B. Human rights-related issues arising from COVID-19 responses of Uganda

Elections

Covid-19 found Uganda in the final preparatory stages leading up to the holding of the 2020-21 national elections which are conducted every five years. The 2016-2021 electoral term was due to end in May 2021. Article 61(2) of the Constitution requires the Electoral Commission of Uganda to organize elections 120 days before the expiration of a running term.

Around May 2020, the country’s president hinted at a possibility of postponing the elections in view of the uncertainties around COVID-19, observing that it would be unreasonable to hold elections during a highly risky environment. However, this course was abandoned as the Electoral Commission soon (on 16 June 2020) issued a Revised Roadmap and guidelines for the holding of the 2020/21 elections purportedly in order to align the electoral activities with the guidelines issued by the Ministry of Health, thereby averting the potential escalation of Covid-19 infections and fatalities due to unrestricted electoral activities. Most notable among the measures was the prohibition of open-air campaigns, instead requiring all aspiring candidates to conduct ‘scientific campaigns’ via media and online channels. However, this was later revised following the Ministry of health revision of restrictions on mass gatherings, first to a maximum of 70 and later to 200 persons per seating who had to fully comply with the standard operating procedures in force.

On the whole, the electoral activities happened in a complicated context clouded by violence and uncertainties. Candidates, especially opposition Presidential candidates, without strong established structures on the ground across the country struggled with how to organize to meet their electorate in the allotted number of 70 and later 200 on the one hand, as well as controlling masses who would wait for them along the streets in major towns where they had support bases on the other hand. They were often arrested; a highlight of this being the mid November 2020 arrest of the leading contender in the Presidential race, Robert Kyagulanyi Sentamu alias Bobiwine. Bobiwine’s arrest sparked nationwide protests resulting into fatalities as reported by media houses including the Daily Monitor, BBC, CNN and Aljazeera. This was the second time Bobiwine was being arrested as a presidential candidate, the first incident having been effected on the day of his nomination.

In its response on these developments, the Electoral Commission simply stressed that candidates had to observe the measures issued by the Ministry of Health, failing which they were inviting upon themselves the machinery of law enforcement agencies. There also appears to have been a distinction in the application of measures as it was observed that in some cases politicians belonging to the ruling party would often flout them without similar treatment by law enforcement agencies.

The level of violence led some religious clerics in Uganda to call for the government to postpone elections if it could not protect citizens’ lives and rights in the course of the campaigns. However, the President insisted that the government would not suspend the elections no matter the unfortunate incidents.

On 26 December 2020, the Electoral Commission suspended campaign meetings for all elective offices in 20 Districts/Cities namely: Jinja district, Jinja City, Kabale district, Kalungu district, Masaka district and Masaka City, Tororo district, Kampala City, Luwero district, Wakiso district, Buikwe district, Buvuma district, Mukono district, Kayunga district, Mbarara District and Mbarara City, Kabarole District, Fort Portal City, as well as Kasese and Kazo districts.  The suspension was reportedly due to the fact that the affected electoral areas had been “categorized by the Health Experts as high, sustained and diffuse transmission districts/areas.”  Candidates were instead advised “to restrict themselves to virtual campaigns – radios, televisions, social media, community-based Public Address Systems and other online platforms.”

Towards the actual polling, the government started restricting access to internet and use of social media platforms notwithstanding that these had been profiled as the major playfield for the country’s ‘scientific’ election. Specifically, on 12 January 2021, the Uganda Communications Commission (UCC) ordered all Internet Service Providers (ISPs) within Uganda to block access to internet-based social media platforms and online messaging applications including Facebook, Twitter, WhatsApp, Instagram, and others, in addition to the online mobile application stores, Google Play Store and App Store. The Government further ordered the blocking of access to over 100 Virtual Private Networks (VPNs), barring any attempts to circumvent its aforementioned internet censorship.  

On the eve of the 14 January 2021 presidential and parliamentary elections, the government further directed all Internet Service Providers (ISPs) in Uganda to block all access to the internet, thereby inducing a total internet shutdown that lasted five days, from the 13 of January, 2021 to the 18 of January, 2021.

It was projected that the above developments, for instance the ban on open air campaigns, could tilt the race in President Museveni’s favor, which would not be different from the trend in previous election cycles.

More substantively, there is criticism regarding the Electoral Commission’s adoption of guidelines without first consulting with key stakeholders and thereby failing to represent the different interests.

Executive

The Executive arm of Uganda’s government was very central in the responses to COVID-19. As indicated in Section A, the President was at the centre of the action at all stages. He issued several national addresses in which he sensitised Ugandans on the pandemic and the measures taken by the government in response for instance on 18 March 2020, 24 March 2020, 30 March 2020, 4 May 2020, 13 May 2020, 4 June 2020, 20 September 2020, and 29 November 2020.

The President also led the campaign to mobilise resources in terms of financial and material (eg vehicles, food, masks, sanitisers etc) donations needed to respond both to the health and other needs of Ugandans during the lockdown measures. A lot of donations came through following the President calls, both from private individuals, public servants, private companies, philanthropy organisations, Investors, associations, international organisations such as IGAD, corporations, foreign governments, diplomats among others. The president acknowledged all those who contributed during his addresses to the nation which were often made in the presence of members of his cabinet.

In addition to the President, the Office of the Prime Minister was involved especially in the coordination of the inter-ministerial responses. The Country’s Prime Minister led the National COVID-19 Donations Taskforce which was responsible for the receiving and management of donations.

Parliament

The Parliament of Uganda played a number of roles in the COVID-19 response machinery of the government of Uganda. This included highlighting, debating and adopting a report on the impact of COVID-19 on the Economy, nominating Members of Parliament to serve on the National Task Force on COVID-19 both to provide support and nationwide oversight. This was particularly important considering that the government had invested a significant amount of supplementary public resources.  It is reported that Parliament undertook several activities including assessing the awareness levels among local leaders and communities about COVID-19, capacities of health facilities, the impact of funds disbursed on the ground, the state and welfare of frontline medical workers among others. Additionally, over 200 MPs privately donated the ambulances they procured for their constituencies, to the Ministry of Health in order to boost its response capacity (as above).    

By way of solidarity, on 12 May 2020, Parliament passed a motion to honour the president for his exemplary leadership in the fight against the pandemic, in spite of minority resentments on the basis that it was still premature to award leadership in a war that was far from over.

Judiciary

At various stages of enforcement of the measures, the judiciary was requested to intervene in some of the issues arising from the government’s responses to COVID-19. Examples of these issues include the right to food, the right to liberty, the conduct of business by companies, rights of LGBTI persons among others. Below is a highlight of some of the cases where courts pronounced themselves.

• Right to food
  
  Centre for Food and Adequate Living Rights (CEFROHT) v Attorney General (Miscellaneous Cause No. 75 of 2020)
  This case was decided by the High Court of Uganda on 4 June 2020. It was brought in an attempt to enforce the right to food and livelihood – guaranteed under the National Objectives and Directive Principles of State Policy XXII and XXIII read together with Articles 8A, 20 and 45 of the constitution of the Republic of Uganda – which the Applicants claimed had been violated when the government adopted a range of restrictive measures relating to COVID-19 which included restricting movements, closure of workplaces. The case of the Applicant was that the said measures significantly limited the avenues through which Ugandans across the country could access food, yet the government did not offer any guidance on Ugandans’ access to and availability of food, including controlling food prices which had hiked during the lock down. At best, they noted, the Government had only indicated that it would distribute food to vulnerable communities in the capital city, Kampala, and Wakiso district.
  
  On their part, the Attorney General opposed the application, arguing first, that the government was duty-bound to heed to the call by the World Health Organisation to implement International health Regulations necessary to curb COVID-19. Secondly, it submitted that the Government, through the Office of the Prime Minister, had already embarked on plans to secure food items for distribution to the country’s most vulnerable people. Surprisingly, the Attorney General did not invoke the Political Question Doctrine which has traditionally been used as a bulwark against enforcement of economic social and cultural rights before Ugandan courts since they are not provided for in the substantive part of the Constitution.
  
  The Court dismissed the application finding among others: that the country has in place regulations to guide the whole process of distribution and quality of food distributed. Furthermore, it found that there was general guidance on access to food by all people during the lock down period as seen in the Presidential directive of 25 March allowing for operation of markets and businesses strictly for the selling of food items.   It further noted that while the country does not have price control laws, the government, through the Minister of Trade, Industry and Cooperatives, had proactively taken measures to regulate food prices in the form of a directive to local leaders across the country to ensure that there would be no hoarding of essential commodities, cautioning that traders who did not comply would have their licenses revoked. Although the court agreed with the Applicant that there are no food reserves in Uganda, it noted that the government had put in place other systems to bridge the gap such as food donations from international agencies such as the World food Programme.
  
  
• Right to Liberty
  
  Bukeni Ali & 48 Others v. AG, Miscellaneous Cause No. 10 of 2021
  The Applicants, in that case, were among the supporters of Presidential candidate Robert Kyagulanyi Sentamu (alias Bobiwine) who had been arrested and detained by security agencies over violation of the standard operating procedures set by the Ministry of Health. The offence in question was forming part of a crowd constituting more than 400 people who were not observing COVID-19 SOPs applicable to election campaigns. They had subsequently been granted bail by a Magistrate Court, but before their sureties could produce the bail money, security personnel arrested and detained them in army barracks and later handed them to a civilian prison whilst instituting against them new charges of unlawful possession of fire ammunition thereby subjecting them to the jurisdiction of the General Court Martial which declined their bail application.
  
  In approaching the High Court, they wanted to enforce their rights including the right to liberty. However, the court declined to grant their application observing that they were legally being tried by the General Court Martial which was competent to determine their innocence or otherwise.
  
  Notably, the Lead Applicant, in this case, Mr Bukeni Ali (alias Nubian Lee) is Mr Robert Kyagulanyi’s long time close friend and singing partner while the rest of the co-accused included his regular support staff.
  
  In the Matter of an Application for a Writ of Habeas Corpus AD Subuciendum by Kyagulanyi Sentamu and another v Attorney General and 2 others (Miscellaneous Cause-2021/16)
  This application was filed in January 2021 before the High Court on behalf of Presidential candidate Robert Kyagulanyi Sentamu (alias Bobiwine) and wife who had been subjected to unexplained confinement at their home by the security forces since 14 January 2021 when the Presidential elections had been held. During the said period, the applicants were allowed no access to anybody including members of their family, lawyers and medical personnel even as there had been no charges preferred against them.

  In opposing the application, the respondents relied on among others the affidavit of the Assistant Inspector General of Police who deposed that it was necessary to restrain Applicant who, in the course of his presidential campaigns had defied the COVID-19 guidelines which led to his arrest in November 2020 and the subsequent acts of violence and fatalities by his supporters. Furthermore, that the Applicant had also flouted the conditions of the bail he was granted after his arrest in November, and that it was necessary to restrain him in the aftermath of the elections a preventive measure intended to protect the life and property of Ugandans.

  The Court issued its ruling on 23 January 2021 in which it found that the restrictions imposed on the applicant were unlawful and ordered for their lifting and therefore ordered for the restoration of his personal liberty. The Applicant was also directed to comply with the SOPs in force in view of the virulent nature of COVID-19
  
  Lt. General Henry Tumukunde v. Uganda (Criminal Revision No. 26 of 2020)
  Although this case was not primarily concerned with the nature of the responses the government adopted to counter COVID-19, the court made an important point regarding the abuse of rights of persons under detention by using COVID-19 as an excuse to delay their justice. In this regard, the state attempted to have the Applicant’s bail application dismissed on the pretext that they had not yet completed investigations which were still underway when COVID-19 struck which attracted implementation of lock-down measures. The Judge, beyond holding that incompleteness of investigation does not constitute a bar to the grant bail considered, in any case, the fact that the relevant institutions which had to do the investigations were not affected by the COVID-19 lockdown measures, as they were categorized as essential service providers with all the requisite latitude to complete their work.
  
  Matters arising from business operations of companies
  

  The judiciary was also invited to intervene in matters concerning company businesses as exemplified by the case of In Re: Uganda Institute of Banking and Financial Services (Miscellaneous Cause No. 120 of 2020). The Applicant in this case, a Company limited by guarantee with approximately 870 members both corporate and individual totaling to over 5000 persons, sought for leave of court to conduct her Annual General Meeting for the year ended 31 December 2019 by electronic means on or before 20 July 2020 which is the period.

  The application was based on the impracticability of the company to hold the said event in the manner prescribed by her Constitution, i.e.; physically “at a place, time and date to be determined by the Board with a quorum of not less than 40%” of her membership yet the COVID-19 related measures in force at the time restricted mass gatherings. 

  The Court granted the application pursuant to Section 142 of the Companies Act 2012 which provides thus:

  “Where for any reason it is impracticable to call a meeting of a company in any manner in which meetings of that company may be called or conduct the meeting of the company in the manner prescribed by the articles of this Act, the court may of its own motion or on application of any director of the company or of any member of the company who would be entitled to vote at the meeting order a meeting of the company be called, held and conducted in the manner the court thinks fit.”

  This way, the court enabled the continuation of the Company’s business notwithstanding that there was, in place, circumstances which had not been envisaged by her Constitution.

Case concerning the arrest of LGBTI persons from a shelter
A group of 20 LGBTI persons were arrested and remanded at a prison in Eastern Uganda for almost two months over alleged violation of COVID-19 related measures. These had been found living together at an ‘overcrowded’ shelter for homeless LGBTI persons. It has also been reported that in late July 2020, this group filed a lawsuit before the Civil Division of the High Court in Kampala, seeking redress for their alleged torture, inhuman and degrading treatment, discrimination and violation of privacy. The Group is being represented by the Human Rights Awareness and Promotion Forum (HRAPF) endured a myriad of forms of violence while being held, ranging from flogging and scalding to denial of access to food, sanitary facilities and medication.

Transparency/ access to information

The COVID-19 response involved a lot of resources both monetary and material including state coffers and donations from various sources. Compared to the state allocated resources which are ordinarily subject to auditing and accountability, the non-states generated financial and material resources were at great risk of being preyed on by self-seeking individuals. 

Barely a month into the collection of donations, incidents started to emerge ranging from government officials inflating prices of essentials procured for distribution to vulnerable communities and concealment of donations by some members of district-level COVID-19 Task Forces.   There were also a report of Uganda’s diplomats to the Netherlands plotting to steal COVID funds by distributing it among themselves instead of giving it to stranded citizens.

In light of the relatively high incidence of corruption in Uganda, the results of a survey done by the country’s statistics body, the Uganda Bureau of Statistics (UBOS), indicated that as many as 74% of Ugandans believed that similarly “the COVID-19 funds and relief would not reach them because it will be stolen by ‘powerful people’ popularly christened as the ‘mafia’.

Abuse by law enforcement agents/exacerbation of authoritarian tendencies/power grabs

1. Abuse by law enforcement agents
   Uganda’s response to the COVID-19 pandemic was characterised by elements of excesses which scholars such as Namwase and Nkuubi attribute to the militarization of the response. This approach reportedly not only side-lined civilian institutions, but also resulted in a violation of human rights, it having been characterised by acts of brutality against citizens in the form of ‘whipping, shooting and snooping’ during enforcement of night-time curfew,  and in order to chase people off the streets. Some of these events reportedly resulted in death in some cases.

   To avoid accountability, security officers targeted and brutalised journalists trying to cover their excesses. In some of the documented incidents, the culprits were tried and convicted and at one point, an apology was issued by army officials.

   Such developments, it is noted, go to confirm the continuing tendency of Uganda’s security forces to employ ‘excessive and entrenched use of force.’ Such acts condense positive aspects such as ‘balanced-civil military relations’ which was exemplified by the establishment of a COVID-19 task force which, although headed by the army, worked with and was intended to support the Ministry of health.

2. Exacerbation of authoritarian tendencies
   As the discussion in Section A shows, Uganda took a distinct approach of proceeding under the Public Health Act posturing a formal leadership of the response by the Ministry of Health. There was a mixture of views regarding whether or not this was a proper course of action in view of the implications of the measures adopted for human rights. At the polar end of the debate was a suggestion that the threat posed by COVID-19 and the appropriate measures that needed to be taken a warranted a declaration of a state of emergency. Karumba Busingye noted, for instance, that such a course of action would allow the state “greater latitude in responding to the public health challenges posed by COVID-19” seeing that some of the measures warranted suspension of some rights and liberties which could only be done constitutionally in keeping with Articles 46 and 110 of the Constitution.  Without declaring a state of emergency, noted Kabumba, the measures adopted by Uganda were “of doubtful legality.” His recommendation was that the government needed to “ground its response to the…crisis on a firm constitutional footing” by declaring a state of emergency. This was also believed to be a better way of ensuring heightened protection of human rights and accountability of authorities through the constitutional safeguards in place to regulate the state of emergency.

   In the heat of that debate, the country’s Attorney General was quoted informing Parliament that the decision to declare a state of emergency was reserved for ‘when it is absolutely necessary, which, at the time, it was not. He instead noted that the measures adopted by Uganda reflected an incremental approach intended to contain the pandemic whilst observing its trends in order to determine the necessity of resorting to declaring a state of emergency which, he noted, would pose serious consequences for human rights.

   The Advocates without borders (ASF) notes that the developments in Uganda at the time constituted a de facto state of emergency which was simply not declared in order to centre the COVID-19 response around the person of the President who worked without the necessary checks and balances by key institutions such as Parliament. In this regard, they flag the fact that “most of [the] measures [were] implemented on the sole basis of the President’s directives, even before being enacted in the Health Ministry’s Rules and Orders. For instance, the March 18^th President’s directive only became a ministerial rule, published in the official gazette, on March 24. Yet, the President’s public announcements are not legally binding.”   

   More traces of evidence of the personalization agenda are visible in the language used in the communications issued by the State House in the form of reports on the President’s role in fighting the pandemic. On 22 April, for instance, before the battle on COVID could objectively be said to have registered notable milestones, the President’s Publicist, published an article “COVID-19 Fight Confirms Museveni Leadership Credentials” which could possibly be perceived as a campaigning line for the Presidential elections which were due in January 2021. The trend was also visible in several of the nation addresses made by the President and telecast live on mainstream media platforms, at which he spent long hours briefing Ugandans about the steps taken and progress achieved in the ‘fight’ against COVID-19.

   The President would later emphasize (both explicitly and implicitly) the linkage of the successes in fighting the pandemic, to his visionary leadership and the charisma and professionalism of the Uganda Peoples’ Defence Forces (UPDF) under his command.  Notably, the distribution of essential supplies such as food reliefs was done by a unit of the UPDF known as the local defence supervised by commissioned officers with local government structures largely sidelined.

   Such an approach could potentially entrench authoritarianism in a country that is still an evolving democracy and largely performs poorly in objective indices such as the 2020 World Justice Project Rule of Law Index which ranks the country in 117 positions out of 128 countries globally.