Wednesday, December 26, 2007


Mr President, stop the Mabira games
President Yoweri Museveni is at it again; this time around reminding the country that the controversial proposal to give away Mabira forest which led to the death of three people about six months ago, is not yet resolved after all.

His remarks while meeting the NRM Parliamentary Caucus last week in effect mean that government could still go ahead a give away part of the tropical rain forest to a private investor, the Lugazi-based Mehta Group, in total disregard of public opinion.

Most depressing about this debacle though is the fact that Mr Museveni’s resolve to parcel out a protected national resource contradicts the announcement made to the world in October by his finance minister Dr Ezra Suruma, at a dinner meeting hosted by the South American President of Guyana, Bharrat Jagdeo, in Georgetown that the Uganda government had dropped the plan to give away part of Mabira forest.

And why should a national leader against all odds push for the alienation of 17,540 acres, nearly a third of Mabira forest to Mehta when there are huge chunks of an utilised public land in this country under government control which can be gazetted for the industrilisation programme.

What’s the moral justification for this disdain to an evident national consensus that Mabira forest reserve is a no-go area for the promoters of industrialisation! Quite maddening too, is the apparent lack of government interest to explain to the country why of all places it’s Mabira that should be earmarked for ‘industrialisation’.

Is it the proximity of the place called Mabira that has attracted the ‘investors’ to justify its destruction, or is it an element of ego and greed (some of the main factors that erode the principles of good governance) that can possibly explain the determination by the powers that be to destroy what remains of our national forest cover?

Whatever the motive it’s our civic duty as citizens to remind our leaders that the constitutionally established principle of public trust applies to all our national resources and public land.

Our leaders including the president have a legal obligation under the public trust doctrine to manage national resources in a manner that doesn’t prejudice the interests of all Ugandans.

President Museveni chairs the cabinet which in April studied a damning cabinet memorandum prepared by the Ministry of Water and Environment which paradoxically, strongly argued against the destruction of the forest.

In the cabinet memo, experts noted the negative impact of changing the land use of the 7,100 hectares of Mabira tropical rain forest; which among others will lead to reduction in water flow to the lakes and rivers, change temperatures and loss of unique ecosystem whose economic value is estimated at Shs23.3 billion.

The negative effects that await the country once Mabira is given away, can also be prescient too. Over the years ,there is been too much destruction of our forest cover and the ramifications for this obliteration have been clear for all to see including the unprecedented severe weather conditions experienced in the country this year.

The unpredictability in climatic conditions that threaten the survival of mankind, have led to the development of a basic international environmental precautionary law principle to protect and conserve nature for the benefit of present and future generations.

The precautionary principle which governs the exploitation of natural resources like forests, was developed following the 1982 World Charter for Nature which provides in its principle 11(b); that activities which are likely to pose a significant risk to nature shall be preceded by an exhaustive examination; that their proponents shall demonstrate that expected benefits outweigh potential damage to nature.

Studies carried out so far clearly show that the proposed destruction of Mabira forest shall spell doom for our country. Parliament and the courts of law should therefore urgently intervene to save Mabira forest from being destroyed for selfish benefits of some ‘investors’. Ugandans should remain firm in the defence of Mabira forest to prevent irreversible harm to our environment.

The writer is a journalist and advocate

Tuesday, December 18, 2007


On December 10, the world marked the international human rights Day, with no significant progress in the protection of people’s fundamental human rights registered anywhere in the world.

It’s well over half a century since the Universal Declaration on Human Rights was adopted by the United Nations, and yet millions of people across the globe continue to suffer gross human rights abuses-many silently.

While governments are the worst violators of fundamental rights, these abuses are also very evident right in our homes and workplaces. Women are battered at home, while children are maimed at school and the relentless abuse of the people’s inherent rights to dignity and life goes on unabated.

Even professionals, ‘well’ trained people –some are even experts at their trade- cannot escape the blame for trampling on people’s rights, which in many cases assumes the element of criminal liability. The disabled are not accorded the same opportunities irrespective of a popular saying –that disability does not mean inability.

In this column, harrowing cases of human rights abuses have been highlighted including harassment and intimidation of journalists by the government, the case of Julius Lukyamuzi who was sodomised by one of Kampala’s notorious pastors and he is yet to receive justice three years since he first reported the matter to police.

Remember the traumatic case of Mercy Nafuna, the nine-month old baby who lost her arm due to the negligence of a medical practitioner in Mbale district? In another recent incident, 40-year old George Mugagga, a resident of Kinawataka in Mbuya parish in Kampala, beheaded his wife who was six months pregnant because the lady was HIV negative and the man was positive.

Then there was the exclusive report about ‘ invisible torture’, a new method of torture by state operatives to inflict maximum pain without leaving marks or scars on the bodies of their victims. These are but a few cases of the human rights abuses that have graced the pages of Daily monitor this year alone.

Sadly though, Parliament which is mandated by our constitution to rein in the excesses of the state (government) has shamelessly not debated any of the annual human rights reports prepared by the Uganda Human Rights Commission, for the last ten years.

This means that critical recommendations and findings concerning abuse of human rights where innocent people have lost their lives, have been maimed, detained for long periods without trial, discriminated against, displaced or forced into exile, have not been paid damages awarded to them by human rights tribunals because the government is not interested. They have passed without any parliamentary intervention.

It’s explicitly provided for in Article 20(1) of the constitution that human rights are inherent in a person by reason of his or her birth and are therefore not granted by the state or any law. In the Supreme Court case of Tinyefuza v. Attorney General , Justice Oder as he then was, laboured to explain this constitutional principle.

He reasoned, and I agree with him, that although modern constitutions like ours, enact human rights in their provisions it doesn’t mean that such provisions create ‘the human rights’; rather the constitutional provisions are meant for the recognition and the intention that they should be enforceable in a court of law.

This means that fundamental human rights are universal and are due to every human society. They do not depend on the status of an individual, class, race , nor gender. They are uniform to all the peoples of the world.

Courts of law have emphasised a universally acceptable principle of international and domestic human rights that the constitutionalisation of human rights imposes a fetter on the exercise by the legislature (parliament), the executive and the judiciary of their respective powers to protect and promote the strict observance of human rights.

Equally important is the fact that human rights and the right to individual freedom are inextricably tied to the concept of human dignity. This means that freedom is a condition of human self respect and that of contentment which resides in the ability to pursue one’s own conception of a full and rewarding life.

The writer is a journalist and advocate

Tuesday, December 11, 2007


For over a month now, another pair of Daily Monitor journalists have been subjected to periodic visits to the police Criminal Investigations Department to explain themselves over an August 19 Sunday Monitor scoop.

The story said that the Inspector General of Government, Justice Faith Mwondha, had irregularly opted for the higher Sh4, 575, 000 monthly salary for judges instead of her official IGG remuneration of Sh2, 900, 000.

The IGG instructed the police to prefer criminal libel charges against News Editor Robert Chrispin Mukasa and Senior Reporter Emmanuel Davies Gyezaho- who are out on Sh500, 000 non-cash police bond.

For starters the offence of criminal libel is archaic and offends the spirit of our constitution which allows freedom of the press, speech and expression. If the IGG strongly feels that she was wronged by the Sunday Monitor article, she can claim damages by filing a civil suit for defamation (civil libel).

Ugandans are entitled, by the provisions of our constitution, to receive information in oder to make informed decisions. That’s why the fourth President of USA James Madison once said that knowledge will forever govern ignorance and a people who mean to be their own governors, must arm themselves with the power knowledge gives. A popular government without popular information or the means of acquiring it, is but a prologue to a farce or a tragedy or perhaps both.

Madison’s statement clearly shows that the man understood the true values and principles of democracy which call for an atmosphere of trust , openness and accountability between leaders and the people they govern.

The right to access information is codified in Article 19 of the Universal Declaration of Human Rights adopted by the UN General Assembly resolution ob December 1948. Similarly Article 19 of the International Covenant on Civil and Political Rights which came into force on March 23, 1976, to which Uganda is a party, provides that everyone shall have the right to hold opinions without interference.

That everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print , in form of art or through any other media of his choice.

Why then has the government not repealed the obnoxious laws that still exist on our statute books? Why again, should public officers like the IGG, herself a learned judge, hide behind an obsolete piece of legislation – to intimidate and harass journalists?

Perhaps the answer to these questions can be found in Uganda’s abhorrent culture of secretiveness and impunity; where the leaders of this nation at all levels are under an illusion that they are immune or above the provisions of law.

They shameless fear public accountability and scrutiny . They don’t want their actions to be questioned by anyone, least we the ‘lesser mortals’. They will try everything within their means to stifle free speech, to gag the media, civil society, the opposition and even the people they lead.

It’s this culture that breeds intolerance, violence and dictatorship, which ultimately leads to failed states. And who bears the brunt of all this mess-- the ordinary people– you and me. Our misery is in most cases colossal and we have nowhere to run to because most of the institutions that would ensure our very survival are in most cases compromised.

Some of these sacred rights of an individual were well expounded in the Supreme Court case of Charles Onyango Obbo and Andrew Mwenda versus the Attorney General.

The court considered the decision of the Supreme Court of Canada in which Mclachlin J, who wrote the majority judgement rightly observed that tests of free expression frequently involve a contest between the majority view of what is true or right and an unpopular minority view. She however ruled that while a particular content of a person’s speech might “excite popular prejudice” there is no reason to deny it protection.

In other words, if there is any principle of the constitution that more imperatively call for protection, than any other it is the principle of free thought-not free thought for those who agree with us but freedom for thought that we hate.

The writer is a journalist and advocate

Tuesday, December 4, 2007

Uganda sliding freely to climatic tragedy

Uganda sliding freely to climatic tragedy
In rising seal levels and expanding deserts in ravaged rain forest like Mabira and mushrooming slums Uganda, just like the rest of the world, is already experiencing human and environmental degradation with catastrophic ramifications.

It’s only two weeks ago that most low lying areas in and around Kampala city were flooded to un-precendended levels that left at least three people dead. And the situation can only get worse.

The Fourth Assessment of the Intergovernmental Panel on Climate Change (IPCC) states that the impacts of human-induced climate change are likely to be felt in poor countries and poor communities like Uganda first. Uganda has already been listed among the 100 most vulnerable countries whose over a billion people face a bleak future.

And the IPCC is emphatic in its assessment; stressing that human-induced climate change is likely to have the heaviest impact on small low-lying Island and coastal states, African nations, and Asian mega-deltas.

Ironically, the 100 most vulnerable countries have contributed the least to total global carbon emissions with the United States of America, European Union, China and India being the major world polluters.

With well over a billion people in 100 countries faced with a volatile future, the IPCC has warned that this worrying situation, coupled with entrenched poverty, degraded or threatened environments will lead to more frequent natural disasters that could tip the poor nations like Uganda over the edge into chronic famine or forced migration.

The greatest impact of climate change is already being felt on one of the world’s poorest continents - Africa, with unpredictable and unusually harsh weather conditions being felt in most countries including Uganda this year alone.

In Uganda , we don’t need to look else where to understand the causes of the erratic climate changes. Our forests are under severe attack by some of the most imprudent policies and decisions of our national leaders to destroy the forest cover in support of industrialisation.

In Kampala alone, corrupt and short sighted officials have released wetlands and green open spaces for unplanned construction sites.
Human social economic development activities including forces related to population growth, technology lead to increase in the concentration of green house gases (GHG’s) in the atmosphere that greatly affect the global climate.

The Heads of Government of the Commonwealth, who have been in Kampala for Chogm 2007, noted and expressed grave concern about the threat that climate change presents to human security and economic well- being. But is it enough for our leaders to just sit and mourn about a sickening situation without doing much to avert it?

This is not the first time that the Commonwealth leaders and their colleagues in the rest of the world have signed conventions and declarations that remain good on paper- as millions of people continue to suffer under severe climate conditions.

Take a situation of Kampala where slums and low lying areas are submerged whenever it rains leaving thousands of people in hopeless situations.
There is the 1997 Kyoto protocol that expires in four years, the UN Framework Convention on Climate Change (UNFCC); the 1989 Langkawi Declaration on the Environment when the Commonwealth Heads of Government first defined ‘our’ collective concern over serious deterioration of the environment as a threat to the well-being of current and future generation.

While most of these international legal instruments were well intentioned to keep the global environment stable –no serious effort has been made by the governments to enforce them. It’s imperative that threats to the environment be viewed and addressed in a balanced perspective, mindful of the needs to eradicate poverty, provide sustainable development, and enhanced quality of life for all.

The cruel wealth conditions experienced in several parts of the country this year should serve as a wake-up call for our national and local leaders to jealously protect our environment. The inter-generational environmental law principle calls for equity in the exploitation of environmental resources between generations.

The principle demands that the present generation should ensure that the health, diversity and productivity of the environment are maintained for the benefit of the present and future generations.

The writer is a journalist and advocate
0772 43 46 77

Tuesday, November 27, 2007


Commonwealth chair is Museveni’s big test
Now that Chogm has passed, it’s imperative that the country takes stock of the historic week when citizens once again demonstrated that they can stick together to attain a common objective.

President Yoweri Museveni, now has the privilege and right to be the Chairman of the Commonwealth community for another two years after the country successfully hosted a major international event since Independence.

As the organisers chest-stamp and indulge themselves with glee, the Chogm 2007 will truly have extraordinary consequences for the country and its leadership on the world stage.

The bar has been raised; Uganda’s holding of the chair for the Commonwealth will have the country come under intense scrutiny for the next two years on matters of democracy , rule of law and respect for human rights.

President Museveni, appeared to suggest months before Chogm that his government will not slip back to the dark days when oppressive governments undermined people’s fundamental rights to live in a free society.

Mr Museveni said that this will not happen especially now that he is the chairman of the Commonwealth. Much as the president can be given a benefit of doubt on his promises to realise democratic governance; growing our democracy will take more than just the spoken word. The role of good governance in boosting economic growth and development cannot be underestimated.

This is the reason why , the successful hosting of Chogm should not mask a multitude of problems the country is facing which include among others the total lack of respect and accountability by our national leaders to the 11 million voters that gave them the mandate to lead this country to prosperity.

There is still widespread –call it rampant corruption, the deliberate undermining, by the executive, of parliament and the judiciary which should ideally check against the excesses of the state and the apparent lack of general respect and tolerance to critical views and opinions of Ugandans; let it be the media, (event after being accredited, some reporters and photographers from the independent media were denied access to some state functions during the queen’s visit which again shows lack of tolerance and fair competition in our business).

But even opposition leaders must be tolerant to the views and decisions of the majority. That’s how a vibrant democracy functions.
A situation where our national and local leaders care too much for their own well being and too little about the people they lead, the peasantry that live on less than a dollar a day (just about Shs900), should also be urgently reversed.

At the opening of the business forum at Sheraton Hotel, President Museveni was quite persuasive in his arguments for the 900 Africans to ‘burst onto the world stage by exporting value added commodities and touch off an “Africa Industrial revolution”.

He rightly bemoaned the widening inequalities between the developed and developing world. But this inequality is also very evident in Uganda where the gap between the rich and the poor has assumed alarming proportions. For now , the government has done very little to improve the peasants’ lot. Charity should begin at home.

The country would save a lot of money from thinning the rank of idle cadres who have openly complained about being redundant and bored. The cost of Mr Museveni’s unprecedented huge government is simply astronomical!

The president should do the logical thing- cut down on the number of ministers, RDCs, presidential advisers (you can have one per region) and use the money to strengthen and professionalise national institutions the way he has done with the army and police.

Now that the country is relatively peaceful, we need to cut down on defence spending as well, to help extend to the countryside the un-precedented pre-Chogm renovations and construction witnessed in Entebbe and Kampala. Remember the country should, as a must, maintain these facilities together with the beautification and general high level of cleanliness experienced during Chogm. For those who pocketed the Chogm funds now is the time to account.

The out going Commonwealth Secretary General Don McKinnon, a very pleasant man and accomplished diplomat, said, “the Commonwealth should be true to our values; freedom, democracy, human rights, the rule of law and opportunity for all, especially women and young people. He then posed a question-what is the most important thing in the world? People! People! People!” What a wonderful way to say his adieu!

The writer is a journalist and advocate

Tuesday, November 20, 2007

Chogm; we want fair trade, not aid

Chogm; we want fair trade, not aid

About 5,000 heads of government, delegates and the international media descend on the capital Kampala this week, not only to participate in the Commonwealth Heads of Government Meeting (Chogm), but also to have a feel of what Britain’s greatest statesman, Sir Winston Churchill, described as the Pearl of Africa.

The theme for this year’s historic event is: transforming Commonwealth societies to achieve political, economic and human development. The theme is a perfect reminder about the growing gap between the developed world and the so-called third world countries in terms of socio-economic and general human development.

This is why Chogm is a crucial forum to address the fundamental causes of this inequality and work out practical solutions to bridge the gap. This target is particularly important because the rich nations are getting richer while the third world is becoming poorer.

The Chogm forum should not forget that the social and political revolutions of the 19th century were partly due to this inequitable social conditions in the various societies while ideological polarity(division) was to cause two world wars in the last century.

Africa has a great potential, with vast minerals and a huge total land area which if well managed with good leadership, trading policies and fair trade regulations can spark a second industrial revolution. Chogm should place emphasis on fair trade among the member countries and work to eliminate the handouts from the first world in form of aid.

Needless to say, that apart from fanning corruption , aid plays to the advantage of the giver– the richer nations of the world which keep the poor –mineral rich countries dependent and in many ways, economically colonised. What we need in the Commonwealth group is fair competition and eliminating subsides that give developed countries unfair advantage.

For instance according to the UN 2005 Human Development report, the trade barriers for the poor countries exporting to the rich countries are on average three to four times higher than those of the rich countries exporting to each other.

The Commonwealth leadership seems to have taken note of this worrying situation and is now focusing on trade regulation as an area of growing importance to Commonwealth countries and, correspondingly, for the Economic and Legal Section (ELS) in the Special Advisory Services Division of the Commonwealth Secretariat.

ELS has extended its traditional platform in this field- from designing legislative and institutional arrangements in trade-related areas, particularly investment and competition policy- to providing legal advice on implementing multilateral trade rules through the establishment of sustainable regulatory frameworks.

And there shouldn’t be any artificial bottlenecks in fast tracking this effort because the Commonwealth Secretariat which is the central administrative organ of the Commonwealth community is mandated, among others, to promote the rule of law as an essential part of its efforts to enhance good governance and development in member countries.

The legal cooperation is a unique feature of the Commonwealth, made possible because member countries have similar legal systems, most based on or greatly influenced by the common law principles and practices.

It’s imperative therefore that the Commonwealth delegates urgently hammer out a roadmap that will harmonise trading patterns by putting in place solid trading policies which is fair to all members.

All the member countries should be encouraged to actively make good use of the Special Advisory Services Division (SASD) of the Commonwealth, which focuses on Debt Management, Economic and Legal Services, Enterprise and Agriculture, and Trade.

Member countries especially the host Uganda, should also engage the Economic and Legal department of the Commonwealth secretariat which provides technical assistance that focuses on reform of regulatory environments in Commonwealth countries to encourage investment and export growth.

The underlying rationale is to help members derive greater benefit from the opportunities provided by globalisation. Economic cooperation in the regional states should remove trade barriers, harmonise taxes, guarantee free access to markets across borders and establish joint infrastructure.

The writer is a journalist and advocate

Tuesday, November 13, 2007


Museveni, now why plead for killers?
November 13, 2007
The debacle about whether Joseph Kony and his LRA gangsters should escape justice by benefiting from government’s amnesty has taken on a new twist with sharp differences emerging in the rebel camp about the future of the ongoing peace talks.

The fate of LRA’s second in command, Vincent Otti, is unknown after he was allegedly arrested by Kony, the LRA’s top ho ncho, who is not interested in peace. And this should not come as a surprise to many, even after spending a year and billions of shillings of taxpayers’ money wooing the insurgents out of war they shouldn’t have started in the first place.

For Kony and his LRA marauding ragtag vicious army now estimated at 600 strong, the human tragedy in northern Uganda was just a game. They derived much, very much pleasure from maiming, raping and abducting thousands of Ugandans; the young, the old and all.

The LRA butchers forced their captives to chop off each other’s limbs and lips. Kony and his gangsters forced children to shoot and kill their grandparents, mothers and fathers, their clansmen including pregnant women. Their indiscriminate, criminal acts spared none. It’s therefore contemptuous of President Yoweri Museveni, an elected national leader, to feel sorry and even plead for the life of Otti to be spared. The two men who are at the helm of the atrocious LRA are war criminals who should be at The Hague facing trial for war crimes and crimes against humanity.

Who cares that they are in a sticky situation and have turned their blood stained guns against each other? What goes round comes around! The blood of so many people killed at the hands of these two men and the gangsters they lead has come to haunt them.

There is no place for war criminals in the civilised world and this is what has informed the fast evolving international criminal and human rights law. That’s why Kony and four other leaders of LRA are now indicted by the International Criminal Court (ICC) on 33 counts of war crimes and crimes against humanity committed since 2002.

The ICC has since issued arrest warrants against Kony, Otti, Okot Odhiambo and Raska Lukwiya. Ironically, the public should note that the arrest warrants were issued after a complaint filed in the ICC by President Museveni, who is now pleading for these accused to be spared!

According to the Rome Statute that set up the ICC, crimes against humanity include murder, extermination, enslavement, exportation or forcible transfer of population, imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law.

Torture, rape, sexual slavery also form part of crimes against humanity and these must be committed as part of a widespread or systematic attack directed to a civilian population which is what Kony and his henchmen have orchestrated in northern Uganda for 20 years.

Since Adolf Hitler’s Nazi atrocities, international criminal law has taken a new dimension and has gone ahead to recognise a number of offences as being international crimes.
Once a person has committed war crimes as stipulated in the Rome Statute, such a person cannot benefit from the municipal/ local amnesty law. In the case of former Chilean leader Gen. Senator Augusto Pinochet who was arrested in London on a warrant from Spain requesting his extradition on murder charges, the House of Lords held that international criminal law principles take precedent over municipal or local statutes.

Pinochet, just like Kony, was arrested at the request of Spanish judges seeking to extradite him to face charges related to more than 4,000 political killings alleged to have taken place during his 1973-1990 brutal dictatorship in Chile. Although the Chilean government tried to protect Pinochet, the international community prevailed and the man was charged for crimes against humanity.

Similarly, Mr Museveni and his government cannot have the option of providing a safe landing for Kony and his men because the international community can still have them extradited for trial in The Hague. Kony and the LRA should be tried for the heinous crimes committed against the people of northern Uganda.
The writer is a journalist and advocate
Tel: 0772 43 46 77

Tuesday, November 6, 2007

The President is about to break the law

The President is about to break the law
November 6, 2007
President Museveni, at the weekend, reassured the nation that the executive is not about to alienate the rights of landlords in a renewed government effort to protect peasants from evictions and rent hikes.

Government is already in advanced stages of amending the Land Act to ‘protect’ peasants from land evictions. Among the proposed amendments is one intended to give the Minister of Lands more powers to order Resident District Commissioners to stop land evictions.

It’s been proved in the past though, that political interventions in land ownership and management matters- have not been particularly helpful in resolving the land question in this country. In fact ‘political solutions’ to the land problem that usually pit landlords against tenants (peasants) have abetted more conflicts.

Because the right to own property including land is protected in the Bill of Rights in our national constitution, it’s not politically prudent for our national leaders including Mr Museveni to side-step the provisions of the law in their pursuit of social justice.

In any case , equity and parity can only be realised by observing the rule of law. RDCs who are largely partisan have no constitutional mandate to stop the execution of a court eviction order in land matters.

Besides, the Registration of Titles Act (RTA) provides that ownership of land can only be recognised and enforced at law when a land owner erects to register his interests in land at the Land Registry upon which a certificate of registration is issued.

It’s only a certificate of registration that is conclusive proof of ownership of land . Any person without a certificate of registration can not lay a claim of ownership- meaning that such a person can be evicted from land at anytime upon a directive of court.

Because of these internationally accepted principles governing ownership of land as a major factor of production and in a broader move to resolve the conflict between landlords and tenants/squatters, the framers of our constitution in Article 237(8) provided for additional rights to protect the equitable rights of the peasants.

The constitution provides that persons in lawful or bonafide occupation of land shall enjoy security of tenure. This new set of land rights coupled with the traditionally known mailo, freehold (under these two tenures land is owned/held in perpetuity), leasehold and customary, form the country’s land tenure system.

The Land Act defines lawful occupant to mean a person occupying land by virtue of the Busuulu and Envujjo law 1928 or that person(s) who entered the land with the consent of the registered owner. The other category of lawful occupants protected by the Act are those in occupation of land under customary tenure but whose tenancy was not disclosed or compensated for by the registered owner when he or she applied for a public lease over the land.

On the other hand, a bonafide occupant of land according to the Land Act is one who, before the enactment of the 1995 Constitution, had occupied or improved land without being challenged by the registered owner of the land or his agent for 12 years.

Bona fide occupant also refers to a person (or a successor in title of such a person) who had been settled on land by the government or its agents including the local authorities such as district councils. The law also treats a bona fide occupant as a tenant by occupancy and is required to pay ground rent not in excess of Shs1,000 (per annum).

It’s clear from the provisions highlighted above that the main mischief the constitution and the Land Act sought to cure was the eviction of millions of landless people. But much as we have an elaborate law governing land, the conflicts between the landlords and tenants continue to grow because although the rights of the peasants are recognised by law, they are subject to the registered landlords under the RTA explained above.

And these competing rights can only be resolved through purchase or lawful transfer of property rights from one party to another or acquisition after adequate compensation or purchase at open market value.

Much as the government has made strides in securing the rights of squatters (peasants), nothing or little has been done to address the residual problems of offering adequate compensation to the landlords on whose land the squatters acquired equitable interests under the constitution and the Land Act respectively. Government should economically empower peasants to purchase and own land.
The writer is a journalist and advocate
0772 43 46 77

Tuesday, October 30, 2007


President Yoweri Museveni is at it again, this time round calling for the amendment of the Land Act to effectively oust the jurisdiction of courts in land management matters. For the second time in as many months, the president’s move is bound to put him on a collusion course with the judiciary especially when the constitution provides for the sacred doctrine of separation of powers between the two major pillars of the state.

The legal fraternity through their professional body – the Uganda Law society have already voiced their concerns in an open letter to the president which was published in Daily Monitor last week.

Apparently Mr. Museveni is angered by the decisions handed out by judicial officers in land cases which decisions he claims have led to the unfair eviction of tenants(peasants) . The president’s misgivings are also shared by one of his generals –Gen David Tinyefuuza who called on tenants to defend themselves by means of ‘revolutionary justice’ against land owners.

The learned General Tinyefuuza went a step further to incite the masses to take the law in their own hands by calling upon the police not to protect court brokers who lawfully evict people from land.

The executive’s continued efforts to undermine the institution of the judiciary which is one of the national institutions mandated by the constitution to check and stem the excesses of our national leaders will be a subject of discussion in this column on another day.

However, lets examine the legal fundamentals in respect of land ownership viz the NRM government’s failed attempts to legally secure land rights for the millions of landless Ugandans.

For starters, its not true that Uganda’s decades long land problem is a creation of the judiciary or judicial officers as president Museveni and his government purport it to be. Rather the Land problem is a creation of the political elite in the successive governments the country has had since independence.

The political bourgeoisie have continued to play the populists card to hoodwink the peasantry (the majority of whom are landless) by deliberately sidestepping the legal parameters that recognize the lawful registration of land as the only means through which both citizens and non citizens can lay a claim of right to land.

Security of tenure or land ownership is paramount for the development of any given society/country. There is no single investor worth their name, whether local or foreign will invest in a vital resource like land with out being guaranteed security of tenure.

And that’s why it’s very important that the courts of law as empowered by our constitution should continue to arbitrate in land matters to ensure that bonafide purchasers and owners of land have their rights protected under the law.

And for the record ,courts of law don’t enact laws. Rather, the judicial officials follow and apply the law as it stands on our statute books. In fact there is a clearly defined legal hierarchy right from the grade two magistrates up to the supreme court through which contentious legal matters of any manner and degree (including land matters) can be settled. The issue of lopsided judgments as Mr. Museveni claims will not arise under this arrangement unless when its considered in a political and not legal perspective.

The government is guilty for enacting a Land law – The land Act 1998 without first putting in place a national land policy and guidelines in the administration of the different land tenure systems in the country .

The government is equally responsible for the continued disputes between the landlords and tenants because it has failed to provide for a national land fund through which tenants can secure funds to purchase land or adequately compensate land owners for land lost to the customary tenants ( squatters).

As a result many of the sections of the Land Act are inoperative thereby making it difficult for people to secure their land rights. According to the constitution, the radical title to land (actual ownership) is now vested in the citizens of Uganda at large. This in effect means that the state no longer has reversionary rights over land.

The state can only acquire land through purchase or compulsory acquisition but after an adequate compensation to the land owner(s). The long standing -politically volatile relationship between the landlords and tenants/ peasants was never cured by the Land Act because the government has failed to economically empower the citizenry to purchase and own land.

Next week ; Why the provisions of the Land Act have been rendered redundant.
The write is a journalist and advocate
0772 43 46 77

Wednesday, October 24, 2007


Mulago HIV debacle and the Nazi trials
October 23, 2007
The protagonists of the practice of subjecting human beings to drug related clinical trials or experimentation justify their views on the basis that such experiments yield results for the good of society that are unprocurable by other methods or means of study.

But what the campaigners of drug related clinical trials on human beings don’t want to tell the unsuspecting public is the fact that these processes are flawed in many ways and some border on criminality.

For instance, in the recently failed HIV/Aids trials where an undisclosed number of Ugandan women were exposed to the dreaded HIV virus, the researchers and their European/ American backers refused to provide even mundane details about the fate of the vulnerable women who participated in the botched project.

They evoke the legally challengeable disclaimer clauses and the secretive nature of the contracts which the trial subjects sign. This is not any better than the days of the brutal dictator Hitler who called upon the Nazi physicians to help justify his policies of racial hatred with a ‘scientific’ rationale (racial hygiene).

There is need that before human beings are subjected to medical trials certain basic principles should be observed in order to satisfy moral, ethical and legal concepts.
The Nuremberg Code was a response to the horrors of the Nazi experimentation in the concentration death camps where the prisoner subjects were subjected to deadly medical experiments without their consent. The code has 10 provisions , two of which are designed to protect the rights of subjects of human experimentation and the eight others geared at protecting their welfare.

The voluntary consent of the human subject is absolutely essential. This means that the person involved should have legal capacity to give consent; should be so situated as to be able to exercise free power of choice, without the intervention of any element of force, fraud, deceit, duress, over-reaching or other ulterior form of constraint or coercion and should have sufficient knowledge and comprehension of the elements of the subject matter involved as to enable him make an understanding and enlightened decision.

The latter element requires that before the acceptance of an affirmative decision by the experimental subject there should be made known to him the nature, duration, and purpose of the experiment; the method and means by which it is to be conducted; all inconveniences and hazards reasonably to be expected and the effects upon his health or person which may possibly come from his participation in the experiment.

The law is to the effect that the duty and responsibility for ascertaining the quality of the consent rests upon each individual who initiates, directs or engages in the experiment. In this case the Ugandan researchers who participated in the failed trials have a legal duty to tell the Ugandan public what exactly went wrong and the mitigating measures that have been put in place to secure the lives of the people who participated in the trials. This is a personal duty and responsibility which may not be delegated to another with impunity.

International and local human rights principles also provide that clinical experiments involving human beings should be so conducted as to avoid all unnecessary physical and mental suffering and injury.

In fact , no experiment should be so conducted where there is reason to believe that death or disabling injury (like in the case of the failed HIV/Aids trials) will occur; except, perhaps, in those experiments where the experimental physicians also serve as subjects.

Much as section 40 of the National Drug Policy and Authority Act bars any person(s) from carrying out clinical trials in respect of any drug without a certificate issued by the National Drug Authority, the law is not comprehensive enough to capture the complex human rights concerns.

The National Drug Authority has come on record to state that they have drafted a new set of guidelines for the conduct of drug related clinical trials although they are not yet approved. The hope is that the NDA’s proposed legal framework will address the human rights concerns to ensure that no human subject participates in such trials unless there is a justifiable case for success.
The writer is a journalist and advocate
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Tuesday, October 16, 2007

Uganda needs law on trial medicines

October 16, 2007
An estimated 5 million new HIV infections and 3 million Aids deaths occur every year worldwide. And because of the huge magnitude of the HIV/Aids pandemic, the need to develop safe, effective and accessible prevention methods has become one of the most urgent global public health needs.

The latest sero survey results conducted by Uganda’s ministry of health indicate that about 7.9% of women compared to 6% of men are living with HIV/Aids. This grim picture perhaps explains why Uganda at all odds, should join the rest of the world to find a cure for the elusive HIV virus.

Just recently a group of women including Ugandans participated in failed HIV/Aids trials after the microbicide gel that was being tested among them as a potential preventive measure proved ineffective.

Microbicides are women friendly compounds that can be applied inside the vagina or rectum to protect against sexually transmitted infections including HIV. They can be formulated as gels, creams, films or suppositories. At least 1,33 women from six countries including Uganda took part in the failed trials and more became infected than those who didn’t participate in the trials.

The high prevalence of infection with HIV in some poor countries like Uganda combined with such countries’ inadequate resources for purchasing antiretroviral medications makes them ideal testing sites for candidate vaccines.

The problem is; Uganda doesn’t have a legal framework to regulate the conduct of biomedical research. There are no known national ethical guidelines before research is approved. Any country wishing to take part in scientific research involving human beings needs to have a national plan to address ethical and sometimes criminal issues because medical research should not be conducted in isolation of fundamental human rights.

The failed HIV trials in Uganda had been opposed by some parliamentarians who argued that Ugandans were being used as guinea pigs for experiments that could not be done in Europe and America. This was after some Ugandan scientists , a geneticist, a virologist ,and an immunologist raised fears that the people involved in the trials could undergo dangerous mutations that could lead to strange abnormalities.

They feared these could lead to the deaths like in the case of the infamous Tuskegee experiment in which American researchers mitigating the cause of syphilis denied treatment to African- American patients deliberately and without the patients’ knowledge.

There is also the issue of informed consent processes, possible coercion of volunteers and financial inducements against the greater public good/interest. International public law has developed principles to the effect that volunteers or human subjects in medical research should fully understand the risks before taking part in trials. The right to life must be safeguarded in all research. The universal declaration on human rights recognise the need to carry out experiments only when precautionary measures have been taken.

Human rights activists have presented a valid argument that it would be difficult to conduct trials of HIV vaccines in developing countries like Uganda because of scientific, social behavioral , ethical and logistical barriers.

These countries should first develop a valid reliable methodology to ensure the voluntary and informed consent to research. The fundamental legal and ethical principles of informed consent to research are well established: no competent adult may be used as a research subject without his or her voluntary, competent and understanding consent.

The most authoritative written statement of these basic legal requirements – the Nuremberg code, states that research should not deviate from the substantive standard of voluntary informed consent.

The Nuremberg code was passed after the trial of the ‘Nazi doctors’. This trial brought to light some of the most extreme examples of physician participation in human rights abuses , criminal activities and murder carried out in the concentration camps at the instigation of tyrant Adolf Hitler.
The second part of this article will be published next week.
The writer is a journalist and advocate

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Wednesday, October 10, 2007

Today’s Uganda where you are governed like Britons of the 18th century monarch

Today’s Uganda where you are governed like Britons of the 18th century monarch
October 9, 2007
Last week government summoned three Daily Monitor journalists over an alleged seditious story published in the Sunday Monitor titled: “Soldiers Training To Take Police jobs”.

Since the matter is now a subject of police investigation this column will not delve into the merits and demerits of the story. However, it’s prudent to examine the role of the media especially the independent media in a democracy if there exists one.

And this has to be addressed in the context of the constitutional rights of free speech, expression and access to information. Whether there is any justification for the existence of the law of sedition on our statute books – can’t even pass for a moot point.

It’s hard to reconcile the fact that our constitution provides for the Universal Bill of Rights where citizens are free to hold our leaders accountable while at the same time government retains a bad law that was designed to gag the media.

The offence of sedition has been rendered obsolete in other civilised democracies across the globe. This is for the simple reason that these medieval laws were enacted in the 18th century to protect the Crown (symbol of power) in the British Monarch. These were the times when everything was done at the pleasure of the king (rex) or the Queen (regina).

But people have since moved on and absolute monarchies ended many decades ago in the greater part of Europe and Africa. Obnoxious laws such as sedition were abolished to facilitate the growth of democracy where people are free to question the decisions of their leaders and make them accountable.

The offence of sedition is also frivolous in nature. The Penal Code Act provides that sedition or seditious intention is where a person or a group of people bring into hatred or contempt or excite disaffection against the person of the president, government by word of mouth, prints or publishes such material and circulates for the consideration of the public.

However, section 43 states that no prosecution in a seditious case can commence within six months and without consent of the Directorate of Public Prosecutions, (DPP).
Upon conviction such a person is liable (on first conviction) to imprisonment for a term not exceeding three years or to a fine of 30,000 or both.

And this then begs the question why would a person charged with a seditious offence wait for six months before he is tried? All this was designed to intimidate and gag the critics of governments or the ‘Crown’ as it were in Britain centuries ago.

Paradoxically the Daily Monitor journalists were summoned under a law that is a subject of Constitutional petition. Technically the operations of the said contested law stand suspended and are of no legal consequence until the Constitutional Court pronounces itself on the matter. This is what was decided in the case of Semuju and Tumusiime of the Weekly Observer.

The Constitutional Petition No. 3 was filed early last year at the Constitutional Court challenging several sections of the Penal Code: 39, 40, 41, 42, 43 and 179. These sections according to the petition are in violation of article 29, 30, 38, 41 and 43 of the Constitution.

Sections 41, 42, and 43 provide for the offence of promoting sectarianism, powers of courts to confiscate printing machines and prohibiting publications. The other law challenged in the Constitutional Court is section 179 which provides for criminal libel- where a person unlawfully prints, paints, writes or makes an effigy that defames another person.

All the above provisions of the Penal Code, according to the petition, violate the constitutional rights to freedom of conscience, access to information, expression, right to education and the general civil rights which permit Ugandans individually and collectively to participate in the affairs of the government and influence policies through civil organisations.

In an effort to justify its illegal actions government has on many occasions erroneously invoked article 45 which states that the enjoyment of fundamental rights should not prejudice the rights of others or public interest.

But the limitations to fundamental rights are qualified under the same article which bars political persecution and detention without trial. Government cannot also make reference to article 45 unless when done according to acceptable standards which are demonstrably justifiable in a free and democratic society. Parliament should expeditiously repeal all laws which don’t conform to the provisions of our constitution.
The writer is a journalist and advocate
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Tuesday, October 2, 2007


In that dead gorilla there’s a $3m fortune
October 2, 2007
I remember back then, during our good old school days the wildlife conservation movement was a very visible aspect of our country.

Almost all schools from primary to universities had well established wildlife clubs , where each member paid a token fee that went to the conservation effort. These small clubs formed the foundation for a national wildlife movement that not only taught the young generation what all it is about our wildlife- but also the importance of conserving nature with all it attendant benefits.

Sadly, today, this mighty movement is in deep slumber. Veteran activists are sunk in gloom –resigned to the back seat as our wildlife slides into absurdity. So what’s the cause of the wildlife crack-up? The obvious cause for this is the government’s flouting of the law and its failure to put in place a well articulated policy on environment conservation and wildlife protection. The government has both quietly and publicly encouraged or condoned illegal activity in the national protected areas like Mabira and Queen Elizabeth National Park where hundreds of herdsmen continue to occupy a wildlife sanctuary.

This ineptitude can perhaps explain why government kept silent while the rest of the world was mourning the brutal killing of three female mountain gorillas and one male silverback gorilla in the Virunga National Park along the Uganda-DR Congo border.

The gorillas were members of a group known as Rugendo. One of the surviving members of the group, the 5-month old baby Ndezi (whose mother Safari was killed), is now in quarantine and being cared for by the Mountain Gorilla Veterinary Project in Goma. The infant is still too young to survive alone in the wild habitat.

In January this year two mountain gorillas were killed in the same park. The skin of one gorilla was recovered from a latrine in a nearby rebel camp. The perpetrators of the killings were believed to be supporters of Laurent Nkunda, the leader of a new Congolese rebel group operating in the area. Just two months ago the country celebrated the increase of the gorilla population in Bwindi Impenetrable National Park in Uganda, a tourism resource that every Ugandan must work to protect.

Uganda is fortunate to be one of the three countries in the world that provide habitat to majority of 700 mountain gorillas surviving in the wild habitats today. These creatures which share a common ancestry with humans after chimpanzees live in the afromontane forest habitat that straddles the shared borders of Rwanda, Uganda and the DRC. For such a small population the unnecessary and indiscriminate killing of seven mountain gorillas since the year began amounts to a massacre.

Gorillas are by no means the only regional tourist attraction. A wealth of stunning wildlife, breathtaking scenery, challenging hikes and fascinating culture are, in themselves, persuasive arguments for visiting the region, especially the famous Bwindi Impenetrable Forest in the Kanungu border district.

According to the International Gorilla Conservation Programme (IGCP) – a coalition of the Fauna & Flora International, African Wildlife Foundation and the World Wide Fund for Nature- the annual revenue earned directly from gorilla tourism is estimated at $3 million.

When combined with the additional income received by, for example, hotels and restaurants, the total figure may exceed $20 million shared between Uganda , Rwanda, and DR Congo.

Therefore the long-term success of gorilla tourism hinges on the enthusiasm and commitment of government and the local communities around the parks to protect these animals.

Although Ugandan decision makers, especially President Museveni, are forever caught in a dilemma when it comes to regional security given the fragile foreign relations with our neighbours in DRC, the government must still find mechanisms that will compel ragtag militias operating along the common border to desist from killing mountain gorillas.

The Wildlife Act mandates government and its implementing agency – the Uganda Wildlife Authority to manage our national parks, protect and promote conservation of the country’s wildlife for the benefit of all the people of Uganda.
The write is a journalist and advocate
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Wednesday, September 26, 2007


The inspector General of police , General Kale Kaihura, last week pulled off yet another surprise when he declared the arming of traffic policemen whose notoriety for corrupt tendencies is known by all and sundry.

The police chief said the reason for arming the traffic police is to defend themselves against “attacks from errant motor drivers.”

General Kaihura has the authority under the law to arm and disarm the men and women he leads in the police. However,the proposal to allow the traffic police to carry firearms needs to be put in perceptive.

Policing around the world is evolving from the hitherto narrow preoccupation of protecting the state and its rulers to democratic policing which is largely founded on the principles of protecting individual and group rights with minimum use of force or call it violence.

This is particularly important for Uganda because the country is still grappling with the gun-culture problem a manifestation of our violent-turbulent political past. This is why, General Kaihura , most times a well intentioned man, and whose ideas reflect a sense of purpose to do good for the country- should not go ahead to arm the traffic police.

The Police Act allows policemen to use firearms in very few exceptional circumstances. These include cases where a person charged with or convicted of a felony escapes from unlawful custody or when a person who through force rescues another person from lawful custody or when a person through force prevents the lawful arrest of himself or herself or any other person.

The Police Act is even more explicit in section 28(3) where police officers are barred from using firearms unless such officer(s) has reasonable grounds to believe that he cannot otherwise prevent any act referred to above to effect the arrest, or has issued a warning to the offender that he is going to use the firearm and the offender does not heed to such warning.

The other acceptable circumstance where police personnel can use firearms is when their lives are in danger. Perhaps this is the reason upon which the Inspector General premised his arguments for arming traffic policemen. He says that there are instances where traffic police officers have been put on gun point by errant motorists.

But then again, how often will you find a motorists pointing a gun at a traffic police officer? Besides much of the traffic policing work is done during day time. There are hardly any traffic policemen on our roads beyond say 9 O’clock in the evening.

The police force has all the support mechanism including the patrol vehicles -their kintu kidogo syndrome not withstanding to back up police officers on duty. So, what is the logic, rationale of arming traffic policemen if this is not intended to breed more violence.

Given all this, the public’s angry reaction to Kaihura’s proposal is understandable. It seems, often times, our leaders tend to deliberately ignore a historical fact -that this country and its inhabitants have suffered to much ,for so long at the hands of gun wielding leaders and their personalized military machinery.

What the country needs now is to take guns off our streets and towns. Uganda is still listed among the countries that have grossly abused the Russian made Kalashnikov assault rifle also known as AK 47. The gratuitous behaviour where armed people draw a gun at the slightest opportunity should not be allowed to take root in our fragile young democracy.

In just over a month the country will host the Commonwealth Heads of Government Meeting (Chogm) to foster democracy and good governance the bench marks for this body of nations. Democratic nations need democratic policing , which is tailored at the peaceful resolution of disputes rather than the use of violence.

The principle of democratic policing calls for democratic values of tolerance and minimum use of force within our armed forces including the police.

Uganda being the host country for Chogm, should recognize the Commonwealth principles of accountability, transparency, participation, adherence to the rule of law, respect for diversity and democratic functioning which apply to police organisations.

Instead of arming traffic policemen, general Kaihura should launch a nation wide campaign to collect and destroy the thousands of illegal guns among the population . Only then shall we cement the peace and security ‘ushered in’ by the NRM government. Arming traffic policemen at this stage of the country’s development is simply a bad idea.

The writer is a Journalist and Advocate
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Tuesday, September 18, 2007

The Whittaker judgement could bring a smile to faces of nkuba kyeyo in America

The Whittaker judgement could bring a smile to faces of nkuba kyeyo in America
September 18, 2007
A recent decision by a USA court could mark a turning point in the lives of hundreds of thousands of Ugandans living and working in the United States of America. An estimated 10,000 Ugandans are believed to be living in the US.

Many of these are engaged in menial work locally know as (kyeyo) in their pursuit of the ‘American dream’. However, many of our brothers and sisters have not found life easy in the US. They are tormented by the ever prying eye of the US authorities who are always on the look out for the odd ones- the unwelcome illegal immigrants. And yet these are the people that the affluent American society hires to do the odd jobs- those that attract little pay and are left for the casual labourer.

In a recent case involving a Ugandan citizen, a US court stated that un-documented workers (or illegal aliens in the US) cannot be prohibited from asserting their legal rights. Ms Rosa Whittaker, an American citizen who is a Uganda government trade and investment advisor, lost a preliminary application to dismiss a fraud case which was filed against her by her Ugandan housemaid Ms Idah Zirintusa. Ms Zirintusa, a former employee at State House, sued Ms Whittaker at the United States District Court in Columbia, for fraud, unjust enrichment and illegal interference with her earlier contract with State House.

Ms Zirintusa alleged in her pleadings that Whittaker entered into a three-year oral employment contract pursuant to which Whittaker promised her four times the wage she had been earning in Uganda, full tuition at a US college, food and shelter.

Ms Whittaker further promised Ms Zirintusa to make separate payments to support her family which she left in Uganda. Ms Whittaker was also accused of violating various provisions of the US Fair Labour Standards Act (“FLSA”), D.C. Payment and Collection of Wages Law, and D.C. Minimum Wage Act by failing to pay her the minimum wage and overtime pay to which she was entitled for the domestic services she provided to Whittaker and her friend Harris.

Like in most cases involving desperate Africans and their American or European masters, Ms Whittaker didn’t deliver her part of the bargain. And upon institution of the case in court she tried to play the ‘alien’ card arguing that because Ms Zirintusa like many Ugandans (emphasis mine) was not legally permitted to work in the United States, she could not sustain her claims.

Whittaker also argued that Ms Zirintusa was not entitled to overtime pay under either federal or D.C. law because domestic service workers who reside in their employer’s residence are exempt from the overtime pay requirement. She (Whittaker) based her defence in part on the Immigration Reform and Control Act (“IRCA”) which makes it illegal for aliens to sue for breach of contract.

Fortunately, the judge was of a different view. Court stated that although the purpose behind IRCA was to eliminate employers’ economic incentives to hire undocumented aliens, nothing in the IRCA or its legislative history suggested that the US Congress (lower chamber of their parliament) intended to limit the rights of undocumented aliens.

The judge noted the fact that several courts in America have held that all employees, regardless of their immigration status, are protected by the provisions of the US Fair Labour Standards Act (FLSA.) Court thus sated that Ms Whittaker’s reliance on cases in which illegal aliens were not entitled to bring employment discrimination claims were un-convincing.

In this case court also considered one of the injustices suffered by Ugandans working abroad. And that’s fraud where people are lured into employment only to end being conned. The judge in the Ms Zirintusa case held that because she gave up her job at State House to take up Whittaker’s offer in the US, she had a right to claim her entitlements.

Then there is the issue of unjust enrichment ,where the foreign master will make you work like a slave and offer you a paltry pay. Court while considering the provisions of the FLSA that allow an employer to deduct the costs of food, lodging and other expenses from a domestic employee’s wages- stated that such deductions should be made after full payment of the employee for work done.

Much as there are many illegal Ugandan aliens living and working in the US, their rights as domestic workers or otherwise, should be respected. It’s only fair that one should receive a pay that is commensurate to work done.

The writer is a journalist and advocate
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Wednesday, September 12, 2007


Last week’s Judicial Roundtable on the Domestication of International instruments registered some startling views from the learned members of the bench who argued that suspects should stay on remand for longer periods without trial.

Apparently ,the justices led by court of Appeal judge , Amos Twinomujuni , were up in arms- criticizing parliament for amending the criminal penal law thus reducing the remand days for capital offenders before they can qualify for automatic bail from 360 to 180 days and 120 to 60 days for minor offenders.

Following these amendments to the Penal code, the right to bail for accused persons has become a controversial issue in judicial circles. Different judges have given different interpretations to the new provisions causing confusion not only within the legal fraternity but among the public as well.

With due respect however, their justices reasoning that the reduced remand period for suspects is a threat to public order and security since thugs and fugitives would have a field day should not go unchallenged.

Although courts of law have interpreted the constitutional right to bail to be discretionary and not an absolute entitlement, this should be read together with article 28 (3) which provides that every person who is accused of a criminal offence shall be presumed to be innocent until proved guilty or until that person has pleaded guilty.

Further still, article 23 of the constitution guarantees the protection to personal liberty – a right so important its only second to the right to life among those provided for in bill of rights provided for in chapter four of our constitution.

The exception to the right to liberty is for purposes of bring a person before court in execution of an order by court or upon reasonable suspicion that the person has committed or is about to commit a criminal offence under the laws of Uganda.

Article 23 also renders redundant the provisions of section 76 of the Magistrates Act which hitherto allowed a magistrate not to release a suspect from custody if its expedient for the protection of the public.

In the constitutional Court case of Uganda (DPP) vs. Dr. Kiiza Besigye, court noted that bail is a constitutional right which is derived from the presumption of innocence until proved guilty by a court of competent jurisdiction.

The constitutional court in this matter pronounced itself on the cardinal principle of constitutional interpretation. Court stated that when interpreting an article or clause of all articles bearing upon a subject matter under discussion, they have to be brought into purview and read or construed together as one whole so as to bring out the greatest effect of the document (constitution).

Bail court reasoned should not be denied mechanically simply because the state wants such orders. The refusal to grant bail shouldn’t be based on mere allegations, the grounds must be substantial.

This is the reason why parliament granted courts the prerogative to exercise their discretion to grant bail in exceptional circumstances as stipulated under section 15 of the Trial on Indictment Act , which include, old age, grave illness , obtaining a certificate of no objection from the DPP, infancy of the accused .

It’s not legally bidding therefore for judges to treat remand as a punishment. Suspects should be allowed to access justice because justice delayed is justice denied and this will always be unconstitutional.

A refusal to grant bail would contradict the suspect’s inherent right of innocence and indirectly suggest that the law presumes the suspect guilty of the offence before he is put to his defence in court. In fact parliament should urgently amend the law to reduce the remand days further.

Suspects should not suffer long remand periods without trial because of government’s inadequacies , incompetence and corruption experienced in the management of criminal cases.

It’s only last week that daily monitor exposed these inadequacies when it quoted a secret police report which indicated that a single detective in police handles 58 instead of 12 criminal cases a year. According to the police repot, crime is growing while state institutions are not responding adequately thereby denying Ugandans justice.

People should only be arrested when there is reasonable proof that they have committed a crime and the state should then expediently put them on trial.

Judges should also be reminded that we live in fragile political environment where flimsy charges are preferred against political opponents or vocal critics government without hard evidence.

This means that all Ugandans including flamboyant military generals are potential suspects or jail birds for that matter. The judiciary is a very important institution in ensuring the respect for human and civil liberties.

The writer is a journalist and Advocate
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Tuesday, September 4, 2007


President Museveni and his Cabinet are firing from different barrels
September 4, 2007
It’s ridiculous that government is once again flirting with the idea of degazetting part of Mabira forest and other wildlife areas in its renewed effort to appease a private business enterprise, Sugar Corporation of Uganda Limited owned by the Mehta family.

And this is after numerous environmental studies have indicated that it’s practically not possible to plant a natural tropical forest like Mabira with its diversity of plants and animals.

The conservation of Mabira forest and other protected areas remains a dodgy matter given the fact that government is sending out ambiguous signals. While a recent report from Cabinet indicated that government would consider the possibility of alienating part of Mabira for sugarcane growing, in the far off beautiful Murchison Falls National Park, President Yoweri Museni was busy assuring a conference on Leadership for Conservation Africa that national parks and gazetted forests would be protected at all costs.

The question then is; who is telling the truth? The contradictory statements coming out of government circles cast doubt on the ability of our national leaders to apply the law with honesty.

One thing remains clear though-- that threats of global warming to the survival of mankind are real. Just this year Uganda has experienced unprecedented weather patterns with the dry season spanning unusually long periods. The Inter-governmental Panel on Climate Change (IPCC) has warned that this century, global temperatures will rise between 1.8 and 4 degrees Celsius and that they might rise up to an alarming 6.4 degrees Celsius.

It’s only natural resources like forests that can mitigate the emerging dangers of global warming. There has been too much finger-pointing at State House and Parliament and the ping -pong games about saving what is left of the country’s forest cover and protected areas must come to an end.

It was only after sustained public pressure and court actions, that the managers of Bidco developed cold feet and, in the interim, they seem to have abandoned the idea of encroaching on the virgin Bugala tropical rain forests on Kalangala Island.

It has been argued in this column before that the National Environment Act, the National Forestry and Tree Planting Act and the Wildlife Act are three important laws that call for equity in the exploitation of environmental resources between generations.

The law demands that the present generation should ensure that the health , diversity and productivity of the environment are maintained for the benefit of present and future generations.

Therefore Parliament and civil society should not rest on their laurels. Parliament’s intervention is crucial in the Mabira saga because it’s clear the President and his Cabinet have not made up their minds yet, about conservation and optimal utilisaion of the country’s limited natural resources and the environment in a broader sense.
Otherwise why shouldn’t government make a public announcement that Mabira forest and other protected areas will never be sold or alienated in the name of ‘industrialisation’.

The positives we can take out of this quagmire is the fact that public opinion has been steadfast on this matter. The demonstration and threats for more demos is testament to the public’s resolve to save Mabira.

It is becoming increasingly apparent that virtually all aspects of diversity are in steep decline around the world. The Forest Governance Learning Group has just published its latest update report, which describes activities over the past year, impacts to date and all paint a grim picture.

Forests and other resources of national importance are under severe attack and ironically by politicians, the very people who are supposed to guide the citizenry to stem the destruction of our environment.

The National Environment Management Authority has said it will not approve any document seeking to degazette part of the Mabira central forest reserve for sugarcane production -that’s the logical thing to do.

The writer is a journalist and advocate

Tuesday, August 28, 2007


Information Act; a ship without a radar
August 28, 2007
Last week the Kenyan media won a major battle, when President Kibaki rejected a clause in the Media Bill that would have forced editors to reveal their confidential sources.

In a surprising move ,uncharacteristic of your typical African leader, Kibaki (maybe under intense pressure months a way from the presidential elections) described the clause as “offensive and a threat to democracy” and effectively threw the Bill back to parliament to delete the repressive clause.

That was Kenya. Back home, the government is in the process of drafting regulations to provide the platform for accessing records/information from public institutions under the disputed Access to Information Act.

The Act which came into force early last year was intended to operationalise Article 41 of the Constitution which guarantees the right of access to information in possession of the State.

This means that all information and records on government operations- in ministries , departments, local governments, statutory corporations and bodies, commissions and other organs and agencies of the State unless exempted by the Act should ideally be released for public scrutiny.

And this is for obvious reasons; the right to information has been proven to be an effective tool in supporting participatory democracy, development, the fight against corruption and holding public servants accountable.

Unfortunately, the Access to Information Act and its attendant regulations, is a law that’s far from realising these values. Although the law was aimed at promoting an efficient and accountable government, it’s in practical terms more restrictive.

It’s shocking to note that there are more sections in the Act which limit access to information than empowering people to know how their government is managing State affairs.

Attempts have been made to test the application of the Act. Advocates have applied to access the agreements entered into between government and companies which are exploiting the country’s oil resources in the Albertine Graben. But the Attorney General has flatly denied access to these agreement citing the numerous provisions of the Act which empower him not to disclose such information because it's confidential. The matter is now before court.

For instance the Act prohibits disclosure of information about a person’s private life, commercial information of the third party, what government considers confidential information, protection of law enforcement and proceedings, defence, security and international relations.

The process of accessing information is equally regressive since one has to wait for a record 21 days for the decision of the information officer to release such data. The Act also mandates only one person, the chief executive officer (read information officer), in the public institution to release the information. So generally, the Act is well outside the internationally accepted standards for information access. The right to information encompasses all other human rights.

The legal principles about Access to Information which represent the collective thinking of African governments Uganda inclusive, under the African Union, provide clear grounds upon which governments can limit access to information. But the grounds must be reasonable and justifiable in an open and democratic society.

The limitations on access to information as outlined in our law are too abstract too meet these standards. The scope of exceptions should be as close to specificity as possible and subject to the strict tests of ‘harm’ and ‘public interest.’ Blanket exemptions are liable to manipulation by the State to deny its citizens information.

A refusal to disclose information is not justified unless the public authority can show that the information meets a strict test; that such disclosure threatens to cause gross harm to the country and that the harm supercedes the public interest in having the information.

A good access to information law should conform to the universal principles which call for maximum disclosure. The framers of the Access to Information Act, either panicked, or were intimidated or simply did a sloppy job. They need to go back to the drawing board.

The writer is a journalist
and advocate

Tuesday, August 21, 2007


Government should make curative laws
August 21, 2007
The collapse of Uganda’s air industry in the mid 80s has for several years caused tremendous suffering to the ordinary traveller. There is a sense of isolation and abandonment among passengers especially those who ply the Entebbe -Nairobi route following the increased trade and cooperation in the East African region.

This malaise has contributed to the monopoly now being enjoyed by Kenya Airways much to the chagrin of the Ugandan passengers. A catalogue of problems associated with flying Kenya Airways is well documented.

These include delayed departures and arrivals, overbooked passenger schedules, passengers being subjected to long hours in transit, missed flights, let alone lost baggage.

Monopolists are known the world over for their exploitative tendencies and Kenya Airways’ unfair treatment of their Ugandan clientele doesn’t come as a surprise to many. For instance there is a huge price differential for passengers flying the now lucrative Entebbe-Nairobi route who pay $500 dollars compared to those flying the Nairobi-Mombasa route which costs $150 and yet it's the same distance.

This exploitation borders on criminality. Mr Daudi Migereko, while still minister of tourism, raised this matter but no action was taken. It’s a fact that our economy is liberalised and therefore government has no business in fixing prices. However, in situations of monopoly the authorities are obliged to intervene and ensure monopolists don’t apply their dominant positions in the market to the disadvantage of the consumers.

This is a huge problem which is not only limited to the air industry. Ugandans still have fresh memories of what happened at the advent of the mobile telecommunication industry in the mid 90s.

The same scenario can be said to be obtaining in the Shs2.4b Chogm awareness fiasco where two private companies employed their dominant positions to seal the Chogm publicity deal and effectively cut out competition.

Now the public is up in arms questioning the decisions of the Uganda 2007 Commonwealth task force and their agents, for placing mug-shots of Disc Jockeys (DJs) and artistes-- some of whom are not known beyond their audiences in the environs of Kampala-- on billboards meant to showcase Uganda's rich heritage. A whopping Shs400m has already been spent on these poorly thought-out undertakings.

Former presidential candidate Dr Abed Bwanika recently said the current bill-board scandal portrays the organisers as being too busy to be creative. But one may ask, being busy doing what? Given the sums of money involved, your guess is as good as mine.

The Ugandan public has suffered for too long at the hands of monopolists. Government must develop a body of legal and economic principles to regulate dominant market players. The antitrust law should be crafted in the context of the new East African Community dispensation, which allows for fair trading and business practices among the partner states.

Since President Yoweri Museveni has always played the Asian card to champion his development policies, we can still borrow a leaf from some countries in Asia.
Indonesia’s current competition policy seems to seek a balance between prevention of monopolistic behaviour and protection of small-scale businesses (fair competition) on the one hand, and facilitation of corporate restructuring which may involve mergers and acquisitions without hurting the consumer, on the other.

In Indonesia there is no specific law on competition per se but the country still manages to prevent 'unfair competition' through rules embodied in the law governing the creation and operation of companies. The rules prohibit mergers and acquisitions that result in monopolistic practices (1995 Law No.1); and rules (1995 Law No.9) that authorise the government to prevent the formation of a monopolistic market restructure.

Other rules have been established to set out procedures for mergers and acquisitions all designed to protect the public and small businesses from the bullying dominant companies.

Malaysia is in a process of drafting a Consumer Protection Bill. This legislation is intended, among others, to give confidence to investors both foreign and domestic that they will be protected from anti-competitive behaviour by incumbent dominant enterprises.

The Bill also seeks to restore public confidence that abusive and monopolistic behaviour will not be the outcome of the transition to a market economy. Uganda needs to take this route to address the imbalances in trading patterns in those sectors where there is no competition. In business and trade the rights of the consumer are paramount.
The writer is a journalist and advocate
0772 43 46 77.

Tuesday, August 14, 2007


Ploy to gag press is plot to stab democracy
August 14, 2007
The National Security Committee in tandem with the police Crime Management Committee is persuading cabinet to institute measures that will curtail the work of journalists and stifle press freedom and freedom of speech.

The police’s Media and Political Squad has been instructed to swing in action and pounce on those members of the public who make “irresponsible and criminal utterances against government and the person of the president.”

This comes at a time when our brothers across the border in Kenya are also caught in a similar quagmire: A new Kenyan media law will compel editors to disclose their confidential sources.

The Kenya Media Bill 2007 also intends to make cross-media ownership illegal, giving leeway to the government to deal with media houses perceived to have overstepped their limits.

Ironically both the Kampala and Nairobi regimes are working on laws that are supposedly intended to protect whistleblowers in the fight against corruption and other related vices in public administration. And this is the dilemma. How can the two governments protect whistleblowers while gagging alternative voices? You cannot eat your cake and have it.

That’s why the Kenya Editors Guild has stood up to fight for the people's freedom. They have described the new proposed media law as unconstitutional, archaic, unconscionable, inoperable, malicious and one that is clearly aimed at turning back the gains of Kenya’s 43 years of democracy. The situation in Uganda is not any different. The machinations of the National Security Committee to target journalists and other media practitioners are not only illegal but draconian in character.

In Uganda and Kenya, we practise the English common law principles that allow for journalists to be let free once they argue against revealing their sources on grounds of confidentiality. In essence, protection of sources is at the core of the practice of journalism. This is the gateway to the wider freedoms of speech and expression which are guaranteed in the Bill of Rights (Chapter 4) enshrined in our national constitution.

Although the 1995 constitution does not define what freedom of expression and speech means, a reference can be made to the 1962 constitution which defined these freedoms to mean; “the freedom to hold opinions and to receive and impart ideas and information without interference.” The Supreme Court has since held that the omission of this definition in the 1995 constitution did not alter the meaning or character of the said freedoms.

The protection of these rights is essential to our fragile democracy. These rights are the bedrock of democratic governance. Meaningful participation of the governed in their governance, which is the hallmark of democracy, can only be assured through optimal exercise of the freedom of expression.

It’s quite disheartening in this era to hear that an opposition politician has been denied access to a national resource like the Uganda Broadcasting Corporation (UBC) television or worse still having a journalist fired because he hosted an opposition leader. The UBC is a national television, which should serve and cater for interests of all Ugandans. It’s not a private enterprise that should be monopolised by one politician or political party. Democracy calls for tolerance of divergent views and allows the citizenry to make independent and informed decisions on how to be governed.

In the Supreme Court case of Charles Onyango Obbo and Andrew Mujuni Mwenda vs. Attorney General, the court held that it's difficult to imagine a guaranteed right more important to a democratic society than freedom of expression. Court said that indeed a democracy cannot exist without that freedom to express new ideas and to put forward opinions about the functioning of public institutions.

A USA Supreme Court judge, Justice Hugo Black, observed some 30 years ago: “The government's power to censor the press was abolished so that the press would remain forever free to censure the government. The press was protected so that it could bare the secrets of the government and inform the people to make democratic decisions.”

The Ugandan public and our Kenyan brothers and sisters deserve better. The freedoms of the media, expression and speech are protected by our constitution and they should be respected by the State.
The writer is a journalist and advocate.
0772 43 46 77

Tuesday, August 7, 2007


The last two months have witnessed a simmering bloody conflict between pastoralists (balaalo and Basongora) and the non nomadic communities , bringing afore the country’s long unresolved land problem.

The conflict is particularly distressing for the pastoral communities whose nomadic norms are a source of insecurity in some parts of the country. In the areas of Kiboga, the indigenous Baganda , have out-rightly rejected the idea of settling pastoralists in the area..

The plight of these landless people is not helped by the political main effort- which seems to be directed at persuading the nomadic communities to surrender their constitutional rights. President Yoweri Museveni has been quoted in the media to have stated that the question of resettling the “Balaalo” was out of the question because it cannot be the responsibility of government to settle people who sell their land and start roaming around.

The president must have got his facts wrong. There is no recorded case of pastoralists in Bullisa selling their land in order to encroach on other people’s entitlements . To the contrary the Bullisa pastoralists have offered a huge sum of money to one absentee landlord to secure their land rights .Unfortunately the offer has since been turned down.

For starters , management of pastoralist communities for sustainable development has remained a huge challenge for government partly due to the high levels of corruption. There is this infamous quote from a once powerful government official who stated that people where standing on dams which they couldn’t see.

The bitter truth was there were no dams to talk home about. Money was simply swindled and no quality dams were built.

This ineptitude on the part of government , its misguided policies such as the allocation of pastoral land for other uses- ranching in Mbarara, Masaka, Rakai and Nakasongola districts; failure to provide social services including schools, health centers, veterinary services, lack of an integrated approach in development projects are all but the cause of the current standoff.

There is also a lack of understanding of the pastoral context by non-pastoralists and
sometimes by the government which has led to depletion of rangeland resources
and impoverished such communities .

But more worrying though is the emerging pattern of land conflicts in the country which seem to be pitting one tribe against the other . The promulgation of the 1995 constitution brought with it very significant changes to our land tenure system. The radical title ( interest ) in land was vested in the citizens of Uganda.

This means that all Ugandans (pastoralists) included are free to own land and live anywhere within the boundaries of a country called Uganda. The land Act (as amended) which was enacted to operationalise the provisions of the constitution- created and protected a new category of land rights under the communal/ customary land tenure system.
By its very nature this is a complex land holding system. The right to control, use and ownership of land in pastoral communities derived from being a member of a given community.

Those rights are also retained by performance of certain obligations in the community. This means that user rights are guaranteed in form of farming and seasonal grazing, access to water, pasture burial grounds, firewood and other community activities. No single ,specific ownership rights of control are conferred on one person.

A good land tenure system should allow people with land rights to voluntarily sell their land and for progressive framers/ pastoralists to gain access to land. Similarly people should not be evicted without offering them alternative land for settlement .

And much as Uganda is a multi-ethnic society, government should not allow tribal sentiments/ interests to divide the country. The sate should firmly propagate the doctrine of integration and republicanism.

Ethnic isolation cannot work in Uganda not even when you consider the numerical strength of some tribal groupings. We are all Ugandans first and our tribes are secondary. This is the same spirit of oneness that is being promoted to fast track the East African political, social and economic integration.

People should not look at Uganda through tribal lenses. The land rights of pastoral communities should be protected.

Next week: Government should introduce an anti-monopoly law

The writer is a Journalists and Advocate
0772 43 46 77

Thursday, August 2, 2007


Sodomised? Courts must offer remedy
July 31, 2007
Mr Julius Lukyamuzi alias Kitaka who says he was sodomised by one of Kampala’s pastors is yet to receive justice, two years since he first reported his ordeal to the authorities.

To-date, even after numerous media reports implicating a host of pastors for having covered-up the lewd acts committed against Lukyamuzi, the Directorate of Public Prosecution, (DDP) is yet to commence criminal proceedings against the perpetrators of these heinous crimes.

To the ordinary person this is not surprising though because it is a well-known fact that the cost of justice in Uganda is indeed very high. For the rich and mighty, the police and DPP’s office will always act pretty quickly to either institute criminal proceedings or withdraw charges, depending, to protect their interests. For the poor, the down-trodden wretched masses, the situation is completely different.

The less privileged will suffer for long periods without receiving justice and that is if justice is to be accorded to them at all. Otherwise, how can one explain a situation where a complainant with medical evidence and other material evidence linking directly to his tormentors has not had any of the suspects arrested and arraigned before court for prosecution?

This kind of environment says other things too. It tells ordinary citizen that destiny is outside their control and that as a consequence, they have to be resigned to fate. In the process people give up their constitutional rights; the right to access justice among others.

Avid readers of this column may perhaps want to be reminded that public prosecutors under the DPP’s office handle criminal cases on behalf of the state and the wronged public.

The prosecutions handled by the institution of the DPP directly affect the public either as complainants, suspects/accused persons, witnesses or simply concerned citizens. This is the more reason why such prosecutions should be conducted in the spirit and letter of our Constitution which calls for fairness, impartiality and justice for all.

There ought not to be any justification for delaying the rendering of justice. This is because justice delayed is justice denied. It is the duty of all citizens to ensure that there is total adherence to the rule of law which allows for peaceful co-existence and protection from crime.

Much as there is selective administration of justice in this country, for Lukyamuzi not all is lost at least for now.
Just over a week ago the Roman Catholic Archdiocese of Los Angeles reached a record $660 million out of court settlement for 500 victims of sexual abuse dating back to the 1940s.

The settlement which means an estimated 500 victims will receive more than $1 million each, followed accusations against a Catholic priest, Clinton Hagenback, for molesting parishioners. In Uganda, we practice the English legal system which allows for an individual or group of individuals to file civil suits and claim compensation for wrongs suffered.

This legal course of action is particularly prudent in situations where the citizens are denied a remedy through our criminal justice system which is still bedevilled by corruption, laziness, personal interests taking priority over those of the wider public interest, outright political interference, and in some cases; sheer incompetence.

The law of torts (civil wrongs) provides for a fundamental general principle that it is wrongful to cause harm to other persons in the absence of some specific ground of justification or excuse.

Among civil wrongs from which an individual can successful claim specific, punitive and general damages from the suspected wrongdoer include what in law is referred to as trespass to person. Trespass to person has three main manifestations - assault, battery and false imprisonment.

It is on record that Mr Lukyamuzi suffered one of these when he was repeatedly homosexually assaulted. He says his anal anatomy has since been damaged and that he now moves around padded. Lukyamuzi and any other person in his situation can recover damages from those who have caused them much pain.

Lukyamuzi can be awarded damages by the courts of law for the suffering occasioned to him. The pastors responsible should pay heavily for the sinful, vulgar and criminal acts inflicted on a young man whose future has been ruined.
Next Week: The communal constitutional land rights of pastoralists such as the Balaalo.

The writer is a Journalist/ Advocate
0772 43 46 77