JUDGES CAN"T BE ACTIVISTS FOR HUMAN RIGHTS ABUSES

Last week’s Judicial Roundtable on the Domestication of International instruments registered some startling views from the learned members of the bench who argued that suspects should stay on remand for longer periods without trial.

Apparently ,the justices led by court of Appeal judge , Amos Twinomujuni , were up in arms- criticizing parliament for amending the criminal penal law thus reducing the remand days for capital offenders before they can qualify for automatic bail from 360 to 180 days and 120 to 60 days for minor offenders.

Following these amendments to the Penal code, the right to bail for accused persons has become a controversial issue in judicial circles. Different judges have given different interpretations to the new provisions causing confusion not only within the legal fraternity but among the public as well.

With due respect however, their justices reasoning that the reduced remand period for suspects is a threat to public order and security since thugs and fugitives would have a field day should not go unchallenged.



Although courts of law have interpreted the constitutional right to bail to be discretionary and not an absolute entitlement, this should be read together with article 28 (3) which provides that every person who is accused of a criminal offence shall be presumed to be innocent until proved guilty or until that person has pleaded guilty.

Further still, article 23 of the constitution guarantees the protection to personal liberty – a right so important its only second to the right to life among those provided for in bill of rights provided for in chapter four of our constitution.

The exception to the right to liberty is for purposes of bring a person before court in execution of an order by court or upon reasonable suspicion that the person has committed or is about to commit a criminal offence under the laws of Uganda.

Article 23 also renders redundant the provisions of section 76 of the Magistrates Act which hitherto allowed a magistrate not to release a suspect from custody if its expedient for the protection of the public.

In the constitutional Court case of Uganda (DPP) vs. Dr. Kiiza Besigye, court noted that bail is a constitutional right which is derived from the presumption of innocence until proved guilty by a court of competent jurisdiction.

The constitutional court in this matter pronounced itself on the cardinal principle of constitutional interpretation. Court stated that when interpreting an article or clause of all articles bearing upon a subject matter under discussion, they have to be brought into purview and read or construed together as one whole so as to bring out the greatest effect of the document (constitution).

Bail court reasoned should not be denied mechanically simply because the state wants such orders. The refusal to grant bail shouldn’t be based on mere allegations, the grounds must be substantial.

This is the reason why parliament granted courts the prerogative to exercise their discretion to grant bail in exceptional circumstances as stipulated under section 15 of the Trial on Indictment Act , which include, old age, grave illness , obtaining a certificate of no objection from the DPP, infancy of the accused .

It’s not legally bidding therefore for judges to treat remand as a punishment. Suspects should be allowed to access justice because justice delayed is justice denied and this will always be unconstitutional.

A refusal to grant bail would contradict the suspect’s inherent right of innocence and indirectly suggest that the law presumes the suspect guilty of the offence before he is put to his defence in court. In fact parliament should urgently amend the law to reduce the remand days further.

Suspects should not suffer long remand periods without trial because of government’s inadequacies , incompetence and corruption experienced in the management of criminal cases.

It’s only last week that daily monitor exposed these inadequacies when it quoted a secret police report which indicated that a single detective in police handles 58 instead of 12 criminal cases a year. According to the police repot, crime is growing while state institutions are not responding adequately thereby denying Ugandans justice.

People should only be arrested when there is reasonable proof that they have committed a crime and the state should then expediently put them on trial.

Judges should also be reminded that we live in fragile political environment where flimsy charges are preferred against political opponents or vocal critics government without hard evidence.

This means that all Ugandans including flamboyant military generals are potential suspects or jail birds for that matter. The judiciary is a very important institution in ensuring the respect for human and civil liberties.

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

UGANDA MUST EMBRACE E-GOVERMENT

By Moses Sserwanga
Parliament has this year created more than 20 new districts bringing the number of
the local administrative units to an unprecedented 119.
Uganda is one of the smallest countries in Africa with more districts than any
other country on the continent. Algeria, Sudan and the Democratic Republic of
Congo are the largest countries in Africa but each has less than 60 districts.
DR. Congo has 41 districts, Sudan 54 and Algeria only 34 districts.
This has certainly placed great strain on the limited physical and human
resources with some districts having hardly any competent technocrats to run
them. Another area of our public life that has been affected by the
proliferation of districts in this country, is the coordination of both
policy and institutional structures.
Although there have been efforts to develop and reform the decentralisation
programme with government considering a more advanced approach to public
administration through the E- government project, no tangible- positive results
have been realised that far. The E-government system installed by a Chinese
company Hauwei to help ministries coordinate their activities without
officers necessarily moving places, has not been optimally utilised .
Often the craze for new districts has been driven by political imperatives
without sustained planning to take into account the costs and what it takes to
deliver quality, adequate and timely services to the majority rural poor.
That’s why government should fast track the implementation of the E-government
programme .
E- government is a revolutionary concept that has given public administration a
new meaning in some of the more advanced countries like China. In china
alone ,the E-government model has helped transform local administration -
enabling improved coordination between the central , provincial and local
administrative units .
The successful example of this model can be borrowed from China’s western
mountainous province of Chengdu where a standard service oriented
E-government was created just six years ago and its now serving between 2-3
million people a year.
With this model, the central and provincial governments are in position to
speedily coordinate the operations of 43 ministries at a one stop center . For
instance if you are a foreign investor and you want to set up business in
Chengdu city , you don’t have to run from one ministry to another. All you need
to do is visit the Chengdu E- government service facility with highly
centralised service windows to address almost all people’s needs at reduced
cost and time.
This has created transparency, led to reduction in administrative costs and
red tape-ensuring a good business environment that is the hall mark of china’s
tremendous economic growth. With the e-goverment model the public is in
constant touch with the local administrators to determine public policy and the
pace of social and economic advancement. Public servants are monitored
through CCTV to ensure that they report for duty on time and attend to public
affairs with a professional tenacity that allows the Chinese people to work 24/7.
This approach is also quite significant because its has altered democratic
governance as it traditionally constituted - making nonsense of the quest by
any public servant / politician to make arbitrary decisions without the
approval of the people governed.

It has also opened up space for the leaders at all levels to exercise
creative policy engineering often needed to lift the economy . This can
perhaps explain why china , only this week ,became the second largest
economy in the world effectively overtaking Japan the hitherto, perennial
occupier of the number two position after the United States of America.
Now that our leaders are hell bent at creating as many districts as they can
possibly be, let them at least embrace the E- government model to scale down on
the costs of public administration and provide quality services to the people
in reasonable time.

The writer is a journalist and advocate

MEDICINE AND THE LEGAL CONSENT OF THE UNDER AGE (CHILDREN)

MEDICINE AND THE LEGAL CONSENT OF THE UNDER AGE (CHILDREN)
As the state struggles to marshal resources to meet core components of the right to health ,the majority of Ugandans who live in the country side l walk long distances to get to the nearest health center for medical attention.

And when they finally get there , the quality of services they get from these inadequately manned health centers are deploreable to say the least . These health centers lack medicines and medical implements. The poor suffering rural folks are in most cases left to the mercy of God.

One important development in the law of malpractices among medical practitioners therefore, concerns the direct liability of provider units( read village clinics or health centers) and the medical workers who man them for the failures in their services.

Courts have maintained that even in situations like Uganda where health centers are poorly serviced , in terms of medicines and medical equipment, a doctor or any other health worker has a higher duty to provide a satisfactory standard of care to avoid causing injury to a patient like the case was with Nafuna a baby girl who lost her arm due to a poorly administered injection.

The standard of care which has to be adhered to by all medical practitioners extends even to diagnosis and communication with the patient(s). For instance in medical practice, before a medical worker ventures into diagnosis, he must first get to understand the medical history of a patient.

And the readers of this column will agree that this is not the practice in many of our clinics let alone our major referral hospitals . Doctors and nurses alike , are always in a hurry to diagnosis patients even before knowing the history of the cases brought or refered to them. The doctor's failure to study the a patient's medical history can be fatal. it does not only lead to wrong diagnosis but also wrong prescription and wrong treatment and in a process aggrevates a patient's condition. That ' s why courts have again held medical workers liable if they give a wrong diagnosis which is contrary to acceptable standard practice. In situations where a patient(s) would be entitled to damages.

The intervention of courts in cases of negligence in communication by the medical professionals is also on the rise. As more and more doctors and paramedical workers become involved in a patient ' s treatment, the danger of verbal instructions to such a patient is only too apparent. Errors in the general practitioner ' s letter of referral where say a doctor refers to left leg instead of right leg can so easily lead to an injury of a patient.

In the case of Nafuna another legal issue seems to have emerged. The girl's father didn't consent to decision of the specialised doctor to amputate her harm. The question then is , in life threatening situations where minors are involved, do doctors have to seek consent of parents before carrying out a medical procedure which can like in the case of Nafuna ,lead to permanent disability?

The care of children is governed by the general principles governing professional standards. The law of consent is premised on the assumption that patients will normally be able to take decisions for themselves, but this will often not be the case with children.

In cases where children cannot consent a parent may usually give consent on their behalf. A child or minor according to our constitution is a person below the age of 18 and by implication such a person can not give legal consent. That ' s why even if a 17 year old girl willingly indulges in a sexual relation with a man, the man would still be charged with defilement and he can ' t plead that the 17 year old girl gave consent.

However, for medical purposes, courts have held that the test to be applied is whether the child had ' sufficient understanding and intelligence to enable him or her to understand fully what a doctor has proposed ' .

Understanding fully, therefore requires an appreciation of the consequences of treatment , including possible side effects, and also the anticipated consequences of failure to treat. And the test of maturity established by courts is assessed in respect of each individual child and each separate medical treatment.

An example of who the test of maturity has been applied can be found in one of the decided cases, where a 15 year old boy who was dying of leukaemia expressed his opposition to receiving a blood transfusion . the judge held that he did not appreciate the extent of the fear and distress he would suffer, and consequently did not really understand what he was demanding. He was therefore not competent to give consent.

The overwhelming picture that emerges from this is - that courts are reluctant to allow children to choose to die rather than live and extremely resistant to such decisions where the motivation is religious. And doctors need to seek consent of parents when medical treatment is required as an emergency to save life.

So Nafuna ' s case is arguable since its not clear whether her condition was treated as a case of emergency to save her life by the doctors who amputated her arm. The facts show that the girl ' s father was opposed to the doctor ' s decision to amputate- however is the doctor the girl ' s arm as an emergency to save her life, then he is protected under the law.

Courts have stated that where it would be considered unreasonable in the opinion of most relevant medical experts to withhold the medical care in question, and it does not raise social or moral considerations , then it is permissible to proceed without parental consent and even in the face of parental objection like in the case of Nafuna ' s father.

These legal principles therefore , allow medical practitioners to dispense medicines and treatment when it is done in the interest of the person who cannot consent and permit the health care professionals to judge where those interests lie.

In situations where parents disagree on the issue of consent in cases which are not of an emergency nature, courts have held the medical professional could still be held liable if the proceeded to treat a child. It is also possible that it might amount to negligence if no responsible body of professional opinion would support proceeding without the consent of both parents.

And where parents and children disagree, the law is to the effect that health professionals can only treat the basis of the parental approval. This is because the right to consent to treatment is only lost by parents once the child became competent to consent. The law presumes that parents stand in the best position to attend to the best interests of their children for as long as the case is not of an emergency nature to save the life of a minor.


Moses Paul Sserwanga
Journalists/ advocate

msserwanga@yahoo.com

WHAT LEGACY HAS OBAMA LEFT

The Barrack Obama has been such a  dissapointing Presidency. Apart from taking out Bin Laden what is the other significant achievement has the  Obama presidency registered that  will define is legacy? He is left Africa the way he found it, he has not helped the black communities in America's inter-cities, he has not fixed the problems in Iraq , Lybia, Syria ,Grecee etc; he has not fixed the un-employement problem in America which largely cost his party the presidency, the obamacare is in a shambles. He has left America more divided than he found it and remember he was elected by majority Americans irrespective of race and colour.So generally ,apart from being the first black USA president ,Obama was generally a no show!

TRUMP'S RESOUNDING WIN HAD A LOT TO DO WITH THE OBAMA PRESIDENCY

Idont beleive in polls .there are all cooked up to manipulate voters. But Trump's resounding win has a lot to do with the Obama presidency .Many Americans felt betrayed by the obama adminstration and perhaps that expalins why they didnt get out the black and latino vote as expected . Obama , throughout his presidency tried to please so many by playing safe and ended up eroding the democratic party base which has ultimately cost his party the presidency and both houses of representatives -the congeress and the senate . lessons for our local party strategists and campaign managers- ,never, ever ignore your traditional base or take your supporters for granted the way the clinton campain did by not campaigning in hitherto traditional blue states. For one to win you must always consolidate your base and play to your strength .

GROWING CONFIDENCE IN AGRICULTURAL LENDING

GROWING CONFIDENCE IN AGRICULTURAL LENDING

By Moses Paul Sserwanga

Media/communications Consultant
Advoacte of High Court of Uganda

A new World Bank report “Growing Africa: Unlocking the Potential of Agribusiness,” says that Africa’s farmers and agribusinesses could create a trillion-dollar food market by 2030 if they can expand their access to more capital, electricity, better technology and irrigated land to grow high-value nutritious foods.

The potential of agriculture to reduce poverty and catalyse development in Africa is appealing but the reality to date points to several factors impeding African agribusiness and market development. In Uganda, the Agricultural Business Initiative Trust (aBi Trust[1]) currently in its third year of operation has identified low smallholder agricultural productivity, inadequate agricultural finance, poor marketing strategies and inadequate trade opportunities as factors that are holding back that potential.

This is in addition to inadequate storage facilities and assembling points, limited agro-processing and manufacturing (low value-addition activities), less consultative government policy formulation and policy reversals, poor quality standards of agricultural commodities, and slow pace of agricultural export diversification.

The financing for agriculture in Uganda has improved over the last several years as illustrated by the growing confidence of institutions that have worked with different partners to improve financial services for agribusiness. However, a lot still has to be accomplished.

FINCA Uganda Limited (MDI) was the first licensed Microfinance Deposit-taking Institution (MDI) in 2004; it provides life-changing financial services to Uganda's lowest-income entrepreneurs with the aim of creating jobs, building assets, and improving their standard of living.

In January 2010, FINCA Uganda signed onto the Agribusiness Loan Guarantee Scheme, under aBi Trust.  In its three years of operation, FINCA Uganda’s has registered remarkable overall performance on the scheme standing out in terms of volume and value of loans. It is this performance that formed the basis for raising the MDI’s limit to accommodate its wide scope of financial products. It is important to note that due to a slowdown in the economy and particularly difficult market conditions, 2012 was not a good year for the financial sector. 

The regulated financial services sector faced some challenges that led to a slower than anticipated growth coupled with changes in technology to help improve its efficiency.It specifically recorded a decline in portfolio quality; illustrated by an increase in the ratio of NPA from 1.6 in June 2011 to 3.9 in June 2012, a deterioration that was largely driven by the construction sector.

A positive lending trend, however small, in a sector which is still perceived to be one of the riskiest in the financial services industry has had a positive impact and led to some tangible results. aBi Trust Annual Report 2012 records several success stories that point to change in attitude among financial institutions. This increase in confidence goes hand in hand with some other positive trends such as competitiveness and investment as the following case study that profiles Mr. Willy Oloya illustrates.

A Trader’s Tale

Mr. Willy Oloya is a trader and rice processor with over 22 years ‘experience in the rice trade. A resident of Gulu in Northern Uganda, Willy Oloya has other agricultural interests including maize and oil seeds to a smaller extent though his primary trade is in rice.

Oloya opened his account with FINCA in 2009. At the time he had a 10 ton rice huller machine and wanted to access credit to acquire a 60 ton rice huller machine to build a rice factory. His asset base and profits have since grown from USh 10M to USh 50M. As the demand for rice grew Mr. Oloya quickly recognized that he did not have the capacity to open up more land for the raw material, and that he would have to rely on the farmer communities to produce and supply to him. In order to sustain his growing business Willy has collaborated with several farmer groups, which he has categorized according to the volumes they deliver. In turn, he has linked other commercial farmers to FINCA to access credit to increase productivity.

Trading as M/S NILE SAFARI MILLERS, Oloya reports that the loan has enabled rice production financing at different stages hence increasing rice output and production from 25,000 metric tons (2011)  to 200,000 metric tons (2012) since he works with many more suppliers than those he has linked to the MDI. He currently associates with 2,280 members from 108 farmer groups, located in three Districts of Gulu, Amuru and Nwoya to whom he provides the following services:

         i.            Identifies stage at which they are for most suitable financing needs;

       ii.            Supports their crop selection process, primarily rice which has more stable prices than other cereals e.g. maize;

      iii.            Has a permanent staff to provide farmers with relevant information on the enterprise they are promoting;

     iv.            Hires consultants and Agricultural extension workers to guide farmers on best practices in rice production and post-harvest handling trainings and advice;

       v.            Avails farmers small machinery at a fee to support the land opening process;

     vi.            Provides, at a fee, hulling and storage facilities.

To ensure that he is the farmers’ primary trader, Mr. Oloya has set up buying centers nearer to where the groups are located and contracts farmers on a seasonal commission basis. In addition, he offers farmers other services like planting, weeding, harvesting, storage and marketing. He states that these interventions explain why 99% of the farmers fulfill their commitments to him.

The farmer groups identified by Mr. Oloya are in turn approached by the MDI which trains them three to four times on various aspects of agribusiness - saving, accessing finances and record keeping. It also appraises them for facilities which are sometimes simultaneously done with the training. Finally, the MDI identifies those who are ready for financing either in groups or individually and finances them.

In 2012, 16 groups were identified by Mr. Oloya, out of which the MDI financed 10 groups with 292 members, with the rest being further developed. Out of these groups, five[2] were visited and the findings from the visits are mixed results.

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GROWING CONFIDENCE IN AGRICULTURAL LENDING

GROWING CONFIDENCE IN AGRICULTURAL LENDING

By Moses Paul Sserwanga

Media/communications Consultant
Advoacte of High Court of Uganda

A new World Bank report “Growing Africa: Unlocking the Potential of Agribusiness,” says that Africa’s farmers and agribusinesses could create a trillion-dollar food market by 2030 if they can expand their access to more capital, electricity, better technology and irrigated land to grow high-value nutritious foods.

The potential of agriculture to reduce poverty and catalyse development in Africa is appealing but the reality to date points to several factors impeding African agribusiness and market development. In Uganda, the Agricultural Business Initiative Trust (aBi Trust[1]) currently in its third year of operation has identified low smallholder agricultural productivity, inadequate agricultural finance, poor marketing strategies and inadequate trade opportunities as factors that are holding back that potential.

This is in addition to inadequate storage facilities and assembling points, limited agro-processing and manufacturing (low value-addition activities), less consultative government policy formulation and policy reversals, poor quality standards of agricultural commodities, and slow pace of agricultural export diversification.

The financing for agriculture in Uganda has improved over the last several years as illustrated by the growing confidence of institutions that have worked with different partners to improve financial services for agribusiness. However, a lot still has to be accomplished.

FINCA Uganda Limited (MDI) was the first licensed Microfinance Deposit-taking Institution (MDI) in 2004; it provides life-changing financial services to Uganda's lowest-income entrepreneurs with the aim of creating jobs, building assets, and improving their standard of living.

In January 2010, FINCA Uganda signed onto the Agribusiness Loan Guarantee Scheme, under aBi Trust.  In its three years of operation, FINCA Uganda’s has registered remarkable overall performance on the scheme standing out in terms of volume and value of loans. It is this performance that formed the basis for raising the MDI’s limit to accommodate its wide scope of financial products. It is important to note that due to a slowdown in the economy and particularly difficult market conditions, 2012 was not a good year for the financial sector. 

The regulated financial services sector faced some challenges that led to a slower than anticipated growth coupled with changes in technology to help improve its efficiency.It specifically recorded a decline in portfolio quality; illustrated by an increase in the ratio of NPA from 1.6 in June 2011 to 3.9 in June 2012, a deterioration that was largely driven by the construction sector.

A positive lending trend, however small, in a sector which is still perceived to be one of the riskiest in the financial services industry has had a positive impact and led to some tangible results. aBi Trust Annual Report 2012 records several success stories that point to change in attitude among financial institutions. This increase in confidence goes hand in hand with some other positive trends such as competitiveness and investment as the following case study that profiles Mr. Willy Oloya illustrates.

A Trader’s Tale

Mr. Willy Oloya is a trader and rice processor with over 22 years ‘experience in the rice trade. A resident of Gulu in Northern Uganda, Willy Oloya has other agricultural interests including maize and oil seeds to a smaller extent though his primary trade is in rice.

Oloya opened his account with FINCA in 2009. At the time he had a 10 ton rice huller machine and wanted to access credit to acquire a 60 ton rice huller machine to build a rice factory. His asset base and profits have since grown from USh 10M to USh 50M. As the demand for rice grew Mr. Oloya quickly recognized that he did not have the capacity to open up more land for the raw material, and that he would have to rely on the farmer communities to produce and supply to him. In order to sustain his growing business Willy has collaborated with several farmer groups, which he has categorized according to the volumes they deliver. In turn, he has linked other commercial farmers to FINCA to access credit to increase productivity.

Trading as M/S NILE SAFARI MILLERS, Oloya reports that the loan has enabled rice production financing at different stages hence increasing rice output and production from 25,000 metric tons (2011)  to 200,000 metric tons (2012) since he works with many more suppliers than those he has linked to the MDI. He currently associates with 2,280 members from 108 farmer groups, located in three Districts of Gulu, Amuru and Nwoya to whom he provides the following services:

         i.            Identifies stage at which they are for most suitable financing needs;

       ii.            Supports their crop selection process, primarily rice which has more stable prices than other cereals e.g. maize;

      iii.            Has a permanent staff to provide farmers with relevant information on the enterprise they are promoting;

     iv.            Hires consultants and Agricultural extension workers to guide farmers on best practices in rice production and post-harvest handling trainings and advice;

       v.            Avails farmers small machinery at a fee to support the land opening process;

     vi.            Provides, at a fee, hulling and storage facilities.

To ensure that he is the farmers’ primary trader, Mr. Oloya has set up buying centers nearer to where the groups are located and contracts farmers on a seasonal commission basis. In addition, he offers farmers other services like planting, weeding, harvesting, storage and marketing. He states that these interventions explain why 99% of the farmers fulfill their commitments to him.

The farmer groups identified by Mr. Oloya are in turn approached by the MDI which trains them three to four times on various aspects of agribusiness - saving, accessing finances and record keeping. It also appraises them for facilities which are sometimes simultaneously done with the training. Finally, the MDI identifies those who are ready for financing either in groups or individually and finances them.

In 2012, 16 groups were identified by Mr. Oloya, out of which the MDI financed 10 groups with 292 members, with the rest being further developed. Out of these groups, five[2] were visited and the findings from the visits are mixed results.

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