COMMONWEALTH CHAIR IS MUSEVENI'S BIG TEST

Commonwealth chair is Museveni’s big test
Now that Chogm has passed, it’s imperative that the country takes stock of the historic week when citizens once again demonstrated that they can stick together to attain a common objective.

President Yoweri Museveni, now has the privilege and right to be the Chairman of the Commonwealth community for another two years after the country successfully hosted a major international event since Independence.

As the organisers chest-stamp and indulge themselves with glee, the Chogm 2007 will truly have extraordinary consequences for the country and its leadership on the world stage.

The bar has been raised; Uganda’s holding of the chair for the Commonwealth will have the country come under intense scrutiny for the next two years on matters of democracy , rule of law and respect for human rights.

President Museveni, appeared to suggest months before Chogm that his government will not slip back to the dark days when oppressive governments undermined people’s fundamental rights to live in a free society.

Mr Museveni said that this will not happen especially now that he is the chairman of the Commonwealth. Much as the president can be given a benefit of doubt on his promises to realise democratic governance; growing our democracy will take more than just the spoken word. The role of good governance in boosting economic growth and development cannot be underestimated.

This is the reason why , the successful hosting of Chogm should not mask a multitude of problems the country is facing which include among others the total lack of respect and accountability by our national leaders to the 11 million voters that gave them the mandate to lead this country to prosperity.

There is still widespread –call it rampant corruption, the deliberate undermining, by the executive, of parliament and the judiciary which should ideally check against the excesses of the state and the apparent lack of general respect and tolerance to critical views and opinions of Ugandans; let it be the media, (event after being accredited, some reporters and photographers from the independent media were denied access to some state functions during the queen’s visit which again shows lack of tolerance and fair competition in our business).

But even opposition leaders must be tolerant to the views and decisions of the majority. That’s how a vibrant democracy functions.
A situation where our national and local leaders care too much for their own well being and too little about the people they lead, the peasantry that live on less than a dollar a day (just about Shs900), should also be urgently reversed.

At the opening of the business forum at Sheraton Hotel, President Museveni was quite persuasive in his arguments for the 900 Africans to ‘burst onto the world stage by exporting value added commodities and touch off an “Africa Industrial revolution”.

He rightly bemoaned the widening inequalities between the developed and developing world. But this inequality is also very evident in Uganda where the gap between the rich and the poor has assumed alarming proportions. For now , the government has done very little to improve the peasants’ lot. Charity should begin at home.

The country would save a lot of money from thinning the rank of idle cadres who have openly complained about being redundant and bored. The cost of Mr Museveni’s unprecedented huge government is simply astronomical!

The president should do the logical thing- cut down on the number of ministers, RDCs, presidential advisers (you can have one per region) and use the money to strengthen and professionalise national institutions the way he has done with the army and police.

Now that the country is relatively peaceful, we need to cut down on defence spending as well, to help extend to the countryside the un-precedented pre-Chogm renovations and construction witnessed in Entebbe and Kampala. Remember the country should, as a must, maintain these facilities together with the beautification and general high level of cleanliness experienced during Chogm. For those who pocketed the Chogm funds now is the time to account.

The out going Commonwealth Secretary General Don McKinnon, a very pleasant man and accomplished diplomat, said, “the Commonwealth should be true to our values; freedom, democracy, human rights, the rule of law and opportunity for all, especially women and young people. He then posed a question-what is the most important thing in the world? People! People! People!” What a wonderful way to say his adieu!

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

Chogm; we want fair trade, not aid

Chogm; we want fair trade, not aid
THE OTHER SIDE OF THE LAW | Moses Sserwanga

About 5,000 heads of government, delegates and the international media descend on the capital Kampala this week, not only to participate in the Commonwealth Heads of Government Meeting (Chogm), but also to have a feel of what Britain’s greatest statesman, Sir Winston Churchill, described as the Pearl of Africa.

The theme for this year’s historic event is: transforming Commonwealth societies to achieve political, economic and human development. The theme is a perfect reminder about the growing gap between the developed world and the so-called third world countries in terms of socio-economic and general human development.

This is why Chogm is a crucial forum to address the fundamental causes of this inequality and work out practical solutions to bridge the gap. This target is particularly important because the rich nations are getting richer while the third world is becoming poorer.

The Chogm forum should not forget that the social and political revolutions of the 19th century were partly due to this inequitable social conditions in the various societies while ideological polarity(division) was to cause two world wars in the last century.

Africa has a great potential, with vast minerals and a huge total land area which if well managed with good leadership, trading policies and fair trade regulations can spark a second industrial revolution. Chogm should place emphasis on fair trade among the member countries and work to eliminate the handouts from the first world in form of aid.

Needless to say, that apart from fanning corruption , aid plays to the advantage of the giver– the richer nations of the world which keep the poor –mineral rich countries dependent and in many ways, economically colonised. What we need in the Commonwealth group is fair competition and eliminating subsides that give developed countries unfair advantage.

For instance according to the UN 2005 Human Development report, the trade barriers for the poor countries exporting to the rich countries are on average three to four times higher than those of the rich countries exporting to each other.

The Commonwealth leadership seems to have taken note of this worrying situation and is now focusing on trade regulation as an area of growing importance to Commonwealth countries and, correspondingly, for the Economic and Legal Section (ELS) in the Special Advisory Services Division of the Commonwealth Secretariat.

ELS has extended its traditional platform in this field- from designing legislative and institutional arrangements in trade-related areas, particularly investment and competition policy- to providing legal advice on implementing multilateral trade rules through the establishment of sustainable regulatory frameworks.

And there shouldn’t be any artificial bottlenecks in fast tracking this effort because the Commonwealth Secretariat which is the central administrative organ of the Commonwealth community is mandated, among others, to promote the rule of law as an essential part of its efforts to enhance good governance and development in member countries.

The legal cooperation is a unique feature of the Commonwealth, made possible because member countries have similar legal systems, most based on or greatly influenced by the common law principles and practices.

It’s imperative therefore that the Commonwealth delegates urgently hammer out a roadmap that will harmonise trading patterns by putting in place solid trading policies which is fair to all members.

All the member countries should be encouraged to actively make good use of the Special Advisory Services Division (SASD) of the Commonwealth, which focuses on Debt Management, Economic and Legal Services, Enterprise and Agriculture, and Trade.

Member countries especially the host Uganda, should also engage the Economic and Legal department of the Commonwealth secretariat which provides technical assistance that focuses on reform of regulatory environments in Commonwealth countries to encourage investment and export growth.

The underlying rationale is to help members derive greater benefit from the opportunities provided by globalisation. Economic cooperation in the regional states should remove trade barriers, harmonise taxes, guarantee free access to markets across borders and establish joint infrastructure.

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

MUSEVENI ,NOW WHY PLEAD FOR KILLERS?

Museveni, now why plead for killers?
November 13, 2007
The debacle about whether Joseph Kony and his LRA gangsters should escape justice by benefiting from government’s amnesty has taken on a new twist with sharp differences emerging in the rebel camp about the future of the ongoing peace talks.

The fate of LRA’s second in command, Vincent Otti, is unknown after he was allegedly arrested by Kony, the LRA’s top ho ncho, who is not interested in peace. And this should not come as a surprise to many, even after spending a year and billions of shillings of taxpayers’ money wooing the insurgents out of war they shouldn’t have started in the first place.

For Kony and his LRA marauding ragtag vicious army now estimated at 600 strong, the human tragedy in northern Uganda was just a game. They derived much, very much pleasure from maiming, raping and abducting thousands of Ugandans; the young, the old and all.

The LRA butchers forced their captives to chop off each other’s limbs and lips. Kony and his gangsters forced children to shoot and kill their grandparents, mothers and fathers, their clansmen including pregnant women. Their indiscriminate, criminal acts spared none. It’s therefore contemptuous of President Yoweri Museveni, an elected national leader, to feel sorry and even plead for the life of Otti to be spared. The two men who are at the helm of the atrocious LRA are war criminals who should be at The Hague facing trial for war crimes and crimes against humanity.

Who cares that they are in a sticky situation and have turned their blood stained guns against each other? What goes round comes around! The blood of so many people killed at the hands of these two men and the gangsters they lead has come to haunt them.

There is no place for war criminals in the civilised world and this is what has informed the fast evolving international criminal and human rights law. That’s why Kony and four other leaders of LRA are now indicted by the International Criminal Court (ICC) on 33 counts of war crimes and crimes against humanity committed since 2002.

The ICC has since issued arrest warrants against Kony, Otti, Okot Odhiambo and Raska Lukwiya. Ironically, the public should note that the arrest warrants were issued after a complaint filed in the ICC by President Museveni, who is now pleading for these accused to be spared!

According to the Rome Statute that set up the ICC, crimes against humanity include murder, extermination, enslavement, exportation or forcible transfer of population, imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law.

Torture, rape, sexual slavery also form part of crimes against humanity and these must be committed as part of a widespread or systematic attack directed to a civilian population which is what Kony and his henchmen have orchestrated in northern Uganda for 20 years.

Since Adolf Hitler’s Nazi atrocities, international criminal law has taken a new dimension and has gone ahead to recognise a number of offences as being international crimes.
Once a person has committed war crimes as stipulated in the Rome Statute, such a person cannot benefit from the municipal/ local amnesty law. In the case of former Chilean leader Gen. Senator Augusto Pinochet who was arrested in London on a warrant from Spain requesting his extradition on murder charges, the House of Lords held that international criminal law principles take precedent over municipal or local statutes.

Pinochet, just like Kony, was arrested at the request of Spanish judges seeking to extradite him to face charges related to more than 4,000 political killings alleged to have taken place during his 1973-1990 brutal dictatorship in Chile. Although the Chilean government tried to protect Pinochet, the international community prevailed and the man was charged for crimes against humanity.

Similarly, Mr Museveni and his government cannot have the option of providing a safe landing for Kony and his men because the international community can still have them extradited for trial in The Hague. Kony and the LRA should be tried for the heinous crimes committed against the people of northern Uganda.
The writer is a journalist and advocate
msserwanga@gmail.com
Tel: 0772 43 46 77

The President is about to break the law

The President is about to break the law
November 6, 2007
President Museveni, at the weekend, reassured the nation that the executive is not about to alienate the rights of landlords in a renewed government effort to protect peasants from evictions and rent hikes.

Government is already in advanced stages of amending the Land Act to ‘protect’ peasants from land evictions. Among the proposed amendments is one intended to give the Minister of Lands more powers to order Resident District Commissioners to stop land evictions.

It’s been proved in the past though, that political interventions in land ownership and management matters- have not been particularly helpful in resolving the land question in this country. In fact ‘political solutions’ to the land problem that usually pit landlords against tenants (peasants) have abetted more conflicts.

Because the right to own property including land is protected in the Bill of Rights in our national constitution, it’s not politically prudent for our national leaders including Mr Museveni to side-step the provisions of the law in their pursuit of social justice.

In any case , equity and parity can only be realised by observing the rule of law. RDCs who are largely partisan have no constitutional mandate to stop the execution of a court eviction order in land matters.

Besides, the Registration of Titles Act (RTA) provides that ownership of land can only be recognised and enforced at law when a land owner erects to register his interests in land at the Land Registry upon which a certificate of registration is issued.

It’s only a certificate of registration that is conclusive proof of ownership of land . Any person without a certificate of registration can not lay a claim of ownership- meaning that such a person can be evicted from land at anytime upon a directive of court.

Because of these internationally accepted principles governing ownership of land as a major factor of production and in a broader move to resolve the conflict between landlords and tenants/squatters, the framers of our constitution in Article 237(8) provided for additional rights to protect the equitable rights of the peasants.

The constitution provides that persons in lawful or bonafide occupation of land shall enjoy security of tenure. This new set of land rights coupled with the traditionally known mailo, freehold (under these two tenures land is owned/held in perpetuity), leasehold and customary, form the country’s land tenure system.

The Land Act defines lawful occupant to mean a person occupying land by virtue of the Busuulu and Envujjo law 1928 or that person(s) who entered the land with the consent of the registered owner. The other category of lawful occupants protected by the Act are those in occupation of land under customary tenure but whose tenancy was not disclosed or compensated for by the registered owner when he or she applied for a public lease over the land.

On the other hand, a bonafide occupant of land according to the Land Act is one who, before the enactment of the 1995 Constitution, had occupied or improved land without being challenged by the registered owner of the land or his agent for 12 years.

Bona fide occupant also refers to a person (or a successor in title of such a person) who had been settled on land by the government or its agents including the local authorities such as district councils. The law also treats a bona fide occupant as a tenant by occupancy and is required to pay ground rent not in excess of Shs1,000 (per annum).

It’s clear from the provisions highlighted above that the main mischief the constitution and the Land Act sought to cure was the eviction of millions of landless people. But much as we have an elaborate law governing land, the conflicts between the landlords and tenants continue to grow because although the rights of the peasants are recognised by law, they are subject to the registered landlords under the RTA explained above.

And these competing rights can only be resolved through purchase or lawful transfer of property rights from one party to another or acquisition after adequate compensation or purchase at open market value.

Much as the government has made strides in securing the rights of squatters (peasants), nothing or little has been done to address the residual problems of offering adequate compensation to the landlords on whose land the squatters acquired equitable interests under the constitution and the Land Act respectively. Government should economically empower peasants to purchase and own land.
The writer is a journalist and advocate
0772 43 46 77

MUSEVENI IS CONVICTING WRONG CULPRITS

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
msserwanga@gmail.com
0772 43 46 77

MULAGO HIV DEBACLE AND THE NAZI TRIALS

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
msserwanga@gmail.com
0772 43 46 77

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
msserwanga@gmail.com

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