While Ugandans were caught up in the election campaign fever, President Museveni quietly assented to the Non-Governmental Organisations Act on January 30, 2016.
This act replaces the Non-Governmental Organisations (Registration) Act, Cap 113, which was last amended in 2006. The 2006 amendment gave the NGO board powers to register and deregister NGOs, made it illegal for unregistered NGOs to operate and violated the basic right to freedom of association.
The 2009 NGO regulations introduced a far more draconian NGO regulation regime that was not even fully anchored in the parent law. Civil society organisations challenged the 2006 amendment and the 2009 regulations in the Constitutional court, although this case has remained pending since 2009.
The 2016 act, in its original format, was generally intended to give the 2009 regulations the force of law. Many of the regulations’ provisions were incorporated in the bill that was tabled before parliament.
After a lot of lobbying and heavy criticism from civil society, parliament passed the NGO Bill in November 2015 without most of the draconian provisions. It is this bill (now the NGO Act) that Museveni assented to.
An independent NGO bureau was created; the powers of the bureau to monitor the operations of NGOs were reduced and mandatory registration for all organisations, including those already existing, was removed.
However, one key section that potentially waters down the good intentions of the act remained. This is section 44, which imposes special obligations on NGOs. The section bars organisations from doing anything that would be deemed as prejudicial to the ‘security of Uganda,’ and the ‘interests of Uganda and the dignity of Ugandans.’
The provisions are vague, for they do not define the kind of behaviour that would constitute a violation of these provisions. These provisions are not merely cosmetic, for section 40 (1) (d) gives them the force of the criminal law. This section provides that any person who does anything prohibited under the act commits an offence.
This goes against the Constitution, which requires all criminal offences to be well-defined. ‘Security reasons’ is commonly used as an excuse to arbitrarily clamp down on organisations, usually through intimidation. It should, therefore, be made clear to NGOs what activities are prejudicial to the security of Uganda.
The real justification for such a provision is also quite questionable since there have not been many NGOs that have been found to be doing things that are ‘prejudicial to security interests.’
Most organisations in Uganda have a reputation for working to ensure daily security of Ugandans through provision of services that ensure human security, for example provision of food relief, water and health. NGOs help indigent Ugandans in places where the government is having challenges meeting its obligations and step in to provide basics and make people’s lives better.
They, therefore, work more towards contributing to national security than against it. NGOs that are a security threat are an exception and genuine NGOs are worried that with the president assenting to the NGO Act, the security card will be played to stop NGOs from doing legitimate, legal and essential work.
The respecting-dignity-and-interests-of-Ugandans card has been played before against NGOs that work with minorities and other groups that are vulnerable because society deems their very existence immoral. For example, the annulled Anti-Homosexuality Act was an attempt to rein in NGOs that work to protect the rights of sexual and gender minorities.
The passing of the NGO Act with this provision could be a way of reintroducing the Anti-Homosexuality Act. This part of the NGO Act achieves the same aim as the promotion of homosexuality provisions. The provision assumes that the interests of Ugandans are homogeneous.
Other minorities such as sex workers and people living with HIV/Aids could be affected by this provision when NGOs that work on their issues are reined in because they are deemed to be in violation of the ‘interests’ of Ugandans. This limitation would be contrary to the constitutional protection of the rights to freedom of association and expression.
The president has a duty to uphold the Constitution and, therefore, should not sign laws that have provisions that would violate it. Passing such laws greatly affects the hard-won rights of Uganda, diminishes the quality of constitutionalism and comes at a great financial cost to the taxpayer.
The president should, therefore, not have signed the NGO Act with these evidently-unconstitutional provisions.
The author is the executive director of the Human Rights Awareness and Promotion Forum (HRAPF).