Legal Restrictions and the Shrinking Civic Space: A Comparison of the Situation for Ugandan NGOs in the Oil and Gas Sector Between 2012 and 2018

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Legal Restrictions and the Shrinking

Civic Space

A Comparison of the Situation for Ugandan NGOs in the Oil and

Gas Sector Between 2012 and 2018

Liina Tarvainen

Human Rights Bachelor of Arts 15 credits Spring 2020

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Abstract

Organizations in the Ugandan civil society sector have faced legal and extra-legal restrictions on their operations, a phenomenon referred to as the ‘shrinking civic space’ which has been on the rise globally. The Ugandan government has taken several measures towards controlling the operational space of, especially organizations working on issues of human rights, anti-corruption, electoral democracy, and social justice and accountability issues in the oil and gas sector. This thesis presents a within-case comparison over time, by analyzing the shrinking civic space of non-governmental organizations working in the oil and gas sector in Uganda between years 2012-2018. The aim is to review the changes of the national legal framework that took place in 2013, 2016 and 2017, and compare the extra-legal and legal restrictions that oil and gas NGOs have faced before and after the alterations. This study finds that while the legal restrictions imposed in 2013-2017 went further than the laws previously in place, the NGOs in the oil and gas sector already faced similar restrictions before – implying that the implementation of the new laws was part of formalizing restrictions of the civic space which were already practiced.

Keywords:

Shrinking Civic Space, Uganda, Non-Governmental Organizations, Oil and Gas Sector, Structural Restrictions, Democratization

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1. Introduction

1.1. Introduction to Topic

For the purposes of this study, non-governmental organizations (NGOs) will be referred to as “voluntary, not-for-profit citizen groups, working at the local or national level with some kind of public purpose; they seek to work for the common interests of a particular group or sector” (Van der Borgh & Terwindt, 2012:1068). Globally, there has been an increasing and alarming trend of clamping down on civil society actors, such as NGOs’ spaces, under the disguise of securing government’s sovereignty, combating terrorism, and safeguarding the public from NGOs ‘bad governance’ (ICNL & WMD, cited in Nassali, 2014). Uganda is among the countries that has in the recent years tightened its grip on the civil society in the country. This phenomenon is alarming, namely because NGOs play an important role in advancing the realization of human rights, and enhancing the democratic process in Uganda, and universally. Additionally, NGOs advocate for law reform and social issues, create platforms for debates, raise civic awareness, and formulate policies, among many other things. (HURINET-U, 2006:4).

Between 2013-2017, three alterations in the national legal framework were enacted by the parliament of Uganda. These amendments had an effect of narrowing down the legal space for NGOs. The first new law was the Public Order Management Act (POMA) which came into force in 2013 and granted the police with wide powers of prohibiting public meetings from taking place, as well as powers to decide suitable locations for the public meetings. The second and third legal alterations were the Non-Governmental Organisations Act 2016, and the Non-Governmental Organisations Regulations 2017 that together, provide for a long and tedious registration process for NGOs as well as restrict their fundamental freedom of association. (ICNL, 2020).

The NGOs that have been most affected by the state regulations and the shrinking civic space in Uganda are those that work with anti-corruption and pro-democracy as well as with issues deriving from the sensitive oil and gas sector, all areas which call for accountability from the state (Mbazira & Namatovu, 2018:84). The measures taken to shrink the civic space need not be legal, and the extra-legal means that restrict the work of NGOs include unwarranted surveillance, vilifying those who speak out through intimidation and threats (PWYP & CIVICUS, 2016:10). As working with human rights issues connected to natural resource exploitation has been proven to be the most

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2 dangerous for activists (ISHR, 2019), it is no wonder that the NGOs working in the oil and gas sector in Uganda have faced both, legal and extra-legal measures in the course of their work. All things considered, the focus in this thesis will be on the different restrictions that the oil and gas NGO sector has faced in Uganda before and after the legal alterations took place. More precise aim and research questions will be presented in the next section.

1.2. Aim of the Study and Question Formulation

This thesis’ aim is to study the operational environment of the NGOs working in the oil and gas sector in Uganda as a case of shrinking civic space. It will do so by a within-case comparison over time, where the civic space of 2012 will be compared to that of 2018. The aim is to study the phenomenon of shrinking civic space by considering both, the legal restrictions, and the extra-legal measures that the NGOs in the oil and gas sector have faced.

The research problem of this thesis arises from the vulnerable situation that many NGOs in Uganda face. The government of Uganda has recently enacted several restrictive laws that clamp down the civil society actors’ rights to assemble, associate and express freely. The NGOs focusing on issues deriving from the oil and gas sector are in an especially vulnerable situation due to the sensitive nature of their work. Thus, the comparative aspect of this thesis between 2012 and 2018 derives from the legal alterations that took place in 2013, 2016 and 2017 and had a specific effect on the civil society. The legal frameworks governing civil society, before and after the cluster of legal changes took place, will be examined. Thereafter, the analysis’ focus will be on describing and comparing the operational environment for NGOs in the oil and gas sector from 2012 to 2018, namely before and after the legal alterations.

The thesis intends to answer these two research questions: Research Question 1:

How has the structural operational environment changed for NGOs from 2012 to 2018 in Uganda? Research Question 2:

What are the legal and extra-legal restrictions that NGOs working in the oil and gas sector in Uganda have faced, and what are the potential implications for the democratization process of the country?

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1.3. Relevance to Human Rights and Previous Research

The phenomenon of the shrinking civic space is highly relevant to the study of human rights for several reasons. First, the challenges faced by civil societies are directly connected to human rights as stated in the international law and the three rights most explicitly limited from civil society are the freedom of association, assembly, and expression. Simultaneously, international, and national human rights procedures and arenas function as “tools to counter pressure” on this threatened space. (Buyse, 2018:967). Thus, the problem of the shrinking civic space is twofold, since is does not only violate the NGOs right to defend human rights (The Declaration of Human Rights Defenders), but also, it weakens the protection of other human rights that the contribution of the NGOs work could help guarantee. In other words, and in the context of this study, many rights of the affected people of the oil and gas industries in the Albertine Graben are less protected due to the restrictions imposed on these oil and gas NGOs and their reduced ability to engage.

Secondly, what makes the oil and gas NGO sector specifically vulnerable to human rights violations and severe restrictions is the fact that the oil industry is controlled by huge actors such as the state agencies and powerful transnational corporations. In addition, this industry is globally characterized by severe rights violations such as land grabbing and environmental degradation. (Mbazira & Namatovu, 2018:96). As documented by a UN Special Rapporteur in 2015, natural resources present somewhat of a dilemma and are potentially entailing conflict, even more so because states are “typically eager to shape their legal and practical environments in ways that encourage investors to exploit natural resources” (A/HRC/29/25). This has in some instances led to reported cases of state harassment of civil society actors that seek to investigate violations occurring in connection to the resource extraction (A/HRC/29/25). Thus, there are reasons to believe that the shrinking civic space might affect NGOs working on the oil and gas sector particularly hard in comparison to the civil society in Uganda at large.

Over the past decade, the issue of shrinking civic space has garnered increased attention. The literature on the shrinking civic space can be divided in three sets of literature. The first one being ‘war on terror’ and impacts on the counter-terrorism measures, widely spread after the ‘9/11’. This body of literature reveals that the vague language in which many of the new policies and provisions were launched to prevent future terrorist attacks, have had a major negative impact on NGOs. Human rights lawyers and civil society activists such as Cordaid (2008), McMahon (2007), and Sen and Morris (2008) have observed that these broad mandates in the provisions have led to

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4 counterproductive measures against civil society actors (Cordaid, McMahon, Sen & Morris, cited in Van der Borgh & Terwindt, 2012:1067).

The second body of literature consists of ‘foreign aid for civil society’, which is concerned about the donor dependency that often creates problems in terms of lack of autonomy, and access to resources. While development aid creates problems by being connected to the geopolitical interests or concerns of security of the donor-countries (see Fowler, 2005; Petrík, 2008), another problem derives from the restrictions on foreign funding that states have put in place for their civil societies. Indeed, Buyse (2018) is among the scholars that has recognized the scope of this problem since by the time of his writing, more than 50 states had restricted the flow of money from outside. Christensen and Weinstein (2013); together with Dupuy, Ron and Prakash (2016) have studied the circumstances and motives of governments restricting the money in-flow, and found that while international motives also count, domestic reasons are of paramount in states motives to restrict the international support for civil society.

Lastly, a body of literature in which this thesis locates contributes to the understanding of the several ‘ways of restrictive measures’ that civil society actors face in the course of their work. The ‘backlash’ of civil society has been considered as criminalization which ranges from a variety of practices such as stigmatization in the press and police violence to criminal prosecutions (see Gershman and Allen, 2006; Elone, 2013). Scholarly literature focusing on the shrinking civic space in the Ugandan context is relatively new, and much of the literature comes from the affected civil society actors themselves. However, scholars such as Nassali (2013, 2014), Wanyama (2016) and Khisa (2019) have contributed to the literature of the Ugandan state’s and civil society’s relationship together with restrictive measures that the former has taken to restrict the civic space of the latter.

1.4. Analytical Framework and Material

Material analyzed in this thesis is a combination of scholarly literature and NGO reports, both of which have contributed to the broader understanding of the shrinking civic space in the Ugandan context. The two main reports that will be analyzed with a within-case comparison are EHAHRDP’s research conducted in 2012, in which they contribute to the understanding of the struggles that oil and gas NGOs have faced in the grassroots level, and Mbazira and Namatovu’s (2018) study where they look at the structural/legal restrictions of NGOs in the oil and gas sector. Legal operational

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5 environment for NGOs will be reviewed, to be able to study the connection between restrictions of the NGOs before and after the legal alterations took place in 2013-2017.

1.5. Delimitations

Studying the restrictions faced by the organizations working in the oil and gas sector in Uganda provides for an interesting research topic since the oil and gas sector is comparatively new in the country, and the issue of shrinking civic space is current. Instead of conducting a within-case comparison of the restrictive measures on the oil and gas NGOs between time, another interesting research aspect could have looked at how NGOs working with less politically charged issues might have been affected differently. However, this approach would probably have broadened the research beyond the scope of a bachelor thesis.

Due to limited space, not all extra-legal and legal measures that have been part of shrinking the civic space for NGOs working in the oil and gas sector in Uganda could be analyzed in this thesis. In order to give specific answers to the research questions, this thesis will draw on analyzing the measures that will best provide the means of comparison for the restrictions that have taken place before and after the legal alterations.

This thesis does not aim at testing a specific theory to a phenomenon, but rather uses a combination of a theoretical framework of democratization theory and human rights framework as a basis and means to deepen the understanding of a shrinking civic space in the Ugandan oil and gas context. The comparative method in the analysis of this thesis has had a more important role. Other theoretical approaches could have been opted to use instead, such as the social movement theory that scholars such as Daniel and Neubert (2019) and Isgren (2018) have found applicable in developing understanding of civil society’s role in politics in the African continent. However, for this research, democratization theory provides a better standpoint for studying the shrinking civic space while enabling to connect it to the wider political realm of the country.

The limitations of this thesis include the limited amount of scholarly literature written about the grassroots experiences of Ugandan NGOs that face restrictions on their operations due to the phenomena of shrinking civic space. Because of the difficult situation that human rights defenders (HRDs) in the oil and gas sector face, as well as digital hacking that has occurred, interviews were decided not to be undertaken for the purposes of this study. However, the lack of scientific sources

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6 in some of the material utilized in this thesis is something that has been considered throughout the research process, and where grey material has been used, awareness of possible biases have been taken into account. Furthermore, the possibility of adding a contribution of scientific material on this phenomenon has partly affected to the decision to undertake a research on this topic.

1.6. Outline of Thesis

The thesis has been constructed by dividing it into six chapters. After the introductory chapter, the second chapter gives a general background to the civil society in Uganda, with a particular attention given to the NGOs working in the oil and gas sector. Chapter three covers the theory part and chapter four the methodology part of this thesis. The fifth chapter comprises the analysis of this thesis, divided in two parts; (1) ‘structural restrictions’ and (2) ‘restrictions of operational space’. Lastly, the conclusion of this thesis is laid out in chapter six.

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2. Background

2.1. Global Phenomenon of Shrinking Civic Space

Edwards (2004) identifies three concepts of civil society, namely, civil society as associational life, as good society, and as mutually reinforcing. The first view is the most dominant one and holds that civil society consists of voluntary organizations and associations which are autonomous from the state but interact with it for advancing their own interests. The second view sees that all institutions under civil society serve to advance desirable social order by nurturing positive social norms to the society. Lastly, the third school of thought perceives civil society as a political arena to counterweight the state and corporate powers, and is essential for creating good governance. (Edwards, cited in Nassali, 2013:410).

The shrinking civic space for civil society actors has become a growing issue of concern both globally and in the East African Community (EAC) region (Odhiambo, 2017). Defined by CIVICUS (2018b) civic space is “the respect in law and practice for the freedoms of association, peaceful assembly and expression” the rights of which the state has a fundamental duty to protect under the International Covenant on Civil and Political Rights (ICCPR). Thus, the term ‘shrinking civic space’ stands for a reduction in the power of the civil society to operate within the framework of these rights.

CIVICUS, a global alliance of NGOs and activists who are dedicated in defending civil freedoms and democratic values in all countries, compiles inclusive reports annually to reveal the quantitative data of civic freedom and repression in each country, respectively (CIVICUS, 2018a). They use a methodology of compiling data from a range of sources that are built in the three core freedoms addressed above, and in this way, rate the 196 countries in five different categories of civic space to either open, narrowed, obstructed, repressed, or closed. According to the latest data from CIVICUS Monitor, 27% of world’s population lives under a closed civic space, 40% lives under repressed, 16% under obstructed, 14% under narrowed, and only 3% live in a country with an open civic space. (CIVICUS, 2020).

Uganda is among the 38 countries rated under a repressed civic space, meaning that its space is significantly constrained, and the advocacy work of NGOs is regularly impeded by authorities (CIVICUS, 2019b). The astounding number of world’s population living in countries with

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8 a repressed civic space has staggeringly doubled since 2018, when the percentage was still at 19% (CIVICUS, 2019a). Moreover, although legal means are by far not the only restrictive measures towards civil society, International Center for Not-for-Profit Law (ICNL) has found that between 2015-2016 alone, 64 restrictive laws were adopted by states in all major regions in the world. Unlike the general presumption, such constraints are not limited to non-democratic states, in fact Europe and Eurasia were second on the list after South and Central Asia, having adopted 16 of these 64 laws. (ICNL, 2016). As briefly mentioned above, the closing of civic space around the world does not only manifest in the shape of legal restrictions. The extra-legal measures taken by state actors may include arbitrary inspections, harassment, threats and violence, criminalization, neglecting to protect civil society actors and/or limiting the funding of NGOs (Bustos, 2017).

This thesis will take into consideration both, the legal and extra-legal measures used to shrink the Ugandan oil and gas NGOs’ civic space. To get a better understanding of the shrinking civic space in the Ugandan context, a brief history and background of the country’s political regime and the civil society’s place in it will next be presented.

2.2. Civil Society and the State in Uganda

Historically, NGO work in Uganda dates back to 1950s and 1960s which by the time was characterized as a phase of ‘relief and emergency response’. NGOs’ activities were mainly focused on the sectors of health, education and emergency relief and the government saw NGOs in the role of filling gaps on providing services where the government could not reach. During Idi Amin’s regime in the 1970s, any attempts of organizing were considered anti-government, hence all NGO activities were highly restricted. After the fall of this regime, started a new era for the NGOs and in the early 1980s, their number rose from less than 20 to more than 100, since the voluntary efforts came to fill in gaps that the collapse of the government and internal quarrels had created. Here, organizations started to provide more development-oriented services that increased community engagement. (Muhangi, 2004:11-12).

The biggest increase of NGOs in numbers can be tracked to the period of 1980-2000 (Muhangi, 2004:12). President Museveni who gained power after the civil war in 1986 and has remained in power ever since, reintroduced a multiparty system in 2005, but the once promising democratic reforms floundered after the removal of constitutional limits that widened the president’s

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9 authority and allowed for his unlimited re-election. Museveni’s regime is ‘patronage-based, executive centred and military-reliant’ and has become increasingly authoritarian. (International Crisis Group, 2012). Ugandan opposition faces co-optation and repression, their protests have been clamped down and some activists have even faced long sentences for speaking against Museveni and the National Resistance Movement (NRM), such as a Ugandan feminist academic writer Stella Nyanzi who has been imprisoned several times for her Facebook criticism posts (Hairsine, 2019). This is equally the case with civil society organisations that can be linked to the opposition, as is demonstrated by the threat by Ministry of Ethics to deregister all the NGOs contesting the Anti-homosexuality Bill in 2012. Concurrently, civil society coalitions that have advocated for the Oil Bill, have been castigated as subversive, political, or even as engaged in economic sabotage. (Nassali, 2014:43).

Kansiime (2019:2) has argued that civil society has not achieved much in the area of political influence in Uganda, but rather contributed to the service delivery in the sectors of health and education as well as through poverty alleviation programs. This could partly be explained by the restrictive measures that the state has put to hamper some NGO sectors more than others and thus, a distinction between two types of NGOs in Uganda should be drawn. The difference that Kansiime (2019) makes is that of ‘pro-governmental’- and those that are opposing the government, namely the ‘anti-governmental’ organisations. Pro-government organisations deliver services mainly on a sub-contract on behalf of the government. This includes work in service delivery such as construction of schools, supporting orphanages, building hospitals, and training medical personnel in the health sector, as well as providing poverty alleviation programs. On the contrary, ‘anti-government’ NGOs that criticize the government, work in the areas of advocacy (for instance, policy-, legislative-, budget-, legal-, and media advocacy initiatives), or programs that include activities in the areas of lobbying, networking, monitoring, research, governance and capacity building of civil societies. (Kansiime, 2019:2).

By the same token, NGOs that have been most affected by the state regulations are the ones working with issues of governance, anti-corruption, electoral democracy, human rights, and those in the sector of accountability and social justice problems in the extractive sector (Mbazira & Namatovu, 2018:77). LGBT organisations are also facing serious implications for their work, since the country’s Anti-Homosexuality Act (2014) criminalizes same-sex relations and the ‘promotion of homosexuality’, under which the government could place the organisations that defend these minorities’ rights.

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10 Overall, the relationship between the government and civil society has been characterized as ‘dicey’ (Nassali, 2013) and the government has publicly acknowledged being mutually suspicious and hostile towards NGOs (GoU, 2010:27). Next, a background to oil and gas industry development, and the NGOs working in this sector will be provided.

2.3. Oil and Gas Industry Development in Uganda

The government has identified Ugandan oil and gas sector being an important segment in developing the country and transforming its economy. Indeed, the Vision 2040 has assigned the oil and gas resources as critical in changing the country “from a predominantly low income to a competitive upper middle income country within 30 years […] and reach a per capita of USD 9,500 by 2040” (Vision 2040, n.d.). Uganda’s oil exploration began as early as the 1930s but the first commercially viable discoveries, and the government’s announcement in 2006 finally placed Uganda on the global energy map. These were the Sub-Saharan Africa’s largest onshore oil findings in over two decades, but regulatory disputes between the government and the oil companies that started soon after the discoveries have delayed the development and production of the oil. (Patey, 2015). The first oil exports are now expected to start in 2022 the earliest (Mandela, 2019).

Despite of the possibility of oil being Uganda’s greatest economic opportunity, mineral wealth has paradoxically, failed to bring economic development to most African countries with a few exceptions such as Botswana (Sarraf & Jiwanji, 2001). Angola, Chad, and Nigeria have been examples of countries falling into the ‘resource curse’ or the ‘paradox of plenty’, a phenomenon associated with factors such as bad resource governance and lack of transparency (Diamond & Mosbacher, 2013:88,93).

Already in 2012, the International Crisis Group predicted that the discovery of the significant oil reserves in Uganda would be more likely to increase social and political tensions, than to decrease them (International Crisis Group, 2012). Several concerns regarding the lack of transparency on the oil and gas industry in Uganda have been raised. Deals between the government and multinational corporations have not been made public, and allegations of bribery have been involved in the oil debate. Also, Uganda has not, despite being committed to join the Extractive Industries Transparency Initiative (EITI) taken any de facto steps to yet become included. (Mbabazi, 2013:27). Joining EITI would mean that the government would have to, inter alia, publish exact

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11 information on the payments and receipts of the oil sector between the companies (Global Witness, 2013). The three main transnational companies operating in Uganda currently are a French firm Total Oil, China National Offshore Oil Corporation (CNOOC), and U.K. firm Tullow (ActionAid Uganda, 2018).

Studies by many organisations have revealed several human rights abuses stemming from the extractive industries investment projects in the Albertine Graben region in Western Uganda, where most of the operations take place. Gabriella Wass & Chris Musiime’s (2013) report indicates that affected human rights include the right to democracy, free disposal of wealth and natural resources, right to safe and clean water, and freedom of association, whereas the Uganda Human Rights Commission’s (2013) report examines violations on the rights of effective remedies, self-determination and participation, education, freedom of movement, right of access to information and land rights. Concerns identified by ASF’s study (2015) range from inadequate compensation, human displacement, land conflicts, lack of transparency and accountability in the oil sector, to illegal detentions and harassment by security and military personnel.

2.4. Oil and Gas Non-Governmental Organisations in Uganda

The NGO Act 2016 (section 3) makes a distinction between six different types of organizations, namely, community based-, continental-, foreign-, indigenous-, international- and regional organizations. Mbazira and Namatovu (2018) place the oil and gas NGOs in the category of community based organizations, meaning that their objectives include promoting the wellbeing of the members of the community they operate in, at the subcounty level (NGO Act 2016, section 3).

As has been established above, associations involved in environmental protection, especially those around resource exploitation confront heightened risks in constraints of their rights (A/HRC/29/25, 2015). Organizations working in the oil rich Albertine Graben, have invested their resources and time in promoting access to information and compensation rights for citizens that have been affected by the oil industries. In addition to trying to promote citizen participation to monitor and shape the sector processes, the NGOs have advocated for fair and just acquisition of land, transparency and accountability in the oil revenues management, promoting other affected human rights of Ugandans and advocating for environmental protection in the oil and gas sector. (Mbazira & Namatovu, 2018:77).

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12 To respond to the difficult environment that these NGOs have faced, many NGOs have joined and created coalitions to oppose restrictive bills and to challenge existing laws (Jjuuko & du Toit, 2017). A good example of such a network in the oil and gas sector is the Civil Society Coalition for Oil (CSCO) in which more than 40 NGOs have joined “to maximize the benefits to the people of Uganda from oil and gas discoveries by promoting social, economic and environmental sustainability in exploration and production activities” (ActionAid Uganda, 2012). Working in coalitions can help avoid NGOs of being singled out and attacked, since one host organization might be difficult to be identified and targeted among many others (Jjuuko & du Toit, 2017). However, this is not the case where single NGOs try to conduct field operations in the Albertine Graben, and as a Ugandan HRD working in the rural oil extraction area has expressed “only the brave talk about oil” (EHAHRDP, 2012).

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3. Theory

3.1. Democratization and Civil Societies

Democratization refers to the change in political regime within a sovereign state shifting from nondemocracy to democracy (Samuels, 2011). Democratization theorists have identified specific patterns of interaction between groups that shape the democratization process unfolding in a particular environment, and there is a widely held perception among scholars that civil society bears a conducive role in promoting the process of democratization (Kauffman, 2018). Not all agree, however, and scholars such as Michael Goodhart (2005) and Nelson Kasfir (1998) find that civil society organizations’ role in creating and maintaining democracy and democratic process globally, and in the African continent has been widely overstated. This thesis draws on parts of the literature that emphasizes the importance of civil society for democratization to argue that the restrictive measures that have targeted NGOs in Uganda also hamper the democratization process in the country.

Among the first scholars suggesting that NGOs’ contribution to political (rather than economic) development is significant was Michael Bratton (1989), who argued that the bolstering virtue of civil society is important due to its democratic and participatory approach. Diamond (1989:25) has added that while the pressure for regime transformation cannot be expected to come from above, the most effective initiative will come from below, namely the civil society. According to him, civil society bears an important role in every stage of democratization and “the greater the number, size, autonomy, resourcefulness, variety and democratic orientation” of NGOs in civil society, the greater will the movement towards a democratic regime be (Diamond, 1989:25).

NGO impact on political processes is highly determined and limited by state sensitivity and regime responses which, as Fowler (1993:330) argues, is reasonable to be expected from the existing power-holders seeking to minimize or restrain the potential NGO impact in the political realm. Even in partial democracies, governments have restricted civil society, while aiming at weakening groups that could mobilize and strengthen the opposition (Christensen & Weinstein, 2013). Aili Mari Tripp (2004), argues that while several African countries shifted towards electoral democratization in the 1990s (also known as the third wave of democratization) Uganda remained intrinsically authoritarian although having incorporated some democratic innovations, such as multipartyism, in variant degrees. The government of Uganda has repeatedly warned the civil society

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14 actors against becoming too political (Tripp, 2004:14), and as will become evident later in this thesis, has taken several measures in trying to ensure this from happening.

In the next section, the theoretical framework which draws from the relevant parts of the democratization theory – and will help better understand the phenomenon of shrinking civic space in the context of the Ugandan oil and gas NGOs – will be presented.

3.2. Theoretical Framework

This thesis analyzes the various measures which the government has taken to hamper the NGOs rights by shrinking their civic space. To analyze this phenomenon together with democratization theory, Van der Borgh and Terwindt’s (2012) Shrinking operational space of NGOs framework of analysis and a human rights framework will be utilized.

Van der Borgh’s and Terwindt’s (2012) analytical framework combines three salient variables that together determine the operational space for NGOs. By operational space of NGOs, they mean the organization’s capacity to operate and perform their key functions in accordance with the rights and freedoms protecting civil society, which are embedded in international law. The three factors utilized to describe the NGO specific operational space are, 1) the characteristics of the local political field, 2) the particular mix of pressures which NGOs are confronted, and 3) the characteristics, objectives, and style of operation of NGOs themselves.

The advantage of this model is that by using it one can explain variations of the operational spaces of different NGOs within the same political context. This model helps understanding the severity of the situation of the oil and gas NGOs and will create an NGO sector specific analysis of their operational space. It also allows one to incorporate democratization theory under the variables which will be utilized. The first part of Van der Borgh’s and Terwindt’s framework has been reviewed in the previous sections, and thus will not bear the main emphasis in the analysis section. The second variable of the framework, namely, restrictive policies and actions will have the primary focus on the analysis sections 5.1. and 5.2. The third variable, characteristics, and response strategies of NGOs is also briefly reviewed in the background section of this thesis. (Van der Borgh & Terwindt, 2012:1073).

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15 The second variable of the analytical framework is crucial in answering the research questions and in better understanding the distinct measures that state (and other actors) have taken to clamp down civil society’s rights and freedoms. It consists of four main actions and policies that restrict NGOs civic space. The first one is ‘administrative restrictions’ which Van der Borgh and Terwindt (2012:1071) define as the legislation and other ad-hoc measures that restrict civil society’s fundamental rights. The second one is ‘stigmatization’ of NGOs’ work which includes both, criminal stigmatization of specific actors and social stigmatization of the whole NGO sector. The third restriction is that of ‘criminalization’ of NGOs which “enables the use of coercive mechanisms under state authority against individuals for the purpose of finding this person guilty of the specified conduct and imposing a sentence” (Van der Borgh & Terwindt, 2012:1071). The last restriction used from the analytical framework is ‘threats and harassment’ which quite directly refers to these measures taken by state and other actors, to restrict the civic space of the NGOs.

This thesis will draw from Buyse’s (2018) example of using a human rights framework in explaining the issue of shrinking civic space. As he articulates, human rights create a crucial lens to look at the phenomenon, since it works as a tool of assessing the hidden intentions behind the state’s restrictions on the civil society’s operational space. Due to the novelty of the combination of this framework, he first used it in an “exploratory manner” (Buyse, 2018:967) while looking at the shrinking civic space as part of a global trend. This thesis will analyze restrictive measures of a more specific case from a human rights standpoint, and thus the contribution of the thesis partly lays in the selection and combination of the theoretical framework and methodology of this research. The next section will introduce the methodology part of this thesis.

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4. Methodology

4.1. Material

The primary material analyzed in the thesis consists of two studies investigating the implications that the civil society organizations face in the course of their work while promoting human rights in the currently prevalent oil and gas sector in Uganda. The first report is titled as “Only the Brave Talk About Oil” Human Rights Defenders and the Resource Extraction Industries in Uganda and Tanzania (2012) which is compiled by East and Horn of Africa’s Human Rights Defenders Project (EHAHRDP). This organisation is Kampala-based and serves as a secretariat of the East and Horn of Africa Human Rights Defenders Network, while representing hundreds of members including HRDs, human rights organisations and national HRD coalitions (EHAHDRP, n.d.). This report provides comprehensive information on the HRDs’ situation in the two East African countries Rwanda and Uganda, where the collection of material has been made by conducting nearly 40 interviews with key stakeholders and HRDs. It identifies concerns directly connected to the phenomenon of shrinking civic space for NGOs, namely the right to security/integrity of the person; freedoms of association, and assembly; freedom of expression; access to information; and space for participation. (EHAHDRP, 2012:2-3).

The second article is an academic article by Christopher Mbazira and Teddy Namatovu (2018), titled as the ‘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’. Their study analyzes the stumbling blocks that the legal measures have created to frustrate the mandate of organisations working among oil and gas issues in the country (Mbazira & Namatovu, 2018:76). Together, the careful selection of this material represents an encompassing collection of literature from both academic and grey literature, and their credibility, impartiality and neutrality has been assessed on an individual basis. These two studies build on similar material, as both have conducted several interviews and used previous NGO work. The main motivation for the selection of these two studies is that they cover the status of civic space of the oil and gas NGO sector before and after the legal amendments took place. These two studies highlight similar aspects and provide the main comparative material for the analysis section (5.2.). However, where these two studies have not been directly comparable or additional information has been needed, complementary

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17 data from NGOs such as the Human Rights Watch (HRW, 2012), Human Rights Centre Uganda (HRCU, 2016), and International Federation for Human Rights (FIDH, 2019) has been utilized.

The second selection of material draws from primary sources of international, regional, and national legislation. The relevant rights and freedoms provided under the International Covenant on Civil and Political Rights (ICCPR) and the African Charter on Human and Peoples’ Rights (ACHPR) will be reviewed in order to gain understanding of the broader legislative framework which the government of Uganda should provide for its citizens and civil society due to it being a state party for both of these covenants. Furthermore, the national legislation governing the NGOs’ operational environment, both in 2012 and in 2018, will be covered in order to answer the first research question of this thesis. This legal framework includes relevant parts of the Constitution (the supreme law of Uganda), the NGO Acts of 2006 and 2016 among other Regulations.

Finally, the last selection of material utilized is a combination of previous scholars’ work on the different topics covered in the background section of the thesis, academic scholarly literature on the theoretical framework utilized in the analysis, and previous literature which has helped to place this study among the previous studies undertaken in this field. The material in this selection is predominantly drawn from academic peer reviewed articles but also from carefully selected NGO work. Such organisations like the CIVICUS (a global alliance of NGOs and activists) have provided valuable quantitative and qualitative data on the problem of shrinking civic space.

As Buyse (2018:967) articulates, “to the extent academia has focused on the issue [of shrinking civic space], this has happened mostly from a political science perspective, including studies on democracy, international co-operation, and the non-profit sector” but important to note, “much of the research and writing on the issue comes from affected organisations and policy analysts and much less from academia.” Thus, this thesis presents a balanced combination of different material from various sources, selected to be best suited to answer the research questions.

4.2. Method

This thesis presents a qualitative case study on how restrictive legal and extra-legal measures taken towards shrinking the civic space of NGOs is a threat to democratization, and human rights more broadly. The study is conducted with a within-case comparison by a comparison over time in the years of 2012 and 2018. A within-case analysis is used to develop an in-depth understanding and

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18 description of elements of the phenomenon under research. It does so by involving intimate knowledge of the particular case to discover patterns that support, refute, or expand, either a) a theory that has been selected, or b) “the propositions that researcher has derived from a review of the literature and/or experience with the phenomenon under study”. (Paterson, 2010). This thesis takes the standpoint of the second alternative and utilizes this method to provide in-depth understanding of the phenomenon of shrinking civic space of the oil and gas NGO sector. For this purpose, a comparative method and text analysis is utilized in analyzing the main material, addressed in the previous section. Additionally, Van de Borgh’s and Terwindt’s (2012) analytical framework is applied to provide the structural basis for the analysis.

Throughout the analysis (5.2.) the four different restrictions provided by Van de Borgh and Terwindt (2012) will be applied to the context of the oil and gas NGO sector in Uganda, and will be compared to the situation of NGOs before and after the legal changes had taken place. Besides providing a clear way of structure for the analysis, the application of the framework creates a rational division between the legal and extra-legal restrictions on the NGOs operational environment. The ‘administrative restrictions’ belong to the legal-measures and the aim here is to cover the ad-hoc and legal ways in which the state has shrunk the oil and gas NGOs’ civic space between 2012 and 2018. By using ‘stigmatization’, ‘criminalization’, and ‘threats and harassment’ from Van der Borgh and Terwindt’s (2012) framework, the aim is to describe these extra-legal measures and see whether they have been used by state and other actors similarly before and after the changes in the legal framework.

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5. Analysis

5.1. Structural Restrictions

Part 5.1. under ‘Analysis’ will provide an overview of the international, regional and national law governing the Ugandan civil society. The first section of the analysis introduces the international and regional legal frameworks that provide the necessary freedoms and rights for the civil society. After this, the legal restrictions, which are part of the phenomenon of shrinking civic space will be reviewed through the national laws governing the NGOs in Uganda, before and after the three legal alterations between 2012-2018. The actual implications and effects of these laws for the oil and gas NGOs will further be analyzed under ‘Administrative Restrictions’ (5.2.1.).

5.1.1. International Legal Framework

The rights of civil society are often understood and measured regarding the three fundamental freedoms, namely, expression, association, and assembly (Mbazira & Namatovu 2018:83). The three rights are recognized by both the international and regional human rights frameworks, both of which Uganda is a party to.

Article 19(2) of the ICCPR provides everyone the right to freedom of expression which includes the “freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.” This right is similarly addressed under article 9 in the African Charter on Human and Peoples’ Rights (ACHPR). Freedom of expression has been highlighted as the pillar of democratic society and all the other civil liberties, as well as an enabling factor for the social and economic growth of a country by allowing the freedom of ideas and innovations - necessary for strengthening transparency and accountability - to flow freely (UNESCO, 2019). Article 22 of the ICCPR and Article 10 of the ACHPR provide for the freedom of association, and the freedom of assembly is recognized under article 21 of the ICCPR and article 11 of the ACHPR. Indeed, the above-mentioned rights are also restated in the 1998 United Nations Declaration of Human Rights Defenders. A 2011 Commentary to the UN Declaration by the UN Special Rapporteur on Human Rights states that the

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20 instrument’s main object is to “contribute to the development of a conducive environment for the work of defenders” namely, to recognize their right to defend human rights together with the other instrumental rights that contribute to its meaningful fulfillment (OHCHR, 2011).

The Ugandan Constitution is in line with the above-mentioned provisions in the ICCPR and ACHPR as it protects these rights under article 29. Important to note, however, that these rights are not absolute and may be restricted for purposes of public safety, public order, security, the protection of public health or morals, or the protection of the rights and freedoms of others. According to Article 22 (2) of the ICCPR, the possible limitations placed on these rights need to be prescribed by law and must be necessary in a democratic society.

Being a state party to both, the ICCPR and the ACHPR, means that Uganda is therefore obliged not only to respect but also to protect and promote the enjoyment of all rights contained therein. Regardless of these constitutional guarantees, Uganda’s NGOs continue to encounter a myriad of hindrances obstructing their work (Mbazira & Namatovu, 2018:83). As will be regarded in the next sections, this is partly because Uganda’s regulatory framework governing the NGO sector has not been following the constitutional and international human rights protections (HRW, 2012:14).

5.1.2. National Legal Framework for NGOs Before the Legal Alterations

Before the three different legal changes that took place in 2013 (POMA), 2016 (NGO Act), and 2017 (NGO Regulations), NGOs in Uganda were governed by the Non-Governmental Organisation Act 2006 (NGO Act 2006) and the Non-Governmental Organisations Regulations 2009 (NGO Regulations 2009). To be able to analyze and compare the oil and gas NGOs’ operating environments in Uganda before and after the several changes in law, the different legal frameworks governing NGOs during both of these times will be covered under this section and the following (5.1.3.) section. As the background section has revealed, the government’s and civil society’s relationship has been conflicted due to the restrictive environment the government has put in place to govern and scrutinize the organizations. To illustrate this manner, first, the most problematic parts of the legal framework governing NGOs before the cluster of new laws will be reviewed.

The NGO Act which was enacted by the Parliament on 7 April 2006 was an amendment of the Non-Governmental Organisations Registration Act of 1989. The Amendment of the previous

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21 law was enacted to strengthen government’s monitoring role of NGOs, to provide for the registration of NGOs, and to establish a Board for these ‘and other connected matters’ (NGO Amendment Act No. 25/2006). Throughout the years 1999 to 2006, various NGOs tried to engage the process of amending the previous law by even drafting their own alternative version of the Act, in which they developed more enabling provisions than the previous law. Although attending to several meetings and raising their concerns, the NGOs’ involvement was not rewarded in a meaningful way. Once the NGO Act 2006 was passed, many NGOs remained deeply concerned on the implications deriving from this amendment. (Uganda National NGO Forum, 2009). The main concerns are laid out as follows.

First, the NGO Act 2006 provided a very narrow definition and understanding of the NGOs as a body “established to provide voluntary services, including religious, educational, literary, scientific, social or services, to the community or any part of it”. The definition reflected a very limited understanding of NGOs work, merely emphasizing the service delivery dimensions and deliberately excluding the political scope of NGOs, namely policy and human rights work and the broader governance and advocacy side. (Uganda National NGO Forum, 2009; HRW, 2012).

Furthermore, the amendment of 2006 introduced a mandatory registration for NGOs. For this purpose, the Act established a National Board for Non-governmental Organizations (NGO Board) that held the power to register or refuse the registration of NGOs or even revoke the registration once it was granted in the condition that the board deems it “in the public interest to do so” (Section 10(c)). Yet, there was still an avenue for escaping this restriction, since the registration was not required by organizations that elected to register under the Companies Act or the Trustees Incorporation Act (NGO Act 2006, Section 4(b)). Consequently, various organizations such as LGBT organizations (and other organizations working among unpopular issues and may not have been granted the registration in the official way) incorporated in this way. However, this loophole no longer remains available after the implementation of the NGO Act 2016. (Jjuuko & de Toit, 2017:99).

The NGO Regulations 2009, which remained in place until 2017, has been criticized for introducing even more draconian regulations than its parent law (Uganda National NGO Forum, 2009), especially in terms of the registration process and in restricting NGOs operations. Particularly the formulation of section 13 opened up for an arbitrary application of the law. Section 13 (a)(c) of the Regulations stated that an organization shall “not make any direct contact with the people in their area of operation in Uganda unless it has given seven days of notice in writing of its intention to do so to the local councils and Resident District Commissioners of the area…” and to “not engage in any

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22 act which is prejudicial to the security of Uganda or any part of it…”. Further, article 5(1) forced NGOs to go through a tedious and time-consuming process of registration that called for specifications in terms of the geographical area and field of operation, structure, and budget of the organization among many other detailed requirements. The NGO Act 2006, section 6(a) ruled that where an NGO commits an offence by failing to register under the requirements, it is liable to a fine or up to one year of imprisonment or both.

Together, the NGO Act 2006 and the NGO Regulations 2009 were challenged as unconstitutional by several NGOs in the Constitutional Court (Jjuuko, 2016b). The case remained pending for seven years after being filed, until the court ruled in favor of the respondents and stated that while the petitioners did not show how the regulations infringed on enjoyment of human rights, all restrictions on freedoms of association under the laws were necessary in a free and democratic society (Human Rights Network & 7 others v Attorney General [2009]). The judgement received criticism not only due to the delays in passing of the judgement but also because the new law of NGO Act 2016 received presidential assent while the replaceable law was still being challenged in Court. Some activists have even regarded this as ‘a mockery of the justice system’. (Wanyama, 2016:182). According to Jjuuko (2016a) the original format of the new 2016 Act “was generally intended to give the 2009 regulations the force of law”. Due to criticism and lobbying from the civil society, the most draconian provisions from the Bill did not end up in the new Act of 2016. However, the laws regulating civil society today remain to clamp down the rights and freedoms needed for the meaningful realization of NGOs’ work in the country. (Jjuuko, 2016a).

5.1.3. National Legal Framework for NGOs After the Legal Alterations

The NGO Act 2016 which now primarily governs the NGOs in Uganda repealed the Non-Governmental organizations Registration Act (1989) and the Non-Non-Governmental Organizations Registration (Amendment) Act 2006. The NGO Regulations of 2009 were replaced by the NGO Regulations of 2017. A third legal change between 2013 and 2017 was the Public Order Management Act (2013) which regulates public gatherings in Uganda. The NGO Act of 2016 now defines an NGO as “a legally constituted non-governmental organisation...which may be a private voluntary grouping of individuals or associations established to provide voluntary services to the community or any part, but not for profit or commercial purposes”. (NGO Act Section 3).

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23 Section 7 of the NGO Act 2016 grants the National Bureau of NGOs (Bureau) - which used to be the NGO Board in the previous Act - even wider and more discretionary powers in terms of controlling, summoning and disciplining organisations than the NGO Board had in the previous Act. These include the powers of ‘blacklisting the organisation’, ‘exposing the affected organisation to the public’ or respectively ‘revocation of an organisation’s permit’. Problematically, the Act neither defines ‘blacklisting’ nor how long this disciplinary action should last. To expose the affected organisation to the public would, in turn, have the potential impact of defaming NGOs’ efforts in pursuing accountability from the state. Moreover, there is no specification of when the powers of the Bureau, as listed in the Act under section 7(1)(b), could be invoked and what is the disciplinary measure that should be adopted as a last resort. Rather, the Bureau is free to carry on its powers of disciplinary measures arbitrarily at any given time, without further explanation. (Mbazira & Namatovu, 2018:86).

The possibility of arbitrary application against human rights and governance NGOs continues under sections 44 (d) and (f) of the Act, which prohibit organizations to engage in any activities that are prejudicial ‘to the security and laws of Uganda’ or ‘to the interests of Uganda and the dignity of the people of Uganda’. These provisions have been called draconian by many NGOs due to their vagueness and open-endedness which allows the state to give any convenient politicized and selective interpretations to these terms. (Human Rights Awareness and Promotion Forum (HRAPF), 2016).

Registration process under the NGO Act 2016 together with NGO Regulations 2017 remains to be long and tedious and shall be done with the Bureau (Part VIII of the Act). The Bureau is allowed, under section 30(1), to refuse the registration of an organisation whose objectives are ‘in contravention of the laws of Uganda’. While applying for the permit, the organisation must also specify several objectives, including the areas that its operations will cover among with the geographical coverage of the organisation (Article 7, NGO Regulations 2017). In case the organisation wants to commence a new project in any other part of the country, it needs to seek approval from the District Monitoring Committee and have signed a memorandum of understanding (MoU) with the Local Government of the area (Article 44 (a) of the Act). These provisions are in contradiction to the constitutional right which grants everyone the freedom to work in any part of the country and further as is stated by Jjuuko, a Ugandan human rights lawyer and advocate in an interview with Nassali (2013:416), it “reduces the right to freedom of association of NGOs to a positive right […] but not inherent”. It is sufficient to note, that mandatory registration of NGOs is in violation of international standards of the freedom of association (OSCE/ODIHR, 1998:11), but in

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24 Uganda the penalties that are in place for organisations giving false information for obtaining a permit, or carrying out operations without registration, range from fines up to three years of imprisonment (Article 40 of the Act).

Another restrictive measure in the Act grants the state inspection powers, which establishes that an inspector may, after giving notice of at least three days, inspect the premises and “request for any information” from the organisation which “appears [to be] necessary for purposes of giving effect” to the Act (section 41 of the Act). These regulations appear to be wide and discretionary and present the possible effect of crippling NGO activities in sensitive areas such as oil and gas (Mbazira & Namatovu, 2018:87). Other vague provisions in the Act include those under section 44, which provide the possibility of the state to interpret them in any convenient way. Section 44(d) for example restricts any NGO operations that are “prejudicial to the security and laws of Uganda” and section 44(f) prohibits engaging in any act which is “prejudicial to the interests of Uganda and the dignity of the people of Uganda”.

Whereas in the expunged legislation the state security officials were part of the NGO Board (NGO Amendment Act 2006, section 6 (d)(e)), they are now situated in the district and sub-county committees. Since most activities by oil and gas NGOs take place in the community level in the districts and sub-counties in the Albertine Graben, their activities are constantly monitored due to the presence of security officials in the field (Mbazira & Namatovu, 2018:86). Both, the District NGO Monitoring Committees (DNMCs) and sub-county NGO monitoring committees (SNMC) as are established under NGO Act 2016 Sections 20(2)(d) and 21(2)(d), consist of security officers and are based in each district and sub-county of the country. The SNMCs task is to monitor the operations on organisations to the DMNC, and the DMNC in turn, must monitor and provide information to the Bureau. The effects of this regulation to the oil and gas NGOs working closely to the security personnel, will be analyzed under the ’administrative restrictions’ section 5.2.1.

The third law that changed the legal framework for NGOs in Uganda between 2013-2017 is POMA which came into force in 2013. This Act is designed to regulate public gatherings and has been a point of contention ever since coming into force. The criticism against the POMA derives from the impediments it presents for the right to freedom of peaceful assembly, freedom of association and demonstration (Arinda, 2018:3) and its effects will be analyzed further in the analysis (5.2.1.).

Section 8 of the POMA is problematic in that it has given the Inspector General of Police wide discretionary powers to arbitrarily stop or prevent public gatherings from happening and

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25 to combat protests. A notification by NGOs is required in case a meeting is being held with more than three people. Many of the activities carried out by NGOs can be considered as a ‘public meeting’ under the POMA and this has developed an atmosphere where NGOs have not been able to operate or objectively interrogate without the fear of reprisal or prosecution. (Mbazira & Namatovu, 2018:88). Furthermore, the mandate to use force to disperse assemblies with no proper guidance for using other methods for managing public order disturbances, is granted by the law (ARTICLE 19, n.d.). Together with the NGO Act 2016, the POMA has had a significant role in the shrinking of the civic space and suppressing the efforts of NGOs discussion on advocacy, human rights, and governance (Mbazira & Namatovu, 2018:88).

On 24th_{March 2020, Uganda’s Constitutional Court declared section 8 of the POMA}

being illegal and unconstitutional. The case was already petitioned in 2013 a month after the law came into force, by a group of human rights organisations. After years of waiting, this ruling has now been welcomed as a small victory and a “development for the human right to peaceful assembly and freedom of expression in the country”. (Amnesty International, 2020).

5.2. Restrictions of Operational Space

The second part of the analysis of the shrinking civic space for oil and gas NGOs in Uganda, has been divided into four sections, by making use of the ‘Shrinking Operational Space of NGOs’ analytical framework by Chris Van der Borgh and Carolijn Terwindt (2012). The first part will review the administrative restrictions which build on the restrictive laws presented in the last section. Here, the comparison will be made by using material that discusses administrative restrictions before and after the new legal framework came into force. The three last sections that analyze the shrinking civic space are part of the extra-legal measures that have had restrictive effects on the NGOs operational environment, namely, the ‘stigmatization’, the ‘criminalization’, and ‘threats and harassment’ of the oil and gas NGO sector. These three restrictive measures will also be analyzed and compared from 2012-2018.

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26 5.2.1. Administrative Restrictions

Van de Borgh & Terwindt (2012) refer to administrative restrictions when discussing the ways in which NGOs are restricted by law and through other ad-hoc measures, meaning that administrative restrictions need not necessarily be a product of the legislative framework. The changes in the legal framework have been reviewed in the previous part of the analysis, and the comparison of the actual effects and possible implications of the cluster of restrictive laws for oil and gas NGOs in Uganda between 2012 and in 2018 will be accounted for in this section.

One of the legal measures that has frustrated civil societies and shrunk their civic space is the registration process, which Uganda has made both obligatory and burdensome. The registration requirements have been tedious and time-consuming throughout the legal alterations, although the punitive measures as stated in the NGO Act 2016 (section 40), provides more severe penalties for up to three years of imprisonment, contrary to the previous law (NGO Act 2006, section 6) where offence could range up to one year of imprisonment. While Mbazira and Namatovu’s (2018:98) article is concerned about the thick layer of bureaucracy that the registration process creates to the procedure, the material that looks at the shrinking civic space of oil and gas NGOs before the changes in the legal framework has not brought out concerns deriving from the registration for NGOs. This could be a result of the possibility of NGOs to use the loophole of escaping the mandatory registration as provided by NGO Amendment Act 2006, section 4(b) where an NGO could still elect to register under the Companies Act or the Trustees Incorporation Act instead. As previously mentioned in 5.1.2, this loophole was often used by NGOs working with politically charged issues, but this possibility no longer exists under the NGO Act 2016.

What further shows that the registration of NGOs has been more overlooked and monitored by the NGO Bureau after the legal changes, is that for the first time in 2019, the Ministry of Internal Affairs decided to carry out a ‘verification and validation exercise’ which was part of the efforts to implement and operationalize the NGO Act 2016 and its new regulations on registration. The activity, through which the Bureau was exercising its ‘mandate to register, regulate, monitor, inspect, and oversee’ all NGOs, demonstrates the difficulty of the long registration process of NGOs in the country. Of all the 14,207 registered NGOs, only 3,810 were admitted as having ‘valid permits’ after the inspection. To put it differently, only 27% of the NGOs’ permits were approved by the Bureau which says they carried out the exercise in order to “help eliminate registered NGOs with unscrupulous, obscure and unclear operations that were damaging the reputation of the NGO sector.”

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27 (emphasis added) (Ministry of Internal Affairs, 2019:4). Critics have called this a crackdown of NGOs, and alleged that the government could use this verification exercise which was the first in 30 years, to arbitrarily decide which NGOs could be “wiped out the market” (Niba, 2019). The government has denied the allegations. After the verification, the number of organisations working in the ‘energy and minerals’ sector fell from 9 to 4 (Ministry of Internal Affairs, 2019:3,5). As NGOs in Uganda are not permitted to work without a registration, this verification exercise together with the long registration process has hampered the rights of citizens to full participation in democratic processes and free discussion of public matters which to democracy, is absolutely essential (Manika Ghandhi v Union of India, [1978]).

The registration process from 2016 onwards has required the NGOs to enter into a MoU with the local district that the NGO’s operations would take place in (NGO Act 2016, Article 44 (a)). This has escalated in issues that have already been prevalent, since some district officers have in some instances misapplied this new provision and asked for bribes in the signing, or in the renewal of the memoranda (Mbazira & Namatovu, 2018:92-94). Although this has previously been a voluntary practice in the past, it has been recorded by EHAHRDP (2012:11) that the district security officers and the resident district commissioners had required HRDs to show a MoU signed by the Ministry of Energy and Mineral Resources, before they would be allowed to administer their questionnaire on the relationship between oil and land rights in Buliisa district. To put it differently, the signing of the MoU had not been a legal requirement by that time, but the state officials had used their power in practicing this structural restriction even before the changes in the legal framework in 2016 had taken place.

Ad-hoc measures taken by the state include a directive issued by the Ministry of Energy and Minerals “to the effect that if one is going to research or work in the oil region, they must first be granted permission” (EHAHRDP, 2012:15) although this was not a requirement by the law, nor even a printed instruction. This incident has been recorded by many advocates such as HRW (2012:31) which stated that by requiring these additional permits, the government has attempted to restrict ‘outsiders’ access to the communities. It had become a clear understanding among the civil society that they would need to have received this permit from the Ministry, despite it being a legal claim, an issue which has also been recognized by the UN Special Rapporteur Kiai (A/HR/29/25, 2015) by adding that the authorities have thereafter made efforts to remedy the situation. Evidently, these structural ad-hoc requirements remained in place years after, by the time Mbazira and Namatovu (2018) had conducted their research. To confirm the UN Special Rapporteur’s observation, they too found that the situation has appeared to have improved (Mbazira & Namatovu, 2018:90).

Legal Restrictions and the Shrinking Civic Space: A Comparison of the Situation for Ugandan NGOs in the Oil and Gas Sector Between 2012 and 2018