiers.]
|
Freedom
of Association is enshrined by several international instruments, including
the Universal Declaration of Human Rights (UDHR)3, the International Covenant
of Civil and Political Rights (ICCPR) and the African Charter on Human and
Peoples Rights (ACHPR)4.
Article
20 of the UDHR (Universal Declaration of Human Rights):
1. Everyone has a right to freedom of peaceful
assembly and association.
2. No one may be compelled to join an association.
According
to Article 22 of the ICCPR (International Charter for Civil and Political
Rights):
“Everyone shall have the right to freedom of
association with others…No restrictions shall be placed on the exercise of
this right rather than those which are prescribed by law and which are
necessary in a democratic society in the interests of national security or
public safety, public order, the protection of public health or
morals, or the protection of rights and freedoms.
|
|
On the
right to peaceful assembly, Article 21 of the ICCPR provides that, “The right
to peaceful assembly shall be recognized. No restrictions may be placed on
the exercise of this right rather than those imposed in conformity with the
law and which are necessary in a democratic society in the interests of
national security or public safety, public order, the protection of public
health or morals or the protection of rights and freedoms of others.”
Article 10 of the African Charter
guarantees the right to free association:
1.
Every individual shall have the right to free association provided he abides
by the law.
2.
Subject to the obligation of solidarity provided for in Article 29 no one may
be compelled to join an association.
On the
right to peaceful assembly, the African Charter stipulates that, “every
individual shall have the right to assemble freely with others. The exercise
of this right shall be subject only to necessary restrictions provided for by
the law in particular those enacted in interest of national security, the
safety, health, ethics and rights and freedoms of others.”
|
Among these
legislations are laws that restrict or threaten the freedom of association,
assembly and expression.
They include the NGO
Registration (Amendment) Act (2006), some sections of the Penal Code Act (Cap
120), some sections of the Police Act, the Press and Journalists Act (Cap105),
the Press and Journalists (Amendment) Bill (2010), the Uganda Communications Regulatory
Authority Bill, 2012 and the Regulation of Interception of Communication Act,
2010 and the Proposed Public Order Management Act, 2013.
Today freedom of speech, or the freedom of
expression, is recognized in international and regional human rights law. The right is enshrined in
Article 19 of the International Covenant on
Civil and Political Rights, Article 10 of the European Convention on Human Rights, Article 13 of the American Convention on Human Rights and Article 9 of the African Charter on Human and Peoples' Rights.
Based on John Milton's arguments, freedom of
speech is understood as a multi-faceted right that includes not only the right
to express, or disseminate, information and ideas, but three further distinct
aspects:
1. the right to seek
information and ideas;
2. the right to receive
information and ideas;
3. the right to impart
information and ideas
International, regional and national
standards also recognize that freedom of speech, as the freedom of expression,
includes any medium, be it orally, in written, in print, through the Internet or through art forms. This
means that the protection of freedom of speech as a right includes not only the
content, but also the means of expression.
Relationship to other
rights
The right to freedom of speech and expression
is closely related to other rights, and may be limited when conflicting with
other rights (see Limitations
on freedom of speech).
The right to freedom of expression is also related to the right
to a fair trial
and court proceeding which may limit access to the search for information or
determine the opportunity and means in which freedom of expression is
manifested within court proceedings. As a general principle freedom of
expression may not limit the right to privacy, as well as the honor and
reputation of others. However greater latitude is given when criticism of
public figures is involved.
The right to freedom of expression is
particularly important for media, which plays a special
role as the bearer of the general right to freedom of expression for all.
However, freedom
of the press is
not necessarily enabling freedom of speech. Judith Lichtenberg has outlined
conditions in which freedom of the press may constrain freedom of speech, for
example where the media suppresses information or stifles the diversity of
voices inherent in freedom of speech. Lichtenberg argues that freedom
of the press is
simply a form of property
right
summed up by the principle "no money, no voice".
The notion that the expression of dissent or
subversive views should be tolerated, not censured or punished by law,
developed alongside the rise of printing and the press. Areopagitica, published in 1644, was John Milton's response to the Parliament
of England's
re-introduction of government licensing of printers, hence publishers. Church authorities had
previously ensured that Milton's essay
on the right to divorce was refused a license for publication. In Areopagitica,
published without a license, Milton made an impassioned plea for freedom of
expression and toleration of falsehood, stating: Give me the liberty to know, to
utter, and to argue freely according to conscience, above all liberties.
Milton's defense of freedom of expression was
grounded in a Protestant worldview and he thought
that the English people had the mission to work out the truth of the Reformation, which would lead to the enlightenment of all people. But Milton
also articulated the main strands of future discussions about freedom of
expression. By defining the scope of freedom of expression and of
"harmful" speech Milton argued against the principle of
pre-censorship and in favor of tolerance for a wide range of views.
A succession of English thinkers was at the
forefront of early discussion on a right to freedom of expression, among them John Milton (1608–74) and John Locke (1632–1704). Locke
established the individual as the unit of value and
the bearer of rights to life, liberty, property and the pursuit
of happiness.
However Locke's ideas evolved primarily around the concept of the right to seek
salvation for one's soul, and was thus primarily concerned with theological
matters. Locke did not support a universal toleration and freedom of speech;
some groups, like atheists, should not be allowed according to his ideas.
John Stuart Mill (1806–1873) argued that without human freedom there can be no
progress in science, law or politics, which according to Mill required free
discussion of opinion. Mill's On Liberty, published in 1859 became
a classic defence of the right to freedom of expression. Mill argued that truth drives out falsity, therefore the free
expression of ideas, true or false, should not be feared. Truth is not stable or
fixed, but evolves with time. Mill argued that much of what we once considered
true has turned out false. Therefore views should not be prohibited for their
apparent falsity. Mill also argued that free discussion is necessary to prevent
the "deep slumber of a decided opinion". Discussion would drive
the onwards march of truth and by considering false views the basis of true
views could be re-affirmed. Furthermore, Mill argued that an opinion only
carries intrinsic value to the owner of that opinion, thus silencing the
expression of that opinion is an injustice to a basic human right. For Mill,
the only instance in which speech can be justifiably suppressed is in order to
prevent harm from a clear and direct threat. Neither economic or moral
implications, nor the speakers own well-being would justify suppression of
speech.
In Evelyn
Beatrice Hall's
biography of Voltaire, she coined the following
phrase to illustrate Voltaire's beliefs: "I disapprove of what you say,
but I will defend to the death your right to say it." Hall's quote is
frequently cited to describe the principle of freedom of speech. ] In the 20th Century Noam Chomsky states that: "If you
believe in freedom of speech, you believe in freedom of speech for views you
don't like. Stalin and Hitler, for example, were
dictators in favor of freedom of speech for views they liked only. If you're in
favor of freedom of speech, that means you're in favor of freedom of speech
precisely for views you despise." Professor Lee Bollinger argues that "the free
speech principle involves a special act of carving out one area of social
interaction for extraordinary self-restraint, the purpose of which is to develop
and demonstrate a social capacity to control feelings evoked by a host of
social encounters." Bollinger argues that tolerance is a desirable value, if
not essential. However, critics argue that society should be concerned by those
who directly deny or advocate, for example, genocide
Democracy
Freedom of speech is understood to be
fundamental in a democracy. The norms on limiting freedom of expression mean
that public debate may not be completely suppressed even in times of emergency.
One of the most notable proponents of the link between freedom of speech and democracy is Alexander
Meiklejohn.
He argues that the concept of democracy is that of self-government by the
people. For such a system to work an informed electorate is necessary. In order
to be appropriately knowledgeable, there must be no constraints on the free
flow of information and ideas. According to Meiklejohn, democracy will not be
true to its essential ideal if those in power are able to manipulate the
electorate by withholding information and stifling criticism. Meiklejohn
acknowledges that the desire to manipulate opinion can stem from the motive of
seeking to benefit society. However, he argues, choosing manipulation negates,
in its means, the democratic ideal.
Eric Barendt has called this defence of
free speech on the grounds of democracy "probably the most attractive and
certainly the most fashionable free speech theory in modern Western
democracies". Thomas I. Emerson expanded on this defence when he argued that
freedom of speech helps to provide a balance between stability and change. Freedom of speech acts as
a "safety valve" to let off steam when people might otherwise be bent
on revolution. He argues that "The
principle of open discussion is a method of achieving a more adaptable and at
the same time more stable community, of maintaining the precarious balance
between healthy cleavage and necessary consensus." Emerson furthermore
maintains that "Opposition serves a vital social function in offsetting or
ameliorating (the) normal process of bureaucratic decay."
Research undertaken by the Worldwide Governance Indicators project at the World Bank, indicates that freedom of
speech, and the process of accountability that follows it, have a significant
impact in the quality of governance of a country. "Voice
and Accountability" within a country, defined as "the extent to which
a country's citizens are able to participate in
selecting their government, as well as freedom of
expression, freedom
of association,
and free
media"
is one of the six dimensions of governance that the Worldwide Governance
Indicators measure for more than 200 countries.
Social interaction and
community
Richard Moon has developed the argument that
the value of freedom of speech and freedom of expression lies with social
interactions. Moon writes that "by communicating an individual forms
relationships and associations with others – family, friends, co-workers,
church congregation, and countrymen. By entering into discussion with others an
individual participates in the development of knowledge and in the direction of
the community."
University of California, Los Angeles
Chancellor Gene
Block
issued a statement concerning both the value of free speech and the
responsibility for civil discourse. The statement was in favor of an
environment in which people coming from different beliefs and backgrounds may
engage in passionate dialogue without belittling one another. In Block's view,
“just because speech is constitutionally protected doesn’t mean that it is
wise, fair or productive.”[
Challenges to enjoyment of
Freedom of assembly, expression and Association in Uganda
Among these
legislations are laws that restrict or threaten the freedom of association,
assembly and expression.
They include the NGO
Registration (Amendment) Act (2006), some sections of the Penal Code Act (Cap
120), some sections of the Police Act, the Public Order Management Act 2013,
the Press and Journalists Act (Cap105), the Press and Journalists (Amendment)
Act (2010), the Uganda Communications Regulatory Authority Bill, 2012 and the
Regulation of Interception of Communication Act, 2010
NGO Amendment Bill
Under
the Constitution: - The National Objectives and Directive Principles of State
Policy, political objectives: 11-Democratic Objectives
Civic
organizations shall retain autonomy in pursuit of their declared objectives
Issues:
- The
board does not have any representation from the NGO sector, particularly from
the NGO Sector. The functions (including registration of NGOs) and wide
discretionary powers granted to Board directly impact on the freedom of
association.
-
Criminal Sanctions - Section 4 e (5),(6) of
the 2006 Act provides that any organization which contravenes any provisions of
the Act, operates contrary to the conditions or directions specified in its
permit or carries out any activity without a valid permit or certificate of
incorporation commits an offence. Issue:
NGOs are liable for all acts of their members and employees done in the course
of their employment.
2. POMA
-
Requires organizers to ask for permission at least 7
in advance and not more than 15 days for the meeting to take place
-
Definition
of public meeting to include gathering of three or more people at which
principles, policy, actions or failure of any government ….are discussed.
This contradicts Art 29
-
The IGP
shall have the power to regulate the conduct of all public meetings and
assemblies. This is a re-enactments of S.32(3) of the Police Act which was
outlawed in Constitutional Petition No.5/2005 – Muwanga Kivumbi Vs. Ag. Article
92 prohibits passage of legislation to alter the decision or judgment of any
court.
3. Penal Code Act
Constitutional
provisions relevant to Preventive arrest and detention
Article
23 of the 1995 Constitution of Uganda sets out the cases under which a person
may be deprived of his or her personal liberty. Article 23(1) (h) provides that
no person shall be deprived of personal liberty except as “may be authorized by
law, in any other circumstances similar to any of the cases specified in
paragraphs (a) to (g) of this clause”. The cases specified in paragraphs (a) to
(g) are:- a) in execution of a sentence or order of a court; b) in execution of
the order of a court made to secure the fulfillment of any obligation imposed
on that person by law; c) for the purpose of bringing that person before a
court in execution of the order of a court or upon reasonable suspicion that
that person has committed or is about to commit a criminal offence under the
laws of Uganda; d) for the purpose of preventing the spread of an infectious or
contagious disease; e) in the case of a person who is, or is reasonably
suspected to be, of unsound mind or addicted to drugs or alcohol, for the
purpose of the care or treatment of that person or the protection of the
community.
4. Police Act
Section
24
5. Press and Journalists Act
6. Uganda Communications
Regulatory Authority Bill 2012
7. Regulation of Interception
of Communication Act, 2010
8. The Right of Access to
Information Act
-
Conditions for assessing public information still
exist. Research done on whether to build an oil refinery or a pipeline was
being sold at 25,000 by the Ministry of energy
-
Confidentiality clauses in the Production sharing
agreements (oil)
Limitations
on the right to Freedom of Assembly:
-
Article 43 of the Constitution: General limitations on fundamental
and other human rights and freedoms
- Only
peaceful assemblies are guaranteed protection under Article 21 of the ICCPR,
and assemblies that are not peaceful or that lose their peaceful character can
be dispersed. Article 21 of the ICCPR
states that no restrictions may be placed on freedom of assembly other than
‘those imposed in conformity with the law’. The restriction on freedom
of association states that any permissible restriction on this right must be prescribed
by law, meaning that administrative regulations limiting this right are not
permissible.
- The second clause of limitation to Article 21 of the ICCPR states
that any restrictions on freedom of assembly must be ‘necessary in a democratic
society’ in order to achieve its purpose. This provision has been interpreted
to contain two conditions – it implies that any State interference with the
right to assembly must be proportional, and that no limitation can be
imposed on freedom of assembly that is not in conformity with minimum
democratic principles. Proportional means that the nature and force of the
interference of the State with the right to assembly must be strictly necessary
to achieve one of the listed purposes. This means that any other
alternative that restricts the right to a lesser degree must be exhausted prior
to the State using any means that limits the exercise of this right.
Way Forward:
Ugandans should struggle to recover their naturally
given rights of freedom of speech, assembly, expression and other fundamental
rights and freedoms that are being infringed upon by the regime.
No comments:
Post a Comment