NEW LAND LAW IS RECIPE FOR ECONOMIC TRAGEDY

THE NEW LAND LAW IS RECIPE FOR ECONOMIC TRAGEDY

When Parliament recommended radical changes to our land law in 2007,exactly 10 years ago,  I wrote this article in my Column The other Side of The Law, which was published by the Daily Monitor for five  years . I'm glad to reproduce it given the on going  debate about the government Land amendment Bill  2017 and the the Land Inquiry Commission headed by Lady Justice Catherine Bamugemereire.

This and many other articles on topical legal issues can also be found on my blog: msserwanga.blogspot.com.

The parliamentary joint committee appointed to handle the Land (Amendment) Bill 2007 has once again succumbed to pressure from the executive arm of government and recommended that the controversial changes to the land law be enacted in total disregard of public opinion.

Whatever the mischief the new amendments are intended to cure, the entire process of protecting the rights of ‘squatters’ has been flawed in a sense that no national consultations were carried out to rally Ugandans to support the new legislation. It’s ironical and illogical that the legislators could have the audacity to recommend that the amendments be passed into law and then national consultations be held later. Of what purpose will these ‘consultations’ serve when Parliament has already pronounced itself on the matter?

The machinations by the state to do as it pleases, without taking into consideration the opinions/views of the stakeholders, are a clear manifestation of leaders who are out of touch with the people they lead. In a recent survey commissioned by Monitor Publications Ltd (MPL) and carried out by a reputable research organisation, the Steadman Group, it transpired that six out of every 10 Ugandans are not satisfied with the government’s approach to solve the land problems in the country.

The polls showed that 66 per cent of Ugandans are disenchanted with President Museveni’s management of land issues. And this is besides the fact that knowledgeable and independent interest groups like the Uganda Land Alliance , Uganda Human Rights Commission and the Uganda Bankers Association are all opposed to the amendments and have since called for nation-wide consultations to be conducted before the law is amended.

It’s clear that the amendments will face serious legal challenges because they are basically creating competing rights of ownership of land– which is an important factor of production. With the peasants pitted against the landlords, land will unfortunately be rendered a non-saleable commodity.

The bankers have already, and rightly so, warned that the controversial land amendments being forced onto the people will close the market for mortgages and loans from which banks depend for most of their business. With a struggling economy and land prices going through the roof, people can only own a piece of land by acquiring mortgages through their bankers. But this cannot be possible when in the market, you don’t have a clear legally recognised owner of the land!

And this is not to argue that citizens should be evicted from their land illegally. The existing law has sufficient safeguards against illegal land evictions. The peasants, the majority of whom are squatters or settlers on vast chunks of land, already have their rights protected by the constitution.

The constitution provides for the protection of the land rights of the registered land owners (landlords) and those with equitable or secondary interests in land like the tenants by occupancy or bibanja holders , the bona fide occupants (people who have lived on any given piece of land unchallenged for more than 12 years before the coming into effect of the 1995 constitution) and lawful occupants (those who settled on land with the consent of the registered owner by virtue of the Busuulu and Nvujjo law of 1928). The provisions of the constitution are reinforced by the enabling law, the Land Act.

This column has stated in the past and repeats now that there is no serious lacuna (gap) in our land legal regime. The major problem is the poor implementation of the law and politicisation of the land conflicts across the country.

Securing lasting legal rights for the peasants/squatters can only be realised through purchase and subsequent transfer of title from the registered land owners to the buyers who in this case can be the peasants. The government should put in place a land fund to enable the peasants buy land and thus secure their land rights. Artificial legislation shall be successfully challenged in court and we shall be back to square one!

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

AFRICAN LEADERS MUST LEARN TO ACCEPT DEFEAT

African leaders must learn to accept defeat
There is a raging debate about how Africa and Uganda in particular will benefit from a new US administration headed by not only the first African-American but also a man with roots in the East African region, President-elect Barack Oboma.

This perspective is particularly important now, given the fact that the record low ratings of out- going US President George Bush, is a clear manifestation that unilateralism can’t work in the 21st Century. Rather, it’s the combined effort of the world community through globalisation that will bring peace and prosperity to the human race.

That’s why the antidote to this new reality is not about militarism and financial handouts in terms of aid from the generally democratic developed world to the largely undemocratic and less developed countries, but the attainment of good governance, rule of law and respect for human rights. Uganda can only partner with the new US government if we can guarantee good governance.

Already, President-elect Obama, has been quoted as saying that the problems facing Africa are more about leadership than financial.

It’s more about the willingness of African leaders respecting the opinions and decisions of the people they lead. Ultimately, this means that leaders, especially in Africa, have no option but to test their abilities to lead by holding regular, and free and fair elections and allowing voters their civil liberty and other constitutional freedoms like the right to associate and express their political ideas without fear of being haunted by the state.

This again requires that political campaigns and elections should be free of violence, especially the kind that is state-inspired and designed to intimidate voters. And once the people make their decisions using the ballot, their votes should count and not be stolen by the incumbents, who are not in the habit of giving up power peacefully .

The peaceful transfer of power is one of the hallmarks of a true democracy. Irrespective of all the bruising he suffered at the hands of a gifted orator Barack Obama, President Bush has promised to ensure that the transition to a new administration is smooth.

Never mind that Mr Obama spent all that time deriding Bush for “failed policies,” or mocking him for hiding in an “undisclosed location” because he was too unpopular to show up with his party’s own candidate Mr John McCain. African leaders must also learn to be gracious when beaten at the polls.

Obama’s opponent Mr McCain is one good example. He was the first to send out a congratulatory message and even told his supporters that whatever the politicians differences, they should put their country first and rally behind their new president- elect.

Last week, Mr Bush and his wife had the courtesy to invite the incoming chief executive Obama and his wife Ms Michelle Obama for pep talk at the seat of power, the White House. Mind you, these are politicians of two different brands from two different political parties.

Unfortunately for Uganda, it’s 46 years of independence and the country is still counting to a day when we shall witness a peaceful transfer of power from one president to another. But this is not to say that we can’t do it. The framers of our Constitution provided for the blue print for a legal and peaceful presidential transfer of power.

The question then is; do we have the courage as citizens to respect and uphold the provisions of our constitution that calls for democratic elections? Can we stand firm and say bye to election fraud? Do we have the ability to mobilise, vote and ensure that it counts? Yes. We Can.

Mr Sserwanga is a journalist and advocate
msserwanga@gmail.com
msserwanga.blogspot.com

NSSF INQUIRY: PARLIAMENT HAS CAPITULATED

NSSF inquiry; Parliament has capitulated
The independence of our national parliament has come under trial once again after the Speaker, Mr Edward Ssekandi, made a rather ridiculous ruling about whether members of parliament have powers to investigate errant cabinet ministers.

Ssekandi’s decision has also left the country wondering whether the taxpayer whose money was misappropriated in the NSSF-Temangalo land scandal should continue to foot the bill for the endless commissions of inquiry which are not only very expensive but also whose recommendations never get to see the light of day.

It’s also common practice for governments to employ the commissions of inquiry to buy time and divert public attention and subtly suppress dissenting views. Instead of using the commissions to restore public confidence about the way the country is governed , the inquiries like in the case of the National Social Security Fund land saga serve the purpose of humiliating the victims- in this case the workers- whose hard-earned savings the NSSF managers are mandated to manage.

But before we address the legal issues and Mr Ssekandi’s interpretation of the law to suit the powers that be, let us pose some questions here. If indeed, Ssekandi, as the Speaker, (and he has a legal mind too) knew that Parliament had no business investigating ministers for contraventions of the law like political influence peddling, conflict of interest and general abuse of office, why did he allow the Committee on Commissions, Statutory Authorities and State Enterprises to go ahead with their investigations?

And these investigations were conducted within the precincts of Parliament in full public view and lasted nine weeks. That’s besides the numerous caucus and cabinet meetings called by the President to save the embattled Security Minister Amama Mbabazi and Finance Minister Ezra Suruma, costing millions of taxpayers’ money.

The nation needs to be reminded that although the primary role of Parliament is to make laws, that alone does not extinguish its inherent powers under the constitution to rein in members of the Executive when they abuse state power. Parliament is mandated by the constitution to defend the constitution and promote the democratic governance of Uganda.

It’s also a cardinal principle of law that the constitution is supreme and therefore takes precedent over any other enabling law like the Leadership Code. The constitution provides that if any law or any custom is inconsistent with any provision of the constitution, the constitution prevails and that other law or custom shall to the extent of the inconsistency, be null and void.

Mr Ssekandi, with due respect, made a gross mistake when he relied on an erroneous interpretation of the law to suggest and rule that a committee of Parliament does not have powers to investigate errant public servants like ministers and make recommendations including sanctions against such wrongdoers.

This is because article 90 of the constitution is very clear; it mandates Parliament to appoint committees with powers of the High Court. This in effect means that these committees have unlimited jurisdictions like the High Court to inquire into any matter, make decisions and even pass a sentence/sanctions.

It’s disappointing and a very sad development for the country that the Speaker and Parliament are ready and have surrendered their supervisory authority and constitutional independence to the Executive arm of government. Parliament has betrayed the people of Uganda by succumbing to the manipulations and coercion of the Executive and not serve to protect national interests. But there comes a time, like in the just concluded elections in one of the world’s leading democracies- the US, when the voters or the citizens reclaim their constitutional supremacy and say; it’s enough!

Mr Sserwanga is an advocate and journalist
msserwanga@gmail.com

WE SHOULD END INJUSTICES AGAINST WOMEN

We should end injustices against women
Daily Monitor last week ran a depressing story about a 19-year-old girl Ms Fatuma Nansamba, who was refused to write her A’ level examinations at Kibibi Secondary School in Mpigi District merely because she gave birth during school term.

And what a tragedy! For starters, at the age of 19, Ms Nansamba is considered under the provisions of our constitution to be an adult – meaning that she can legally consent to have sex, marry and even give birth. There is nothing illegal there.

However, what is unconstitutional and therefore illegal, is the school authority’s decision to deny Ms Nansamba her constitutional right to pursue education. Her case is also part of a wider problem - the wide spread inequitable gender relations in this country that largely and unconstitutionally confine women and the girl-child to a second class citizen status.

The concept of gender refers to the distinctive qualities of women and men that are culturally, socially and economically determined. And because of the patriarchal nature of our society, where women have for long been treated as subservient members of the family, the gender imbalance and the inequalities that come with it, is something that can easily pass for being normal.

This perhaps, explain why a boy(s) responsible for the pregnancy of a young girl(s) can be allowed to sit for their exams while the girl(s) who suffer labour for nine months are not accorded the same opportunity.

And all this happening at a time when it’s common knowledge that women’s rights are protected by our constitution in the Bill of Rights (Chapter four) and the Universal Declaration of Human Rights, which was adopted 60 years.

In fact, The Universal Declaration in Article 1 provides that: “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.”

But the provisions of the Universal Declaration on Human rights and several other international and regional legal instruments such as the Convention on the Elimination of discrimination against Women have not helped much to ensure the full enjoyment of equal rights by women in this country.

Women are still considered to be labourers in the home and yet they can’t lay any claim to property in your typical rural family home. The biting poverty cannot help matters either because when parents have to make the tough decisions on which child to send to school – such decisions are always in favour of the male gender. The abilities of the girl-child are never considered.

Even those (girls) who make it to school against all odds like Ms Nansamba are still discriminated against.
So, why do women continue to be discriminated against? The discrimination against women can be traced to politics, economics, social relations and even the law, which predominantly remain the preserve of men.

And as long as these old prejudices remain entrenched in our minds, women emancipation shall remain a big joke and to a great extent, a myth! But one thing is clear though - the injustices that are continually meted out against women and the girl-child must be brought to an end.

Women should not be treated as second class citizens or worse still as men’s property. Women who are our mothers should be treated with dignity and allowed the full attainment of their constitutional rights which include but are not limited to, the right to good health care and education. Women should at all times enjoy the same, equal opportunities as men.

Mr Sserwanga is a journalist and advocate
msserwanga@gmail.com
Msserwanga.blogspot.com

TUMUKUNDE CASE A TEST OF COURT'S BOLDNESS

Tumukunde case a test of court’s boldness
The Supreme Court has once again upheld the constitutional doctrine of separation of powers by ensuring that the constitutional equilibrium between the organs of government; the executive, parliament and the judiciary are maintained at all times.

In it’s recent decision in the matter of Brig. Henry Tumukunde versus the Attorney General/ Electoral Commission, the Supreme Court which is the highest appellate court in the country has once again set a precedent by putting the powers of the executive ( the president and his servants) in check.

The doctrine of separation of powers is very important for our fragile democracy because as it were, there is a constitutional desire to protect citizens of this country from the excesses of the executive and stop it from abusing state power. That’s one of the roles of the judiciary and parliament and the former needs to be commended for standing up to this high ground.

The Supreme Court’s decision followed a petition by Brig. Tumukunde after President Museveni and some members of the High Command forced him to resign from his position as army representative in parliament .

Through his lawyers, on appeal to the Supreme Court, Tumukunde argued that he wrote his resignation letter under immense fear and undue coercion thereby making his purported resignation unconstitutional. In other words, it was argued that the brigadier’s resignation had no legal effect because it was secured by unconstitutional means when the executive ( the president and senior members of the UPDF), violated Tumukunde’s rights as a member of parliament when they forced him to resign from his seat.

A key piece of evidence adduced before court was the ‘resignation’ letter which Tumukunde wrote to the Speaker of Parliament in which he stated that he was directed and given a 12 hours to resign his parliamentary seat. The Supreme Court found that the manner and style in which Tumukunde framed his ‘resignation’ letter was not that coming from a free mind. The court therefore ruled that a member of parliament should never have to resign under the threat or directive of anyone but only in accordance with the provisions of the country’s constitution and the laws made by parliament and do so voluntarily. The court found Tumukunde’s letter as constituting a soldier’s obedience to superior orders under protest.

The court noted that neither the Commander–In-Chief nor members of the High Command are empowered by the constitution to force a member of parliament to resign or recall him or her from parliament. The court particularly addressed itself to the provisions of article 83 of the constitution which lays down the legal circumstances under which an MP can vacate his or her seat in parliament. And these are very specific - that’s, if one resigns voluntarily, if one is disqualified by law, when parliament is dissolved, if member is absent for 15 sittings without satisfactory explanation and if found guilty of violating the Leadership Code of Conduct.

A member of parliament can also lose his/her seat if they are recalled by the electorate, if the member leaves a political party for which they stood as candidate and if when elected as an independent decides to join a political party and if a member is appointed a public officer. The court also emphasised that the role and functions of the speaker should be impartial. Court cited a 1964 scenario in England when Charles I, then an absolute monarch, attempted to arrest five members of the House of Commons and demanded the Speaker to identify them.

The Speaker, Lenthall, bravely replied to the king thus : “ Sir, I have neither the eyes to see nor ears to hear except as directed by this House whose servant I am.” Court emphasised that the primary role of the Speaker was and has always been to parliament and not to the king or the executive. This is the reason why the separation of powers doctrine is premised on the concept of checks and balances which are core values of a democratic society.

CAN MUSEVENI DO A McCAIN IN 2011?

Can Museveni do a McCain in 2011?
The US presidential race is now on the home-stretch , with 22 days to the polling day on November 4. The Americans will decide whether to continue with George Bush’s policies by electing the ‘maverick’ Republican candidate John McCain or embrace change which has been proclaimed by the Democratic candidate Barack Obama.

But there is a lot about America’s elections that developing nations like Uganda can learn from . Take for instance the role of women in national politics. For the first time in the US presidential campaigns four amazing women- Hillary Clinton, Michelle Obama, Cindy McCain and Sarah Palin have made their mark and elevated the women’s role in national politics to a level that has never been witnessed anywhere in the world before.

These women have demonstrated that they too are smart and can hold their own on a level political playing field. They have debated the issues with the same intellectual intensity and stamina just like their male counterparts.

That’s why a Washington veteran the Democratic VP nominee , Mr Joe Biden (65)– tried so much not to appear to be disrespectful when he came up against a far less experienced Republican VP pick ,Ms Sarah Palin (44) during the Vice Presidential debate watched by a record 69 million global audience.

Although we are yet to have a serious woman presidential candidate in Uganda, if one chooses to exercise their constitutional right- to have a shot at the presidency, they should be accorded the same respect given to women in the US presidential campaigns.

The other important lesson for us has got to do with disabusing our national and local politics of any manner of personal attacks and have our politics cleaned up to focus on the issues that are matter to the Ugandan people. The McCain campaign has unleashed a barrage of nasty attacks on his main challenger Obama. But the polls show that such smear campaign doesn’t work in a civilised political society.

An election dominated, at its inception, by the war in Iraq is now overwhelmingly focused on the country’s worst economic crisis since the Great Depression in the 1930s- that’s what concerns the people and not whether Obama is a Muslim or McCain is a Christian. Because Obama is doing well on issues, the polls are favouring him with double digit leads among voters on who can fix the US and global economy.

It’s not surprising therefore that at a Town Hall event on Friday in Minnesota, McCain took the microphone from a woman who had called Obama an Arab. McCain said, “No, ma’am,” and he called Obama “a decent, family man.” McCain also drew boos at the same event when he told a supporter who expressed fear at the prospect of Obama’s election that the Democrat is a “person that you do not have to be scared of as president of the United States.”

This is the kind of tolerance that we should demand of our leaders in Uganda. Can our politicians borrow a leaf from McCain’s rejection of the politics of fear and hate mongering ? Can President Museveni make similar, respectful remarks or compliments about his formidable opponents such as Dr Kizza Besigye? Only time will tell. But that’s what civilised leaders do.

One thing for sure though is that there has been too much name calling and hatred in our national politics. Now is the time for the Ugandan voters to say no to such divisive tactics in our body politic. The US campaigns have also demonstrated that everyone can be president including forks who come from modest means like Obama if they are well prepared and focused to address people’s needs.

But perhaps the most significant lesson from the US elections is that of our civil duty to take our national politics seriously. We, as citizens, must be vigilante and exercise our constitutional right of electing democratic leaders who can take our country forward. Ugandans must pay attention to issues of governance because they directly impact on our lives. We can disagree without being disagreeable or without demonising one another.

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

ARMING THE TRAFFIC POLICE IS A LITTLE ON THE EXTREME

Arming the traffic police is a little on the extreme
The Uganda Police leadership is never short of surprises. This time round, they want to arm the traffic police with automatic rifles to defend themselves against violent motorists. Whereas the traffic police have a right under the Constitution and the Police Act to defend themselves against violent criminals, employing guns is a little on the extreme.

The Inspector General of Police Kale Kayihura, though a military man, is said to be a supporter of democratic policing - a principle that calls for less confrontation. This notion of democratic policing is fundamental, given the country’s history.

Uganda is one of the countries that have grossly abused the Russian made Kalashnikov assault rifle also known as AK 47. According to a report by Control Arms Campaign spearheaded by Amnesty International , Oxfam International and the International Action Network on Small arms, the AK47 assault rifle will remain a killer machine in Uganda for the next 20 years unless urgent measures are put in place to regulate its use.

Already, an estimated 50,000 illegal guns are in the hands of rogue elements including some security personnel who at times hire them out to robbers. It’s also on record that there are about 100 million AK 47s and variations of its design produced in 18 countries and used in 82 countries. About 30 million illegal guns are in circulation in black Africa - (including south Sudan and Somalia).

These killer weapons have led to the death of an estimated 3 million people globally. To back-up their misplaced idea of introducing more guns on our streets, the Police leadership have cited the examples of USA, Indonesia and Thailand where traffic police officers are armed.

What the Police don’t tell the public though is that the countries they are citing are far more developed democracies than Uganda and have punitive gun laws. The levels of training for security personnel in those countries are more superior.

The level of gun abuse by the Special Police Constables is testimony to this. The human cost as result of gun-related crime is frighteningly high. No week passes without reports of innocent Ugandans killed by armed gangsters.

Not long ago, the government through the Uganda Police and Uganda Revenue Authority introduced the express penalty scheme where wayward motorist are fined on the spot.

This is a good scheme because whoever came up with the measures knew that traffic offenses should be of civil nature and only assume a criminal element where there is malicious injury to or loss of life and damage to property.

Arming traffic police to police petty traffic offences is contrary to the principle of democratic policing. This measure, if implemented, can also be misunderstood to mean that government is militarising the Police whose role is different from that of the army.

The Inspect General should instead launch a nationwide campaign to rid our city, major towns and the countryside of illegal firearms. The proliferation of illegal fire arms especially through our porous borders with DR Congo and Sudan, coupled with trafficking in the city and towns is a complex local and international problem that calls for a tough legal regime.

Parliament should review the Police and Fire Arms laws to make it difficult for people to posses guns illegally.

The writer is a Journalist and Advocate
msserwanga@gmail.com