Tag: constitution

Why Uganda needs new laws to hold police in check, and accountable

Vanessa Malila

By: Sylvie Namwase, Post Doctorate Researcher under the DANIDA funded project on militarisation, sustainable growth and peace in Uganda., University of Copenhagen

In May this year Uganda’s Constitutional Court made a ruling that offered a welcome development for domestic justice for victims of police violence, as well as an opportunity for police reform.

The Court declared a provision of the Uganda Police Act unconstitutional and void. The provision allowed police officers to use unlimited force when dispersing crowds with no liability for deaths or injuries.

This is a big win for Uganda. The country has a record of police killings as a result of excessive force used during mass protests for which there is almost never accountability.

The decision is indeed a milestone. But it isn’t likely to have any major effect unless there is pressure for new laws in Uganda that set international standards on the use of force and firearms during crowd control. Previous milestone decisions by Ugandan courts have either been ignored by the state, or have been circumvented through other legislation.

The courts have acted before

In 2008 the Constitutional Court nullified a provision of the Police Act which granted powers to the Inspector General of Police to disperse public assemblies if he or she believed they might cause a breach of the peace. The Court ruled that the Inspector General’s discretionary powers were excessive and effectively rendered freedom of assembly under the Ugandan Constitution illusory.

But in 2013 the Ugandan Parliament passed the Public Order Management Act. This gave the Inspector General powers to regulate the conduct of all public gatherings. It also required all conveners to notify the Inspector General of planned public meetings in advance. And it granted the Inspector General powers to bar the convening of a meeting at any venue if it was in the interest of crowd and traffic control.

This effectively revived the Inspector General’s powers to limit freedom of assembly. The Inspector General has used this discretion to bar the public assemblies and activities of some political opposition and civil society groups. These decisions have been based on broad and unsubstantiated claims of security interests and crowd control.

For example, the Inspector General has banned music concerts by prominent opposition Member of Parliament and musician, Robert Kyagulanyi, alias Bobi Wine. This has included concerts on his private property.

When it comes to the excessive use of force, Uganda has a multiplicity of laws that empower the police and other security agencies to carry out arrests as well as to control and disperse crowds. The laws place no limits on the use of force or the use of firearms. This means that, despite the Court’s ruling, loopholes for the use of excessive force persist within Uganda’s legal framework.

For example, the provision of the Police Act nullified by the Constitutional Court exists in the same substantive terms under the Penal Code Act. This allows the police to disperse riotous assemblies by all means necessary without legal consequences for any deaths or injuries.

Other gaps in the law exist in the Criminal Procedure Code Act, The Prisons Act, and The Uganda Peoples’ Defence Forces Act.

What needs to be done

Uganda needs a comprehensive regulatory framework to govern public assembly. This framework would balance law enforcement and human rights interests, including protecting the right to freedom of assembly. Without this framework the enjoyment of this right will continue to be subject to the political interests of the regime in power.

The same dynamics apply when it comes to excessive force used to disperse public gatherings organised by political opposition groups or those opposed to the regime.

A clarity and harmony of standards is especially important as there’s an increasing blurring of police and military roles in the country.

Uganda has an active civil society and a liberal constitutional provision for public interest litigation that can enable this.

As a practical way to ensure the Constitutional Court’s most recent decision doesn’t become another forgotten milestone, civil society organisations such as the Uganda Law Society can do two things. The first is to undertake a comprehensive mapping of all laws related to use of force in the country and determine where they fall short of constitutional and human rights standards.

The second would be to engage the police, parliament and the judiciary to map out a regulatory statutory framework. This would lay down more detailed standards on the use of force by all mandated to use force when controlling crowds.

These standards can be drawn from the wealth of relevant international guidelines. These include the 1979 Code of Conduct for law enforcement officials, the 1990 United Nations Basic Principles on the Use of force and Firearms for Law Enforcement Officers, and the African Union Guidelines for Policing of Assemblies by Law Enforcement Officials in Africa.

Reforms along these lines aren’t relevant only to Uganda. Recent civil uprisings in Sudan and Algeria show that people are increasingly seeking change through public protest. This underscores the need to get clarity on standards police should be obligated to apply against protesters. And to crystallise a legal basis of criminal liability for excessive force at both national and international levels.

The clarity of legal standards would ensure that citizens can advance democratic and human rights in Africa using peaceful means.The Conversation

Sylvie Namwase, Post Doctorate Researcher under the DANIDA funded project on militarisation, sustainable growth and peace in Uganda., University of Copenhagen

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Towards equality in school funding

Vanessa Malila
By and
(Photo courtesy of Equal Education)

Apartheid’s legacy of skewed resource distribution continues to impede the realisation of the right to basic education. By the mid-1960s, the apartheid government was spending, on conservative estimates, ten times more on white learners than on black learners. Redressing this injustice is a moral, socio-economic and constitutional imperative.

In this article – the first in a series on public school funding – we outline the constitutional framework that must inform education spending and resource distribution in South Africa.

Right to basic education is immediately realisable

The right to basic education guaranteed in section 29 of the Constitution is different from other socio-economic rights. The state’s duty to realise rights such as housing, social security and health-care may be achieved progressively over time and within available resources.

By contrast, Justice Bess Nkabinde of the Constitutional Court, in a landmark judgment, explained:

“Unlike some of the other socio-economic rights, this right [to basic education] is immediately realisable. There is no internal limitation requiring that the right be ‘progressively realised’ within ‘available resources’ subject to ‘reasonable legislative measures’.”

This means that the Constitution recognises that education is a public good that must be made accessible to everyone immediately: to every learner, without exception. This shows the fundamental importance that the Constitution places on education, which must be given priority in the policies, plans and budgets of government. Education funding models must therefore be based on the target of immediately ensuring that all learners access the right to basic education.

Substantive equality and redress

Substantive equality is a fundamental constitutional value and right. Unlike merely formal equality, which requires treating everyone exactly the same, the Constitution recognises historical imbalances and the need to eradicate systemic discrimination against certain groups. Substantive equality requires that the state provide redress for past disadvantage so that everyone is in a position to equally enjoy all their rights, including education. This is key to to the transformative agenda of the Constitution.

Recently retired Justice Dikgang Moseneke explained in a 2004 judgement that “[a]bsent a positive commitment progressively to eradicate socially constructed barriers to equality and to root out systematic or institutionalised under-privilege, the constitutional promise of equality before the law and its equal protection and benefit must, in the context of our country, ring hollow.”

Section 29 has been specifically interpreted by our courts to impose an obligation on the State to not only provide education but to also simultaneously redress past imbalances caused by the racially discriminatory laws and practices of the colonial and apartheid eras.

Constitution guarantees access to quality education

The Constitutional Court has said that “education is the engine of any society”. It is the main way in which economically and socially marginalised adults and children can lift themselves out of poverty and obtain the means to participate fully in their communities.

The right to a basic education provides a way to realise the dignity, equality and freedom of every person. For this to happen, education must be of adequate quality.

A rights-based approach to public school funding

What are the implications of these constitutional principles and rights for funding public schools? At a minimum:

  • The state must prioritise education funding as basic education is an immediately accessible public good.
  • Access to education alone is not sufficient. Substantive equality requires that access to quality education is equalised: no person or group of people should receive a vastly inferior education to anyone else.
  • A progressive funding model is required that lifts the standards of disadvantaged schools up to the levels of resource expenditure (inputs) and quality of learning (outputs) of historically advantaged schools.

The South African Schools Act recognises the need to “provide an education of progressively high quality . . . [and] uphold the rights of all learners”.  It requires the state to “fund public schools from public revenue on an equitable basis in order to ensure the proper exercise of the rights of learners to education and the redress of past inequalities in education provision”.

However, while the legislation is laudable for its recognition of the constitutional goal, the mechanics of education funding are not achieving these aims.

In the next articles in this series, we analyse how basic education is funded in South Africa. Beginning with the distribution of funds among the provinces, and then looking at personnel and non-personnel spending, we will explore various shortcomings in the existing model while highlighting what opportunities there are for achieving greater quality and equality in our public schools.

What the Constitution requires How this impacts the budget process
Priority Basic education must be accessible to all immediately. Basic education must be treated as a priority in government budgeting processes.
Quality The right to basic education is a right to an education of adequate quality. Resources must be invested by the state into the basic education system that are sufficient to achieve adequate quality.
Equality Education of an adequate quality must be made available and accessible to all. Among others:

  • no-one may be denied access to education on the basis of their inability to pay fees;
  • all schools must have access to the resources necessary to provide a quality, basic education;
  • schools that were underfunded in the past must receive relatively more resources from the state than schools that were well funded during apartheid.

Nurina Ally is the Executive Director of the Equal Education Law Centre. Daniel McLaren is a Senior Researcher at the Studies in Poverty and Inequality Institute.

Published originally on GroundUp .