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