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