Thursday, July 31, 2008


Religion will not shield war criminals
One ardent reader last week expressed his disappointment that for once, this column, had lost its objectivity when it supported the trial of Sudanese President Al-Bashir for crimes against humanity.

The reader stated thus: “You do not deserve to be blamed. You are a victim of a well-organised and well-coordinated campaign against Islam and the Islamic way of life (including governance) worldwide.

This campaign is conducted on all fronts including, but not limited to, mass media propaganda, military invasions, economic sanctions and legal battles. But you also deserve the blame because despite your education background, you have accepted wittingly or unwittingly to be manipulated and used by global anti-Islamic elements.”

For the record, this reader’s views are completely at odds with the arguments that were made- that people need not politicise or radicalise in a religious sense, charges brought against dictators for war crimes and crimes against humanity visited upon innocent, unarmed civilians anywhere in the world.

The function of the International Criminal Court (ICC) as per the provisions of the Rome Statute is above manipulation for religious, political or any other benefit. The judges are given unprecedented independence in the performance of their functions.

The law bars judges of the ICC from taking part in any case in which their impartiality might reasonably be doubted on any ground. Similarly, neither the court’s prosecutor nor his or her deputy is allowed to engage in any activity which is likely to interfere with his or her prosecutorial functions or to affect confidence in his or her independence. The court’s prosecutors are also prohibited from engaging in any other professional occupation.

These are the same principles that govern the special war crimes tribunals set up under special resolutions of the UN General Assembly to try war criminals like in the cases of Rwanda and Yugoslavia.

And in that regard, the international community should take comfort in last week’s capture of Radovan Karadzic, a psychiatrist accused of masterminding the deadly wartime siege of Sarajevo and the executions of up to 8,000 Muslims in Srebrenica during Bosnia’s 1992-95 war, Europe’s worst massacre since World War II. The victims of this brutality were Muslims and this should cement the argument that international criminal law doesn’t discriminate against anyone along religious lines.

The suspected war criminal, Karadzic, has been in hiding for 13 years after he was indicted by the International Criminal Tribunal for the former Yugoslavia (ICTY) in 1995 on 11 counts of genocide, war crimes, crimes against humanity and other atrocities committed between 1992 and 1996.

Governments worldwide have applauded the arrest of the man described by the tribunal as the mastermind of “scenes from hell, written on the darkest pages of human history.” But for the victims and the entire civilised/free world the message is clear: massive human rights violations cannot go unpunished.

The capture of the fugitive demonstrates that nobody is beyond the reach of the law and that sooner or later, all fugitives including our very own, Joseph Kony, and his other indicted Lords Resistance Army (LRA) commanders will be caught and brought to justice.

In the land mark case of Pinochet, another dictator who was indicted for his savage and barbarous crimes, court stated that international criminal law imposes an absolute obligation to all members of the international community to help in the arrest and trial of suspects accused of war crimes and crimes against humanity.

Court further noted that offences against humanity may be punished by any state because the offenders are common enemies of all mankind and all nations have an equal interest in their apprehension and prosecution.
The international community should bring all its resources to bear on the process of ensuring justice and peace in the world.

The writer is a journalist and advocate

Tuesday, July 22, 2008


ICC will find easy evidence against Bashir
Another precedent was last week set in the international criminal justice system when a sitting president, Omar el-Bashir of Sudan and one of the worst military dictators on the African continent, was indicted by the International Criminal Court to answer charges of crimes against humanity.

The ICC indictments have been politicised, radicalised in a religious sense and even scorned at by renowned scholars in the field of humanities as being lopsided. This column will not engage in these side arguments.

Instead , let’s examine the fundamentals; the merits of the evidence provided to prove a prima facie case (that on the balance of probability there are criminal legal issues that the court should determine) and therefore Bashir has to be put on his defence.

We also need to do a quick recap- Bashir is the fourth suspected war criminal to be indicted by the ICC in recent time and arrest warrants are out for the leadership of the LRA who are still at large. The question then is, will this global court have all the indicted suspects face trial in the internationally accepted spirit of according justice to the millions of civilians suffering under the dictatorships and the attendant senseless wars?

Well, let’s start by addressing the merits of the evidence available for the ICC prosecutor to prove that there is merit in the criminal charges brought against Bashir so that he is put on trial.

In order to prove that the accused person committed crimes against humanity the ICC prosecutor has got to provide relevant facts in evidence. This he/she can do by providing documentary evidence ( moving or still pictures and or satellite images).

He can also call on the victims to testify as witnesses or to record their narrations to corroborate the brutality visited upon them by the notorious, vicious Janjaweed militia armed and supported by Bashir’s regime in Khartoum.

The documented facts, as we know them, are to the effect that there has been a long running bloody civil war in Darfur region in which Bashir has been a big player. During this war about 35,000 people have been massacred and rape has been used against the unarmed civilian women– as a weapon of war to mastermind genocide in the region. In all, about 2.5 million people have been subjected to a campaign of rape, hunger and fear in refugee camps.

The criminal acts of Bashir are not only limited to southern Sudan. The brunt of his brutality has been felt here in Uganda and President Museveni has stated that he has impeccable intelligence that Bashir has on numerous occasions over a long time, armed and funded the LRA and the Allied Democratic Forces (ADF) rebels who led to deaths of thousands of people in northern and western Uganda respectively.
So, the ICC prosecutor Mr Luis Moreno-Ocampo should not have any difficulty in proving his case before the ICC panel.

The argument made by some scholars that the conflict in Darfur started in the late 70s long before Bashir assumed power in Sudan doesn’t absolve the dictator. In fact the mass slaughter took place as recently as 2003-04.

The ICC also has limitations– it can only try cases for crimes committed after 1998 when the Rome Statute, the law that governs the court, came into force. That said, it’s also pretty damn obvious that a man of Bashir’s pedigree in criminal conduct, will not turn himself in for trial. Khartoum has already rubbished and made a silly legal argument that because they didn’t sign and ratify the Rome Statute that set up the ICC, they cannot submit to its jurisdiction.

Bashir, conveniently ignores a now established principle of international criminal law-- that the ICC has unlimited global jurisdiction. This is the more reason why arrest warrants should be issued for Bashir to stand trial.

The challenge facing the efficacy (effectiveness) of international law has always been its enforceability. For instance the ICC doesn’t have a police of its own to enforce its decisions. It relies on the good will of the civil world.

But that does not mean those who commit acts of genocide and crimes against humanity should be let off the hook. War criminals and leaders who orchestrate violence against civilians should answer for their crimes.

The writer is a journalist and advocate

Tuesday, July 15, 2008



The army-police fusion breeds anarchy
A select committee of parliament has been set up to investigate the conduct of the police following public out try about excessive use of force and outright abuse of authority.

The parliamentary investigations come at a time when government is also being accused of militarising the police force. It’s reported that several soldiers have taken up positions at the police headquarters and others are undergoing training before they are posted to up-country stations.

These developments are worrying because this is surely not the time to turn the police into a military force. The Constitution created the institutions of the police and army for two parallel functions. One is for civil purposes i.e taking care of the internal security ( generally ensuring public order ) and the other (army) to protect our country from external aggression or military attacks.

Similarly the training of the people who are deployed to carry out the two distinct constitutional duties is quite different. Parliament in enacting subsidiary legislation (the laws that operationalise the provisions of our constitution), has created the Police Act and the UPDF Act. Again, two distinct laws to regulated the conduct of two different armed forces.

But given the wanton/unprofessional conduct of many men and women in the police force, it’s becoming evident that they also know very little or nothing at all about the laws that govern their professions. And the problem of ignorance of the law among the rank and file of the police is further compounded by poor training, planning and sheer cowardice-- releasing a bullet should be the last call by any police officer on public duty.

And if that call is to be made at all, it should not be for purposes of shooting to kill unless the police officer’s life is in danger and shoots in self defence. How, for instance, does the police authorities explain the recent Bwaise tragedy where three peopled were shot dead if it’s not due to a combination of poor training and planning (command and control)?

Before the deployment of the police unit that carried out the operation to arrest drug abusers in the Bwaise slum commanders at the headquarters should have assessed the magnitude of the mission, determined the required number of personnel for the operation without endangering anyone.

Instead, a small force was deployed and it was literally overpowered by the very criminals they had gone to arrest. And tragically, the threatened police officers ended up shooting each other including an innocent child! A police vehicle was burnt. The cost to the country is simply maddening.

This bad policing which is a result of mistakes made by the leadership in the police creates an unwarranted culture of impunity and lack of accountability that greatly affects people’s civil liberties. Both the police and the public end up being suspicious of each other. This is the reason why any armed police officer is always ready to shoot at the slightest confrontation.

But the provisions of the law are clear. The use of extreme force, which among others includes shooting to kill, is only allowed in situations of armed resistance or during the arrest of very dangerous suspects such as terrorists strapped with bombs.

The Police Act is more explicit on this matter. Police officers are not allowed to use firearms or excessive force unless they have reasonable ground to believe that their lives are in danger. The police are also required to carry out their duties in a dignified manner especially when dealing with women and children.

The policing strategy of giving soldiers police uniforms will not help improve the image of the force. It can only make it worse. These illegal acts normally erode public confidence and I guess that’s not what the leadership of the police force has set up to achieve.

The writer is a journalist and advocate

Tuesday, July 8, 2008


Are terrorists holding the country hostage
Panic and anxiety has gripped the media fraternity last week following damning acts of terrorism targeting journalists and their operations. First was the well calculated arson attack on the premises of a Kampala tabloid Red Pepper by gunmen captured on CCTV.

The sophistication and confidence with which they conducted their attack in a city with very elaborate security checks should have everyone worried about our lives and what the future holds for the country.

As if that was not bad enough, Mr Sebidde Kiryowa, a journalist working with The New Vision was abducted by four men wielding AK-47 assault rifles at the gate of Sheraton Hotel in the city centre. Mind you, Sheraton is just a stonethrow away from the second home of the president.

Mr Kiryowa’s attackers were riding in similar vehicles like those used by the terrorists who raided the Red Pepper premises. We should now ask the tough questions; is terrorism back on our streets? Are the perpetrators of this terrorism targeting individual journalists and the independent media generally? Are these armed squads, which seem well coordinated and facilitated, working for the mighty and powerful in government to solve personal scores?

Or is this part of the government’s promise to sort out and cramp down on ‘errant’ media and practitioners perceived to be critical of the wrongs of government ? Are we seeing the emergency of militias with a mission to instill fear in the public and effectively curtail the liberties enshrined in our constitution? Should the country take this path at this critical stage of our democracy?

These are very pertinent and legitimate questions which should be answered by both government and the civil society. The managers at the Red Pepper have called upon those in charge of national security to explain the latest wave of armed attacks on the media and unarmed journalists. They deserve answers.

The New Vision Editor in -Chief Els de Temmerman supported by the Uganda Newspapers Editors and Proprietors Association ,(UNEPA) has come out strongly to condemn the abduction, intimidation, torture of journalist(s) and economic sabotage as a grave infringement on freedom of the press.

Temmerman has promised to take the matter to the highest authorities. Hope she does. On the other hand Gen. Aronda Nyakairima , the UPDF chief, deserves a pat on the back for being the only senior national security official to state that no UPDF soldier in active service can carry out terrorist acts against unarmed citizen(s).

President Museveni has also remained firm in his opposition to assassinations whether politically, economically or socially motivated. He is also against the use of fire arms to carry out economic sabotage- we respect him for that.

This column is on record for its support for the death penalty especially for convicted murderers and men who defile children/babies. Similarly, President Museveni’s view that armed terrorists who attack and harass civilians should be prosecuted under the UPDF and Terrorism laws, should garner the support of all peace loving Ugandans.

Of course this is not to say that suspects brought under the operations of the two laws should not face fair trial. The due processes of the law must be respected and followed- but once convicted for terrorism such terrorist(s) must suffer the death penalty.

This country has bled enough. Gone are the days when civilians were picked up on streets by rogue elements in broad daylight and never to be seen again. Daily Monitor is currently running series of the hallowing tales of people who lost their beloved ones in incidents akin to that of the attack on Red Pepper and kidnap of The New Vision journalist.

The goons who attacked Red Pepper and kidnapped Kiryowa committed terrorism and should face the full force of the law. No Ugandan should allow this nation we love so much to slip back to the dark days.

The writer is a journalist/ lawyer

Tuesday, July 1, 2008


Govt is back at its cat and rat game
Without shame, and respect to public opinion, government is back to its old schemes to give away about 7,100 hectares of a national treasure- Mabira tropical rainforest- to Mehta Group for sugarcane growing.

But the most bizarre aspect of this latest government plot is the uncoordinated and contradictory actions of the technocrats who serve in the Ministry of Water and Environment.It’s hardly two years when the same technocrats who are now plotting to zone the 29,964 hectares of Mabira and effectively pave the way for its destruction- warned of the severe consequences of such actions.

Early last year these technocrats wrote a detailed memorandum based on scientific evidence that warned of devastating effects that await the country if government goes ahead to change the land use of the forest cover to sugarcane production.

Reminding government about its international and regional legal obligations to conserve and sustainably utilise biological resources, the experts warned that by parcelling out Mabira, the country especially the areas around the forest will suffer water reduction, high temperatures and loss of unique ecosystem whose economic value is estimated at Shs23.3b.

There is no doubt that due to pressure being exerted by the executive to satisfy the greed of a few private investors like the Mehta Group, the same technocrats are now reneging on their word and encouraging the division of the forest into zones. The Ugandan public should be reminded that these machinations by the government will not only worsen the turbulent climatic conditions in the country but are also illegal.

For years now, eminent international researchers have been warning of a climate disaster and Uganda will not be spared if we don’t protect what is left of our natural forest cover. And this can be done in many different ways. First is to put pressure on our parliament not to succumb to the executive’s illegitimate demands to degazette Mabira forest.

The judiciary should also remain active in the global campaign to protect nature for the benefit of today’s and future generations. That’s why it’s imperative for the public to take keen interest in a petition that has been filed by a coalition of environmental activists in the Constitutional Court challenging government’s actions to destroy the forest reserve.

The petitioners led by the Advocates Coalition for Development and Environment have argued in their petition that government’s determination to parcel out parts of Mabira forest have the effect of limiting the citizens’ fundamental right to a clean and healthy environment.

There are quite a number of legal principles that have been developed over time to help preserve a clean and healthy environment. One of them is the intergenerational equity principle that calls for equity and fairness in the exploitation of environmental resources between generations.

In essence the principle demands that the present generation should ensure that the health, diversity and productivity of the environment are maintained for the benefit of the present and future generations.

It’s imprudent for government to serve the interests of a few private investors while ignoring the concerns of the majority of the citizens of this country.

On the thorny issue of Mabira where the public has demonstrated unprecedented solidarity in the resolve to protect this national resource, government should take precaution when making decisions that will hurt national interest. The concept of sustainable development comes in hand here. Any development especially President Museveni’s much touted industrial development should be ecologically viable.

Situations where such development can cause irreversible harm to the environment should be avoided. The destruction of our forest cover spells trouble for the country’s reservoir of biodiversity. The public should remain firm in the struggle to save Mabira forest.

The writer is a journalist and lawyer