“It may be too great a temptation for the humane frailty, apt to grasp at powers, for the same persons who have the powers of making laws, to have also in their hands the power to execute them.” John Locke (1632-1704), Vile Constitutionalism and the separation of powers
The Minister of Information and Communications Technology presented a bill before parliament seeking to amend Section 93 (1) of the Uganda Communications Act 2013. The bill seeks to remove the requirement for Parliamentary approval of regulations made by the Minister under section 93 (1). The minister argues that Parliament enacted two conflicting provisions, Section 93(1) that requires parliamentary approval of the regulations made and 93(3) that obliges the minister to lay before parliament the regulations.
Under the Constitution of the republic of Uganda, the legislature has the powers to makes laws; the executive executes and enforces those laws while the courts arbitrate on what the law is and how it should be applied.
In a constitutional democracy, public power is subject to constitutional control. The Constitutional idea behind the doctrine of separation of powers is to prevent abuse of power within different spheres of government. This view is pronounced by Sir William Blackstone who opined that whenever powers of different arms are united together in the same body or person; a violation of fundamental human rights is inevitable.
Such a background forms the basis for the non-delegation doctrine. Only in exceptional circumstances should parliament delegate its duties and when it so does, it must retain a given power of control to ensure that the regulations made remain within the constitutional parameters. Parliament has a duty to give scrutiny to the regulations made by the minister to ensure that delegated powers are not abused. This mandate promotes democratic accountability and individual liberty because parliamentarians are more accountable to the electorate. The approval of parliament is fundamental and critical to the constitutionality of any laws made to govern freedom of expression.
A free media has a duty to investigate the workings of government and report on them without fear of prosecution. The press is the surrogate of the citizen, reporting back through print and broadcast media what it has found so that the citizenry can act on that knowledge. In a democracy, the people rely on the press to ferret out corruption, to expose the maladministration of justice or the inefficient and ineffective workings of a government body.
Therefore Parliament has a duty to ensure that the regulations made by the minister are not for suppression of available information and of ideas which can only be detrimental to the decision-making process of individuals, corporations and government. It may lead to the wrong government being elected, the wrong policies being adopted, the wrong people being appointed, corruption, dishonesty and incompetence not being exposed, wrong investments being made and a multitude of other undesirable consequences. It is for this reason that it has been said ‘that freedom of expression constitutes one of the essential foundations of a democratic society and is one of the basic conditions for the progress and the development of man’.
Secondly, the purpose of checks and balances is to make the branches of government are accountable to each other. The Parliament’s role of providing checks and balance is very critical especially in the management of the communications sector which forms the bedrock of other fundamental freedoms. The idea behind the doctrine of checks and balances, which the minister intends to run away from, is to ensure accountability, responsiveness and transparency in Uganda. When the Uganda Communications Regulatory bill 2012 was presented to parliament, the promoters of the law under Clause 100 (1) which eventually became Section 93(1) of the Uganda Communications Act 2013, had avoided parliamentary scrutiny. The clause as it was then read as follows:
(1) The Minister may, after consultation with the Authority by statutory instrument, make regulations for better carrying into effect the provisions of this Act.
The Sessional Committee of parliament on Information and communication Technology, in May 2012 scrutinized the Clause as it was and realized that it was important to provide a mechanism of checking on what the minister may do before implementation. These words were added: with the approval of parliament so that minister does not infringe on the rights of Ugandans. In the report of the Committee it was recommended that the clause reads as follows:
“The Minister may, after consultation with the Authority and with the approval of Parliament, by statutory instrument, make regulations for better carrying into effect the provisions of this Act.” The Committee gave its justification for this change as: For a better evaluation and observance of consistency of the regulations with the Act.
Parliament agreed with this position and passed the UCA 2013. Barely three years from its enactment the Minister has brought back the same section under the pretext that it is in conflict with section 93(3) which states that: “Regulations made shall be laid before Parliament.”
When the two sections are read carefully, Section 93(1) is fundamental on checking the excesses of the minister when formulating regulations that will affect the right to communication. It makes it mandatory for the minister to seek parliamentary approval in making the regulations. Section 93(1) does not jeopardize the operations of the Minister and Uganda Communications Commission. It only sets a strict standard on how the minister formulates the regulations. The section promotes and protects the doctrine of separation of powers, a fundamental pillar in a democracy.
Section 93(3) is ambiguous, vague, unclear, and redundant. It is subject to multiple interpretations including those that are detrimental to the enjoyment of the right to seek, receive and disseminate information. It is this section that should be repealed by parliament.
If Parliament reverses its position on the law, the dangers are quite many. The amendment if passed as proposed will:
Increase the powers of the minister in the control and management of the communication industry which is already scattered all over in the law. In the current law the minister has the powers to direct the Commission on matters of policy and it is mandatory for the Commission to follow the directives. The minster has the powers to appoint the Executive Director of the Commission and approving the Commission’s budget.
Vest all the powers in the minister to formulate and implement tyrannical or arbitrary regulations that serves his or her interests. Such regulations will affect the right to communication in the country. We should be mindful of the recent shut down of the social media in the country during the general elections. The security reasons are unknown to date. What amounts to security reasons is also a clandestine. This leaves a lot of room for political reasons being embedded in security reasons.
Create a possibility of misuse of the powers by the minister and the Executive Director as laid down in section 93(2), (4) and (5) of the Uganda Communications Act 2013. The Executive Director has already banned individuals from Radio and Televisions platforms arbitrarily. The Minister of information has on several occasions made statements that are prejudicial to media freedom. The Inspector general of police has time and again impeded on the right to communication by arbitrarily invoking national security concerns.
With this background, the proposed amendment spells doom for press freedom and the general human rights in Uganda. Parliament cannot afford to surrender its supervisory role to the minister.
Human Rights Network for Journalists-Uganda