We need land reforms that are fair to all
Let's face it: much as the country is divided over government’s proposed land amendments, the law will have no effect nor provide a lasting solution to the land problem in the country - unless money is provided by government for the peasants and landlords to secure their land rights.
In the new amendments to Section 31 of the Land Act 1998, the government has empowered district land boards to determine a suitable annual nominal ground rent payable by a tenant. On failure, the government insists, the lands minister would set the ground rent.
“Where the board has not determined the annual nominal ground rent payable by a tenant by occupancy within six months after the commencement of this Act, the rent may be determined by the minister,” the new proposal reads in part.
Contrary to the previous law, the government has reduced the timeframe for the payment of the ground rent from two years to one year after the minister has approved the rent payable to the mailo land owner.
Similarly, in a veil attempt to ‘protect’ the interests of the registered land owner (landlord), government is proposing an amendment to section 35 of the Land Act that will make it difficult for tenants to assign their tenancy by occupancy ( sell) to a third party without giving the first option of taking the assignment of the occupancy (sell) to the land owner.
What this means is that tenants by occupancy or Bibanja, holders can’t sell or subdivide their land without giving the registered land owner priority; if they did , they commit an offence and are liable for imprisonment not exceeding four years.
Under the new arrangements, illegal occupancy has been criminalised. The land owner can approach the police and evict trespassers because it is criminal and anybody liable commits an offence and imprisonment for four years and a fine of about Shs1.9m. On the other hand, the landlord is also under an obligation to give notice when selling his/her land.
Where one secretly sells his or her land this will be illegal and no title will be given. But then again, how many tenants in this country have the resources to purchase land on the open market. This is the root cause of the problem- which unfortunately, government has failed to address in its quest to secure land rights for the landless Ugandans.
And much as the provisions of the land amendments which purport to secure the rights of bonafide occupants ( people who have lived on any given piece of land for more than 12 years before the coming into effect of the 19995 constitution) and the lawful occupants (those entered on land with the consent of the registered owner by virtue of the Busuulu and Nvujjo law of 1928), do not confer a superior title to that of the registered land owner (landlord) in practical terms the law creates two competing rights/interests.
With these contradictions in the law, it has increasingly become very difficult for registered land owners and tenants to deal with land as a factor of production.
Neither of the two people ( landlords and tenants) can transfer or assign their interest in land without first compensating/ or buying out the other. This is the sad reality that affects the principles of land law which provide that if you want to deal in land you don’t have to investigate outside the register.
The government has conveniently opted to ignore this fundamental principle of law thus making it difficult for people to purchase or sell a vital resource to ensure economic growth/development.
This situation can best explain the strategic tendencies of landlords to sell/ assign their interests to military men or powerful political actors who can employ the power of the gun or political muscle to wrestle the tenants off the land without compensation. Or worse still, for the same government officials to instigate/or encourage peasants to take over land without compensating landlords.
The other problem with the present regime of our land law is the lack of a definitive provision on how much land a kibanja holder should have and the mechanism of getting a tenant off the land if the landlord wants to develop that land whether ground rent is paid or not.
The amendments provide for only one ground under which tenants can be evicted and that’s if they fail to pay rent. So what happens when a landlord wants to sell his land even if ground rent has been paid by the tenants whose means are so limited that they have no money to purchase land in the first place? And which sane businessman or developer will purchase land which is heavily encumbered?
The country needs land reforms that are fair to all- landlords and tenants alike and, government should as a priority put in place a land fund that will help the affected people to source for alternative land or buy themselves out without causing imaginary political or tribal conflicts.
The writer is a journalist and advocate
msserwanga@gmail.com
Wednesday, January 30, 2008
Friday, January 18, 2008
LEADERS SHOULDN'T TRIBALISE THE LAND DEBATE
Leaders shouldn’t tribalise the land debate
The dispute between President Yoweri Museveni and the Kabaka of Buganda Ronald Mutebi has reached acrimonious levels with the former accusing the latter among other things, seditious intentions.
Sedition is a very serious offence. According to our penal law, sedition means hatred or contempt or to exercise disaffection against the person of the president or government as by law established or the constitution.
Sedition can also refer to the promotion of subversion of the government or the administration of the government or, the administration of a district. I’m not sure whether the Kabaka is headed in that direction but not too long ago, in this column , a point was made that our leaders shouldn’t politicise or tribalise the land issue in Uganda.
Take for instance, the case of Buganda which now our leaders want to employ to pit landlords against their tenants; even when the country’s history clearly demonstrates that the two categories of people have until recently lived happily together.
It’s not true, as some people have expressed in this wanton excitement about land ownership, that the Baganda are selfish and inward looking. Many will agree that contrary to the objectives of those who are funning tribal sentiments for political or other interests, the Baganda are strikingly open and very accommodative. This is why from the onset, this legitimate debate about land ownership not only in Buganda but elsewhere in the country, should be devoid of tribal hatred and politics.
There are fresh lessons to learn from the turmoil in Kenya - once a stable country in this part of the world, that’s now torn apart because of the selfish interests of a few political and tribal leaders.
There is no elaborate difference in the wording and meaning or legal efficacy (effect) of the revised land amendments viz the Land Act. The only departure between the proposed amendments and the Act which can be said to be fundamental is the emphasis that before selling land, landlords should give their tenants the first choice to buy themselves out.
Apart from being put on paper, this proposal is not any different from the fundamental principles of the land law that recognise the equitable interests of people who dwell on land whether registered or not. In any case, the constitution of Uganda recognises these equitable interests in its provisions when it states that all persons in lawful or bonafide occupation of mailo, freehold or leasehold land shall enjoy security of tenure.
The land Act, defines lawful occupant to mean a person occupying land by virtue of the Busuulu and Envujjo law of 1928 or that person(s) who entered the land with the consent of the registered owner (squatter/tenant).
And before we look at the other categories of people whose land rights are protected by not only the Land Act but the constitution, we need to understand who a registered owner of land (Land Lord ) is.
A registered land owner is that person who holds a certificate of title of land ( or what is commonly known as ‘land title’), which is issued upon an application to bring such land under the protection of the law – read (the Registration of Titles Act or RTA).
Further, the RTA specifically provides that except so far as is expressly enacted to the contrary, no Act or rule so far as inconsistent with this law (RTA) shall apply or be deemed to apply to land whether freehold or leasehold which is under the operation of the RTA.
What this simply means is that once a person legally acquires a certificate of title to any given piece of land anywhere in the country, that persons is the lawful registered owner of such land and his/her title can’t be impeached ( violated ) unless with a court order. That person is the landlord and at law, any other interest (equitable) is only secondary to his title deed.
The second legal effect of the provisions discussed above is that its only that person, (registered owner) who can pass a good title ( sell land). That’s why the land Act amendments, presumably taking into consideration that straight point of law, is now suggesting that when this registered owner takes a decision to sell his land, he/she should consider to sell to the tenants on that land first, and can do this by putting such tenant(s) on notice that he wants to sell the land.
Next WEEK: we shall look at the other categories of land rights protected by the Constitution and the legal effects of the proposed amendments.
The Writer is a journalist and advocate of the High Court of Uganda
msserwanga@gmail.com
The dispute between President Yoweri Museveni and the Kabaka of Buganda Ronald Mutebi has reached acrimonious levels with the former accusing the latter among other things, seditious intentions.
Sedition is a very serious offence. According to our penal law, sedition means hatred or contempt or to exercise disaffection against the person of the president or government as by law established or the constitution.
Sedition can also refer to the promotion of subversion of the government or the administration of the government or, the administration of a district. I’m not sure whether the Kabaka is headed in that direction but not too long ago, in this column , a point was made that our leaders shouldn’t politicise or tribalise the land issue in Uganda.
Take for instance, the case of Buganda which now our leaders want to employ to pit landlords against their tenants; even when the country’s history clearly demonstrates that the two categories of people have until recently lived happily together.
It’s not true, as some people have expressed in this wanton excitement about land ownership, that the Baganda are selfish and inward looking. Many will agree that contrary to the objectives of those who are funning tribal sentiments for political or other interests, the Baganda are strikingly open and very accommodative. This is why from the onset, this legitimate debate about land ownership not only in Buganda but elsewhere in the country, should be devoid of tribal hatred and politics.
There are fresh lessons to learn from the turmoil in Kenya - once a stable country in this part of the world, that’s now torn apart because of the selfish interests of a few political and tribal leaders.
There is no elaborate difference in the wording and meaning or legal efficacy (effect) of the revised land amendments viz the Land Act. The only departure between the proposed amendments and the Act which can be said to be fundamental is the emphasis that before selling land, landlords should give their tenants the first choice to buy themselves out.
Apart from being put on paper, this proposal is not any different from the fundamental principles of the land law that recognise the equitable interests of people who dwell on land whether registered or not. In any case, the constitution of Uganda recognises these equitable interests in its provisions when it states that all persons in lawful or bonafide occupation of mailo, freehold or leasehold land shall enjoy security of tenure.
The land Act, defines lawful occupant to mean a person occupying land by virtue of the Busuulu and Envujjo law of 1928 or that person(s) who entered the land with the consent of the registered owner (squatter/tenant).
And before we look at the other categories of people whose land rights are protected by not only the Land Act but the constitution, we need to understand who a registered owner of land (Land Lord ) is.
A registered land owner is that person who holds a certificate of title of land ( or what is commonly known as ‘land title’), which is issued upon an application to bring such land under the protection of the law – read (the Registration of Titles Act or RTA).
Further, the RTA specifically provides that except so far as is expressly enacted to the contrary, no Act or rule so far as inconsistent with this law (RTA) shall apply or be deemed to apply to land whether freehold or leasehold which is under the operation of the RTA.
What this simply means is that once a person legally acquires a certificate of title to any given piece of land anywhere in the country, that persons is the lawful registered owner of such land and his/her title can’t be impeached ( violated ) unless with a court order. That person is the landlord and at law, any other interest (equitable) is only secondary to his title deed.
The second legal effect of the provisions discussed above is that its only that person, (registered owner) who can pass a good title ( sell land). That’s why the land Act amendments, presumably taking into consideration that straight point of law, is now suggesting that when this registered owner takes a decision to sell his land, he/she should consider to sell to the tenants on that land first, and can do this by putting such tenant(s) on notice that he wants to sell the land.
Next WEEK: we shall look at the other categories of land rights protected by the Constitution and the legal effects of the proposed amendments.
The Writer is a journalist and advocate of the High Court of Uganda
msserwanga@gmail.com
Tuesday, January 8, 2008
HARD LESSONS TO DRAW FROM BHUTTO'sMURDER
Hard lessons to draw from Bhutto’s murder
A fortnight ago, the world gathered in grief following the shock assassination of Benazir Bhutto, one of the charismatic leaders and a naturally engaging speaker in her generation.
The late Bhutto was a brave woman too, acknowledging before her death that by returning to her home country to champion democracy and fight Islamic fundamentalism, she put her life at great danger.
There is no denial that Bhutto’s brutal murder is a cowardly act that undermines the growth of democracy not only in the Islamic state of Pakistan but anywhere in the world. The civilised world should however, draw lessons from the bad moments such as the Bhutto assassination.
First, in a world where the majority of women are kept in the backyard, Bhutto raised their profile and opened up the gender-political space on the world stage.
She was the first female prime minister of Pakistan and of any Islamic nation. But most fundamental was the fact that she personified the enormous generosity and tolerance of old-school liberalism that embraces diversity of opinion, views and convictions in a complex political arena.
These are the most important virtues for a young and fragile democracy like that of Uganda. These are the same principles captured in our constitution, which provides for freedom to express our political views and opinions without facing the threat of tear gas and doing long jail terms without trial.
In this perspective, Bhutto came off as a rare breed of a politician. Her benevolence was a sharp contrast to many of our African leaders whose only interest is to fend for themselves, their families and a few cronies/ cheerleaders while the majority of the people they lead languish in poverty.
The second lesson we can draw from the Bhutto assassination is the lifestyle and character of many of our leaders. They are consumed by fear and worried about sharing the absolute power that they wield.
They barricade themselves in villas and ‘palaces’ guarded by tanks manned by their mean looking henchmen, while offering little or no protection at all to their political opponents.
Bhutto reached out to the masses travelling in civilian vehicles even after the state declined to give her adequate protection. The state owes a duty to all its citizens including those with opposing political views to guarantee them adequate security.
The other and perhaps the most significant lesson that can be learned from the demise of Bhutto is the pragmatism(realism) that political problems/challenges don’t require military solutions. We don’t have to eliminate our political opponents to achieve our political objectives ; we can only engage them.
The crucial advantage that Uganda has and indeed the larger part of the African continent is that we don’t have a radical population. Apart from some parts of north Africa we have not had cases of people blowing themselves up in public places to send a political message. That’s why the struggle against the forces of terror and extremism should not be rested in this part of the world.
The civilised world should stand firm against any form and manifestation of cowardice and, the immense brutality being perpetuated by fundamentalists- who groom and send out suicide bombers to claim the lives of thousands of innocent people in a misguided effort to impose their political and religious ideologies.
In Africa where socio-economic conditions don’t favour stable democracy; political organisation based on the spirit of constitutionalism is the only viable mechanism in ensuring good governance, observance of human rights and the rule of law. Our leaders whether in power or the opposition should respect each other and work for peace and national unity.
The writer is a journalist and advocate
msserwanga@gmail.com
A fortnight ago, the world gathered in grief following the shock assassination of Benazir Bhutto, one of the charismatic leaders and a naturally engaging speaker in her generation.
The late Bhutto was a brave woman too, acknowledging before her death that by returning to her home country to champion democracy and fight Islamic fundamentalism, she put her life at great danger.
There is no denial that Bhutto’s brutal murder is a cowardly act that undermines the growth of democracy not only in the Islamic state of Pakistan but anywhere in the world. The civilised world should however, draw lessons from the bad moments such as the Bhutto assassination.
First, in a world where the majority of women are kept in the backyard, Bhutto raised their profile and opened up the gender-political space on the world stage.
She was the first female prime minister of Pakistan and of any Islamic nation. But most fundamental was the fact that she personified the enormous generosity and tolerance of old-school liberalism that embraces diversity of opinion, views and convictions in a complex political arena.
These are the most important virtues for a young and fragile democracy like that of Uganda. These are the same principles captured in our constitution, which provides for freedom to express our political views and opinions without facing the threat of tear gas and doing long jail terms without trial.
In this perspective, Bhutto came off as a rare breed of a politician. Her benevolence was a sharp contrast to many of our African leaders whose only interest is to fend for themselves, their families and a few cronies/ cheerleaders while the majority of the people they lead languish in poverty.
The second lesson we can draw from the Bhutto assassination is the lifestyle and character of many of our leaders. They are consumed by fear and worried about sharing the absolute power that they wield.
They barricade themselves in villas and ‘palaces’ guarded by tanks manned by their mean looking henchmen, while offering little or no protection at all to their political opponents.
Bhutto reached out to the masses travelling in civilian vehicles even after the state declined to give her adequate protection. The state owes a duty to all its citizens including those with opposing political views to guarantee them adequate security.
The other and perhaps the most significant lesson that can be learned from the demise of Bhutto is the pragmatism(realism) that political problems/challenges don’t require military solutions. We don’t have to eliminate our political opponents to achieve our political objectives ; we can only engage them.
The crucial advantage that Uganda has and indeed the larger part of the African continent is that we don’t have a radical population. Apart from some parts of north Africa we have not had cases of people blowing themselves up in public places to send a political message. That’s why the struggle against the forces of terror and extremism should not be rested in this part of the world.
The civilised world should stand firm against any form and manifestation of cowardice and, the immense brutality being perpetuated by fundamentalists- who groom and send out suicide bombers to claim the lives of thousands of innocent people in a misguided effort to impose their political and religious ideologies.
In Africa where socio-economic conditions don’t favour stable democracy; political organisation based on the spirit of constitutionalism is the only viable mechanism in ensuring good governance, observance of human rights and the rule of law. Our leaders whether in power or the opposition should respect each other and work for peace and national unity.
The writer is a journalist and advocate
msserwanga@gmail.com
Wednesday, December 26, 2007
MR PRESIDENT< STOP THE MABIRA GAMES
Mr President, stop the Mabira games
President Yoweri Museveni is at it again; this time around reminding the country that the controversial proposal to give away Mabira forest which led to the death of three people about six months ago, is not yet resolved after all.
His remarks while meeting the NRM Parliamentary Caucus last week in effect mean that government could still go ahead a give away part of the tropical rain forest to a private investor, the Lugazi-based Mehta Group, in total disregard of public opinion.
Most depressing about this debacle though is the fact that Mr Museveni’s resolve to parcel out a protected national resource contradicts the announcement made to the world in October by his finance minister Dr Ezra Suruma, at a dinner meeting hosted by the South American President of Guyana, Bharrat Jagdeo, in Georgetown that the Uganda government had dropped the plan to give away part of Mabira forest.
And why should a national leader against all odds push for the alienation of 17,540 acres, nearly a third of Mabira forest to Mehta when there are huge chunks of an utilised public land in this country under government control which can be gazetted for the industrilisation programme.
What’s the moral justification for this disdain to an evident national consensus that Mabira forest reserve is a no-go area for the promoters of industrialisation! Quite maddening too, is the apparent lack of government interest to explain to the country why of all places it’s Mabira that should be earmarked for ‘industrialisation’.
Is it the proximity of the place called Mabira that has attracted the ‘investors’ to justify its destruction, or is it an element of ego and greed (some of the main factors that erode the principles of good governance) that can possibly explain the determination by the powers that be to destroy what remains of our national forest cover?
Whatever the motive it’s our civic duty as citizens to remind our leaders that the constitutionally established principle of public trust applies to all our national resources and public land.
Our leaders including the president have a legal obligation under the public trust doctrine to manage national resources in a manner that doesn’t prejudice the interests of all Ugandans.
President Museveni chairs the cabinet which in April studied a damning cabinet memorandum prepared by the Ministry of Water and Environment which paradoxically, strongly argued against the destruction of the forest.
In the cabinet memo, experts noted the negative impact of changing the land use of the 7,100 hectares of Mabira tropical rain forest; which among others will lead to reduction in water flow to the lakes and rivers, change temperatures and loss of unique ecosystem whose economic value is estimated at Shs23.3 billion.
The negative effects that await the country once Mabira is given away, can also be prescient too. Over the years ,there is been too much destruction of our forest cover and the ramifications for this obliteration have been clear for all to see including the unprecedented severe weather conditions experienced in the country this year.
The unpredictability in climatic conditions that threaten the survival of mankind, have led to the development of a basic international environmental precautionary law principle to protect and conserve nature for the benefit of present and future generations.
The precautionary principle which governs the exploitation of natural resources like forests, was developed following the 1982 World Charter for Nature which provides in its principle 11(b); that activities which are likely to pose a significant risk to nature shall be preceded by an exhaustive examination; that their proponents shall demonstrate that expected benefits outweigh potential damage to nature.
Studies carried out so far clearly show that the proposed destruction of Mabira forest shall spell doom for our country. Parliament and the courts of law should therefore urgently intervene to save Mabira forest from being destroyed for selfish benefits of some ‘investors’. Ugandans should remain firm in the defence of Mabira forest to prevent irreversible harm to our environment.
The writer is a journalist and advocate
msserwanga@gmail.com
President Yoweri Museveni is at it again; this time around reminding the country that the controversial proposal to give away Mabira forest which led to the death of three people about six months ago, is not yet resolved after all.
His remarks while meeting the NRM Parliamentary Caucus last week in effect mean that government could still go ahead a give away part of the tropical rain forest to a private investor, the Lugazi-based Mehta Group, in total disregard of public opinion.
Most depressing about this debacle though is the fact that Mr Museveni’s resolve to parcel out a protected national resource contradicts the announcement made to the world in October by his finance minister Dr Ezra Suruma, at a dinner meeting hosted by the South American President of Guyana, Bharrat Jagdeo, in Georgetown that the Uganda government had dropped the plan to give away part of Mabira forest.
And why should a national leader against all odds push for the alienation of 17,540 acres, nearly a third of Mabira forest to Mehta when there are huge chunks of an utilised public land in this country under government control which can be gazetted for the industrilisation programme.
What’s the moral justification for this disdain to an evident national consensus that Mabira forest reserve is a no-go area for the promoters of industrialisation! Quite maddening too, is the apparent lack of government interest to explain to the country why of all places it’s Mabira that should be earmarked for ‘industrialisation’.
Is it the proximity of the place called Mabira that has attracted the ‘investors’ to justify its destruction, or is it an element of ego and greed (some of the main factors that erode the principles of good governance) that can possibly explain the determination by the powers that be to destroy what remains of our national forest cover?
Whatever the motive it’s our civic duty as citizens to remind our leaders that the constitutionally established principle of public trust applies to all our national resources and public land.
Our leaders including the president have a legal obligation under the public trust doctrine to manage national resources in a manner that doesn’t prejudice the interests of all Ugandans.
President Museveni chairs the cabinet which in April studied a damning cabinet memorandum prepared by the Ministry of Water and Environment which paradoxically, strongly argued against the destruction of the forest.
In the cabinet memo, experts noted the negative impact of changing the land use of the 7,100 hectares of Mabira tropical rain forest; which among others will lead to reduction in water flow to the lakes and rivers, change temperatures and loss of unique ecosystem whose economic value is estimated at Shs23.3 billion.
The negative effects that await the country once Mabira is given away, can also be prescient too. Over the years ,there is been too much destruction of our forest cover and the ramifications for this obliteration have been clear for all to see including the unprecedented severe weather conditions experienced in the country this year.
The unpredictability in climatic conditions that threaten the survival of mankind, have led to the development of a basic international environmental precautionary law principle to protect and conserve nature for the benefit of present and future generations.
The precautionary principle which governs the exploitation of natural resources like forests, was developed following the 1982 World Charter for Nature which provides in its principle 11(b); that activities which are likely to pose a significant risk to nature shall be preceded by an exhaustive examination; that their proponents shall demonstrate that expected benefits outweigh potential damage to nature.
Studies carried out so far clearly show that the proposed destruction of Mabira forest shall spell doom for our country. Parliament and the courts of law should therefore urgently intervene to save Mabira forest from being destroyed for selfish benefits of some ‘investors’. Ugandans should remain firm in the defence of Mabira forest to prevent irreversible harm to our environment.
The writer is a journalist and advocate
msserwanga@gmail.com
Tuesday, December 18, 2007
ARE MPS ABETTING HUMAN RIGHTS ABUSES?
On December 10, the world marked the international human rights Day, with no significant progress in the protection of people’s fundamental human rights registered anywhere in the world.
It’s well over half a century since the Universal Declaration on Human Rights was adopted by the United Nations, and yet millions of people across the globe continue to suffer gross human rights abuses-many silently.
While governments are the worst violators of fundamental rights, these abuses are also very evident right in our homes and workplaces. Women are battered at home, while children are maimed at school and the relentless abuse of the people’s inherent rights to dignity and life goes on unabated.
Even professionals, ‘well’ trained people –some are even experts at their trade- cannot escape the blame for trampling on people’s rights, which in many cases assumes the element of criminal liability. The disabled are not accorded the same opportunities irrespective of a popular saying –that disability does not mean inability.
In this column, harrowing cases of human rights abuses have been highlighted including harassment and intimidation of journalists by the government, the case of Julius Lukyamuzi who was sodomised by one of Kampala’s notorious pastors and he is yet to receive justice three years since he first reported the matter to police.
Remember the traumatic case of Mercy Nafuna, the nine-month old baby who lost her arm due to the negligence of a medical practitioner in Mbale district? In another recent incident, 40-year old George Mugagga, a resident of Kinawataka in Mbuya parish in Kampala, beheaded his wife who was six months pregnant because the lady was HIV negative and the man was positive.
Then there was the exclusive report about ‘ invisible torture’, a new method of torture by state operatives to inflict maximum pain without leaving marks or scars on the bodies of their victims. These are but a few cases of the human rights abuses that have graced the pages of Daily monitor this year alone.
Sadly though, Parliament which is mandated by our constitution to rein in the excesses of the state (government) has shamelessly not debated any of the annual human rights reports prepared by the Uganda Human Rights Commission, for the last ten years.
This means that critical recommendations and findings concerning abuse of human rights where innocent people have lost their lives, have been maimed, detained for long periods without trial, discriminated against, displaced or forced into exile, have not been paid damages awarded to them by human rights tribunals because the government is not interested. They have passed without any parliamentary intervention.
It’s explicitly provided for in Article 20(1) of the constitution that human rights are inherent in a person by reason of his or her birth and are therefore not granted by the state or any law. In the Supreme Court case of Tinyefuza v. Attorney General , Justice Oder as he then was, laboured to explain this constitutional principle.
He reasoned, and I agree with him, that although modern constitutions like ours, enact human rights in their provisions it doesn’t mean that such provisions create ‘the human rights’; rather the constitutional provisions are meant for the recognition and the intention that they should be enforceable in a court of law.
This means that fundamental human rights are universal and are due to every human society. They do not depend on the status of an individual, class, race , nor gender. They are uniform to all the peoples of the world.
Courts of law have emphasised a universally acceptable principle of international and domestic human rights that the constitutionalisation of human rights imposes a fetter on the exercise by the legislature (parliament), the executive and the judiciary of their respective powers to protect and promote the strict observance of human rights.
Equally important is the fact that human rights and the right to individual freedom are inextricably tied to the concept of human dignity. This means that freedom is a condition of human self respect and that of contentment which resides in the ability to pursue one’s own conception of a full and rewarding life.
The writer is a journalist and advocate
msserwanga@gmail.com
msserwanga.blogspot.com
It’s well over half a century since the Universal Declaration on Human Rights was adopted by the United Nations, and yet millions of people across the globe continue to suffer gross human rights abuses-many silently.
While governments are the worst violators of fundamental rights, these abuses are also very evident right in our homes and workplaces. Women are battered at home, while children are maimed at school and the relentless abuse of the people’s inherent rights to dignity and life goes on unabated.
Even professionals, ‘well’ trained people –some are even experts at their trade- cannot escape the blame for trampling on people’s rights, which in many cases assumes the element of criminal liability. The disabled are not accorded the same opportunities irrespective of a popular saying –that disability does not mean inability.
In this column, harrowing cases of human rights abuses have been highlighted including harassment and intimidation of journalists by the government, the case of Julius Lukyamuzi who was sodomised by one of Kampala’s notorious pastors and he is yet to receive justice three years since he first reported the matter to police.
Remember the traumatic case of Mercy Nafuna, the nine-month old baby who lost her arm due to the negligence of a medical practitioner in Mbale district? In another recent incident, 40-year old George Mugagga, a resident of Kinawataka in Mbuya parish in Kampala, beheaded his wife who was six months pregnant because the lady was HIV negative and the man was positive.
Then there was the exclusive report about ‘ invisible torture’, a new method of torture by state operatives to inflict maximum pain without leaving marks or scars on the bodies of their victims. These are but a few cases of the human rights abuses that have graced the pages of Daily monitor this year alone.
Sadly though, Parliament which is mandated by our constitution to rein in the excesses of the state (government) has shamelessly not debated any of the annual human rights reports prepared by the Uganda Human Rights Commission, for the last ten years.
This means that critical recommendations and findings concerning abuse of human rights where innocent people have lost their lives, have been maimed, detained for long periods without trial, discriminated against, displaced or forced into exile, have not been paid damages awarded to them by human rights tribunals because the government is not interested. They have passed without any parliamentary intervention.
It’s explicitly provided for in Article 20(1) of the constitution that human rights are inherent in a person by reason of his or her birth and are therefore not granted by the state or any law. In the Supreme Court case of Tinyefuza v. Attorney General , Justice Oder as he then was, laboured to explain this constitutional principle.
He reasoned, and I agree with him, that although modern constitutions like ours, enact human rights in their provisions it doesn’t mean that such provisions create ‘the human rights’; rather the constitutional provisions are meant for the recognition and the intention that they should be enforceable in a court of law.
This means that fundamental human rights are universal and are due to every human society. They do not depend on the status of an individual, class, race , nor gender. They are uniform to all the peoples of the world.
Courts of law have emphasised a universally acceptable principle of international and domestic human rights that the constitutionalisation of human rights imposes a fetter on the exercise by the legislature (parliament), the executive and the judiciary of their respective powers to protect and promote the strict observance of human rights.
Equally important is the fact that human rights and the right to individual freedom are inextricably tied to the concept of human dignity. This means that freedom is a condition of human self respect and that of contentment which resides in the ability to pursue one’s own conception of a full and rewarding life.
The writer is a journalist and advocate
msserwanga@gmail.com
msserwanga.blogspot.com
Tuesday, December 11, 2007
STATE USING ARCHAIC LAW TO GAG PRESS
For over a month now, another pair of Daily Monitor journalists have been subjected to periodic visits to the police Criminal Investigations Department to explain themselves over an August 19 Sunday Monitor scoop.
The story said that the Inspector General of Government, Justice Faith Mwondha, had irregularly opted for the higher Sh4, 575, 000 monthly salary for judges instead of her official IGG remuneration of Sh2, 900, 000.
The IGG instructed the police to prefer criminal libel charges against News Editor Robert Chrispin Mukasa and Senior Reporter Emmanuel Davies Gyezaho- who are out on Sh500, 000 non-cash police bond.
For starters the offence of criminal libel is archaic and offends the spirit of our constitution which allows freedom of the press, speech and expression. If the IGG strongly feels that she was wronged by the Sunday Monitor article, she can claim damages by filing a civil suit for defamation (civil libel).
Ugandans are entitled, by the provisions of our constitution, to receive information in oder to make informed decisions. That’s why the fourth President of USA James Madison once said that knowledge will forever govern ignorance and a people who mean to be their own governors, must arm themselves with the power knowledge gives. A popular government without popular information or the means of acquiring it, is but a prologue to a farce or a tragedy or perhaps both.
Madison’s statement clearly shows that the man understood the true values and principles of democracy which call for an atmosphere of trust , openness and accountability between leaders and the people they govern.
The right to access information is codified in Article 19 of the Universal Declaration of Human Rights adopted by the UN General Assembly resolution ob December 1948. Similarly Article 19 of the International Covenant on Civil and Political Rights which came into force on March 23, 1976, to which Uganda is a party, provides that everyone shall have the right to hold opinions without interference.
That everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print , in form of art or through any other media of his choice.
Why then has the government not repealed the obnoxious laws that still exist on our statute books? Why again, should public officers like the IGG, herself a learned judge, hide behind an obsolete piece of legislation – to intimidate and harass journalists?
Perhaps the answer to these questions can be found in Uganda’s abhorrent culture of secretiveness and impunity; where the leaders of this nation at all levels are under an illusion that they are immune or above the provisions of law.
They shameless fear public accountability and scrutiny . They don’t want their actions to be questioned by anyone, least we the ‘lesser mortals’. They will try everything within their means to stifle free speech, to gag the media, civil society, the opposition and even the people they lead.
It’s this culture that breeds intolerance, violence and dictatorship, which ultimately leads to failed states. And who bears the brunt of all this mess-- the ordinary people– you and me. Our misery is in most cases colossal and we have nowhere to run to because most of the institutions that would ensure our very survival are in most cases compromised.
Some of these sacred rights of an individual were well expounded in the Supreme Court case of Charles Onyango Obbo and Andrew Mwenda versus the Attorney General.
The court considered the decision of the Supreme Court of Canada in which Mclachlin J, who wrote the majority judgement rightly observed that tests of free expression frequently involve a contest between the majority view of what is true or right and an unpopular minority view. She however ruled that while a particular content of a person’s speech might “excite popular prejudice” there is no reason to deny it protection.
In other words, if there is any principle of the constitution that more imperatively call for protection, than any other it is the principle of free thought-not free thought for those who agree with us but freedom for thought that we hate.
The writer is a journalist and advocate
msserwanga@gmail.com
The story said that the Inspector General of Government, Justice Faith Mwondha, had irregularly opted for the higher Sh4, 575, 000 monthly salary for judges instead of her official IGG remuneration of Sh2, 900, 000.
The IGG instructed the police to prefer criminal libel charges against News Editor Robert Chrispin Mukasa and Senior Reporter Emmanuel Davies Gyezaho- who are out on Sh500, 000 non-cash police bond.
For starters the offence of criminal libel is archaic and offends the spirit of our constitution which allows freedom of the press, speech and expression. If the IGG strongly feels that she was wronged by the Sunday Monitor article, she can claim damages by filing a civil suit for defamation (civil libel).
Ugandans are entitled, by the provisions of our constitution, to receive information in oder to make informed decisions. That’s why the fourth President of USA James Madison once said that knowledge will forever govern ignorance and a people who mean to be their own governors, must arm themselves with the power knowledge gives. A popular government without popular information or the means of acquiring it, is but a prologue to a farce or a tragedy or perhaps both.
Madison’s statement clearly shows that the man understood the true values and principles of democracy which call for an atmosphere of trust , openness and accountability between leaders and the people they govern.
The right to access information is codified in Article 19 of the Universal Declaration of Human Rights adopted by the UN General Assembly resolution ob December 1948. Similarly Article 19 of the International Covenant on Civil and Political Rights which came into force on March 23, 1976, to which Uganda is a party, provides that everyone shall have the right to hold opinions without interference.
That everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print , in form of art or through any other media of his choice.
Why then has the government not repealed the obnoxious laws that still exist on our statute books? Why again, should public officers like the IGG, herself a learned judge, hide behind an obsolete piece of legislation – to intimidate and harass journalists?
Perhaps the answer to these questions can be found in Uganda’s abhorrent culture of secretiveness and impunity; where the leaders of this nation at all levels are under an illusion that they are immune or above the provisions of law.
They shameless fear public accountability and scrutiny . They don’t want their actions to be questioned by anyone, least we the ‘lesser mortals’. They will try everything within their means to stifle free speech, to gag the media, civil society, the opposition and even the people they lead.
It’s this culture that breeds intolerance, violence and dictatorship, which ultimately leads to failed states. And who bears the brunt of all this mess-- the ordinary people– you and me. Our misery is in most cases colossal and we have nowhere to run to because most of the institutions that would ensure our very survival are in most cases compromised.
Some of these sacred rights of an individual were well expounded in the Supreme Court case of Charles Onyango Obbo and Andrew Mwenda versus the Attorney General.
The court considered the decision of the Supreme Court of Canada in which Mclachlin J, who wrote the majority judgement rightly observed that tests of free expression frequently involve a contest between the majority view of what is true or right and an unpopular minority view. She however ruled that while a particular content of a person’s speech might “excite popular prejudice” there is no reason to deny it protection.
In other words, if there is any principle of the constitution that more imperatively call for protection, than any other it is the principle of free thought-not free thought for those who agree with us but freedom for thought that we hate.
The writer is a journalist and advocate
msserwanga@gmail.com
Tuesday, December 4, 2007
Uganda sliding freely to climatic tragedy
Uganda sliding freely to climatic tragedy
In rising seal levels and expanding deserts in ravaged rain forest like Mabira and mushrooming slums Uganda, just like the rest of the world, is already experiencing human and environmental degradation with catastrophic ramifications.
It’s only two weeks ago that most low lying areas in and around Kampala city were flooded to un-precendended levels that left at least three people dead. And the situation can only get worse.
The Fourth Assessment of the Intergovernmental Panel on Climate Change (IPCC) states that the impacts of human-induced climate change are likely to be felt in poor countries and poor communities like Uganda first. Uganda has already been listed among the 100 most vulnerable countries whose over a billion people face a bleak future.
And the IPCC is emphatic in its assessment; stressing that human-induced climate change is likely to have the heaviest impact on small low-lying Island and coastal states, African nations, and Asian mega-deltas.
Ironically, the 100 most vulnerable countries have contributed the least to total global carbon emissions with the United States of America, European Union, China and India being the major world polluters.
With well over a billion people in 100 countries faced with a volatile future, the IPCC has warned that this worrying situation, coupled with entrenched poverty, degraded or threatened environments will lead to more frequent natural disasters that could tip the poor nations like Uganda over the edge into chronic famine or forced migration.
The greatest impact of climate change is already being felt on one of the world’s poorest continents - Africa, with unpredictable and unusually harsh weather conditions being felt in most countries including Uganda this year alone.
In Uganda , we don’t need to look else where to understand the causes of the erratic climate changes. Our forests are under severe attack by some of the most imprudent policies and decisions of our national leaders to destroy the forest cover in support of industrialisation.
In Kampala alone, corrupt and short sighted officials have released wetlands and green open spaces for unplanned construction sites.
Human social economic development activities including forces related to population growth, technology lead to increase in the concentration of green house gases (GHG’s) in the atmosphere that greatly affect the global climate.
The Heads of Government of the Commonwealth, who have been in Kampala for Chogm 2007, noted and expressed grave concern about the threat that climate change presents to human security and economic well- being. But is it enough for our leaders to just sit and mourn about a sickening situation without doing much to avert it?
This is not the first time that the Commonwealth leaders and their colleagues in the rest of the world have signed conventions and declarations that remain good on paper- as millions of people continue to suffer under severe climate conditions.
Take a situation of Kampala where slums and low lying areas are submerged whenever it rains leaving thousands of people in hopeless situations.
There is the 1997 Kyoto protocol that expires in four years, the UN Framework Convention on Climate Change (UNFCC); the 1989 Langkawi Declaration on the Environment when the Commonwealth Heads of Government first defined ‘our’ collective concern over serious deterioration of the environment as a threat to the well-being of current and future generation.
While most of these international legal instruments were well intentioned to keep the global environment stable –no serious effort has been made by the governments to enforce them. It’s imperative that threats to the environment be viewed and addressed in a balanced perspective, mindful of the needs to eradicate poverty, provide sustainable development, and enhanced quality of life for all.
The cruel wealth conditions experienced in several parts of the country this year should serve as a wake-up call for our national and local leaders to jealously protect our environment. The inter-generational environmental law principle calls for equity in the exploitation of environmental resources between generations.
The principle demands that the present generation should ensure that the health, diversity and productivity of the environment are maintained for the benefit of the present and future generations.
The writer is a journalist and advocate
msserwanga@gmail.com
0772 43 46 77
In rising seal levels and expanding deserts in ravaged rain forest like Mabira and mushrooming slums Uganda, just like the rest of the world, is already experiencing human and environmental degradation with catastrophic ramifications.
It’s only two weeks ago that most low lying areas in and around Kampala city were flooded to un-precendended levels that left at least three people dead. And the situation can only get worse.
The Fourth Assessment of the Intergovernmental Panel on Climate Change (IPCC) states that the impacts of human-induced climate change are likely to be felt in poor countries and poor communities like Uganda first. Uganda has already been listed among the 100 most vulnerable countries whose over a billion people face a bleak future.
And the IPCC is emphatic in its assessment; stressing that human-induced climate change is likely to have the heaviest impact on small low-lying Island and coastal states, African nations, and Asian mega-deltas.
Ironically, the 100 most vulnerable countries have contributed the least to total global carbon emissions with the United States of America, European Union, China and India being the major world polluters.
With well over a billion people in 100 countries faced with a volatile future, the IPCC has warned that this worrying situation, coupled with entrenched poverty, degraded or threatened environments will lead to more frequent natural disasters that could tip the poor nations like Uganda over the edge into chronic famine or forced migration.
The greatest impact of climate change is already being felt on one of the world’s poorest continents - Africa, with unpredictable and unusually harsh weather conditions being felt in most countries including Uganda this year alone.
In Uganda , we don’t need to look else where to understand the causes of the erratic climate changes. Our forests are under severe attack by some of the most imprudent policies and decisions of our national leaders to destroy the forest cover in support of industrialisation.
In Kampala alone, corrupt and short sighted officials have released wetlands and green open spaces for unplanned construction sites.
Human social economic development activities including forces related to population growth, technology lead to increase in the concentration of green house gases (GHG’s) in the atmosphere that greatly affect the global climate.
The Heads of Government of the Commonwealth, who have been in Kampala for Chogm 2007, noted and expressed grave concern about the threat that climate change presents to human security and economic well- being. But is it enough for our leaders to just sit and mourn about a sickening situation without doing much to avert it?
This is not the first time that the Commonwealth leaders and their colleagues in the rest of the world have signed conventions and declarations that remain good on paper- as millions of people continue to suffer under severe climate conditions.
Take a situation of Kampala where slums and low lying areas are submerged whenever it rains leaving thousands of people in hopeless situations.
There is the 1997 Kyoto protocol that expires in four years, the UN Framework Convention on Climate Change (UNFCC); the 1989 Langkawi Declaration on the Environment when the Commonwealth Heads of Government first defined ‘our’ collective concern over serious deterioration of the environment as a threat to the well-being of current and future generation.
While most of these international legal instruments were well intentioned to keep the global environment stable –no serious effort has been made by the governments to enforce them. It’s imperative that threats to the environment be viewed and addressed in a balanced perspective, mindful of the needs to eradicate poverty, provide sustainable development, and enhanced quality of life for all.
The cruel wealth conditions experienced in several parts of the country this year should serve as a wake-up call for our national and local leaders to jealously protect our environment. The inter-generational environmental law principle calls for equity in the exploitation of environmental resources between generations.
The principle demands that the present generation should ensure that the health, diversity and productivity of the environment are maintained for the benefit of the present and future generations.
The writer is a journalist and advocate
msserwanga@gmail.com
0772 43 46 77
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