WHERE IS THE CIVILITY OF SECURITY AGENTS?

Media freedom and other attendant rights accorded to an individual by our constitution, last week received a boost when the High Court in Fort Portal ordered for the reinstatement of a political radio programme which was ordered off the airwaves by state security operatives.

Justice Rugadya Atwooki concurred with advocates representing Life FM, a private rural radio station, that the security agents' actions were unconstitutional and violated the Electronic Media Act. The judge ruled that the suspension of a political radio programme by state agents was inconsistent with what is acceptable and demonstrably justifiable in a free and democratic society.

Although for sometime now, the courts have been slowly developing our jurisprudence in all spheres of media law, this particular case is unprecedented because unlike in the past where the majority of settled media cases largely involved the print media (newspapers), the judgment in Fort Portal concerned itself with the electronic media (radio).

We have heard threats from government officials and the president to deal with radio stations or presenters who freely debate and tackle issues of human rights, democracy, corruption, good governance and the general rule of law.

This is because in most cases, the issues discussed directly affect the state and the people who run it . But instead of owning up and engaging their critics, our leaders often and unjustifiably, consider such critical views as treasonable and use the state machinery to muzzle them. Why should a spoken or written word be taken to be treasonable? Why should Ugandans tolerate incendiary statements by our leaders and army generals yet they (the masses) are denied the same freedoms to express their thoughts?

The free flow of information and ideas lies at the core of the very notion of democracy, which is effectively about respect for human rights. Democracy is about accountability. The public have an alienable right to scrutinise actions of their leaders and engage in open debate about the general welfare of the country. Unfortunately, our leaders at all levels are terribly afraid of these values and just don’t want the people to know the goings on in government .

And the reason for this belligerent behaviour, the intolerance and genuine fear among our largely corrupt, undemocratic leaders is clear- they have turned themselves into the law. It’s common knowledge that in rural areas and up-country towns, state operatives are on the loose! They are increasingly exploiting people's ignorance of the law and their constitutional rights to harass, intimidate and in worst cases terrorise the masses with abandon.

A case in point is the Life FM station in Fort Portal where a whole Regional Police Commander Martin Abilu who should have known better that media freedoms are constitutionally protected ordered the management of the radio station to “immediately and forthwith” suspend the “Twerwaneho” programme because, to him, it incited public anger against the government.

Why can’t our nation learn from other advanced democracies where restraint and tolerance for opposing views has become the cornerstone for upholding civil liberties!

Let’s take a recent scenario in the United States where inflammatory remarks by pastor Rev. Jeremiah Wright, the hitherto leader of Chicago’s Trinity United Church of Christ, shocked the American society.

Rev. Wright, who for 20 years was the pastor of Mr Barrak Obama, a popular candidate for the USA Democratic Party nomination, accused the US government and whites generally for giving black people drugs and building bigger prisons for them. He then called on God to damn America for treating its citizens as less than human.

President Bush’s right wing Conservative Party which controls White House, did not send paratroopers to close down Trinity United Church of Christ nor did they arrest or arrange prosecutors to charge Rev. Wright.

Similarly, Mr Obama did not disown his long time pastor. Instead he (Obama) and the rest of the Americans and the media, have engaged Rev. Wright in a civil manner to show that his remarks are outdated, wrong and have no place in the modern era.

Surely, can’t Ugandans especially our national leaders borrow a leaf from this! Can’t we for once, in our 30-year turbulent political history, learn to engage each other in a more tolerant fashion and resolve our differences political or otherwise, in a civil manner?

The write is a journalist and advocate
msserwanga@gmail.com

ICC INTEGRITY SITTING AT THE CROSSROADS

ICC integrity sitting at the crossroads
The Human Rights Watch has warned that the International Criminal Court, set up to handle the world's most heinous crimes, risks failure if Joseph Kony, the leader of the brutal Lords Resistance Army, is allowed to escape justice.

The international human rights watchdog has now challenged the 105 states that subscribe to the ICC to prove their commitment and have the indicted Joseph Kony and four other LRA leaders face trial on 33 counts of war crimes and crimes against humanity committed since 2002. The ICC has since issued arrest warrants for Kony, the LRA second in command,Vincent Otti , Okot Odhiambo and Raska Lukwiya.

The Human Rights Watch concerns should be taken seriously by law abiding Ugandans especially now that President Museveni, the man who took Kony to the ICC for war crimes, is about to renege on his word and offer Kony a safe landing!

But as Mr Museveni and the vicious LRA and their bloodstained leaders continue to play political mind games in pursuit of an elusive peace deal- Ugandans and the international community should not forget the torture, indiscriminate armed attacks Kony and his marauding rag tag army visited on civilians in northern Uganda for over 20 years.

There has been too much bloodletting and the LRA war which shouldn't have been fought in the first place, has cost the country billions of taxpayers' money plunging our economy into a crunch for two decades.

Kony and his fighters abducted and raped helpless school girls, they forced children to fight in a war for no justifiable cause, mutilated and massacred about 30,000 people in northern Uganda and displaced close to two million others.

Even as Kony and his henchmen engage in political maneuvers to circumvent the law, they are not shameful of the fact that they still illegally hold thousands of abducted people mostly children and women.

This is, therefore, a critical moment for the credibility of the ICC which is now sending out mixed signals- that it might after all, back off from its earlier stance that it had credible evidence against Kony and his gangsters who should stand trial in The Hague.

The ICC has asked the regime in Kampala to furnish it with information on the competence of the proposed war crimes courts that would try indicted LRA commanders in Uganda if a peace deal is reached.

This is a wrong signal to be sent out at the wrong time when the world is watching to see if the ICC shall stand up for its principal goals to guarantee that war criminals have no hiding place in the civilised world.

It’s now an established cardinal principle of international criminal law and in the spirit of the Rome Statute that set up the ICC; that war crimes and crimes against humanity are effectively international crimes not only visited on the people of northern Uganda but the civilised world as a whole .

The ICC enjoys international judicial independence and it should not allow its reputation to be soiled by the political machinations of the UN Security Council which is being courted by the Uganda government in cohort with the indicted war criminals to withdraw the indictments.

There is been an ongoing debate that national and international justice systems can be fused and in this case allow the ICC to work with the proposed Special High Court Division of Uganda to prosecute war crimes.

This is a lame argument. War crimes and crimes against humanity are international in nature. They affect the whole world and the perpetuators should stand trial conducted by an impartial and internationally recognised criminal tribunal. This was the spirit under which the ICC was established. And this is not the time to change the rules and goal posts.

Apart from municipal (local) judicial systems being prone to political interference, only a handful of Ugandan judges have the training and experience needed to handle war crimes cases. One of them is Justice Julia Sebutinde, currently working for the Special Court for Sierra Leone on The Hague-based trial of former Liberian president Charles Taylor.

Kony and his co-brutal murderers should stand trial for their criminal acts at The Hague to ensure the long suffering people of northern Uganda finally get justice.


The writer is a journalist and advocate
msserwanga@gamil.co.ug


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WHY DIFFERENT MEDICINE FOR SAME SICKNESS?

Why different medicine for same sickness?
Legal scholars have come to question why different judges, applying similar legal tests, have in some cases made ' strange' decisions to settle presidential and parliamentary election petitions.

The qualitative and quantitative tests which are applied by courts to determine election petitions are now a subject of intense debate in legal circles and the wider public. The two tests, for easy understanding, refer to the quality and numbers respectively in determining whether an election was held in accordance with the provisions of the law.

Ironically though, the two tests have been employed with varying degrees when determining election petitions. For instance in the last two presidential election petitions between Dr Kizza Besigye on the one hand and the Electoral Commission and President Yoweri Museveni on the other, the Supreme Court applied the quantitative test (numbers) to rule that the malpractices couldn't have affected the out come of the elections in a substantial manner.

The argument was that candidate Museveni had won the election by so big a margin that even if his opponent, Dr Besigye were to claim his stolen or missed votes- say due to multiple voting or intimidation of his supporters- still he could not overcome his rival’s lead.

However, the lower courts ( High Court) while determining the parliamentary and other local council election petitions, and this is the paradox, have differed and strictly applied the qualitative test ( the quality or fairness) of an election. To the lower court the issue is whether the election is held according to the provisions of the law. By applying the qualitative test therefore, the courts are not bothered by the game of numbers.

They are only interested in the parties alleging fraud to prove that the law was flouted to the extent that the election was nor free and fair and is thus a nullity. This was the case in the Abdu Katuntu vs Kirunda Kivejinja parliamentary petition.

Court held that there were proved election malpractices to warrant fresh elections. In the 2006 presidential petition, Justice George W. Kanyeihamba, was one of the three dissenting judges that did not subscribe to the application of the quantitative test to determine whether a party's chances of winning an election should be settled by looking at the numbers of votes stolen or gained rather than the circumstances and application of the law in the management of an election.

While warning himself about the ramifications of annulling a presidential election due to malpractices, he said that such a decision must be reached after careful consideration of substantial evidence that would amply justify the decision.

In Kanyeihamba’s opinion, there was sufficient evidence presented in the petition to enable the Supreme Court to decide that the results of the presidential election of 2006 had been fatally affected by the irregularities and illegalities.

He criticised section 59 (6) of the Presidential Elections Act, which in effect propagates for the quantitative test and provides that the courts of law must be satisfied that the result was not affected in a substantial manner as to warrant nullification.

The learned judge reasoned that the provision to use his words, “was to transport the judge(s) from the heights of legality and impartiality to the deep valleys of personal inclinations and political judgment.”

He further stated that the provision appears to have been inserted in the Act to militate against decisions which arguably may be correct and constitutional but might appear to be awkward and unacceptable because of their possible consequences to the nation.

And this is why circumventing the natural rules and principles of law whether legislative or otherwise is simply not a good idea for our democracy. This practice also sets a bad precedent and makes politicians and their supporters alike, to discard the judicial system in settling election disputes. Kenya is a good example.

In fact, Justice Kanyeihamba referred to the decision of the Supreme Court of South Africa in the case of Speaker of the National Assembly vs De Like 1999, where the court stated that the constitution is the ultimate source of all lawful authority.

That no parliament , however bona fide or eminent its membership, no president, however formidable be his reputation or scholarship and no official, however efficient or well meaning, can make any law or perform any act which is not sanctioned by the constitution.

That any citizen adversely affected by any decree, order or action of any official or body which is not properly authorised by the constitution is entitled to the protection of the court. It's been argued in this column earlier that there is need for the peace loving citizens of this country to re-examine our electoral laws to avoid bloodshed in future elections.

The writer is a journalist and advocate
msserwanga@gmail.com

Have the masses lost trust in the courts?

Have the masses lost trust in the courts?
Until Thursday last week when the two protagonists President Mwai Kibaki and Orange Democratic Movement (ODM) leader Raila Odinga penned a power sharing agreement, the December 2007 Kenya general elections had meant one thing and one thing only to most Ugandans: ethnic political bloodshed.

Just over two months into the mayhem even the most liberal estimates put the Kenya death toll at 1,000 lives. Machete wielding mobs from various tribes turned churches into scenes of mass murder. And all this suffering caused by self centered politicians who care less about the consequences of their illegal actions.

Among the items on the power sharing agenda hammered out by one of Africa’s distinguished diplomats, Dr Kofi Annan, is the establishment of a truth and reconciliation commission, a process aimed at healing wounds among sharply divided Kenyans.

But who is responsible for the hundreds of innocent lives lost in the political turmoil? Is it Raila Odinga or Mwai Kivaki? Both men take an equal share of the blame; one for failure to conduct an election in an honest manner, the other for inciting the public to get involved in ‘mass action’ basically taking the law in one’s own hands.

The Kenya situation is also unique- in a sense that unlike Uganda and recently Nigeria, disputes arising due to presidential election fraud have been or will be resolved by political means, regional and international diplomacy rather than judicial principles of law. The question then is; have our judicial mechanisms been rendered redundant in the political arena?

Is the Kenyan situation setting a precedent to the rest of the East African community that political differences/disputes especially the presidential ones, will be settled by fist fights on the streets and not in the court room?

Perhaps the answers to these questions can be found in the words of one of our celebrated Supreme Court judges and accomplished legal scholar, Justice George W. Kanyeihamba who stated: “the overriding constitutional dogma in this country is that constitutionalism and the 1995 constitution of Uganda are the Alpha and Omega of everything that is orderly, legitimate , legal and decent.

Anything else that pretends to be higher in this land must be shot down at once by this court (Supreme Court) using the most powerful legal missiles at its disposal.”

Justice Kanyeihamba’s words are contained in the preamble to his dissenting decision in the presidential election petition No. 1 of 2006 between Col. Dr Besigye Kizza (petitioner) and The Electoral Commission, Yoweri Kaguta Museveni (respondents).

In his judgment, Justice Kanyeihamba , alluded to some issues that if not properly handled can lead politicians and their supporters to opt for other means (in most cases violence) to resolve political differences. This is the situation pertaining in Kenya- where the opposition ruled out the possibility of taking their case to court outright.

In his decision Justice Kanyeihamba emphasised the fact that an inquiry into a presidential election must be conducted, concluded and its findings and reasons given expeditiously. The reason why the Kenya opposition opted for ‘mass action’ instead of running to court to seek a remedy is because they did not have faith in their country’s judicial system and may be the politically partisan officers that run it.

In the two presidential petitions determined by the Supreme Court of Uganda the fundamental issue of contention has been whether alleged election malpractices and failure by the Electoral Commission to conduct an election in accordance with the law affect the final results in a substantial manner.

For instance in the 2006 presidential election petition, the Supreme Court found that there was non-compliance with the provisions of the constitution, the Presidential Elections Act and Electoral Commission Act.

That voters were disenfranchised when their names were illegally deleted from the voters register and thus denied the right to vote. That there were irregularities in counting and tallying of the results, that the principle of free and fair elections was compromised by bribery, intimidation and violence.

Court further found by unanimous decision that the principles of equal suffrage, transparency and secrecy were infringed by multiple voting , vote stuffing and incorrect methods of ascertaining the results.

However, by a majority of four to three , the justices found that it was not proved to the satisfaction of the court that the above listed illegalities affected the results in a substantial manner to warrant fresh elections. Justice Kanyeihamba was one of the three dissenting justices who upheld the petition and nullified the elec tion.

Next week: We shall examine Justice Kanyeihamba’s reasons for his dissent and what it means for our democracy.

The writer is a journalist and advocate
msserwanga@gmail.com