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
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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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