Christopher Mbazira
 LLB (Makerere) LLM (Pretoria) PhD (Western Cape)
 Associate Professor and Acting Principal, School of Law, Makerere University; Co-ordinator of the Public Interest Law Clinic, Makerere University, Kampala, Uganda
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 Teddy Namatovu
 LLB (Makerere) LLM (Pretoria)
 Programme Intern, Better Migration Management, Deutsche Gesellschaft für Internationale Zusammenarbeit (GIZ), GmbH Ethiopia and Djibouti
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 Edition: AHRLJ Volume 18 No 1 2018
  Pages: 75 - 99
 Citation: C Mbazira & T Namatovu ‘Civic space and human rights advocacy in the extractive industry in Uganda: Implications of the 2016 Non-Governmental Organisations Act for oil and gas civil society organisations ’(2018) 18 African Human Rights Law Journal 75-99
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This article was developed from a research report entitled ‘Assessing the implications of the Non-Governmental Organisations Act, 2016 on NGOs working on natural resource governance in Uganda’, commissioned by Global Rights Alert (GRA). Comments and suggestions made by Winfred Ngabiirwe and James Muhindo on the research report are acknowledged.


The discovery of oil and gas in Uganda has been identified as having the potential to transform Uganda’s economy, moving Uganda away from a predominantly low-income to a competitive upper-middle-income country by 2040. However, this discovery has precipitated human rights violations and abuses, especially in the Albertine Graben, where the oil exploration activities are concentrated. For example, the acquisition of land for oil-related infrastructure has changed the patterns of use of land and water, and people are already experiencing negative effects, such as a loss of livelihood and resources. Civil society organisations aimed at addressing these human rights issues in the sector face a number of hurdles despite constitutional protection and ratification of international instruments that guarantee fundamental rights for CSO operations in the country. Currently, CSOs are governed by the recently-enacted Non-Governmental Organisations Act of 2016. This Act is accompanied by other laws, such as the Public Order Management Act. These laws have created several stumbling blocks that have frustrated CSO efforts in the fulfilment of their mandate. The weight of these laws is especially felt by NGOs working on sensitive issues such as natural resource governance. The article analyses the impact of the legislative framework governing CSOs, specifically the NGO Act, on organisations addressing or working on oil and gas issues in Uganda. In addition to the NGO Act, other pieces of legislation that have a direct bearing on the activities of these organisations are also analysed.

Key words: freedom of association; civil society; extractive industry; non-governmental organisations; civic space

1 Introduction

Notwithstanding Uganda’s constitutional provisions and the ratification of several international human rights instruments providing for freedom of expression and association, civic space in the country has constantly been under threat. Civil society operations in the country are continually affected by the enactment of legislation that either directly or indirectly affects civil society work. Legislations such as the Public Order Management Act (POMA) are used by security agencies to frustrate civic engagement, in some cases by deploying security personnel to disperse gatherings and arrest those involved. This state of affairs may be understood in the context of the global war against terrorism, which has seen many governments use terrorism as a pretext for undermining civil liberties. The Arab Spring uprisings, which saw the fall of governments in Egypt and Tunisia, pushed governments, especially in Africa, into a frenzied restriction on freedom of assembly and expression.

It is in this spirit that the promulgation of the Non-Governmental Organisations Act of 2016 (NGO Act) was received by civil society organisations (CSOs) in Uganda. Many CSOs perceived the law as a ploy by the state to tighten its grip on civil society engagement in the country. From its inception as the NGO Bill, the proposed law received a negative response from CSOs, with a number of them publishing position papers challenging some clauses and the spirit of the law.1 The objectors urged government to ensure that the proposed law conformed to internationally-acceptable standards on freedom of expression and association.2 CSOs called for the revision of several clauses in the Bill. Nonetheless, although some contentious provisions eventually were removed, the Act as it currently stands continues to present a threat to the operations of CSOs.

In the civil society sector the organisations that have been most affected by state regulation include those working on issues of anti-corruption; electoral democracy; governance; and human rights, as well as those working on accountability and social justice issues in the extractive sector. This article is concerned with CSOs working on issues relating to oil and gas. These CSOs have committed their time and resources to promoting access to information for citizens in order to promote citizen participation in shaping and monitoring sector developments. In addition to informing the policy and legal framework for the oil and gas sector, a number of organisations have been involved in advocacy for fair and just acquisition of land for sector activities, environmental protection, as well as advocacy for transparency and accountability in the management of revenues from the oil sector.

The Ugandan government in 2006 announced that large deposits of oil had been discovered in several parts of the country, most of it in the Albertine region in Western Uganda.3 Presently, three oil companies, Total, CNOOC and Tullow, have production licences, and control 54,9 per cent, 33,3 per cent and 11,76 per cent respectively of the upstream oil sector. Nonetheless, the oil sector has also been characterised by controversy arising from government secrecy regarding matters in this sector, including the terms of the concessions to oil companies; the exact extent of deposits; the impact on the environment; the role of players in the sector; and revenue so far collected and how these revenues are managed. Other concerns relate to the acquisition of land by both the government and private sector to facilitate oil activities and revenue-sharing with local communities. Indeed, negative experiences of other African countries has encouraged CSOs in Uganda to raise public interest in this sector, albeit causing some discomfort on the part of government. For this reason government has moved fast to regulate the activities of CSOs in this sector, sometimes by imposing ad hoc regulations applicable only to organisations working on oil and gas and in the oil-rich region. The 2016 NGO Act is viewed as part of the range of regulatory laws that could negatively impact on the work of CSOs working on oil and gas.

2 Context of oil and gas and civil society work

Mineral wealth, including oil and gas (also commonly known as the extractive sector), for some time has been viewed as a vehicle through which countries can attain economic development and overcome poverty. In fact, the extractive sector in Uganda has been identified by government as an important segment of the economy contributing to the transformation of the country. The flagship Vision 2040 has earmarked oil and mineral resources as critical in changing ‘the country from a predominantly low income to a competitive upper middle income country within 30 years with a per capita income of USD 9 500’.4

However, the paradox is that, although there are exceptions such as Botswana, mineral wealth in Africa has not brought much-needed economic development. It has, for instance, been demonstrated that some countries with vast mineral wealth, such as the Democratic Republic of the Congo (DRC), Chad and Sudan-Khartoum, are among countries at the bottom of the United Nations Development Programme (UNDP) Human Development Index.5

The paradox, dubbed ‘the oil curse’, has been associated with a number of factors, the most important of which is bad resource governance.6 Among others, bad governance in the sector has been characterised by a lack of transparency at different levels, which the World Bank has described to include (i) the award of contracts and licences; (ii) the regulation and monitoring of operations; (iii) the collection of taxes and royalties; (iv) revenue management and allocation; and (v) the implementation of sustainable development policies and projects.7 It is as a result of this that since the 1990s much time and resources have been invested in campaigns aimed at promoting transparency in the oil sector and putting in place norms and standards for this purpose. The justification for taking this direction came after a number of civil society expositions and the publication of corruption and abuse in the extractive sector.8 These campaigns were successful to the extent that international financial institutions such as the World Bank included conditions relating to transparency as prerequisites for funding some extractive-related projects.9

In addition to the governance deficits, but also as a result of these, activities in the extractive industry have given rise to a number of human rights issues. There have been issues around economic, social and cultural rights as well as civil and political rights, and issues that have been viewed from the perspective both of violations by state actors and abuses by non-state actors. It has indeed been asserted that oil, gas and mining industry operations too often go hand-in-hand with allegations of human rights abuses.10 According to Oil Change International:11

    There is an alarming record of human rights abuses by governments and corporations associated with fossil fuel operations, resulting in appropriation of land, forced relocation, and even the brutal and sometimes deadly suppression of critics. In addition to strong evidence for a ‘repression effect’ from oil production, in which resource wealth thwarts democratisation by enabling governments to better fund internal security, dependence on oil is associated with a higher likelihood of civil war. Additionally, oil production has been found to negatively impact gender equality by reducing the number of women in the labor force, which reduces their political influence.

To prove the above, cases of human rights violations associated with oil are mentioned, including those from Nigeria and Myanmar, but the United States of America and Canada as well, which demonstrates that this problem is not restricted to developing countries.12 The Energy Justice Network on its website lists a total of 29 conflicts associated with oil from countries across the world.13 The Niger Delta in Nigeria stands out in Africa as an area where oil activities have wrecked people’s lives and brought about untold suffering resulting from serious environmental degradation, unlawful evictions and the destruction of houses and food gardens, as well as deaths.14 The killing of Ogoni human rights activist Sarowiwa by the Nigerian government under Sani Abacha is fresh in the minds of many.

A 2016 report published jointly by Publish What You Pay (PWYP) and Civicus paints a grim picture for activists working on natural resource issues and highlights the dangers they face.15 The report reveals the number of reported killings associated with advocacy for natural resources justice, numbering 185 in 2015, compared to 88 in 2010. The total number between 2010 and 2015 stands at 753.16 Means used to restrict the work of activists, according to PWYP and Civicus, include the law and extra-legal means. The legal means include regulations that suffocate civil society; tight control of public space; and the criminalisation of activists. The extra-legal means include vilifying those who speak out; unwarranted surveillance; and intimidation and violence.17

It is on the basis of the above that human rights defenders have embarked on work in this sector with the aim, according to the Eastern and Horn of Africa Human Rights Defenders Project, of seeking to influence both the regulatory frameworks governing the extractive sector as well as public discourse. This purpose in itself influences policy making, raising the alarm when actors diverge from their responsibilities or when abuses go unaddressed.18 Indeed, the work of human rights defenders is beginning to pay off, as is evident from the recent suspension of Azerbaijan from the Extractive Industries Transparency Initiative (EITI) for failing to lift restrictions on civil society freedoms. 19

In Uganda, civil society organisations working in the oil and gas sector have organised themselves in coalitions such as the Civil Society Coalition for Oil (CSCO), which plays a significant role in human rights advocacy in the oil and gas sector. The umbrella organisation fulfils its objectives mainly through advocacy; capacity building; research; and engaging with oil companies and government departments and communities in areas directly affected by oil exploration.20 Action Aid has established a website on ‘Oil in Uganda’ which is dedicated to providing necessary and significant information to the general public on oil and gas activities in the country.21 CSOs have also been very instrumental in legislative advocacy through making submissions on various laws before they are passed into law, such as the comments offered on the National Environment Bill by CSCO. 22

2.1 Oil and gas: Ugandan context

In Uganda, oil exploration began as early as the 1950s but was halted following a sharp fall in the price of oil, only to be aggressively resumed in the mid-2000s. The 2000s were an incentive for oil exploration as one witnessed a sharp and steady rise in the price of a barrel of oil.23 The first discoveries were made in 2006, and since then government has made strenuous efforts to establish the requisite legal and administrative infrastructure to enable it to produce approximately 1,4 billion barrels estimated to be recoverable out of the total estimate of 6,5 billion barrels that have been discovered to date.

In December 2013 the Uganda Human Rights Commission (UHRC) published a report on what it described as emerging human rights issues in the Albertine oil region.24 The Commission report indicates that its publication followed investigations conducted in the districts of Hoima, Bulisa, Nebbi, Nwoya and Amuru, prompted by various petitions alleging human rights violations in these districts. The Commission found issues with respect to compensation by government to those whose land had been expropriated to pave the way for the oil exploitation and processing activities, especially in Hoima District. In some respects the compensation rates used were inadequate and in some places in Nebbi the land was taken away before compensation had been finalised.25

The UHRC also took issue with regard to the extent to which people were consulted and involved in making decisions on matters that affected them, thereby asseting the right to participation.26 There were participation deficits in determining the compensation rates as well as with respect to the choice of services that some corporations provided as part of corporate social responsibility. Equally, the traditional institutions in the area, including the Kingdom of Bunyoro, had not been involved in the oil activities which, according to the UHRC, implicated a violation of the right to self-determination. The Commission examined this issue from the perspective of the right of peoples to dispose of natural resources, stating: 27

    It is important that people are not denied meaningful say in government and in decisions on disposal and benefit of natural resources. The African Commission clearly underscored the obligations of the states to take precautionary steps to protect their citizens to exercise the right to freely dispose of wealth and natural resources. It was held that the non-participation of the Ogoni people and the absence of any benefits accruable to them in the exploitation of oil resources by the Nigerian government and the oil companies was a breach of its obligations under the ACHPR to exercise this right in the exclusive interest of the people and to eliminate all forms of foreign economic exploitation.

Similar deficits were found with respect to the related right of access to information.28 In some cases people were not given information as to how their compensation had been determined. The authorities also were not adequately responding to requests to access information as required by law.

Other human rights violations identified by the UHRC included a violation of the right to a clean and healthy environment as a result of the pollution of the environment by dust, noise and smells, among others. With respect to workers’ rights there were accusations of discrimination against the locals as far as access to work was concerned, as most of the employment positions were given to persons from other parts of the country. Related to this matter was the limited monitoring of labour standards at the work sites, in some cases because of a denial of access of labour inspectors to the sites.29

The Commission found a number of issues related to the right to land, including the selling off of communal land without following proper procedures; a lack of clarity over the government ban on acquisition of land titles in the Albertine Graben; inadequate compensation that did not take into consideration land use rights; delayed restoration of the derelict land; and the alleged forced signing of compensation disclosure agreements by some residents. 30

The above concerns recorded by the UHRC confirm similar concerns raised over the years by a number of civil society actors. Surveys conducted by Global Rights Alert (GRA) further indicate how the livelihoods of people affected by the developments in the area have been destroyed. In their reports,31 the organisation has documented several violations and challenges such as limited and/or biased information; a lack of opportunities for participation; and limited access to justice.

It is against this background that the impact of the 2016 NGO Act on CSOs in the oil sector should be understood. Nonetheless, the impact cannot be fully understood without an understanding of the national and international standards and rights relevant for CSOs.

3 Civic engagement and human rights standards

The rights of civil society should be understood in the context of three fundamental freedoms, namely, expression and association and assembly. It is on the premise of these freedoms that different civic formations, including non-governmental organisations (NGOs) and community-based organisations (CBOs), operate and on which they base their existence as a matter of right. Indeed, freedom of expression has been highlighted as the cornerstone of democracy as the latter essentially is based on free debate and open discussion.32 Democracy demands that every citizen is entitled to participate in democratic processes to enable him or her intelligently to exercise the right of making free choices and generally participate in the discussion of public matters.33

Freedom of expression and association are rights recognised by the international and regional human rights framework. The International Covenant on Civil and Political Rights (ICCPR) recognises the right of everyone to hold opinions without interference.34 The right to freedom of expression entails the right to seek, receive and impart information including ideas of all kinds in any form.35 The ICCPR also recognises the right to freedom of peaceful assembly in article 21 and freedom of association in article 22. These rights are also protected in the African Charter on Human and Peoples’ Rights (African Charter).36 Suffice to note that these rights are not absolute and can be limited for purposes of security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others.37 However, the restrictions placed on these rights must be prescribed by law and must be necessary and justifiable in a democratic society. 38

The Ugandan Constitution is in line with the ICCPR and the African Charter in as far it protects the above rights in article 29 and prescribes allowable limitations on derogable rights.39 Notwith-standing these constitutional guarantees, civic space in Uganda is circumscribed with CSOs encountering a myriad of obstacles in the course of their operations. These obstacles cumulatively have shrunk the space within which the CSOs operate. The obstacles, among others, stem from legislation that both directly and indirectly govern the activities of CSOs. The impediments in the law include hurdles in the form of procedural setbacks that affect efforts by CSOs to foster democratic governance. The weight of overcoming these hurdles primarily is felt by pro-democracy and anti-corruption CSOs, as well as those working on crucial and sensitive issues such as oil and gas that call for accountability from government.40 This kind of working environment has orchestrated a difficult and suspicious relationship between the organisations and the state.41 There is limited co-operation between the government and organisations working in areas that demand accountability from the state.42 Indeed, the relationship of suspicion has seen CSOs accuse government of being responsible for over 13 office break-ins that some NGOs, especially around Kampala, have suffered in recent times.43

4 Legal regime governing civil society organisations in Uganda

Prior to the enactment of the 2016 NGO Act CSOs were governed by the Non-Governmental Organisations Registration Act, an Act that had been in force since 1989, undergoing major amendment in 2006. The 1989 Act as it stood was specifically intended to provide for the registration of NGOs. All NGOs were required to register with the National Board of Non-Governmental Organisations (NGO Board) prior to their operation. The rest of the Act was focused specifically on the establishment of the Board and providing for its functioning. The 2006 amendments were intended to provide for closer monitoring of NGOs by the state. To this end the composition of the NGO Board was reviewed to include state security representatives from the internal security organisations (ISOs) and external security organisations (ESOs).44 The presence of these security officials on the Board was perceived to subject CSOs to continuous and intrusive monitoring by the state. This situation had the potential of coercing self-censorship in calling for state accountability and of curtailing their freedom of expression.45 The 2006 amendment also introduced vague provisions that gave the NGO Board discretionary powers such as the refusal to register an organisation if its constitution was in contravention of the law.46 It has been argued, however, that the Act also introduced some progressive provisions, which included providing for gender representation on the Board and giving NGOs automatic legal personality on registration.47

The 2006 amendment and its attendant regulations posed serious challenges to CSOs and were the subject of a court battle challenging their constitutionality.48 However, the constitutional petition challenging the expunged law and its regulations remained unheard in the Constitutional Court and undecided since its filing in 2009.49 In these circumstances a new law was proposed in 2015.50 Judgment was delivered in April 2016, a month after the NGO Act 2016 had been passed.51 By this time the case was moot.

The government, through the NGO Board, justified the Bill on the ground that it was intended to effect the Non-Governmental Organisation Policy of 2012, which was adopted after promulgation of the 1989 Act and its 2006 amendments, which called for harmonisation.52 However, CSOs were of the view that the Bill to some extent was inconsistent with the spirit of the policy, which was chiefly concerned with the promotion and acknowledgment of the role of NGOs.53 The Bill was perceived as being intended to stifle rather than promote civil society work. For instance, it was felt that the Bill had been designed to legislate the draconian provisions of regulations promulgated after the 2006 amendment.

Resilient civil society efforts called for the revision of several provisions in the proposed law. This included clause 33(1)(d) of the Bill that provided for the revocation of a permit of any organisation if in the opinion of the NGO Bureau it was in the public interest to do so.54 Following stern lobbying efforts by CSOs, a number of provisions were later removed from the proposed legislation when it was passed by Parliament. Nevertheless, the Act as passed still poses a number of threats to the operations of CSOs, more especially to those pro-democracy organisations that seek accountability from the government and those working in sensitive areas such as the oil and gas sector.

4.1 NGO Act 2016

Unlike the repealed legislation the 2016 Act has a wide array of objectives, which include providing a conducive and enabling environment for the NGO sector; strengthening and promoting the capacity of NGOs and their mutual partnership with the government; making provision for the corporate status of the National Bureau of NGOs (Bureau); and providing for its capacity to register, regulate, co-ordinate and monitor NGO activities.

Section 7 of the Act grants wide and discretionary powers to the Bureau. These include the power to discipline an NGO by ‘blacklisting’ or ‘exposing an affected organisation to the public’ or even the revocation of the permit of an organisation. The Act does not define what is meant by ‘blacklisting’ or how long blacklisting as a proposed form of disciplinary action should last and its implications for the organisation affected. Furthermore, the Act and its proposed regulations do not specify at what stage each of the powers of the Bureau specified under section 7(1)(b) of the Act can be invoked or what should be adopted as a disciplinary form of action of last resort. Rather, these powers are open to be exercised by the Bureau at its discretion at any given time as a disciplinary measure and, based on the Bureau’s discretion, it can exercise any of its powers under section 7, including the revocation of an organisation’s permit at any time. Equally, the power of the Bureau to expose an affected organisation to the public has the overall potential effect of discrediting CSO efforts in seeking accountability from the state or in advocating human rights.

Unlike the expunged legislation where state security officials of ISOs and ESOs were members of the NGO Board, the new Act has moved these officials to the district and sub-county committees. Sections 20(2)(d) and 21(2)(d) of the Act respectively provide for the presence of state security officials on district non-governmental organisations monitoring committees (DNMCs) and sub-county non-governmental organisations monitoring committees (SNMCs). The SNMCs have power under section 20(3)(e) to report to DNMCs on matters of organisations in the sub-county. The DNMCs, in turn, monitor and provide information to the Bureau regarding the activities and performance of organisations in the district under article 20(4)(f). Suffice to note, most activities by NGOs working on oil and gas issues take place at the community level in the districts and sub-counties in the Albertine Graben. Therefore, the presence of state security officials on DNMCs and SNMCs creates a platform for continuous security-based monitoring of NGO activities by the state. This brings into issue its potential impact, considering the perception by the public of security agencies. It creates the potential for the security apparatus to be used to coerce CSOs and even force them into self-censorship in the exercise of their freedom of peaceful assembly and expression due to fears of reprisal.

In addition, the Act appears to create a long and tedious registration process under part VIII. This requirement has the potential of making registration of new NGOs unnecessarily difficult and could stifle operations of NGOs and CBOs working in various parts of the country. During the application and issuing of a permit for an NGO, the Act requires an organisation to specify the areas under which it will carry out its activities, as well as the geographical area of coverage of the organisation. This implies that an organisation cannot operate or carry out any of its activities outside the areas prescribed in its permit. Moreover, the section ignores the nature of NGO work, of which for the most part the activities and areas of operation are flexible, affected by the project-based nature of funding. This section has the potential to limit geographically NGO operations as well as to curtail their constitutionally-established freedom to work in any part of the country. The section also creates a protracted requirement that every time an NGO commences a new project which requires the organisation to expand its areas of operation, it should go through the process of acquiring authorisation from the Bureau through the DNMC of the specific area, as is seen in section 44(b).

The Act further reinforces the state’s grip on CSOs by providing for inspections of NGO premises and their archives. The Act grants powers to an inspector, after giving notice of at least three working days to an organisation,55 to inspect the premises of the organisation and to request ‘any information’ which appears necessary ‘for purposes of giving effect to the Act’. The inspection powers under section 41 of the Act are wide and discretionary and present the effect of unwarranted searches of NGOs working on sensitive areas such as oil and gas. These powers equally have the effect of establishing an opening for unfounded disciplinary action against these organisations and which is aimed merely at crippling their activities.

The Act in section 44 creates vague and open-ended ‘special obligations’ on the part of NGOs that can be given any convenient interpretation by the state. Some of these obligations include the prohibition of organisations from engaging in any acts that would be prejudicial to the security and laws of Uganda under section 44(d) of the Act. The Act equally prohibits organisations from engaging in any act which is prejudicial to the ‘interests of Uganda and the dignity of the people of Uganda’ in section 44(f). The effect of this provision is discussed in part 5 below.

The Act further obliges organisations to be non-partisan in section 44(g). This obligation equally poses a threat to NGO activities and has the potential to curtail meaningful collaboration between NGOs and pertinent opposition stakeholders as these collaboration efforts will be viewed as ‘political’ or ‘partisan’.

4.2 Public Order Management Act

In addition to the principal NGO legislation, recently retrogressive and draconian legislation, at the very least in their implementation, have been adopted.56 The legal regime has created an environment where CSOs cannot objectively interrogate issues without fear of reprisal or prosecution. Among these is the POMA, which in itself presents impediments to the exercise of the right to freedom of peaceful assembly. A number of activities by CSOs involve what would constitute a public meeting under the POMA.

The POMA has generally been criticised for its failure to create a presumption in favour of the exercise of the right to freedom of peaceful assembly or the duty of the state to facilitate peaceful assemblies. The Act does so by creating a de facto authorisation procedure for peaceful assemblies, which is unnecessarily bureaucratic with a broad discretion for the state to refuse notification.57 The Act further grants law enforcement authorities the mandate to use force to disperse assemblies, without proper guidance for alternative methods of managing public order disturbances.