The Rule of law protects both the weak and powerful.

The elephant is a very huge animal. It once suggested that there was no need for a bridge that all animals had spent enormous energy to construct so that they could cross to the other side of the jungle to hunt. Mr. Elephant tall as he is thought he did not need the bridge, and so for him, there was no need for the bridge. It didn’t matter to him that others weren’t his size and therefore needed a bridge.

Unfortunately Mr. Elephant lost both hind legs and could only crawl with the help of others. The bridge finally became relevant, and the only means Mr Elephant could cross to the other side of the jungle.

As I write, a man who was once powerful and untouchable will probably apply for bail. He will desire that the court martial is independent. Appearing before a committee of parliament not so long ago, Kale Kayihura strongly argued for the abolition of the 48 hour rule, because it was an inconvenience to police investigations.

Because we are humans, when we are satisfied, we often don’t imagine how the hungry feel and we sometimes call them greedy when we see them yearning for food. When one is at the helm of power, they think that the rule of law is an inconvenience to them or that is not necessary altogether. What they don’t think about is that someday, they too will need the protection of the system they once abused or even weakened themselves.

I would imagine if Iddi Amin had been arrested in Uganda, he wouldn’t like to be killed the way he killed others. Perhaps he could have regretted why there was no constitution to safeguard his rights to a fair trail. Because he was at the very top, the system was not necessary.

Our dear president thinks there should be no bail and police bond for “killers”. This statement, which I will take as a presidential directive because of the tone in which it was made, has many flaws. It presumes that before a person is found guilty by courts, he is already guilty (killers as opposed to suspects).

This is contrary to a near universal principle of presumption of innocence that is central to a fair criminal justice system. The right to apply for bail is premised on the presumption that the suspect is innocent until he or she is proved guilty or pleads guilty.

It is critical that society understands the import of this principle: first, crimes are often committed discretely with no direct evidence. Concluding that someone is guilty before enough evidence is adduced against them risks jailing innocent people.  Our criminal justice system is not perfect but there must be a higher standard that minimises the risk of jailing innocent persons. That is why the standard of proof is beyond reasonable doubt as opposed to balance of probability applicable in civil matters. Second, people can malign others either because of grievances or hatred. Their evidence must be subjected to a scrutinious court process to ascertain it’s truthfulness.

Third, not all persons who commit crime do it out of their own will. Some are mentally ill and they don’t have control of their mental faculties. Some act out of provocation or self-defence and so their crime may be reduced to lower category crimes with a less sentence, for example manslaughter instead of murder. That is why we condemn mob justice for on sight crimes.

Because of these, article 28 of our constitution embedded principles that should ensure a fair trial. No matter the offence, every person suspected of an offence should go through this system of fair and transparent trial. The heart of criminal justice is hinged on the idea that it is better to let a hundred criminals free than convict one innocent person.

The recent spate of criminality is indeed frustrating, but we cannot undermine the very principles our ancestors fought hard to restore. None of us would prefer a return to Amini’s criminal justice system. Even Gen Kayihura who once abused this system for example by arresting suspects in court premises immediately after their release on bail, deserves to be tried fairly.

I know he understands now than before, the importance of the system based on rule of law. I know he might need bail. I know those that clapped for our dear president when he made the unfortunate remarks might someday need bail- maybe  not because they are criminals but maybe they have been wrongly identified or falsely  accused or they are political prisoners or for minor traffic breaches.

The point is that the system of rule of law, and respect for constitutionality guaranteed rights protects all of us- both the weak and strong, those in power and the governed. We can deter crime and ensure that constitutional rights are respected. We can do both. We achieve higher by holding ourselves to the highest standard.

Birungi Denis is a lawyer, bdeniso4@gmail.com

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KAMPALA’S TRAFFIC CHAOS CAN BE AVOIDED BY “DEKAMPALARISATION”

 

For every person living or working in or around Kampala, traffic jam is a serious concern. The worries of missing appointments or arriving late for work affect every Kampala dweller. The costs of congestion including reduced productivity are well known and need not be emphasized.

Traffic congestion is not peculiar to Kampala. Almost every modern city faces the challenge of traffic congestion. From New York to Beijing, to London, to Johannesburg and to Nairobi traffic congestion is a big challenge for urban planners.

Research shows that constructing more roads or widening existing ones doesn’t solve the problem of traffic congestion. It instead leads to more driving.

While traffic congestion is a global challenge for most urban centres, Kampala’s present chaos could have been avoided if planers had taken a holistic approach to address some of the root causes:

First, Uganda suffers from the “Kampalarisation” of everything. Unlike other countries where several cities are developed for commerce, trade and social services; that’s not the case in Uganda. Almost everything – commerce, quality services, airport, headquarters of government and private sector, reputable universities etc are only accessible either in the capital city or the metropolitan area comprising of districts surrounding Kampala.

According to findings by USAID published in November 2017, Kampala and the South central region account for an outsized portion of the national GDP.

When everything is concentrated in one place, the automatic result is that everyone will come over to look for opportunity and this will cause congestion. So the question on the minds of policy makers should be: how to create opportunities in various regions of the country so that people can access opportunities and services in those regional hubs without having to come to Kampala. This entails a deliberate government policy to develop regional urban areas as commercial hubs through directing investment in those areas. Once regional balance is attained, a trader who travels from Nebbi to Kampala to purchase merchandise for resale need not do so if the same can be obtained in Arua while incurring lower transport costs.

In neighboring Kenya, besides Nairobi, there are other cities where citizens can find opportunities including trade and commerce without necessarily going to the capital. Cities such as Mombasa, Kisumu, Eldoret, Naivasha, Nakuru and Lamu are self-sufficient in terms of commerce and infrastructure such as airports. It is possible for Uganda to develop municipalities such as Arua, Gulu, Mbarara, Soroti, Jinja and Mbale into regional commercial hubs.

Headquarters of some government and private entities should be relocated to regional urban municipalities which should be developed as cities. This is not alien. South Africa is an example. The headquarters of the executive are in Pretoria, parliament sits in Cape Town and the judiciary headquarters are located in Bloemfontein, the capital of Free State.

In addition, policy makers should develop an affordable public transport system in Kampala. Public buses would reduce the so many taxis and boda bodas that cause congestion in the city. A railway network providing affordable transport can reduce the number of people who drive private cars. Within town, government can involve private sector players to introduce and encourage the use of bicycles around the city. These can be hired cheaply to users. This will not only reduce congestion, but also reduce air pollution since bicycles do not produce carbon emissions.

Once we have about built five more cities and redirected business and services there, then Kampala will cease to attract the huge sea of people it currently does and consequently congestion will reduce. Rural-urban migration will be equally shared by all the cities other than being absorbed by Kampala alone. Already studies predict that 2.5 billion more people will leave in cities by 2035. For Uganda, the World Bank predicts that 21 million people will live in urban areas by 2040.

It is patriotic to address these challenges now and to plan for more influx of people to urban areas by building more properly planned cities. Living the mess to be cleared by our children and grandchildren is irresponsibility on our part.

Birungi Denis is a lawyer, bdeniso4@gmail.com

Understanding the impact of Cambridge Analytica’s work: a modern era public fraud

The strategy behind the recent populist surge was finally exposed by media houses in Britain. In a broadcast by Channel 4 news, senior executives of the Cambridge Analytica, a political consultancy firm, are caught on camera revealing the dirty tricks they use to help political aspirants in various countries to swing elections in their favor.

The dirty tricks include use of sex workers, bribes, propaganda and misinformation against opponents.

The company uses data from companies like Facebook to inform politicians of voters’ “tastes and preferences” and helping them to compose a message that resonates with voters’ fears and frustrations. In in Kenya this involved sending videos of war, hunger and terrorism and warning that voting Odinga risks more of such occurrences.

In a U-tube video, one executive remarks: “it’s no longer about facts; it’s about playing with people’s emotions” and boasts on how emotions were played with in the United States and other countries to influence election results!

This trend is quite scary! It is a true manifestation of modern era corruption. It is the greatest public fraud that can be committed by any individual against his or her country.

This type of public fraud is a complex challenge to fight as it benefits the most powerful of society.

While the evolution and modernization of society in multifarious ways including the internet of things has brought enormous progress to humanity, it brings with it a platform and opportunities for unscrupulous people to achieve selfish and evil ends that risks turning humanity back to a pre- legal society, where survival is only for the fittest at playing dirty.

In the past two years since Brexit and the US election outcome, misuse of social media companies such as Facebook has become the greatest threat to democracy. Tyrannical regimes such as Russia have found this a better tool to sow discord in democratic countries.

Democracy works only when political actors, citizens and institutions can make decisions on the basis of empirically verifiable facts. When misinformation, propaganda and intrigue sets in to curtail the pure flow of democratic processes, then democracy fails, and what remains is a shadow of democracy- dry, useless and meaningless.

Yes, with a shadow of democracy, elections will continue to take place, but the voter will not be the sober citizen who follows policy propositions and the character of the political aspirants but rather a citizen biased by a foreign country/company on behalf of the aspirant who sees things only from the side of the aspirant.

The citizen becomes a captive of the aspirant, entangled, and tuned to respond only according to the propaganda remote control of the aspirant. The aspirant sets the agenda of what the voter will hear and see as truth.

The consent of the voter is procured through fraud and misrepresentation and was it to be a bilateral contract between two individuals; it stands to be annulled by court for lack of genuine consent.

The citizen makes decision not on the basis of what is factual and true but on the basis of what the aspirant (for lack of a better word) implants in his or her mind.

At this point, elections, which are the engines of a functional democracy, become useless.

When ethical standards, legal constraints and moral codes that keep society functional risk to break at such vast scale- from the United States to Europe, to Asian and to Africa, and at such a critical angle- elections, which make orderly governance possible, then we risk reverting back to savagery.

Legislators and policy makers in democratic countries should up their game in countering this horrific trend by imposing legal obligations on internet firms to protect personal data and prevent wrong people from accessing it and addressing loopholes in electoral laws. The European Union has taken the lead with tougher privacy laws on online firms. Others should follow.

Birungi Denis is a lawyer, social and political analyst, bdeniso4@gmail.com

KENYA SHOWS THE WAY ONCE AGAIN.

Kenya is a country of surprises. Barely, a year the Supreme Court cancelled an election and ordered a fresh one, when President Kenyatta on Friday held a surprise meeting with his political arch-rival and National Super Alliance (Nasa) leader Raila to address the nation, standing side by side on a podium of unity.

I was thrilled as imagined and hoped that President Museveni and col. Dr Kiiza Besigye could do the same!

The two leaders in a joint statement agreed to put Kenya above their individual grievances by forging a path to heal the nation from the deep divisions and hatreds of a previous controversial election and ultimately agreeing to forge a national unity in a country deeply divided along tribal lines.

This strand of politics is foreign on the African continent. That an opposition leader and the sitting president with whom he has contested in a disputed election, can call each other “brother”, stand side by side in realisation of the missed opportunities and then agree to work together for the good of the country, is a miracle we should celebrate and embrace with hope.

The rest of Kenya, and indeed Africa should welcome this development with enthusiasm, for it is the lack of such farsighted, people-centred, selfless inclusive leadership that African countries have remained the laughing stock of the world.

Leaders should realise that a position of leadership especially the office of the presidency is not a passport to personal glory, self-aggrandizement, let alone a platform to dominate others but a mandate bringing with it incredible responsibility to act judiciously and with humility for the good of all and the future progress of the country.

To properly exercise the power that comes with a position of leadership requires the ability to tame personal ego and pride and act with humility like Uhuru and Odinga have done. For those that wield state power, engagement, and not confrontation with those we don’t agree with should be the guiding strategy if we are to build stable and progressive communities. It is high time leaders realised that the power of government exists to serve the citizens, and not the leader or his kin as has been the case in most African countries.

We should no longer allow elections or tribal differences to block us from seeing the bigger picture of building our countries into prosperous, stable and peaceful communities for the wellbeing of the present and future generations.

The bible reminds us that a house divided against itself cannot stand. To forge a national unity requires us to first conduct a self-assessment, a sort of audit on what has gone wrong, then a commitment to rectify it and guarantees for non-repetition.

The task entails going back to the fundamentals of democracy- rule of law, free and fair elections, accountability in our governments, equality for all, transparency and fairness in public decisions, respect for human rights and respect for the unwritten rules of fair play and goodness.

In their joint statement Uhuru and Mr Odinga agreed to the idea of inclusiveness in political engagements. To heal tribal divisions that exist in most African countries, leaders should embrace inclusiveness in all aspects of governance both in word and actions. Implementation of government policies should reflect a government that cares for all regardless of their tribe or political opinion.

Healing a country of historical ethnic and political divisions is not by words alone but by deliberate visible actions on the part of leaders that show a paradigm shift in the trajectory of the country.

Inclusion should be seen in appointments to public service, in sharing of the national cake, in rebuilding marginalised communities, in addressing national challenges such as corruption and poverty and in formulating broad based strategic policy paths that can facilitate faster progress of our countries.

Bi-partisanship should be given a chance. It is such a strong sign of unity for the opposition leader and the president to stand side by side and address a nation on the way forward as our Kenyan brothers have shown us. Opposition leaders should be looked at as partners in national building and not as “enemies”, “saboteurs”, “traitors’ as they are often called. Bringing them on table of dialogue is not a sign of weakness but strength.

Birungi Denis is a lawyer, post graduate student at the Law Development Centre and commentator. bdeniso4@gmail.com

 

 

DISCRIMINATION IS ILLEGAL AND UNACCEPTABLE

The New Vision of February, 12th published on page 47, an advert by Serene Suits and Hotel Mutundwe eligible applicants for the position of managers, preferably “White” for the hotel and “Indian” for the restaurant. It was disgusting!

The advert is offensive, unethical, immoral and a strict violation of the laws of the land. The New Vision newspaper should share the blame for permitting such an advert to be printed in clear violation of the law. As a public corporation and a credible newspaper, the standard expected of it is even higher. Article 20(2) of the constitution provides: The rights and freedoms of the individual and groups enshrined in this Chapter shall be respected, upheld and promoted by all organs and agencies of Government and by all persons. Whether for commercial reasons or not, the New Vision should have declined to publish this discriminatory advert.

Article 21 of the constitution of the Republic of Uganda, 1995 provides that all persons are equal before and under the law in all spheres of political, economic, social and cultural life and in every other respect and shall enjoy equal protection of the law. The constitution prohibits any form of discrimination against a person on the grounds of sex, race, colour, ethnic origin, tribe, birth, creed or religion, social or economic standing, political opinion or disability.

Discrimination under the constitution is defined as giving different treatment to different persons.

Additionally, section 6(3) of the Employment Act provides that discrimination in employment shall be unlawful. It defines discrimination for employment purposes to include any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin, the HIV status or disability which has the effect of nullifying or impairing of a person in employment or occupation.

Whether such an advert was published in ignorance of the constitution and the law or whether it escaped the scrutiny of the publisher is not excusable. Even where there is no legal prohibition, it is expected that corporate institutions should regard any form of discrimination immoral and untenable in their internal policies and should do due diligence to ensure compliance with the law.

To deny some categories of people the right to equally compete for employment or other opportunities in preference to others is to deny the former the right to exist! It is simply to suggest that some are more entitled, or superior or better at performance than others- the misconceived belief of racial supremacy.

Merit and not race, sex or other prejudicial preference should be the selection criteria.  No single person chooses in which state to exist (race, colour, country, sex or disability). It is by fate that we all find ourselves existing the way we are. No person should be judged on basis of such prejudicial preference as race, sex or other preference of a similar nature.

Discrimination anywhere is discrimination everywhere. It should be challenged and rejected whenever it is exhibited and in whichever form it manifests. I commend the Equal Opportunities Commission for coming strongly to challenge the advert by commencing investigations into it and by temporarily halting the recruitment process.

However, more needs to be done to change the mindset that certain races are more superior or preferable to others, and this is a societal challenge that will require an understanding of the root causes of this discrimination and concerted education and legal enforcement to address it.

Birungi Denis is lawyer.bdeniso4@gmail.com

LET’S ACT SWIFTLY TO DONATE BLOOD AND SAVE LIVES

 

There is an acute shortage of blood both at blood banks and hospitals and this is scary. Because of the long school holiday, mobilizing a larger group of blood donors has been difficult. The Uganda Medical Association has warned of a blood crisis. The blood bank, it is reported, has just 150 units of blood remaining, not enough to meet requirements on an average day in the city. Because of the shortage, doctors are compelled to defer emergencies and surgeries. That means pregnant mothers whose deliveries cannot be deferred are at a great risk. It means accident patients and other patients in dire need of blood risk losing their lives.

For crises like this, blaming the government alone is not helpful. Standing up to take responsibility is what we should do. The Ministry of Health has made an appeal to the general public to donate blood. Every person eligible to donate should respond swiftly to this call. People should rush to the nearest blood bank or donation point and donate blood.  Political leaders, whether from opposition or government, religious leaders and civil society organisation should all join effort to mobilize citizens to take part. Government should fully facilitate the work of blood banks to amplify their capacity to coordinate and respond to this urgent need.

While for crises of a different nature such as natural disasters, foreign donors can step in to help; this is not the case with scarcity of blood. The responsibility entirely falls on our shoulders to demonstrate leadership, compassion, humanity and responsibility.

Blood is an invaluable resource.  It is both scarce and abundant. Scarce because there is no technology that can manufacture it and as such there are no factories for manufacturing blood. Abundant because every adult person who is in good health has enough blood for himself or herself and most times extra units to donate.  Every healthy person between 18 and 60 years, weighing 45 kg or more is eligible, and can safely donate one unit of blood (350 ml or half a litre of blood) at an interval of three months. This means one person can donate three times annually contributing three units of blood.

With a population of about 42 million people and majority being youth, if there is proper coordination and mobilisation and if every person took it upon themselves to donate a unit of blood every three months, scarcity of blood would not be a problem; more mothers would have safe deliveries, and more lives would be saved.

It is important to note that donation is beneficial not only to the beneficiary but to the donor as well. Health practitioners agree that donation helps in the production of new blood cells, improves the overall cardiovascular health, burns calories and reduces the risk of cancer. For males in particular it reduces the amount of iron in the blood which reduces the chance of heart attack. While menstruation helps women to reduce excess iron in the body, only donation can reduce it in men.

For altruists, there is no greater act of generosity than sharing one’s blood. Blood, it has often been said, saves lives. So the act of donating blood is actually participating in the project of saving lives. The beauty is that majority of us can afford. We may not have enough material possessions to share with the poor and orphans but we have extra units of blood to give to those that desperately need it. The Bible says freely you received, freely you should give. Similarly, freely we receive enough blood in our bodies and we are lucky to be in good health, freely we should donate it those in desperate need of it.

Birungi Denis is a lawyer and a regular blood donor, bdeniso4@gmail.com

Leaders should emulate the life of archbishop Nkoyoyo

When a person who has lived distinguished and honorable life goes to meet the Lord after along life of dedicated and faithful service, we don’t mourn him. We celebrate his life and as such, we should celebrate the legacy of archbishop Nkoyoyo. Most important we should emulate his legacy. He lived a life of true selfless service to humanity. The present day Uganda Christian University was his idea and I understand he worked hard to see it materialize.

With minimal education, Archbishop Nkoyoyo greatly contributed to a university that has produced great minds and transformed the lives of many. He strongly preached the word of God not only in word but also in deed as evidenced by several orphanages he started and other acts of kindness.

At such a critical moment in our country where the moral chords of society have broken, where greed, selfishness, opportunism and not service to God and his people motivate the actions of leaders, we need people who stand on a high moral ground to challenge the status quo, the rot that has engulfed our country.

Religious leaders that have turned the work of God into a business for personal gain and exploited his people, the legacy of archbishop Nkoyoyo remind you to repent and emulate Jesus. God warns to destroy you in Micah 3:7.  Salvation is not for sale. Jesus died freely for us and for no price and while on earth, he healed the sick, rised the dead, fed the hungry for no pay. He did not also brag or show off for his miracles let alone advertising them on TV. Instead he lived a humble life.

At the political scene, we need morally upright leaders to challenge the status quo and introduce morality in the public square. As the political trajectory gets even more risky  and uncertain for our future, our children and grandchildren, religious and other leaders have a critical role to play in challenging the prevailing corruption, injustice and bad governance. In doing this, emulate the courage that was exhibited by Archbishop Janani Luwum who, like Jesus, challenged the negative forces of the time and died for the truth.  I commend all religious leaders of various religious denominations who firmly spoke the truth and challenged powerful forces when our constitution was being manipulated.

Archbishop Desmond Tutu, who confronted extreme oppression during the apartheid regime in South Africa, warns us on silence in circumstances of injustice: “If you are neutral in situations of injustice”, he said, “you have chosen the side of the oppressor”.

And for those who occupy higher positions of leadership in the public service, you are reminded by the legacy of Nkoyoyo to serve with integrity and this requires courage.

For our 67 members of parliament who stood for the truth to vote “no” during the manipulation of the constitution, former US president J.F Kennedy reminds you of what political courage entails in parliamentary work in his 1957 book where he profiled 8 senators who took unpopular yet good positions despite the political risk: It involves “the desire to maintain a reputation for integrity that is stronger than the desire to maintain office’’.

May the good Lord rest the soul of archbishop Nkoyoyo in peace and may He help us to raise leaders of compassion, love, peace, truth and justice.

Birungi Denis is a lawyer, social, economic and political commentator,bdeniso4@gmail.com

 

 

 

Where And How Do We Start  As A Nation?

Dear Mr. Kiiza Besigye, Amama Mbabazi, Mugisha Muntu, John Patrick Amuriat, Nobert Mau, Yoweri Museveni, Kirundi Kivenjinja, Moses Ali, Mabirizi, Gerald Karuhanga, Ms Rebbecca Kadaaga and my 18 year old friend John,

As we start a new year and having gone through a tumultuous year with a series of unfortunate events that draws back the national clock, one can’t help but ponder on where the direction we are taking as a nation will lead us. Ugandans are occupied by lingering questions whose answers they cannot find and we would like you as potential candidates in 2021 or 2023 to address us on them:

Once we have come to our senses, received an awakening or encountered the spirit of truth as Paul of the Bible did, where shall we start from to clear the mess that has been created for the last 5o or more years notwithstanding that in the same time a lot has been achieved?

How do you depersonalize the state or separate the state from the ruling party to create a truly functional state, from over 50 years of messy leadership?

How do you create a real functional parliament that can be a check on the executive and the judiciary from the past and status quo where almost no parliament exists as past and the current one have been an extension of the executive arm of government? How do you prevent the judiciary from encroachment?

How do you resize the state to a small but effective government? How do you prune the enlarged tentacles for patronage that have been created over the years? How do you reduce the unnecessary constituencies and Members of Parliament from the current 450 to about 200? How do you tame greed and reduce the exorbitant and unmerited salaries of Member of Parliament and other officials to what is fair and just?

How do you merge the so many sub counties made into districts for patronage over the years to about 80 or less?

How do you subject the armed forces to state control and civilian command when for over 50 years we have hard personalized armies, used to entrench dictatorial rule?  How do you reform the police from a political force that advances the will of the ruler to a disciplined and patriotic force that protects people and their property?

How do you unite a divided country? A country systematically divided along lines of tribe! How do you achieve regional balance to ensure that every Ugandan no matter his tribe is equally involved in state affairs and that every region receives a fair share of the national cake? How do you address grievances of regions that have been marginalized for long and left out in the development agenda?

How do you stamp out corruption in a country where corruption has been an accepted norm and most times used as a tool of patronage?

How do you form a durable, respected national constitution with safeguards to prevent further abuse of power and one that works as a chain to limit excessive power and protect the nation against tyranny; one that will not be manipulated from the current one which is a personal notebook where sentences can be deleted at the whim of the ruler?

How do you bring moral sanity and revival in leadership from a trend of a series of governments that are characterized by greed, selfishness, nepotism, lies, impunity, some elements of buffoonery and myopia?  How do you restore people’s trust in government? How do you forge a government that puts people first;  a government that works for all as opposed to one that works for certain sects?

How do you cleanse pails of failed social and economic policy? How do you create jobs to millions of unemployed Ugandans? How do you create a practical education that meets the demands of the modern age? How do modernize our agriculture?  What plans do you have to industrialize our country?

How do you forge political consensus to address all these questions in a country that has no traces of inclusive governance?

Lastly, how do you build a strong foundation for democracy and sustainable national progress that propels values of peace, compassion, truth, honesty, justice, equality, fairness, unity, love, inclusiveness and real patriotism to future generations?

Birungi Denis is a lawyer and socio, economic and political commentator, bdeniso4@gmail.com

EXTENSION OF THE TERM OF OFFICE FOR MEMBERS OF PARLIAMENT FROM FIVE TO SEVEN YEARS IS ILLEGAL AND UNCONSTITUTIONAL

 

On the question of representation, article 1 (3) of our constitution provides: All power and authority of Government and its organs derive from this Constitution, which in turn derives its authority from the people who consent to be governed in accordance with this Constitution. Clause 4 of the same article provides: The people shall express their will and consent on who shall govern them and how they should be governed, through regular, free and fair elections of their representatives or through referenda.

In the recent constitutional amendment act of 2017 (awaiting presidential assent to become a constitutional amendment), members of parliament have among others extended their term of office from five to seven years. This provision benefits the current parliament as well and as such elections for parliamentary representatives will not be held in 2021 but in 2023.

Such a move is not only immoral but also illegal and unconstitutional. First, pursuant to article 1, people are to be governed by their consent and they express their will and consent on who shall govern them through regular, free and fair elections. In 2016, the citizens of Uganda from each constituency voted their respective members of parliament and as such consented to be governed for only 5 years. Like a contract of employment, this five year mandate can only be extended by voters who have the authority to do so.

Secondly, while the parliament has the power to amend the constitution and extend the term of office for which MPs serve, the purported extension of this mandate from five to seven years cannot and should not benefit the current parliament but subsequent parliaments because doing so implies that the extra two years are an imposition since they are not sanctioned by the people and as such contradicts article 1. It implies that it is no longer the people who have power to consent, but that those in power can, as and when they deem fit, consent/choose themselves to be leaders without the need to seek the consent/votes of the governed. This undermines the whole essence of the social contract theory upon which constitutional rule is premised. It goes against the whole essence of a democracy and it is a clear act of distortion of a constitutional order.

Third, the decision will open the floodgates. If this parliament can choose to extend their term in office for two more years, what will prevent the next parliament from extending for more five years and avoid the expenses of campaigning or put differently, “eat at once and go”

Fourth it undermines the essence of regular elections as a tool for citizens to hold their leaders accountable by either voting them out if they are not satisfied by their performance or by renewing their mandated if they have performed to their expectations.

If the impugned provision goes unchallenged, it means people have been disempowered and disenfranchised. It tantamounts to an act of power grab by the rulers from the governed. It means that for the extra two years, people will be ruled against their will and that the ruler, not the people or the constitution is supreme.

To restore this distortion, Article 137 of the constitution mandates every citizen to petition the constitutional court whenever any act, law, custom or omission contravenes the provisions of the constitution. I have no doubt that patriotic Ugandans will not wait to petition the constitutional court and that our courts will not waver to declare this illegality unconstitutional. Even where this finally succeeds by presidential assent as a constitutional amendment, it is still challengeable as one provision of the constitution being inconsistent with the other and the principle of harmonization will be invoked to correct this anomaly.

Birungi Denis, is a lawyer, social and political commentator, bdeniso4@gmail.com

POLYGAMY IS DISCRIMINATORY AND UNCONSTITUTIONAL

Kenya has finally opened the floodgates for polygamy by signing the Marriage Bill into law. The law allows a man to have as many wives as he can without seeking approval from the wife/wives. While signing the bill into law, President Uhuru Kenyatta remarked: “Marriage is the voluntary union of a man and a woman, whether in a monogamous or polygamous union”. This statement leaves lingering questions. How about if the first women is uncomfortable with subsequent marriages? Would it still be voluntary for her or after the subsequent marriages, it becomes constructive compulsion to remain in a relationship she is not happy with?

A similar situation exists in Uganda with the provisions of the Customary Marriages registration Act Cap 251. The law allows men who marry customarily to be polygamous, but it does not allow women married customarily the same right to marry as many husbands as they can, let alone seeking their consent before involving them in multiple sexual relationships which come with several dangers including exposure to STDs, hatreds, emotional and psychological harm that is common in such relationships.

This is discriminatory and hence unconstitutional. Discrimination simply put is the unjust or prejudicial treatment of different categories of people, especially on the grounds of race, age, or sex.  If the law give men the right and freedom to marry as many wives as they can, it should give the same freedom to women to marry as many husbands as they can if we truly subscribe to the principle of equality of everyone before the law as enshrined in our constitution.

We have continued to justify inequality and discrimination using a cultural defence: that it is African culture for men to be polygamous and that it is an abomination for women to do the same. When we advance such justifications, simply we are saying men are superior to women. While we justify discrimination with this cultural defence, we should be mindful that article 2 of our constitution provides that: “If any other law or any custom is inconsistent with any of the provisions of this Constitution, the Constitution shall prevail, and that other law or custom shall, to the extent of the inconsistency, be void”

If cultures and practices that give men advantage over  women on such issues as property rights, political or other civil rights have been considered discriminatory and unconstitutional, why then not look at polygamous marriages the same way? In the case of FIDA (U) and 5 others vs Attorney General Constitutional Petition No. 2 of 2003, for instance, the constitutional court declared unconstitutional several provisions of the Divorce Act that gave a husband an unfair advantage over a wife during a petition for divorce. Similarly, in the case of Law Advocacy for Women in Uganda v Attorney General – Constitutional Petitions Nos. 13 /of 2005 provisions of the Succession Act that favoured men over women were declared discriminatory and hence unconstitutional.

In most of the western world, polygamous marriages are illegal. Even some African countries such as Benin, Ethiopia, Côte d’Ivoire, Eritriea, Seychelles and Tunisia no longer recognise polygamous marriages. The rest of Africa should pick a lesson. If they cannot prohibit polygamy, at least there should be an opportunity for women to consent to such relationships or have the freedom to walk away if they feel uncomfortable being part of a polygamous marriage.

The truth is that polygamy is gender discrimination and is utterly inconsistent with the constitution. Why it has persisted is because those who are dominant and have power to outlaw it are the sole beneficiaries.

Progressive civilisation requires that we deny and relinquish even the most entrenched of our cultures that are unfair and unjust in the modern world. Our laws and institutions should reflect this progressive vision that guarantees equality, freedom and justice to all, not that which reflects the views of the dominant forces.

Birungi Denis is a lawyer, a social and political commentator. bdeniso4@gmail.com