Tuesday, June 26, 2007


same here
Make us believe in the graft fight
June 26, 2007
For the first time in the NRM’s 21 years in power, two senior former ministers have been arraigned in court on corruption and abuse of office charges. This unprecedented move seems to have convinced most countrymen that President Yoweri Museveni’s government means business after all.
The corruption fight was long overdue. Until recently, on most measures, Mr Museveni has done little to crack the whip. The president’s recent pronouncements in his state of the nation address about ‘zero tolerance to corruption’ and his missive about the Restrain Relatives Resistance Movement (RRRM) (DM, June 23) need to be put in perspective.
Has the president had a soul searching and personal reflection and is he about to make a u-turn and pursue his early political philosophy that encouraged social justice.If indeed Mr Museveni is serious that now is the time to stamp out graft in his big government and in all political and socio-economic aspects of our life then that puts public opinion on his side.
While some sections of the public are excited over the new-found government commitment to prosecute thieving public servants, others are apprehensive because the president has opted to retain a big government.
Big governments (69 cabinet and junior ministers for Uganda) are normally a fertile ground for corruption. Because the citizens have to endure a huge non functional bureaucracy, the officials that run state affairs turn into small gods who have to be praised and ‘tipped’ before delivering.
Their stories are woven around big contracts and colossal amount of money trapped in either government ministries or state enterprises. The same corrupt officials by trying to shield their ill-gotten wealth - intimidate and make the work of investigators and the media extremely difficult. In the end, the bigger the size of the government the more corrupt.
The president needs to borrow a leaf from the showy newly–elected president of France, Nicolas Sarkozy, who has put together a manageable government of only 25 ministers, half of whom are women. By working with a small unit of people the oversight role of the leader becomes much easier.
The legal regime governing the conduct of public servants is quite elaborate. The problem is the government’s reluctance or selective enforcement of such laws. The Leadership Code Act, the Commissions of Inquiry and the Inspector General of Government Acts are laws that have been enacted to deal with the vices of corruption and abuse of office.
The Commission of Inquiry Act generally provides for the powers of the president to appoint one or more commissioners and authorising those commissioners, or any quorum of them mentioned in the commission, to inquire into the conduct of any officer in the public service of Uganda.
We have already had a number of such commissions to investigate. Reports and recommendations have been made but no decisive action has been taken against the culprits.
That is why the public which has been smitten by the recent crack-down on suspected corrupt officials are at the same time disappointed by government’s selective approach to punish those who are indicted for abuse of office. If government is determined to eliminate corruption and create a zero tolerance regime then it must prosecute all the investigated cases.
Similarly, the Leadership Code and Inspector General of Government Acts provide for a minimum standard of behaviour and conduct of leaders. People who hold public office are barred from putting themselves in positions in which their personal interests conflict with their duties and responsibilities.
Corruption and abuse of office according to the law takes many forms and it is not only about stealing public money. You have heard about the sex for good grades scandals in institutions of higher learning – that is corruption.
The doctors who will not attend to patients until their hands are ‘oiled’, the police guys and their ‘kitu kidogo’ syndrome, a legal system which is fast in handling cases of the rich but terribly slow for the poor are among the many manifestations of corruption . Government should not apply double standards when dealing with a problem that threatens our very existence.
Next : The role of the Inspectorate of Government and the powers of the IGG .
The writer is a Journalist/Advocatemsserwanga@gmail.commsserwanga.blogspot.com0772 43 46 77.M. Sserwanga

Wednesday, June 20, 2007


same here

Leading us blindly in East Africa
June 19, 2007
In his State-of-the-Nation address on June 21, President Yoweri Museveni emphasised the need for regional integration reasoning that the advantages of such a grouping far outweigh the disadvantages.The 5th extra-ordinary summit of East African Community (EAC) heads of state and council of ministers which was opened in Kampala yesterday admitted two new member states: Rwanda and Burundi, to broaden and consolidate the benefits that come with regional political and trading blocs. As the heads of state re-examined their commitment and the progress made towards regional integration; they needed also to reflect on the provisions of the East African treaty which in the most obligatory language, require the Partner States to implement a dispensation of constitutionalism, democracy and good governance. The governments of the member states are also under a legal obligation to ensure the rule of law, and the protection and promotion of human rights in accordance with the provisions of the African Charter on Human and Peoples’ Rights.These obligations require that the process of enactment or amendment of the Treaty, its Protocols or any legislation subsidiary to them are lawful and do not infringe the Treaty or laws made under it, or national constitutions or laws, or settled principles of international law.It is now trite international law that the process of enactment or amendment of a Treaty, is people-driven, consultative and participatory. Peremptory (decisive) norms of international law call for enactment and amendments of treaties to be made in good faith - to strengthen, and not weaken, the organs, programmes and processes for which they are sought. In other words the principle of public consultation in Treaty reform or amendment is fundamental. One of the key issues that was addressed by the heads of government at the EAC Kampala meet is the recent illegal amendments to the EAC treaty which have since been challenged in court by the East African Law Society. Unfortunately, the EAC heads of state endorsed the illegal changes in the Treaty’s provisions.The purported amendments contravened the provisions of the Treaty itself since no wide consultations were made by the three governments. Indeed, the net effect of such illegal amendments will be to imperil the very life of the East African Community.The East African Law Society is on record that the process of amending the Treaty should be carried out according to the provisions of the Treaty. The regional lawyers’ body has noted that the amendments to the Treaty are aimed at creating avenues in which judges of the East African Court of justice (Eacj) could illegally be sacked, thereby undermining the institution of justice within the Community. Traditionally, ratification of international legal instruments such as treaties, conventions, protocols that legally bind nations for common purpose is the preserve of presidents and their ministers. However, this practice `has been abused by governments that opt to ignore the broader interests of the people they govern when entering into international and regional treaties.Because of these underlying problems associated with the unlimited powers of the Executive (the presidents and their ministers) to commit their countries to international obligations, the Kenyan parliament has recently wrested that power from Cabinet.In a bold move, the Kenyan parliament argued that agreements that bind the country in whichever manner must be endorsed and ratified in parliament by the people’s elected and nominated representatives. This should be the practice and the other member states in the community (including Uganda) should follow suit. It is also about time now that a general review of the East African Treaty is carried out by the three governments in a democratic manner involving all the peoples of East Africa. Some of the provisions of the Treaty are contradictory in nature and need revision. Take for instance the issue of having the sitting justices of the East African Court of Justice retaining their positions as judges in their respective countries of origin. This doesn’t only create a situation where there is conflict of interest but the judges are exposed to coercion and intimidation by the partner states. This is not good for justice.
Next week: The law on corruption should be enforced to the letter.
The writer is a Journalist/Advocate msserwanga@gmail.commsserwanga.blogspot.com0772 43 46 77

Thursday, June 14, 2007


same here
The right to abort is compelling
June 5, 2007
As the debate to legalise abortion sweeps the country, a startling issue of the competing rights of the unborn, the expectant mother and those of the father has emerged.And yet again, there seems no consensus among the different interest groups about which of the competing rights should take precedence over the other. These are legitimate concerns about the complex issue of the right to life.The anti-abortion lobbyists have wrongly portrayed abortion as being a sacrificial practice. Permitted, everyone has their views but I believe a case can and should be made that much of the discourse in the anti-abortion movement is also about sacrifice.The competing interests/rights of the mother, unborn child and that of the father have been tested in courts of law where the majority of the leading decided cases are rightly in favour of the right to reproductive health which encompasses the right to reproductive self-determination of a woman.The 1973 Roe v. Wade US Supreme Court decision is the leading authority on this matter. A single, pregnant woman in the state of Texas wanted to get an abortion. The state laws of Texas (just like our laws) at that time made it illegal to have an abortion in Texas...So the woman decided to sue the state claiming that her constitutional rights were being taken away from her. The state court ruled in her favour but the decision was not strong enough to change the arrests of abortion doctors in Texas so she took her case to the Supreme Court. The principal thrust of her complaint about Texan laws was that they improperly invade a right, said to be possessed by the pregnant woman, to choose to terminate her pregnancy. The learned Justice Blackburn, who delivered the lead judgment, noted that court resolved the issue by constitutional measurement, free of emotion and of predilection. The court also inquired into, and placed some emphasis upon, medical and medical-legal history and what that history reveals about man’s attitudes toward the abortion procedure over the centuries.And in granting the woman the right to abort, the court stated that where certain “fundamental rights” are involved, regulations limiting those rights may be justified only by a “compelling state interest.”There is another interesting case of Christian Lawyers Association of South Africa and others vs Minister of Health and others where the Christian brothers and sisters argued that the right to life includes a foetus from the moment of conception.The court was candid and stated that by extending the interpretation of the right to life to include the protection of a foetus would violate a woman’s constitutional rights. The European Court of human rights has made similar decisions over time, and the position that the right to life does not extend to a foetus is now well entrenched in its jurisprudence.What about the rights of the male folk who claim parentage of the foetus? Mind you, in the majority of cases it is these same men who after abdicating their parenting responsibilities lead women to make the difficult decisions to abort.The European Court of human rights has decided on this right when prospective fathers have petitioned it to stop their wives from having abortions. The court has held again, and rightly so, that the mother’s wishes are paramount and take precedence (emphasis mine) and that any law that seeks to take away the power to decide what is best for her is discriminatory. Courts of law have been emphatic that a pregnant woman‘s right as a person primarily concerned by the pregnancy and its continuation or termination supersedes any rights of the ‘potential father’.The right to health is also provided for by the African Union Protocol on the Rights of Women in Africa and it allows women the right to decide whether to have children or not, the number of children to have, and their spacing; to choose any method of contraception; control of fertility and to have family planning education.The government of Uganda is a signatory to these international instruments and should therefore ensure compliance to their provisions and should legalise abortion to allow a woman freedom of choice.
Next week: The effects of the recent illegal amendments to the East African Community treaty.
The writer is a journalist/ advocatemsserwanga@gmail.commsserwanga.blogspot.com0772 43 46 77


same here
Arrest the mischief in EA court
June 12, 2007
The Fifth Extra-Ordinary Summit of the East African Community (EAC) will be held in Kampala on June 18, 2007. The three EAC Heads of State – Yoweri Museveni of Uganda, Mwai Kibaki of Kenya and Jakaya Mrisho Kikwete of Tanzania will attend the Summit. Two other countries Rwanda led by Paul Kagame and Pierre Nkurunziza’s Burundi are expected to be admitted to the community. However, preparations for the summit aimed at opening up borders for the peoples of East Africa to realise political federation, unity in diversity and free trade are marred by the recent illegal amendments to the East African Treaty.The East African Law Society (EALS) has now sued the governments of Uganda, Kenya and Tanzania, in the East African Court of Justice (EFCJ) challenging the amendments. Hardly five years since signature, the leaders of the three member countries are already tinkering with the provisions of the Treaty – the principal legal instrument which set up the EAC. And all this is done to undermine the institutions of good governance, justice, the rule of law, democracy and observance of human rights.To make matters worse, the government of Kenya in tandem with their Ugandan counterparts amended the Treaty without even having the courtesy of consulting their respective national legislative assemblies. Only Tanzania sought approval of its parliament albeit that endorsement did not cure the illegal manner in which the amendments were made.The irregular and undemocratic amendments to the Treaty specifically affect Article 26(1) which purport to introduce a new proviso for the removal of judges of the East African Court of Justice. The amendments will also allow the member states to hand-pick hitherto unheard of ‘transitional’ judges .The amendments were a creation of the Kenya government after the EACJ bench ruled against its decisions to suspend some judges in 2003.Other amendments to articles 27, 30, and 140 of the Treaty all appear designed to limit the independence and jurisdiction of the EACJ.Another amendment which affects Article 23 of the Treaty seeks to create an appellate chamber at the EACJ. Although laudable in principle, there is genuine fear among the legal fraternity and civil society organisations that the three governments are working to set up an appellate chamber/court to staff it with cadre judicial officers.Unless accompanied by safeguards to have the proposed appellate chamber constituted with independent judicial officers and not cadres, who will succumb to the whims of the ruling governments to defeat justice and the interests of the peoples of East Africa, the amendments will remain bad in law.And much as Article 150 of the Treaty sets out an elaborate process and time-frame for proposing and amending the Treaty none of these procedures was complied with. In particular, the Treaty requires a formal written proposal, by either a Partner State or the EAC Council of Ministers to the Secretary General. Thereafter, the Secretary General is required to communicate the proposal to the Partner States, in writing, within 30 days.The Treaty then explicitly provides a mandatory 90-day period for the Partner States to deliberate on the proposed amendments. Only thereafter shall the Secretary General submit the proposed amendments, together with the comments of the Partner States, to the Summit for signature.The three governments did not only fail to consult the people’s representatives in their respective parliaments but amended the Treaty in a record 14 days. The itch for the three governments to weaken the vital institutions of the East African community is obvious.African governments and their leaders simply do not want to empower institutions that will challenge their authority. But this self-centred approach to national and regional issues is not good for democracy. The member states should not take advantage of the citizens’ ignorance of the provisions of the Treaty to flout the law. East Africans need to know why we are working so hard to federate while its institutions are being undermined..
Next: The power to amend, and ratify international treaties should rest with parliament
The writer is a Journalist/Advocatemsserwanga@gmail.commsserwanga.blogspot.com0772 43 46 77.