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TABLE OF CONTENTS
LIST OF ABBREVIATIONS/ACRONYMS ABSTRACT
LIST OF CASES
PROBLEM AND ITS SCOPE
1.2 Background of the Study
1.2.1 Historical Background
1.2.2 Conceptual Background
1.2.3 Theoretical Background
1.2.4 Contextual Background
1.3 Statement of the Problem
1.4 Purpose of the Study
1.5 Objectives of the Study
1.5.1 General Objective
1.5.2 Specific Objectives
1.6 Research Questions
1.7 Hypothesis of the Study
1.8 Scope of the Study
1.8.1 Geographical Scope
1.8.2 Content Scope
1.8.3 Time Scope
1.9 Significance of the Study
1.10 Literature Review
1.12 Synopsis of the Chapters
LEGISLATING FREEDOM OF ASSEMBLY FOR POLITICAL PARTIES IN UGANDA AND GHANA
2.2 Development of the Law of Freedom of Political Party Assembly in Uganda and Ghana
2.2.1 International Legislation and how it has been Incorporated in Domestic Laws
2.2.2 The Universal Declaration of Human Rights (UDHR) (1948)
188.8.131.52 Constitutional advances on the right to political assembly in Uganda and Ghana
2.2.3 The International Covenant on Civil and Political Rights (ICCPR) 1966
2.2.4 The African Charter on Human And Peoples’ Rights (ACHPR) (1986)
2.2.5 The Law in Uganda and Ghana
EXAMINING THE SCOPE OF RIGHTS UNDER THE FREEDOM OF ASSEMBLY
3.2 Scope of Rights Enjoyed under the Freedom of Assembly
3.3 Benefits of Multiparty Dispensations
3.4 Disadvantages of Restricting Political Party Group Functioning
3.5 Political Parties and Unregulated Political Assemblies
3.6 Institutional Constructs Regulating Political Party Assemblies in Uganda and Ghana
3.6.1 The Police
3.6.2 The Electoral Commission
3.6.3 The Legislature
3.6.4 The Justice System
PRESENTATION, DISCUSSION AND ANALYSIS OF THE STUDY FINDINGS
4.2 Empirical Findings
4.2.1 The Law Governing Political Parties in Uganda and Ghana
4.2.2 Challenges experienced by the Opposition Parties in Organizing Assemblies
4.2.3 Performance of support institutions in enforcing the right to political party assembly
CONCLUSIONS AND RECOMMENDATIONS
5.3 Recommendations to the Study Findings
5.3.1 Reforms for the Security Agencies
5.3.2 Reinstating the Rule of Law for Responsive Governance
5.3.3 Parliamentary strengthening
5.3.4 Mass Sensitization of the Citizenry to Build Patriotism
5.3.5 Government should provide an effective environment for the fourth estate to do their work in a free and fair environment.
5.3.6 Promote Sustainable Democracy
5.3.7 Spot Checks for Arrest and Detention Facilities
News paper reports
This piece of work is dedicated to my beloved Parents, The Ven. Rev. Eriya Kawooya, my mother Naome Kawooya, my siblings, Emily, Dr. May, Andrew, Peter, my supervisor Dr. Rose Nakayi and not forgetting my beloved Bridget for the wonderful contribution in my academic career. You are duly remembered for this.
Acknowledgment is extended to all those who contributed to the success of this study, whose tireless efforts made this study a success. Particular thanks are extended to my supervisor Dr. Rose Nakayi for her conceptualization and guidance which were of great help in comprehending this study. To all staff at the Postgraduate School of Law of Makerere University, your impartation of knowledge and skills cannot be underestimated.
Special thanks are further extended to the Rev Prof. Dr. Sam and Mama Christine Luboga for their spiritual guidance and not forgetting to thank my beloved Uncle Mr. George William Kawooya for a lot more than financial support.
To all the respondents, especially the politicians from the different party groups as well as the police and community party supporters, special thanks for your efforts, the views, ideas and accounts contributed to draw conclusions in this study.
Lastly but not least, my sincere acknowledgements to my family for the moral and financial support, understanding and patience extended for the accomplishment of this paper.
It is my hope that this paper provides an insight of the political challenges experienced in organizing assemblies in Uganda for intervention strategies to be formed to promote the right to freedom of political party assembly and its accompanying rights in the progressively diminishing democratic practices.
LIST OF ABBREVIATIONS/ACRONYMS
Abbildung in dieser Leseprobe nicht enthalten
The concept of human rights promotes dignity, tolerance, and peace by educating individuals and groups to respect, defend, and advocate for their rights. It should thus be realised that for any country to reach the status of a full democratic community that ought to be respected and easily evidenced in any community, the right of freedom free assembly, of the people and political parties must be respected.
The constitutions of both Ghana and Uganda provides for a multi party democracy as a form of governance. This study is of a comparative nature of the freedom of assembly in both countries. The study was guided by the following research objectives: To examine and compare the adequacy of the legal and policy regulatory frameworks for political party assembly management in Uganda and Ghana; to identify and compare the challenges faced by opposition parties and to, finally; identify and analyze the performance of the different support institutions involved in handling and managing political party assembly in promoting democracy in Uganda and Ghana.
Uganda and Ghana both have good policy and legal frameworks to regulate the right to the freedom of political party assembly. In both countries the supremacy of the Constitution is upheld as a binding force on all authorities and persons and any law which is inconsistent is void. Uganda is going through very challenging times with extremely limited space to operate in a free and friendly environment for political assembling which is not so much of a Ghana case, Ghana has tried to embrace the freedom.
In recommendation, the stakeholders must accept and embrace the freedom by doing everything possible to ensure equality in enforcing the freedom because it has been realized that the regulating has been applied selectively which is not good at all to any growing democracy.
LIST OF LAWS / INSTRUMENTS
The Access to Information Act of Uganda (2005)
The African Charter on Human and Peoples Rights (ACHPR) (1986) The Communication Act of Uganda (2010)
The Constitution of the Republic of Ghana 1992
The Constitution of the Republic of Uganda 1995
The Electoral Commission Act of Uganda as amended (2010)
The International Covenant on Civil and Political Rights (ICCPR) (1966) The Leadership Code Act of Uganda (2002)
The Parliamentary Elections Act (2005)
The Penal Code Act of Uganda (2000) Cap 120
The Police Act Cap 303 laws of Uganda
The Political Party Act of Ghana (2000)
The Political Party and Organizations Act of Uganda (2005) The Press and Journalist Act of Uganda (1995)
Universal Declaration of Human Rights (UDHR) (1948)
LIST OF CASES
Abrams vs. United States, (1919) 250 US 616.
Attorney General vs. Paul K. Ssemogerere and Hon. Zachary Olum, Constitution Appeal No. 3 of 2004.
Charles Onyango Obbo and Andrew Mujuni Mwenda vs. Attorney General, Constitutional Appeal No. 2 of 2002.
Golak Nath vs. State of Punjab, (1967) AIR 1643, 1967 SCR (2) 762. Muwanga Kivumbi vs. Attorney General, Constitution Petition No. 09 of 2005. Öllinger vs. Austria, Application Number, 76900/01 of 2006.
Rtd Col Dr. Kizza Besigye vs. Electoral Commission and Yoweri Kaguta Museveni, Election Petition No. 1 2006.
Shaw vs. Reno, (1993) 509 U.S 630.
CHAPTER ONE PROBLEM AND ITS SCOPE
This is a comparative study which critically analyzes the right to freedom of political party assemblies in the democratic settings of Uganda and Ghana. The study examines the adequacy of the legal and policy regulatory frameworks for political party assembly management and establishes the policy and legal challenges experienced by political party opponent groups in Uganda in providing checks and balances, as compared to the case of Ghana. The study also identifies and analyzes the performance of the different support institutions involved in handling and managing political party assembly in promoting democracy in Uganda and Ghana.
It is globally acknowledged that tolerant and pluralistic society can only be created if political parties in a multiparty existence are peaceful.1 It is therefore necessary that state duty to protect the freedom to peaceful assembly is met. This duty extends to simultaneous political opposition assemblies, irrespective of whether or not an unpopular view is being espoused. Just like the principle of non-discrimination requires that assemblies in comparable circumstances do not face differential levels of restriction.2 The state should therefore make and provide adequate policing resources to facilitate demonstrations for simultaneously related assemblies within “sight and sound” of one another.3 This implies that, no potential disorder arising from hostility directed against those participating in a peaceful assembly should be relied upon to justify the imposition of restrictions on peaceful assemblies.4
1.2 Background of the Study
1.2.1 Historical Background
The contribution of political parties to the growth and practice of democracy has been a contested phenomenon right from the time of Athenian democracy to the time of American independence.
For example, in ancient Greek democracy, political parties had no role and in the American constitutional democracy the debate was whether parties should be allowed or not allowed. 5 This reflects that, worldwide political party dispensations are not a new phenomenon. The history of modern democracies is traced from the period after the end of the Cold War when the fall of communism saw the rise of international relations.6 During this time, the need for development engineered changes. Many western scholars advocated for the recognition of civil rights recommending states to institute democracy and adopt multiparty systems.7 This was based on grounds that political party are indispensable factions which could make democracy work and deliver, if properly conditioned for better internal functioning and effective legal regulation.
The year 1974 set pace for a new wave of democratization, with various forms of multiparty political systems introduced around the world.8 This ignited political changes which required states to shift from oppressive dictatorial regimes to permitted autonomous systems based on free and fair elections.9 But owing to the fact that each state had its own history, the methods and objectives of political development could not be ignited to be the same. Today more countries since 1974 have been able to elect their leaders through multiparty elections and are governed by rulers of their choice.10
However, for Africa, the year 1990 marked the onset of the democratization process shifting governance from the political past of single party systems and military regimes. The shift of governance helped political parties to gain relevance for the functioning of democracy in Africa.11
While good functioning of mature political parties remains central for democratization, some Sub Saharan nations have organized multiparty elections which have quite often been rigged than not, with the freedom of assembly for opponents greatly curtailed.12 This has limited the ability of political parties to increase transparency, mediate, as well as empower vulnerable groups.13
Following this assertion, multiparty politics has not been a guarantee for democracy, especially in third world countries like those of Africa, Uganda and Ghana in particular for the case of this study.
1.2.2 Conceptual Background
Figuratively, a political party is an organization whose prime objective is to mobilize its supporters to assume a leadership role, which makes them vital institutions for the functioning of any modern democracy.14 Political parties strengthen the electoral systems and processes; accountability of institutions especially the parliament; partnership with civil society organizations; mobilize disadvantaged groups to actively participate in public decision making; have a continuous engagement with the government in all matters of public concern and most importantly hold government accountable for its policies and actions.15
To be significant therefore, a political party should be able to; redefine the agenda of government; provide alternative policy platforms and an ideological direction.16 Similarly this implies that, for a political party to remain democratically functional17 it is crucial that the foundation for the freedom to assemble is peacefully maintained.18
The right to freedom of assembly is vital for those who wish to draw attention to local issues in advocating and effecting desirable change.19 As such, freedom of peaceful assembly constitutes facilitation of dialogue within and between civil societies, political leaders as well as government.20 States should therefore recognize the profound long-term benefits of freedom of assembly.21
Peaceful assemblies can promote expression of views and the defense of common interests, celebration, commemoration, picketing, and protest.22 It is therefore necessary that participation in peaceful assemblies of the parties is facilitated with elections held in line with the established national and international standards for society to have the opportunity to express the opinions held in common.23
The term peaceful is interpreted to include conduct that may annoy or offend persons opposed to the ideas or claims that a particular assembly is promoting, as well as conduct which may deliberately impede or obstruct the activities of third parties.24 An assembly can be perceived to be peaceful if, its organizers have peaceful intentions and if participation is voluntary and equally enjoyed by everyone.25
Once political parties are granted the freedom to assemble, it becomes possible to exercise other freedoms of; association, expression, thought, religion conscience and the right to establish and maintain contacts within the territory of a state. Significantly, the fundamental importance of personal development, dignity, and fulfillment of individual and the progress and welfare of society can be met.26 As such, freedom of peaceful assembly has a symbolic and instrumental significance, and therefore an important strand in the maintenance27 and development of culture28 as well as in the preservation of minority identities.
The freedom of assembly should be guaranteed to; individuals; corporate bodies; members of minority and indigenous groups; nationals and non-nationals; women and men; and to persons without full legal capacity, including persons with mental illness.29 However, dominant regimes will always find means to suppress political parties on grounds that no-party state has the means for mobilizing the population for development. 30 This is evidenced in President George Washington’s speech who held that;
Let me now …warn you in the most solemn manner against the baneful effects of the spirit of party generally. …it serves always to distract public councils and weakens the public administration. It agitates the community with ill-founded jealousies and false alarms; it kindles the animosity of one part against another.31
Academically, it is therefore conceived that the freedom of peaceful assembly is a cornerstone of any democratic society underpinning the exercise of a broad range of other civil and political rights, such as, the right to movement, freedom of association and freedom of religion.32 The right can be an important strand in the maintenance and development of culture33 in any democratic society as individuals may assemble peacefully to participate in development by freely expressing their views on matters which concern their welfare.34 For any dissatisfactions therefore, peaceful protests can play an important role in expressing public concerns, reducing the risk that conflicts escalate into violence, and providing an opportunity for peaceful dialogue with authorities.
1.2.3 Theoretical Background
According to Higgs35 in his theory Against the Leviathan, classifies and describes the powers and functions of government in three dimensions. That is the legislature which is responsible for the formulation of rules according to which man’s rights, such as life, liberty and property can be judged, the judiciary whose responsibility is to ensure justice by enforcing the rule of law and the executive which regulates the powers of war, peace, leagues and alliances. According to Higgs, the state is expected to rest upon consent and the governing authorities should not exercise autocratic powers. Indeed, the democratic theory by Galleguillos maintains that while one of those powers legislates and the other administers it then becomes the role of the judiciary to sanction the excesses committed by the legislature and executive. This is the preservation of democracy for one power to check the other and thus each of the powers should be independent of the other. This helps the judiciary to avoid political contamination.36
However in Uganda the executive arm of government is so powerful compared to the other organs which limits the capacity to impose restrictions on the ruling party37 this is unlike in Ghana.
1.2.4 Contextual Background
Around the world multi party systems have for long been the order. In the United States for example democracy has existed for more than 150 years under a two party system that is the democrats and republicans with duopoly shared as almost all the political powers are shared throughout the country. The candidate will only win the elections if they gain a plurality. The party system in America has helped to promote stability, moderation and ease, much as they are at times affected by a lack of choice. In the Netherlands for example the Institute for Multiparty Democracy (NIMD) was established on principles of adherence, ownership, transparency and neutrality by political parties. This institute was to ensure that young democracies are provided with assistance to enhance dialogue between political parties in the country to particularly develop political party institutions and networks of cooperation with the civil society.38
In Africa, the year 1990 opened advocacy for democratization to replace the old political single party systems and military regimes with democratic governance under political party representation.39
In Uganda like elsewhere in the world, the law provides for protection of the freedom of assembly for political parties.40 However, such warranties continue to be ignored for political party opponents. For example in Muwanga Kivumbi vs Attorney General41 when court nullified police powers to block peaceful assemblies, but despite this ruling, the freedom to associate and assemble continues to be blocked by police with a lot of pressure from the government. Indeed, the government’s position is too precisely stated by the President, Inspector General of Police and other government officials to outlaw all forms of public demonstrations, rallies or assemblies. This is mainly directed to assemblies which criticize the electoral process, current government policies as well as the conduct of public officials.42 This kind of restriction is illegitimate to the right to peaceful assembly and fails the tests of necessity and proportionality for a lawful purpose set out in the internationally adopted standards.43
Police in Uganda continues to vigorously involve in violating the freedoms of association and assembly with opposition political rallies routinely blocked and peaceful demonstrations violently dispersed.44 This justification cannot withstand scrutiny, considering the fact that pro- National Resistance Movement (NRM) assemblies are never dispersed.
To make matters worse, Uganda is one of the countries where debate for reform of the legal frameworks for party financing is quite intense. Competing political parties in Uganda are financially hard up following the fact that the legislation for political party funding remains sketchy.45 This makes political party financing in Uganda unsustainable by nature when funds are mainly raised by party supporters on an individual basis.46 While political party financing is restricted from foreign sources by the Political Party Organization Act, it is silent on private funding from Ugandan citizens, NGOs, businesses and other private entities.47
Different from the Ugandan Context, political parties in Ghana are surviving without state subsidies and they continue to develop as relatively strong democratic institutions compared to those of Uganda. Political parties in Ghana are very competitive with a relatively stable Democratic Party system that is more vibrant than other sub Saharan African states. The parties are free to raise contributions for their party arrangements and plans, raise contributions through donations from well wishers as well as membership dues and levies with no requirements to disclose or account, declaration of public assets, revenues and their sources is made to the public.48
Basing on the above background and setting, this study analyses the legal and institutional framework within which the right to public participation is exercised by politicians in leadership decision making in the country. In particular, the thesis is a comparative examination of the participation of opposition political parties in upholding the right to freedom of assembly in the political decision making in Uganda and as compared to Ghana which is one of the leading democratic jurisdictions with several years experience in a democratic setup with a simultaneous co-existence of great opposition political parties in the development of democracy.
1.3 Statement of the Problem
The right to freedom of peaceful assembly is central to any democratic society.49 However, in Ghana just like in Uganda recognition of the right to political party assembly remains a major challenge raising legal concern. For example in Uganda it is very clearly noticed that on many occasions, the police force, Resident District Commissioners (RDCs), as well as National Resistance Movement leaders/cadres, DISOs and GISOs have ignored political pluralism and given little or no respect to opposition parties.50 These have been trained and conditioned to believe that the political opposition is illegitimate and only NRM leaders and adherents have the rights of assembly, demonstration, movement and free speech to them.51 The government of Uganda through the above authorities has used and continues to use excessive force, including but not limited to live ammunition in dispersing peaceful demonstrators.
Such an environment has been a major factor in the decline of the right to freedom assembly of opposition political parties in the country today. Staging public demonstrations in Uganda especially regarding the opposition political parties in the recent years has presented quite a number of challenges for the organizers, the law enforcement officers and the participants leading to quite violent and undesirable occurrences occasionally. This is a complete abuse of the rights enshrined in the 1995 Constitution, which rights have been left with no meaning and the only time such a right is tolerated, is if such political assemblies are not after the questioning of the political status quo. On the other hand, the opposition political parties in Ghana have been very vibrant ever since the go-ahead was given to political parties to strengthen democracy in Ghana. There is a high degree of political party liberty being enjoyed in Ghana and there is no significant limit on the activities of the party members. On January 7th 2001, a peaceful transfer of power from a legitimately elected democratic government to an opposition political party that has fought and won a relatively free and fair multi-party election52, was described as a major step forward in Ghana’s continued search for democratic governance for achieving sustainable human development53. It also represented an opportunity for a fresh new start to redefine the long term development objectives.
The study is comparative analysis of the level of freedom of assembly in the multiparty dispensations of Uganda and Ghana aimed at drawing lessons for the legal and policy direction.
1.4 Purpose of the Study
The study assesses the value and benefits of the right to freedom of assembly of opposition political parties in streamlining leadership in a democratic society. The study therefore purposely addresses the inadequacies of the law of freedom of assembly through raising unrealistic perceptions to opposition political parties for sustainable democratic governance achievement. Thus the different conflicting views of the law on the freedom of assembly are critiqued to give a balanced interpretation of the law in relation to multiparty political dispensation.
1.5 Objectives of the Study
1.5.1 General Objective
The broad objective of the study is to make a comparative examination of the extent to which opposition political parties have exercised their freedom of assembly in promoting democracy in Uganda and Ghana.
1.5.2 Specific Objectives
(i) To examine and compare the adequacy of the legal and policy regulatory frameworks for political party assembly management in Uganda and Ghana.
(ii) To identify and compare the challenges faced by opposition parties in assembling to provide checks and balances to democratic improvement in Uganda and Ghana.
(iii) Identify and analyze the performance of the different support institutions involved in handling and managing political party assembly in promoting democracy in Uganda and Ghana.
1.6 Research Questions
(i) How adequate is the legal and regulatory framework for political party assembly management in Uganda and Ghana?
(ii) What are the comparable challenges faced by opposition parties in assembling to provide checks and balances for democratic improvement in Uganda and Ghana?
(iii) What is the performance of support institutions in handling and managing political party assembly in promoting democracy in Uganda and Ghana?
1.7 Hypothesis of the Study
The study hypothesizes that, there is a significant relationship between the freedom of assembly and the performance of political parties in providing checks and balances in the democratic settings of Ghana and Uganda.
1.8 Scope of the Study
1.8.1 Geographical Scope
The study is limited to examining the law of freedom of political party assemblies in Uganda and Ghana and will be carried out within the jurisdiction of Uganda.
1.8.2 Content Scope
The research focuses on the law relating to the freedom of assembly in Uganda, the legal and institutional regimes, the study further addresses the challenges faced by political parties in assembling and how government of Uganda and Ghana have handled the freedom of opposition parties in order to provide a way forward.
1.8.3 Time Scope
The research is conducted between 2013 and 2014 and focuses on the period 2005 to date, the time when political party assemblies were reinstituted in Uganda. The study also focuses on the period 1993 to date the time when Ghana was ushered into constitutional rule.
1.9 Significance of the Study
The study provides a comparative analysis of the legal and policy framework on political party assembly dispensation between Ghana and Uganda and embraces the democratic principles with a peaceful co-existence of the major opposition political parties in the country.
The study will identify the inadequacies in the law of freedom of assembly and once significantly adopted will provide more applicable policy reviews following the recognized track record gaps on the free and peaceful assembly of opposition political parties in democratic governance to promote harmony.
The study provides a credible knowledge base to policy makers and implementers for multiparty democratic practices to be enhanced. With the recommendations, a way forward is provided on the law of freedom of assembly as a paramount factor in the political development of democracy in Uganda.
The Ghanaian comparison appreciably provides lessons and examples on the participation of the opposition political parties in the governance as well as contributes to the body of knowledge. By providing knowledge on participation in peaceful assemblies individual society members will have an opportunity to express opinions that they hold in common as enshrined in the Constitution.54 The constitution provides each and every person the right to freedom of assembly and to demonstrate together with others peacefully and unarmed and to petition.
The study is also expected to provide a foundation for future research to other scholars who would wish to carry out research in the same field. It will help in closing the existing knowledge gaps on freedom of assembly for political parties in multiparty democracy. Hence an update to the existing database for purposes of references.
1.10 Literature Review
Although much has been written about the many freedoms in different jurisdictions, there is a paucity of literature on the law relating to the freedom of assembly. Most of the available research literature looks at the problem of practicing and enforcing the freedom. A number of scholars have considered the subject of the freedom of assembly. However, most of it generates from the institutions themselves.
According to Dicey the right to assemble is of great relevance in any democratic society and the outcomes can be expressed accordingly reflecting on real life practices and court directives on liberty of a person and liberty of speech.55 In respect to Dicey’s assertion as presented by Oji56 the right to freedom of assembly is simply a sum of the right of movement and speech, but according to Oji, this does not grant the value of freedom laid down in the 19th century.
Roderick cites Aristotle’s work on the right to enjoy freedoms which asserts that “being political is an expression of being rational just as rational animals naturally conduct their private affairs through reason rather than through unreflective passion, so they naturally conduct their common affairs through public discourse and rational persuasion, rather than through violence.57 From this assertion, Roderick derives that the rationale behind the full enjoyment of the guaranteed freedoms is having the freedom to assemble. This literature is supported by Martin Nowak who fundamentally explores that, “participants to an assembly gather for a specific purpose.58 This is similarly acknowledged by Jarrett and Mund who contend that;
…the act of people assembling developed early in the history of man. It was a natural thing for men, as social beings, to gather together and discourse with one another.”59
Roderick however is lopsided in his literature. He does not consider the outcomes of the freedom of assembly, if enjoyed without being restricted.
The current study however, analyzes the possibility that political party assemblies in Uganda and Ghana, if well regulated may promote civic understanding and development, but if unrestricted then the assemblies may translate into negative dangerous outcomes.
Marianne attempts to provide a background on possible miscalculations and misperceptions on the freedom to assemble and holds that;
…the importance of the freedom of assembly stretches back into pre-revolutionary American history, a time preceding the revolutionary war when the British army attempted to restrict colonists from assembling to protest the various Acts passed by parliament to tax and control the colonial population.60
Reflecting on the above literature and claims, the study finds it trite to acknowledge that a democratic setting like that of Uganda and Ghana can guarantee political party enjoyment of the right to assemble as this may imply sacrificing ruling party interests when subjected to contestation. In Uganda Sabiiti Makara asserts that it will be difficult for multiparty politics to deepen democracy, unless there is a commitment to the rules of the game, institutions of the state are separated from the ruling party and if all parties are perceived as equal not only before the law but also by the state.61
Indeed Siegel in his book Classical vs Liberalism” precisely singles this out when he stresses that the freedom of assembly protects the positive freedom to hold political meetings62 as held by classical liberalists.
In the United States, a most recent and vital examination has been undertaken on the twist of the right to freedom of assembly. The book “The Forgotten Freedom of Assembly” by Professor John D. Inazu portrays that, there are three characteristics of freedom of assembly in the political history of the United States that is, the dissenting assembly, the public assembly and the expressive assembly. The dissenting assembly is an inherent group which diverges from the majority and consensus standards endorsed by government to invoke the right to assemble. The public assembly group is one which asserts public claims by advocating for a visible political space distinguishable from the government. Finally, the expressive assembly group is one whose manifestation for assembly is in form of expression parades, strikes and demonstrations through more creative forms of engagement like pageants, religious worship and sharing of meals. These groups according to Professor Inazu have emerged from groups that have gathered throughout the history of the United States.63 In Uganda for example the formation of Democratic Party (DP) was in 1954 and this was mainly founded on Catholicism and mainly led by the Baganda. The Uganda People’s Congress (UPC) was formed in the 1960s and majorly based on tribalism and Protestantism and comprised mainly of the people from northern Uganda.64
In a similar vein, Apter65 stresses that the genesis of political parties is difficult to disentangle from the evolution of societies and states. Just like Samuel Huntington believes that parties are inevitable for a democracy to work.66 David Apter also conceives political parties as instruments of modernization in developing polities and argues that;
…the political party is such a critical force for modernization in all contemporary societies that the particular pattern of modernization adopted by each is quite often determined by its parties…67
Parties therefore depend upon the degree of modernization in society for their pluralism and diversity. In a similar argument along the modernization continuum, Huntington sees political parties as modicums of political assimilation, consciousness and participation produced by the process of modernization. To him, political parties produce a stable balance between participation and institutionalization of modern politics.68 In Uganda for example Makara69 points out that Uganda’s political history has been at a crossroads and that the country has vacillated between multipartism, one-partism, military regimes and the Movement regime which regimes create political uncertainty.
In this regard, parties are seen as important for organizing the modern structures of power, encouraging participation, minimizing a likelihood of political instability and enhancing proper governance of a modern state. Huntington’s thesis is that a society which,
…develops reasonably well organized political parties while the level of political participation is still relatively low is likely to have a less destabilizing expansion of political participation than a society where parties are organized later in the process of modernization70
In Uganda, it is pointed out that parties have not been permitted to campaign freely and constantly dispersed by police as illegal gathering.71
This raises the all important question of citizen participation as Almond and Verba make a very interesting distinction between citizen and subject. While a citizen is perceived in terms of his civic roles that is, in terms of his effective participation in governance as well as questioning certain policies, a subject does not participate in making rules nor does s/he seek to influence policy outcomes.72 In other words, the level of civic responsibility possessed by a citizen assumes that s/he is free to participate in any organization that makes it possible for him or her to influence government processes.
However, all the above literature mainly focuses on mentioning and expressing the emergence and basis of political party groups, but does not reflect on government position on the presence and basis of these political groups and ideologies.
Indeed according to R. M. Hope, Q.C. in her paper entitled, The Right of Peaceful Assembly observes that generally expressed, few people would deny that a democratic society must involve freedom of speech, and a freedom to assemble to express and impart opinions, and where relevant to criticize the government.73 It is true that in a democratic society, all the rights mentioned by Hope should be given a thorough thought when addressing the right to a peaceful assembly. However Inazu and Hope only contend for party assemblies but ignore the position of government. The current study therefore explores government concern in recognizing and acknowledging the presence of political party groups and their right to assemble in providing checks and balances. This is in addition to establishing whether political party assemblies are genuinely driven and committed to addressing concerns of the governed.
Dr. Yasin Olum74 extensively looks at the right of assembly as a right that covers all types of gathering including assemblies and meetings, demonstrations, marches, processions, whether public or private provided they are “peaceful”. He further asserts that where the organizers or participants have violent intentions likely to result in violence or disorder there is no right to freedom of assembly. He continues to analyze that the state may be required to intervene to secure conditions permitting the exercise of the freedom of assembly and procession and this may require positive measures to be taken to enable lawful demonstrations to proceed peacefully but the laws regulating assemblies and processions must not in any circumstances create unjustifiable restrictions in relation to holding peaceful assemblies.75
Marcus and Spitz approach the politics of the right to assemble in a democratic society and point out that,
…the exercise of democratic self-government, both in direct and representative forms, requires of the citizenry the capacity to make informed judgments about the manner in which they are to be governed extensive and participatory debate in turn requires free and open access to all available and relevant ideas and policies76
This literature however, does not take to point out the possibility of misconduct by the citizenry in making informed judgments. The study explores whether assemblies to make informed judgments have remained lawfully peaceful in Uganda and Ghana.
According to Norman L. Chapple, an unlawful assembly exists where three or more persons assemble to commit a breach of the peace; assemble in such a manner that reasonable persons are caused to fear a breach of their peace; and when members assemble to commit a crime77 because the right claimed by the assembly is one basic in democracy.78 In respect to such, Chapple reveals that police have no difficulty in taking appropriate action where an assembly is unlawful per se. However, the literature on Chapple’s assertion falls short of what happens, when an assembly is lawfully held but unlawfully dispersed by police. For example in Uganda, police has earned themselves the image of a repressive force.79 This is clearly seen in Muwanga Kivumbi vs Attorney General80 when the Constitutional Court nullified the powers of the police to prevent citizens from engaging in peaceful demonstrations. Court upholds the right for citizens to peacefully demonstrate and makes it clear that the police have no right to either give permission or withhold permission for anyone to demonstrate peacefully but rather to provide security for such demonstration when the situation warrants. This study sets to establish possible remedies that can be taken to prevent against unlawful dispersions of political assemblies by police in Ghana and Uganda, if any.
Scholars such as Kabudi P.J acknowledge that, it is through their ability to express themselves, that the governed people are able to voice judgment on government action to ensure that they are properly and democratically ruled.81 Indeed according to A.G. Noorani, the state possesses the power of ‘reasonable regulation, but not the power of arbitrary exclusion’. The power to decide whether a meeting should be permitted or cannot be permitted is conferred on a state official without laying down precisely the criteria to be observed.82 In Uganda this is clear in Muwanga Kivumbi vs Attorney General.83 The study explores the criteria laid down for state agencies to permit or not to permit holding of political party assemblies in Uganda and Ghana.
In his piece, the Assoc. Prof. John-Jean Barya, believes that political parties play a major role in making the country focus and has this to say;
Even the political calculations really revolve around freedom of political parties to operate.84 He goes further to assert that …political parties are mediating institutions that the state is also interested in regulating, namely the media and civil society85
Therefore, political parties play a significant role in interest articulation as well as interest aggregation, hence influencing the policy agenda of government. In less developed countries parties play an important role of national integration through the function of representation of various groups at national and sub-national levels.86 In the particular case of Sub- Saharan Africa, Coleman87 noted that parties were held together by the cement of fighting for self-government from the colonial rulers. The subsequent post-colonial years witnessed a rapid emergence of dominant parties. Thus while in other areas, parties played a strong integrative role, this was only successful in a handful of African countries. Possibly, the presumptive anti-party sentiments amongst the political elites in most African countries could be a result of this false start.
Gabriel and James go further to assert that, whether the political elites like parties or not, by levying accusations against them such as promoting corruption, spurring conflict and causing instability;88 it appears that such vices do not override Duverger’s assertion that a regime without parties is of necessity a conservative regime.89 Generally, parties are notable for mobilizing and socializing the public for political purposes. They operate as vehicles for articulation and aggregation of diverse social interests in society; recruit political elites by nominating and selecting candidates for public offices, influence government agenda, policies, and public actions; cause governments to act more transparently and accountable for their actions; and propose alternative policy agenda.90
In the above literature, general information on political party assembly is cited. However, this study focuses on the provisions of the law and policy direction in promoting political party assembly. However what constitutes law of political party assemblies in a democratic setting is a difficult to express issue. Much of the justice provided mainly focuses on satisfying specific political party needs other than political party contestations of ruling parties.
The study is mainly qualitative in nature but the researcher invoked both qualitative and quantitative data. Both general and key respondents such as members of Opposition political parties, Members of Parliament (MPs), the Police Officers, the Local Council officials were selected because they are deemed knowledgeable about the phenomena being studied and experienced in a democratic society. The quantitative technique was used because it generates quantifiable data whereas the qualitative technique is used because it captures views and opinions of key respondents interviewed when in Uganda, Internet guided me with Ghana.
Population is an entire set of individuals, events or objects having common observable characteristics about how the generalization of research can be based.91 The study population was drawn from Uganda and it comprised of Human rights activists, journalists as well as TV/Radio presenters and editors. Political party leaders and representatives were also consulted as well as police and members of the community, (5) five respondents at least in those categories.
The study population is selected from different political party groups such as the Forum for Democratic Change (FDC), Democratic Party (DP), National Resistance Movement (NRM), Uganda People’s Congress (UPC), Conservative Party (CP), Federal Alliance (FA), Peoples Progressive Party (PPP), and Peoples Development Party (PDP). This is in addition to Civil Society Organizations such as the media and Non-Government Organizations (NGO’s). Under the media Journalists from both New Vision Company and Monitor Publications are to be considered, as well as Radio and Television presenters from Radio Simba, Kaboozi, CBS, WBS and Bukedde TV. The NGOs covered included the Forum for Women in Democracy (FOWODE), Amnesty International and the Human Rights Commission. The Police Force was also represented as well as the community members from around Kampala.
Respondents who are knowledgeable on political party assemblies were consulted. The study also covered 10 respondents from each of the different selected categories of institutions. These were selected through snowball sampling method. Snowballing as recommended92 is a form of sampling of convenience sample where researcher makes initial contact with a small group of people who are relevant to the study and then uses these to establish contacts with others. The researcher proposed this method because it was unlikely that through other methods, people would be willing to participate or answer questions honestly. The snowballed groups included political party groups, civil society organizations (the media and Non- Government Organizations), the police, and Local Council leaders. A sample of 20 respondents was randomly selected from the general public to provide each individual member of society with an equal chance of representation.
Data Collection Methods
Both primary and secondary data sources are to be relied upon. Primary data involved first hand information obtained directly from the field by help of self completion interviews as well as through phone calls. While secondary data is drawn from already existing literature on political party assemblies. This was purposely used to add quality to findings for purposes of updating the available database. The basic methodology that was used to conduct this study was library research. An in-depth examination of various textbooks, journals and articles that are related to the subject of this study as well as relevant pieces of legislation and cases in both Ghana and Uganda has been undertaken. In addition the internet resource was used as a supplementary study tool.
For primary data collection, interviews were carried out. The interviews were carried out directly by the researcher in a face to face encounter with respondents. Interviewing is a technique that involves verbal questioning; it is face-to-face conversation between the interviewer and the informants conducted for the purpose of obtaining information.93 In-depth interviews were adopted purposely to allow for systematic and comprehensive flow of information94 and to allow informants to freely express views related to the topic.
Documentary reviews were made where information relating to political parties and freedom of assembly was acquired and summarized in relation to the specific objectives.95 This was purposely used because it is recommended to be a good approach in data collection before field exercise and yet can still be maintained in data analysis and report writing. This process enabled the researcher to obtain pertinent information on the wide range of multiparty and freedom of assembly concerns. The documents reviewed included Newspaper Articles, Journals from civil society organizations, police reports and cases on political party assemblies.
The researcher acquired an introductory letter from Makerere University School of Law, copies of which were given to the relevant authorities as well as respondents. This was in addition to the verbal introductions made particularly to other persons of the community. The purpose of the introduction was to ensure that, data was analyzed and discussed concurrently following the thematic order of the specific objectives and interview questions with particular reference made in quotation of the responses generated from the study subjects. Responses were classified into categories the purpose of which was to summarize data in a manner that yielded meaningful responses. Phone calls were also relied upon in respect to clarity of issues that required deeper insight.
Limitations of the Study
The researcher anticipated difficulties in acquiring data through interviews as some politicians would be reluctant to give the information and yet others had busy and tight schedules to spare time. However some interviews were carried out through phone calls in order to catch up with time. Acquiring information from police officers was also not easy, especially that they work under strict orders. However, the researcher managed to consult them beyond their work hours.
The researcher also found difficulties in interviewing the ordinary members of the community. Much as they had the knowledge, the researcher was tasked to write and record some of the interviews as well as using phone to record some responses in order to minimize the time spent on interviewing one person.
The researcher also experienced some financial constraints because he had to move from one place to another in search for information and on top of this had to call interviewees for clarification on issues that were found still demanding during compilation of data. This was in addition to carrying out interviews with the respondents whose free time was very limited.
1.12 Synopsis of the Chapters
Chapter One: This chapter covers the introduction, background, statement of the problem, purpose, objectives, research questions, scope, significance, literature review and methodology that is applied in carrying out this exploration.
Chapter two covers the legal regime of political party assembly in Uganda and Ghana as well as critiquing the applicability of the supportive laws therein. An analysis of the international regime on assembly is also made to provide a good ground for comparison not only between Uganda and Ghana, but also what is expected at the international level.
Chapter three involves an analysis of the scope of rights enjoyed under the freedom of assembly, the benefits of multiparty dispensations and the various disadvantages and abuses of unregulated political assemblies and the relevant institutional plans and arrangements for political assemblies in Uganda and Ghana.
Chapter four provides an analysis of the views obtained from the findings through book review as well as from the respondents.
Chapter five provides a summary, conclusion and recommendations of the study findings as expressed in chapter four.
LEGISLATING FREEDOM OF ASSEMBLY FOR POLITICAL PARTIES IN UGANDA AND GHANA
This section is about the law of freedom of political party assembly. Prior to this section, the literature introduces us to the general information on political party assembly. While the literature has provided what ought to be, this chapter specifically examines what the law provides for the freedom of political party assembly in Uganda and Ghana.
For proper analysis of the right to the freedom of political party assembly, a distinction should clearly be born in mind between when the right is applied and when it is abused. Else, political parties and regulating authorities encounter difficulties in exercising the right. This is particularly because, within the outside of such a context the nature of freedom exercised may not be all- embracing in the substance it delivers. This then would imply that the freedom to political assembly would be abused by those to whom it is accorded (political parties), just as much as the same freedom would be abused by the regulating agencies and authorities in retaliation.
The above opinion follows Dubick’s96 assertion which states that;
Of the various rights enjoyed the freedom of assembly may well be the most important. To dispense with the freedom to political assembly is to invite incursions on other rights and the authoritarian system of government. This is because it is primarily through the process of normal information sharing and communication that rights are developed, defined and defended. It is in this sense that the constitutional guarantee for political assembly has no equal.
This implies that, to regulate the excesses of the right of freedom of political party assembly a distinction has to be drawn, defined and enforced. But merely characterizing and defining the parameters of the right to freedom of political party assembly does not signify an end in the realization of this right.
The above contention follows the legal requirement to bring into play the ruling for matters that may arise especially in the constitution, which as a consequence may be turned accordingly with justice of the cause before court in the development of legal alternatives97 focusing on the fact that the constitution is what court says it is98 as witnessed in Shaw vs Reno.99
In Shaw’s case the powers of the court supplement the constitution and divert from criminal rulings to maintain the equal protection clause. Purposely, the law is meant for epistemic, legitimization and unification of the people,100 the reason court assumes a responsibility through its declarations to improvise a new law as seen in Attorney General vs Paul K. Ssemogerere and Hon. Zachary Olum101 which principles can only be invoked when other matters arise from the constitution as seen in Golak Nath vs State of Punjab102
In Uganda just like in Ghana, attempts to promote the right of the freedom of political party assembly have been made with various legal provisions adopted in the domestic and international laws to protect against the abuse of the right as presented below. But these instruments and laws have not been a complete end to the attainment of justice during political party assemblies.
2.2 Development of the Law of Freedom of Political Party Assembly in Uganda and Ghana
2.2.1 International Legislation and how it has been Incorporated in Domestic Laws
Uganda and Ghana are both signatories to various international, regional instruments and protocols that provide for the right to freedom of political party assembly such as the Universal Declaration of Human Rights (UDHR),103 the International Covenant on Civil and Political Rights (ICCPR)104 and the African Charter on Human and Peoples Rights.105
But the incorporation of the international provisions in their domestic laws does not guarantee their practice. This is especially true in the context that democracy is a new phenomenon in third world countries like that of Ghana and Uganda where authoritarian and military regimes have reigned for a long time in their history. In this pretext international law as drawn by western countries that form the UN bloc may not apply adequately to regulate the freedom to political party assembly in third world countries like Uganda and Ghana. Basing on Vincent’s assertion that by standards rights cannot be achieved universally and inherently106 it is reflected that much as all roads may lead to Rome, the level of achievement cannot be the same. Jefferson indeed points out that;
…there is no denying the problem of leadership is top among problems in Africa, if not the entire world. Africans have the capacity to end problems of leadership but lack the will to do so. The will is locked in the hands of the so called political leaders107 who according to Hyford are driven by excessive self interest which detaches it from the people they represent.108
This raises the possibility that the political leaders in Uganda and Ghana have the capacity (legislations) to end abuses of the freedom to assemble but lack the will to apply them. Hence the need to establish the rationale of Laurie’s109 work “African solutions should apply to African problems” by critiquing the adequacy of the international provisions on the freedom of assembly as adopted in Uganda and Ghana. The study in whole examines the applicability of the incorporated international provisions and guidelines on freedom of assembly and how these have been challenged in the domestic settings of Uganda and Ghana as reflected hereunder.
2.2.2 The Universal Declaration of Human Rights (UDHR) (1948)
The UDHR110 accords all people with equal and inalienable rights of the freedom to assemble, morals and values of which represent developed theories of natural law from beliefs and cultures world over. These have helped to provide a foundation of freedom; justice; and peace through eliminating fear and want in promoting friendly relations as governed by the rule of law.
Under Article 20 the instrument is precisely designed to protect the right to freedom of peaceful assembly and requires member states to provide each and every individual the freedom to associate and come together in collectively expressing, promoting, pursuing and defending common interests111 without any compellations to belong to any particular group or association.112
Reflecting on the scope of this study, the provision requires that all individuals are able to choose and identify with political party groups of their own choice without due force or enticement. This is in addition to freely exercising their freedom to assemble and associate with other party members to share opinions in manner that is free from intrusion as long as such rights are exercised within the realms of the law.
Article 21 further strengthens the freedom to peaceful assembly by granting individuals the right to take part in the governance of their country either, directly or through freely chosen representatives and by allowing the will of the people to form the basis of the power of the state through genuinely held elections.113 This implies that whether individually or through their elected group representatives, political party assemblies can be held to inform governance processes and policy designing. Both Uganda and Ghana are signatories to the UDHR and thus bound by the rules and guidelines of the Declaration as reflected in their constitutional provisions.
184.108.40.206 Constitutional advances on the right to political assembly in Uganda and Ghana
Constitutional developments in Uganda and Ghana reflect various components and provisions that can be brought together and relied upon to support and promote the realization of the right to the freedom of political party assembly. In both states, the Constitution is the supreme law and thus critical to any reforms on the freedom to political party assembly. Therefore any reforms pertaining to any limitations to the exercising of freedom of political assembly can be appreciated as justifiably fundamental in Uganda just like in Ghana. Such reforms can remain critical to debates on reasonable restrictions on fundamental rights due to customs of culture that may distinguish and manipulate public policy.
In Uganda like in Ghana the Constitution provides for protection of freedom of assembly,114 association,115 equality,116 speech and expression,117 thought and conscious118 movement,119 and information access and dissemination.120 An entitlement is also given to persons to associate, assemble and join any political groups of their choices121 without restrictions apart from the limitations within the laws. Indeed civic rights and activities are guaranteed122 with every citizen entitled to a right to participate in the affairs of government within the confines of the law. With a power to belong and participate, the freedom for political party assemblies and demonstrations in discontentment is strengthened, though only exceptional under peaceful and unarmed situations. This study is confined to examining whether opposition party groups have had the opportunities to assemble like the ruling party groups in the context of Uganda and Ghana.
Having the freedom to associate and assemble is not a guarantee in itself and neither does it signify infringing on the rights of others.123 The constitutions in both contexts provide for limitations and set standards for the justifiability of any limitation on the freedom to political assemblies as acceptable and demonstrably justifiable in a free and democratic society, and thus cannot be taken for granted. This implies that, in the enjoyment of the various rights and freedoms that support political assembly, no persons shall prejudice the fundamental or other human rights and freedoms of others and neither are they expected to exercise unfairness in public interest. The constitution in Ghana and Uganda thus provides for the exercising of these rights without having to infringe on the freedom of others and without any political harassments of others.
Despite the supportive provisions in the two countries, while the right to the freedom of political party assembly in much more recognized in Ghana, the situation in Uganda is critically espoused by political harassments. The study hence investigates what hampers the realization of the constitutional guarantees within the assumed democratic settings of Uganda as compared to Ghana.
The Constitution of Uganda 1995
Uganda as a state has a duty to protect human rights and therefore bears in mind its political objectives in promoting democracies124 and empowers and encourages active participation of all in the system of governance without discrimination (whether as individuals or groups). Indeed subject to Article 38 each and every individual citizen has a right to participate in the affairs of government to influence policies, whether as an individual or through his or her representative as long as such an act is reflected upon the restrictions of the constitution.
The legal framework has been designed to maintain that any political group or organization intending to participate in governance does so within the constitutional realms to retain people’s autonomy in practicing their affirmed objectives. Subject to the sovereignty of the people the Constitution125 requires the state to ensure that people are governed through their own will as all power belongs to them and therefore best, exercised through their different groups within the confines of the law (Political party groups in particular for this study). Therefore the state is required under Article 20 to respect, uphold and promote the right.
The constitution further strengthens the freedom of political party assembly through the right to associate under Article 29. The right to associate stretches to encompass the freedom to form and join associations, political party group formation for the case of this study. The same article provides citizens with the freedom to assemble and demonstrate peacefully together as an unarmed group and allows the groups to petition to court once their political independence has been infringed upon. The study therefore examines whether any political harassments that are witnessed come up as a result of exercising political party assemblies outside the realms of the constitution or due to carrying out armed assemblies. The study also critiques court establishments and decisions on the harassment of opposition party members upon petition and whether these decisions are upheld.
Following the scope of this study, the freedom to assemble also reflects upon the right to associate. Therefore the right to form political party organizations in Uganda partially derives from the right to associate. The Constitution upholds the right to form political party organizations by registration126 and regulates these rights under Article 73 but does not permit such regulations to surpass conditions necessary for the free operation of the political systems adopted by the parties.127 In other words by political parties exercising their freedom to assemble should not infringe on the rights of others.
Membership to a political party group is regulated over under Article 71 and is restricted to having a national character by registration with all internal party arrangements expected to entirely conform to the democratic rules embedded in the constitution. The parties are required to exercise their mandate without allowing for any form of discrimination in membership to take place on sex, ethnicity, religious or any other ground, as long as members are citizens who have not been compelled to join party by reason of belonging to an organization or interest group.
Subject to the same Article the law requires political parties to account for its sources and use of funds and assets. The constitution imposes on parliament subject to Article 72 128 to undertake the duty to regulate political party functioning and financing, with no political party allowed to operate if it does not conform to the principles of the constitution more so if the party remains unregistered.129 But notwithstanding Article (1) (e) 130 and 43 131 the constitution allows for free association in the formation and joining of political group organizations; but prohibits political persecution, detention without trial or any limitation in the enjoyment of this right beyond the acceptable democratic restrictions respectively in the name of public interest.
The Constitution of the Republic of Ghana (1992)
In Ghana the legal framework is just like in Uganda, the sovereignty of the country lies in the people in whose name and welfare, government should exercise its powers132 within the parameters defined by the constitution. The protection for the freedom of political party assembly is recognized under chapter five of the constitution subject to the recognition of fundamental human rights and freedoms133 without discrimination.134
Article 21 (1) (d) provides for the freedom of assembly and describes it to include the freedom to take part in processions and demonstrations. This freedom is strengthened by the freedom to associate under Article 21 (3) (e). Article 21 (3) and (4) gives citizens of Ghana the right and freedom to form or join political parties and to participate in political activities as qualified by the laws of democracy consistent with the constitution135 and under no circumstances is any human right expected to be violated in Ghana. Therefore in case any person(s) allege(s) that the constitutional powers have been violated or contravened then such persons are required by the law to apply for redress to the High Court without prejudice,136 hence the inviolability held for the dignity of persons under Article 15.
Any citizen of voting age in Ghana is guaranteed the right to join a political party of his choice.137
Similar to the case of Uganda, political party group formations in Ghana are required to acquire a national character through registration with membership not discriminative in any way138 and neither is membership allowed to be by virtue of one’s belonging to a particular organization or group.139 The law in Ghana prohibits any political party from operating without registration,140 induced or forced membership, and requires party groups to submit a copy of their constitutions, names and addresses for certification.141
The Constitution of Ghana requires political parties to declare to the public their revenues, assets and sources of such revenues and assets with a publication provided annually of the well audited accounts to the public.142 The law restricts foreign donations or contributions to a political party registered in Ghana subject to Article 55 (15). Subject to Article 55 (5) political parties in Ghana are not expected to deviate from the expected democratic principles defined in the constitution and any other laws. This implies that how the internal organization and structure is arranged should remain in conformity with the expectations of the constitution, more so the law.
The constitution guarantees citizens with a right to participate in shaping and determining the political will of the people through information dissemination on political ideas, social and economic programmes of national character.143 To confirm this right the state is compelled to provide a fair opportunity by ensuring equal access to state-owned media to all political party groups in presenting and voicing their programmes to the public,144 in addition to awarding the same amount of time and space on for presidential candidates subject to Article 55 (12) and parliamentary candidates to conduct their campaigns freely in accordance with the law.145
To ensure fulfillment of the above requirements, the constitution imposes a duty on parliament to regulate the establishment and functioning of political party groups in Ghana.146 Indeed subject to Article 56 parliament is endorsed with the power to enact a law which establishes and authorizes the establishment of an institution with a right to impose on the people a common set of political objectives in the case of this study.
Reflecting on the provisions of the Universal Declaration for Human Rights instruments as earlier presented, it is depicted that joining a political party group should entirely depend on individual choice and will with no compellations or inducements as long as this is exercised within the realms acceptable by the law governing a country. On account of this, Uganda and Ghana being member states both embrace the right of freedom to political party assembly in their legal systems reflecting on this provision. The study examines how much of this freedom has been allowed for and whether this has had a binding effect in terms of practice by opposition party groups in Uganda as compared to the Ghanaian experience.
The decision to enshrine the right to freedom of association, assembly, information access and expression in constitutions are an important recognition of the importance of political party functioning in a democracy. Indeed, in Ghana political party groups have existed since the 1960s exposing the excesses of government and advocating for reform. But in Uganda political party groups have thrived on and off since 1964 until recently in 2005 scrutinizing public affairs, encouraging robust public debate, and exposing corruption and other forms of malfeasance.
2.2.3 The International Covenant on Civil and Political Rights (ICCPR) 1966
The ICCPR was established in 1996 by the United Nations, upon recognizing that it was ideal to create an environment free from fear and want in accordance with the UDHR if at all each and every individual must enjoy his civil and political rights. The instrument was ratified in Ghana in the year 2000 and by Uganda in 1995.
According to the ICCPR147 all people have a right to self determination as well as free to determine their political status to pursue development. In respect to Article 3, state parties are expected to promote the realization and respect of the right to self-determination without discrimination. Therefore subject to Article 26 of this instrument shall no individual be discriminated against on any ground148 be it by virtue of gender, ethnicity, political opinions held, or any other opinions. Uganda and Ghana being member states are obliged to ensure that each and every individual is allowed to make his own choice of a political party to which they wish to become members as long as this remains within the proceeds of the law and without any form of compellation.
To enforce this requirement, the ICCPR obliges member states to ensure that necessary steps are undertaken to redress any person whose political rights have been abused or infringed upon, reflecting upon what has been ascertained and determined through a qualified judge.149
The ICCPR also strengthens the right to freedom of political assembly through the right to associate under Article 22 (1) and the right to peaceful assembly under Article 21. According to the ICCPR, no restrictions whatsoever that are not exercised in the confines of the law can be imposed to restrict the freedom of assembly apart from those in the interest of national security, public safety and order and the protection of the rights of others, hence the freedom to associate and assemble.
Further still the right to freedom of political assembly is also guaranteed through the proceeds on the freedom of speech and expression150 which declares that everyone shall have the right to hold opinions without interference151 and the right to enjoy freedoms of expression that shall include the right to seek, receive and impart information and ideas of all kinds regardless of frontiers.152
In context of this study, this implies that by seeking, receiving or imparting information, a person that so does under political party assembling or representation, will not have committed a crime, provided by so doing he or she does not interfere with the peace and rights of others. While this is the case, the law does not permit propaganda or any advocacy constituting incitement to discrimination, hostility or violence153 and doing so constitutes an offense.
In Uganda just like in Ghana, the question of the extent and impact of some messages communicated by political party group members or representatives may have a limitation as these may constitute or raise interpretations that are bound to be challenged as shall further be expressed in chapter four. For example Chapple154 clearly points out this when he consents that police have no difficulty in taking appropriate action where an assembly is unlawful because the right claimed by the assembly is one basic in democracy. But in Muwanga Kivumbi vs Attorney General155 in Uganda, the assemblers were persecuted by police, and although court established the assembly as lawful and barred police from interfering with peaceful assemblies, police has not followed heed to court directives. Police in Uganda continues to meddle in peaceful assemblies through executing unlawful arrests.
2.2.4 The African Charter on Human And Peoples’ Rights (ACHPR) (1986)
The ACHPR is an African region human rights instrument adopted in 1981 which came into force in 1986 following several lobbies and advocacies by the media, church groups, non-governmental organizations and inter-governmental organizations to establish a human rights protection system. The instrument was ratified by Uganda in 1986 and in 1989 by Ghana.
Under the ACHPR the right to assemble freely is provided for under Article 11 and it is associated with various other rights such as the right free association and156 the right to receive, express and disseminate information and opinions.157 The charter in its principle on freedom of expression and speech strengthens the freedom of political party assembly. It emphasizes the key role of the media and other means of communication in facilitating and strengthening democracy by promoting the free flow of information and ideas to assist people in making informed decisions.
Following the scope of this study, political party groups like other organizations are expected to have their opinions equally disseminated and voiced through the media158 to enable individual citizens the right to receive information that pertains to their governance. However, in exercising their mandate during assemblies, political party organizations are obliged to exercise their freedoms with due regard to the rights of others subject to Article 27 of the Charter. This study stretches to examining how far equal the freedom to political assembly has been exercised by the ruling and opposition party groups in Uganda and Ghana.
2.2.5 The Law in Uganda and Ghana
The Political Party and Organizations Act (2005) of Uganda
The Political Party and Organization Act of Uganda was enacted in 2005 to regulate over the formation, action and operations of political parties. The Act under Section 2 defines a political party as an organization whose objectives include influencing political processes or sponsoring political agendas of its members, whether or not such a political party seeks to sponsor or offer a platform to a candidate for election to any political office to participate in governance. Under Section 3 (1) therefore, a political party in Uganda can be formed and deemed to exist through registration under the electoral commission159 as long as it remains bound by the law.
Only citizens of Uganda can gain membership of any political party group in Uganda subject to Section 13. And Section 16 outlines citizens who are not supposed to participate in political party arrangements and activities to constitute persons employed by the UPDF, UPF, Religious and cultural leaders as well as persons working for agencies wholly owned by the government. The law allows for all citizens under Section 3 (2) to join or form a political party of their own choice.
Therefore in line with Section 5 of the Act, it is under no circumstances that any political party group in Uganda can be formed on grounds of ethnicity or religion, neither can it be based on grounds of exclusion as per Section 5(1) (a). The Act does not permit use and application of any identifying symbols, slogans or words that by nature, may introduce segregation in memberships subject to Section 5 (1) (b). Such persons that do so would have committed an offence in respect to Section 5 (3). Indeed according to Carothers160 political parties based on ethnic or religious lines can be divisive, particularly in divided societies emerging from conflict and may affect the quality of democracy. This assertion is later on tested in chapter four for political parties in Uganda and Ghana.
Further still, to acquire the status of having a national character political party groups in Uganda are required by the law under Section 5 (4) to have at least 50 representatives from at least two thirds of all the districts of Uganda as well as from each region of Uganda as members of the group. Upon attaining this status, can a political party organization in Uganda be recognized and registered by the electoral commission subject to Section 6 as regulated by the Minister in accordance with Section 27.
To register the law161 requires political party organizations to apply with the electoral commission and furnish it with two copies of duly signed party constitutions. The organizations are also required to attach a list of full names and addresses of not less than 50 of its members from not less than two-thirds of all the districts in Uganda subject to Section 7. It is also required that any identifying feature by which any political party wishes to distinguish from others such as a symbol, slogan or color is clearly presented, and the registration fees duly paid.
Under this same Section, upon application for registration by the political party organization, it becomes the duty of the electoral commission to make its independent investigations to verify the applications. The commission undertakes to invite objections from the public in a gazette on issues pertaining to the aim, objects, name as well as the constitution of the applying political party within 14 days.
In case the intentions, aims, objectives or constitution is held contrary to the expectations of the law, the electoral commission is then endorsed with a power to stop the registration whereof the political party denied registration is given an opportunity to submit in answering to the objections raised within 21 days. Upon approval, the electoral commission can dispose of its objections accordingly or may extend a grace period for compliance to 21 days for rectifications to be made by the applying party.
This provision helps to keep political party organization objectives guided within the confines of the law with members clearly known.
A certificate of registration is then issued upon which each political party organization is required to submit a written declaration subject to Section 9 regulating the conduct of political parties to declare assets and liabilities within sixty days after the expiry of first year of receiving certificate under Section 7.
Section 12 provides for the requirements to record and audit books of accounts in order to maintain an accurate permanent record of any contributions, membership dues, donations or pledges and assistance of any kind received by the political party group. This is in addition to declaring property that belongs to the party and such times when the property is acquired. Such accounts are expected to be presented to the electoral commission within six months from the end of the financial year as reflected in the summary statement; else the electoral commission employs its own auditor to audit the accounts as obliged under Section 14 (6). Subject to Section 12 (b) provide a statement of its accounts showing the sources of funds and the person contributing the funds who may not be citizens of Uganda.
Under Section 10 the internal organization of political parties is regulated. The law requires the political organizations to maintain and uphold the constitutional provisions under Articles 71 and 72 while conducting their affairs. In case the political party organization has any internal constitutional changes or alterations presented under Section 7, it is obliged to notify the electoral commission which then undertakes a duty to publish the changes within 21 days before such changes can be effected.
The Act restricts political parties from demanding or acknowledging any contributions or donations, loans which may exceed 200,000 and 20,000 currency points within any period of 12 months subject to Section 14 (3) (a) and (b) without notifying the commission as required under Section 14(4). Therefore according to Section 14 (5) (a) no single political party is expected to receive, obtain, solicit any financial or other assistance from any foreign government, institution or body that has previously demonstrated the intention to overpower state power, terrorist organizations (Section 14 (5) (b)).
Contravening these restrictions by any political organization constitutes an offence subject to Section 14 (9). Section 15 (1) and (2) therefore maintain it a duty and obligation for political party groups to ensure that they provide information to the electoral commission as reasonably required through their officers.
Under section 17 and 18 the merger and alliance of political parties is provided for respectively. Political parties that intend to merge in Uganda are expected to have their distinctive registrations lapsed immediately under Section 17 (a) before the effective date of the merger with the new party registered subject to Section 17 (b). In case of alliance the political parties that intend to do so shall remain separately registered per Section 18 (a) but each party is obliged to submit a copy of the agreement of the alliance to the electoral commission as required under Section 18 (b) with personal identification maintained for members contesting at any public rally subject to Section 18 (c) and (d).
This provision helps to restrict merger and alliance assemblies that may unlawfully be staged with objectives that may lead to actions that contravene the law.
The Political Party Act (2000) of Ghana
Like Uganda, Ghana has a law in place to ensure that the freedom to political party assembly162 is ensured as guaranteed under the Constitution.163 For purposes of satisfying the constitutional requirements the Political Party Act was enacted in the year 2000 to ensure that political parties are in position to participate in determining and influencing the political will of the people of Ghana through information awareness raising on various programmes, both political and socio- economic which are of a national character subjection to Section 1(3) of the Act.
The Act emphasizes the freedom of citizens of voting age to join political party organizations of their own choice subject to Section 2(1) and Section 1(2) without discrimination164 and not by virtue of belonging to a particular organization.165 Section 9 of the Act prohibits political parties in Ghana to use identifying symbols, mottos, colors, names, or emblem which reflects ethnicity, gender, religious, regional or any other sectional identification. Political party group formation in Ghana is thus allowed for if such a party is founded on conditions that satisfy the requirement of enhancing roles166 that do not act in contravention of the constitution.
Reflecting on Section 2(2) of the same Act, no member of any organization can be compelled to join any particular group. The law under Section 3(3) (1) restricts any form of discrimination which may be founded or based on grounds of ethnicity or religious in the formation of a political party group membership. Under the Act, Section 4(1) ensures that political parties are registered within the confines of the law and that the parties pay a certain sum for their existence. Qualifying to found a political party group in Ghana requires having a leader who is qualified to be elected as Member of Parliament subject to Section 7 (2) (a) and should be such a leader that can qualify to hold a public office.167 Above all this leader is required to be a citizen of Ghana subjection to Section 7 (3) of the Act.
Section 8(1) of the Act, requires a political party to apply to register with the electoral commission. The application is expected to be submitted with a copy of the party’s constitution reflecting the organization’s rules and regulations and clearly written names and addresses of all the party’s national officer subject to Section 8 (1) (b) of the Act. Like in Uganda, any distinguishing symbols, color, slogans or mottos that identify with the political parties in Ghana should also be presented to fulfill the obligation laid down for parties under Section 8 (1) (e) of the Act.
Seven days upon applying and satisfying the conditions necessary, the commission invites for objections from the public against the application in a gazette to clarify the fulfillment of the requirements by the applying political party168 If found satisfactory within the 30 days of inquiry169 the electoral commission then furnishes the applying political party with a certificate of registration170 if not then a period of grace is given for 30 days to take corrective action to satisfy particulars subject to Section 8(4). In case of any changes in the constitution, motto, slogans or else, the political party is required under Section 18 (1) notify the commission, which then gazettes the notification with an effect of 14 days allowed to make the alterations if no objection is raised by the public.
Part II of the Act is for purposes of political party operations in Ghana subject to Section 13 (1-6). The parties are required to declare details of their assets, expenditures, donations and contributions whether in cash or kind within 90 days upon receipt of certificate of registration.171 The submitted declaration is expected to reflect the source of funds and assets of the political party as required by Section 13 (2), but about doubt the commission has an obligation to demand for other particulars not required in the written declaration subject to Section 13 (3). The maintain accountability, the provision of Section 14 (1) requires political parties to submit statement of their assets and liabilities within 21 days before a general election takes place and six months thereafter the general election, submit a copy of their expenditures.172
Section 19 provides for the merging of political parties and requires that parties intending to merge shall have their registration cease immediately upon forming merger and the new party formed is required to ensure that it is registered. Under Section 20 parties that intend to form an alliance are regulated and to the effect of Subsection (1) (a), the parties remain separately registered but provide the commission with a direct copy of their agreement of the alliance as required by the law under Subsection 1(b).
The law also requires political parties to present an audited copy of their accounts to the commission, 6 months after year ending as of 31st December which should reflect a statement of accounts, sources of funds, membership dues paid, contributions or donations and properties and the time of acquisition as required under Section 21. Under Section 23 all contributions to funding of political parties are only expected from citizens and non- citizens are prohibited from funding parties. Thus no political party is expected to receive a contribution, donation or loan from a non- citizen subject to Section 24 of the Act. The law, under Section 22 therefore ensures that political parties maintain the duty to furnish the commission with all the required information as may be requested through its executive officer.
Following all the above requirements and conditions, any political party in Ghana which intends to hold an assembly is expected to comply with the Public Order Act173 provision on holding special event. While this is in order, suppressing any lawful political party activity in Ghana constitutes an offense subject to the provisions of Section 2 (3) of this Act.
The study establishes whether the different political party groups in Uganda and Ghana fulfill their registration obligations and democratic obligations set out in their constitutions and why opposition political party groups in Uganda have not been able to fully and freely exercise their mandate as compared to the political party groups in Ghana, more so with an almost similar law on political assembly.
Other Supportive Instruments in Uganda
The Penal Code Act (2000) Cap 120 of Uganda is a supportive instrument in promoting the right to peaceful assembly. The law provides a scope for the understanding of an unlawful assembly under Section 65. Political parties are able to understand what constitutes an unlawful assembly by virtue of the scope provided. Otherwise assembly if unlawful, the execution of its actions will constitute a riot offense and punishable as subject to Section 66 and 67 of this Act. The peaceful dispersal of such unlawful assemblies is provided for under Section 68 to be exercised through proclamation by either a magistrate, police officer above the rank of inspector, or commissioned officer in the armed forces. Preventing or obstructing the making of proclamation in this case constitutes an offense subject to Section 71 of this Act. Section 69 therefore provides for a forceful dispersal once there is a failure to adhere to the proclamation within the reasonable time given.
The act prohibits lawful assemblies from inciting violence founded on political opinion, religious, gender or any other opinions held by persons.174 The Act thus bans any seditious intentions which may bring about hatred or contempt by way of exciting disaffection175 to be raised under assemblies. In pretext of this study, the law in Uganda limits the involvement of any member from any political party from transmitting any information that is likely to result into insecurities. But much as this is the case, it does not imply that the extent of the impact can barely be expressed through communication assemblies by the bearers of such information. Indeed according to Odugbemi176 it is clear that in many African countries government agencies continue to impinge on the freedom of the press. The press being one the major means of communicating assembly outcomes. Reflecting on this assertion, the purpose of political party assemblies in Uganda becomes similarly curtailed. Indeed in 2004, journalists from the Independent Monitor newspaper came under attack when denounced as rebel collaborators by the UPDF spokesman.
The Access to Information Act (2005) is yet another supportive instrument for the freedom to political party assembly in Uganda. Part II of the Access to Information Act pertains to the access to information records subject to Section 5(1) as long as this information does not prejudice state security. It is clear that opposition political parties act as disseminators of information to the public to promote checks and balances for the ruling party. The purpose of this Act is to release information to persons for genuine reasons and intentions. Indeed in the junk helicopter case against Mwenda177 under Section 39 (1) (b) Mwenda was accused of publishing false news.
Because communications of the messages and content shared through political party assemblies in Uganda is furthered to the wilderness through free media coverage, how this message is relayed to the public is somewhat restricted, as long as this to cause contempt of the persona of the president and agencies of government to such an extent of exciting disaffection. The media in Uganda is regulated under the Press and Journalist Act of 1995 which allows the media council to operate as independent body of experts in representing the main stakeholders in Uganda as long as it within the realms acceptable by law. The law excludes publishing news with seditious intentions.
In addition to this is the Communication Act which subject to Section 60 and 61prohibits any operator of communication service to deny access or service to any customer except if upon delinquency of payment of dues or for any other just cause and to offer equal opportunity in terms of access to the same type and quality of services to all customers.
Further regulations can be traced from the Police Act Cap 303 laws of Uganda under Section 32 (b). Police has the power to regulate and direct assemblies and processions on public roads, streets, public resort places and the power to stop and to order for dispersal of assemblies and processions which have unlawfully been convened subject to Section 33 in order to prevent breach of public peace. The Act defines an unlawful assembly as one that neglects or refuses to obey any order for immediate dispersal in line with Section 65 of the Penal Code Act. If order to disperse is not obeyed, upon expiration of a reasonable time as demanded under Section 36, the police officer is required to do all things necessary for dispersing the assembly.
The Act further requires the police subject to Section 4 (1) (b) to maintain security within the country and to protect the life, property and other rights of the individual according to Section 4 (1) (a) in addition to ensuring public safety and order (Section 4 (1) (d)). Hence in line with Section 24 (1) a police officer may have a reasonable cause to arrest people in an assembly as a preventing action from causing injury to self or to others or to property, or unlawful obstruction on a highway (Section 24 (1) (e)).
The Leadership Code Act of 2002 was enacted to ensure that leadership in Uganda is exercised with ethics subject to the constitutional provisions of Articles 233, 234 and 235 to establish a code of conduct, its enforcement and disqualification of leadership. This is further strengthened under the Anti-Corruption Act of 2009 to regulate misuse of finances. The Whistleblower’s Act (2010) is also to the effect of ensuring that those that leak information of corrupt civil servants are provided with legal cover for the sake of increasing access to information. Reflecting on this study, political party assemblies are used as a platform to expose corrupt public officials especially where the law remains silent in Uganda.
In respect to political party assemblies and campaigns for elections, the Electoral Commission Act (2010) is in place. According to Merloe, elections are the main political mechanisms through which citizens can choose their government, and form a central pillar of any democratic political system. Thus how electoral systems have been designed is a pre-condition for determining how the political representation of the minority groups will be178 thus the collective right to genuine elections though party assemblies to maintain public confidence through inclusiveness, transparency and accountability.
The Electoral Commission Act as amended (2010) requires the independence of the commission to be maintained179 without being subject to the direction or control of any authority. The Act further obliges the commission to organize for elections180 and to ensure that all candidates carry out their campaigns in an orderly and organized manner, subject to Section 12 (2) (h) of the Act. This is in addition to ensuring that all candidates comply as required by the Act under Section 12(2) (J). In respect to this study, all contesting party members of under their different representative political groups in Uganda are expected to comply with the demands of the Act, while organizing any political assemblies irrespective of whether such contestants belong to the opposition or ruling party.
The Parliamentary Elections Act (2005) Cap 141 is yet another instrument in Uganda which regulates over political party assemblies carried out by aspiring members of parliament under their different political party representative groups. Subject to Section 20 (7) every candidate standing for election has a right to conduct his or her campaign freely and in accordance with the law and authority is obliged to provide for the protection and immunity of all candidates equally as required under section (21) of the Act.
Section 10 allows political parties to sponsor their candidates who stand for elections under a multiparty political system. Subject to Section 20 the Act regulates over parliamentary campaign programmes and requires each and every aspiring candidate to issue a copy of his campaigning program as required under Section 20 (2). Campaigns or political party assemblies by such a candidate can only be made within the prescribed period and time as ruled under Section 20 (4) and (5) with the electoral commission ensuring that adequate security is provided for these campaign assemblies under subsection 6.
The candidates are also restricted from using any language that incites public disorder, insurrection or violence as well as from making defamatory statements of others.181 The right to reasonably access and use state media during campaigns is also provided for under Section 22(1) of this Act and neither shall any candidate use private electronic media to decampaign any other candidate subject to section 22(5) and above all the campaigns should by nature be non-sectarian as required by Section 23 (1) and Section 25 restricts candidates from using government resources in a manner that does not comply with the law.
The law on political party assembly in Uganda just like Ghana is adopted from various international instruments and in most ways similar in design and substance, but conditions for their application in promoting democracies is what limits their scope. Indeed, reflecting on the presented legal international, regional and domestic instruments the right to freedom of political party assembly is not absolute since within all the instruments, is a power embedded for State restriction of the freedom. Much as the states are allowed the power to legally restrict the right to political party assembly (such as respect for the rights of others, protection of national security, public order or health and morals), the extent of the excesses and parameters of such restrictions have not clearly been defined nor brought into play under the international guidelines. Ideally, incorporating international legal guidelines in domestic laws is not enough guarantee to the practice and implementation of the right to freedom of political assembly in countries where autocracy and militarism reigned for a long time in history. Since standards to the achievement of this right cannot be maintained inherently or universally, then what constitutes international law is not adequately supportive to laying out democratic recognition of the right in the domestic settings of Uganda and Ghana because the scope remains unclear.
EXAMINING THE SCOPE OF RIGHTS UNDER THE FREEDOM OF ASSEMBLY
Understanding the scope of rights under the freedom of political party assembly is substantial in determining whether the right is abused or enjoyed. It provides a comprehensive analysis of what constitutes the right, operations outside which are challengeable under the law. This chapter therefore provides a critique to the scope of the law regulating the right to the freedom of political party assembly in Uganda as compared to the situation in Ghana. This is in regard to how the law affects the position of those who are provided the freedom of political assembly and those that are supposed to ensure that this freedom is maintained as provided. This is in particular because; efforts to empower citizens by political party organizations need to be accompanied by state mechanisms to ensure accountability and responsiveness.
3.2 Scope of Rights Enjoyed under the Freedom of Assembly
The right to freedom of political party assembly cannot be absolute, unless accompanied by several other rights that constitute the need to assemble such as; the requirement to disseminate and share information as derived from the right to information access;182 the right to associate freely as derived from the need to discuss and share mattes of national interest;183 the right for fair treatment184 as derived from the need for equality and non-discrimination185 among other rights.186
Assemblies form a public sphere which provide space for citizens to freely come together to engage in dialogue and debate on issues which concern their lives to bring about social change.187
Thus the survival of a democratic public sphere has been associated to a civically engaged citizen, an active civil society and free independent media188 to bridge the relationships therein. Whereas the public sphere facilitates civic action and public participation to provide public opinion, the democratic public sphere influences the relationship between the public and the state.189 The purpose of the democratic public sphere is therefore to ensure that public opinions and demands form the basis of power and legitimacy of government190 which in all ways necessitates the need to assemble. Therefore in order for a public sphere and democratic public sphere to prevail, it is best that the liberties to freedom of opinion and assembly are constitutionally guaranteed, political party assembly in particular for this study. In Uganda191 the freedom to assemble is provided for just like in Ghana192 and includes the right to take part in processions and demonstrations.
Basing on the fact that information transparency bridges government responsiveness to preferences of society,193 it is substantial for political parties to ensure that information flows are linked to governance. The right to information access is one of the major foundations of the freedom for political party assembly because it enables demand for accountability, responsiveness and capabilities of government as per Lines.194 The right can be exercised as a communication demanding for transparency to help citizens monitor and hold government responsible for its actions to minimize corruption or; create an informed and politically active electorate to strengthen government accountability.195 For example, this can be through the media and public information campaigns and; as a communication raised through consultation and dialogue to improve public understanding to encourage citizens to own the reform processes.196 The possibility of this is tested in the situation of Uganda compared to Ghana in chapter four.
Uganda upholds the right to access information under Article 41 of its’ constitution under which Development”, ed M. Harvey, Global Forum for Media Development, Cambridge University Press, New York. all citizens have a right of access to information which is in the possession of the state or any other state organ.197 In Ghana this is provided for under Article 21 to access information as necessitated by law in a democratic society. 198 This right allows citizens to civically involve in regulating the affairs of governance through monitoring actions for accountability from the state and agencies of the state.
Providing citizens with information on priorities, programmes and activities is a vital government function which underpins state-society relations.199 Communication is therefore a key aspect of governance of how citizens, leaders and public institutions relate to each other to make change happen,200 hence the freedom of speech and expression of ideas. Without communication, information exchanges to respond to public needs and expectations can be difficult just as the monitoring of government actions by the public can be blocked.201
The government of Ghana202 and Uganda203 are aware of the need to communicate in influencing public opinion and maintaining the legitimacy of government, as reflected in the constitutional provisions, thus the right to the freedom of thought, speech and expression204 which includes the freedom of press and other media.
But while communication is considered a crucial aspect in providing citizens with information for the development and stimulation of democracy, it remains limited and relatively unprecedented in good governance with a poorly developed capacity for independent media.205 The hampering of information access and the successful use media in political communications particularly from the opposition parties in case of this study reflects a dearth of practical guidance of responsible authorities in the right to freedom of political assembly.
Indeed Wilson and others,206 notice that communication in developing states is hampered by weak incentives such as lack of supportive legal framework on information access, poor culture of disclosure, lack of professionalism and a low respect for the rule of law. In Uganda Dawda207 acknowledges the presence of lack of ethics as killing every sector of the economy. The study therefore analyzes the level to which inaccessibility to media coverage in communication assemblies by opposition political parties in Uganda has been ruled as undemocratic governance as compared to the situation in Ghana or whether this is simply a result of lack of ethical practice by the media professionals.
Free media helps to underpin democratic development.208 The right to the freedom of political assembly thus can also be reflected from the right to media coverage, following the context of the role of media in democratic governance as watchdogs and gatekeepers in agenda setting. Indeed according to Norris, the media is a key institution which can either enable or block reform by supporting or undermining democratic processes through print media, radio, internet or TV.209
This is because the media plays an essential catalytic role in holding government accountable and enabling an informed citizenry. By coverage of a free independent and plural media, a critical check on power abuse by the state can be achieved210 by political parties.
This study therefore is reflected on the freedom of the media in Uganda as compared to Ghana in disseminating opposition political party concerns for citizens as an agenda setter, watchdog and gatekeeper in promoting good governance. The law in Uganda and Ghana211 provides for reasonable access to state owned media with specific recognition of the same amount of time and space in Ghana, but how this is upheld in the two countries is contested later on in chapter four.
Any institutional designs and approaches to democracy need to have combined models of democracy by maintaining human and group freedoms as ongoing rather than a set of standards212 in particular, the right to political party assembly. Indeed according to LeBas,213 the level of freedom provided is the foundation of the strength of political parties in promoting democracy. Contrary to the case of developing states like that of Uganda, Grugel214 precisely states that the enjoyment of freedoms in democracy has been exercised with reforms stopping at the introduction of minimal democracy and therefore have failed to produce fully democratic states which can allow for a complete enjoyment of freedoms embedded in a multiparty democratic dispensation, particularly the freedom to assemble in case of this study.
This implies that, it is from the level of freedom exercised, that opposition party groups in one country may be found to be very strong while the political parties in another country remain weak and fragmented. This study analyzes the strength of political parties in Uganda with those of Ghana reflecting on the right to assemble as upheld under Article 29 (1) (d) of the Constitution of Uganda and Article 21 (1) (d) of the Constitution of Ghana.
3.3 Benefits of Multiparty Dispensations
Political institutions are crucial for democratic consolidation.215 This implies that political party competition and assembly should highly be maintained as preconditions for democratic development and achievement. Indeed LesBas asserts that political party competition is supported by donors as a means of improving state accountability and responsiveness to the realization of human rights.216
Conceptually perceived, democracy expresses the notion of government by consent with highly contested definitions and contributions in the development process.217 In some ways it is understood for electoral competition in political party dispensations and in other ways as the civil or political right in the distribution of power within society.218
This portrays that how citizens exercise their control and scrutiny over the state to influence processes of democratization is squarely dependent on their representative political institutions.219
To attain fairness in democracy, all political parties should be evenly allowed to freely assemble220 to collect process and disseminate information to the public.
In Uganda unlike Ghana, while the ruling party group (National Resistance Movement – NRM) members are freer to assemble with less restriction by the police, the opposition party groups are usually blocked from assembling.221 The study is hypothetically set to establish why democratized societies with good legal institutional and policy frameworks like that of Uganda remains challenged by realities of democratic rollbacks and hybrid regimes in the presence of political parties and their acknowledged significance in promoting democracy. The case of Uganda is analyzed in comparison to the level of democracy attained in Ghana for political party assembly.
Indeed according to Roacha and Others,222 the notion of government by consent derives particularly from the social contract theory of Thomas Hobbes and the Lockean theory in expressing the state of nature in absence of a government and the purpose of a government. Thus the sovereign and government are symbiotic in providing safety from the savageness and brutality of life in the state of nature or where no democracy would exist. Therefore as the sovereign receives obedience, in a similar vein the subject is supposed to receive safety223 just like Locke in his law of nature asserts that no one ought to harm another’s life, liberty or possessions. This implies that people cannot therefore have their rights surrendered to the authoritarianism for the sake of self-preservation as supported by Hobbes.
This follows the fact that political parties are the main vehicles for organizing political representativeness, competition and democratic accountability which link the state to the civil society in policy design and implementation.224 They are central to the effective functioning and eventual consolidation of democracy as contingent to the nature of political party institution and the support that they command.225 But political parties in developing states are generally too weak to promote democratic competition and representation.226 Indeed it is argued that political parties may not add to the overall popular legitimacy of the political system, but may be one of its weakest links instead.
This study is analyzed in the context of political party representation in Uganda as compared to Ghana and establishes why the two states within their similar legal and political characteristics at the outset can end up with distinct political regimes as reflected from the political communication between party elites and the civil society. In particular the analysis of this reflects on the possibility that realizing the freedom for political parties to assemble may contribute or may not contribute positively to the popular cause of the people, while limiting their assemblies may as a well limit their contribution in the building of democracy and policy making.
Political parties through assembling can be an important institution in checking on the excesses of the government to ensure that constitutional rule is adhered to and for subjects to be safely governed.227 Thus once government violates the trust of its citizens it loses legitimacy. Therefore in any democratic setting like that of Ghana and Uganda, arbitrary rule should be denounced by the help of such organizations like political parties if governance is to be based on consent of the governed.
When political parties are able to promote political liberalism, they can undermine the divine right of monarchies to rule as they please. They cause equal attention to all citizens to recognize their potential in the obligation and role to revolt against tyrannical governments for the furtherance of their consent. In a similar vein, democratic institutions are also built when subjects are transformed into citizens. Indeed according to Smith228 political parties are important institutions of political mobilization, much as these exhibit wide variations in developing states. This study conceptualizes the fact that if political parties in Uganda are allowed to freely mobilize citizens and assembly they promote political independence and may directly or indirectly inspire the institutional pillars of liberal representative democracies as excesses of the ruling party are checked.
3.4 Disadvantages of Restricting Political Party Group Functioning
Restricting political party groups is necessary to limit the excesses that may come up to interfere with national peace. However limiting their sources of finances also hampers the scope of their functionality when outreach is curtailed. It should not be forgotten that political parties through their assemblies play a significant role in helping people to understand their right and mandate in the system of governance. This makes people’s voices heard and thus acceptable policies can be influenced against any unpopular government policies.
According to Randal229 it is asserted that while money talks, sometimes it shouts. Indeed Smith230 supplements that as money talks the truth is kept in silent. It is quite often that, owing to purposes of lack of basic resources and due to greed, people’s consent is lost for money.231 In Uganda for example, Olum232 confirms that the state is fused with ruling party to perpetuate a hegemonic political culture constructed on a system that rewards its party members.233 By large, the truth is that those that may be able or allowed to hold free political assemblies are those that belong to the ruling party by virtue of their belonging, but not the best placed to govern.234 Popular consent is sacrificed for the right of the rich and incumbent to rule.235 This reflects that the ability of governance by popular consent may quite often than not be defeated.
It is argued further that, Government by popular consent is traditionally a creation of opinionated struggles to convert and transform subjects into citizens.236 Once political parties are restricted from assembling freely, their input in informing and sensitizing citizens on popular consent is similarly curtailed. It is clearly asserted by Mamdani, that subjects live in monarchies and citizens in republics, but monarchies continue to reign in democratic settings, with apathy triggered among citizens as subjects become servants of the monarchy in a subjected political culture.237
Under such circumstances, the now subjects other than citizens perceive the leaders as rulers with a divine right and elected leaders as trustees, hence sovereignty lying in the leaders other than within the governed.238 The study tests the situation in light of the current decades ruling National Resistance Movement party in Uganda compared to the changing governance in Ghana under chapter four.
In addition to the above, critics argue that regulating political party functioning makes it difficult to establish whether through certain restrictions a political party is being assisted or whether it is simply being manipulated. As a central confusion and dilemma, this contributes to a non-partisan way for political parties to solicit and receive political aid from donors.239 Similarly, if parties are restricted from soliciting for political aid, they remain weak financially which affects representative democracy through reduced coverage. 240 The contention that restricting political parties from acquiring financial support keeps them financially weak with a low representative democracy (unable to organize political assemblies) is tested in the situation of Uganda comparing to that of Ghana.
Indeed Kiiza maintains that restricting political party assemblies constitutes restricting the space for effective participation of different socio-political groups with anti-constitutional practices coming into play due to such depositions. 241 With this, citizen’s wider interests can never be embraced.
Theoretically, political parties and candidates who participate in competitive elections need electoral finances to enable them contest in election campaigns as well as for the support of the group operational, education, regular voter relations.242 This is in addition to conducting political research, producing party symbols, perform voter education and to deepen democracy in order to mount effective electoral struggles.243 Limiting their acquisition of funds introduces inequalities in participation, just as much as it may introduce the potential to unrestricted spread of potential crimes like terrorism. The study sets out to establish how stable, institutionalized political party systems can evolve reflecting on the factors which contribute to their survival and those that prevent the strength of political party systems in the democratic settings of Uganda and Ghana, financial limitations in particular. Limiting external financial assistance is likely to limit the impact of political parties, implying that to ideally survive the parties may have an indirect autonomous development. The study therefore reflects on how political finances have been utilized by political parties and how international aid access can be improved in the democratic dispensations of Uganda and Ghana.
3.5 Political Parties and Unregulated Political Assemblies
While regulating political parties may be found limiting to their functionality and therefore unnecessary, unregulated practices also have their own implications on the observation of the rule of law as reflected hereunder;
Hicken and Kuhonta portray that the variations which may affect any current levels of party system institutionalization may be a result of their historical legacies.244 The institutional conditions and legacies according to Carothers, impact on the prospects of democracy as well as on the sustainability of the democratic political systems.245 With a significant number of institutionalized party systems’ historical legacies have been rooted in some element of monarchism which reflects either authoritarianism or semi-democratic party regimes.246 Indeed according the Hicken and Kuhonta247 it is argued that because authoritarianism has played a crucial party in the foundation of institutionalized party systems, the concept of institutionalization requires to be separated from democracy. The study explores the possibility of impartiality of institutions in promoting political party freedom to assemble in Uganda and Ghana.
It is further noted that, if unrestricted the institutions of development and the institutions of democracy would not structurally be compatible.248 While development requires rapid and far reaching change, democracy is essentially a conservative system of power producing consensual and incremental change.249 This implies that forces can pull in different directions, especially that the parties may be confined by their own objectives. Indeed the relationship between multi- partism and democratic development remains highly contested. It is argued that much as political parties play a crucial part in promoting the growth of democracy, it is also contended that democratic politics actually hinders prospects for democratic growth therefore evidence remains inconclusive as most circumstances and experiences are rivalry in nature.250
More so, opposition parties may adopt mechanisms that do not foster meaningful participation251 in imposing on government capacity to design appropriate policies for the effective delivery of services,252 the nature and outcome of which may deeply affect the political economy and socio- cultural conditions of the general welfare of the state.253 Indeed according to Blomkivist government responsiveness to peoples’ demands is affected by the different types of political participation.254
It should be noted that, political party activity funding is a key issue in ensuring good governance and combating corruption, but also a complex moral and legal issue that should not be ignored255 if effective financial safeguards are to be created in democratic dispensations. Therefore controls have been suggested and adopted to curb political party malpractices such as limitations in contributions, spending and campaign time for public disclosure of party accounts.
Indeed according to IDEA, achieving sustainable democracy requires attention to the financing of politics to ascertain the illegal and improper financing of politics.256 This is because political funding has been noted to have in impact on the process of democracy of the state where it is directed.257 Therefore accountability is crucial to ensure that political party continues responding to the needs of those that they represent.
3.6 Institutional Constructs Regulating Political Party Assemblies in Uganda and Ghana
3.6.1 The Police
In Uganda, 258 just like in Ghana the police force is one of the major key agents in authorizing, regulating and dispersing of political assemblies reflecting on the obligation to protect the people and their property as well as maintaining public order subject to the law. But police in Uganda vigorously involves in violating the freedoms of association and assembly routinely blocking opposition party assemblies as well as their media coverages and violently dispersing peaceful demonstrations, but pro- ruling party assemblies are never dispersed.259 For example on July 29 2013, a US journalist was arrested and deported later for political opposition coverage at Jinja Road Police Station.260
Indeed Roacha and others261 were quick to realize that the quality of democratic politics is highly variable between countries as well as between institutions within them, that even in the presence of regulating institutions; states continue to operate on non-democratic principles.262
In addition, according to Smith it is acknowledged that, for sustainability democratization impulses need to come from within.263 Much as external actors may have a positive role in efforts of strengthening democratic structures and institutions, but they cannot be treated as substitutes to the attainment of democracy where domestic support is lacking. Considering the scope of this study, this therefore implies that the institutions regulating political party assemblies such as the police and judiciary require to objectively have a desire to promote democracy. This implies that democracy cannot be enforced unless such institutions enforcing democracy are themselves democratic.
3.6.2 The Electoral Commission
The electoral commission in Uganda and Ghana is an independent body264 with a key responsibility to the registration and formation of political party groups in addition to providing parties with a broad mandate of the set of rules and guidelines to be adhered to.265 The commissions therefore contribute to the substantiality of democratic realization for the participating political parties. On the same note therefore, the electoral institutions should have their outdated legal frameworks reformed with electoral practices to level the democratic field for political party operations
3.6.3 The Legislature
The legislature also plays a role of ensuring that the state is accountable to citizens. Within a political system, the legislature ensures that it passes effective legislation to govern the state in its enhancements for democracy to be attained.266 Parliament also makes an oversight of the budget processes to ensure that budgets remain fiscally sound, appropriate and well implemented.267 It is therefore necessary that the legislative body has appropriate powers, committed members and adequate resources.
However, for most developing states the legislative body is weak and merely vehicles of rubber stamping legislation which creates unaccountable executive powers with the state becoming more susceptible to autocracy and corruption.268
3.6.4 The Justice System
The justice system is an important channel for accountability under which legal and judicial proceedings can be relied upon to demand answers from and sanction other entities.269 Both formal and informal justice systems may play an important role for the aggrieved people or groups of people.270 The systems therefore can be depended upon to claim for the imposition of rights as well as for the sake of seeking redress for any afflictions caused unjustly. Reflecting on the IDEA271 assertion, the judiciary is a strong mechanism for the accountability of all actions of political parties. Thus if strong, independent and well-respected the judiciary can provide a check on the arbitrary exercising of power by the state and citizens.
In Uganda just like in Ghana, the judiciary plays a central role in addressing concerns of, and injustices suffered by different political party groups.
It can be understood that while constitutional power is held as supreme in Uganda and Ghana, and while derogation of rights and freedoms is prohibited272 with all laws expected to reflect upon the constitution, the available laws and instruments which address the right to the freedom of political party assembly have not been adequately designed. In particular several other rights are linked, which have to be respected and whose design may in several ways limit the enjoyment of the freedom of political party assembly. For example in Ghana subject to the provision under the constitution it is held that;
An act which aims at procuring by constitutional means an alteration of the law or of the policies of the Government shall not be considered as an act calculated to overthrow the organs of government. 273
PRESENTATION, DISCUSSION AND ANALYSIS OF THE STUDY FINDINGS
The study has used information gathered through interviews from politicians, police, media as well as ordinary members of the community on political party assemblies in Uganda and how the law has been applied not forgetting what has transpired in Ghana in regard to the freedom. They have revealed several significant issues related to policy and legal approaches and institutional and implementation strategies relating to the participation of the citizenry in political decisions. Findings as derived from the perceptions of the subjects are analyzed in respect to the law applicable.
4.2 Empirical Findings
Both Uganda and Ghana have good policy and legal frameworks to regulate the right to the freedom of political party assembly. In both countries the supremacy of the Constitution is upheld as a binding force on all authorities and persons and any law which is inconsistent is void274 how these have been enforced however, varies in substance as reflected from the findings hereunder;
4.2.1 The Law Governing Political Parties in Uganda and Ghana
The study findings reflected that there are 36 political party institutions in Uganda but the most active ones include; National Resistance Movement (NRM); Forum for Democratic Change (FDC); Democratic Party (DP); Uganda Peoples’ Congress (UPC); Peoples’ Progressive Party (PPP); Peoples Development Party (PDP); Conservative Party (CP); Justice Forum (JEEMA); and the Social Democratic Party (SDP).275 In Ghana only 23 political parties are reported to be in place with two major competing ones that is the National Democratic Congress (NDC) and the New Patriotic Party (NPP).
In Uganda just like in Ghana the Constitution clearly lays down the standard of rights which promote and protect the necessary freedoms required for political party assemblies in a multiparty dispensation. Hence public order management regime in place should clearly reflect on these rights, their protection and enjoyment.276 The major instruments to regulate assemblies in Uganda include the Penal Code Act (Cap. 120), the Police Act (Cap 303), the Terrorism Act (2002), The Press and Journalist and Public Order Management laws as well as the Communications Act (2010).
The mandate of the police to regulate political assemblies and processions is defined under Section 32 of the Police Act of Uganda. The officer in charge is granted the mandate to issue orders which can regulate the level of sound of the instruments used during a public address277 and to direct how assemblies can be conducted.278 However holding of the assembly may be stopped if it comes to reasonable notice of the inspector general of police that the assembly is meant to destruct public order subjection to Section 32 (2) and may hence force specify the circumstances under which the assembly is to be conducted.
The study findings reflected that in Uganda the police have on various accounts stopped the opposition parties from assembling on grounds that they are intended to cause public disorder. For example the FDC walk to work assemblies organized in 2011/12 were redirected to alternative venues like Kololo Air Strip and Namboole.279
The assemblies were organized to challenge President Yoweri Museveni on issues of corruption and deteriorating economic conditions and transparency but these were followed with harassments by government. 280 Section 34 of the Police Act and Section 65 of the Penal Code define assemblies that are unlawful, hence police in its implementations is supposed to follow these definitions in attempting to distinguish between which assemblies are legal and those that are illegal.
Police in Uganda has on several accounts stopped political oppositions following these sections especially in the year 2008. Prior to this in 2005 Section 2(2) was applied several times to disperse the Popular Resistance Against Life Presidency (PRALP) group from organizing rallies in different parts of Uganda to protest against lifting of the presidential term limits. But the freedom to associate was interfered with. The Section was challenged in Muwanga Kivumbi vs Attorney General.281 This however, took a period of three years for the Constitutional Court to annul the provision as unconstitutional. It was held that for the justification for the freedom of assembly in a free democratic country, citizens should be enabled to gather and express their views without government restrictions. Police thus had to maintain proper channels and structures to ensure this legitimate protest found a voice.
On the other hand police in Uganda has also been reported to act outside the proceeds of the law by working with illegal vigilante group famously known as the Kiboko squad to block peaceful rallies and arrest organizers of the assembly. This is in addition to dispersing them with teargas and live ammunition.282 This reflects a lack of independence of the agencies of the state to follow their constitutionally defined mandate. Hence with no constitutional implementations, political rallies cannot be held in equal by the opposition as held by the ruling party.
The study findings reflect that arrests should be made upon issuing warrants of arrests to suspected criminals.283 However, a police officer may without a court order or without a warrant arrest a person as long as this person is reasonably suspected to commit or about to commit an arrestable crime.284 On the contrary arrests without trial have also been occasionally done by the different State Security Forces in Uganda which are directly answerable to the president and not the constitution or parliament such as CMI and JATT. These organizations continuously persecute government opponent by carrying out their abductions and disappearances, extra judicial killings and torture and act both independently, interdependently with each other, and in cooperation with the Ugandan Police at times. This interferes with the democratic mandate of the police subject to the law285 and contravenes the provisions under subsection 3 of the same Section to institute criminal proceedings as provided for under a written law or the constitution.
It should be noted that the law obliges government to ensure that subject to Article 28 of the Constitution a fair hearing is organized before an independent and impartial court established by law for a public hearing subject to Article 28 of the Constitution. Indeed the political dissatisfactions contested against the 2006 presidential elections were brought to petition under the Supreme Court by Besigye Kiiza one of the contestants (FDC leader by then).286
While political party assemblies are held in Uganda, any incitements to violence declared under the assembly which may contribute to death, physical injury to people or any class of people or statements which cause damages to property are regulated over under Section 51 of the Penal Code Act. Neither should political parties assemble for purposes of making wrong inducements for boycotts. In respect to this, the Police Act obliges police to ensure that law and order is maintained.287 To maintain this, police has on various accounts arrested politicians suspected of inciting violence, treason, and for holding illegal assemblies and subject to the requirements of Section 25 of the Police Act, detained its political suspects for not more than 48 hours or released them on bail. On the contrary though, the politically charged individuals that are retained for over 48 hours were established to be arrested by other State Security Forces other than the police whose mandate is constitutionally defined.288 For example the arrest of Besigye’s driver who was arrested under the Rapid Response Unit289 where he was tortured and detained for 2 weeks on account of attending an illegal assembly.290
This study finding implies that police in Uganda has avoided illegally detaining political opponents beyond the legally acceptable 48 hours, but other State Security Forces are in position to raid the police mandate to work outside the law in harassing political opponents. These institutions according to a report on 291 political diversity in Uganda, these intelligence organizations have not been nurtured as national institutions but rather as personal instruments of the president292 hence do not serve the interests of the state or people.
4.2.2 Challenges experienced by the Opposition Parties in Organizing Assemblies
The failure to address the right in association with the other rights
In the study findings it established that while there is a law to the freedom of political party assembly in Uganda, it cannot be realized unless all the other rights that surround it are addressed alongside.293 The rights constitute the freedom to assemble, freedom of speech with emphasis on the freedom of the media, freedom of assembly and the right to demonstrate as well as the freedom of movement.294 The various constituents of rights put together and enforced vis-à-vis are just enough to guarantee the freedom of political party assembling in Uganda. But if just one single right is recognized and its complementary rights ignored, then political freedom is curtailed and the right in question remains a myth.295 Enforcement of the right to assemble in Uganda has hugely been defied and continues to be defied for the opposition as long as the executive arm of government does not dissociate its jurisdiction from other arms of government296 and if militarization of government does not end.297
This finding reveals the need to separate powers and observe other rights that complement the freedom of political party assembly if the rule of law is to reign in Uganda. Indeed the constitution obliges the president to abide by its rules to uphold and safeguard the constitution and the laws of Uganda298 hence, the president should entirely utilize the overall command to regulate the executive from meddling into the independence of the other arms of government.
Different from the Ugandan perspective, the study established the Ghanaian experience as one that has steadily revived from the authoritarian rule practiced in the 1960s to 1990. During this time, the constitution inherited from Britain was replaced by a new one which endorsed authoritarian powers to the president to; detain persons without trial; countermand decisions taken by the legislative; exercise free discretionary powers to use public funds; nullify court decisions; and dismiss judges.299 However, constitutional rule in Ghana was later on regained in 1992 when presidential term limits were set forth and followed strictly with president completely barred from seeking a third term of election.300 Although significant difficulties remain in Ghana, it is acknowledged that there has been a steady improvement of; democracy; the protection of rights; and quality of governance since 1993 when the constitution was promulgated and the military army put under significant control of the civilian population301 which reshaped the relationship between the security services and state.
Ghana also occasionally witnesses some difficulties for example in the 2010 dispute between the judiciary and executive when a number of unfavorable court decisions were taken to the ruling party. The party chairman demanded that the chief justice purges and cleanses the judiciary; else the executive cleans it along with those that will blame them for interfering with the judiciary. But such a statement reflects an intimidated but not an independent judiciary.302
In analysis of the above finding, one can confirm that although Ghana and Uganda almost have similar legal regimes to address the right to freedom of political parties, their levels of achievements in enforcing the right significantly remains different. While Ghana has been able to have a steady growth in democratic governance, Uganda’s democracy is suffocated under the executive arm of government. It can therefore be submitted that whereas the civilian population of Ghana continues to have an upper hand over the army while the army in Uganda continues to regulate over civilian matters, then the levels of democracy achieved will never be at the same footing. Indeed while political parties in Ghana are in position to practice freedom of assembly, in Uganda the freedom remains trite.
The enforcement of these rights lacks in substance
In an interview carried out with a journalist, it was confirmed that both the ruling and opposition political parties in Uganda always endeavor to inform police whenever they intend to hold public assemblies.303 While the ruling party has always enjoyed the opportunities to assemble and be protected by the police whenever they assemble the opposition parties have quite often than not been denied the opportunities to assemble in pretext that they will cause public disorder.304 Indeed according to an interview held by another subject it was noted thus;
The law to freedom of political party in Uganda has been misinterpreted by the police to only apply to ruling party and not the opposition. Opponents have been exposed to all forms of mistreatment whenever they dare to assemble and enlighten the masses.305
Senkumba in his assertion confirms this to happen to assemblies which criticize the electoral process, current government policies as well as the conduct of public officials.306 But according to one police official307 interviewed, defended that police cannot take for granted the contribution of other political parties to national development and so cannot just deny parties the opportunity to assemble. But rather police works through its network and investigates about the intentions of the assembly and once proved that the purpose is to break the law, for example causing public disorder we block it from taking place. Indeed according to another, it was held that;
…when we block them from assembling and they reject police orders, we apply some force to disband them.308
But the force is not a simply “some force” according to one of the community party member interviewed. He held that:
I am an active member of the Democratic Party wing I have witnessed expeditious disbands on various assemblies where police has ruthlessly applied teargas and rubber bullets with our leaders manhandled and whisked away by police. However, because there is no case to file against them, they have always been detained into the police cells for some hours only to be released at night. But the supporters if arrested may spend days in detention.309
For example on 4 October 2011, Tumukunde Moses, a driver to the opposition leader Kizza Besigye was arrested for participating in an unlawful assembly, tortured by the police with beatings and later on released on October 10.310 The way political opponents are handled whenever they try to assemble has killed the spirit of political assembly in Uganda.
The opposition groups have gone silent because the law is also silent about addressing their concerns when they are exposed to injustices. The system is now marred with injustices. The fight is now within and between the members of the ruling party itself who are now scrambling for their portion of cake in the system, other than for the cause of the people.311
Indeed according to Jefferson, it is acknowledged that “when the people fear their government there is tyranny, but when the government fears the people, there is liberty.”312 The implication and consequence of this is that the executive arm of government in Uganda is acting without checks from opponents hence imposing for a balance in the system is difficult as well.
Reflecting on the above finding, it can therefore be submitted that while the constitution of Uganda upholds the right to freedom of assembly and demonstration as well as the freedom of association which includes the freedom to form associations,313 their enforcement still lacks in substance. Indeed according to the report by the US314 it is portrayed that while the constitution and law in Uganda provides for the freedom of association, the government has not always respected this right in practice. Further still, police in Uganda exercises discrimination on political grounds, contrary to the constitution of Uganda in regulating over political assembly issues.
In Ghana however, the situation is not much different, while police cannot stop a demonstration without going to court to seek an injunction, the treatment is not uniform for political gatherings. In some aspects discrimination is also realized for gatherings deemed unfavorable to incumbent parties and president315 but that does not stopped the judiciary in Ghana from exercising its mandate independently.316
Failure of the government to compensate the victims of unlawful arrests
Findings further revealed that Uganda provides for an enforceable right to compensation to those that fall victims of unlawful arrests or detention, but in actual practice this has been ignored. In one of the interviews held 317 it was observed that opposition party member groups have been arrested on various accounts for assembling to sensitize people on their rights as citizens. These have been accused of inciting violence or causing public disorders. Indeed according to one of the occasionally affected politicians318 as brought to notice, the arrests are within the police cells with little or no effort attempted to file cases in court. For the few times this has been done, court dismisses cases but with no entitlements recognized for damages imposed to favor government position.319
However, this does not imply that government has not upheld judicial independence always. The judiciary ruled against the government in several high-profile cases during the year. For example, on January 30, a court in Kampala dismissed the forgery case filed by the government against Daily Monitor Managing Editor Dan Kalinaki and political analyst reporter Henry Ochieng.
The constitution and law provide for an independent judiciary, and the government by and large respects this provision. The president appoints Supreme Court, High Court, and Court of Appeal judges with the approval of parliament. The president also nominates subject the approval of parliament, members of the Judicial Service Commission, which makes recommendations on appointments to the judiciary.
However, in the Ghanaian situation, intimidation will take place, but court will uphold and maintain its integrity in the decisions it takes. Hence judicial independence maintained although under disturbing circumstances.320 For example, in 2010 when ruling party militants held demonstrations around the court premises in opposition to the court decisions taken against the ruling party, the judges just stepped aside and kept outside court premises without having to review their decisions. This is followed by worst attacks towards the chief justice and the slashing of the judicial budget.321 This study finding implies that while the judiciary in Uganda may be intimidated and deprived of its independent decisions, the judiciary in Ghana is not deprived of its independence even under circumstances of intimidation.
Further findings from one study subject reflected discrimination in the use of media facilities in Uganda.322 It was held that some radio stations have been barred from hosting particular politicians as well as from broadcasting some programmes and hence increased the spirit of self censure by other media stations. 323 For example Meddie Nsereko had to appear before the CID for hosting Betty Nambooze (member of the opposition Democratic Party) in pretext that she made allegedly inflammatory statements against ruling party candidate in by-election. Another case was on the 3rd of July 2011 against radio host Augustine Okello who was charged with treason and released on bail. Police also summoned security reporter for the Daily Monitor Risdel Kasasira on the 20th April 2011 pertaining to the interview held with Mathias Nsubuga, coordinator of the banned 4GC activist group following the case on incitement to violence. Basajjamivule of the famous Akaboozi Radio (Radio 2) had to lose his job because he hosted the embattled Kampala Lord Mayor, Mr. Elias Lukwago. On various attempts journalists have been blocked from covering political court proceedings those that resist are arrested for example on February 10 Kigongo Ssebalamu of the New Vision Group and Henry Oketch of Radio Simba.324
This kind of discrimination is a limitation on the political outreach to the masses in terms of checking on the negative side of the government. But the law provides for equal access to the media.
Indeed the human rights report provides that there is censorship and content restriction whereby journalists avoid reporting on the President and his family as well as senior ruling party members. This is accompanied by accusations made by many of the radios that government officials order them to deny airtime to opposition politicians with police questioning those that host the opposition.325 Indeed the Uganda Police Force Media Crimes Unit, according to the human rights report closely326 monitors radio, television and print media stations.
Un-levelled ground for all political parties to participate in leadership
Study findings further revealed that by law the ground should be even for all political parties to participate in leadership. Following the legal provision on non discrimination, policy decisions adopted should apply uniformly. Indeed in the case of Charles Onyango Obbo and Andrew Mujuni Mwenda vs Attorney General327 the central issue in the appeal was whether section 50 of the Penal Code Act, which made publication of false news a criminal offence contravened that protection of the individual right of freedom of expression, which included freedom of the press. Court had this to say;
…meaningful participation of governance as a hallmark of democracy is only assured through optimal exercise of the freedom of speech and expression.
Indeed in Abrams vs United States,328 freedom of speech and expression is an element of the search for the truth.
Hence following Bambauer assertion, all ideas should be allowed to compete for allegiance just like goods compete within a free market structure for demand causing less competitive goods to be discarded. The public has a capacity to rationally evaluate and analyze information to come up with the truth.329 Denying access to media usage for some party members and granting the opportunity to other members is a hindrance to full participation in national development.
While the above is the situation, the Constitution330 in Uganda accords every person with a right to freedom of speech and expression in addition to covering the freedom of press and media. The same Constitution provides Ugandans with a right to participate in government affairs either as individuals or through representation provided this is within the realms of the law331 this is in addition to participating in peaceful activities to influence government through civic organizations.332
Not different from Uganda, the freedom of expression is also embedded in Ghana’s constitution.333 While access to internet is not hindered, State broadcasters are reported to be official neutral, although in practice they are somewhat biased towards official government positions. Government representation on discussion panels in most cases is insufficient. For example this influenced raids by security services to end programs that aired statements which they disagreed with. In addition whereas there is a wide variety of print media which present multiple positions and viewpoints in the public domain, the lucrative government advertisement contracts are only presented by pro-government private newspapers or state owned papers.334 But in Ghana intimidation of the journalists is also reported to be on the increase recently and the law against false statements is also being impulsively misapplied against a number of journalists and media personalities since 2010.335 This misapplication undermines the progress of Ghana in entrenching media freedom.
This study finding reflects that both Uganda and Ghana’s media are under marked control of the authority, with the Ugandan authority taking further attempts to regulate content that can be publicized unlike in Ghana. Both situations confer lack of freedom of speech and expression for those in opposition but in the case of Ghana the probability remains higher than that of Uganda to present news worth since content is not directly regulated before publication.
Study findings further revealed discriminative practices against opposition party members especially during electoral periods in Uganda. This is also held in one human rights report reviewed which reveals that;
The February 2011 presidential and parliamentary elections although marked with an improvement compared to the previous elections, they were nonetheless marred by serious irregularities.336
The law in Uganda provides for equal protection and immunity of candidates during period of campaigns.337 The Constitution and law provide citizens with the right to change their government peacefully338 hence political opponents should be allowed to freely participate in the democratic change of governance. From the various interviews conducted it was realized that;
The NRM party is fond of fighting its most outstanding political competitors during campaigns. They remove and tear opposition posters and fliers that are in distribution. During the 2006 elections in Kampala, one NRM supporter was roughed up for tearing fliers of the FDC party. This was after camouflaging as an FDC supporter and gained room to participate in the distribution of fliers.339
According to others;
The NRM party is doing all things possible, democratic or undemocratic to maintain the seat. This may be by intimidating or luring voters. Polling stations are disorganized by a strategic delayed delivery of boxes and ballots papers while and voters intimidated by positioning heavily armed militia in areas that surround polling stations and to make matters worse previously appearing voters’ names are deleted from lists.340
The ruling party has occasionally hired hooligans to beat up audiences to disorganize campaigns as long as the majority of the crowd does not support the party. The 2011 mayoral campaigns expresses hooliganisms of the highest order practiced against the opposition. For example one of the scuffles around the Bat Valley primary school area in Kampala launched by Sematimba Peter’s support (NRM) against Lukwago’s supporters (DP). This time the opposition had also built a stronghold to fight back through the same means because police was very reluctant to help in the previous scuffles.341
However, in an interview with one of the NRM party members the above assertions were challenged on grounds that;
The opposition teams on several times gang up as a single entity during campaigns to grow in numbers in order to challenge NRM candidates. Not only this, they have disorganized our supporters from attending political rallies through intimidations of revenge and of how it is about time for the revenge. So what is revenge got to do with voters?
Such statements make some supporters feel so insecure to attend public rallies; some of them even fear to wear the T-shirts because they will be beaten up, this situation happened in Katwe during the presidential elections when supporters had to cover their Tshirts with something on top. I will not say my party does not contribute to the hooliganism but this is both sided.342
But the situation is not much different from the case of Ghana where the NDC and NPP as major competing parties have also engaged muscle-bound enforcers to intimidate their political opponents to maximize votes in their electoral strongholds. Just like incumbent parties often use public funds and resources as well as national security services.343
But one report344 confirms election challenges to disfavor the opposition parties in Uganda. The report singles out these challenges to include; diversion of government resources for partisan gain; unfair access to the media for NRM candidates and lack of access for opposition candidates; government intimidation through heavy deployment of the army security forces on election day; disorganization of polling stations and the absence of many voters’ names from voter rolls.
Reflecting on further details of the same report345 it is noted that the ruling party during the 2011 elections operated without restriction, regularly holding rallies and conducting political activities, but authority mainly restricted political activities of the main opposition parties by refusing them to hold public demonstrations and preventing the appearance of opposition leaders on local radio stations.
While the above is the situation for Uganda, the country has an agency established by the law, the Uganda Police Force to mastermind institution of law and order in the country346 and one to execute issues of justice.347 To make matters worse police in Uganda participates in disbanding peaceful political assemblies organized by the opposition. Various misconducts and anomalies are traced in one human rights report that Police fires tear gas to disperse rallies of opposition leaders as witnessed on May 21. Teargas was fired to disperse a crowd that had gathered to listen to opposition leader Besigye and Kampala Lord Mayor Lukwago at Nakasero Market in Kampala although there were no reports of injuries.348
Police arbitrarily arrested several FDC opposition leaders during the year with one of the arrests witnessed on April 16 when six supporters of the FDC were arrested and charged with disobeying lawful orders but released on police bond. 349 On September 25, police arrested and later released opposition MP for Kyadondo East, Ibrahim Nganda Ssemujju, who was charged with illegal assembly in defiance of police orders not to hold a rally at Kireka Park, a suburb of Kampala. He was released immediately, but the case was pending at year’s end.350 On October 15, police in Nakasongola arrested six FDC supporters for holding unlawful assembly, but were granted bail on October 22. On November 20, police arrested another FDC official, Simon Rutarondwa, over allegations of links to a new rebel group fighting to overthrow the ruling NRM government. He was in detention at the Special Intelligence Unit in Kireka, Kampala at year’s end. 351
In pretext of the above finding, it can therefore be submitted that police in Uganda is has discriminately exercised its mandate of keeping law and order in disfavor of the opposition. Such circumstances mount fear to the security of competing candidates during political rallies hence an unfavorable ground for the opposition to challenge the ruling party.
The executive influencing of the judiciary
Undermining and influencing of the judiciary by the executive was yet another challenge spotted out in cases that arise out of political party assembling in Uganda, in particular it was noted that judicial decisions taken favor the ruling party, else the decision is stood and left pending to deny justice to the opposition.352 In the case of Rtd Col Dr. Kizza Besigye vs Electoral Commission and Yoweri Kaguta Museveni353 the petitioner being one of the contestants challenges the validity of the presidential elections results of 2006 as contested under multiparty dispensation. The petitioner challenged that there was non-compliance which substantially affected the results of the polls.
Reflecting on this case, one of the politicians354 interviewed revealed that the EC as an electoral implementing institution is biased in its arrangements while court as a regulating institution and justice center was not entirely independent in its decision over the petition. Reluctance of court is traced in its commitment to the appropriateness of time taken to expeditiously make inquiries into the case more so in the announcing of the results.
While the case was filed on 7 March 2006, it was heard on the 22nd to 30 of March with judgment reserved, only to be passed on the 6th of April 2006. Despite the fact that anomalies were established by court to have existed in the elections, each party to the case was required to bear its own costs. This justification brings about mistrust and lack of confidence in the system of justice.355
Following the accusations on the EC according to the DemGroup,356 it is portrayed that donors have consistently demanded for a new EC in Uganda following the fact that the EC was established as an arm of the NRM party before 2005 when the country was under a single party but still reigns. But the demands have been flatly rejected by the president hence the accusations of vote-rigging via a biased EC.
In Ghana however,357 the situation remains that much as the police and army interfere with the assembling arrangements of opposition parties in favor of the ruling party, the electoral commission and judiciary have been able to exercise their freedom to promote democracy. The electoral commission in Ghana is independent and widely respected in the country and internationally358 just like the judiciary which will uphold its decisions and position provided that is what entails justice.359 The EC in Ghana takes reasonable effort to ensure that ballots are tabulated honestly and without intimidation with transparency and fairness enhancing reforms to the electoral processes since the 1990s. Ghana’s electoral system is reported to be flexible enough to the extent that it even managed to survive the intense competition of the 2000 and 2008 polls with two electoral turnovers produced360 which reflected the uniqueness of Ghana’s democracy compared to other African states.361 Ghana’s constitution provides a legal framework for regular, free and fair elections open to multiple parties and with universal and equal adult suffrage.362
Focusing on the above finding it can be submitted that while Uganda and Ghana are nations that embrace democracy with the same institution and legal structures, implementation of the freedom of political party is more challenging in the Ugandan context as implementing institutions like the EC, judiciary and police do not widely exercise their mandate with complete freedom as compared to that of Ghana. However, this does not imply that Ghana’s elections have not been fraught with tension and intimidation and organized thuggery as well as inter party violence mainly between the supporters of two major parties in Ghana that is the NDC and the NPP.
The lack of professionalism portrayed
The study findings portrayed lack of professionalism as one of the major challenges experienced. In an interview carried out by one of the politicians,363 it was held that;
…we are regulated by institutions that have traded their professional ethics. There is a continued display of unprofessional conduct by officials working under the implementing agencies. Especially the police as manipulated by the executive to fulfill the interests of a few people in power, as different from its mandate to guard the people and their property…
The judiciary in Uganda is quite often not independent in political rulings. The reason the decisions of most cases remain pending by the year end especially cases in which the opposition parties have been arrested and released on bail.
Indeed one research subject364 related the lack of professionalism within the implementing agencies to be a result of lack of separation of powers and greed for money. It was noted that even in extreme cases of dissatisfaction; seeking justice against the counteracting actions of the law by the state’s security agencies remains very difficult. No democracy will be witnessed in Uganda while the powers of the arms of governances are not separated.
While the law requires issuing of warrant of arrests before detaining suspects, in Uganda people attending opposition political party assemblies have been arrested and detained without warrants. The authorities have also arrested suspects without warrants and suspects have been held longer than 48 hours of arrest while others have been detained in unsafe houses like the CMI, JATT and SIU held incommunicado and abused.365 However, all this is exercised despite the 2006 court ruling which prohibited the military from trying civilians in military tribunals. By 2012 civilians were still tried and detained by the military.366 This is a denial of fair public trial.
The law has been largely abused mainly by state security agents, who do so with impunity from the upper arm of government.367 Several journalists have been charged with offences relating to violation of media freedom and radio stations are arbitrarily closed for interviewing and hosting opposition leaders.368 Indeed the chairman of the broadcasting council is seen to suspend two presenters (Voice of Lango) for hosting opposition party member Dr. Olara Otunnu on 12th April 2010 to block discussion on governance and corruption. Similarly, at Ssuubi FM a political and current affairs programme was replaced by an entertainment programme with Kazibwe, its critical journalist laid off.
Due to the insecurities suffered by agents of the media, the opposition views cannot be aired freely as self censorship is the only way the media can survive. But the Political Party and Organization law allows for all citizens under Section 3 (2) to join or form a political party of their own choice.
False accusation was yet another challenge raised by the interviewed politicians and the community. It was noted that the country is experiencing politically motivated disappearances behind the rails.369 It was reported that while political prisoners are illegally held, their release is usually shortly executed without being charged. But others are charged with crimes such as treason, inciting violence and holding illegal rallies for example; Democratic Party activists have been reported to be kidnapped and arrested while others have disappeared. For example the kidnap of Annette Namwanga in January 2011 by unidentified individuals, whose arrest was later acknowledged by the Chieftaincy of Military Intelligence. She was charged in February of terrorism with 9 others and remanded to prison. Upon appearance in court on October 19, they were released on bail as case pended trial.370
Rogers Segujja also disappeared on October 15, 2011 upon kidnap by suspected security operatives and his whereabouts remain unknown.371 FDC deputy electoral commissioner Kabaziguruka Michael was arrested on September 3 together with Kareebe John the FDC chairman for Ntungamo district, Frederick Namara a former UPDF officer, and John Rutagorwa a primary school teacher. The group was detained incommunicado for two weeks on grounds that they were forming a rebel group (Revolution Forces for the Liberation of Uganda). These were charged of treason and remanded to prison on September 11. Further arrests on the same were witnessed with two of the relatives of Kabaziguruka from his home in Luzira on 23 September on grounds that a submachine gun and other military equipment were recovered from the residence by security personnel.372
These circumstances threaten and undermine the competitiveness of the opposition members to check government inadequacies in supporting a people cause.
The study findings also revealed a challenge of delayed justice for cases filed by the opposition. It was held that when the State Security Forces (SSF) assaulted Ingrid Turinawe of the FDC at a rally by the For God and My Country (4GC) activist group on April 20 2011 in Nansana, she was injured and bedridden for two weeks, the case hearing against constable Irene Arinda for behaving in a cruel, disgraceful and indecent manner under the police’s mandate pended at the years’ end.373
On March 28, police assaulted journalists who covered the release on bail of opposition leader Kizza Besigye and others when accused of murdering Assistant Inspector of Police Bosco Ariong. The assaulted journalists included Siraje Lubwama of the Weekly Observer, Joseph Mutebi of Bukedde, and Hasifah Wanyana of Kingdom FM radio. Lubwama filed on a petition on June 18 against the assistant commissioner Lawrence Niwabiine and Kampala Metropolitan traffic, for the damages he suffered during the assault but the case was pending at the end of year.374
Another challenge raised by the subjects is the understaffing of the judiciary, a basis of which cases take long to be heard.375 This imposes weaknesses and inefficiencies in the lower courts especially with judicial corruption at hand. Indeed Freedom House reports on inadequate resources and poor judicial administration to impede the exercise of justice during political rulings.376 This is accompanied by the military’s repeated interference with court processes.377
The unrealistic restriction on the sources of finances of political parties
Last but not least the restriction on the sources of finances of political parties also challenges the opposition parties in particular in raising money to organize assemblies. Following the assertions made by one democrat,378 it was noted that while the ruling party has an access to public funds, the opposition does not. The ruling party members are able to finance their activities in addition to bribing voters. Indeed according to DEMGroup379 report it was noted that political finance plays an important role in inducing voter preferences as reflected in the obscenely high degree of financialization of elections in Uganda especially that of 2011 which was pervasive during the presidential, parliamentary as well local council elections. But both the NRM and FDC parties were reported to use political cash, their malpractice only varied in level of outreach in 10-1 ratio with the NRM party outspending the opposition. 380 This reflects political corruption among the voters and their representatives.
However, while this is the case none of the opposition parties like the ruling party had state-funded institutions serving their partisan political agendas in addition to no comparable nation-wide infrastructures.381
4.2.3 Performance of support institutions in enforcing the right to political party assembly
The study findings revealed that police in Uganda is one of the established institutions that promote democracy, but it has quite often than not been lopsided in its executions with little of the law exercised in the subsequent years. It is noted that in governing issues of public order, management and diversity, no specific policies are followed, but the thinking of government can be garnered and collected to define the policy applicable at the time, hence not formally articulated.382 In respect to this, it is indeed held that neither tactics nor strategies can succeed without an institutional infrastructure to deepen, widen as well as consolidate support at the grassroots.383 This calls for established implementation policies to effectively regulate over public order during political assemblies in Uganda.
Police are accused of using excessive force where it is not due in effecting arrest of the suspected criminals.384 This is clear in Ingrid Turinawe’s case against the police constable where the degree of force applied was not necessary. The arrest was executed by one female officer with three other male officers injuring Ingrid. This act was against the mandate under Section 23 (2) of the Police Act. However, the use of force to effect arrests is supported under Section 16 of the Penal Code Act Cap 230 and Section 23 of the Police Act as long as the degree of force is necessary.
Study findings also revealed that the police as an institution for maintaining law and order has been militarized. In an interview with one politician it was held that it is a tactic of the ruling party to use the military under the police unit in order to remain successive managers of the state while governing through injustices to easily suppress the socio-political establishments of the opposition groups under a constitutionally non-subservient police.385 The demonstrations waged by the opposition with the community in demand that government meets their rights have been regularly suppressed without difficulty due to the militarized violent police force.386
Indeed according to the human rights report,387 the political leadership’s urge to keep itself in power has not only necessitated strengthening the army as chief buttress of political power but also militarization of the police.
Indeed according to results in one of the interviews held, it is to no wonder that government unlike during the 2006 elections has equipped police with modern means of communication, transportation and firearms, teargas and water-canon gadgets not with the purpose of effectively facilitating it to safeguard the rule of law and the rights of the citizens, but to enable police move with ease its tools of violence and mobilize its officers as fast as possible to every opposition assembly wedged against the government. This similar situation is acknowledged by Tripp388 who noticed that the government of Uganda uses police as a stick to intimidate those who try to openly challenge the various injustices in the country. Rather than being sources of security, these forces have become a source of insecurity for many, especially those who openly challenge the system as they expose the network of some of the corrupt in-group members in charge of public, the opposition party group members in particular.
Reflecting on this finding therefore, the performance of the police as an institution of security has not served the state in its entirety but the people that have a higher command of power in Uganda.
Study findings revealed that the judiciary and legislature are not independent in Uganda and therefore their decisions are highly influenced by the executive arm of government.389 Conversely, the transition to democratic governance is measured by the level of cooperation and compatibility of the relations that exist among the three arms of government, the legislature, judiciary and executive.390 But the ruling party in Uganda has repressed the judiciary and legislature with impunity. This is in addition to fusing state structure with the National Resistance Movement (ruling party) to perpetuate a dominant political culture by suppressing all criticisms leveled at the system’s failures as attacks on leadership.391 Thus without democracy the chances to promote the right to freedom of political party assembly in Uganda remains minimal for the opposition. It is reported that on various accounts the executive has subjugated the judiciary when judgment on sensitive matters is executed in favor of the opposition. For example when for example Dr. Kiiza Besigye was granted bail over treason charges, a group of men dressed in black stormed high court and re-arrested him defying court rulings.
Summarily, it should be noted that the right in Uganda is traced right from the provisions of the 1962 Constitution and was further restated in the 1967 Constitution where the right remained very narrow and ambiguous in various ways.392 Precisely considered, the constitution seemed to give the right with one hand and yet took it away with the other. However, the 1995 Uganda Constitution separated ways with the basically pretentious protections provided, but in a similar vein much less is still being achieved in actual practice. It should not be ignored that recognition and protection of the right to the freedom of political party assembly is hardly a new development in Uganda’s constitutional history, but the results remain minimal, unlike in Ghana. To date the right to the freedom of political assembly remains greatly curtailed in Uganda as compared to the Ghanaian situation. While Article 15 (1) of the ICCPR provides that no person can be held guilty of any criminal offence on account or omission of any act which does not constitute a criminal offence under national or international law, it was established that politicians in Uganda have on various accounts been arrested and detained illegally. Civilians are tried under military tribunals without fair public trials and are accused falsely of politically motivated charges compared to the Ghana situation where the military is under civilian control and not the civilians under military control as the situation is for Uganda.
CONCLUSIONS AND RECOMMENDATIONS
Uganda is going through very challenging times with extremely limited space to operate in a free and friendly environment for political assembling. When the right to freedom of speech and expression is infringed with government systematically moving to oppressing and silencing individual and media freedom of speech using draconian laws and institutions,393 there arises a technical blow to the realization of the desired democratic society. Further still, political party freedom to assemble is also curtailed because it is an accompanying right. This prohibits political activists from making a direct contact with the people394 more so when country experiences unchecked use of force by government security agents who harass political rights activists in the struggle to restore the right to freedom of395 assembly, in Ghana however, the laws are quite friendly and they have tried to uphold such laws in Ghana, this would be a great step forward for the Ugandan democracy.
This imposes a belief that laws governing the right to freedom of assembly in Uganda are based on restrictive control and regulatory orientation as well as individual political will. This raises concern to guaranteeing smooth recognition of the right to freedom of assembly as well as to the accompanying rights in addition to taking punitive measures to misbehaving public and security personnel who harass, intimidate or torture innocent civilians and politicians for expressing their concerns.
The study also concludes that unprofessional, inefficient and unaccountable security institutions threaten the public’s political right to assemble and associate freely with others to promote democratic politics and this demeans the prospect of achieving a reduction in government inefficiencies.
The study concludes that there is consent that safeguard, security, justice and rule of law are core functions of the state and thus essential for any democratic setting to advance legitimacy of power in both countries. But if government undermines the safeguards created by the executive it will impose on the judiciary and diminish the sense of justice, hence bridging tensions among the competing political parties.
The study further concludes that the spirit to political party assembling in Uganda remains trite. This is most likely to continue as long as abuse of power is not checked. The state security forces are directed to undertake coercive action during assemblies which diminishes the will of the people to participate or attend political rallies. The forces work hand in hand with police sometimes to abuse the rights of innocent civilians.
Civilians are falsely accused and arrested, detained in unsafe houses for criticizing any unpopular policies and programs of government, peaceful assemblies have been dispersed with teargas and live bullets. Partisanship has been wiped due to coerciveness of the state security agencies. Neither have civilians been able to seek justice under the law that provides them with the freedom to assemble, in other words, the law exists on paper but not in practice. For example when Besigye is acquitted of the case of treason, unidentified men in black waited and rearrested him outside the court premises.
Exposure to broadcast news does not damage people’s democratic orientation, but rather it relates to their democratic aspirations. But media in Uganda is self censored following the various accounts of insecurities that media personnel have been exposed to for the broadcast that they make. Because rights are not fully embraced in Uganda the possibility that the steady supply of negative news may foster mistrust of government and political disenchantment, media personnel have been abused with some media directly banned from covering programs presented by the opposition.
5.3 Recommendations to the Study Findings
Following the study findings in the previous chapter and the conclusions above, the following recommendations are made;
5.3.1 Reforms for the Security Agencies
Security is a core aspect of the vulnerability396 of the public hence the need to reduce the unprofessional conduct of security forces. Security sector reforms are necessary to develop a secure environment based on the rule of law, good governance by putting the security forces and actors under the civilian control. This will minimize the impact and influence of ruling parties over personalizing national security agencies. The number of security agencies also requires to be reduced especially the non-state agencies and the mandate of the existing agencies clearly defined by the act of parliament to hold security operatives accountable for abuse of political freedom in case this happens. It is therefore best that people numbers are used to create political systems that hold security agencies accountable for clear policy to be pushed into the system of government. The solution must come from the people. It is the role of the people to put pressure on leadership and shape the leaders that best represent their interest without being intimidated by the security forces in place.
There is no uniform practice or legal framework for the operation of security services as most states have their own system based on particular historical, political and legal factors. However, national systems share broad commonalities. The most important element is the separation of the police services from security/intelligence services. According to this set-up, the police are primarily responsible for law enforcement, sometimes comprising special branches dealing with especially serious offences, such as organized crime and/or acts of terrorism. In contrast, security or intelligence services are responsible for internal and external intelligence. The United Kingdom, for example, has several police forces, including specialized forces, such as the Metropolitan Police Service, the Serious Organized Crime Agency and the Special Branch, which focuses on counter-terrorism. The two intelligence agencies, i.e. the Security Service (MI-5) and the Secret Intelligence Service (MI-6) are mandated to protect internal and external security through intelligence activities.
It should not go without mention that, most security and intelligence services are tasked with identifying threats to national security and providing advice to decision-makers by using mechanisms such as the interception of communications, surveillance, the gathering of data and the use of undercover agents to identify threat. These powers should be circumscribed and clearly defined so as to avoid ambiguity and the potential for abuse. These powers are frequently subject to judicial authorization and review.
In the premises therefore, to fulfill their tasks, the security agencies should operate as a civil service agency given the nature of its powers as envisaged in the Constitution without fear or favor and the need for enhanced civilian oversight. The National Security Service should be transformed into a civil service that is subject to an institutionalized monitoring mechanism. Other national systems employ a plethora of such mechanisms to address the lack of transparency, limits on judicial oversight resulting from national security exceptions and the potential for rights violations inherent in the exercise of powers of security and intelligence services, such as on the right to privacy. Review or oversight may be effected through judicial, parliamentary, or independent bodies and/or complaints structures.
5.3.2 Reinstating the Rule of Law for Responsive Governance
There is need to promote rule of law by enforcing a separation of powers of the executive from the other arms of government. The judiciary just like the legislature needs its independence in executing its mandate. It is clearly expressed that the ability of government to manage tensions and disputes is critical to how the society responds. It is therefore best that inclusive political processes and uninfluenced dispute resolution mechanisms are comprehended to foster justice and trust for a stable society to grow. This therefore necessitates diminishing the powers of control by the executive over any security forces of the nation for durable political settlements.
The rule of law should be observed religiously. The observation by the masses that government actions are guided by law and that there is a reasonable balance between state powers and individual freedom will quell belligerency in Uganda. The Rule of Law guarantees accountability and transparency, these are technical and legal issues at some levels, but also interactive to produce government that is legitimate, effective, and widely supported by citizens, as well as a civil society that is strong, open and capable of playing a positive role in politics and government.
It should with great efforts be categorically noted that, holding the executive to account for its action is a cornerstone of the rule of law and an important means of preventing abuses or power imbalances. Accountability of the executive should comprise measures that provide justice for past abuses and seek to prevent future violations. In respect of past conduct, many countries have established mechanisms that subject existing members and potential candidates of executive to a vetting procedure397 and expel those subsequently implicated in human rights violations or other serious misconduct.
Where rule of law is strong, people uphold the law not out of fear but because they have a stake in its effectiveness. Virtually any state, after all, can enact laws; corrupt and repressive regimes can legislate at will. Genuine rule of law, by contrast, requires the cooperation of state and society, and is an outcome of complex and deeply rooted social processes.
Government must also be able to check its own excesses. The judiciary is essential to interpreting and enforcing new laws and standards, and if it is not independent of the government of the day it will be ineffective. Similarly, executive agencies require oversight, and here legislative scrutiny and credible external “watchdogs” can enhance effective policy implementation and check abuses.
5.3.3 Parliamentary strengthening
Following the important role that the constitution endorses to parliament, it is best that the parliamentary proceedings are strengthened to create an effective legislature. This is because the political context within which parliament operates may be influential of the shaping and determinations of the effectiveness of programmes making reforms difficult. The potential of parliament to foster capable, accountable and responsive governance of the executive thus requires to be recognized to address the causes of ineffective conducts and performances of the state through system evaluations. It is therefore best that sensitizations398 are carried out by different activists to include the civil society organizations, community and faith based groups as well as media to educate the masses on the importance and significance of elections in their wellbeing. This will help people to realize their worth and potential in national politics if they send ethically fulfilling representatives of their constituencies to parliament, than trading their franchise.
It should be noted that successful parliamentary strengthening needs to work with the grain of political opinion in a parliament, and it needs to distinguish between the ‘politics’ of the institution, and the ‘politics’ of the state, if it is to generate momentum. The shift in mindset means that parliamentary support work should be seen less as a process of implementation, and more akin to consultancy – helping the parliament to deﬁne both the problems and their own solutions. Ultimately, the pace of change cannot be determined from the outside by donors, it needs to emerge from within the parliament. If donors are genuine in their desire for greater impact it will mean that they take greater responsibility for the results of their interventions, but ultimately exercise less control over how reform is enacted. Legislators help the country by passing legislation that protects the principle of non-discrimination and by overseeing government actions.
Parliamentarians can be instrumental in promoting participation by, for example, providing an arena for the peaceful resolution of conflicts by debating strategies on behalf of the electorates which members of parliament represent; and by reaching out to constituents through e.g. public parliamentary hearings.
Public lectures, in form of cultural heritage programmes should be conducted from time to time for legislators, where they should be constantly socialized and sensitized on citizenship education, e.g. on the need for good followership traits, to have faith in the government, contribute their quota to Uganda’s well-being, to shun greed, corruption, dishonesty, political apathy, to respect our symbols, observe the laws, our national ethics and pay their taxes promptly, to respect their fellow citizens rights, to preserve our values, aspirations, behavioral patterns, to promote our lofty ideals and discourage young Ugandans from mass exodus to other countries where their freedom of political pluralism is guaranteed. Empowering parliamentarians to exercise legislative oversight of government should be considered a major concern.
Issue-based approaches should be invoked because it has proved world over that they imply a focus on the substantive content of parliamentary work; providing a particular rather than general focus of a strengthening programme. They are thus incremental in that they do not challenge the entire political system where strong interests may be opposed to a general reform agenda. Instead, they provide a step-by-step route to democratic practices while at the same time highlighting and strengthening the mechanisms through which certain issues can be addressed by parliament.
Bottom-up assistance aims to help people hold their legislature and MPs accountable, to increase their knowledge about the legislature’s activities, and to increase the input into the legislative process of advice and information from outside the government. Such approaches could include support for watchdog NGOs that monitor legislators, with particular concern for transparency and accountability, and who can assist parliamentarians with constituency outreach programmes, teaching journalists how to cover legislators and legislative processes, and aid to institutes or other NGO’s that can offer substantive advice to legislators on the drafting of legislation.
5.3.4 Mass Sensitization of the Citizenry to Build Patriotism
Much thinking and originality to stimulate the public in embracing patriotism is required. This is because without genuine patriotism at heart, the spirit to assemble has largely diminished among the citizens. Not only should mass sensitization campaigns be held over the radios, TV programmes, assemblies etc to reawaken partisanship within the people, but there is need to ensure that the state security agencies remain institutions of the state that serve other than abuse citizens. The agencies should be detached from being directly controlled to serving ruling party interest by bringing them under the control of citizens like it is in Ghana.
It should therefore be noted that education for citizenship is a sine quo none for all citizens particularly children and the youths who are the leaders of tomorrow. Majority today want to participate in the government of the country to amass wealth, and nothing more! A citizen who is not trained in citizenship education is deficient in role performance, in fact ignorant of himself, of his immediate environment, the government, the state, and of course, of events beyond his state. Citizenship Education should be made one of the compulsory corporate social responsibilities of the media, especially for broadcasting houses. They should make songs, jingles and slogans in condemnation of these contemporary social ills, and on the other hand compose same in praise of our values, aspirations, cultures, beliefs, national symbols and national ethics.
Citizenship education should be made a general course in our tertiary institutions that is only a step towards realizing the objectives. There is the dire need to teach, sensitize, socialize, and to continue teaching, sensitizing and socializing the learners and adults as well till we achieve the objectives.
5.3.5 Government should provide an effective environment for the fourth estate to do their work in a free and fair environment.
The media has been perceived and called the fourth estate of government because it has assumed a position where it is endowed with so much power such that it plays an oversight function on government. The primary object of any media law in a democratic society should be to promote press freedom and free expression. Government should also get used to negative media during assemblies if struggles for justice and peace, democracy and human rights, unity and solidarity are to be achieved. In fact government is under obligation to facilitate citizens’ enjoyment of the right to free expression.
Attention must however be given, one; that journalists and other media professionals constantly strive to be highly professional, to remain aware of the evolving standards in the codes to which they are subject, and to act in the ‘public interest’. Second; members of regulatory bodies must develop and interpret their codes of conduct in a manner that recognizes the power of the media to cause harm but that is, at the same time, responsive to the needs of the media, and the overriding imperative of freedom of expression and the need to promote a free flow of information and ideas to the public.
The opposition members too should be left to utilize media airtime to communicate to the public other than arresting of the media personnel for interviewing and covering the opposition programs, government should put in place a strong public relations mechanism to respond effectively to those negative media.
The enjoyment of freedom of speech and expression are not favors that any government magnanimously grants its citizens.399 The media should therefore be made free of political control at an institutional level. Rules on monopolies need to be carefully designed to promote plurality of content, without providing the government with an opportunity to interfere in the media. Such a regulatory system must protect and promote the rights to freedom of expression and information, not to provide an opportunity for public officials to interfere in or harass the media, and respect the professional choices of journalists and other media workers.
Granting the media the necessary freedom to operate is very significant to serve as a check on governments that could be dictatorial. Given the fact that, those who govern only form a small fraction of the population of a state, it will serve as a good opportunity for public officials to conduct themselves in a manner that will be accepted by many. Ultimately, bolstering this capacity means working with people and groups outside the executive, including the media, political parties, citizens groups, academia, research institutes. A fundamental point of departure is to build every intervention on existing national reform agendas so far as these have been developed and decided.
5.3.6 Promote Sustainable Democracy
Building democratic institutions alone does not guarantee the spread of democratic politics. Civilian oversight and accountability is needed to ensure that the state military and security agencies relations are conducive for democratic politics and that human security is promoted as well as national security. Where democracy reigns, institutions of government should be accountable to the people not to particular individuals in governance; this will help to limit the excessive abuse of power by the security agencies as well as agents of government. This will further consolidate and deepen democratic norms and principles in all areas of government for sustainable democratic change.
Since the advent of multi-partism in Tanzania, the ruling Chama cha Mapinduzi [CCM] party400 has not only declined to de-link the civil service from the party, but has continued to enjoy, with impunity, exceptional support from state machinery. Chama cha Mapinduzi continues to deploy the services of regional and district administration, police and state security [Usalama wa Taifa] to organize, manage and utilize state funds for what are purely party events, including elections. The CCM and its government have refused to provide civic education because an informed population works to its disadvantage. This has curtailed the development of democracy in Tanzania.
Good governance is not just a matter of deciding to be good people; instead, officials and citizens must believe they will be better off under a reformed system of governance. It should not be left without mention that political and administrative leaders must believe they stand to gain from, or at least are not directly threatened by, new ways of doing things. For citizens, better and more reliable services, trust in government, and confidence that others also support new laws and procedures are all important.
To meet this requirement it is best that government looks into building the capacities and expertise of a variety of state institutions, including legislatures, judicial institutions and complaints bodies as well as the civil society watchdog organizations. Non state actors should also be left to play an important role in promoting accountability.
5.3.7 Spot Checks for Arrest and Detention Facilities
There is need for human rights bodies to be given the freedom to carry out spot checks on all detention facilities without being interfered with. They should be allowed to freely interact and interview the victims of arrest to investigate the conduct of officers and special police constables especially in circumstances where instances of incommunicado and illegal detentions are found, concerned officers need to be penalized.
That notwithstanding, most security and intelligence services do not have the right to use force or exercise powers of arrest and detention. Some states limit the powers of such services because of the recognition that security and intelligence agencies, given the secretive nature of their work and the concomitant lack of accountability this implies, are prone to abuse policing powers. Such agencies may develop into powerful entities that pursue autonomous agendas rather than serving the security of the state or the population at large.
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Shaba, Richard (July 9, 2009), “Sta t e of Politi cs in Tanz ania”, Tanzania, Country Reports. Siegel, Charles (2011), “Classical Liberalism” Amazon Publishers.
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Ssewanyana (2010), “The International Journal of Not-for-profit Law”, Volume 12, Number 2, International Center for Not-for profit Law, Washington.
The Harvard Law Review, (Dec., 1928), “Restrictions on the Right of Assembly”, Vol. 42, No. 2.
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Warnock, Wilson M. K. and Sschoemaker M (2007), “At the Heart of Change: The Role of Communication in Sustainable Development”, Panos Institute, London.
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IFEX, the Global Network (29 July 2013), “Defending and promoting free expression: Uganda deports U.S journalist Taylor Krauss, over political opposition coverage”, Human Rights Network for Journalists- Uganda.
“Joint Statement on Racism and the Media by the UN Special Rapporteur on Freedom of Opinion and Expression, the OSCE Representative on Freedom of the Media and the OAS Special Rapporteur on Freedom of Expression”.
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1 Öllinger vs. Austria, Application Number, 76900/01 of 2006.
3 The OSCE/ODIHR panel of experts on the freedom of assembly (2010) on the “Guidelines on freedom of peaceful assembly” (2nd edition): Warsaw/Strasbourg.
5 Schick, Allen & Adrienne Pfister (1975), “American Government: Continuity and Change”, New York: Houghton Mifflin, at page 69.
6 Leefers, Kristin (2004) “Critique: A Worldwide Student Journal of Politics, The Course of Political Development in Uganda and its Effect on Economic Development”, Michigan State University.
8 Salih, Mohamed (2007), “Political Parties in Africa: Challenges for Sustained Multiparty Democracy: Africa Regional Report Based on Research and Dialogue with Political Parties”, University of Leiden, Netherlands.
9 Leefers, supra note 6.
10 Salih, supra note 8.
11 Ssenkumba, John, “Political Party Financing in Uganda, Center for Basic Research”, Kampala, Friedrich Ebert Stiftung.
12 Salih, supra note 8.
14 (2010) “Guidelines on Freedom of Peaceful Assembly” Prepared by the OSCE/ODIHR Panel of Experts on the Freedom of Assembly, Warsaw at page 20.
15 Huntington, Samuel (1968), “Political Order in Changing Societies”, Yale University Press, at page 407.
16 Makara, Sabiti, “The Challenge of Building Strong Political Parties for Democratic Governance in Uganda: Does Multiparty Politics Have A Future?” at page 44.
18 Supra note 14.
19 Salih, supra note 8.
20 Makara, supra note 16.
21 Supra note 14.
22 Fenwick, Helen (1999), “The Right to Protest, The Human Rights Act and the Margin of Appreciation” Modern Law Review, Vol. 66 and “Joint Statement on Racism and the Media by the UN Special Rapporteur on Freedom of Opinion and Expression, the OSCE Representative on Freedom of the Media and the OAS Special Rapporteur on Freedom of Expression”.
24 Leefers, supra note 6.
26 Supra note 22.
27 Huntington, supra note 15.
31 Supra note 5.
32 Leefers, supra note 6.
34 Huntington, supra note 15.
35 Higgs, Robert (2004), “Against the Leviathan: Government Power and a Free Society” (Oakland California: The Independent Institute), page 283.
36 Galleguillos, Nibaldo H. (1997) “Checks and Balances in New Democracies: The Role of the Judiciary in the Chilean and Mexican Transitions”: A Comparative Analysis paper delivered at the 1997 Latin American Studies Association, Guadalajara, Mexico.
37 Kanyeihamba, G. W. (2006) “Kanyeihamba’s Commentaries on law, Politics and Governance” (Kampala: Renaissance Media Ltd) at page 44.
38 Magolowondo, Augustine /Elin Falguera/Zefanias Matsimbe (2012), “Regulating Political Party Financing: Some Insights from the Praxis”, IDEA/NIMD www.nimd.org. [Visited 3
39 Ssenkumba, supra note 11.
40 The Constitution of the Republic of Uganda 1995 (hereinafter referred to as Uganda Constitution) Article 29. The Political Party Act.
41 Constitutional Petition No. 09 of 2005.
42 Ssenkumba, supra note 11.
44 Kiranda, Yusuf and Mathias Kamp (eds.), “Reality Check: The State of Multiparty Democracy in Uganda” Konrad-Adenauer-Stiftung E.V. at page 41.
45 Magolowondo, supra note 38.
46 Ssenkumba, supra note 11.
47 Magolowondo, supra note 38.
49 Ssenkumba , Supra note 11.
50 Barya, John-Jean, “Politico-Cultural Pluralism, and Public Order Management in Uganda Today”, page 213.
52 Ayee, Joseph Roland Akwetey and Crook, Richard (2003), “Toilet Wars: Urban Sanitation Services and the Politics of Public-Private Partnership in Ghana”.
53 Gyimah-Boadi, Emmanuel (2001), “A Peaceful Turnover in Ghana”, Journal of Democracy, 12(2): 103-117
54 Uganda Constitution, Article 29(1) (d).
55 Dicey, A. V. (1915), “Introduction to the Study of the Law of the Constitution” Liberty Classics 8th edition (Macmillan). Also available online at: http://www.constitution.org/cmt/avd/law_con.htm [Visited 3 September 2012].
57 Roderick, T. Long (June 1996): “Aristotle's Conception of Freedom”: The Review of Metaphysics Philosophy Education Society Inc, 49, No. 4, at page 782.
58 Nowak, Manfred (1993) “UN Covenant on Civil and Political Rights”: CCPR Commentary. (N.P. Engel) at page 373.
59 Jarrett, James M. and Vernon A. Mund (1931), “The Right of Assembly” in: New York University Law Quarterly Review, Vol. IX, No. 1 at pages 4-5.
60 Marianne, G. Doe (July 18, 2011) , “Freedom of Assembly: The Least Understood of the Five Freedoms”.
61 Makara, Supra note 16.
62 Siegel, Charles, “Classical Liberalism”, at page 127.
63 Inazu, John D. “The Forgotten Freedom of Assembly”, at page 570.
64 Makara, supra note 16.
65 Apter, David (1967), “The Politics of Modernization”, University of Chicago Press, at page 179.
66 Huntington, Samuel (1968), “Political Order in Changing Societies”, Yale University Press. David Apter, “The Politics of Modernization”, University of Chicago Press; Gabriel. A. Almond & Sidney Verba (1963), “The Civic Culture”,, Princeton University Press.
67 Apter, supra note 65.
68 Huntington, supra note 15.
69 Makara, supra note 16.
70 Huntington, Supra note 15.
71 Makara, Supra note 16.
72 Almond & Verba (1963), “T he civic culture”, at page 214 and M. Mamdani (1996), “Citizen and Subject”, Princeton University Press.
73 Hope, R. M. Q.C, “The Right of Peaceful Assembly” at page 2.
74 Olum, Yasin, “Political Parties and the Freedom to Hold Public Rallies in Uganda”, Senior Lecturer, Department of Political Science and Public Administration, Makerere University.
76 Marcus, G., & Spitz, D., “Expression” in Chaskalson, P., et al (1998), “Constitutional Law of South Africa” Juta & Co, Johannesburg, Revision Service 3, 20-1- 20-63, 20-8.
77 Chapple, Norman L. (September1964), “The Journal of Criminal Law”, Criminology, and Police Science, Vol. 55, No. 3 at page 425”.
78 The Harvard Law Review (December 1928), “Restrictions on the Right of Assembly”, Vol. 42, No. 2 at pages 265-269 [Accessed: 17-09-2016 10:25].
79 Human Rights Watch (2006), “In Hope and Fear: Uganda’s Presidential and Parliamentary Polls”, no. 1 (2006).
80 Constitutional Petition No. 09 of 2005.
81 Kabudi, P.J. (1995), “Human Rights Jurisprudence in East Africa: A Comparative Study of Fundamental Rights and Freedoms of the Individual in Tanzania, Kenya and Uganda”, Nomos Verlagsgesellschaft, Baden-Baden at page 282.
82 Noorani, A. G. (2005), “Right to Assembly Economic and Political”, Weekly, Vol. 30, No. 26 at page 1549
83 Constitutional Petition No. 09.
84 Barya, supra note 50, page 216.
86 Almond, Gabriel & James Coleman (1960), “The Politics of the Developing Areas”, New Jersey: Princeton University Press, at pages 239-246.
87 Coleman, James (1960), “The Politics of Sub Saharan Africa”, Almond & Coleman.
88 Almond, Supra note 86.
89 Duverger, Maurice (1954) “Political Parties”, New York: John Wiley, page 426.
90 Long, supra note 55.
91 Gorard, S. (2003), “The Role of Numbers in Social Science Research”, London: Continuum.
92 Bryman, A. (2001), “Social Research Methods”, Oxford: Oxford University Press.
93 Kakinda Mbaaga F. M. (2000), “Introduction to Social Research” Makerere University, at page 201.
94 Katebire, Denis Asiimwe “Social Research Methodology: An Introduction”, Makerere University Printery.
96 Dubick Keith, (2007), “The Theoretical Foundations for Protecting Freedom of Political Assembly”, Journal of Constitutional Law, Vol. 4, at pages 1 and 2.
97 Laporta, Francisco Aleksander Peczenik and Frederick Schauer, (2002), “Why Grundnorm a Treatise on the Implications of Kelsen’s Doctrine”: Law and Philosophy Library, Kluwer Law International, The Hague, Netherlands.
98 Paulson, Stanley L. and Bonnie Litschewski Paulson (eds), “Normativity and Norms: Critical Perspectives on Kelsenian Themes”, Oxford 1998.
99 (1993) 509 U.S 630 where redistricting had to be considered.
100 Laporta, supra note 97.
101 Constitutional Appeal No. 3 of 2004.
102 (1967) AIR 1643, 1967 SCR (2) 762.
103 The Universal Declaration of Human Rights (1948).
104 The International Covenant on Civil and Political Rights, (ICCPR) (1966).
105 The African Charter on Human and Peoples’ Rights, (ACHPR) (1986).
106 Vincent, R.J. (2012), “Human rights and international relations” (Cambridge: Cambridge University Press, 1986), p. 13
107 Jefferson, Thomas African Leadership, the Roots of Failure in Africa www.africanholcaust.net/news_ah/Africanleadership.html. [Visited 3 September 2012].
108 Hyford, John (2012), “African Leadership, the Roots of Failure in Africa” www.africanholcaust.net/news_ah/Africanleadership.html. [Visited 4 September 2012].
109 Laurie, Nathan, African solutions to African problems, south Africa’s foreign policy: accessed from http://web.up.ac.za/…/WeltTrends-92-Thema-Nathan-S_dafrika_Afrikanische-Union Sicherheitspolitik_Diplomatie.pdf-AdobeReader [Visited 3 September 2012].
110 The Universal Declaration of Human Rights, (UDHR) 1948, Articles 20 and 21.
111 UDHR, Article 20 (1).
112 UDHR, Article 20 (2).
113 UDHR, Article 21 (1) and (3).
114 Uganda Constitution, Article 29 and The Constitution of the Republic of Ghana 1992 (hereinafter referred to as Ghana Constitution) Article 21 (1) (d).
115 Uganda Constitution and Ghana Constitution, Article 21 (1) (e).
116 Uganda Constitution and Ghana Constitution, Article 17.
117 Uganda Constitution and Ghana Constitution , Article 21 (1) (a).
118 Uganda Constitution and Ghana Constitution , Article 21 (1) (b).
119 Uganda Constitution and Ghana Constitution , Article 21 (1) (g).
120 Uganda Constitution and Ghana Constitution , Article 21 (1) (f).
121 Uganda Constitution and Ghana Constitution , Article 21 (3).
122 Uganda Constitution and Ghana Constitution , Article 38 (1).
123 Uganda Constitution , Article 43 and Ghana Constitution.
124 Uganda Constitution, Political Objectives (II) on Democratic Principles.
125 Uganda Constitution, Chapter one, Article 1.
126 Uganda Constitution, Article 72.
127 Ibid, Article 73 (2).
128 Ibid, Article 72.
129 Ibid, Article 72.
130 UDHR, supra note Article 1.
131 Uganda Constitution.
132 Ghana Constitution, Chapter One, Article 1.
133 Supra note, ICCPR, Chapter Five.
134 Ghana Constitution, 12 (2).
135 Ibid, Article 21 (3) and (4).
136 Ibid, Article 33 (1).
137 Ibid, Chapter Seven Article 55 (2).
138 Ibid, Article 55 (4).
139 Ibid, Article 55 (16).
140 Ibid, Article 55 (6).
141 Ibid, Article 55 (7).
142 Ibid, Article 55 (14) (a) and (b).
143 Ibid, Article 55 (3).
144 Ibid, Article 55 (11).
145 Ibid, Article 55 (13).
147 The International Covenant on Civil and Political Rights (1966) Article 1 (1).
148 ICCPR, Article 2 (1).
149 ICCPR, Article 2(3) (a) and (b).
150 ICCPR, Article 19 Section (1) and (2).
151 ICCPR, Article 19 (1).
152 ICCPR, Article 19 (2).
153 ICCPR, Article 20 (1) and (2).
154 Chapple, Norman L. (September 1964), “The Journal of Criminal Law, Criminology and Police Science”, Vol. 55, No. 3 at page 425.
155 Constitutional Petition No. 09 of 2005.
156 The African Charter on Human and People’s Rights (1981) Article 10.
157 ACHPR, Article 9.
158 ACHPR, Article 19.
159 The Political Party and Organization Act (hereinafter referred to as PPOA) 2005 Section 4 and 6 (2).
160 Carothers (2006), “The Standard Lament, Confronting the Weakest Link: Aiding Political Parties in New Democracies”, Carnegie Endowment for International Peace, New York.
161 PPOA, Section 7 (1-13).
162 The Political Party Act (2000).
163 Ghana Constitution.
164 The Political Party Act of Ghana (hereinafter referred to as PPAG) (2000) Section 3 (1).
165 PPAG Section 2(2).
166 PPAG Section 1 (1) (1) and Section 3.
167 PPAG Section 7 (2) (b).
168 PPAG Section 8 (3).
169 PPAG Section 8(4).
170 PPAG Section 8(2).
171 PPAG Section 13 (1).
172 PPAG Section 14 (2).
173 The Public Order Act (hereinafter referred to as POA) 1994 Cap 491.
174 POA, Section 83.
175 The Penal Code Act 2000 Cap 120 Section 39 (1) (a) (b) (c) .
176 Odugbemi, S. (2008), “Public Opinion, The Public Sphere, and Quality of Governance: An Exploration in Governance Reform under Real World Conditions”, eds. S. Odugbemi and T. Jacobson, World Bank, at pages 15-37.
177 (July 2007) “Personalizing Power in Uganda”, Journal for Democracy, Volume 18, Number 3.
178 Merloe, P. (2008), Human Rights, “The Basis for Inclusiveness, Transparency, Accountability and Public Confidence in Elections, Promoting Legal Frameworks for Democratic Elections”, National Democratic Institute for International Affairs, New York.
179 The Electoral Commission Act (as amended 2010) (hereinafter referred to as ECA) Cap 140 Section 13.
180 ECA, Section 12(1) (a-d).
181 The Parliamentary Elections Act Section 21 (3) (a and b).
182 Uganda Constitution, Article 41 and Ghana Constitution, Article 21 (1) (f).
183 Uganda Constitution, Article 29 and Ghana Constitution, Article 21.
184 Uganda Constitution, Article 42 and Ghana Constitution, Article 23.
185 Uganda Constitution, Article 21 and Ghana Constitution, Article 17 (1) and (2).
186 Uganda Constitution, Article 29.
187 Ghana Constitution, Article 175.
188 Norris, P. (2011), “The Role of the Free Press in Promoting Democratization, Good Governance and Human Development: Perspectives on Advancing Governance and
191 Uganda Constitution, Article 29.
192 Ghana Constitution, 21 (1) (d).
193 Lines, K. (2009), “Governance and the Media: A Survey of Policy Opinion”, BBC World Service Trust, London.
196 Warnock, Wilson M. K., and Sschoemaker, M (2007), “At the Heart of Change: The Role of Communication in Sustainable Development”, Panos Institute, London.
197 Uganda Constitution, Article 41.
198 Ghana Constitution, Article 21 (f).
199 Lines , supra note 193.
202 Ghana Constitution.
203 Uganda Constitution.
204 Uganda Constitution, Article 29 (1) (a) and Ghana Constitution Article 21 (1) (a) and (b).
205 Warnock, supra note 196.
207 Dawda (2010).
208 Norris, supra note 188.
211 The Constitution of the Republic of Uganda (1995) Article 67 and the Constitution of the Republic of Ghana (1992), Article 55 (11) and (12).
212 Gaventa, J. (2006), “Triumph, Deficit or Contestation: Deepening the Deepening Democracy Debate”, IDS Working Paper 264, Institute of Development Studies, Brighton.
213 LeBas, A. (2011), “From Protest to Parties: Party-Building and Democratization in Africa”, Oxford University Press, Oxford.
214 Grugel, J. (2002), “Democratization and the State: A Critical Introduction”, Plagrave Macmillan, Basingstoke.
215 LeBas, supra note 213.
217 Carothers , supra note 160.
218 Menocal, Roacha A. Fritz and Rakner L (2007), “Hybrid Regimes and the Challenges of Deepening and Sustaining Democracy in Developing Countries, Background Note 2”, Wilton Park Conference on Democracy and Development.
221 Uganda Constitution, Article 43.
222 Menocal, supra note 218.
224 Case, W., (2011), “Executive Accountability in Southeast Asia: The Role of Legislatures in New Democracies and Under Electoral Authoritarianism”, Policy Studies no. 57, East-West Center, Honolulu.
225 Randall, V. (2007), “Political Parties and Democratic Developmental States”, Development Policy Review, Vol 25, No. 5.
226 Carey, S. C. (2002), “A Comparative Analysis of Political Parties in Kenya, Zambia and the Democratic Republic of Congo: Democratization” Vol 9. No. 3.
227 Case, supra note 224.
228 Smith, B. (2003), “Political Parties and Party Systems, Understanding Third World Politics: Theories of Political Change and Development”, Macmillan Press Limited.
229 Randall, supra note 225.
230 Smith, supra note 226.
231 Randall, supra note 225.
232 Olum (2011).
234 Amundsen, I. (2007), “Donor Support to Political Parties: Status and Principles”, Christian Michelsen Institute, Bergen.
236 Mamdani, (1996).
238 Smith, supra note 228.
239 Amundsen, supra note 234.
241 Kiiza, Julius, Sabiti Makara and Lise Rakner (eds.) (2008).: “Electoral Democracy in Uganda: Understanding the Institutional Processes and Outcomes of the 2006 Multiparty Elections” Kampala: Fountain Publishers.
242 ODG/USAID (2003). .
243 Kiiza, supra note 241.
244 Hicken, A. and Kuhonta, E. M., (2011), “Shadows from the Past: Party System Institutionalization in Asia”, Comparative Political Studies, vol. 44, no. 5.
245 Carothers, T. (2007), “How Democracies Emerge: The Sequencing Fallacy”, Journal of Democracy, Vol 18, No 1.
247 Hicken, supra note 244.
249 Smith, supra note 228.
250 Carothers, supra note 245.
251 Pottie, D., 2003, “Party Finance and the Politics of Money in Southern Africa”, Journal of Contemporary African Studies, vol. 21, no. 1.
252 Case, supra note 224.
254 Blomkvist, H. (2003), “Participation, Social Interaction, and the Quality Of Democracy in India”, the American Political Science Association, Annual Meeting, Philadelphia.
255 Case, supra note 224.
256 IDEA (2003), “International Institute for Democracy and Electoral Assistance”, Handbook on the Funding of Parties and Election Campaigns, International IDEA, Stockholm.
257 Pottie, supra note 251.
258 The Police Act of Uganda, Cap 303, for instance the Police dispersed a rally in Masaka after realizing that the opposition had organized and dominated in the area.
259 Kiranda, supra note 44.
260 IFEX, the Global Network (29 July 2013), “Defending and Promoting Free Expression: Uganda deports U.S Journalist Taylor Krauss, Over Political Opposition Coverage”, Human Rights Network for Journalists- Uganda.
261 Menocal, supra note 218.
263 Smith, supra note 228.
264 The Electoral Commission Act of Uganda as Amended (2010) Part II Section 13, the Electoral Commission Act of Ghana.
266 Case, supra note 224.
269 Blomkvist , supra note 254.
271 Supra note 256.
272 Uganda Constitution, Article 44 and Ghana Constitution, Article 15.
273 Ghana Constitution, Article 19 (18).
274 Uganda Constitution, Article 2 and Ghana Constitution, Article 1(2).
275 http://www/Politico- Cultural_Pluralism_Diversity_and_Public_Order_Management_in_Uganda_Today.pdf-Adobe reader. [Visited 3 September 2012].
277 Police Act of Uganda (hereinafter referred to as PAU), Section 32(1) (a).
278 PAU, Section 32 (1) (b).
280 Freedom House (2013), “Freedom in the World” http://www.freedomhouse.org/report/freedom-world/2013/uganda#VDpjn6OEaMk [Accessed:
13/ 11/2013 05:53].
281 Constitutional Petition No. 9 of 2005.
282 Lukenge, eddembe lya munnamawulire, Eddoboozi 2010.
283 Interview with an employee from Amnesty International (23rd June 2014) in Kampala.
284 The Police Act as amended (2006), Section 23.
285 Ibid, Section 4.
286 (2006) Presidential Petition No. 1.
287 Interview with employee from FOWODE (21st June 2014) Kabale.
289 Bareebe, Gerald and Juliet Kigongo ( 2011), “Kizza Besigye’s Driver Charged With Assault”, The Daily Monitor March 6. www.monitor.co.ug/News/-/691252/11195/-/format/xb/html/- /12voetq/-/1346807532000.
291 Barya, supra note 51.
293 Interview with a member of the UPC party 16th June 2014 at Uganda House in Kampala.
295 Interview with one of the journalists 7 June 2014 in Mukono.
296 Interview with one of TV presenters 14 June 2014 in Kampala.
297 Executive Member, FDC (June 4th 2014) in Wakiso.
298 The Constitution of the Republic of Uganda (1995) Article 99.
299 Botchway, Francis (1972), “Political development and social change in Ghana: Ghana under Nkrumah”, Buffalo, New York: Black Academy Press.
300 Gyimah-Boadi, E (2001), “A Peaceful turnover in Ghana”, Journal of Democracy 12, April 2001.
301 Leslie Fox et al (2011), “Ghana Democracy and Governance Assessment”, Washington DC, United States Agency for International Development Report.
302 http://www.ghananewsagency.org/details/politics/judiciary-would-not-be-touched- Akolugu/?ci=2&ai=19487[Visited 3 September 2012].
303 Interview with one Journalist 17th June 2014 in Kampala.
304 Interview with a senior DP member in Kabale.
305 Interview with an FDC executive member in Kabale.
306 Senkumba, Supra note 11.
307 Interview with Police Officer from CPS, June 5 2014.
308 Interview with a senior Police Officer in Kampala, June 5 2014.
309 Interview with one Youth Representative of the DP 8 June 2014 in Mukono.
310 Country Reports on Human Rights Practices for 2012 United States Department of State Bureau of Democracy, Human Rights and Labour.
311 Interview with party member to the FDC 10th June 2014 in Kampala.
312 Jefferson, supra note 107.
313 The Constitution of the Republic of Uganda (1995), Article 29 (1) (d) and (e).
314 Supra note 310.
315 Http://www.ifex.org/ghana/2011/10/12/ndc_arrests//. [Visited 3 September 2012].
316 http://www.ghananewsagency.org/details/politics/judiciary-would-not-be-touched- Akolugu/?ci=2&ai=19487 [Visited 3 September 2012].
317 Executive Member, FDC (June 4th 2014) in Wakiso.
318 Interview one Radio Presenter 4th 2014 in Kampala.
319 Executive Member, FDC (June 4th 2014) in Kampala.
320 http://www.ghananewsagency.org/details/politics/judiciary-would-not-be-touched- Akolugu/?ci=2&ai=19487 [Visited 3 September 2012].
321 Democracy Watch (2010), “Uses and Abuses of the National Security Agencies”, No. 4. Jan- June 2010.
322 Member of the Media interviewed 16 June 2014 in Kabale.
323 Radio/TV Presenter interviewed 11 June 2014 in Kampala.
324 Supra note, 310.
325 Supra note, 310.
327 Constitutional Appeal No. 2 of 2002.
328 (1919) 250 US 616.
329 Bambauer, E. Derek (2006), “Shopping Badly: Cognitive Biases, Communications, and the Fallacy of the Market Place of Ideas” 77 Univ. Col. L. R, p. 37.
330 Uganda Constitution, Article 29 (1) (a).
331 Ibid, Article 38 (1).
332 Adzekpo, Audrey G. (2008), “Guardians of Democracy: the Media, in Ghana: Governance in the Fourth Republic”, ed B. Agyeman-Duah, Accra: Digibooks.
333 The Constitution of the Republic of Ghana 1992.
334 Adzekpo, supra note 332.
335 Karikari, Kwame (2011), “The growing use of indecent and abusive language and expression on radio stations: threats to free speech” Media Foundation for West Africa. http://www.mediafound.org/index.php?option=com_content&task=view&id=718&itemid=47. [Visited 3 September 2012].
336 Supra note 310.
337 The Parliamentary Elections Act 2005 Section 21 (1).
338 Uganda Constitution, Article 21.
339 Community member and Supporter of the DP party interviewed on 28th June 2014 in Mukono.
340 Community member, UPC party supporter interviewed on the 28th June 2014 in Mukono.
341 Interview with one of the Journalists on the 21st June 2014 in Kampala.
342 NRM party member interviewed on 28th June 2014 in Mukono.
343 Gyimah-Boadi, E. (April 2009):, “Another step forward for Ghana”, Journal of Democracy 20 , No. 2 at pages 138-152.
344 Supra note 310.
346 The Constitution of the Republic of Uganda 1995.
347 The Judicature Act.
348 Supra note 310.
352 Interview with UPC Party Member (June 29th 2014) in Kampala.
353 Election Petition No. 1 of 2006.
354 Supra note 352.
356 DemGroup (2011).
357 Gyimah-Boadi, supra note 343.
358 Debrah, Emmanuel et al (2010), “A Study of Ghana’s Electoral Commission,” (Dakar, Senegal: Consortium for Development Partnerships, Governance and Institution-Building in Africa, CODESRIA.
359 Democracy Watch (2010), Uses and abuses of the national security agencies, No. 4. Jan-June 2010.
360 Gyimah-Boadi, supra note 343.
361 World Bank (November 2007), “Ghana: Meeting the Challenge of Accelerated and Shared Growth; Country Economic Memorandum” Accra, Ghana: World Bank.
363 Interview with UPC Party Member (June 29th 2014) in Kampala.
365 Interview with CP Party Member (June 29th 2014) in Kampala.
367 Jjuuko, F.W. (2005), “To Ban or Not to Ban” A Critique of the Media Council Ruling” 11 EAJPHR. 77 Univ. Col. L. R.
369 Radio/TV Presenter interviewed 11 June 2014 in Kampala.
371 Interview with UPC Party Member (June 29th 2014) in Kampala.
372 Radio/TV Presenter interviewed 11 June 2014 in Kampala.
373 Interview with UPC Party Member (June 29th 2014) in Kampala.
374 Interview with CP Party Member (June 29th 2014) in Kampala.
376 Freedom House (2013), “Freedom in the World” http://www.freedomhouse.org/report/freedom-world/2013/uganda#VDpjn6OEaMk. [Visited 3 September 2012].
378 Interview with UPC Party Member (June 29th 2014) in Kampala.
379 Supra note 356.
381 Interview with PPP Party Member (June 21st 2014) in Wakiso.
382 http://www/Politico- Cultural_Pluralism_Diversity_and_Public_Order_Management_in_Uganda_Today.pdf-Adobe reader. [Visited 3 September 2012].
383 Supra note 356.
384 Interview with UPC Party Member (June 29th 2014).
385 Interview with PPP party member (21st June 2014).
386 Interview with CP Party Member (June 29th 2014).
387 Supra note 309.
388 Aili Mali Tripp (2010).
389 Interview with UPC Party Member (June 29th 2014).
390 Gingyera-Pinycwa, A. G. G. (2004) “Transition to Democracy: The Struggle for Power in the Transition to Democracy; the Executive, the Judiciary and the Parliament” in Judith M. Bahemuka and Joseph L. Brockington (eds.) East Africa in Transition: Images, Institutions and Identities (Nairobi: University of Nairobi Press), Chapter Eleven, pp. 171-185.
392 The 1962 and 1967 Constitution of the Republic of Uganda.
393 Ndifuna, Mohammed, “the State Must Stop Continued Violation of Media Freedoms and Human Rights”, HURINET (U), Wednesday, 28 April 2010.
394 Ssewanyana, The International Journal of Not-for-profit Law, Volume 12, Number 2, International Centre for Not-for profit Law, Washington, 2010 at page 78.
395 Ndifuna, supra note 393.
396 Gingyera-Pinycwa, A. G. G. (2004), “Transition to Democracy: The Struggle for Power in the Transition to Democracy; the Executive, the Judiciary and the Parliament” in Judith M. Bahemuka and Joseph L. Brockington (eds.) East Africa in Transition: Images, Institutions and Identities (Nairobi: University of Nairobi Press).
397 UNDP, Vetting Public Employees in Post-conflict Settings: Operational Guidelines, 2006: Bosnia and Herzegovina, pp. 37; Czech Republic, pp. 43; East Germany, pp. 49; Greece, pp. 57; Hungary, pp. 63.
398 Arne, T. and Amundsen, I (2010), “Support to legislatures: synthesis study”, Evaluation Report No. 2, Norad Oslo.
399 Mwesige, Peter G. and Bernard Tabaire (October 2010), “Freedom of Expression in Uganda ACME Briefing”, African Centre for Media Excellence, Paper. No. 1.
400 Shaba, Richard (July 9, 2009), “Sta t e of Politi cs in Tan zania” , Tanzania, Country Reports.
- Quote paper
- Kasule Philip (Author), 2016, The right to freedom of assembly of opposition political parties in a democratic society. A comparative study of Uganda and Ghana, Munich, GRIN Verlag, https://www.grin.com/document/505165