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The Ugandan government often responds to criticisms of what it calls the "movement" system by arguing that such criticisms are insensitive to the Ugandan context, and a form of western imperialism. Such a response differs little from that of other governments dominated by leaders of long incumbency and single parties, and cannot be expected to silence critics either within Uganda or abroad. Many concerns raised about the movement system arise from its violations of civil and political rights enshrined in United Nations treaties and conventions, not from some inflexible Western notion of proper forms of democracy. Democracy takes many forms, even within the Western world. But the world community, through various international instruments such as the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights (ICCPR), has set certain standards to which all signatory governments are expected to adhere.3
Uganda acceded to the ICCPR on June 21, 1995, without making any reservations. The Ugandan government is under the obligation to respect and protect the internationally recognized human rights contained therein. This report evaluates Uganda's political system and related human rights practices in light of these international standards.
Two of the main arguments the Ugandan government often advances in defense of its restrictions on civil and political rights are that the restrictions on political rights have been adopted by mandate of the majority, and that these restrictions should be seen in the context of Uganda's advancements in other areas of human rights and development.
Human rights are not subject to majority mandate. The very purpose and origins of human rights law were to place certain fundamental rights beyond the whims of majority opinion, and to protect those who may find themselves in the minority. The permissible grounds for derogation from human rights obligations are listed in the international instruments themselves, and derogation by majority consensus is clearly not envisioned.
Neither should Uganda's achievements in other areas of human rights and development detract from its international obligations to respect and enforce human rights such as freedom of association, assembly, and expression. All human rights serve a recognized purpose, and allowing governments to pick and choose thosehuman rights which they wish to enforce while ignoring other obligations would be counter to the very purpose of human rights law.
Freedom of association is guaranteed by Article 22(1) of the ICCPR, which provides that "Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests."4 The scope of the right to freedom of association is broad, and includes the right to form political parties.5 The right to freedom of association and the right not to be compelled to belong to any association are also recognized in the African [Banjul] Charter on Human and People's Rights.6 The Universal Declaration of Human Rights also recognizes the right to freedom of association, and further requires that "[n]o one may be compelled to belong to an association."7
The right to freedom of association is a fundamental human right and indispensable for the existence and functioning of democracy, as explained by the noted scholar Dr. Manfred Nowak:
As a political right, [freedom of association] is indispensable for the existence and functioning of democracy, because political interests can be effectively championed only in community with others (as a political party, professional interest group, organization or other association for pursuing particular public interests).8
The right to free association imposes on governments the obligation to permit and guarantee the organization of all political parties, according to the Inter-American Commission on Human Rights, interpreting the free association provision in the American Convention on Human Rights.9
Restrictions on the right to freedom of association under the ICCPR must be prescribed by law and "necessary in a democratic society," and "in the interest of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others."10 A ban on political parties is scarcely "necessary in a democratic society" since historically the development of democracy has been inextricably linked to political parties contesting power through free and fair elections in an atmosphere of free speech and assembly.
Derogation from the right to freedom of association and some other rights is permissible only under the circumstances set forth in Article 4 of the ICCPR:
1. In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, color, sex, language, religion or social origin.
2. No derogation from articles 6, 7, 8 (paragraphs 1 and 2), 15, 16 and 18 may be made under this provision.
The public emergency contemplated in Article 4(1) should be of such a magnitude as to threaten the life of the nation as a whole, whose seriousness is beyond doubt.11 The measures which are adopted for derogating from obligations under the ICCPR are permissible only to the extent that they are strictly required by the exigencies of the emergency.
The state party exercising its right of derogation must "immediately inform" the other state parties of the provisions of the ICCPR from which it has derogated, and of "the reasons by which it was actuated." This provision "plainly calls for notice to be dispatched almost simultaneously with the proclamation of the emergency or the taking of derogating measures."12 Uganda has never informed the other state parties of any derogation of its ICCPR obligations, and has not yet filed its initial country report on its compliance with ICCPR obligations which was due to the Human Rights Committee, the U.N. body established under the ICCPR to monitor its implementation, on September 20, 1996.
Like the right to freedom of association, the right to freedom of assembly is protected under international law. Article 21 of the ICCPR states:
The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.13
Freedom of assembly is also recognized in the African Charter in Article 11, and in Article 20 of the Universal Declaration which reads "Everyone has the right to freedom of peaceful assembly and association."14 According to one legal authority, "The right to freedom of assembly [contained in the Universal Declaration] issubject only to one condition, that it be exercised peacefully."15 Peaceful assembly "refers exclusively to the conditions under which the assembly is held, i.e., `without uproar, disturbance, or the use of arms.'"16 This right includes the right of the individual to participate or not, and the right of groups or organizations to convoke an assembly or take part in it.17 Peaceful assembly includes demonstrations in public places and meetings held indoors.18
Like the right to freedom of association, the right of peaceful assembly must be considered to have a political dimension: "the focus of freedom of assembly is clearly on its democratic function in the process of forming, expressing and implementing political opinions."19 In order to be justified, restrictions on the right to freedom of assembly must be a) imposed in conformity with the law, b) serve one of the purposes listed in Article 21, and c) be necessary in a democratic society.
Political Rights: Article 25 of the International Covenant on Civil and Political Rights
Article 25 of the ICCPR provides for an important spectrum of political rights:
Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in Article 2 [forbidding discrimination] and without unreasonable restrictions:
(a) To take part in the conduct of public affairs, directly or through freely chosen representatives;
(b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors;
(c) To have access, on general terms of equality, to public service in his country.
Some political rights are also recognized in article 21 of the Universal Declaration of Human Rights and article 13 of the African Charter.20
The U.N. Human Rights Committee, which monitors compliance with the iccpr has elaborated on states' obligations in its General Comment 25 (57) on Article 25.21 The committee elaborates on the need for free communication of information and ideas about public and political issues between citizens, candidates, and elected representatives. There must be a free press and other media able to comment without censorship or restraint. There must be freedom to engage in political activity individually or through political parties and other organizations, freedom to debate public affairs, to hold peaceful demonstrations and meetings, to criticize and oppose, to publish political material, to campaign for election, and to advertise political ideas. The Human Rights Committee closely ties the rights contained in article 25 to the rights of association, assembly, and free speech in its authoritative commentary:
The right to freedom of association, including the right to form and join organizations and associations concerned with political and public affairs, is an essential adjunct to the rights protected by article 25. Political parties and membership in parties play a significant role in the conduct of public affairs and the elections process. States should ensure that, in their internal management, political parties respect theapplicable provisions of article 25 in order to enable citizens to exercise rights thereunder.22
The Harare Commonwealth Declaration, adopted by Commonwealth Heads of Government (including Uganda) in 1991, echoes the obligations of states party to the iccpr. Commonwealth states are committed, among other things, to respect "the individual's inalienable right to participate by means of free and democratic political processes in forming the society in which he or she lives."23
International Standards and the Regulation of Political Organizations
The internationally recognized right to freedom of association does not prohibit the regulation of political parties or other forms of political organizations. Indeed, most countries regulate political parties in order to ensure fairness in the political arena. However, regulations placed on political parties must meet the specific standards contained in the international covenants in order to be permissible. Most importantly, regulations on political parties cannot be so severe as to undermine the very content of the right to freedom of association. Because the right of political association is at the very core of the right to association, restrictions affecting political parties should be closely scrutinized to ensure that they do not undermine the core values of this important right.
A panel of thirty-one distinguished experts met in 1984 at Siracusa, Sicily, in order to adopt a uniform set of interpretations of the limitation clauses contained in the ICCPR, including the limitation clauses contained in article 22(2) of the ICCPR. The Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights ("the Siracusa Principles") provides authoritative guidance to the meaning of the terms used in the limitation clauses. In addition to defining the different grounds for limitation of rights (see below), the Siracusa Principles provide some general interpretative guidelines for the justification of limitations of ICCPR rights. The following general principles are of greatest relevance to the interpretation of limitations on the rights of political parties:
- The scope of the limitation referred to in the covenant shall not be interpreted so as to jeopardize the essence of the right concerned.
- All limitations shall be interpreted strictly and in favor of the rights at issue.
- Whenever a limitation is required in the terms of the covenant to be "necessary," this term implied that the limitation:
(a) is based on one of the grounds justifying limitations recognized by the relevant article of the covenant;
(b) responds to a pressing public or social need;
(c) pursues a legitimate aim; and
(d) is proportionate to that aim.
Any assessment of the necessity of a limitation shall be made on objective considerations.
- In applying a limitation, a state shall use no more restrictive means than are required for the achievement of the purpose of the limitation.24
The language of the right to freedom of association contained in article 22 of the ICCPR includes explicit guidelines which must be followed when placing limits on the right to freedom of association.25 First, restrictions on freedom of association must be imposed by law, such as a parliamentary act. The restrictions must be necessary in a democratic society to advance one of the defined purposes in article 22(2), and this requirement has been interpreted to mean that restrictions must "be proportional and be oriented along the basic democratic values of pluralism, tolerance, broad-mindedness and peoples' sovereignty."26 The Siracuse principles comment that "necessary in a democratic society" must be interpreted as imposing a further restriction on permissible limitations, requiring the state to demonstrate that the limitation does not impair the democratic functioning of society.27
The permissible grounds for the limitation of the right to freedom of association are exhaustively listed in article 22(2). Article 22(2) of the ICCPR envisions the following grounds for limitation:
C National security28
C Public order29
C Public health30
C Public morals31
C Protection of the rights and freedoms of others.32
Democracy and Civil and Political Rights
Democracy is a contested term, defined in a multitude of ways by various commentators. Democracy has been defined variously as "a distinctive set of political institutions and practices, a particular body of rights, a social and economic order, a system that ensures desirable results, or a unique process for making collective and binding decisions."33 However, as its Greek roots suggest, the essence of democracy is rule by the majority or popular sovereignty.34 This view is reflected in article 21(3) of the Universal Declaration of Human Rights which states that "The will of the people shall be the basis of the authority of government."35 The Council of Europe has clearly linked democracy to human rights, holding that democracy "means a pluralistic parliamentary democracy which, moreover, is characterised by respect for human rights and fundamental freedoms."36 The 1993 World Conference on Human Rights also recognized the interdependence of human rights and democracy in its Vienna Declaration:
Democracy, development and respect for human rights and fundamental freedoms are interdependent and mutually reinforcing. Democracy is based on the freely expressed will of the people to determine their own political, economic, social and cultural system and their fullparticipation in all aspects of their lives. In the context of the above, the promotion and protection of human rights and fundamental freedoms at the national and international levels should be universal and conducted without conditions attached. The international community should support the strengthening and promotion of democracy, development and human rights and fundamental freedoms in the entire world.37
Although an interpretation recognizing substantive political rights was opposed by the Soviet-bloc countries at the time of the adoption of the covenants and other human rights instruments, it is today's prevailing interpretation that the political rights contained in the ICCPR and the concept of government based on the will of the people contained in the Universal Declaration of Human Rights require a political system which is competitive and which allows for the actual existence of choices. The full realization of the concept of a government based on the will of the people requires that the electorate can actually change the government if a majority is dissatisfied with its policies.
The rights with a political dimension contained in the ICCPR-the article 25 political rights as well as the right to association, assembly, and speech-form the basis for a right to organized political opposition activity. Political parties have the right not only to formally and legally incorporate themselves under the right to freedom of association, but also to sponsor candidates for elections, hold peaceful political rallies, and freely express their opinions. Free and fair elections require a framework for the enjoyment of civil and political rights to be in place. This framework should include at a minimum:
1) the right of access to alternative sources of information, independent of the government;
2) freedom of opinion and expression;
3) freedom to organize in political parties and to vote and to be elected in genuine periodic elections.
These basic civil and political rights must be supported by the institutions necessary to enforce them, such as an army and police force which respect and enforce human rights. If violations occur, courts should hold government to account.
Since independence, some African leaders have challenged the full implementation of political rights as a "western" concept of democracy inapplicable to the Third World. Many African countries became one party states after achieving independence, attempting to build party mobilizing governments in which "[p]articipation was open to all those who accepted the government's ideology and identified with its goals."38 They attempted to create a national identity by limiting participation to one government sanctioned political party and aligned women's, youth, peasants, and workers' groups.39 At the same time, African liberation movements often drew significant inspiration from the Universal Declaration of Human Rights and other bodies of human rights principles.
The one-party states of Africa shared certain characteristics. Most were headed by a charismatic leader who had broad executive powers, undermining the independence of other branches of government, the judiciary and the legislature. In many African one-party states, mass popular participation was used in a controlled fashion to give the government a semblance of legitimacy.40
Political opposition activities were often outlawed and in many cases severely suppressed. President Nyerere of Tanzania did not permit opposition to his ideology of ujamaa or African socialism, arguing that "if [ujamaa is] to form the basis on which society operates, then no advocacy of opposition to these principles can be allowed."41 As in Uganda today, rival political parties were often restricted or outlawed on the grounds of being divisive or sectarian, or contrary to national unity:
Another way to reduce opposition was to outlaw rival political organizations based on particularistic, sectarian, or ethnic interests. Ghana ... together with Guinea, paved the way for such actions by declaring local political parties illegal and contrary to national interests. In Kenya, Jomo Kenyatta hounded opposition leaders and accused them of fueling regional and separatist tendencies; in Sierra Leone, traditional institutions were manipulated; and in Guinea, chieftaincy was declared illegal. With alternate power constellations enfeebled, reconstructed opposition parties were on tenuous ground when they sought to mobilize support or criticize government actions.42
Most one party states in Africa ended in failure. President Nyerere recognized in 1990 that a party with a monopoly on power easily becomes complacent and stagnates.43 The one-party state model was abandoned in Tanzania in 1992, and by 1994 most African countries had either adopted more representative political systems or were led by leaders who had successfully resisted or manipulated pressures to democratize, such as then-Zaire under President Mobutu. However, the one-party state model experimented with in Africa, and the severe restrictions it placed on political rights, has had a lasting impact on the political arena in those countries subjected to its restrictions. In many former African one-party states, democratic institutions continue to be extremely weak, at least partly due to the corrosive effects of decades of one party rule, military dictatorship, and colonial heritage.
3 The Universal Declaration of Human Rights is not a treaty to which states become parties by signing the document, but is considered an authoritative statement on human rights; it is almost universally accepted that membership in the United Nations entails adherence to its principles.5 Dr. Manfred Nowak, U.N. Covenant on Civil and Political Rights: CCPR Commentary (Kehl: N.P. Engel, 1993), p. 386; Karl Joseph Partsch, "Freedom of Conscience and Expression, Political Freedoms," in Louis Henkin (ed.), The International Bill of Rights: The Covenant on Civil and Political Rights (New York: Columbia University Press, 1981), p. 235.
6 African [Banjul] Charter on Human and People's Rights, Article 10.
7 Universal Declaration of Human Rights, Article 20(2).
8 Nowak, CCPR Commentary, p. 385 (second emphasis added).
9 American Convention on Human Rights, Article 16: "1. Everyone has the right to associate freely for ideological, religious, political, economic, labor, social, cultural, sports, or other purposes. 2. The exercise of this right shall be subject only to such restrictionsestablished by law as may be necessary in a democratic society, in the interest of national security, public safety or public order, or to protect public health or morals or the rights and freedoms of others."
The Inter-American Commission on Human Rights interpreted this right as meaning that governments have:
the obligation to permit and guarantee: the organization of all political parties and other associations, unless they are constituted to violate human rights; open debate of the principal theses of socioeconomic development; the celebration of general and free elections with all the necessary guarantees so that the results represent the popular will.
The Inter-American Commission further stated that "[t]he right to political participation makes possible the right to organize parties and political associations, which through open discussion and ideological struggle, can improve the social level and economic circumstances of the masses and prevent a monopoly of power by any group or individual." The right to organize political parties is also derived from the right to participate in government and to free elections, recognized in Article 25 of the ICCPR. Inter-American Commission on Human Rights, 10 Years of Activities: 1971-1981 (Washington, D.C.: General Secretariat, Organization of American States, 1982), pp. 335, 334.
11 Thomas Buergenthal, "State Obligations and Permissible Derogations," in Henkin (ed.), The International Bill of Rights, p. 79.
12 Buergenthal, "State Obligations and Permissible Derogations," p. 84.
14 Universal Declaration of Human Rights, Article 20(1).
15 Partsch, "Freedom of Conscience and Expression, Political Freedoms," p. 233.
16 Ibid., p. 231 (footnote omitted).
18 Article 11, African Charter on Human and Peoples' Rights: "Every individual shall have the right to assemble freely with others. The exercise of this right shall be subject only to necessary restrictions provided for by law, in particular those enacted in the interest of national security, the safety, health, ethics and rights and freedoms of others."
19 Nowak, CCPR Commentary, p. 370.
20 Article 21 of the Universal Declaration of Human Rights reads:
1. Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.
2. Everyone has the right to equal access to public service in his country.
3. The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedure.
Article 13 of the African [Banjul] Charter on Human and Peoples' Rights reads:
1. Every citizen shall have the right to participate freely in the government of his country, either directly or through freely chosen representatives in accordance with the provisions of the law.
2. Every citizen shall have equal access to the public service of his country.
3. Every individual shall have the right of access to public property and services in strict equality of all persons before the law.
21 General Comment No.25(57), U.N. Document CCPR/C/21/Rev.1/Add.7.
22 General Comment No.25(57), para 27 (emphasis added).
23 Harare Commonwealth Declaration, issued at the Commonwealth Summit, Harare, October 20, 1991.
24 "The Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights," Human Rights Quarterly, vol. 7, no. 1 (February 1985), principles 2, 3, 10, and 11.
25 Article 22(2) of the ICCPR reads:
No restrictions may be placed on the exercise of this right other than those which are prescribed by law and which are necessary in a democratic society in the interest of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on members of the armed forces and of the police in their exercise of this right.
26 Nowak, CCPR Commentary, p. 394.
28 According to Siracusa Principles 29-32:
- National security may be invoked to justify measures limiting certain rights only when they are taken to protect the existence of the nation or its territorial integrity or political independence against force or threat of force;
- National security cannot be invoked as a reason for imposing limitations to prevent merely local or relatively isolated threats to law and order;
-National security cannot be used as a pretext for imposing vague or arbitrary limitations and may only be invoked when there exists adequate safeguards and effective remedies against abuse;
- The systematic violation of human rights undermines true national security and may jeopardize international peace and security. A state responsible for such violation shall not invoke national security as a justification for measures aimed at suppressing opposition to such violation or at perpetrating repressive practices against its population.
- The expression "public order (ordre public)" as used in the Covenant may be defined as the sum of rules which ensure the functioning of society or the set of fundamental principles on which society is founded. Respect for human rights is part of public order (ordre public);
- Public order (ordre public) shall be interpreted in the context of the purpose of the particular human right which is limited on this ground
- Public health may be invoked as a ground for limiting certain rights in order to allow a state to take measures dealing with a serious threat to the health of the population or individual members of the population. These measures must be specifically aimed at preventing disease or injury or providing care for the sick and injured;
-Due regard shall be had to the international health regulations of the World Health Organization.
- Since public morality varies over time and from one culture to another, a state which invokes public morality as a ground for restricting human rights, while enjoying a certain margin of discretion, shall demonstrate that the limitation in question is essential to the maintenance of respect for fundamental values of the community.
- The margin of discretion left to states does not apply to the rule of non-discrimination as defined in the Covenant.
32 According to Siracusa Principles 35-36:
- The scope of the rights and freedoms of others that may act as a limitation upon rights in the Covenant extends beyond the rights and freedoms recognized in the Covenant;
- When a conflict exists between a right recognized in the Covenant and one which is not, recognition and consideration should be given to the fact that the Covenant seeks to protect the most fundamental rights and freedoms. In this context especial weight should be afforded to rights not subject to limitation in the Covenants.
33 Robert Dahl, Democracy and Its Critics (New Haven: Yale University Press, 1989), p. 5.
34 The root meaning of the Greek term demokratia: demos translates as "people," while kratia translates as "rule" or "authority," thus leading to the concept of "rule by the people."
35 Universal Declaration of Human Rights, article 21(3).
36 Heinrich Klebes, "Human Rights and Parliamentary Democracy in the Parliamentary Assembly," in Franz Matscher and Herbert Petzold (eds.), Protecting Human Rights: The European Dimension (Köln: Carl Heymans, 1988).
37 World Conference on Human Rights, The Vienna Declaration and Programme of Action (Vienna, June 1993), paragraph 8.
38 Naomi Chazan et al., Politics and Society in Contemporary Africa (Boulder: Lynne Rienner Publishers, 1988), p. 166.
40 Michael Bratton and Nicolas van de Walle, Democratic Experiments in Africa: Regime Transitions in Comparative Perspective (Cambridge: Cambridge University Press, 1997), pp. 78-79, comment:
Mass participation was orchestrated from above and channeled through symbolic rituals of endorsement for the personal ruler, his office holders and his policies. ... Despite these participatory rituals, the plebiscitary one party system was decidedly undemocratic because it precluded genuine political participation.
41 Colin Legum and Geoffrey Mmari, Mwalimu: The Influence of Nyerere (Trenton: Africa World Press, 1995), p. 69.
42 Chazon et al., Politics and Society in Contemporary Africa, p. 46.
43 Legum and Mmari, Mwalimu, p. 74.