Glaring loopholes in the recently passed Registration Of Persons Bill, 2014
This publication was authored by: Susan Mirembe Nalunkuma
Abstract / Summary
The Parliament of Uganda recently passed the Registration of Persons Bill 2014 on February 26th 2015; the purpose of the Act is to harmonize and consolidate the law on registration of persons in Uganda and to provide for the registration of persons. Generally, the Act makes registration compulsory and it provides for cooperation with other agencies, government departments and Ministries in sharing the information that is gathered. While the law is a much needed piece of legislation to provide for and harmonize the process of collecting identification information, there are a number of loopholes around data protection and requirements for registration which arguably render the Act unconstitutional in its current state. Parliament is well within its constitutionally mandated powers in making laws for peace, order, development and good governance but what cannot be justified is making laws that contravene the constitution. The most obvious breach in this Act is the lack of data protection clauses which could potentially lead to violation of the right to privacy which is protected under Article 27 of the Constitution. Uganda does not have a data protection law and the draft data protection and privacy Bill of 2014 has not yet been debated upon by Parliament. The objective of the draft data protection law is to “protect the privacy of the individual by regulating the collecting and processing of personal information”. The Computer Misuse Act of 2011 is the only law with a provision governing unauthorized disclosure of information by individuals but does not address what would be unauthorized disclosure between government agencies, departments or ministries. Given that the information can be accessed so widely, concerns about data protection should be a priority under this Act. At a minimum, the Registration of Persons Act should set out data protection principles that would govern the protection and sharing of people’s information within the realm of the constitutionally protected right to privacy. Some of the useful data protection principles that should be provided for in this law would include; requirement that the information is used fairly and lawfully. This would prevent arbitrary sharing of information particularly with regard to the purpose for which any information is used. A requirement that the information obtained by other agencies and government bodies is used for limited and specifically stated purposes is also advisable. Since different government entities require different information, for instance the information required by the Ministry of Education may not be the information required by the Ministry of Health or the Ministry of Defence, a blanket provision that allows access to all information without setting minimum standard of data protection may stand to violate an individual’s right to privacy. If these government agencies, departments or ministries are to access the information, they must have in place data protection mechanisms that meet the minimum threshold set out under this Act (or any other law on data protection) and any information shared should not be retained longer than is necessary for the specified purpose for which it was obtained. Another notable loophole in this law is the fact that the information required under the registration requirements in Clause 30 and Schedule 3 excludes key populations and does not adequately address some of the realities of the Ugandan population. The Act requires an individual who is registering to provide information about their sex, the scope of which is limited to male and female categories and does not provide for people born with disorders of sex development (intersex people), an internationally recognized medical condition. Members of Parliament rejected a clause that would have been inclusive of intersex individuals who do not fall neatly within the male/female categories over considerations that this would encourage homosexuality (an entirely unrelated aspect). Parliament ought to use the registration process and all other available resources to collect such data that would help to inform the planning process on how to address these populations. The Act does not adequately cater to the interests of persons living with disabilities (PWDs) since it does not expressly provide for collection of such data, let alone make reasonable accommodations for persons living with disabilities to access registration services. If indeed the purpose of this law is to aid planning and to improve service provision, then the registration process should encompass as much relevant data as possible and information on populations of PWDs is highly relevant. Uganda has both international and domestic obligations to ensure that the registration process is favorable to all individuals and Parliament must ensure that every individual is able to access registration centers. One of the questions that remains to be answered and which was not addressed during the debate on this law is how it impacts the population census activities, if at all. The population census is an exercise of counting individuals designed to inform decision making and the planning process and it could be a useful means of filling in the gaps on the registration of persons and vice versa yet the issue was not addressed during the conversations about this Act. Read as a whole, the Registration of Persons Act as it stands may lead to violations of the right to privacy under Article 27 of the 1995 constitution of Uganda and by passing such a law, Parliament has failed in its obligation to protect the constitution and promote good governance. An interim proposal is that this Act should at least have data protection principles setting out the minimum standard of protection that must be observed by the agencies which are accessing the information. Each agency and department can then expand the level of protection while observing the minimum. Secondly, the Act should also ensure that the information gathered is relevant and adequate to serve the intended purpose and this means capturing those details that are often left out of “mainstream” conversations. If the government’s intention is to gather information to aid in the planning process, then this law should explicitly provide for the gathering of information that benefits sectors of the population that are often excluded from planning discussions because of lack of adequate information. It is evident that medical, policy and other interventions around persons living with disabilities and persons with sex development disorders have been severely hampered by lack of concrete information on the prevalence of certain conditions. This Act is an avenue through which government can ensure that all pertinent information is collected in an organized fashion in order to create policies that will assist in planning for these constituencies.