THE OTHER SIDE OF LAW
The right to life forms the bedrock of the concept of human rights, which is universally acclaimed as an inalienable and inherent right to all. However different legal regimes provide for and protect the right to life differently. In some jurisdictions such as South Africa the right to life is unqualified while in Uganda under our national constitution, its qualified. This means that the right to life under Uganda
' s legal regime is alienable (it can be taken away legally) if its in execution of a sentence passed in a fair trial by a court of competent jurisdiction.
As it has been pointed out previously in this column, our penal law imposes mandatory death sentences on what are refered to as capital offences, which include murder, treason and robbery with a deadly weapon. Those against the death penalty argue that the various laws of Uganda that prescribe mandatory sentences of death upon conviction are inconsistent with or in contravention of the constitution. The Constitutional Court in the case of Kigula earlier referred to in this column again comprehensively dealt with this contentious issue. It was argued before court that the mandatory death sentence treats a convict differently from that imposed under a non-mandatory section and that such treatment contravens of Article 21 of the constitution, which provides for equality before and under the law.
The other issue is whether the convict should exercise his right of appeal against the death sentence and not the conviction and that the appellate courts should have discretion to confirm or reverse the death penalty upon hearing mitigating factors. In this regard its argued that the convict is not given opportunity to show cause why the death sentence is not the appropriate sentence in their individual cases.
Then there is also the issue of separation of powers : the functions of the legislature and the judiciary. Those against the death penalty argue that the principle of separation of power allocates to the legislature the duty to define offences and prescribe possible sentences for each offence. For them the determination of the exact appropriate sentence and imposition is the duty of the judiciary under article 126(1) of constitution and therefore parliament should not have the power to impose mandatory sentences like the death penalty. Its argued that a statute which prescribes a mandatory sentence is an intrusion into the realm of the judiciary and as such violates the principle of separation of power.
It should be noted that the mandatory death sentence is acceptable and demonstrably justified in Uganda within the context of articles 21(4)( c) and 43 because the majority of Ugandans approve of it. The majority of Ugandans still view the death sentence as a fair penalty for heinous crimes. They accept it as a way of demonstrating their disapproval of such crimes.
However , in its pronoucement the Constitutional court held that the various provisions of the laws of Uganda which prescribe mandatory death sentence are unconstitutional. This means, that although it '> s the same court that upheld the death penalty as being constitutional, it as of the view that an accused person should be allowed an opportunity to plead mitigating factors for court to pass a fair sentence.
And this brings to another area of contention and that ' s the method to employed for carrying out the death sentence. Again in the Kigula case, the petitioners argued that death by hanging was cruely , inhuman and therefore unconstitutional . The petituioners also cited the case Ben Ogwang who has stayed on the death row for 20 years since his conviction and sentence.
They further argued that such convicts suffer from death row syndrome. That executions are carried out early morning and within the hearing of the other condemned inmates.A question is then posed : do condemned prisoners have any fundamental rights and freedoms left to be protected before they are executed. The Constitutional Court ruled in the affirmative.
Court held that prisoners did not lose all their constitutional rights upon conviction, only those rights inevitably removed from them by law either expressly or by implication. According to the court a prisoner who was sentenced to death still enjoyed the protection of Article 24 of the constitution and therefore cannot be subjected to cruel , inhuman or degrading treatment. The > ' death row syndrome ' the mental and physical state of the condemned prisoners who remain on the death row for a long periods, according to the court, amounts to cruel and inhuman treatment and thus unconstitutional.
Court stated that the spirit of our constitution is to the effect that whatever is to be done under it affecting the fundamental rights and freedoms must be done without unreasonable delay.Court observed that a delay beyond three years after a condemned prisoner> '> s sentence has been confirmed by the highest appellate court would tend towards inordinate (unreasonable delay.)
Following this land mark decision its clear that the death penalty is constitutional and the appropriate sentence for murderers. Again to avoid any issues of unfairness and reservability of the death penalty, the constitutional court has allowed courts to hear mitigating factors before passing the death sentence . This is a welcome development although this decision is yet to be tested in our courts. And those sentenced to death would not have any legal justification to protest the penalty. A convicted murderer should face death. The writer is a journalist and advocate.>>msserwanga@gmail.co.ug
Friday, July 6, 2007
OTHER SIDE OF LAW>>
The Supreme Iraqi Criminal Tribunal (SICT) imposed the death sentence on Saddam Hussein and two of his seven co-accused early this month .The tempestuous former Iraqi dictator was handed the death penalty for killing 148 people from al-Dujail village in 1982.
However, Saddam ' s conviction and subsequent conviction has divided the world, The debate is on about the touchy issue of the appropriateness of the death penalty as an effective tool to deter capital offenses including murder. Iraqi President Jalal Talabani (or Mam-Uncle-jala as he is sometimes referred) is himself opposed to the death penalty.
Talabani has intimated that he wont exercise his constitutional duty as leader of the Iraqi people to sign Saddam' s death warrant once the sentence is upheld by the country ' s appellate court. Talabani says he will delegate that duty to his deputies and that he will not be in Iraq when the execution is carried out. It is quite ironical considering the fact that Talabani is one of the longest lasting figures in Iraqi Kurdish politics stood up against Saddam '> s dictatorial policies and mass murder, and led a three-decade armed struggle in which many innocent Iraqis lost lives.
The same applies to Britain ' s Tony Blair who is also opposed to the death penalty but at the same time deploys British troops for a war without solid/hard evidence to justify his actions. As a result on overage 100 lives of innocent Iraqis are lost everyday.
> Amnesty International (AI) an organization dedicated to the protection and promotion of human rights has for decades worked for an end to executions and the abolition of the death penalty.
Each year since 1997 the United Nations Commission on Human Rights has passed a resolution calling on countries that have not abolished the death penalty to establish a moratorium (suspension) on executions. The latest resolution, adopted in April 2005, was co-sponsored by 81 UN member states, the highest number ever. When AI convened an International Conference on the Death Penalty in Stockholm, Sweden, in 1977, just 16 countries had abolished capital punishment for all crimes.
Those against the death penalty argue that its dissuasive power has never been demonstrated and it is a punishment that is contrary to the idea of human dignity and to the right to life. For them, the death penalty is the ultimate cruel, inhuman and degrading punishment. It violates the right to life. It is irrevocable and can be inflicted on the innocent. It has never been shown to deter crime more effectively than other punishments. But then one is left to wonder what other fitting punishment can be handed out to a person who doesn'>t value life. For a murderer who kills at will- with out any remorse. For a person who illegal takes away the life of another innocent human being.
In the case of Saddam one of the world' s best known and most hated murderers after the Nazi German'> s Hitler and Italy Benito Mussolini his tactic of imposing his authority by terror went beyond the occasional arrest and execution of opponents.
In attempts to suppress the Kurds, for example, he systematically used chemical weapons. And in putting down a rebellion of Shi\'ia in the south he razed towns to the ground and drained marshland. He didn' t care whom he killed whether they were children or pregnant women.
Amnesty International (AI) an organization dedicated to the protection and promotion of human rights has for decades worked for an end to executions and the abolition of the death penalty.>> Each year since 1997 the United Nations Commission on Human Rights has passed a resolution calling on countries that have not abolished the death penalty to establish a moratorium (suspension) on executions. The latest resolution, adopted in April 2005, was co-sponsored by 81 UN member states, the highest number ever. When AI convened an International Conference on the Death Penalty in Stockholm, Sweden, in 1977, just 16 countries had abolished capital punishment for all crimes. Today the figure stands at 88.
Those against the death penalty argue that its dissuasive power has never been demonstrated and it is a punishment that is contrary to the idea of human dignity and to the right to life. For them, the death penalty is the ultimate cruel, inhuman and degrading punishment. It violates the right to life.
It is irrevocable and can be inflicted on the innocent. It has never been shown to deter crime more effectively than other punishments. But then one is left to wonder what other fitting punishment can be handed out to a person who doesn ' t value life. For a murderer who kills at will- with out any remorse. For a person who illegal takes away the life of another innocent human being.
In the case of Saddam one of the world ' s best known and most hated murderers after the Nazi German ' s Hitler and Italy Benito Mussolini his tactic of imposing his authority by terror went beyond the occasional arrest and execution of opponents. In attempts to suppress the Kurds, for example, he systematically used chemical weapons. And in putting down a rebellion of Shi'ia in the south he razed towns to the ground and drained marshland.
He didn ' t care whom he killed whether they were children or pregnant women.
And then you have the campaigners against the death penalty arguing that, historically severe punishments have never reduced criminality to any marked degree. But it can also be stated that there exists no scientific proof of the notion that life sentences for murders have produced any positive results reducing capital offences either.
The concept of retribution, which allows for the death penalty, was designed to fit the crime. This concept is derived from the natural law and rights theory that emphasizes the divine right and power, which no human being can upset. This means that if you take one'> s limb, you simply pay with your own. I wouldn' t agree further. We are all rational beings who think before we act and base our actions on a careful calculation of the gains and losses involved in whatever we do. If a man wants to take the law in his own hands and kills another innocent human being he should pay the ultimate price and that' s death.
This doesn' t mean that such a murderer should not be subjected to a fair trial in competent courts of law. That'> s why our justice system is very elaborate on this matter. By the time a death sentence is up-held by our supreme court of seven judges: there is possibly no defence left for such a convict.
Therefore, there is no logic in Amnesty International' s propagation that the use of the death penalty for social benefit is suspect because it involves ' sacrificial' use of certain members of society for some social good. There cannot be any plausible ' sacrifice'> in a convicted murderer. Such a person has no place in a civilized society.
In the United States, where the chief objection to capital punishment is that it has always been used unfairly, in at least three major ways: with regard to race, sex, and social status- such legal gaps can be closed by the law makers. It is not a sufficient reason for abolishing the death penalty.
And then you have the campaigners against the death penalty arguing that, historically severe punishments have never reduced criminality to any marked degree. But it can also be stated that there exists no scientific proof of the notion that life sentences for murders have produced any positive results reducing capital offences either.
The concept of retribution, which allows for the death penalty, was designed to fit the crime. This concept is derived from the natural law and rights theory that emphasizes the divine right and power, which no human being can upset. This means that if you take one> '> s limb, you simply pay with your own.
I wouldn' t agree further. We are all rational beings who think before we act and base our actions on a careful calculation of the gains and losses involved in whatever we do. If a man wants to take the law in his own hands and kills another innocent human being he should pay the ultimate price and that'> s death.
This doesn ' t mean that such a murderer should not be subjected to a fair trial in competent courts of law. That ' s why our justice system is very elaborate on this matter. By the time a death sentence is up-held by our supreme court of seven judges: there is possibly no defence left for such a convict.
Therefore, there is no logic in Amnesty International ' s propagation that the use of the death penalty for social benefit is suspect because it involves ' sacrificial ' use of certain members of society for some social good. There cannot be any plausible ' sacrifice ' in a convicted murderer. Such a person has no place in a civilized society.
In the United States, where the chief objection to capital punishment is that it has always been used unfairly, in at least three major ways: with regard to race, sex, and social status- such legal gaps can be closed by the law makers. It is not a sufficient reason for abolishing the death penalty.
> And in Uganda the death penalty is a constitutional provision for all capital offences. Courts cannot afford to allow them to be swayed from their duty of independent arbiters of our constitution because of public opinion. Punishment must be commensurate with the offence.
Amnesty International should instead employ its vast resources on educating the public about the legal ramifications of one' s actions especially in murder cases. Indeed many lives can be save by the simple power of knowledge.
Next week in this column: The pronouncements of the Constitutional Court on the death penalty. The writer is a Journalist and advocate
And in Uganda the death penalty is a constitutional provision for all capital offences. Courts cannot afford to allow them to be swayed from their duty of independent arbiters of our constitution because of public opinion. Punishment must be commensurate with the offence.>> Amnesty International should instead employ its vast resources on educating the public about the legal ramifications of one ' s actions especially in murder cases. Indeed many lives can be save by the simple power of knowledge. Next week in this column: The pronouncements of the Constitutional Court on the death penalty. The writer is a Journalist and advocate> msserwanga@gmail.com>
The Supreme Iraqi Criminal Tribunal (SICT) imposed the death sentence on Saddam Hussein and two of his seven co-accused early this month .The tempestuous former Iraqi dictator was handed the death penalty for killing 148 people from al-Dujail village in 1982.
However, Saddam ' s conviction and subsequent conviction has divided the world, The debate is on about the touchy issue of the appropriateness of the death penalty as an effective tool to deter capital offenses including murder. Iraqi President Jalal Talabani (or Mam-Uncle-jala as he is sometimes referred) is himself opposed to the death penalty.
Talabani has intimated that he wont exercise his constitutional duty as leader of the Iraqi people to sign Saddam' s death warrant once the sentence is upheld by the country ' s appellate court. Talabani says he will delegate that duty to his deputies and that he will not be in Iraq when the execution is carried out. It is quite ironical considering the fact that Talabani is one of the longest lasting figures in Iraqi Kurdish politics stood up against Saddam '> s dictatorial policies and mass murder, and led a three-decade armed struggle in which many innocent Iraqis lost lives.
The same applies to Britain ' s Tony Blair who is also opposed to the death penalty but at the same time deploys British troops for a war without solid/hard evidence to justify his actions. As a result on overage 100 lives of innocent Iraqis are lost everyday.
> Amnesty International (AI) an organization dedicated to the protection and promotion of human rights has for decades worked for an end to executions and the abolition of the death penalty.
Each year since 1997 the United Nations Commission on Human Rights has passed a resolution calling on countries that have not abolished the death penalty to establish a moratorium (suspension) on executions. The latest resolution, adopted in April 2005, was co-sponsored by 81 UN member states, the highest number ever. When AI convened an International Conference on the Death Penalty in Stockholm, Sweden, in 1977, just 16 countries had abolished capital punishment for all crimes.
Those against the death penalty argue that its dissuasive power has never been demonstrated and it is a punishment that is contrary to the idea of human dignity and to the right to life. For them, the death penalty is the ultimate cruel, inhuman and degrading punishment. It violates the right to life. It is irrevocable and can be inflicted on the innocent. It has never been shown to deter crime more effectively than other punishments. But then one is left to wonder what other fitting punishment can be handed out to a person who doesn'>t value life. For a murderer who kills at will- with out any remorse. For a person who illegal takes away the life of another innocent human being.
In the case of Saddam one of the world' s best known and most hated murderers after the Nazi German'> s Hitler and Italy Benito Mussolini his tactic of imposing his authority by terror went beyond the occasional arrest and execution of opponents.
In attempts to suppress the Kurds, for example, he systematically used chemical weapons. And in putting down a rebellion of Shi\'ia in the south he razed towns to the ground and drained marshland. He didn' t care whom he killed whether they were children or pregnant women.
Amnesty International (AI) an organization dedicated to the protection and promotion of human rights has for decades worked for an end to executions and the abolition of the death penalty.>> Each year since 1997 the United Nations Commission on Human Rights has passed a resolution calling on countries that have not abolished the death penalty to establish a moratorium (suspension) on executions. The latest resolution, adopted in April 2005, was co-sponsored by 81 UN member states, the highest number ever. When AI convened an International Conference on the Death Penalty in Stockholm, Sweden, in 1977, just 16 countries had abolished capital punishment for all crimes. Today the figure stands at 88.
Those against the death penalty argue that its dissuasive power has never been demonstrated and it is a punishment that is contrary to the idea of human dignity and to the right to life. For them, the death penalty is the ultimate cruel, inhuman and degrading punishment. It violates the right to life.
It is irrevocable and can be inflicted on the innocent. It has never been shown to deter crime more effectively than other punishments. But then one is left to wonder what other fitting punishment can be handed out to a person who doesn ' t value life. For a murderer who kills at will- with out any remorse. For a person who illegal takes away the life of another innocent human being.
In the case of Saddam one of the world ' s best known and most hated murderers after the Nazi German ' s Hitler and Italy Benito Mussolini his tactic of imposing his authority by terror went beyond the occasional arrest and execution of opponents. In attempts to suppress the Kurds, for example, he systematically used chemical weapons. And in putting down a rebellion of Shi'ia in the south he razed towns to the ground and drained marshland.
He didn ' t care whom he killed whether they were children or pregnant women.
And then you have the campaigners against the death penalty arguing that, historically severe punishments have never reduced criminality to any marked degree. But it can also be stated that there exists no scientific proof of the notion that life sentences for murders have produced any positive results reducing capital offences either.
The concept of retribution, which allows for the death penalty, was designed to fit the crime. This concept is derived from the natural law and rights theory that emphasizes the divine right and power, which no human being can upset. This means that if you take one'> s limb, you simply pay with your own. I wouldn' t agree further. We are all rational beings who think before we act and base our actions on a careful calculation of the gains and losses involved in whatever we do. If a man wants to take the law in his own hands and kills another innocent human being he should pay the ultimate price and that' s death.
This doesn' t mean that such a murderer should not be subjected to a fair trial in competent courts of law. That'> s why our justice system is very elaborate on this matter. By the time a death sentence is up-held by our supreme court of seven judges: there is possibly no defence left for such a convict.
Therefore, there is no logic in Amnesty International' s propagation that the use of the death penalty for social benefit is suspect because it involves ' sacrificial' use of certain members of society for some social good. There cannot be any plausible ' sacrifice'> in a convicted murderer. Such a person has no place in a civilized society.
In the United States, where the chief objection to capital punishment is that it has always been used unfairly, in at least three major ways: with regard to race, sex, and social status- such legal gaps can be closed by the law makers. It is not a sufficient reason for abolishing the death penalty.
And then you have the campaigners against the death penalty arguing that, historically severe punishments have never reduced criminality to any marked degree. But it can also be stated that there exists no scientific proof of the notion that life sentences for murders have produced any positive results reducing capital offences either.
The concept of retribution, which allows for the death penalty, was designed to fit the crime. This concept is derived from the natural law and rights theory that emphasizes the divine right and power, which no human being can upset. This means that if you take one> '> s limb, you simply pay with your own.
I wouldn' t agree further. We are all rational beings who think before we act and base our actions on a careful calculation of the gains and losses involved in whatever we do. If a man wants to take the law in his own hands and kills another innocent human being he should pay the ultimate price and that'> s death.
This doesn ' t mean that such a murderer should not be subjected to a fair trial in competent courts of law. That ' s why our justice system is very elaborate on this matter. By the time a death sentence is up-held by our supreme court of seven judges: there is possibly no defence left for such a convict.
Therefore, there is no logic in Amnesty International ' s propagation that the use of the death penalty for social benefit is suspect because it involves ' sacrificial ' use of certain members of society for some social good. There cannot be any plausible ' sacrifice ' in a convicted murderer. Such a person has no place in a civilized society.
In the United States, where the chief objection to capital punishment is that it has always been used unfairly, in at least three major ways: with regard to race, sex, and social status- such legal gaps can be closed by the law makers. It is not a sufficient reason for abolishing the death penalty.
> And in Uganda the death penalty is a constitutional provision for all capital offences. Courts cannot afford to allow them to be swayed from their duty of independent arbiters of our constitution because of public opinion. Punishment must be commensurate with the offence.
Amnesty International should instead employ its vast resources on educating the public about the legal ramifications of one' s actions especially in murder cases. Indeed many lives can be save by the simple power of knowledge.
Next week in this column: The pronouncements of the Constitutional Court on the death penalty. The writer is a Journalist and advocate
And in Uganda the death penalty is a constitutional provision for all capital offences. Courts cannot afford to allow them to be swayed from their duty of independent arbiters of our constitution because of public opinion. Punishment must be commensurate with the offence.>> Amnesty International should instead employ its vast resources on educating the public about the legal ramifications of one ' s actions especially in murder cases. Indeed many lives can be save by the simple power of knowledge. Next week in this column: The pronouncements of the Constitutional Court on the death penalty. The writer is a Journalist and advocate> msserwanga@gmail.com>
Tuesday, July 3, 2007
WHERE THE IGG MUST BE HELPED
same here
Where the IGG must be helped
July 3, 2007
Another pair of senior government officials are embroiled in verbal fight with the Inspector General of Government over alleged fraudulent court settlements in which it is alleged the country lost a whooping Shs102 billion.Corruption is a multifaceted and multi-prolonged problem . It may be grand or petty, isolated or systemic but these new revelations epitomise the scale of graft in this country. The colossal sums talked about here can finance half of the 2007/2008 budget.The effects of corruption are self evident. The pandemic is ranked as one of the greatest constraints to investment and economic development, public service delivery and equitable local and national development. You have heard about the corrupt political big wigs and their equally corrupt bureaucrats who expend their loot by buying huge chunks of land; some the size of counties. They then build huge ‘palaces’ which they do not occupy. The balance of their loot is stashed away in foreign bank accounts. As it was argued in this column last week, one of the factors responsible for the endemic corruption in Uganda has been the political leadership’s apparent lack of commitment to dehorn the problem. And now that the executive has made a turn around and is willing to bring the culprits to book, the powers of the IGG have come into question. Almost all government officials accused of grand corruption have questioned the IGG’s investigative and prosecuting powers.The public needs to know that Inspectorate of Government’s powers are succinctly provided for in Article 230 of the Constitution and they include, among others; to investigate, arrest and prosecute corrupt public officials. There are other institutions such as the Auditor General whose functions relate to unearthing financial irregularities or malpractices, the police which can investigate cases of corruption or fraud and the Director of Public Prosecutions who can prosecute any criminal case, including those related to corruption. The framers of the Constitution were aware of the limitations of the other institutions and decided to create an independent body specifically charged with the responsibility of fighting corruption and abuse of office.Therefore, the Inspectorate occupies a central position regarding the fight against corruption. It is the anti-corruption institution of Uganda. It is also a complaints office to which any person aggrieved by a decision of a public official or authority takes his or her complaint for redress.It reports to Parliament and has the function of promoting and ensuring strict adherence to the rule of law and principles of natural justice while dispensing its powers and executing its Ombudsman role. Thus, its mission is to promote good governance by enhancing accountability and transparency; and enforcement of the rule of law and administrative justice in public offices. It is however imperative that the IGG guards against applying double standards when enforcing the law. Take for instance the two cases of John Ken Lukyamuzi who lost his parliamentary seat for allegedly failing to declare his assets and that of the two ministers, one of whom still retains his seat in parliament.In the Lukyamuzi Vs. AG case court in my view erroneously held that in cases of a dispute between the IGG and accused party, the IGG can constitute itself into a tribunal. This reasoning defeated the principals of natural justice upon which the administrative functions of the IGG are premised.There is an urgent need by the minister responsible to revise the IGG Act and make for provisions that will address the composition of the tribunal, and the mandate of the tribunal.The IGG should not stop at the successful prosecution of corrupt officials. That public officer must seize all ill-gotten assets, auction them and remit the proceeds to the Consolidated Fund for national development.There is also the need for government to merge the Inspectorate of Government and the Prevention of Corruption Statutes to prevent an overlap of roles between the IGG and Director of Public Prosecution. By having one body of laws governing the anti-corruption regime, the law enforcement officers’ work will become much easily. NEXT: The government should protect national parks from encroachers.
The writer is a Journalist and Advocatemsserwanga@gmail.commsserwanga.blogspot.com 0772 43 46 77
Where the IGG must be helped
July 3, 2007
Another pair of senior government officials are embroiled in verbal fight with the Inspector General of Government over alleged fraudulent court settlements in which it is alleged the country lost a whooping Shs102 billion.Corruption is a multifaceted and multi-prolonged problem . It may be grand or petty, isolated or systemic but these new revelations epitomise the scale of graft in this country. The colossal sums talked about here can finance half of the 2007/2008 budget.The effects of corruption are self evident. The pandemic is ranked as one of the greatest constraints to investment and economic development, public service delivery and equitable local and national development. You have heard about the corrupt political big wigs and their equally corrupt bureaucrats who expend their loot by buying huge chunks of land; some the size of counties. They then build huge ‘palaces’ which they do not occupy. The balance of their loot is stashed away in foreign bank accounts. As it was argued in this column last week, one of the factors responsible for the endemic corruption in Uganda has been the political leadership’s apparent lack of commitment to dehorn the problem. And now that the executive has made a turn around and is willing to bring the culprits to book, the powers of the IGG have come into question. Almost all government officials accused of grand corruption have questioned the IGG’s investigative and prosecuting powers.The public needs to know that Inspectorate of Government’s powers are succinctly provided for in Article 230 of the Constitution and they include, among others; to investigate, arrest and prosecute corrupt public officials. There are other institutions such as the Auditor General whose functions relate to unearthing financial irregularities or malpractices, the police which can investigate cases of corruption or fraud and the Director of Public Prosecutions who can prosecute any criminal case, including those related to corruption. The framers of the Constitution were aware of the limitations of the other institutions and decided to create an independent body specifically charged with the responsibility of fighting corruption and abuse of office.Therefore, the Inspectorate occupies a central position regarding the fight against corruption. It is the anti-corruption institution of Uganda. It is also a complaints office to which any person aggrieved by a decision of a public official or authority takes his or her complaint for redress.It reports to Parliament and has the function of promoting and ensuring strict adherence to the rule of law and principles of natural justice while dispensing its powers and executing its Ombudsman role. Thus, its mission is to promote good governance by enhancing accountability and transparency; and enforcement of the rule of law and administrative justice in public offices. It is however imperative that the IGG guards against applying double standards when enforcing the law. Take for instance the two cases of John Ken Lukyamuzi who lost his parliamentary seat for allegedly failing to declare his assets and that of the two ministers, one of whom still retains his seat in parliament.In the Lukyamuzi Vs. AG case court in my view erroneously held that in cases of a dispute between the IGG and accused party, the IGG can constitute itself into a tribunal. This reasoning defeated the principals of natural justice upon which the administrative functions of the IGG are premised.There is an urgent need by the minister responsible to revise the IGG Act and make for provisions that will address the composition of the tribunal, and the mandate of the tribunal.The IGG should not stop at the successful prosecution of corrupt officials. That public officer must seize all ill-gotten assets, auction them and remit the proceeds to the Consolidated Fund for national development.There is also the need for government to merge the Inspectorate of Government and the Prevention of Corruption Statutes to prevent an overlap of roles between the IGG and Director of Public Prosecution. By having one body of laws governing the anti-corruption regime, the law enforcement officers’ work will become much easily. NEXT: The government should protect national parks from encroachers.
The writer is a Journalist and Advocatemsserwanga@gmail.commsserwanga.blogspot.com 0772 43 46 77
Tuesday, June 26, 2007
MAKE US BELIEVE IN THE GRAFT FIGHT
same here
Make us believe in the graft fight
June 26, 2007
For the first time in the NRM’s 21 years in power, two senior former ministers have been arraigned in court on corruption and abuse of office charges. This unprecedented move seems to have convinced most countrymen that President Yoweri Museveni’s government means business after all.
The corruption fight was long overdue. Until recently, on most measures, Mr Museveni has done little to crack the whip. The president’s recent pronouncements in his state of the nation address about ‘zero tolerance to corruption’ and his missive about the Restrain Relatives Resistance Movement (RRRM) (DM, June 23) need to be put in perspective.
Has the president had a soul searching and personal reflection and is he about to make a u-turn and pursue his early political philosophy that encouraged social justice.If indeed Mr Museveni is serious that now is the time to stamp out graft in his big government and in all political and socio-economic aspects of our life then that puts public opinion on his side.
While some sections of the public are excited over the new-found government commitment to prosecute thieving public servants, others are apprehensive because the president has opted to retain a big government.
Big governments (69 cabinet and junior ministers for Uganda) are normally a fertile ground for corruption. Because the citizens have to endure a huge non functional bureaucracy, the officials that run state affairs turn into small gods who have to be praised and ‘tipped’ before delivering.
Their stories are woven around big contracts and colossal amount of money trapped in either government ministries or state enterprises. The same corrupt officials by trying to shield their ill-gotten wealth - intimidate and make the work of investigators and the media extremely difficult. In the end, the bigger the size of the government the more corrupt.
The president needs to borrow a leaf from the showy newly–elected president of France, Nicolas Sarkozy, who has put together a manageable government of only 25 ministers, half of whom are women. By working with a small unit of people the oversight role of the leader becomes much easier.
The legal regime governing the conduct of public servants is quite elaborate. The problem is the government’s reluctance or selective enforcement of such laws. The Leadership Code Act, the Commissions of Inquiry and the Inspector General of Government Acts are laws that have been enacted to deal with the vices of corruption and abuse of office.
The Commission of Inquiry Act generally provides for the powers of the president to appoint one or more commissioners and authorising those commissioners, or any quorum of them mentioned in the commission, to inquire into the conduct of any officer in the public service of Uganda.
We have already had a number of such commissions to investigate. Reports and recommendations have been made but no decisive action has been taken against the culprits.
That is why the public which has been smitten by the recent crack-down on suspected corrupt officials are at the same time disappointed by government’s selective approach to punish those who are indicted for abuse of office. If government is determined to eliminate corruption and create a zero tolerance regime then it must prosecute all the investigated cases.
Similarly, the Leadership Code and Inspector General of Government Acts provide for a minimum standard of behaviour and conduct of leaders. People who hold public office are barred from putting themselves in positions in which their personal interests conflict with their duties and responsibilities.
Corruption and abuse of office according to the law takes many forms and it is not only about stealing public money. You have heard about the sex for good grades scandals in institutions of higher learning – that is corruption.
The doctors who will not attend to patients until their hands are ‘oiled’, the police guys and their ‘kitu kidogo’ syndrome, a legal system which is fast in handling cases of the rich but terribly slow for the poor are among the many manifestations of corruption . Government should not apply double standards when dealing with a problem that threatens our very existence.
Next : The role of the Inspectorate of Government and the powers of the IGG .
The writer is a Journalist/Advocatemsserwanga@gmail.commsserwanga.blogspot.com0772 43 46 77.M. Sserwanga
Make us believe in the graft fight
June 26, 2007
For the first time in the NRM’s 21 years in power, two senior former ministers have been arraigned in court on corruption and abuse of office charges. This unprecedented move seems to have convinced most countrymen that President Yoweri Museveni’s government means business after all.
The corruption fight was long overdue. Until recently, on most measures, Mr Museveni has done little to crack the whip. The president’s recent pronouncements in his state of the nation address about ‘zero tolerance to corruption’ and his missive about the Restrain Relatives Resistance Movement (RRRM) (DM, June 23) need to be put in perspective.
Has the president had a soul searching and personal reflection and is he about to make a u-turn and pursue his early political philosophy that encouraged social justice.If indeed Mr Museveni is serious that now is the time to stamp out graft in his big government and in all political and socio-economic aspects of our life then that puts public opinion on his side.
While some sections of the public are excited over the new-found government commitment to prosecute thieving public servants, others are apprehensive because the president has opted to retain a big government.
Big governments (69 cabinet and junior ministers for Uganda) are normally a fertile ground for corruption. Because the citizens have to endure a huge non functional bureaucracy, the officials that run state affairs turn into small gods who have to be praised and ‘tipped’ before delivering.
Their stories are woven around big contracts and colossal amount of money trapped in either government ministries or state enterprises. The same corrupt officials by trying to shield their ill-gotten wealth - intimidate and make the work of investigators and the media extremely difficult. In the end, the bigger the size of the government the more corrupt.
The president needs to borrow a leaf from the showy newly–elected president of France, Nicolas Sarkozy, who has put together a manageable government of only 25 ministers, half of whom are women. By working with a small unit of people the oversight role of the leader becomes much easier.
The legal regime governing the conduct of public servants is quite elaborate. The problem is the government’s reluctance or selective enforcement of such laws. The Leadership Code Act, the Commissions of Inquiry and the Inspector General of Government Acts are laws that have been enacted to deal with the vices of corruption and abuse of office.
The Commission of Inquiry Act generally provides for the powers of the president to appoint one or more commissioners and authorising those commissioners, or any quorum of them mentioned in the commission, to inquire into the conduct of any officer in the public service of Uganda.
We have already had a number of such commissions to investigate. Reports and recommendations have been made but no decisive action has been taken against the culprits.
That is why the public which has been smitten by the recent crack-down on suspected corrupt officials are at the same time disappointed by government’s selective approach to punish those who are indicted for abuse of office. If government is determined to eliminate corruption and create a zero tolerance regime then it must prosecute all the investigated cases.
Similarly, the Leadership Code and Inspector General of Government Acts provide for a minimum standard of behaviour and conduct of leaders. People who hold public office are barred from putting themselves in positions in which their personal interests conflict with their duties and responsibilities.
Corruption and abuse of office according to the law takes many forms and it is not only about stealing public money. You have heard about the sex for good grades scandals in institutions of higher learning – that is corruption.
The doctors who will not attend to patients until their hands are ‘oiled’, the police guys and their ‘kitu kidogo’ syndrome, a legal system which is fast in handling cases of the rich but terribly slow for the poor are among the many manifestations of corruption . Government should not apply double standards when dealing with a problem that threatens our very existence.
Next : The role of the Inspectorate of Government and the powers of the IGG .
The writer is a Journalist/Advocatemsserwanga@gmail.commsserwanga.blogspot.com0772 43 46 77.M. Sserwanga
Wednesday, June 20, 2007
LEADING US BLINDLY IN EAST AFRICA
same here
...
Leading us blindly in East Africa
June 19, 2007
In his State-of-the-Nation address on June 21, President Yoweri Museveni emphasised the need for regional integration reasoning that the advantages of such a grouping far outweigh the disadvantages.The 5th extra-ordinary summit of East African Community (EAC) heads of state and council of ministers which was opened in Kampala yesterday admitted two new member states: Rwanda and Burundi, to broaden and consolidate the benefits that come with regional political and trading blocs. As the heads of state re-examined their commitment and the progress made towards regional integration; they needed also to reflect on the provisions of the East African treaty which in the most obligatory language, require the Partner States to implement a dispensation of constitutionalism, democracy and good governance. The governments of the member states are also under a legal obligation to ensure the rule of law, and the protection and promotion of human rights in accordance with the provisions of the African Charter on Human and Peoples’ Rights.These obligations require that the process of enactment or amendment of the Treaty, its Protocols or any legislation subsidiary to them are lawful and do not infringe the Treaty or laws made under it, or national constitutions or laws, or settled principles of international law.It is now trite international law that the process of enactment or amendment of a Treaty, is people-driven, consultative and participatory. Peremptory (decisive) norms of international law call for enactment and amendments of treaties to be made in good faith - to strengthen, and not weaken, the organs, programmes and processes for which they are sought. In other words the principle of public consultation in Treaty reform or amendment is fundamental. One of the key issues that was addressed by the heads of government at the EAC Kampala meet is the recent illegal amendments to the EAC treaty which have since been challenged in court by the East African Law Society. Unfortunately, the EAC heads of state endorsed the illegal changes in the Treaty’s provisions.The purported amendments contravened the provisions of the Treaty itself since no wide consultations were made by the three governments. Indeed, the net effect of such illegal amendments will be to imperil the very life of the East African Community.The East African Law Society is on record that the process of amending the Treaty should be carried out according to the provisions of the Treaty. The regional lawyers’ body has noted that the amendments to the Treaty are aimed at creating avenues in which judges of the East African Court of justice (Eacj) could illegally be sacked, thereby undermining the institution of justice within the Community. Traditionally, ratification of international legal instruments such as treaties, conventions, protocols that legally bind nations for common purpose is the preserve of presidents and their ministers. However, this practice `has been abused by governments that opt to ignore the broader interests of the people they govern when entering into international and regional treaties.Because of these underlying problems associated with the unlimited powers of the Executive (the presidents and their ministers) to commit their countries to international obligations, the Kenyan parliament has recently wrested that power from Cabinet.In a bold move, the Kenyan parliament argued that agreements that bind the country in whichever manner must be endorsed and ratified in parliament by the people’s elected and nominated representatives. This should be the practice and the other member states in the community (including Uganda) should follow suit. It is also about time now that a general review of the East African Treaty is carried out by the three governments in a democratic manner involving all the peoples of East Africa. Some of the provisions of the Treaty are contradictory in nature and need revision. Take for instance the issue of having the sitting justices of the East African Court of Justice retaining their positions as judges in their respective countries of origin. This doesn’t only create a situation where there is conflict of interest but the judges are exposed to coercion and intimidation by the partner states. This is not good for justice.
Next week: The law on corruption should be enforced to the letter.
The writer is a Journalist/Advocate msserwanga@gmail.commsserwanga.blogspot.com0772 43 46 77
...
Leading us blindly in East Africa
June 19, 2007
In his State-of-the-Nation address on June 21, President Yoweri Museveni emphasised the need for regional integration reasoning that the advantages of such a grouping far outweigh the disadvantages.The 5th extra-ordinary summit of East African Community (EAC) heads of state and council of ministers which was opened in Kampala yesterday admitted two new member states: Rwanda and Burundi, to broaden and consolidate the benefits that come with regional political and trading blocs. As the heads of state re-examined their commitment and the progress made towards regional integration; they needed also to reflect on the provisions of the East African treaty which in the most obligatory language, require the Partner States to implement a dispensation of constitutionalism, democracy and good governance. The governments of the member states are also under a legal obligation to ensure the rule of law, and the protection and promotion of human rights in accordance with the provisions of the African Charter on Human and Peoples’ Rights.These obligations require that the process of enactment or amendment of the Treaty, its Protocols or any legislation subsidiary to them are lawful and do not infringe the Treaty or laws made under it, or national constitutions or laws, or settled principles of international law.It is now trite international law that the process of enactment or amendment of a Treaty, is people-driven, consultative and participatory. Peremptory (decisive) norms of international law call for enactment and amendments of treaties to be made in good faith - to strengthen, and not weaken, the organs, programmes and processes for which they are sought. In other words the principle of public consultation in Treaty reform or amendment is fundamental. One of the key issues that was addressed by the heads of government at the EAC Kampala meet is the recent illegal amendments to the EAC treaty which have since been challenged in court by the East African Law Society. Unfortunately, the EAC heads of state endorsed the illegal changes in the Treaty’s provisions.The purported amendments contravened the provisions of the Treaty itself since no wide consultations were made by the three governments. Indeed, the net effect of such illegal amendments will be to imperil the very life of the East African Community.The East African Law Society is on record that the process of amending the Treaty should be carried out according to the provisions of the Treaty. The regional lawyers’ body has noted that the amendments to the Treaty are aimed at creating avenues in which judges of the East African Court of justice (Eacj) could illegally be sacked, thereby undermining the institution of justice within the Community. Traditionally, ratification of international legal instruments such as treaties, conventions, protocols that legally bind nations for common purpose is the preserve of presidents and their ministers. However, this practice `has been abused by governments that opt to ignore the broader interests of the people they govern when entering into international and regional treaties.Because of these underlying problems associated with the unlimited powers of the Executive (the presidents and their ministers) to commit their countries to international obligations, the Kenyan parliament has recently wrested that power from Cabinet.In a bold move, the Kenyan parliament argued that agreements that bind the country in whichever manner must be endorsed and ratified in parliament by the people’s elected and nominated representatives. This should be the practice and the other member states in the community (including Uganda) should follow suit. It is also about time now that a general review of the East African Treaty is carried out by the three governments in a democratic manner involving all the peoples of East Africa. Some of the provisions of the Treaty are contradictory in nature and need revision. Take for instance the issue of having the sitting justices of the East African Court of Justice retaining their positions as judges in their respective countries of origin. This doesn’t only create a situation where there is conflict of interest but the judges are exposed to coercion and intimidation by the partner states. This is not good for justice.
Next week: The law on corruption should be enforced to the letter.
The writer is a Journalist/Advocate msserwanga@gmail.commsserwanga.blogspot.com0772 43 46 77
Thursday, June 14, 2007
THE RIGHT TO ABORT IS COMPELLING
same here
The right to abort is compelling
June 5, 2007
As the debate to legalise abortion sweeps the country, a startling issue of the competing rights of the unborn, the expectant mother and those of the father has emerged.And yet again, there seems no consensus among the different interest groups about which of the competing rights should take precedence over the other. These are legitimate concerns about the complex issue of the right to life.The anti-abortion lobbyists have wrongly portrayed abortion as being a sacrificial practice. Permitted, everyone has their views but I believe a case can and should be made that much of the discourse in the anti-abortion movement is also about sacrifice.The competing interests/rights of the mother, unborn child and that of the father have been tested in courts of law where the majority of the leading decided cases are rightly in favour of the right to reproductive health which encompasses the right to reproductive self-determination of a woman.The 1973 Roe v. Wade US Supreme Court decision is the leading authority on this matter. A single, pregnant woman in the state of Texas wanted to get an abortion. The state laws of Texas (just like our laws) at that time made it illegal to have an abortion in Texas...So the woman decided to sue the state claiming that her constitutional rights were being taken away from her. The state court ruled in her favour but the decision was not strong enough to change the arrests of abortion doctors in Texas so she took her case to the Supreme Court. The principal thrust of her complaint about Texan laws was that they improperly invade a right, said to be possessed by the pregnant woman, to choose to terminate her pregnancy. The learned Justice Blackburn, who delivered the lead judgment, noted that court resolved the issue by constitutional measurement, free of emotion and of predilection. The court also inquired into, and placed some emphasis upon, medical and medical-legal history and what that history reveals about man’s attitudes toward the abortion procedure over the centuries.And in granting the woman the right to abort, the court stated that where certain “fundamental rights” are involved, regulations limiting those rights may be justified only by a “compelling state interest.”There is another interesting case of Christian Lawyers Association of South Africa and others vs Minister of Health and others where the Christian brothers and sisters argued that the right to life includes a foetus from the moment of conception.The court was candid and stated that by extending the interpretation of the right to life to include the protection of a foetus would violate a woman’s constitutional rights. The European Court of human rights has made similar decisions over time, and the position that the right to life does not extend to a foetus is now well entrenched in its jurisprudence.What about the rights of the male folk who claim parentage of the foetus? Mind you, in the majority of cases it is these same men who after abdicating their parenting responsibilities lead women to make the difficult decisions to abort.The European Court of human rights has decided on this right when prospective fathers have petitioned it to stop their wives from having abortions. The court has held again, and rightly so, that the mother’s wishes are paramount and take precedence (emphasis mine) and that any law that seeks to take away the power to decide what is best for her is discriminatory. Courts of law have been emphatic that a pregnant woman‘s right as a person primarily concerned by the pregnancy and its continuation or termination supersedes any rights of the ‘potential father’.The right to health is also provided for by the African Union Protocol on the Rights of Women in Africa and it allows women the right to decide whether to have children or not, the number of children to have, and their spacing; to choose any method of contraception; control of fertility and to have family planning education.The government of Uganda is a signatory to these international instruments and should therefore ensure compliance to their provisions and should legalise abortion to allow a woman freedom of choice.
Next week: The effects of the recent illegal amendments to the East African Community treaty.
The writer is a journalist/ advocatemsserwanga@gmail.commsserwanga.blogspot.com0772 43 46 77
The right to abort is compelling
June 5, 2007
As the debate to legalise abortion sweeps the country, a startling issue of the competing rights of the unborn, the expectant mother and those of the father has emerged.And yet again, there seems no consensus among the different interest groups about which of the competing rights should take precedence over the other. These are legitimate concerns about the complex issue of the right to life.The anti-abortion lobbyists have wrongly portrayed abortion as being a sacrificial practice. Permitted, everyone has their views but I believe a case can and should be made that much of the discourse in the anti-abortion movement is also about sacrifice.The competing interests/rights of the mother, unborn child and that of the father have been tested in courts of law where the majority of the leading decided cases are rightly in favour of the right to reproductive health which encompasses the right to reproductive self-determination of a woman.The 1973 Roe v. Wade US Supreme Court decision is the leading authority on this matter. A single, pregnant woman in the state of Texas wanted to get an abortion. The state laws of Texas (just like our laws) at that time made it illegal to have an abortion in Texas...So the woman decided to sue the state claiming that her constitutional rights were being taken away from her. The state court ruled in her favour but the decision was not strong enough to change the arrests of abortion doctors in Texas so she took her case to the Supreme Court. The principal thrust of her complaint about Texan laws was that they improperly invade a right, said to be possessed by the pregnant woman, to choose to terminate her pregnancy. The learned Justice Blackburn, who delivered the lead judgment, noted that court resolved the issue by constitutional measurement, free of emotion and of predilection. The court also inquired into, and placed some emphasis upon, medical and medical-legal history and what that history reveals about man’s attitudes toward the abortion procedure over the centuries.And in granting the woman the right to abort, the court stated that where certain “fundamental rights” are involved, regulations limiting those rights may be justified only by a “compelling state interest.”There is another interesting case of Christian Lawyers Association of South Africa and others vs Minister of Health and others where the Christian brothers and sisters argued that the right to life includes a foetus from the moment of conception.The court was candid and stated that by extending the interpretation of the right to life to include the protection of a foetus would violate a woman’s constitutional rights. The European Court of human rights has made similar decisions over time, and the position that the right to life does not extend to a foetus is now well entrenched in its jurisprudence.What about the rights of the male folk who claim parentage of the foetus? Mind you, in the majority of cases it is these same men who after abdicating their parenting responsibilities lead women to make the difficult decisions to abort.The European Court of human rights has decided on this right when prospective fathers have petitioned it to stop their wives from having abortions. The court has held again, and rightly so, that the mother’s wishes are paramount and take precedence (emphasis mine) and that any law that seeks to take away the power to decide what is best for her is discriminatory. Courts of law have been emphatic that a pregnant woman‘s right as a person primarily concerned by the pregnancy and its continuation or termination supersedes any rights of the ‘potential father’.The right to health is also provided for by the African Union Protocol on the Rights of Women in Africa and it allows women the right to decide whether to have children or not, the number of children to have, and their spacing; to choose any method of contraception; control of fertility and to have family planning education.The government of Uganda is a signatory to these international instruments and should therefore ensure compliance to their provisions and should legalise abortion to allow a woman freedom of choice.
Next week: The effects of the recent illegal amendments to the East African Community treaty.
The writer is a journalist/ advocatemsserwanga@gmail.commsserwanga.blogspot.com0772 43 46 77
ARREST THE MISCHIEF IN EA COURT
same here
Arrest the mischief in EA court
June 12, 2007
The Fifth Extra-Ordinary Summit of the East African Community (EAC) will be held in Kampala on June 18, 2007. The three EAC Heads of State – Yoweri Museveni of Uganda, Mwai Kibaki of Kenya and Jakaya Mrisho Kikwete of Tanzania will attend the Summit. Two other countries Rwanda led by Paul Kagame and Pierre Nkurunziza’s Burundi are expected to be admitted to the community. However, preparations for the summit aimed at opening up borders for the peoples of East Africa to realise political federation, unity in diversity and free trade are marred by the recent illegal amendments to the East African Treaty.The East African Law Society (EALS) has now sued the governments of Uganda, Kenya and Tanzania, in the East African Court of Justice (EFCJ) challenging the amendments. Hardly five years since signature, the leaders of the three member countries are already tinkering with the provisions of the Treaty – the principal legal instrument which set up the EAC. And all this is done to undermine the institutions of good governance, justice, the rule of law, democracy and observance of human rights.To make matters worse, the government of Kenya in tandem with their Ugandan counterparts amended the Treaty without even having the courtesy of consulting their respective national legislative assemblies. Only Tanzania sought approval of its parliament albeit that endorsement did not cure the illegal manner in which the amendments were made.The irregular and undemocratic amendments to the Treaty specifically affect Article 26(1) which purport to introduce a new proviso for the removal of judges of the East African Court of Justice. The amendments will also allow the member states to hand-pick hitherto unheard of ‘transitional’ judges .The amendments were a creation of the Kenya government after the EACJ bench ruled against its decisions to suspend some judges in 2003.Other amendments to articles 27, 30, and 140 of the Treaty all appear designed to limit the independence and jurisdiction of the EACJ.Another amendment which affects Article 23 of the Treaty seeks to create an appellate chamber at the EACJ. Although laudable in principle, there is genuine fear among the legal fraternity and civil society organisations that the three governments are working to set up an appellate chamber/court to staff it with cadre judicial officers.Unless accompanied by safeguards to have the proposed appellate chamber constituted with independent judicial officers and not cadres, who will succumb to the whims of the ruling governments to defeat justice and the interests of the peoples of East Africa, the amendments will remain bad in law.And much as Article 150 of the Treaty sets out an elaborate process and time-frame for proposing and amending the Treaty none of these procedures was complied with. In particular, the Treaty requires a formal written proposal, by either a Partner State or the EAC Council of Ministers to the Secretary General. Thereafter, the Secretary General is required to communicate the proposal to the Partner States, in writing, within 30 days.The Treaty then explicitly provides a mandatory 90-day period for the Partner States to deliberate on the proposed amendments. Only thereafter shall the Secretary General submit the proposed amendments, together with the comments of the Partner States, to the Summit for signature.The three governments did not only fail to consult the people’s representatives in their respective parliaments but amended the Treaty in a record 14 days. The itch for the three governments to weaken the vital institutions of the East African community is obvious.African governments and their leaders simply do not want to empower institutions that will challenge their authority. But this self-centred approach to national and regional issues is not good for democracy. The member states should not take advantage of the citizens’ ignorance of the provisions of the Treaty to flout the law. East Africans need to know why we are working so hard to federate while its institutions are being undermined..
Next: The power to amend, and ratify international treaties should rest with parliament
The writer is a Journalist/Advocatemsserwanga@gmail.commsserwanga.blogspot.com0772 43 46 77.
Arrest the mischief in EA court
June 12, 2007
The Fifth Extra-Ordinary Summit of the East African Community (EAC) will be held in Kampala on June 18, 2007. The three EAC Heads of State – Yoweri Museveni of Uganda, Mwai Kibaki of Kenya and Jakaya Mrisho Kikwete of Tanzania will attend the Summit. Two other countries Rwanda led by Paul Kagame and Pierre Nkurunziza’s Burundi are expected to be admitted to the community. However, preparations for the summit aimed at opening up borders for the peoples of East Africa to realise political federation, unity in diversity and free trade are marred by the recent illegal amendments to the East African Treaty.The East African Law Society (EALS) has now sued the governments of Uganda, Kenya and Tanzania, in the East African Court of Justice (EFCJ) challenging the amendments. Hardly five years since signature, the leaders of the three member countries are already tinkering with the provisions of the Treaty – the principal legal instrument which set up the EAC. And all this is done to undermine the institutions of good governance, justice, the rule of law, democracy and observance of human rights.To make matters worse, the government of Kenya in tandem with their Ugandan counterparts amended the Treaty without even having the courtesy of consulting their respective national legislative assemblies. Only Tanzania sought approval of its parliament albeit that endorsement did not cure the illegal manner in which the amendments were made.The irregular and undemocratic amendments to the Treaty specifically affect Article 26(1) which purport to introduce a new proviso for the removal of judges of the East African Court of Justice. The amendments will also allow the member states to hand-pick hitherto unheard of ‘transitional’ judges .The amendments were a creation of the Kenya government after the EACJ bench ruled against its decisions to suspend some judges in 2003.Other amendments to articles 27, 30, and 140 of the Treaty all appear designed to limit the independence and jurisdiction of the EACJ.Another amendment which affects Article 23 of the Treaty seeks to create an appellate chamber at the EACJ. Although laudable in principle, there is genuine fear among the legal fraternity and civil society organisations that the three governments are working to set up an appellate chamber/court to staff it with cadre judicial officers.Unless accompanied by safeguards to have the proposed appellate chamber constituted with independent judicial officers and not cadres, who will succumb to the whims of the ruling governments to defeat justice and the interests of the peoples of East Africa, the amendments will remain bad in law.And much as Article 150 of the Treaty sets out an elaborate process and time-frame for proposing and amending the Treaty none of these procedures was complied with. In particular, the Treaty requires a formal written proposal, by either a Partner State or the EAC Council of Ministers to the Secretary General. Thereafter, the Secretary General is required to communicate the proposal to the Partner States, in writing, within 30 days.The Treaty then explicitly provides a mandatory 90-day period for the Partner States to deliberate on the proposed amendments. Only thereafter shall the Secretary General submit the proposed amendments, together with the comments of the Partner States, to the Summit for signature.The three governments did not only fail to consult the people’s representatives in their respective parliaments but amended the Treaty in a record 14 days. The itch for the three governments to weaken the vital institutions of the East African community is obvious.African governments and their leaders simply do not want to empower institutions that will challenge their authority. But this self-centred approach to national and regional issues is not good for democracy. The member states should not take advantage of the citizens’ ignorance of the provisions of the Treaty to flout the law. East Africans need to know why we are working so hard to federate while its institutions are being undermined..
Next: The power to amend, and ratify international treaties should rest with parliament
The writer is a Journalist/Advocatemsserwanga@gmail.commsserwanga.blogspot.com0772 43 46 77.
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