Tuesday, September 30, 2008


If we had a Mbeki, what would Besigye be?
The legal showdown between former South African President Thabo Mvuyelwa Mbeki and ANC President Jacob Zuma rattled the political establishment in Pretoria leading to last week’s resignation of Mr Mbeki.

It was a turning point in African politics with a president of a major industrial country calling it quits for alleged ‘persecution’ of his political rivals. Mbeki’s decision to resign followed a stunning court ruling by Judge Chris Nicholson in which he noted with disconcert that Mbeki and his then justice minister, Penuell Maduna had interfered with the independence of the national prosecuting authority to prefer politically instigated corruption charges against Mr Zuma.

Justice Nicholson’s ruling included biting criticism of prosecutors and political leaders all the way up to President Mbeki, saying there was reason to believe the decision to charge Zuma was politically motivated.

The judge also expressed concern that prosecutors were influenced by members of Mbeki’s Cabinet, and said it was “improbable” the ministers acted without Mbeki’s knowledge and agreement. Nicholson’s observations in the Zuma case are not unique to the Ugandan situation where opposition leaders have gone through similar tribulations when the state abuses our prosecution system to prefer charges against them without credible evidence.

But Mbeki’s resignation has also proved one thing - that Africa’s big men are not indispensable after all. The ANC’s decisive action to call for Mbeki’s resignation was significant in many ways. It sent a clear message that a leader should never abuse his authority to terrorise the citizenry especially his political opponents .

That good governance entails a fair legal system which is not manipulated by the state to victimise those who are legitimately opposed to its ideas. This calls for the full protection of human rights particularly those of minorities- those who are less privileged including opposition politicians.

In a business of bitter rivalries and awkward alliances , few political relationships have been more bitter than that of Dr Kizza Besigye and President Yoweri Museveni. After their nasty 2001 battle for the presidency it has been a mouse and cat game- with Besigye being on the receiving end much of the time
The outspoken Dr Besigye, one of the toughest challengers to Mr Museveni’s leadership, has been arrested on several charges ranging from rape, terrorism, to treason, without concrete evidence.

In fact Dr Besigye has been vindicated by the courts of law who have cleared him of many of the trumped-up charges.
And it matters less the argument that African politicians will engage in all manner of schemes to capture power including being subversive (rebellious) against the state which is a capital offence under our constitution and penal laws.

The prosecutors should have enough evidence to prove a prima facie case (on the face of it that the accused person has committed the said offence ) before they deny them or restrict their human liberties like the freedom from malicious prosecution.

The courts in Uganda must not give in to any political influence from any person or authority for the simple reasons- courts are the temple of justice and the only available reasonable avenue of resolving political disputes without violating the law.

The words of Prof. George Kanyeihamba , who is a Supreme Court judge and accomplished legal scholar come in handy here: “ 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.”

The write is a journalist and advocate

Tuesday, September 23, 2008


There is urgent need to review the NSSF Act
One of the issues the Parliament’s committee on Commissions, Statutory Authorities and State Enterprises investigating alleged political meddling in the management of the National Social Security Fund (NSSF) will have to address, is that relating to the legal application of a power of attorney.

A power of attorney is basically a legal contractual instrument created between the donor (person who gives the power of attorney) and donee ( the person to whom the power is given) for purposes of contracting/dealing with third parties.

Courts of law have developed principles that govern the operation of a power of attorney. One such principle is to the effect that an attorney acts on behalf and in the name of the donor. This means that the donor has imputed notice of all the information that the attorney has.

A donor of a power of attorney takes all the benefits and blame arising out of his attorney’s activities and therefore cannot escape liability. The court interferes, not on the ground that any wrongful act has in fact been committed by the donee, but on the ground of public policy - to prevent the relations created between the parties and the influence arising therefrom being abused. By the very nature of this relationship, it’s clear that in the NSSF matter, the actions of Arma Ltd. can be imputed on the donor who is Security Minister Amama Mbazi.

That said, the public should be made aware that the latest NSSF financial scandal is largely due to the weak laws that govern the pensions sector and a corporate governance culture -that allows the Office of the President and the line ministries (in this case the Ministry of Finance) to wield too much power in the management of workers hard-earned savings.

The NSSF Act, the principle legislation that regulates the Fund, has many loopholes that can be exploited to literally run down the Fund. The law, for instance, gives the minister unilateral powers to appoint the management and board of NSSF bringing into play political considerations and influence when deciding who should manage the Fund.

This is wrong because such appointments are not normally made on merit. It’s political patronage that informs many of these decisions and the appointees are forever indebted to the appointing authority. This explains why decisions by public managers are mostly made in total disregard of publc interest.

Public corporations like the NSSF should be insulated from political oversight. They should be governed by independent regulatory bodies with clear legal mandates. In the case of NSSF, government must disabuse itself from the notion that it owns the Fund.

This calls for President Yoweri Museveni’s urgent intervention to deal with errant ministers for purposes forcing them to follow procedures when dealing with public assets. Parliament also has a duty to put in place legal mechanisms to check the growing mismanagement and misuse of workers’ savings. This calls for an urgent review of the NSSF Act .

For instance, Section 3 of the Act empowers the minister to appoint the board of directors . No special attention is given to the workers’ representatives. The law should compel the Fund management to consult workers’ representatives before undertaking big investments. And if government fails to act, then the 299,233 members can sue government and the Fund managers to bring them in line.

Mr Sserwanga is a journalist and advocate

Tuesday, September 16, 2008


Accountability is the main issue in NSSF saga
The on going investigations by the Parliamentary committee on Commissions , Statutory Authorities and State Enterprises into alleged political meddling in the management of the National Social Security Fund (NSSF) has attracted mixed reactions with some sections of the public accusing the independent media of witch-hunting. Far from the truth.

To put the debate in context, the public needs to know and understand the nature and net worth of the National Social Security Fund and the managers’ legal obligations. The managers of NSSF have a legal duty to manage the fund in trust of the 299,233 members who make monthly contributions of Shs15b.

This in effect calls for ministers and managers of the fund to take seriously the principles of good governance while executing their various constitutional and legal mandates and the general decorum expected of them in conduct of public affairs.

The fund’s net worth is now estimated at Shs1.1 trillion, which could constitute a sixth of the national budget valued at Shs6 trillion. In short ,we are talking about huge sums of money by Uganda’s standards - let alone the region. And this is workers’ hard earned savings.

It’s not in dispute that the managers of the fund should optimally invest the savings to realise maximum returns for the benefit of the members. What is in issue is the processes -legal and otherwise which have to be strictly adhered to, to guard against illegalities that can ruin otherwise well-intentioned investment decisions. Much has been talked about the Fund’s controversial purchase of the Temangalo land at Shs11b from city businessman Amos Nzeyi and Arma Ltd, a company linked to Security Minister Amama Mbabazi.

There have been issues about the alleged inflated price. This is diversionary and it’s being peddled to side step the bigger issues which are basically- the flouting of the legally bidding rules of procedure in public procurement and the valued practices of good governance that call for transparency and accountability.

The issues which should be examined before pronouncing anyone guilty, among others are; did NSSF management flout procurement procedures as laid out in the Public Procurement and Disposal of Public Assets Authority rules to give undue advantage to one company or person(s)?

Was there undue political influence peddling on part of a senior government officer to secure the deal for a company in which he has declared interest? Was there a cover –up of this political pressure by creating ad- hoc 3rd parties (creation of power of attorney) to facilitate expedient completion of the transaction?

Can this cover-up be construed to mean a direct conflict of interest on all the parties involved in the deal- an act which is against the principles of good governance and the provisions of the Leadership Code Act?

The Solicitor General Mr Billy Kainamura stated in his testimony before the committee that his office was only involved when the negotiations and deal was as good as sealed. He also acknowledged that NSSF never followed the PPDA rules of procurement.

And wait a minute, shouldn’t the accused officers in this matter step aside to allow for a free and fair hearing? It’s standard procedure that once a serious public inquiry of this nature is instituted –those accused take leave of their offices to avoid prejudicing the investigations let alone tampering with evidence.

The writer is a journalist and advocate

Thursday, September 11, 2008


MPs should not allow govt to destroy our forests
Fighting environmental degradation in a country where the managers of our critical national resources (like forest reserves) are hell bent on pursuing partisan commercial interest than protecting the public good, can quite be a hard job.

In Uganda, it’s even more scary because those responsible for ensuring a clean and healthy environment are executing their duties under constant fear of incurring their appointing authority’s ire.

These managers’ decisions are in most cases on the wrong side of public opinion. And unlike in the more advanced democracies where national leaders and managers of public assets are accountable to the people, in the not so polished societies like ours, public opinion is never a factor in the management of scarce resources.

Although the public mood in regard to the management of our national forest resources has been a mixture of hope , frustration and nervousness over the last three years - the National Forestry Authority (NFA) seems to have taken no clue.

How else can one explain the latest decision by NFA (a body charged with the duty of protecting the country’s forest cover) to grant a licence to Uganda Electricity Transmission Ltd to cut 69 hectatres of Mabira Forest to enable the construction of a new high voltage power line. The power line will run from Bujagali Power Station to the main grid through Kawanda and Mutundwe, west of Kampala.

This is one of such wrong decisions. And it’s imperative for us to remind NFA that there can be no doubt about the dangers posed by their reckless disregard of the conservation of critical resources like Mabira Forest.

NFA’s latest machinations point to one thing though - the well known government plot to illegally parcel out more than 7,100 hectares of the natural forest to private investors like Mehta and now Uganda Electricity Transmission Ltd.

This is what they call human culpability - when people work to destroy their environment - thus threatening their own very existence. With the on-going campaign against global warming resulting from poor management of the world’s environment, everyone including NFA bosses should be deeply concerned about the threat that climate change poses to human security and their economic wellbeing.

This is particularly important because our President is the Chairman of the Commonwealth Heads of Government who in 1989, passed the Langkawi Declaration on the Environment with commitments to support improved land use management, including conservation and sustainable use of forest resources.

According to the declaration, sustainable development should at all times ensure the preservation of standing forests; provisions for reforestation and afforestation; and measures to combat illegal logging and other causes of deforestation. Sustainable development means development that meets the needs of the present without compromising the ability of future generations to meet their own needs.

Unfortunately, Uganda’s sustainable development policy has been poorly thought through, badly implemented and this has caused so much public anger. It’s all about destruction of what remains of our forest cover without planning for the future.

However, much as the government has struck to its guns and is not about to re-examine this botched policy, the law is clear. The Forest Act bars any individual or company from destroying, damaging or disturbing a natural forest except in the course of carrying out activities for the sustainable management of the reserves.

It’s clear from it’s provisions that the Forest Act was intended to provide for conservation, sustainable management and development of forests for the benefit of all the people of Uganda and not a few selfish private investors
Parliament should not give free rein to government to do as they please; to destroy what remains of the country’s forest cover.

Mr Sserwanga is a journalist and advocate

Tuesday, September 2, 2008


Selective application of justice in Uganda is sad
Fourty five years ago on August 28, 1963, one of the world’s most celebrated civil rights crusaders, Martin Luther King addressed a sea of people on the National Mall in Washington , USA . On that day , King proclaimed on the steps of the Lincoln Memorial, “I have a dream, that one day, this nation will rise up and live out the true meaning of its creed — ‘We hold these truths to be self-evident: that all men are created equal.’”

The equality Dr King talked about is one of the tenets of our national constitution - that all people are equal before the law. Sadly though, the majority of Ugandans are yet to realise Dr King’s dream because our justice system is poorly managed.

Many citizens continue to suffer due to the selective and unfair application of the law in criminal cases . One of such cases is that of Peace Muhindo , the 15 -year-old girl who was allegedly assaulted by ‘Pastor’ Irene Manjeri Nalongo . The girl who is admitted at Mulago Hospital suffered a spinal cord injury that has left her paralysed following the alleged assault by Manjeri, who is herself a mother of twins.

Muhindo’s case is said to have been poorly investigated by the Police and those responsible for the girl’s suffering are yet to be taken to court. The latest incident is one of a growing list of felons (serious crimes) committed by Ugandan “pastors” .

In America , another Ugandan pastor - the flashy Jackson Ssenyonga of Christian Life Ministries - was arrested and detained for allegedly fondling a 13-year-old girl while on a plane.
The US authorities are now preparing to refer criminal charges against the ‘pastor” for his alleged lewd and lascivious acts against the girl . There is also the case of Mr Julius Lukyamuzi alias Kitaka who was allegedly sodomised by a pastor and is yet to receive justice five years since his case was first reported to Old Kampala Police Station.

In many of these cases, the Police investigators have either deliberately, or incompetently done a sloppy job and we are yet to see any of these self acclaimed men and women of God answer for their criminal acts .

But not all Ugandans are gullible. The citizens are watching and documenting these cases and praying that one day sanity shall prevail over those in charge of our justice system to raise the red flag and say no to the injustices.
And can also take solace in the fact that in every desperate situation, there are people who want to stand up and be counted. This time round, it’s the Police’s head of professional standards unit, Mr. John Ndungutse, who has instituted an investigation against the Police officers who mishandled Ms Peace Muhindo’s case.

Mr Ndungutse’s actions need to be commended because just like many other lobbyists, the pentecostal movement in Uganda, is very powerful. It’s an established fact that the majority of pastors in this country are not only filthy rich , they are also very influential people. This perhaps best explains why many of the criminal cases reported against them have not been successfully prosecuted by the Police and Directorate of Public Prosecution (DPP).

This column has it on good authority that Lukyamuzi“s file is gathering dust somewhere in the DPP’s office. Can someone take action about this specific case at least in the interest of justice. And it’s important because the Constitution has raised the stakes about the citizens’ right to be accorded justice. The DPP should take the high road and prosecute the high profile cases involving the mighty and powerful to ensure justice and accountability.

Mr Sserwanga is a journalist and advocate