GOVERNMENT SHOULD MAKE CURATIVE LAWS

Government should make curative laws
August 21, 2007
The collapse of Uganda’s air industry in the mid 80s has for several years caused tremendous suffering to the ordinary traveller. There is a sense of isolation and abandonment among passengers especially those who ply the Entebbe -Nairobi route following the increased trade and cooperation in the East African region.

This malaise has contributed to the monopoly now being enjoyed by Kenya Airways much to the chagrin of the Ugandan passengers. A catalogue of problems associated with flying Kenya Airways is well documented.

These include delayed departures and arrivals, overbooked passenger schedules, passengers being subjected to long hours in transit, missed flights, let alone lost baggage.

Monopolists are known the world over for their exploitative tendencies and Kenya Airways’ unfair treatment of their Ugandan clientele doesn’t come as a surprise to many. For instance there is a huge price differential for passengers flying the now lucrative Entebbe-Nairobi route who pay $500 dollars compared to those flying the Nairobi-Mombasa route which costs $150 and yet it's the same distance.

This exploitation borders on criminality. Mr Daudi Migereko, while still minister of tourism, raised this matter but no action was taken. It’s a fact that our economy is liberalised and therefore government has no business in fixing prices. However, in situations of monopoly the authorities are obliged to intervene and ensure monopolists don’t apply their dominant positions in the market to the disadvantage of the consumers.

This is a huge problem which is not only limited to the air industry. Ugandans still have fresh memories of what happened at the advent of the mobile telecommunication industry in the mid 90s.

The same scenario can be said to be obtaining in the Shs2.4b Chogm awareness fiasco where two private companies employed their dominant positions to seal the Chogm publicity deal and effectively cut out competition.

Now the public is up in arms questioning the decisions of the Uganda 2007 Commonwealth task force and their agents, for placing mug-shots of Disc Jockeys (DJs) and artistes-- some of whom are not known beyond their audiences in the environs of Kampala-- on billboards meant to showcase Uganda's rich heritage. A whopping Shs400m has already been spent on these poorly thought-out undertakings.

Former presidential candidate Dr Abed Bwanika recently said the current bill-board scandal portrays the organisers as being too busy to be creative. But one may ask, being busy doing what? Given the sums of money involved, your guess is as good as mine.

The Ugandan public has suffered for too long at the hands of monopolists. Government must develop a body of legal and economic principles to regulate dominant market players. The antitrust law should be crafted in the context of the new East African Community dispensation, which allows for fair trading and business practices among the partner states.

Since President Yoweri Museveni has always played the Asian card to champion his development policies, we can still borrow a leaf from some countries in Asia.
Indonesia’s current competition policy seems to seek a balance between prevention of monopolistic behaviour and protection of small-scale businesses (fair competition) on the one hand, and facilitation of corporate restructuring which may involve mergers and acquisitions without hurting the consumer, on the other.

In Indonesia there is no specific law on competition per se but the country still manages to prevent 'unfair competition' through rules embodied in the law governing the creation and operation of companies. The rules prohibit mergers and acquisitions that result in monopolistic practices (1995 Law No.1); and rules (1995 Law No.9) that authorise the government to prevent the formation of a monopolistic market restructure.

Other rules have been established to set out procedures for mergers and acquisitions all designed to protect the public and small businesses from the bullying dominant companies.

Malaysia is in a process of drafting a Consumer Protection Bill. This legislation is intended, among others, to give confidence to investors both foreign and domestic that they will be protected from anti-competitive behaviour by incumbent dominant enterprises.

The Bill also seeks to restore public confidence that abusive and monopolistic behaviour will not be the outcome of the transition to a market economy. Uganda needs to take this route to address the imbalances in trading patterns in those sectors where there is no competition. In business and trade the rights of the consumer are paramount.
The writer is a journalist and advocate
Msserwanga.blogspot.com.
msserwanga@gmail.com.
0772 43 46 77.

PLOYTO GAG PRESS IS PLOT TO STAB DEMOCRACY

Ploy to gag press is plot to stab democracy
August 14, 2007
The National Security Committee in tandem with the police Crime Management Committee is persuading cabinet to institute measures that will curtail the work of journalists and stifle press freedom and freedom of speech.

The police’s Media and Political Squad has been instructed to swing in action and pounce on those members of the public who make “irresponsible and criminal utterances against government and the person of the president.”

This comes at a time when our brothers across the border in Kenya are also caught in a similar quagmire: A new Kenyan media law will compel editors to disclose their confidential sources.

The Kenya Media Bill 2007 also intends to make cross-media ownership illegal, giving leeway to the government to deal with media houses perceived to have overstepped their limits.

Ironically both the Kampala and Nairobi regimes are working on laws that are supposedly intended to protect whistleblowers in the fight against corruption and other related vices in public administration. And this is the dilemma. How can the two governments protect whistleblowers while gagging alternative voices? You cannot eat your cake and have it.

That’s why the Kenya Editors Guild has stood up to fight for the people's freedom. They have described the new proposed media law as unconstitutional, archaic, unconscionable, inoperable, malicious and one that is clearly aimed at turning back the gains of Kenya’s 43 years of democracy. The situation in Uganda is not any different. The machinations of the National Security Committee to target journalists and other media practitioners are not only illegal but draconian in character.

In Uganda and Kenya, we practise the English common law principles that allow for journalists to be let free once they argue against revealing their sources on grounds of confidentiality. In essence, protection of sources is at the core of the practice of journalism. This is the gateway to the wider freedoms of speech and expression which are guaranteed in the Bill of Rights (Chapter 4) enshrined in our national constitution.

Although the 1995 constitution does not define what freedom of expression and speech means, a reference can be made to the 1962 constitution which defined these freedoms to mean; “the freedom to hold opinions and to receive and impart ideas and information without interference.” The Supreme Court has since held that the omission of this definition in the 1995 constitution did not alter the meaning or character of the said freedoms.

The protection of these rights is essential to our fragile democracy. These rights are the bedrock of democratic governance. Meaningful participation of the governed in their governance, which is the hallmark of democracy, can only be assured through optimal exercise of the freedom of expression.

It’s quite disheartening in this era to hear that an opposition politician has been denied access to a national resource like the Uganda Broadcasting Corporation (UBC) television or worse still having a journalist fired because he hosted an opposition leader. The UBC is a national television, which should serve and cater for interests of all Ugandans. It’s not a private enterprise that should be monopolised by one politician or political party. Democracy calls for tolerance of divergent views and allows the citizenry to make independent and informed decisions on how to be governed.

In the Supreme Court case of Charles Onyango Obbo and Andrew Mujuni Mwenda vs. Attorney General, the court held that it's difficult to imagine a guaranteed right more important to a democratic society than freedom of expression. Court said that indeed a democracy cannot exist without that freedom to express new ideas and to put forward opinions about the functioning of public institutions.

A USA Supreme Court judge, Justice Hugo Black, observed some 30 years ago: “The government's power to censor the press was abolished so that the press would remain forever free to censure the government. The press was protected so that it could bare the secrets of the government and inform the people to make democratic decisions.”

The Ugandan public and our Kenyan brothers and sisters deserve better. The freedoms of the media, expression and speech are protected by our constitution and they should be respected by the State.
The writer is a journalist and advocate.
msserwanga@gamil.com
0772 43 46 77

THE LAW , BALAALO AND THEIR LAND RIGHTS

The last two months have witnessed a simmering bloody conflict between pastoralists (balaalo and Basongora) and the non nomadic communities , bringing afore the country’s long unresolved land problem.

The conflict is particularly distressing for the pastoral communities whose nomadic norms are a source of insecurity in some parts of the country. In the areas of Kiboga, the indigenous Baganda , have out-rightly rejected the idea of settling pastoralists in the area..

The plight of these landless people is not helped by the political main effort- which seems to be directed at persuading the nomadic communities to surrender their constitutional rights. President Yoweri Museveni has been quoted in the media to have stated that the question of resettling the “Balaalo” was out of the question because it cannot be the responsibility of government to settle people who sell their land and start roaming around.

The president must have got his facts wrong. There is no recorded case of pastoralists in Bullisa selling their land in order to encroach on other people’s entitlements . To the contrary the Bullisa pastoralists have offered a huge sum of money to one absentee landlord to secure their land rights .Unfortunately the offer has since been turned down.

For starters , management of pastoralist communities for sustainable development has remained a huge challenge for government partly due to the high levels of corruption. There is this infamous quote from a once powerful government official who stated that people where standing on dams which they couldn’t see.

The bitter truth was there were no dams to talk home about. Money was simply swindled and no quality dams were built.

This ineptitude on the part of government , its misguided policies such as the allocation of pastoral land for other uses- ranching in Mbarara, Masaka, Rakai and Nakasongola districts; failure to provide social services including schools, health centers, veterinary services, lack of an integrated approach in development projects are all but the cause of the current standoff.

There is also a lack of understanding of the pastoral context by non-pastoralists and
sometimes by the government which has led to depletion of rangeland resources
and impoverished such communities .

But more worrying though is the emerging pattern of land conflicts in the country which seem to be pitting one tribe against the other . The promulgation of the 1995 constitution brought with it very significant changes to our land tenure system. The radical title ( interest ) in land was vested in the citizens of Uganda.

This means that all Ugandans (pastoralists) included are free to own land and live anywhere within the boundaries of a country called Uganda. The land Act (as amended) which was enacted to operationalise the provisions of the constitution- created and protected a new category of land rights under the communal/ customary land tenure system.
By its very nature this is a complex land holding system. The right to control, use and ownership of land in pastoral communities derived from being a member of a given community.

Those rights are also retained by performance of certain obligations in the community. This means that user rights are guaranteed in form of farming and seasonal grazing, access to water, pasture burial grounds, firewood and other community activities. No single ,specific ownership rights of control are conferred on one person.

A good land tenure system should allow people with land rights to voluntarily sell their land and for progressive framers/ pastoralists to gain access to land. Similarly people should not be evicted without offering them alternative land for settlement .

And much as Uganda is a multi-ethnic society, government should not allow tribal sentiments/ interests to divide the country. The sate should firmly propagate the doctrine of integration and republicanism.

Ethnic isolation cannot work in Uganda not even when you consider the numerical strength of some tribal groupings. We are all Ugandans first and our tribes are secondary. This is the same spirit of oneness that is being promoted to fast track the East African political, social and economic integration.

People should not look at Uganda through tribal lenses. The land rights of pastoral communities should be protected.

Next week: Government should introduce an anti-monopoly law

The writer is a Journalists and Advocate
msserwanga@gmail.com
msserwanga.blogspot.com
0772 43 46 77

SODOMISED? COURTS MUST OFFER REMEDY

Sodomised? Courts must offer remedy
July 31, 2007
Mr Julius Lukyamuzi alias Kitaka who says he was sodomised by one of Kampala’s pastors is yet to receive justice, two years since he first reported his ordeal to the authorities.

To-date, even after numerous media reports implicating a host of pastors for having covered-up the lewd acts committed against Lukyamuzi, the Directorate of Public Prosecution, (DDP) is yet to commence criminal proceedings against the perpetrators of these heinous crimes.

To the ordinary person this is not surprising though because it is a well-known fact that the cost of justice in Uganda is indeed very high. For the rich and mighty, the police and DPP’s office will always act pretty quickly to either institute criminal proceedings or withdraw charges, depending, to protect their interests. For the poor, the down-trodden wretched masses, the situation is completely different.

The less privileged will suffer for long periods without receiving justice and that is if justice is to be accorded to them at all. Otherwise, how can one explain a situation where a complainant with medical evidence and other material evidence linking directly to his tormentors has not had any of the suspects arrested and arraigned before court for prosecution?

This kind of environment says other things too. It tells ordinary citizen that destiny is outside their control and that as a consequence, they have to be resigned to fate. In the process people give up their constitutional rights; the right to access justice among others.

Avid readers of this column may perhaps want to be reminded that public prosecutors under the DPP’s office handle criminal cases on behalf of the state and the wronged public.

The prosecutions handled by the institution of the DPP directly affect the public either as complainants, suspects/accused persons, witnesses or simply concerned citizens. This is the more reason why such prosecutions should be conducted in the spirit and letter of our Constitution which calls for fairness, impartiality and justice for all.

There ought not to be any justification for delaying the rendering of justice. This is because justice delayed is justice denied. It is the duty of all citizens to ensure that there is total adherence to the rule of law which allows for peaceful co-existence and protection from crime.

Much as there is selective administration of justice in this country, for Lukyamuzi not all is lost at least for now.
Just over a week ago the Roman Catholic Archdiocese of Los Angeles reached a record $660 million out of court settlement for 500 victims of sexual abuse dating back to the 1940s.

The settlement which means an estimated 500 victims will receive more than $1 million each, followed accusations against a Catholic priest, Clinton Hagenback, for molesting parishioners. In Uganda, we practice the English legal system which allows for an individual or group of individuals to file civil suits and claim compensation for wrongs suffered.

This legal course of action is particularly prudent in situations where the citizens are denied a remedy through our criminal justice system which is still bedevilled by corruption, laziness, personal interests taking priority over those of the wider public interest, outright political interference, and in some cases; sheer incompetence.

The law of torts (civil wrongs) provides for a fundamental general principle that it is wrongful to cause harm to other persons in the absence of some specific ground of justification or excuse.

Among civil wrongs from which an individual can successful claim specific, punitive and general damages from the suspected wrongdoer include what in law is referred to as trespass to person. Trespass to person has three main manifestations - assault, battery and false imprisonment.

It is on record that Mr Lukyamuzi suffered one of these when he was repeatedly homosexually assaulted. He says his anal anatomy has since been damaged and that he now moves around padded. Lukyamuzi and any other person in his situation can recover damages from those who have caused them much pain.

Lukyamuzi can be awarded damages by the courts of law for the suffering occasioned to him. The pastors responsible should pay heavily for the sinful, vulgar and criminal acts inflicted on a young man whose future has been ruined.
Next Week: The communal constitutional land rights of pastoralists such as the Balaalo.

The writer is a Journalist/ Advocate
msserwanga@gmail.com
msserwanga.blogspot.com
0772 43 46 77

LET CHURCHES PAY TAX

THE OTHER SIDE OF LAW
During his time, Benjamin Franklin, the classic overachiever and one of America’s founding fathers was known for his strong views about the importance of separating religion from politics or call it the state.

Indeed he went ahead to state ; “when a religion is good, I conceive it will support itself; and when it does not support itself, and God does not take care to support it so that its professors are obligated to call for help of the civil power, it's a sign, I apprehend, of its being a bad one.”

However Franklin’s philosophy seized to apply when religion was commercialized and became a multi million dollar industry. The same philosophy became irrelevant once criminal activity started to manifest in the church.



In American there is what now they call pastor -entrepreneurship. Churches are now fully-fledged business entities complete with human resource management departments. They employ business planners , skilled labour to do all sorts of work including auditing of accounts. We are talking about big money here.

With an estimated 20,000 Pentecostal churches in Uganda its difficult to determine the extent of religious investments and business operations. There is no readily available data about the properties of these churches that are exempted from Tax.

The Uganda Revenue Authority Act exempts the Pentecostal churches from paying tax because there are erroneously (emphasis mine) considered to be Non Government Organisations NGOs involved in voluntary work and charity.

Far from the truth. The Pentecostal movement in cohort with its American partners has turned into a huge commercial enterprise. The case for taxing religious property today is stronger than ever. The financial power of religious organizations has grown astronomically.


The economic growth of religious organizations today is limited only by the financial acumen and commercial skills of its managers (read pastors).Religion, in other words, has become big business.

With tax exemptions, the churches have developed funds that multiply through investments which unfortunately because of the sole ownership nature of their promoters don’t bear any benefit to the community.

The reasoning that religious tax exemptions are essential because churches relieve government of the burden of providing needed social services does not apply in the Ugandan context. The majority of the born again churches have no demonstrable benefit for society let alone their followers. It’s a case of milking a cow without feeding it.

And because there is no law to regulate these churches its difficult even to determine which of these groups are legitimately religious and which are not. To continue with the policy of religious tax exemptions, the government must either: undertake the "Big Brother" task of investigating all groups to determine which are "sincerely" religious.

There is currently a proliferation of phony churches as a tax dodge

Clearly, a tax levied against only religious organizations would not protect religious freedom as provided for in our constitution.. But if churches are subjected to the same taxes as all other groups such as newspapers (who also enjoy the constitutional freedom of press and speech) it is obvious that there could be no infringement of our constitution.

In fact, in a 1936 U.S. Supreme Court case (Grosjean v. American Press Co.), the Court stated that newspapers are not immune from any of the ordinary forms of taxation, despite the First Amendment requirement that freedom of the press not be infringed upon.

There is no good reason why wealthy churches and a certain amount of property of their leaders (pastors) should be exempted from taxation, while every poor widow in the land, struggling to feed, cloth, and educate a family of children, must be taxed on the narrow lot and humble home.

Adherents of particular faiths and individual churches frequently take strong positions on public issues including advocacy of legal or constitutional positions. In the last presidential elections these same churches took sides to support particular political parties. Of course, churches as much as secular bodies and private citizens have that right.

The legislative purpose of a property tax is to afford government the much needed revenues to provide social services especially to the less privileged. Churches and their leaders should be taxed just like any other business enterprises or employee/employer.

Our tax laws should reflect equity.

Next week: Sodomy victims can recover damages from their tormentors.

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

Accesories to crime in ‘church’

Accesories to crime in ‘church’
July 17, 2007
The Pentecostal movement has lately been embroiled in scandals bringing to the fore the exploitative tendencies in the emerging evangelical churches.

The harrowing tales of Mr. Julius Lukyamuzi alias Kitaka, who is now suffering from damaged anal anatomy and goes around padded, following repeated homosexual assault epitomises the criminal character of your modern day miracle preachers.

These self proclaimed men/women of God have learned their conning trade very well; they preach the exploitative, coercive gospel of ‘giving back to God’ woven around the imaginary powers to perform miracles that excites their gullible audiences. They selfishly enrich themselves while impoverishing hundred of thousands of their followers.

They lure the newcomers into a false sense of goodness and prosperity without necessarily working hard for it. Their preaching is quite similar to that of the Jihad gangsters who impose an extreme interpretation to Islamic teachings.

There are now an estimated 20,000 Pentecostal churches in Uganda which are largely un-regulated. Practically, anyone, anywhere, can set up a church and acquire the ‘Godly’ title of pastor. Before you know it all a pastor who was as poor as a church mouse the
previous day – is now a swaggering millionaire(ss). Their riches (the pastors’) come that cheap.

You do not have to go to school. You do not have to work hard. Just cram a few verses from the Bible, set up a church, crusade in the neighbourhood for the numbers games and you will be a millionaire in a matter of days. There is no legal regime to set the parameters for one to become a pastor or for one to start a church anywhere.

This can perhaps explain why pastors are now riding on the constitutional right to freedom of worship to engage in criminal activity. And the worrying rise in criminality and the dilemma in the church can only cement a growing sense of certainty that things will only get worse.

You have heard about pastors who have forced HIV patients to stop taking ARVs and effectively left them for the dead. Others coerce the unsuspecting followers to surrender personal belongs in exchange for imaginary “blessings”. There are those who have made the lives of married couples hell by poaching on people’s wives and husbands, a practice which hitherto was the preserve of your typical witch doctor.

Sex in the church (condoms are found in some churches) after overnight ‘prayers’, the wired pastors and now sodomy! This is the nightmare obtaining in the Pentecostal movement.

It is heard to understand how an elected government can allow such collective conning of the people to go on for so long without subjecting the culprits to the strict terms of the law.

Why has it taken the police all this long to investigate and prosecute Lukyamuzi’s tormentors? Why should the police wait for those who are wronged to run to the media before they follow up cases?

In the Lukyamuzi sodomy case there are a number of pastors who are named as having tried to cover-up. Under our criminal law any person who helps an offender to escape punishment becomes an accessory to the offence and can suffer imprisonment for three years. But has the police interrogated all the named suspects implicated in the Lukyamuzi sodomy matter.

This is what they call selective justice and it should not be allowed to take root in our society. While the traditional churches are governed under the Trustees Incorporation Act, which imposes a strict regime of accountability, just a handful of pastors have set up trusts to manage the property and affairs of their respective churches in trust for their congregations.

The law provides that the trustees of public associations or organiaations such as churches are responsible for the property that comes into their hands and are answerable and accountable for their own acts, receipts, neglects and defaults. A trustee must never favour one beneficiary at the expense of others. It is his duty to act impartially and to hold the scales evenly between all.

But this is not the case with many of the Pentecostal churches that are a one-man show business. There is no accountability at all. And because such churches are not registered under any law it becomes very difficult to sue them for any civil breaches. In other words they are not recognised as legal entities. Government should enact a law to regulate Pentecostal churches.
NEXT WEEK: The relationship between the state and the church and why churches should pay tax.

The writer is a Journalist/Advocate
msserwanga@gmail.com
msserwanga.blogspot.com
0772 43 46 77

Evict the unruly herd from parks

Evict the unruly herd from parks
July 10, 2007

Our Kenyan neighbours have once again led by example, this time round by successfully mounting a spirited fight for the ban in ivory trade to protect the country’s tourism industry.

Wildlife conservation is the backbone of Kenya’s vibrant tourism industry whose flagship species, the elephants, were being targeted by poachers. The Kenya government is smart and knows the hand that feeds its economy.

It could not allow poachers who cash-in on the lucrative trade in ivory to have their way. The Kenya government engaged delegates from 171 member countries of the Convention on International Trade in Endangered Species of wild flora and fauna (Cites) and managed to win a nine-year ban in ivory trade. This was at the 14th conference of parties on the African elephant and ivory trade that sat in The Hague, Netherlands last month.

Unfortunately, back home in Uganda all is not rosy for our ecotourism with a growing population of marauding pastoralists encroaching on the country’s national parks which are the natural habitats of wildlife.

Queen Elizabeth National park, one of the country’s largest national parks, has come under attack from Basongora encroachers putting the lives of hundreds of wildlife species in real danger.

The herdsmen who are believed to be armed with guns have now declared themselves “rebels” and have vowed not to leave. They illegally occupy the areas of Nyabubare, Rwenjubu, Kanyampara, Muhokya, Hamukungu, Kamulikwizi and Kyondo in the vast national park.

And yet the Queen Elizabeth is not the only wildlife conservation area that is threatened by human settlement. Katonga, Semilki, Kidepo and Kaboya game reserves are all suffering from some level of human encroachment. That, in turn, has touched off a mass exodus of wild animals to safer but more distant places.

Already, a pride of 10 lions (which is a whole family) of these great wild beasts, has been wiped out in Queen Elizabeth National Park. Mr Moses Mapesa, the Executive Director of Uganda Wildlife Authority (Uwa), says encroachers apply poison to kill animals in their illegal quest to settle deep in the park. UWA has discovered various remains of lions including teeth, skin and claws.

The reported outbreak of Foot and Mouth Disease in the park has not helped matters either. A joint team consisting of technical officers from the Ministry of Agriculture, Animal Industry and Fisheries and Uwa has noted the catastrophic nature of the disease to wildlife, livestock and the tourism industry especially due to the fact that whilst vaccination is applicable in cattle, the only practical way to prevent infection in the wildlife is to separate wildlife from livestock.

The criminal activities taking place in Queen Elizabeth National Park sit oddly on the fact that one in every 10 tourists coming to Uganda would like to see a lion.
So what has caused this burst of volatility? A ruthless group of people who have no regard for the country’s wildlife conservation efforts are flouting the law with impunity.

Wherever they come from, the Basongora pastoralists and any other nomadic groupings should not be allowed to encroach on a vital national resource and engage in the criminal activity of killing protected wildlife. A protected national animal park is not their place to be.

The Uganda Wildlife Act , is the law which serves to promote sustainable management of wildlife. The law provides that the ownership of every wild animal and wild plant existing in its wild habitat in Uganda is vested in the government on behalf of and for the benefit of the people of Uganda.

The law also serves to protect and preserve populations of rare, endemic and endangered species of wild life and planst which among others include lions and elephants. The law does not allow the destruction or encroachment of a wildlife sanctuary like a national park by human settlements.

It is the provision of the law that any person who enters a wildlife protected area without authority commits an offence and should be arrested and prosecuted. Uwa, which is mandated to enforce the law to protect the country’s wildlife resources should not allow the obstinate encroachment of our natural heritage and tourism jewel to continue unabated.

The number of mammals, birds and amphibians in Queen Elizabeth National Park is dwindling due to habitat loss and this must stop.
Next week: Pastors should not abuse the constitutional right to freedom of worship.

The writer is a Journalist and Advocate
msserwanga@gmail.co.ug
msserwanga.blogspot.com
0772 43 46 77.