Citizens’ Coalition for Electoral Democracy in Uganda (CCEDU) together with the South Western Institute for Policy and Advocacy (SOWIPA) are deploying 30 community election observers to the Ruhaama County by-election to be held on 11th January 2018. Observers will be deployed in the 11 Sub Counties of Ruhaama, including: Ntungamo, Itojo, Nyakyera, Ruhaama, Ruhaama East, Rukoni East, Rukoni West, Kafunjo TC, Rweikiniro, Kitwe TC and Rubobo.
Observers will report on general election administration including opening, polling and closing processes of polling stations; tallying and announcement of results; the conduct of security agencies; the role of media; participation of special interest groups; as well as the immediate aftermath of the by-election. The observation is intended to verify whether the electoral processes adhere to international standards and national legal provisions of conducting credible, free and fair elections. Observers will also pay special attention to any arising good practices that could be replicated in subsequent elections.
The Ruhaama Constituency seat fell vacant after the death of area MP William Beijukye Zinkuratire (NRM) on 4th November 2017.
The by-election has attracted a total of four candidates:
1 Mr. Moses Mugabe Kahima (NRM)
2 Eng. Jackson Mubangizi (Independent)
3 Dr. Penninah Bainomugisha (Independent)
4 Ms. Vastine Orishaba (Independent)
Campaigns for the by-election commenced on 11th December 2017 following a successful nomination of candidates’ exercise conducted by the Electoral Commission. Although campaigns have been largely peaceful, community observers have noted widespread reports of political intimidation especially in Rweikiniro Sub County; instances of voter bribery; isolated incidents of violence as well as cases of candidates holding campaign meetings beyond 6:00pm, which is in contravention of the EC guidelines on campaigning.
Every year comes with its challenges and opportunities. When a year comes to an end, we tend to remember the last moments more. Many highs, many lows; but for Uganda the dying moments of 2017 could easily qualify as dampening. I will tell you why I think so, in a moment; but first, let’s toast to the opportunities well seized as well as the challenges encountered. Challenges are our best friends; they teach us lessons to be better people.
As we toast to a New Year, let’s celebrate life, let’s commiserate with those who lost their dear ones.
At a more professional level, it is just right and fitting that we empathize with our media friends whose resolve to keep Ugandans informed could have either landed them in jail or left them physically and emotionally bruised. Let’s salute the men and women in leadership positions who stood with Uganda amidst the murky political torrents. As we party away a year of scars, wounds, healing and successes, let’s also remember to toast to the men and women in uniform, especially those who did their work dedicatedly with professionalism amidst undue pressures and persuasions. Three cheers for those who opened their hands to warmly receive and help the refugees who fled wars, calamities and other situations from their original home countries.
Let’s pay tribute to all those Ugandans who worked tirelessly to preserve and improve their environment. Let’s acknowledge those men and women who stood against any form of injustices – social, economic or otherwise. Of course, we need to pay special homage to those who fought viciously against the scourge of corruption that has eaten deeply into our society. Let’s not forget to express our invaluable gratitude to those who made a step towards reawakening the value system upon which Ugandan was originally founded (Ubuntu). Let’s pass on our special gratitude to all those who defied odds to create and nurture opportunities for Uganda and Ugandans. Let’s salute all those who put Uganda on the map for good reasons irrespective of field. Three cheers to the men and women who brought life to earth, those who nurtured lives and those who saved lives. Let’s toast to those who produced unadulterated food that fueled our souls and bodies.
Back to my pet subject, for most of the civic groups working on governance issues, 2017 has been yet another tough year. The year ending will be remembered as that of a ‘broken promise’. Advocacy civil society groups continued to bear the brunt of a skeptical regime. Besides implementing their programmes in a highly suspicious atmosphere, civic outfits had to contend with vilification, office break-ins, technological intrusions, unclear security incidents, alongside navigating the unchartered waters of a new regulatory framework for NGOs.
Some voices critical of government policies and actions were scornfully viewed with not-so-much attention paid to the issues they were raising. Independent expository works by researchers, academics, philanthropists and media that were deemed thorny towards government occasionally attracted the unkind eye of the state. Book censorship increasingly became a troubling trend.
An assessment of both 2016 (which was an election year) and 2017 clearly reveals that a lot of energies were expended on bigoted politicking rather than championing socio-economic development. The last quarter of 2017 for instance has seen a lot of attention paid to amending the Constitution to remove the age limits for presidential candidates. Unfortunately, by giving this amendment primacy over other ‘matters of national importance’, government only succeeded in one thing; keeping the country on a political agenda, continuing from 2016, which was an election year. By so doing, government’s moral authority to claim that Ugandans spend a lot of time politicking rather than doing productive work may have been successfully punctured. Ugandans are not the kind of people interested in spending too much time politicking; Ugandans want a corrupt-free society, they want good quality education, they need accessible quality health care; Ugandans want jobs for their children, they want political stability; Ugandans want to feel part and parcel of Uganda; Ugandans want safe-guards that will guarantee peaceful leadership transition at all levels; and most importantly, Ugandans want a Uganda that works for each of them.
The final bend to 2018 harbored clear testaments that the bridge between citizens and the state has either weakened or is now inexistent. As citizens thought they were getting over a litany of broken promises and social contracts, the linchpin between the wanainchi and the state did it again; they broke the hearts of many Ugandans when they removed age limitations for presidential candidates contrary to the wishes of majority of citizens. Like the saying goes, “since hunters have learned to shoot without missing, birds will have no choice but learn to fly without perching”; now, citizens have to inevitably learn to represent their views and aspirations without necessarily going through the ‘middle-men/women’ who have recently handed the citizens a raw deal.
The rough 2017 may have only made citizens and civic actors even stronger. Citizens have to inevitably confront 2018 with hope and resilience. While 2017 may have explicitly demonstrated that citizens are at the periphery, 2018 offers a new opportunity for wanainchi to expand frontiers and ensure they are at the center of their country’s destiny. It is high time that citizens engage new gears to sort the challenges that have affected the country in the previous years. A genuine dialogic approach is worthy exploring. We need to resolve to whine and criticize less, but challenge and act more.
May the New Year inspire a unity of purpose to build the Uganda that works for each one of us. May our choices and resolutions for 2018 reflect our collective hopes rather than fears!
Happy New Year, 2018!
The East African Community’s (EAC) ultimate goal of political federation is being held back by differences over presidential term limits, term durations and age limits in partner states, a member of community’s parliament has said.
Tanzanian representative to the East African Legislative Assembly (EALA), Abdullah Makame, told The Observer on Wednesday that the discrepancies have delayed certain protocols that would have led to faster political integration.
“At the EAC, much as we have protocols of common markets, customs union and others, we have overtime failed to conclude the protocol of good governance. Now, no one seems to care about it anymore,” Makame said on the sidelines of an Eastern Africa civic education conference organised by the Foundation for Human rights Initiative (FHRI) in Entebbe.
When the community first tried to adopt the protocol on good governance, Kenya, Burundi and Tanzania had term limits but Uganda and Rwanda didn’t. Partner countries, as a result, failed to agree on what procedure to adapt for political integration.
Rwanda eventually installed term limits, leaving Uganda as the only country without that essential check. President Museveni has constantly said that the reason he can’t leave power now is because of some things he hasn’t yet accomplished, including political integration of the EAC. Ironically, local politics in Uganda with him at the helm seem to be thwarting this particular wish of his.
In 2005, towards the end of his second and last term, Museveni controversially mobilised parliament using millions to scrap the two-term limit from the Ugandan constitution.
Now, as he is 73 years old and about to clock the 75 year mark beyond which one cannot stand for president of Uganda, Museveni is at it again, pumping billions of shillings into a campaign to have the age limit also scrapped from the constitution.
Museveni now says that term and age limits are technical matters which cannot be left to stand in the way of development.
Shadow minister for regional and foreign affairs, Atkins Katusabe, yesterday agreed that Museveni is the main reason why the region has failed to politically integrate because he is a “regional political liability who makes statements full of deception.”
Katusabe told The Observer that the region cannot integrate well economically before it integrates politically and that Uganda risks being left behind.
“We are the only ones in the region without term limits now and as long as we continue like this, we are not moving ahead. East Africa cannot wait for Uganda. It is moving forward,” Katushabe said.
Makame also said that the length of presidential terms for the different partners states is another factor holding back the good governance protocol given that different countries are proposing different durations, Rwanda last year voted to give President Paul Kagame a seven year term and two more five year terms after that.
In Uganda, Museveni has said on record that the current five year term is too short because “just as you are starting to concentrate on your manifesto, then another election comes in.”
In Tanzania, a lawmaker is proposing presidential terms be extended to save money on elections, a move that may see President John Magufuli stay longer in office and echo steps in other East African nations. As critics fear a drop in appetite for democracy, there is talk of scrapping term limits in Burundi.
Uganda’s minister of East African Affairs, Kirunda Kivejinja, couldn’t be reached for a comment by press time. However, the minister for Information and National Guidance, Frank Tumwebaze, disagreed that term limits are hindering EAC political federation.
Tumwebaze said political federation depends on harmonisation of a good governance framework.
“The good governance protocol whether adopted or not can only make sense if EALA moves to adopt one constitution for all the member states because there are a number of disparities in our constitutions,” Tumwebaze told The Observer yesterday.
He added that because EAC countries are obliged to follow their constitutions first, the good governance protocol, if adopted, will not work in its current formulation.
“It is hard if we still have sovereign states with different constitutions that are backed by different history. Uganda scrapped term limits because of their own reasons,” Tumwebaze said.
Dr Livingstone Ssewanyana, the FHRI executive director, said that besides political efforts, civil society has a role in pushing for a complete union of the EAC basing on universal values of democracy, mutual respect for one another and human rights.
“Civil society has to push for the interests of the people. Look at the issue of the term limits, it is not fair for one country to have it while another doesn’t have it,” Ssewanyana said.
Story Published by The Observer
By Tim Drunkenmölle (Intern in the Research Department at Foundation for Human Rights Initiative)
Jaiman Singh (Student at the University of British Columbia and intern in the Research Department at Foundation for Human Rights Initiative)
Fred Sekindi (Director Research and Advocacy and Lobbying at Foundation for Human Rights Initiative)
The armed usurpation of government in Zimbabwe draws us back to old ways of violent struggles for political power that the continent has rarely witnessed in the last decades. The recent innovation of African leaders has been the manipulation of constitutional orders to retain power. Such manipulations have been justified by the illusion of elections. Thus, in Rwanda, Uganda and the Democratic Republic of Congo, the incumbents have removed constitutional constraints on the presidency arguing that the citizens can vote them out of power, if they choose so. In the case of the Gambia, Yahya Jammeh’s refusal to give up power, after he lost the presidential elections, demonstrates the resolve of the ‘Big Men of Africa’ to hold on to power against the will of the people. All these actions have been declared unconstitutional changes of government by the African Union, yet its responses to these undemocratic acts vary.
Following the end of colonialism, many African countries experienced violent seizures of power through military coups resulting in unquantifiable loss of life. This is despite post-colonial Constitutions providing for elections as the only lawful way of transferring political power. African countries that endured bad governance in the aftermath of colonialism at the hands of African leaders sought to adopt new Constitutions that provide limitations on exercising power. Thus most Constitutions of African countries, adopted in the last 30 years provide limitations on the presidency. However, the continent has witnessed a wave of constitutional disparagements aimed at entrenching power by removing limits of the presidency. In this context the three main challenges to democracy, good governance and stability in post-colonial Africa are military coups, failure to respect and conduct meaningful elections and amendments of Constitutions to embed monarchical rule.
Zimbabwe's President Robert Mugabe
Recognising the instability that these challenges pose to the continent, the African Union adopted the African Charter on Democracy, Good Governance and Elections, 2007. The Charter recognises that the transition of power through a military coup or armed intervention, the overstaying in power by the incumbent government after being voted out of office and the amendment or revision of the Constitution or other legal instruments in a manner that infringes on the principles of democratic change of government as “unconstitutional changes of government”.
The Charter provides for sanctions by the African Union in all above-mentioned cases, however the response by the African Union paints a different picture. The manipulation of the Constitution to maintain power is widely ignored by regional organisations, whereas military coups as well as the prolonging of power are criticized and sanctioned.
Although the military in Zimbabwe has denied orchestrating a military coup, the African Union has responded by, urging the parties to resolve the situation in accordance with the Zimbabwean Constitution as well as the African Charter on Democracy, Elections and Governance and warning the military of the possible sanctions.
Similarly, the Economic Community of West African States (ECOWAS) as well as the African Union intervened resolutely when the former President of the Gambia, Yahya Jammeh, refused to accept the outcome of the presidential elections held on the 1st of December 2016. The African Union Peace and Security Council explicitly pointed to violation of the Charter by Jammeh.
In contrast, the African Union has turned a blind eye to the third method of unconstitutional change of government by means of clasping on to power by manipulating the Constitution, in countries including Burundi, Uganda, Rwanda, and Congo Democratic Republic among others. Sparked by the insatiable hunger to wield continued power, authority and wealth, African leaders, to a large extent, have successfully managed to manipulate their country’s respective constitutions to hold on to political power.
This mode of unconstitutional change of government, however, seems to be the preferred method of unlawfully holding on to power by African leaders. While Africa has rarely witnessed military coups in recent years and the refusal to hand over power by Jammeh amounts to another isolated incident, the continent has witnessed unpopular constitutional amendments in Equatorial Guinea, Gambia, Cameroon, Chad, Gabon and Togo, Burkina Faso, Senegal, Burundi, and in Uganda.
The adoption of ‘constitutional coups’, a term coined by the Human Rights Watch, as a means of retaining power without the use of military or physical force poses the biggest threat to continental stability as well democracy and good governance. Born out the struggle to end colonialism, the objectives of the African Union have now shifted to promoting peace, security, and stability on the continent; democratic principles and institutions, popular participation and good governance; and protect human and peoples' rights, among others. To achieve these aims, it must seek to confront the on-going wave of constitutional manipulation.
 Art.23 of the African Charter on Democracy, Good Governance and Elections, 2007.
 Military Takes to Streets in Zimbabwe but Denies Coup. Daily Monitor 25, 15 Nov. 2017, www.monitor.co.ug/News/World/Military-streets-Zimbabwe-coup-Mugabe/688340-4187384-format-xhtml-s5kwm2/index.html.
 “Statement by the Chairperson of the African Union Commission on the Situation in Zimbabwe.” Statement by the Chairperson of the African Union Commission on the Situation in Zimbabwe | African Union, 15 Nov. 2017, au.int/en/pressreleases/20171115/statement-chairperson-african-union-commission-situation-zimbabwe.
 Kodjo, Tchioffo. “AU Peace and Security Council.” African Union,Peace and Security Department, African Union Peace and Security, www.peaceau.org/en/article/the-647th-meeting-of-the-au-peace-and-security-council-on-the-post-election-situation-in-the-islamic-republic-of-the-gambia.
As the government tightens controls over non-governmental organisations, citing political interference, a leading human rights defender has made the case for self-regulation.
In the face of mounting state pressure, which has seen NGO premises searched by police and bank accounts frozen recently, Dr Livingstone Sewanyana, makes a passionate case for the right to associate, organize and for accountable government.
The executive director at Foundation for Human Rights Initiative has expressed these views in a recently launched book, Comparative Experiences of NGO Regulatory Frameworks: Eastern and Southern Africa.
Dr. Livingstone Sewanyana
Some states have embraced self-regulation, which, according to Sewanyana, is best. A few countries have a hybrid model.
“Most countries around the region have adopted particular models to suit their own circumstances and political contexts,” Sewanyana says.
Ethiopia, Zimbabwe and Uganda have state regulation while Malawi and Kenya operate under hybrid regulation. Countries such as South Africa, Namibia, Botswana, India and Ghana have adopted self-regulation.
“This speaks volumes about their democracy and how they respond to the right of people to organise and associate,” Sewanyana says.
Nicholas Opiyo, the executive director of Chapter Four, said it is no coincidence that countries with questionable ‘democracy’ impose state regulation on NGOs.
“This control of NGOs by the state is an issue of power and space,” said Opiyo, adding, “There is no need to have eight laws governing one sector.”
Richard Ssewakiryanga, executive director, Uganda National NGO Forum, said there is an uneasy relationship between the state and NGOs because government views them as competitors.
“Many NGOs provide services much better than the state,” noted Ssewakiryanga.
He said the number of NGOs has grown from 21 in 1996, to 14,000.
“That space is highly contested. Governments all over the world are wondering how these people [NGOs] out of nowhere claim the space and become a substitute for the state,” Sewanyana said.
This partly explains the police raids on NGO premises, freezing of their accounts and break-ins into their offices, he said.
Uganda’s regulatory framework, despite some improvements in the new NGO Act, 2016, is criticized for undermining public participation.
The need for a stronger civil society has now seen civil society law become a new discipline to be taught at the school of law, Makerere University.
The law school recognizes the contribution of African NGOs in the promotion of democracy and holding governments accountable, according to Prof Christopher Mbaziira, the acting Principal at the law school.
“The problems have risen partly from the regulatory framework,” says Mbaziira.
Sewanyana’s book explores possible reforms that uphold internationally accepted human rights principles. The book investigates these issues within the historical context of NGOs in Africa, as well as a theory of democracy that stresses participation, accountability and respect for individual liberties.
The book concludes that Uganda’s law does not meet these basic requirements. He proposes self-regulation alongside minimal state involvement.
“This model would entail the establishment of an autonomous NGO regulatory authority composed of members selected autonomously by NGOs, ‘decriminalisation’ of NGO activities, reducing the powers of the state-led regulatory model, and increasing the involvement of NGOs…,” Sewanyana said.
This week, state minister for internal affairs, Obiga Kania, told The Observer that regulation is the duty of the state.
He maintains that the NGO Act 2016 and subsidiary regulations were a result of extensive consultations with these very organisations and 1,200 sub-counties.
“I don’t know who Dr Livingstone consulted to arrive at the conclusion he makes in his book but he is entitled to his own opinion. However, for us as government, we extensively consulted the stakeholders before making our decisions,” Kania said.
“With more than 13,000 NGOs, there must be a legal structure to govern their activities,” said Kania, referring to the NGO bureau, which he said has a “team [which] is more modern and interactive. It has eased registration, accountability and the overall operations of NGOs.”
Kania said there was nothing unlawful about the confiscation and freezing of NGO accounts, which he said will be restored after investigations.
“NGOs must be transparent and accountable,” he said.
Two organisations, ActionAid and the Great Lakes Institute for Strategic Studies (GLISS), were raided by police in late September. Computers, cameras and mobile phones, among other items, were confiscated.
On October 3, Bank of Uganda wrote to Standard Chartered bank directing it to freeze the ActionAid bank accounts. Not long afterwards, GLISS’s accounts were also frozen. Both organisations’ field activities have since been paralyzed and staff salaries remain unpaid.
Police said they are investigating the NGOs on suspicion of money laundering. Other circles suggested they had been targeted because they were the channel through which money for political activities opposed to the lifting of presidential age limits was being disbursed.
By Michelle Fowler (Intern at Research Department at Foundation for Human Rights Initiative and student at Pomona College, California, USA)
John Bosco (Intern at the Research Department at Foundation for Human Rights Initiative and student at Nkumba University, Uganda)
- Fred Sekindi (Director Research Advocacy and Lobbying at Foundation for Human Rights Initiative)
Sudanese President Omar al-Bashir was welcomed at Entebbe International Airport, on Monday 13th Novenber, by President Yoweri Museveni commanding deputation of Cabinet Ministers and senior government officials. His two-day state visit of Uganda regarding “a number of issues of mutual importance between the two countries as well as regional matters” has already been met with considerable uproar, including from the International Center for Transitional Justice, who have exclaimed that Uganda is essentially harboring a fugitive.
This unabashed defiance of international law should come as no surprise. On 12 May 2016, al-Bashir was among the heads of states who were invited to attend Museveni’s inauguration for his fifth term as President in Kololo, Uganda. Multiple delegates from North America and Europe who were also in attendance walked out in protest due to al-Bashir’s participation as well as negative remarks about the International Criminal Court made by Museveni.
The International Criminal Court (ICC) issued warrants for the arrest of Omar al-Bashir in 2009 and 2010 due to crimes committed in Darfur, Sudan between 2003 and 2005 that left an estimated 300,000 dead. Article 5 of the Rome Statute gives the Court jurisdiction to try serious crimes of concern to the International community as a whole. Those crimes include crimes of genocide, crimes against humanity, and crimes of aggression.
All member states of the Rome Statute are under an obligation to cooperate with the ICC in arresting any person being indicted by the Court. In 2015, the South African Court of Appeal found that the government of South Africa had an obligation to arrest Bashir during his visit to South Africa to attend the African Union Summit. The International Criminal Court greatly criticized South Africa's failure to comply with the Rome Statute. In a scathing attack, the Court unanimously declared that “by not arresting Omar al-Bashir while he was in the territory of South Africa between 13 and 15 June 2015, South Africa failed to comply with the Court’s request for the arrest and surrender of Omar al-Bashir contrary to the provisions of the statute through preventing the court from exercising its functions and powers under the statue in connection with the criminal proceedings instituted against Bashir.”
In June 2002, Uganda became a signatory to the Rome Statute. More than a year later, in January 2004, it referred the situation in Northern Uganda to the ICC complaining that the Lord’s Resistance Army (LRA) had committed war crimes and crimes against humanity. This referral led to the Court’s indictment of top army commanders of the LRA, including Joseph Kony, Dominic Ongwen, Vincent Ottit, and Okot Odhiambo.
However, Uganda’s relationship with the ICC has soured. In October 2015, Museveni criticized the ICC for targeting African leaders, stating that its indictments within the continent were thinly veiled racism. At the 53rd Independence Anniversary in Gulu, he proclaimed that the ICC should not have tried the Kenyan President Uhuru Kenyatta. Museveni ultimately proposed that a regional court should try perpetrators of crimes against humanity and hear crimes of genocide. Additionally, he stated that the Hague based court is “a biased instrument of post-colonial hegemony” and that the International Community as a whole was useless and selfish. He further proposed that a regional court try international crimes.
Regardless of President Museveni's criticisms of the international system, Uganda has an obligation under international law to arrest Sudanese President Omar al-Bashir.
Under article 86 of the Rome Statute, parties are compelled to cooperate with the court in its investigation and prosecution of crimes within the jurisdiction of the court. Article 85 gives the ICC authority to request the cooperation of states. Indeed, the Court has sought collaboration to arrest al-Bashir. Through its diplomatic channels, Uganda received Bashir’s warrants of arrest. However, since the issuance of al-Bashir’s warrants of arrest, he has visited Uganda twice, and the government of Uganda has failed to comply with the request of the court.
President Museveni’s complete disregard for the ICC ruling is a total violation of International Law. It should be noted that under the Law of Treaty, a state is bound by any treaty it has signed. Under Article 26 of the Vienna Convention on the Law of Treaty, the Principle of pacta sunt servanda obliges states to respect their international obligations. Therefore, Uganda’s failure to arrest Omar al-Bashir is not only a violation of the Rome State but also a total violation of the International Law Principle of pacta sunt servanda.
While President Museveni continues to criticize the ICC, he has used it to prosecute individuals who are fighting to overthrow his government, such as Dominic Ongwen, a former LRA officer. This clearly shows that Museveni values its function and adheres to its legitimacy only when it is in his interest.
Pragmatist will argue that Uganda’s obligation under international law to arrest President Omar al-Bashir is secondary to the perceived benefits of his visits which include the preserve peace and stability in regional, a goal that could ultimately trump concerns from the greater international community. Previously having a contentious relationship dictated by accusations of promoting proxy war in both nations, the leaders of Sudan and Uganda now have a seemingly stable –and lucrative- partnership as two strategic neighbours. For example, Uganda imports goods worth $2.7 million (Shs9.8b) from Sudan, while in turn exporting $301.4m (Shs 1.1 trillion). The danger, however, is these considerations encourage impunity. They send a message to the international community that the most horrific crimes such as genocide can be tolerated.
 “Activists up in arms as Sudan president Omar Bashir starts two day visit in Uganda.” NTV, 13 November 2017.
 Roxanne Escobales, Darfur dead ‘could number 300,000’, The Guardian, 23 April 2008.
 Anita Powell, “ICC: South Africa Failed Obligations by Not Arresting Sudan’s Bashir,” VOA News, 6 July 2017.
 “Museveni blasts ICC over Kenyatta trial,” The New Vision, 9 October 2014.
 Dorothy Nakaweesi, “Bashir visit to cement trade relations with Uganda,” Daily Monitor, 14 November 2017.
By Dr. Fred Sekindi
Ana Relinque López
Does the on-going strike by doctors raise any human rights/constitutional issues?
Uganda’s doctors under their umbrella body, Uganda Medical Association (UMA) have laid down their tools after government failed to respond to their grievances. On 1 November 2017, it was claimed by the Daily Monitor that President Yoweri Museveni reportedly threatened to declare a state of emergency and arrest doctors, if they put down their tools. This on-going strike raises issues of human rights issues and the presidential exercise of constitutional powers.
Article 20(2) of the 1995 Constitution demands that all organs and agencies of Government and all persons must respect, uphold and promote rights provided under therein. This responsibility to promote rights infers an obligation for all persons to intervene to prevent a violation of human rights. Thus, arguably, doctors could be held liable for the deprivation of life as protected under Article 22 of the 1995 Constitution because, they have a duty to intervene to prevent death from occurring. Thus their industrial action must not cause them to neglect their obligation to intervene to prevent the death. This distinguishable individual liability for human rights violation is a Ugandan innovation. International Human rights jurisprudence suggests that human rights are rights that we enjoy against the state and, therefore, only the state may be liable for a human rights violation. In this context, doctors must put arrangements in place to care for their patients.
However, there is a competing right to demonstrate protected under Article 29 (1)(d) of the 1995 Constitution which protects protest marches, press conferences, public and private meetings, counter-demonstrations, ‘sit-ins’, motionless protests etc. Thus, the on-going strike is a human right that is protected by the Constitution.
In assessing the hierarch of these two competing rights, were guided by Articles 43 and 44 of the 1995 Constitution that determines the circumstances under which constitutional rights may be limited. Article 43 indicates that the enjoyment of rights contained in the Constitution shall not prejudice the rights of other or the public interest. Therefore, doctors may not enjoy the right to demonstrate if such enjoyment is not in the public interest or where it infringes the rights of others. This restriction on the enjoyment of rights is unusual in international human right jurisprudence as commonly, a human right is an individual right that may not be competed with other group or personal rights. However, this conceptualisation of human rights is often rejected by relativists as individualistic and western.
Article 44 of the 1995 Constitution declares 4 human rights non-derogable, that is to mean that under no circumstances may these rights be limited. These are the protection against torture inhuman and degrading treatment, freedom from slavery and servitude, the rights to a fair hearing, and the right to an order of habeas corpus.
We may therefore conclude that if the right to demonstrate, such as the on-going doctors’ strike, prejudices the rights of other Ugandans, such as the right to life, and/or is against the public interest, then the state may restrict this right. It is important to note that the public interest here is not restricted to whether the public agrees with the strike but it also includes whether the doctors should adequately be remunerated.
In the circumstances what could the state do?
If claims by the Daily Mirror that the President has threatened to declare a state of emergency are to be believed, Article 110(1) of 1995 Constitution provides that a president may in consultation with the cabinet, issue a proclamation declaring a state of emergency. Article 46 and 48 empowers Parliament and the Uganda Human Rights Commission to closely monitor the state of emergency. It is important to note here that where a state of emergency is declared, the protection of human rights is suspended. This means that the doctors can be detained. The 1995 Constitution under Article 47 provides safeguards for persons detained under the state of emergency that include to be provided within 24 hours of the grounds on which they have been detained, to inform the next of kin or other person nominated by the detainee of the detention and to allow such person to access the detainee within 72 hours of the detention and for a notification of the arrest to be published in the gazette not longer than 30 days of the detention.
In conclusion, while the 1995 Constitution safeguards the doctors’ right to demonstrate, the same document imposes an obligation for doctors not to arbitrary deprive persons of life. The right of the doctors to demonstrate may be restricted if it prejudices rights of others and where its enjoyment is not in the public interest. The president may declare a state of emergency. This means that the protection of human rights will be suspended and doctors may be arrested.
THE REPUBLIC OF UGANDA
IN THE CONSTITUTIONAL COURT OF UGANDA AT KAMPALA CONSTITUTIONAL PETITION NO. 39 OF 2017
1. THE FOUNDATION FOR HUMAN RIGHTS ] INITIATIVE ] PETITIONERS
2. LEGAL AID SERVICE PROVIDERS NETWORK UGANDA ]
1. ATTORNEY GENERAL OF UGANDA ] RESPONDENTS 2. ELECTORAL COMMISSION ]
(Under Articles 137(1), (3) (a) and (b), (4) & (7) of Constitution of Uganda and the Constitutional Court (Petitions and References) Rules, S.I. 91/2005)
The Petitioners are petitioning the Constitutional Court to determine that sections 12 (a) and (b) of the Local Government (Amendment) Act, Act No. 16 of 2015, and the Election Commission guidelines for the LCI and LC II elections are in contravention of and inconsistent with various provisions of the Constitution of the Republic of Uganda which include; Articles 1 (4), 21, 33, 35, 45, 59 (1) (3) and (4), 68 (1) and 79 (1). The Petitioners are further seeking for both an interim and temporary injunction restraining the Attorney General and the Electoral Commission from conducting elections for Local Council Representatives I and II pending the hearing and determination of Constitutional Petition.
Dr Sewanyana, ED FHRI
The Petition therefore seeks the following DECLARATIONS from court;
(a) THAT sections 12 (a) and (b) of the Local Government (Amendment) Act, Act No. 16 of 2015, in providing for elections of village or cell council and parish ward council by means of lining up behind a nominated candidate, their representatives, portraits or symbol is in contravention of and inconsistent with articles 1 (4), 21, 33, 35, 45, 59 (1) (3) and (4), 68 (1) and 79 (1) of the Constitution of the Republic of Uganda and thus null and void;
(b) THAT any actions conducted under the impugned provisions of section 12 (a) and (b) of the Local Government (Amendment) Act, Act No. 16 of 2015 are void ab initio and of no legal effect;
(c) THAT the Court hereby grants and issues such consequential Orders as follow from and are necessary to give effect to the Declarations in (a) and (b) above.
The on-going strike at the Office of the Directorat of Public Prosecution requires assessing the constitutional protection of the rights of suspects of crime being held at police stations, because they cannot be brought before a court law. All over the country, suspects are being held in police cells for longer than the 48 hour as mandated by the Constitution of Republic of Uganda, 1995 for various reasons one. One of the reasons cited by the police is that they need Sate Attorneys to “sanction” the file before suspects are brought before the court. Is this the position of the law?
Decoding the 48-hour rule: Article 23 (4) of the Constitution of Uganda allows for the detention of a suspect for a maximum of 48 hours for the purposes of:
a) Bringing him or her before a court in execution of an order of a court; or
b) Upon reasonable suspicion of his or her having committed or being about to commit a criminal offence under the laws of Uganda;
Before the expiration of 48 hours of detention, Uganda Police Force has the following legal alternatives:
a) Release of the suspect if the investigation is completed and the individual is found to be innocent;
b) Release of the suspect on police bond if the investigation is on-going;
IGP, Kale Kayihura
Directorate of Public Prosecution (DPP) is empowered by Article 120 (2) (b) “to institute criminal proceedings against person or any authority in any court with competent jurisdiction other than the court martial”. Does this provision prohibit police from bringing suspects before the court of law if the case is not sanctioned by the DPP?
The answer the this question is found in Article 20 (1) that demands all organs of government and all persons must respect rights and freedoms guaranteed by the Constitution and Article 28 (1) that protects the right to a speed trial. Thus while the Directorate of Public Prosecution is vested with the constitutional mandate to initiate criminal proceedings, it has an overriding obligation to respect human right- Article 20 (1) and to safeguarded the right to a speedy trial – Article 28 (1). In this context, “sanction a file” is an administrative process that cannot trump constitutional rights.
Thus the police may bring a person before a Magistrate even where the file has not been “sanctioned” by the DPP. This position is rather reinforced by Article 23 (6) (b) and (c) authorises a Magistrate to remand a suspect for 60 and 180 days respectively for minor and capital offence respectively. The purpose of these provisions is to allow the state (police and DPP) to carry out investigations.
We can therefore conclude that our laws do not prohibit the police from bringing a suspect before a court of law where the rights of the suspect are at stake such as detention beyond 48 hours. While the DPP is has the constitutional mandate to instigate criminal proceedings, “sanctioning” of a file is an administrative process that is inferior to the constitutional obligation to respect human right- Article 20 (1) and to safeguarded the right to a speedy trial – Article 28 (1).
· British High Commission/Foreign and Commonwealth Office
· Danish Family Planning Association(DFPA)
· Danish Refugee Council(DRC)
· Democratic Governance Facility(DGF)
· European Union(EU)
· French Embassy
· National Endowment for Democracy (NED)
· UN Office of the High Commissioner for Human Rights (OHCHR)
· USAID/National Democratic Institute
· USAID/Freedom House
· Penal Reform International (PRI)
· International Centre for Non-Profit Law (ICNL)