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

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

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.