FRUIT AND VEGETABLE TRADE IN THE NILE BASIN COUNTRIES

Fruit and vegetable trade in the Nile Basin countries Agricultural production and marketing is key to the development of the Nile Basin Region according to a new report published by M.A. Consulting Group in association with Resource Management And Policy Analysis Institute (REMPAI). The Report titled Analysis of Cross- border Trade in Agricultural Products along selected Corridors of the Nile Basin Region which was produced under the auspices of the Nile Basin Initative Secretariat in Entebbe Uganda. This gives new interesting insights on the potential and challenges of modernizing agricultural production and trade along the Nile Basin corridor. The Nile Basin region comprises of nine member countries, namely: the Democratic Republic of Congo (DRC), Rwanda, Burundi, Uganda, Tanzania, Kenya, Ethiopia, South Sudan, Sudan and Egypt. Over 60 percent of the Nile Basin region’s poor households derive their livelihood primarily from agriculture. For these households, increased agricultural productivity and trade offer the best means of raising income, ensuring adequate food consumption, and accumulating the assets necessary to survive periodic shocks such as droughts and floods. The report which was compiled after a comprehensive research about agricultural production along the Nile Basin Corridor concluded that the region has a broad agro-ecological and economic diversity which, together with a huge population of about 380 million people, offer considerable potential for consumer demand and intra-regional trade. This research was designed to assess and analyse the trade flows for three commodities clusters in five trade corridors: which included fruits and vegetables (Burundi-Rwanda-Uganda-Kenya corridor) among others. The aim of the project was to highlight the opportunities and constraints to trade and their determinants such as types of infrastructure, commodity attributes (e.g. structure and distribution of production and consumption), market structure and policy/regulatory actions. Fruits and vegetable production on the increase in the Nile Basin The study according to REMPAI, established that production of fruits and vegetables in the Nile Basin region has generally experienced an expansion in the last decade due to favourable international prices and changes of consumption behavior/patterns among the working class. This latter factor has contributed to increased cross border trade among the Basin countries. Banana production and consumption areas and directions Uganda Leading in production of Bananas while Kenya is the biggest producer and consumer of Pineapples. Banana production in the Basin is dominated by Uganda, whose 2010 production was above 10 million tons/year, followed by Tanzania which has also been the leading consumer in the Basin. The report shows that in Uganda, the banana producing corridor falls within the major banana production area of Ntungamo/Mbarara. Bananas from this region are exported to Kigali and other towns in Rwanda through Katuna border point. They are also exported to Kenya through Malaba and Busia border points to Kisumu, Eldoret, Nakuru and Nairobi. The other major Banana producing area in Uganda is Bududa (near Bushika) in eastern Uganda. Bananas from this region are exported to Kenya through Lwakhakha and Busia border points to Kitale, Eldoret, Nakuru and finally to Nairobi However, Intraregional trade in bananas and fruits remains subdued largely because of low productivity, subsistence orientation among the smallholders and low levels of value added production. The region recorded the worst performance in merchandise export of bananas with Uganda being its largest exporter of the commodity. Tanzania had the highest average consumption of bananas between 2003 and 2005. It showed an increasing trend in consumption over the years. Burundi is also a relatively big consumer of bananas followed by Egypt. Passion fruits The study further shows that in Kenya the corridor covers major passions fruit producing areas such as Eldoret East and Keiyo North Districts. Passion fruits from this region are exported to Kampala through Malaba and Busia border points. Kenya dominates in the production of passion fruits in the region with an average production of 55,116 metric tons in the last five years. The fruits are mainly exported to Europe though some are consumed in the country and also traded in Uganda and other Nile Basin countries. Kenya is followed by Rwanda at an average production of 13,000 metric tons which is mostly sold within the region. With the high demand for the fruit in the European Union, most farmers are abandoning the production of staple foods like maize in favor of passion fruits. However, a major problem facing passion fruit farmers across the region is an increase in fungal and bacterial diseases, inadequate technical knowledge on crop management and poor post-harvest handling which reduces the quality of the crop. This has forced most growers to stop production altogether. Rwanda has a potential yield of 20-25 tons/ha under normal commercial farming as compared to the current 15 tons/ha. This low productivity is mainly attributed to too many suppliers, supplying too little quantity which results in uncontrolled primary sourcing and lack of coordinated activities, a problem that is common in the Nile Basin countries. With such uncoordinated production and marketing activities it is not known where and when products are harvested and it is difficult to comply with the stringent quality, hygiene and traceability requirements of the European markets. This implies that opportunities for scaling up smallholder production of passion fruits in the region are very limited. Pineapples Kenya according to the report is also the leading producer of pineapples in the region with an average of 61% in the last ten years and is followed by Democratic Republic of Congo with an average production of 26%. Production in Kenya is mainly by large-scale commercial farms with very few small-scale producers. In contrast, pineapple production in Uganda and Rwanda is exclusively done by small-scale farmers. The few small-scale farmers in Kenya are faced with the problem of where to sell the produce because no processor can be licensed other than Delmonte Kenya a subsidiary of Delmonte Royal, USA, because of its monopoly status granted by the Kenya Government. Rwanda has little comparative advantage for large-scale export of pineapples to the European Union, except in small niche markets or in its dried form. The majority of supplier countries ship pineapples to EU markets by sea. DRC and Rwanda have not been able to compete in the EU prices since they do not meet varietal quality and size requirements in that market. The potential of DRC producing and supplying the region with pineapple is largely untapped. However, the report reveals that in terms of small-scale production, DRC leads followed by Uganda which is the leading exporter of pineapples to Kenya which is the leading consumer of pineapples in the Basin. In Uganda, pineapple production has no clearly documented history. Traditionally, the fruit has been grown for home consumption but in the last two decades it assumed commercial importance in some parts of the country; it is now by far the most widely grown commodity in the fruit crop range and value chain. In Uganda, the corridor extends further to cover Kangulumira in Kayunga District which is a leading pineapple producing area. The pineapples are exported to Kenya through Malaba and Busia border towns to consumption towns of Kisumu, Bungoma, Kitale, Eldoret, Nakuru and Nairobi . Kenya has been the leading consumer of pineapples in the region over the years. This is in line with its production of the crop; it is the largest producer of the crop in the region, followed by DRC and Sudan . Women dominate the retail business of fruits and Vegetables in the Nile Basin region The study found that women dominate the retailing businesses of fruits and vegetables in all the markets of the corridor. However brokers are mainly young men in all the markets and transport is mainly done by male youths of 25-35 years since they have the required strength. The production constraints and trade impediments identified in this report are similar across the study commodities and corridors. The Key Production challenges The key production constraints the research notes are lack of certified seeds or planting materials, diseases , lack of storage facilities in the farms, poor roads, expensive inputs such as seeds and fertilizers, lack agro-processing capacity, lack of access to loans, price fluctuations between seasons, and lack of standards leading to legitimization of opportunism by brokers and traders. Key trade impediments among the cross-border traders include poor road and market infrastructure, lack of packaging standards, and lack of storage facilities in the markets. “ The adverse effect of these trade impediments is exacerbated by numerous and persistent tariff and non-tariff barriers which include different levels of taxation (lack of common tariffs on both sides of a particular border); multiple tax collectors who do not issue (genuine) receipts; local taxes instituted at unofficial crossing points, e.g., the local councils‟ barrier points; „facilitation‟ fee (bribery) paid to government officials; and women being subjected to violence, threats and sexual harassment, “ the report notes. Available trade opportunities The study however reveals that despite all the challenges , informal and formal cross border trade in fruits and vegetables , creates employment opportunities to local border communities, for example to work as brokers, retailers and transporters. “ Cross-border trade has been useful in providing income for purchasing food commodities that are not available in a particular country at different times of the year thus improving food security. Trade also offers opportunities for promoting efficient use of Nile water in terms of supporting transport, irrigation and wet agro-processing but the potential is yet to be tapped fully due to lack of equipment, infrastructure and technical skills. Informal and Formal Trade The border with the highest volumes of informal trade for the project commodities was the Uganda-Kenya border especially in the case of bananas, fruits and vegetables. Fruits and vegetables (pineapples, Irish potatoes and bananas) accounting for 3 percent (US$ 5,470,110) of the Cross- Border trade according to the research. Which are the busiest borders for informal and formal agricultural trade Pineapple ,though , had the least value of US$ 1,114,008. Overall, the Uganda and Kenya borders were the most active accounting for about 51 percent of total trade of the study commodities in the selected corridors. This was followed closely by the Uganda/Rwanda border which accounted for 28 percent of cross-border trade. The least active border was between Burundi and Rwanda (1 percent) while Burundi and Sudan had very little or no exports to Tanzania and Uganda, respectively. In all the corridors, informal trade had higher traded volumes than formal trade. This was especially the case along the DRC-Uganda border which recorded 100 percent informal trade for all the commodities, regardless of the direction of flow (whether from Uganda or DRC). Data from the Uganda-South Sudan border showed that trade in vegetables and fruits, which flowed from Uganda to South Sudan, was 100 percent informal. Similarly, key commodities flowing from Uganda to Kenya (i.e. Maize, bananas, and pineapples) were mainly traded informally, recording 57%, 77%, 99% of informal to total trade, respectively. Non-tariff Barriers (NTBs) to Trade The report highlights the following typical NTBs that continue to persist in the Nile Basin despite efforts of the regional economic corporations (RECs) aimed at fast-tracking customs unions and free movement of goods and services. The barrier include, physical barriers (poor road and storage infrastructure, poor market infrastructure, poor customs infrastructure especially along the South Sudan border points, lack of telecommunication services);cumbersome administrative procedures; non-tariff fees and taxes; insecurity and movement restrictions. There is also a problem of lack of harmonization of sanitary requirements and other food safety and quality standards. The report provides estimates of the cost implications for these NTBs for different commodities and the borders where they are most prevalent. The NTBs together with other constraints relating to weak institutional capacity, corruption and recurrent civil strife constitute a major hindrance to formal cross-border trade in the region. Other consequences of these constraints are poor producer motivation resulting from limited market access and remuneration; low agri-business competitiveness due to unreliable supply of locally sourced raw materials; high transaction costs; and poor integration between deficit and surplus markets within the region that lead to inability to effectively manage price volatility. Recommendations The report recommends that the Nile Basin governments direct more resources towards achieving higher crop productivity by increasing use of fertilizer and high yielding seed varieties and by expanding irrigated crop area. Potential Investments The report elaborates on two different categories of potential investments to address the constraints to cross-border trade in the Nile Basin. The first category comprises investments that the Nile Basin Initiative (NBI) Secretariat could prioritize for immediate implementation following pre-feasibility studies, namely improving Lake Victoria water transport and landing sites; Strategic earth dams along the live livestock trade corridors (but serving both agriculture and pastoral needs); Storage for fruits and vegetables located strategically along the borders. The report further calls for the establishment of a Regional agricultural trade training center (administered by the East African Grain Council – EAGC); and wet agro-processing for grains, fruits and livestock.

MINTING MONEY FROM FISH FARMING

Minting money from fish farming Talking to The East Africa Agribusiness Magazine, Dr Balirwa said that there was a lot of potential in the fish industry which last year earned the country 1160M US dollars from only 20,562 tons of fish exports compared to 450m US dollars which was earned from 210,000 tons of coffee exports. “You can clearly see that if the fish industry increased it’s exports to 200,000 tons it would fetch 725M US dollars which is almost double the earnings from the same tonnage of coffee exports.” Balirwa said that the country may be losing between 60M-80M US dollars in illegal fish trade mainly through smuggling of immature fish from Uganda’s water bodies. “Measures should be put in place to stop the illegal fishing and smuggling to help the industry grow and contribute to the economy in a more sustainable manner,” the renowned scientists stated. NaFIRRI which Dr. Balirwa heads is one of the six Public Agricultural Research Institutes of Uganda established by The National Agricultural Research Act 2005. It is charged with conducting basic and applied research of national and strategic importance in capture fisheries, aquaculture, water environment, socio-economics and marketing and information communication management and emerging issues in the fisheries sector. “The institute’s management recognized that the geographical mandate for fisheries is quite large with up to 20% of the country’s surface covered by open water in form of lakes, rivers and wetlands all conducive for both capture and aquaculture fisheries. The Institute’s Scientific Committee analysed the diversity of stakeholder needs and recommended that scientists should incorporate development of policy briefs in their research activities. This approach will enhance uptake of research products through dissemination of non-jargon products that can guide sustainable utilization of the fisheries that have come to be associated with fish exports, livelihoods and the preferred health benefits,” Balirwa explained. The Director noted with concern that fish production predominantly from capture fisheries has drastically declined and the country cannot meet national, regional and international market demands. New innovations Despite its long history dating to the early 1950s, fish farming in Uganda has not developed beyond small subsistence scales. And yet according to the National Development Plan (NDP) and the Development Strategy and Investment Plan (DSIP), fish farming in the country presents immense opportunities for socio-economic development in terms of livelihood, income and employment. In order to deal with this problem, Dr. Balirwa says that NaFIRRI has come up with an Aquaculture ( fish farming) policy brief “ to demystify” the new innovative practice of cage culture by outlining what the practice requires and how an average Ugandan fish farmer can take up profitable commercial fish farming. In comparison to the traditional earthen pond fish farming, cage fish culture (or call it cage fish farming) is a new practice in Uganda. Unlike pond fish farming, cage fish culture relies on artificial structures (the cages) of various sizes that are suspended in a water body such as a lake, river or reservoir. Through USAID support to NaFIRRI, research from pilot Low Volume High Density (LVHD) cage culture studies demonstrated that the practice was environmentally and commercially viable in many water bodies of Uganda. In the policy briefs, recommendations have been made to introduce the use of small (2m X 2m X 2m) to medium –sized ( 5m X 5m X 4.5m) cages that are within the means of an average Ugandan commercial fish farmer. Dr. Stephen Sekiranda, the Program Leader of Innovations and Post Harvest Fisheries at NaFIRRI, noted that cages allow for high density production and are mainly used for ‘fattening’ or raising fish quickly from juveniles to table or market sizes using high quality feeds and that cages can be done in many water bodies in the country. “There are over 160 minor lakes and thousands of communal reservoirs that can be targeted specifically for cage based fish production. We have carried out research which shows that Uganda needs less than 1% of her water surface to produce the amount of fish equivalent in weight to its natural fisheries production potential of 800,000 tons annually. The demand for fish in Uganda and worldwide is increasing due to increasing human population and health concerns. Fish is preferred over beef because of its high quality protein with essential amino acids and fatty acids which lower cholesterol levels in blood and reduce incidences of high blood pressure and heart diseases. According to FAO, the per capita fish consumption should be 15kg but in Uganda, it is 8 kg. According to FAO, 50% of the global wild fish stocks were fully exploited and 25% were over-exploited by the end of the 20th century and yet the human population was increasing and had reached the 6 billion mark. In Uganda, capture fisheries production (fish got from our water bodies) has been declining to the extent that per capital fish consumption is currently only 8kg which is much below that recommended by FAO. With an estimated population of 33 million people, the local demand for fish to meet the FAO requirements is about 500,000tonnes annually. Figures don’t lie: the High Potential for Fish farming According to research carried out by NaFIRRI, Uganda’s raw fish production for international trade is about 200,000 tons annually and the demand from the regional market is about 200,000 tons annually. This means that Uganda needs to produce about 900,000 tons of fish annually to meet its national, regional and international demands. Fish production from capture fisheries and aquaculture is about 400,000 and 100,000 tons annually ,respectively, leaving a deficit in fish supply of about 500,000 tons annually. Capture fisheries have been declining and this source is not expected to produce more fish. If Uganda has to avoid importation of fish, Dr Sekiranda says the only option for increasing fish production is through aquaculture (fish farming) supported by firm efforts to eradicate illegal fishing regimes. Therefore, Government needs to invest in both aquaculture and capture fisheries development, management and research. By Moses Paul Sserwanga Esq. The writer is an advocate, Media and Communications Consultant msserwanga@gmail.com

UNDERSTANDING UGANDA' S CONTROVERSIAL PUBLIC ORDER MANAGEMENT LAW

UNDERSTANDING THE PUBLIC ORDER MANAGEMENT LAW By Moses Sserwanga The Public Order Management Law which was recently enacted by parliament and awaits President Yoweri Museveni’s assent has caused mixed reactions among the public with some arguing that it will curtail civil liberties of Ugandans or narrow down political space while others say it’s a good law to ensure public order and safety. Foreign Affairs Minister Sam Kutesa and State Minister for Internal Affairs James Baba have both described the new Law as an attempt to define the roles of different stakeholders- the police, organisers and participants in public gatherings while taking care of those who might be affected by such meetings. Over 80% of the law was amended by the Parliamentary Legal committee before it was presented to parliament and enacted into law , according to Abdul Katuntu the MP for Bugweri. On 27th May 2008, The Constitutional Court on May 27 2008 in a constitutional petition No. 9/06 of Muwanga Kivumbi vs Attorney General annulled section 32 (2) of the Police Act. Section 32 (2) empowered the Inspector General of Police to prohibit public assemblies or demonstrations where the assemblies or demonstrations posed a likelihood of breach of peace. The learned judges of the Constitutional Court, held in their elaborate ruling that section 32 (2) of the Police Act authorized the police to prohibit assemblies, rallies or demonstrations and this was inconsistent with article 29 (1) (d) of the Constitution which guarantees the enjoyment of the freedom to assemble and demonstrate. The impugned Section provided as follows; “If it comes to the knowledge of the Inspector General that it is intended to convene any assembly or form any procession on any public road or street or at any place or public resort, and the Inspector General has reasonable grounds for believing that the assembly or procession is likely to cause a breach of the peace, the Inspector General may, by notice in writing to the person responsible for convening the assembly or forming of the procession, prohibit the convening of the assembly or forming of the procession”. The Court ruled that the powers given to the police were discretionary, prohibitive and not regulatory. After the court’s annulment of section 32 (2) of the Police Act, it means that the Police no longer has the power to prohibit a procession or assembly. The Court further ruled that if the Police entertained reasonable belief that some disturbance might occur during the assembly, then police should provide security and supervision in anticipation of the disturbances. But its also imperative to understand that while court annulled section 32 (1), section 32 (2) of the same law which gives power to police to regulate the management of assemblies and processions was retained. The learned Attorney General while presenting the law for enactment in parliament argued and rightly so that the individual or public’s right to assemble and to demonstrate as enshrined in Article 29(i) (d) of the Constitution is not absolute, it is qualified. The right is qualified in a sense that it must be enjoyed “peacefully and unarmed”. which means that this right to be enjoyed the above provision of demonstrating peacefully and unarmed should be observed. Article 212 of the Constitution gives the Uganda Police Force the following mandate; to protect life and property; to preserve law and order; to prevent and detect crime; and to co-operate with civilian authority and other security organs established under the Constitution and with the population generally. SO what does the new law entail The objective of the law is to regulate public meetings, to provide for the duties and responsibilities of the Police, organizers of public meetings and participants. Regulate is defined in the law to mean ensuring that conduct or behavior conforms to the requirements of the Constitution and the law. The law also lays out measures aimed at safeguarding public order without compromising the principles of democracy, freedom of association or assembly and freedom of speech. It is the constitutional duty of the Police to ensure that any person exercising that freedom does so peacefully and unarmed. Article 43 of the Constitution provides a general limitation on the fundamental and other human rights and freedoms in the Constitution. It provides as follows: that the enjoyment of the rights and freedoms prescribed in this Chapter, no person shall prejudice the fundamental or other human rights and freedoms of others or the public interest. The constitution further provides that Public interest shall not permit;- political persecution; detention without trial; any limitation of the enjoyment of the rights and freedoms prescribed by this Chapter beyond what is acceptable and demonstrably justifiable in a free and democratic society, or what is provided in this Constitution”. The framers of our Constitution therefore envisaged the need to have a balance between the enjoyment of one’s rights and freedoms and not prejudicing the rights and freedoms of others and the general public interest. Notice of public meeting in sections 2 and 7 In order to regulate public meetings, the law provides for an organizer of a public meeting to notify the IGP or an authorized officer of the intention to hold a meeting at least 3 days before the proposed date of the meeting. The debate on notification in parliament was between 7 days by the government side while the opposition proposed instant notification. After debate both sides agreed to 3 days notice as a compromised position. According to the law an organizer of a meeting means any person or his or her agent in charge of calling the public meeting. A public meeting is defined as a gathering, assembly, procession or demonstration of persons in or on any public place or premises held for the purposes of discussing, acting upon, petitioning or expressing views on a matter of public interest. The public interest includes anything in which the public or a section of the public has a stake or is concerned about. The essential elements in regulating public meetings are the place which should be public and the purpose for which the meeting is being held. The law thus exempts social, cultural and religious gatherings and meetings of members of regulated bodies. The following meetings are also exempted from the requirements of giving notice: meetings of organs of a political party or organization convened in accordance with the Constitution of the party or organization and held exclusively to discuss the affairs of the party or organization Other meets exempted from getting permission from police are meetings convened by a group, body or leader of a group or body at the ordinary place of business of that body, group or leader or any other place which is not a public place in the course of the lawful business of the group, body or leader. Requirements for the notice, the notice required to be given by an organizer should include: the name and address of the organizer. the proposed date and time of the public meeting which should be after 7.00 a.m and not beyond 6.00 p.m. Others requirements are the proposed site (venue) of the meeting, the estimated number of persons expected at the meeting, the purpose of the meeting, indication of the consent of the owner of the venue, where applicable, and any other relevant information. Notification by authorized officer under section 8 There some legal minds who have argued that section 8 of the new law restores powers of police to ‘prohibit’ gatherings and yet such powers were annulled by the Constitutional Court ruling refered to earlier in this article. So, what does section 8 provide? The law requires the organizer of the meeting/demonstration to give notice to Police specifying the dates, the time and venue of the public meeting. The Police has no authority to accept or reject the notice. If however the Police has renewed previous notice from another body indicating that they would hold another meeting in the same place, date and time, then the law allows Police to notify the later organizer that the place is already booked so that, in the interest of security, to reschedule or find another day or venue. So does this provision give police a leeway to say stop an opposition gathering by giving flimsy reasons that the venue was booked or unsuatble for a meeting because either it is a market place, business centre, hospital, school I think we cant say for certain and maybe this is an area if applied wrongly the affected persons can petition court. The law provides an appeal mechanism for a person aggrieved by the notification of the authorized officer. The appeal may be made against the notification to a Magistrate in the area where the meeting was scheduled. Spontaneous meetings under section 9 The law provides that spontaneous public meetings may be held without the requirement of notifying the authorized officer. A spontaneous meeting is defined as an unplanned, unscheduled or unintended public meeting. For instance if a member of parliament visits his or her constituency and people gather around him, and he is compelled to address them then in such a situation he may not notify the police because the gathering is spontaneous. Duties of the Police section 10 In order to protect the persons exercising their rights or freedoms to assemble or associate and the general public, the law provides for the following duties on the police: to provide security and safety for both the participants and other members of the public affected by the meeting; to ensure fairness and equal treatment of all parties by giving consistent responses to organizers of public meetings. Other duties are to carry out risk assessment on all factors before the public meeting; to identify an appropriate traffic plan to allow the flow of both vehicles and human traffic; to direct traffic and the routes to and from the event to prevent obstruction of pedestrians, traffic or lawful business; to disperse defiant or unruly persons in order to prevent violence, restore order and preserve peace. The writer is an advocate of the High Court of Uganda and a Communications ,Media consultant msserwanga@gmail.com

Access to Justice:NEW SENTENCING GUIDELINES A LITIMUS TEST FOR UGANDA’S JUDICIAL OFFICERS

Access to Justice: NEW SENTENCING GUIDELINES A LITIMUS TEST FOR UGANDA’S JUDICIAL OFFICERS For some time now in Uganda, there is been a general public out-cry about the wide disparities in sentences passed by judicial officers against convicted persons. This has meant that the sentencing process doesn’t lead to justice for the victim, the accused and the public. Most sentences passed by judicial officials have ended up being open ended , unrealistic, inconsistent and left to the discretion of court. The public has hitherto had little or no direct in-put or participation in sentencing to allow court get the feeling of the community as regards the seriousness of the offence. And in order to address the disparities in sentences, the Judiciary has now developed sentencing guidelines the first of the kind in East Africa . The new sentencing guidelines according to Uganda’s Principal Judge Yorokamu Bamwine, were prepared under the instructions of the Chief Justice, Benjamin Odoki to provide principles and guidelines to be applied by courts in sentencing . For the start, there will be sentencing guidelines for 10 offences which include , murder, manslaughter, defilement, robbery , corruption related offences, obtaining money by false pretences, theft, criminal trespass, doing grievous bodily harm and assault. Mr. Bamwine explains that the development of the guidelines will continue to cover all offences under the Penal Code. With these new guidelines ,its our hope that we shall have sentences that are humane, predictable , uniform and effective. There is need to train all actors like the police, advocates, the probation and social welfare officers and the general public to under and participate in the process of finding the appropriate sentence for a convicted person. He said that with the guidelines in place, plea bargaining will be encouraged , courts will be deducting the period spent on remand and that suspects will be making informed decisions as to whether to plead guilty or not since the sentence ranges are pre-determined. Mr.Andrew Khaukha who is a member of the Sentencing Secretariat at the Judiciary, explains that the guidelines are guidance in the exercise of judicial discretion which judicial officers enjoy in the administration of justice and are by no means meant to fetter that discretion in any way because it (the discretion) is derived from the Constitution. Khaukkha says that the guidelines should, therefore, only be understood as ‘guidelines’ for judicial officers when assessing appropriate punishment to impose. Circumstances, nature of offence and a host of other factors will no doubt continue to influence the type of sentence handed out to convicted persons. Dr Katja Kerschbaumer the Senior Advisor on Good Governance (Danida) says that although sentencing is a duty that vests in the courts of law, it is a function that must be exercised with a full sense of responsibility and accountability. Therefore, if the judicial officers play their balancing act of determining what is right and wrong, justice will be seen to be done. Extreme leniency or severity of sentence cannot be in the interests of any society. This means, therefore, that a sentence of the court must, by and large, serve the interests of the community, befit the offence and give the offender his due desserts for doing that what right thinking members of society may frown upon. Chief Justice Odoki says that a sentence of the Court must neither be revengeful, nor be so excessive as to induce a sense of shock or be so lenient as to amount to sheer travesty of justice and must not be overly inappropriate. “judicial officers should always analytically consider all material facts with all care, and give full and clear reasons for any sentence imposed.,” he added . Odoki states that this practice is good for the sake of accountability to the public and also for the benefit of the offender. He further states that the public deserves protection of the courts against the criminal elements and therefore, punitive and robust sentences are justified for serious, heinous or cruel offences and that in deserving cases, petty offenders deserve appropriate sentences that reform them towards the righteous paths of law abiding citizens. In light of this , the issuance of the sentencing guidelines by the chief Justice under a practice direction as provided under Article 133 of the Constitution ,will lead to sentences not being arbitrary or solely intended to appease the victims Although the guidelines promote a consideration of all mitigating and aggravating circumstances, its impact on the victim and society should also be considered. The judiciary is now conducting numerous training sessions for judges, magistrates, advocates, prosecutors , police and probation officers on how to apply the new sentencing guidelines. The writer is an Advocate of the high Court. He is also a Media and Communications Consultant. msserwanga@gmail.com

TO HAVE OR NOT TO HAVE A SHIELD LAW IN UGANDA

TO HAVE OR NOT TO HAVE A SHIELD LAW IN UGANDA MOSES SSERWANGA delves into the tricky question of whether or not Uganda should enact a Shield Law to protect journalists from disclosing sources. It is a complex issue given the loose definition of a journalist, and after effects of the phone hacking scandal in the UK. They have always been easy allies- the journalists and their sources of information. But this privileged relationship is increasingly being challenged by third parties including the state and its agents, raising the pertinent question whether a ‘shield law’ should be introduced to Uganda’s media industry. A shield law can be defined as the law which affords news reporters the privilege to protect their sources. But the privilege must be balanced against a variety of competing government interests such as the right of the government to apprehend criminals and to prevent the impairment of investigations. Still, most states have enacted shield laws, based on the right to access information which guarantee the freedom of the press as provided for in the Bill of Rights In the case of Uganda, this is in Chapter Four of the Uganda constitution. Now, more than ever before, many senior media practitioners interviewed for this paper agreed on the need to accelerate advocacy for parliament to pass a shield law that protects journalists and their sources. With this law in place, industry players argue that journalists will effectively play their traditional and democratic watchdog role without being compelled to reveal their sources of information . David Ouma Balikowa, veteran editor and media consultant makes the case for a shield law to protect journalists and their sources from being prosecuted. “Much as we have a Whistle Blower law that protects people who volunteer information in the public interest, it should be noted that not all whistle blowers are sources of information. Journalists’ sources go beyond whistle blowing. The shield law should be distinct from the Whistle Blowers law; sources of information must be determined and well defined,” he argues. Balikowa posits that journalists should only be compelled to disclose their sources of information by courts of law upon provision of hard evidence that, by doing so, national security interests will be protected. John Kakande, a senior editor at the Vision Group and Margret Sentamu -Masagazi, Executive Director Uganda Media Women’s Association, echo Balikoowa’s views, adding that that there was need for a national dialogue to discuss the enactment of a law to protect journalists and their sources. Their argument is that such a law would ensure public accountability and good governance. The reporters’ privilege not to reveal sources is premised partly on the provisions of Uganda Constitution of 1995, Article 29 which guarantees the public free access to information that is in the hands of government and its agents. The enabling law, The Access to Information Act was operationalised in 2012 after the President assented to it. In other words, free access to information and press freedom -can only be upheld when journalists are protected to access information even from confidential sources in a national effort to provide accurate information for the public to make informed decisions. “This is a constitutional requirement which must be protected,” says, Haruna Kanabi , Executive Secretary of the Independent Media Council of Uganda.( IMCU). There is a provision in Section 38 of the Press and Journalists’ Act that forbids journalists from disclosing their sources except when instructed by a court of competent jurisdiction. This, however, is only a prohibition and does not amount to protection of journalists’ sources. On the other hand, those who are challenging this long held journalists’ professional privilege not to disclose their sources, argue that with the liberalization of broadcasting that led to the proliferation of electronic media outlets, the profession has over the last two decades ,attracted many practitioners with limited or no professional knowledge. This shortage of professionalism has prompted media critics within the public to question whether legal protection should be applied in an omnibus manner, even to abusive and unprofessional journalists. There is also the emergence of the power dynamics between journalists and their sources where the professional high standards of objectivity and independence is being eroded by the powerful , dominant sources of information. As argued by scholars such as Terence Johnson in his book Professions and Power (1972), journalism as a profession loses its autonomy to the forces (read sources) on which journalists depend for information. This argument has been amplified by the recent developments in Britain where reporters attached to the then British tabloid, News of the World, misused the news reporters privilege to protect sources. The paper’s journalists and editors used crude methods including tapping phones of subjects, and at times paid huge amounts to police to obtain information about individuals to use as exclusive story content. These journalists invaded people’s privacy but could not divulge sources of information citing the long held tradition of not revealing sources. It should be noted that the News of the World soon folded following a public outcry that led to a landmark parliamentary inquiry into the scandal. Lord Justice Leveson, who led an inquiry in this public scandal has since released a report in which he states thus: “ There have been too many times when, chasing the story, parts of the press have acted as if its own code, which it wrote, simply did not exist. This has caused real hardship and, on occasion, wreaked havoc with the lives of innocent people whose rights and liberties have been disdained.” Leveson has gone ahead to question the ‘blanket’ privilege of news reporters to protect their sources and recommended for the introduction of a new press law to establish a new regulator with statutory backstop. And yet, the professional misdemeanor, where journalists hide behind the privilege to protect sources, to distort facts , blackmail or worse still extort money from the unsuspecting public for selfish purposes is not limited to the UK. Just recently, The Chief Executive Officer, (CEO) , of The New Vision Group, Mr. Robert Kabushenga, has come clean by publically declaring that indeed, there are journalists who engaged in extortion either as blackmail or in return for guaranteeing favorable publicity. He noted that this has now become an industry-wide problem which threatens to destroy the credibility of media institutions in the country. The question then is : Should we really have a shield law enacted in Uganda to protect news reporters privilege not to disclose sources of information? This question can only be answered after an in-depth analysis of the different arguments presented by the various industry scholars in those jurisdictions where shield laws are applied. The nature and rationale of the Shield Law; But for better understanding of the operation of the shield law we can borrow a leaf from the United States of America where there have been more progress in the application of shield laws. Congress in 1975, passed Federal Rule of Evidence 501 concerning privileges including the qualified reporters’ privilege. The “phantom” privilege referred to earlier dates from Branzburg v. Hayes in 1972. A deeply divided US Supreme Court, while ruling against the reporter, seemed to find a basis for a qualified reporter privilege. In his eloquent and prescient dissent Justice Potter Stewart warned that without a privilege the historic independence of the press would be undermined. Justice Stewart reasoned that without the qualified reporter privilege, (qualified in a sense that there should be reasonable limitations imposed by courts of competent jurisdictions), sources of information for the public good would be apprehensive in reaching out to journalists to share the said information. This, Justice Stuart noted, would fundamentally weaken press freedom and the public’s right to access information. A number of problems have arisen, however, concerning the scope and application of this privilege. One such dilemma is determining to whom the privilege applies. It goes back to a question of definitions of whether journalists are professionals to enjoy the trappings of a professional. Unlike other professionals, privileged by scholarship, societal standing and licencing like lawyers and doctors, in Uganda many journalists are not licensed or certified in any manner. Any law that provides a privilege necessarily must define whom it will cover. This is a well-placed caution with strong historical perspectives on the dangers of government defining who is a journalist. Licensing and mandatory membership in press groups have been frequent and convenient ways for government to restrict press freedom. The Press and Journalists Act (2000) does not have a definitive definition of who a journalist is. In other jurisdictions a journalist has been defined as one who communicates via newspaper, is employed by a newspaper, or whose communication is classified as “news.” The other issue which arises is whether books, magazine articles, or pamphlets are encompassed in the definition of a newspaper. Most state statutes also protect television and radio broadcasts, although some limit protection to “news” programs. In addition, some courts have held that documentary films should be included in the scope of the privilege protection. There is also the question of how the term news should be defined. Statutes seldom define the term, and some commentators are not convinced that an adequate definition can be devised. Presumably poetry or works of fiction are not news, but it is a more difficult question when considering sensationalism or gossip. Some legal scholars advocate avoiding consideration of the supposed worth of the communication and making the privilege available to those who generally acquire information for public dissemination. According to John Baptist Wasswa, journalism lecturer at Makerere University, the definition of who is a journalist should encompass professionals who are in the business of publishing information . “And I think this goes beyond journalists. That’s an area which must be agreed upon by the industry players and other stakeholders when developing the shield law. We need to determine the categories of these professionals i.e film producers, playwrights , Djs, etc .Should all these professions involved in providing information be protected?,” he says. Another important issue that arises under state statutes that protect journalist’s sources is whether a “source” can only be a human informant or whether it can include a book, document, tape recording, or photograph. Both Kakande and Sentamu Masagazi argue that sources who should be protected are those who divulge information in the custody of state actors. Again this should be read together with the provisions of the Access to Information Act. Others who should be protected are those sources in vulnerable positions where upon disclosure could lead to their lose of employment. Wasswa makes the point, however, that a proposed shield law should not apply to the editor-reporter relationship. For good journalism to flourish and in order to give the editor a certain level of confidence in a journalist’s story, journalists should disclose their sources to their editors. The onus then lies on the editors not to disclose the journalist’s sources to third parties. The Uganda situation makes the need for more protection for sources even more urgent. Security issues are taking centre stage, and we are witnessing increased government secrecy on matters that should be in the public arena, such as petroleum production agreements. Tony Pederson ,a distinguished media scholar and a Belo Chair in Journalism at Southern Methodist University, states that while shield laws are not necessarily the complete answer to challenges on reporter privilege, this much is certain: “The loss of an aggressive and independent press puts all individual liberties at risk. Even the media bashers and the hard-liners on prosecutorial rights will have to listen at some point. Constitutional government has often been a balancing act, and a reasonable balance is what is needed.” The recent police siege at the Daily Monitor and Red Pepper has compounded the shield law debate. Did the controversial missive by Gen. Sejjusa qualify as a documentary source befitting protection? Is it still a revered source when the author confirms he penned it? Was police looking for the right source? This indeed brings forth a new dimension. As we carry forward this discussion it’s imperative for Uganda’s media fraternity to do a soul searching and determine whether it has employed the ‘sacred’ privilege to protect sources in service of the public good or, for selfish . Otherwise, it won’t be long when third parties will have a just cause to render this benefit redundant. The writer is a an advocate of the High Court of Uganda This paper was first published in the Uganda Media Review Journal msserwanga@gmail.com

HOW LEADERSHIP IN AFRICA CAN BE IMPROVED

How Leadership in Africa can be improved Paper Presented by Moses Paul Sserwanga Media, Communications and Legal Consultant Understanding the problem: To answer the above highlighted question I start by quoting one of Africa’s icons former South Africa President Nelson Madiba Mandela who once stated thus: “ Poverty is not an accident like slavery and apartheid: it's man made and can be removed by actions of human being”. Many of the problems of my country Uganda and Africa in general are man made and that’s why in order for one to advocate solutions to Africa’s problems , it’s imperative to identify some of the underlying factors responsible for the leadership and development challenges that the continent faces today. Dictatorship has led to many civil wars that have caused so much suffering to the Ugandan people since independence in 1962 up-to the early 2000s when Joseph Kony’s Lords Resistance and Allied Democratic Forces, (ADF) armed rebellions where brought to an end by the National army the Uganda Peoples Defence Force (UPDF). With dictatorship, came wide spread corruption, discrimination and disfranchisement of the vulnerable people including women and minority communities; misappropriation of state resources mainly for the benefit of a few people in the ‘privileged’ political class among others. Women who form a critical mass for the development of any given society in this modern era, still play second fiddle due to the male chauvinism which is deeply entrenched in the African traditional systems/settings. Many women in Uganda are not engaged in meaningful economic activity because they are meant to state at home and fend for the family while the men are out on drinking sprees. Thus, women have less civic engagement and lower political participation . Although , Uganda is considered one of Africa’s fast growing economies with an annual economic growth of 7.2% -one of the highest in Sub-Saharan Africa, the country largely relies on foreign aid for much of it’s national budget financial support and the majority of the people are still below the poverty line living on less than one dollar a day. It’s only recently when the donors suspended aid due to widespread corruption that the government has announced that in the coming financial year Uganda will finance its entire budget. One would therefore think that Uganda cannot fund its own development. That’s not the case. The government has got money but like many other African countries, state resources are not spent on priority areas like education, health and infrastructure, instead , money is channeled to finance political patronage and the military. The African leaders spend much of their countries’ resources to develop big armies which they employ to perpetuate themselves in power. This is not a good practice for development to take root . There’s even a challenging of collecting taxes that are due to government because of corruption . Ms. Allen Kagina, the Commissioner General of Uganda Revenue Authority,(URA) has recently acknowledged that Uganda collects only a fraction of its the taxes due to the monster called graft!. And much as Africa is endowed with rich natural resources like the recently discovered oil in western Uganda and neighbouring , DR Congo, Kenya and Tanzania -the Sub-Saharan Africa is home to a third of the world’s poorest people, and six of the top 10 most backward economies in the world. The majority of the poor cannot accesses the resources available for development and the circle of poverty continues. The continent’s economic ability is also being eroded by the illegal capital flight “ hemorrhaging” out of African countries – often in the form of tax evasion and trade imbalances . This is the wanton phenomenon of under development that’s pronounced across much of Africa -a continent with 52 states. WAY FORWARD First and foremost ,the political leadership in African must be held accountable on all the promises they make while assuming office. This can be done through periodical peer reviews which should be set up at all levels of governance to assess the performance of leaders on the continent. The African Peer Review Mechanism that was set up to access the performance of African presidents is a good measure going forward. But much as the African Peer Review penal normally publishes its findings following the assessments it carries out for public accountability purposes , mere publication of its reports without attendant sanctions for poor leadership is simply not good enough. The Peer Review Mechanism should come-up with agreed sanctions to be imposed against those leaders who do not meet the minimum set standards for good leadership. There should be a concerted effort to encourage women to participate in the political processes and take –up leadership positions because it has been proved that once given a chance, women can turn out to be good leaders. Africa is not short of the shining examples of women leaders who are now acclaimed globally. Here in Uganda for instance, the first woman speaker of parliament , Rebecca Kadaga is being hailed for her firm stand to protect and promote the sacred constitutional doctrine of separation of powers among the three arms of government ,the executive , parliament and the judiciary . Elsewhere on the continent, the first woman to be elected president on the African continent, Ellen Johnson Sirleaf of Liberia’s and her counterpart Joyce Banda of Malawi are two other good examples of smart leadership that caters for the interests and development of the common man. Leadership that¬’s tailored at eliminating wastage of state resources for personal aggrandizement is what is need in Africa . Other leaders on the continent should be encouraged to emulate President Banda’s example were she sold off an expensive presidential jet and invested the proceeds in vital sectors such as agriculture , health and industries which directly benefit the people and spur economic growth and development. Leadership on the continent can also be improved by strengthening the various institutions of governance such as parliament , the judiciary ,civil society so that the individual leaders cease to be the law unto themselves. This is why state resources should be deployed to empower people through civic and formal education to demand for what is due to them and hold their leaders accountable. The question of accountability is even more prudent now that several countries have discovered mineral resources and oil within their territories. Much of the proceeds of the African resource boom need to go directly into education, health and nutrition and improving the productive capacities of the poorest citizens to foster economic growth and development . If not, efforts to boost economic growth in a sustainable way will be untenable . The European Union has recently set up a law that will make oil, gas, mining and logging companies declare payments to governments in the countries where they operate. This is a good gesture in a global concerted effort to enforce transparency. On the economic front, African governments should put in place all inclusive economic policies that cater for the interests of all- including the vulnerable groups like women , minorities, and the disabled. Women emancipation programs being implemented in Uganda to empower women economically by extending credit and farm inputs should be show-cased elsewhere on the continent. The private sector should not be left behind either because its the engine of Africa’s economy. Financial institutions like the African Development Bank should be revamped to provide the much needed credit to fuel economic activity and development through the public –private partnership mechanism. African governments should enact laws that will reduce the lead times in doing business on the continent . There’s to much red tape coupled with corrupt tendencies that continue to discourage many foreign investors from doing business and investing in Africa. Uganda is now moving to reduce on this red-tape by creating a conducive investment climate by enacting a friendly legal framework to ease on the length procedures an investor hitherto, had to endure to start-up a business in the country. The rest of Africa should follow this good example. African leaders should leverage and position Africa as a major investment destination in the world in those sectors where it has a comparative advantage such as agriculture and energy. They should also ensure value addition to much of what Africa produces to increase people’s incomes the majority of whom are farmers. Africa needs to invest more in equipment, technology and infrastructure which create jobs for many youths that are coming out of universities and technical colleges . But it’s also imperative that efforts to develop Africa must be carried out in a sustainable manner by taking care of the natural environment for the benefit of the present and future generations . For their part, Africa’s development partners can deliver aid, which will promote good governance, and support civil society to keep their leaders accountable. Aid must be properly used to increase our capacity to produce more income. It is time for a new, fair deal for the poor peoples of Africa; one that gets Africa’s resources deployed for the benefit of all its people- the public good so to speak. ENDS msserwanga@gmail.com

By Moses Sserwanga UNDERSTANDING TRANSITIONAL JUSTICE TO REDRESS LRA'S WAR CRIMES AND OTHER HUMAN RIGHTS VIOLATIONS IN NORTHERN UGANDA Transitional Justice has emerged as one of the key thematic (read theme/subject)areas for the Justice, Law and Order Sector (JLOS) to promote justice and accountability for past human rights violations and war crimes for victims in Uganda’s conflict-affected areas. Our country has witnessed turbulence predating independence, and has since then been grappling with finding lasting solutions to issues of human rights violations , destruction property in war affected areas. Lives were lost, persons disappeared, human rights were abused and violated, children were abducted and people maimed. The future of many children whose life opportunities have been lost remains uncertain; it is only noble to say that the scars of our past vividly haunt us. In order to redress these injustices, the Justice Law and Order Sector, (JLOS) has put in place a Transitional Justice process and mechanisms associated with a society’s attempt to come to terms with a legacy of large-scale past abuses to ensure accountability, serve justice and achieve reconciliation. According to the Transitional Justice technical Advisor at the JLOS Secretariat , Ms. Margaret Ajok, Transitional Justice consists of both judicial and non –judicial processes and mechanisms which include prosecution initiatives, truth seeking and reparation programs. “ Through this system we want to promote justice and accountability for past human rights violations and war crimes. We are going to enhance access to justice and provide basic services for victims in Uganda’s conflict affected areas with emphasis on the rights of vulnerable groups (women and Children),” she says. Ajok explained that the Transitional justice agenda in Uganda was brought on board with the signing of the 2007 Juba Agreement on accountability and reconciliation. “The spirit of the agreement is the need to adopt appropriate justice mechanisms to resolve the two-decade war in Northern Uganda and to promote accountability and reconciliation. The agreement requires that the Government of Uganda adopt appropriate policy framework for the implementation of the terms of the agreement, introduce amendments to the amnesty the law to conform with the agreement and undertake legal proceedings nationally or internationally, “ she stated. In 2008, a Justice Law and Order Sector (JLOS) Transitional Justice Working Group (TJWG) was established to critically think through the practical issues that have to be addressed before transitional justice mechanisms on accountability and reconciliation are institutionalised. The working group consists of individuals from core JLOS institutions selected based on their comparative role in implementing the commitment in the Juba peace agreement in accountability and reconciliation. The working group is divided into the formal criminal jurisdiction, traditional justice, traditional justice truth telling and integrated systems sub - committees in order to expedite the work of the working group to tackle different thematic areas with representatives nominated from the various institutions. These institutions include the Ministry of Justice and Constitutional Affairs (MoJCA), the Judiciary, The Uganda Law Reform Commission (ULRC), the Uganda Police Force, the Directorate of Public Prosecutions (DPP), the Judicial Service Commission (JSC), the Ministry In 2009, the formal justice sub committees undertook consultations on the use of formal criminal prosecutions in addressing impunity with specific regard to the then proposed International Criminal Court (ICC) Bill. The outcome of the study led to proposals for amendment of the Bill which is now law - the International Criminal Court Act, 2010[1]. The Act serves as the legal framework for bringing perpetrators of war atrocities to account for their actions. In 2010, the 15th Annual Government of Uganda – Development Partner Review meeting was held whereby transitional justice featured as an important commitment of the Sector. JLOS has since adopted transitional justice as an important process to deliver justice for conflict affected regions and communities in Uganda through the sector wide approach. Transitional justice is also being incorporated into JLOS strategic investment plan III. In 2011, the sector undertook national consultations on the use of traditional justice and truth telling mechanisms in the promotion of accountability and reconciliation. Findings from the consultations will lead to the development of policy proposals on alternative justice mechanisms, including truth-seeking, traditional justice and reparations. National Transitional Justice Policy: The National Transitional Justice Policy will be developed in accordance with the Juba Agreement on Accountability and Reconciliation (2007). Equally, the views and aspirations of the people who were affected by the conflict are being taken into consideration. The agreement emphasizes victims’ rights and participation with special attention to the situation of women and children who were affected by conflict and promotion of a holistic approach to justice. “The policy will therefore address issues of justice and reconciliation through a number of methods ,including: traditional justice mechanisms, reparations, and social reintegration of conflict affected communities , including amnesty reporters and victims of serious violations. The writer is a human rights lawyer, trainer,development communication/media consultant and advocate of High Court of Uganda