Some of the cardinal principles and rules of judicial conduct are to the effect that justice is administered without fear or favour, affection or ill will. However, these fundamentals seem to have been given second rate attention in our justice system lately.
The judiciary is back on the front pages of the national newspapers albeit for the wrong reasons. The decision by the Uganda Law Society members not to appear before one member of the bench newly appointed Justice,Anup Singh Choudry for alleged misconduct while in practicing law in the UK, is a highlight of the unfortunate and undesirable situation where some judicial officers have thrown the much-cherished judicial decorum to the wind.
And the problem of errant judicial officers who include magistrates at all levels and even high court judges is not new to the Ugandan public. There are numerous cases where inept and corrupt judicial officers have denied litigants justice. These by the way are the same officers who are supposed to jealously guard the succinct of our fragile justice system.
One of the celebrated and most progressive English Judges the world has come to know, Lord Denning MR (Master of Rolls) has defined justice to mean what the right -minded members of the community- those who have the right spirit within them- believe to be fair.
Lord Hewart C.J as he then was, also coined the famous phrase: " justice should not only be done, but be manifestly seen to be done " . Article 15(1) of the Constitution captures the same spirit of fairness where it states that a litigant or accused person must be afforded a fair hearing by an independent and impartial court.
The administration of such justice therefore rests on advocates and more particularly judicial officers. Their guiding star as Chief Justice Benjamin Odoki has stated previously, is the judicial oath, which is a symbol of both their independence and impartiality.
Justice Odoki has also noted that judicial officials can achieve true understanding and respect for the judiciary only as a public response to their integrity, impartiality, fair play, conscientious attention to duty and simple courtesy.
Public esteem therefore, cannot be regained until each judge is willing to accept his personal accountability as an integral part of the responsible group. Evil grows because good men do nothing about it.
Unfortunately some of the learned gentlemen and ladies of the bench seem have forgotten that they took the judicial oath to dispense the much craved for justice in our society.
And this grim picture was well captured by non other than the chief executive of this country President Yoweri Museveni some ten years back at the swearing in of Chief Justice Benjamin Odoki. In his witty style, the first remarks President Museveni made shortly after Justice Odoki had taken oath were and I quote: " Mr. Acting Chief Justice, you will have a big problem of fighting drunkenness among some of the magistrates. I have reliably learnt that drink is affecting the efficiency of some of the magistrates so much so that they are continually late in court and some are heavily in debt.
I need hardly emphasise that being drunk and being in debt are the surest ways of becoming corrupt " . But these were not the only complainants Museveni had against judicial officers in this country.
He went ahead and highlighted a number in fact eight to be precise and I will summarise them. He did complain about the notorious, yes notorious court clerks whom he said brandish their power in such a manner that those who look at them from a distance think they are executioners and not peace-makers.
These are the same clerks who extort money from the unsuspecting public while claiming to know the ' right> judges/ magistrates who can easily give a litigant the relief sought. In deed it ' s also true that some judicial officers accept ' gifts ' or call them ' envelopes ' .
The same judicial officers adjourn cases unnecessarily and this causes a failure of justice. No wonder the Chief Justice, just a fortnight ago, announced that he was working on a regulation that will limit the number of times a case can be adjourned. This could not have come at a better time for the much suffering public.
There are also reports where judicial officers in an attempt to get ' ease ' money try bogus cases at times without court files and order for fines to be paid and pocket the proceeds. I hope the readers of this column have not forgotten the scandal that again graced the cover pages of our national papers when some judicial officers pocketed millions of shilling received in bail money.
And what the public doesn ' t know is that once you pay for bail and the matter or case is settled by court such monies are supposed to be refunded. But because of the excitement of one securing their liberty, normally people don ' t claim for these monies.
Some magistrates are so lazy that they illegally compel accused persons to plead guilty and not waste court ' s time when there is a strong arguable case. They also in some cases reserve judgments for such long periods that it amounts to miscarriage of justice.
The president noted then, that if the judicial officers don' t hold the law in high repute, if people begin to feel that courts are unable to redress their wrongs speedily and cheaply, the image of the law will suffer and when the image of the law suffers, the image of the judiciary would also suffer.
It is an established principle throughout the whole of the civilized world that judges and all other judicial officers should be completely clean in their handling of disputes among the parties.
In his essay about the judicature, Bacon stated, " a judge ought to be more learned than witty, more reverend than plausible, and more advised than confident but above all 9 emphasis mine , integrity is their portion and proper virtue " .
This column will next week discuss the judicial code of conduct and subsequently examine the legal procedure of removing an errant judge/magistrate from office.
The writer is a Journalist and Advocate.
+256772434677
Wednesday, June 3, 2009
Tuesday, June 2, 2009
MEDICINE AND THE LEGAL CONSENT OF THE UNDER AGE (CHILDREN)
MEDICINE AND THE LEGAL CONSENT OF THE UNDER AGE (CHILDREN)
As the state struggles to marshal resources to meet core components of the right to health ,the majority of Ugandans who live in the country side l walk long distances to get to the nearest health center for medical attention.
And when they finally get there , the quality of services they get from these inadequately manned health centers are deploreable to say the least . These health centers lack medicines and medical implements. The poor suffering rural folks are in most cases left to the mercy of God.
One important development in the law of malpractices among medical practitioners therefore, concerns the direct liability of provider units( read village clinics or health centers) and the medical workers who man them for the failures in their services.
Courts have maintained that even in situations like Uganda where health centers are poorly serviced , in terms of medicines and medical equipment, a doctor or any other health worker has a higher duty to provide a satisfactory standard of care to avoid causing injury to a patient like the case was with Nafuna a baby girl who lost her arm due to a poorly administered injection.
The standard of care which has to be adhered to by all medical practitioners extends even to diagnosis and communication with the patient(s). For instance in medical practice, before a medical worker ventures into diagnosis, he must first get to understand the medical history of a patient.
And the readers of this column will agree that this is not the practice in many of our clinics let alone our major referral hospitals . Doctors and nurses alike , are always in a hurry to diagnosis patients even before knowing the history of the cases brought or refered to them. The doctor's failure to study the a patient's medical history can be fatal. it does not only lead to wrong diagnosis but also wrong prescription and wrong treatment and in a process aggrevates a patient's condition. That ' s why courts have again held medical workers liable if they give a wrong diagnosis which is contrary to acceptable standard practice. In situations where a patient(s) would be entitled to damages.
The intervention of courts in cases of negligence in communication by the medical professionals is also on the rise. As more and more doctors and paramedical workers become involved in a patient ' s treatment, the danger of verbal instructions to such a patient is only too apparent. Errors in the general practitioner ' s letter of referral where say a doctor refers to left leg instead of right leg can so easily lead to an injury of a patient.
In the case of Nafuna another legal issue seems to have emerged. The girl's father didn't consent to decision of the specialised doctor to amputate her harm. The question then is , in life threatening situations where minors are involved, do doctors have to seek consent of parents before carrying out a medical procedure which can like in the case of Nafuna ,lead to permanent disability?
The care of children is governed by the general principles governing professional standards. The law of consent is premised on the assumption that patients will normally be able to take decisions for themselves, but this will often not be the case with children.
In cases where children cannot consent a parent may usually give consent on their behalf. A child or minor according to our constitution is a person below the age of 18 and by implication such a person can not give legal consent. That ' s why even if a 17 year old girl willingly indulges in a sexual relation with a man, the man would still be charged with defilement and he can ' t plead that the 17 year old girl gave consent.
However, for medical purposes, courts have held that the test to be applied is whether the child had ' sufficient understanding and intelligence to enable him or her to understand fully what a doctor has proposed ' .
Understanding fully, therefore requires an appreciation of the consequences of treatment , including possible side effects, and also the anticipated consequences of failure to treat. And the test of maturity established by courts is assessed in respect of each individual child and each separate medical treatment.
An example of who the test of maturity has been applied can be found in one of the decided cases, where a 15 year old boy who was dying of leukaemia expressed his opposition to receiving a blood transfusion . the judge held that he did not appreciate the extent of the fear and distress he would suffer, and consequently did not really understand what he was demanding. He was therefore not competent to give consent.
The overwhelming picture that emerges from this is - that courts are reluctant to allow children to choose to die rather than live and extremely resistant to such decisions where the motivation is religious. And doctors need to seek consent of parents when medical treatment is required as an emergency to save life.
So Nafuna ' s case is arguable since its not clear whether her condition was treated as a case of emergency to save her life by the doctors who amputated her arm. The facts show that the girl ' s father was opposed to the doctor ' s decision to amputate- however is the doctor the girl ' s arm as an emergency to save her life, then he is protected under the law.
Courts have stated that where it would be considered unreasonable in the opinion of most relevant medical experts to withhold the medical care in question, and it does not raise social or moral considerations , then it is permissible to proceed without parental consent and even in the face of parental objection like in the case of Nafuna ' s father.
These legal principles therefore , allow medical practitioners to dispense medicines and treatment when it is done in the interest of the person who cannot consent and permit the health care professionals to judge where those interests lie.
In situations where parents disagree on the issue of consent in cases which are not of an emergency nature, courts have held the medical professional could still be held liable if the proceeded to treat a child. It is also possible that it might amount to negligence if no responsible body of professional opinion would support proceeding without the consent of both parents.
And where parents and children disagree, the law is to the effect that health professionals can only treat the basis of the parental approval. This is because the right to consent to treatment is only lost by parents once the child became competent to consent. The law presumes that parents stand in the best position to attend to the best interests of their children for as long as the case is not of an emergency nature to save the life of a minor.
Moses Paul Sserwanga
Journalists/ advocate
Mobile-0772 43 46 77
msserwanga@yahoo.com
As the state struggles to marshal resources to meet core components of the right to health ,the majority of Ugandans who live in the country side l walk long distances to get to the nearest health center for medical attention.
And when they finally get there , the quality of services they get from these inadequately manned health centers are deploreable to say the least . These health centers lack medicines and medical implements. The poor suffering rural folks are in most cases left to the mercy of God.
One important development in the law of malpractices among medical practitioners therefore, concerns the direct liability of provider units( read village clinics or health centers) and the medical workers who man them for the failures in their services.
Courts have maintained that even in situations like Uganda where health centers are poorly serviced , in terms of medicines and medical equipment, a doctor or any other health worker has a higher duty to provide a satisfactory standard of care to avoid causing injury to a patient like the case was with Nafuna a baby girl who lost her arm due to a poorly administered injection.
The standard of care which has to be adhered to by all medical practitioners extends even to diagnosis and communication with the patient(s). For instance in medical practice, before a medical worker ventures into diagnosis, he must first get to understand the medical history of a patient.
And the readers of this column will agree that this is not the practice in many of our clinics let alone our major referral hospitals . Doctors and nurses alike , are always in a hurry to diagnosis patients even before knowing the history of the cases brought or refered to them. The doctor's failure to study the a patient's medical history can be fatal. it does not only lead to wrong diagnosis but also wrong prescription and wrong treatment and in a process aggrevates a patient's condition. That ' s why courts have again held medical workers liable if they give a wrong diagnosis which is contrary to acceptable standard practice. In situations where a patient(s) would be entitled to damages.
The intervention of courts in cases of negligence in communication by the medical professionals is also on the rise. As more and more doctors and paramedical workers become involved in a patient ' s treatment, the danger of verbal instructions to such a patient is only too apparent. Errors in the general practitioner ' s letter of referral where say a doctor refers to left leg instead of right leg can so easily lead to an injury of a patient.
In the case of Nafuna another legal issue seems to have emerged. The girl's father didn't consent to decision of the specialised doctor to amputate her harm. The question then is , in life threatening situations where minors are involved, do doctors have to seek consent of parents before carrying out a medical procedure which can like in the case of Nafuna ,lead to permanent disability?
The care of children is governed by the general principles governing professional standards. The law of consent is premised on the assumption that patients will normally be able to take decisions for themselves, but this will often not be the case with children.
In cases where children cannot consent a parent may usually give consent on their behalf. A child or minor according to our constitution is a person below the age of 18 and by implication such a person can not give legal consent. That ' s why even if a 17 year old girl willingly indulges in a sexual relation with a man, the man would still be charged with defilement and he can ' t plead that the 17 year old girl gave consent.
However, for medical purposes, courts have held that the test to be applied is whether the child had ' sufficient understanding and intelligence to enable him or her to understand fully what a doctor has proposed ' .
Understanding fully, therefore requires an appreciation of the consequences of treatment , including possible side effects, and also the anticipated consequences of failure to treat. And the test of maturity established by courts is assessed in respect of each individual child and each separate medical treatment.
An example of who the test of maturity has been applied can be found in one of the decided cases, where a 15 year old boy who was dying of leukaemia expressed his opposition to receiving a blood transfusion . the judge held that he did not appreciate the extent of the fear and distress he would suffer, and consequently did not really understand what he was demanding. He was therefore not competent to give consent.
The overwhelming picture that emerges from this is - that courts are reluctant to allow children to choose to die rather than live and extremely resistant to such decisions where the motivation is religious. And doctors need to seek consent of parents when medical treatment is required as an emergency to save life.
So Nafuna ' s case is arguable since its not clear whether her condition was treated as a case of emergency to save her life by the doctors who amputated her arm. The facts show that the girl ' s father was opposed to the doctor ' s decision to amputate- however is the doctor the girl ' s arm as an emergency to save her life, then he is protected under the law.
Courts have stated that where it would be considered unreasonable in the opinion of most relevant medical experts to withhold the medical care in question, and it does not raise social or moral considerations , then it is permissible to proceed without parental consent and even in the face of parental objection like in the case of Nafuna ' s father.
These legal principles therefore , allow medical practitioners to dispense medicines and treatment when it is done in the interest of the person who cannot consent and permit the health care professionals to judge where those interests lie.
In situations where parents disagree on the issue of consent in cases which are not of an emergency nature, courts have held the medical professional could still be held liable if the proceeded to treat a child. It is also possible that it might amount to negligence if no responsible body of professional opinion would support proceeding without the consent of both parents.
And where parents and children disagree, the law is to the effect that health professionals can only treat the basis of the parental approval. This is because the right to consent to treatment is only lost by parents once the child became competent to consent. The law presumes that parents stand in the best position to attend to the best interests of their children for as long as the case is not of an emergency nature to save the life of a minor.
Moses Paul Sserwanga
Journalists/ advocate
Mobile-0772 43 46 77
msserwanga@yahoo.com
Tuesday, January 6, 2009
KONY CAN RUN BUT HE CAN'T HIDE FROM JUSTICE
Kony can run but he can’t hide from justice
It’s two weeks now since the man hunt for the reclusive, indicted, international war criminal Joseph Kony was launched by a combined force of troops from Uganda, South Sudan and DR Congo.
And although the latest military offensive against the Lords Resistance Army, (LRA) bandits in their hideouts in Garamba, has come rather too late, and is yet to register any significant success -it’s still important in a sense that justice must be accorded to the millions of people in northern Uganda who have for the last 20 years suffered the brutality of Kony and his rag-tag army.
Kony has duped the international community and cost this country billions of tax payers’ money in the now infamous –two-year -Juba peace jokes! It was pretty obvious from the onset of the failed peace talks that Kony - aware of the heinous crimes he has committed against humanity- would never surrender without putting up a fight!
That’s why there is no option but for the government troops, supported by our regional allies, now conducting ‘Operation Lightning Thunder’ to capture Kony and his blood-stained commanders and have them answer charges of war crimes and crimes against humanity at the International Criminal Court (ICC).
And our forces now have the capabilities to pull this one off - of course with the support of the Ugandan people.
Although, this column, doesn’t necessarily agree with what the government has done or has not done in the past, to end Kony’s ferocious killing of innocent civilians in Northern Uganda, justice must prevail whatever the circumstances. And when our forces make an effort to catch Kony and bring him to justice, then they should be supported by all law abiding citizens of this country.
For the record is clear, Kony and his group of butchers have murdered an estimated 30,000 people during the execution of their two-decade, unjustified rebellion in the northern part of the country.
An estimated 2 million people were displaced as a result of this war and the majority of them have until recently, been living in camps under squalid conditions.
The LRA’s horrendous attacks on innocent civilians did not spare children who were abducted and illegally conscripted in the LRA as child soldiers. They abducted women and girls whom they kept in captivity as sex slaves for so long .
At Kony’s command, the LRA gangsters used machetes and hoes to maim their victims; chopping lips and ears of the captives. They raided schools and forced students to fight and kill their own relatives. Many of the lucky surviving victims will never recover from the trauma visited upon them by the blood-soiled hands of Kony and those under his command. Because of their unprecedented cruelty, Kony’s LRA, deserves no sympathy in the civilised world.
And this is the reason why the ICC, a court set up by the global community under the Rome Statute has since issued warrants of arrest for Kony and his commanders- indicted on 33 counts of war crimes and crimes against humanity.
Kony can run in the forested Garamba border areas in DR Congo but he can not hide forever and he cannot escape the rule of law. The international criminal law is to the effect that no war criminal can escape justice.
Once a person has committed war crimes as spelt out in the Rome Statute, then that person cannot even benefit from the provisions of our amnesty law. War crimes and crimes against humanity are international in nature and suspects can be picked from anywhere in the world by any spirited individual or state to arraigned them at the ICC for trial.
The UPDF should use all its capabilities and bring all resources to bear in this new effort to find Kony and his commanders to have them answer for their criminal acts. The UPDF should earn the support of the people of Uganda and hope our brothers and sisters in northern Uganda have a peaceful festive season.
Happy New Year to all of you the ardent readers of this column.
Mr Sserwanga is an advocate
It’s two weeks now since the man hunt for the reclusive, indicted, international war criminal Joseph Kony was launched by a combined force of troops from Uganda, South Sudan and DR Congo.
And although the latest military offensive against the Lords Resistance Army, (LRA) bandits in their hideouts in Garamba, has come rather too late, and is yet to register any significant success -it’s still important in a sense that justice must be accorded to the millions of people in northern Uganda who have for the last 20 years suffered the brutality of Kony and his rag-tag army.
Kony has duped the international community and cost this country billions of tax payers’ money in the now infamous –two-year -Juba peace jokes! It was pretty obvious from the onset of the failed peace talks that Kony - aware of the heinous crimes he has committed against humanity- would never surrender without putting up a fight!
That’s why there is no option but for the government troops, supported by our regional allies, now conducting ‘Operation Lightning Thunder’ to capture Kony and his blood-stained commanders and have them answer charges of war crimes and crimes against humanity at the International Criminal Court (ICC).
And our forces now have the capabilities to pull this one off - of course with the support of the Ugandan people.
Although, this column, doesn’t necessarily agree with what the government has done or has not done in the past, to end Kony’s ferocious killing of innocent civilians in Northern Uganda, justice must prevail whatever the circumstances. And when our forces make an effort to catch Kony and bring him to justice, then they should be supported by all law abiding citizens of this country.
For the record is clear, Kony and his group of butchers have murdered an estimated 30,000 people during the execution of their two-decade, unjustified rebellion in the northern part of the country.
An estimated 2 million people were displaced as a result of this war and the majority of them have until recently, been living in camps under squalid conditions.
The LRA’s horrendous attacks on innocent civilians did not spare children who were abducted and illegally conscripted in the LRA as child soldiers. They abducted women and girls whom they kept in captivity as sex slaves for so long .
At Kony’s command, the LRA gangsters used machetes and hoes to maim their victims; chopping lips and ears of the captives. They raided schools and forced students to fight and kill their own relatives. Many of the lucky surviving victims will never recover from the trauma visited upon them by the blood-soiled hands of Kony and those under his command. Because of their unprecedented cruelty, Kony’s LRA, deserves no sympathy in the civilised world.
And this is the reason why the ICC, a court set up by the global community under the Rome Statute has since issued warrants of arrest for Kony and his commanders- indicted on 33 counts of war crimes and crimes against humanity.
Kony can run in the forested Garamba border areas in DR Congo but he can not hide forever and he cannot escape the rule of law. The international criminal law is to the effect that no war criminal can escape justice.
Once a person has committed war crimes as spelt out in the Rome Statute, then that person cannot even benefit from the provisions of our amnesty law. War crimes and crimes against humanity are international in nature and suspects can be picked from anywhere in the world by any spirited individual or state to arraigned them at the ICC for trial.
The UPDF should use all its capabilities and bring all resources to bear in this new effort to find Kony and his commanders to have them answer for their criminal acts. The UPDF should earn the support of the people of Uganda and hope our brothers and sisters in northern Uganda have a peaceful festive season.
Happy New Year to all of you the ardent readers of this column.
Mr Sserwanga is an advocate
Tuesday, December 16, 2008
GUARD AGAINST TERROR WITHOUT ABUSING RIGHTS
Guard against terror without abusing rights
Recently Monitor Publications Ltd , in one of its editions , quoted top security officials talking grandly about the new tough measures instituted to secure the country against terrorist attacks.
As a country, its important that we secure our porous borders and waterways against terrorism. Ugandans must remain vigilant in the global fight against terrorists- whose extremist ideologies are hell-bent on causing maximum causalities and destruction of property in the civilised world.
But be that as it may, the new government anti - terrorism measures should not, at the same time , dull our pursuit as a people, the promotion and protection of the civil liberties enshrined in our national constitution.
While the state must be resolute in ensuring the safety of its citizens from terror acts , government should also take seriously the International Commission of Jurists, (ICJ) a body of human rights legal scholars- who are concerned that the new global counter terrorism legal regime has led to an increase in cases of human rights violations.
These extreme cases of human rights violations in the fight against terrorism which include interalia (among others), the holding of suspects in un-gazetted detention centers with out trial - coupled with torture - have been challenged in the US Supreme Court.
The court has since held among others, that the Guantanamo detainees (majority of whom are suspected terrorists arrested following the 9/11 terror attacks on the United States), have the right to go to federal court(s) to seek their release from indefinite detention.
Following that decision some ICJ scholars have argued and this column concurs ; that safe guarding persons from terrorist acts and the respect for human rights and humanitarian law, allow states a reasonably wide margin of flexibility to combat terrorism without contravening human rights and humanitarian legal obligations.
This is because in some countries the post 9/11 climate of insecurity has been exploited to justify long-standing human rights violations carried out in the name of national security.
Just like many countries around the world, following the events of 9/11, Uganda’s legislature enacted the Anti-Terrorism Act, 2002 as a measure to counter the threat of terrorism in the country.
The import of this law was the creation of the offences of terrorism, aiding and abetting terrorism, establishment of terrorist institutions, support, finance or execute acts of terrorism.
The Act also allows government security agents to intercept correspondences of and the surveillance of persons suspected to be planning or to be involved in acts of terrorism. The Act also specifically lists the terrorist organisations as, The Lords’ Resistance Army, The Lord’s Resistance Movement, Allied Democratic Forces, ADF and Al-queda.
Terrorism according to the Act has been assigned the meaning of an act committed by a person or organisation for purposes of influencing the government or intimidating the public or a section of the public and for a political, religious, social or economic aim, indiscriminately without due to regard to the safety of others or property intentionally or unlawfully cause death or serious bodily injury or extensive destruction likely to or actually resulting in major economic loss. When convicted one can suffer the death penalty.
But during the implementation of this law, there have been cases perceived by both the general public and international community especially those involving politicians as being an attempt by government to use the anti-terrorism law to harass or intimidate opposition politicians without having incriminating evidence against them.
Now that’s what is called political persecution and its not the right approach in fighting terrorism.
Let suspected terrorists be accorded their legal rights and once convicted by our courts then they should ultimately suffer the full force of the law.
We can protect ourselves against terrorism without necessarily infringing on the individual’s fundamental human rights. It’s possible to this balance right.
The writer is a journalist and advocate
msserwanga@gmail.co.ug
msserwanga.blogspot.com
Recently Monitor Publications Ltd , in one of its editions , quoted top security officials talking grandly about the new tough measures instituted to secure the country against terrorist attacks.
As a country, its important that we secure our porous borders and waterways against terrorism. Ugandans must remain vigilant in the global fight against terrorists- whose extremist ideologies are hell-bent on causing maximum causalities and destruction of property in the civilised world.
But be that as it may, the new government anti - terrorism measures should not, at the same time , dull our pursuit as a people, the promotion and protection of the civil liberties enshrined in our national constitution.
While the state must be resolute in ensuring the safety of its citizens from terror acts , government should also take seriously the International Commission of Jurists, (ICJ) a body of human rights legal scholars- who are concerned that the new global counter terrorism legal regime has led to an increase in cases of human rights violations.
These extreme cases of human rights violations in the fight against terrorism which include interalia (among others), the holding of suspects in un-gazetted detention centers with out trial - coupled with torture - have been challenged in the US Supreme Court.
The court has since held among others, that the Guantanamo detainees (majority of whom are suspected terrorists arrested following the 9/11 terror attacks on the United States), have the right to go to federal court(s) to seek their release from indefinite detention.
Following that decision some ICJ scholars have argued and this column concurs ; that safe guarding persons from terrorist acts and the respect for human rights and humanitarian law, allow states a reasonably wide margin of flexibility to combat terrorism without contravening human rights and humanitarian legal obligations.
This is because in some countries the post 9/11 climate of insecurity has been exploited to justify long-standing human rights violations carried out in the name of national security.
Just like many countries around the world, following the events of 9/11, Uganda’s legislature enacted the Anti-Terrorism Act, 2002 as a measure to counter the threat of terrorism in the country.
The import of this law was the creation of the offences of terrorism, aiding and abetting terrorism, establishment of terrorist institutions, support, finance or execute acts of terrorism.
The Act also allows government security agents to intercept correspondences of and the surveillance of persons suspected to be planning or to be involved in acts of terrorism. The Act also specifically lists the terrorist organisations as, The Lords’ Resistance Army, The Lord’s Resistance Movement, Allied Democratic Forces, ADF and Al-queda.
Terrorism according to the Act has been assigned the meaning of an act committed by a person or organisation for purposes of influencing the government or intimidating the public or a section of the public and for a political, religious, social or economic aim, indiscriminately without due to regard to the safety of others or property intentionally or unlawfully cause death or serious bodily injury or extensive destruction likely to or actually resulting in major economic loss. When convicted one can suffer the death penalty.
But during the implementation of this law, there have been cases perceived by both the general public and international community especially those involving politicians as being an attempt by government to use the anti-terrorism law to harass or intimidate opposition politicians without having incriminating evidence against them.
Now that’s what is called political persecution and its not the right approach in fighting terrorism.
Let suspected terrorists be accorded their legal rights and once convicted by our courts then they should ultimately suffer the full force of the law.
We can protect ourselves against terrorism without necessarily infringing on the individual’s fundamental human rights. It’s possible to this balance right.
The writer is a journalist and advocate
msserwanga@gmail.co.ug
msserwanga.blogspot.com
Tuesday, December 9, 2008
MR> PRESIDENT, DON'T HUNT YOUR HONEST ALLY
Mr President, don’t hunt your honest ally
President Museveni has of late come hard on the media which he accuses of sabotaging investment by maligning investors. This is a worrying development, not that it’s a direct attack on the freedoms of speech and expression but that it comes at a time when our Parliament has been cowed by the executive.
In a true democracy, both Parliament and the media play the role of watchdog to check the excesses of the executive. The Judiciary on the other hand, plays the role of an arbitrator to resolve conflicts between the other three arms of the state namely the executive, legislature and the media while at the same time upholding the provisions of our constitution and the attendant laws.
Ugandan journalists have continued to be harassed and more than a dozen are now facing various charges ranging from criminal libel to sedition and promotion of sectarianism even when these bad laws are now a subject of a constitutional petition which was filed by Andrew Mwenda and the East African Media Institute.
And since the matter is yet to be disposed of by the Constitutional Court, it would be prudent for the executive to suspend such offences until the court makes its ruling on the their fate. This would also be the right criminal procedure whenever there are constitutional issues to be determined in substantive petitions lying before court.
Instead, the state conveniently prefers to ignore these rather obvious/basic procedures of the law in their relentless effort to stifle media freedoms and the citizens’ right to challenge bad governance. These machinations by the state to gag the media have far reaching consequences for the wider freedoms of the citizenry, the stability and development of our young democracy.
Democracy thrive best in an atmosphere of trust, openness and accountability. It’s a constitutional right for the citizens to access information held by government and its agents in order to hold our leaders/public servants accountable for their actions.
In civilised societies media offences have been decriminalised and those wronged pursue civil remedies. The media has an important role to play as a watchdog of the public by exposing the ills in government and effectively help to stem government’s abuse of power. For democracy to flourish therefore, there must be an independent, free and vibrant media and the individual’s rights of free speech, expression and access to information must be protected.
Governments must encourage and allow positive criticism and promote tolerance in the interest of public good. Whereas Uganda is said to have relative press freedom compared to other African countries, it should be noted that the said freedom does not arise out of instrumental guarantees, but out of the mere goodwill will of the regime in Kampala. This must change. All Ugandans including the President must appreciate that fundamental rights and freedoms of the individual are inherent and not granted by the state.
Uganda still has on its statute books some of the most obnoxious, obsolete laws which were largely designed to curtail free speech and media freedoms to allow the dictatorial regimes of the day to entrench themselves in power. Some of these laws have been applied by government whenever its interests of beating the media into line arise.
These bad laws which can be successfully challenged in any court with competent jurisdiction, including the East African Court of Justice, (EACJ) can be found in the Uganda’s Criminal Penal Code Act as amended, The Press and Journalists Act, The
Anti Terrorism Act and the Electronic Media Act 2000.
The President’s apparent determination “to deal” with the media is very disturbing to say the least. The heads of state and government from Eastern Africa must embrace and work with the media for the region’s greater development. Instead of bashing the independent media, Mr Museveni should listen to them more and get unbiased information that can help him and his government grow our democracy.
Mr Sserwanga writer is a journalist and advocate
msserwanga@gmail.com
President Museveni has of late come hard on the media which he accuses of sabotaging investment by maligning investors. This is a worrying development, not that it’s a direct attack on the freedoms of speech and expression but that it comes at a time when our Parliament has been cowed by the executive.
In a true democracy, both Parliament and the media play the role of watchdog to check the excesses of the executive. The Judiciary on the other hand, plays the role of an arbitrator to resolve conflicts between the other three arms of the state namely the executive, legislature and the media while at the same time upholding the provisions of our constitution and the attendant laws.
Ugandan journalists have continued to be harassed and more than a dozen are now facing various charges ranging from criminal libel to sedition and promotion of sectarianism even when these bad laws are now a subject of a constitutional petition which was filed by Andrew Mwenda and the East African Media Institute.
And since the matter is yet to be disposed of by the Constitutional Court, it would be prudent for the executive to suspend such offences until the court makes its ruling on the their fate. This would also be the right criminal procedure whenever there are constitutional issues to be determined in substantive petitions lying before court.
Instead, the state conveniently prefers to ignore these rather obvious/basic procedures of the law in their relentless effort to stifle media freedoms and the citizens’ right to challenge bad governance. These machinations by the state to gag the media have far reaching consequences for the wider freedoms of the citizenry, the stability and development of our young democracy.
Democracy thrive best in an atmosphere of trust, openness and accountability. It’s a constitutional right for the citizens to access information held by government and its agents in order to hold our leaders/public servants accountable for their actions.
In civilised societies media offences have been decriminalised and those wronged pursue civil remedies. The media has an important role to play as a watchdog of the public by exposing the ills in government and effectively help to stem government’s abuse of power. For democracy to flourish therefore, there must be an independent, free and vibrant media and the individual’s rights of free speech, expression and access to information must be protected.
Governments must encourage and allow positive criticism and promote tolerance in the interest of public good. Whereas Uganda is said to have relative press freedom compared to other African countries, it should be noted that the said freedom does not arise out of instrumental guarantees, but out of the mere goodwill will of the regime in Kampala. This must change. All Ugandans including the President must appreciate that fundamental rights and freedoms of the individual are inherent and not granted by the state.
Uganda still has on its statute books some of the most obnoxious, obsolete laws which were largely designed to curtail free speech and media freedoms to allow the dictatorial regimes of the day to entrench themselves in power. Some of these laws have been applied by government whenever its interests of beating the media into line arise.
These bad laws which can be successfully challenged in any court with competent jurisdiction, including the East African Court of Justice, (EACJ) can be found in the Uganda’s Criminal Penal Code Act as amended, The Press and Journalists Act, The
Anti Terrorism Act and the Electronic Media Act 2000.
The President’s apparent determination “to deal” with the media is very disturbing to say the least. The heads of state and government from Eastern Africa must embrace and work with the media for the region’s greater development. Instead of bashing the independent media, Mr Museveni should listen to them more and get unbiased information that can help him and his government grow our democracy.
Mr Sserwanga writer is a journalist and advocate
msserwanga@gmail.com
Tuesday, November 25, 2008
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
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
Tuesday, November 18, 2008
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
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
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