Uganda: Whoever Signs Our National Interests Away Should Be Brought to Account

(Article was published in the Daily Monitor and New Vision Newspapers of 11 November 2011)


President Museveni’s younger brother, a.k.a Salim Saleh while appearing before the ad hoc parliamentary committee investigating misconduct in the energy sector called for the renationalization of the Uganda Electricity Board’s assets from Umeme on grounds that the privatization of the sector was “not well thought-out”. 

A few months back, there were similar calls but there were arguments that according to the signed agreements between Umeme and the government of Uganda, such an action would attract huge penalties.

   

However, what seems to be of more urgency is whether we as a country are getting better deals in these agreements which are being signed on our behalf by officers’ in the responsible offices.

On 1^st July 2004, Heritage Oil and Gas Limited entered into a Production Sharing Agreement (PSA) with the Republic of Uganda in which, inter-alia, contained clauses providing guidance on how disputes under the agreement will be handled.

In the agreement, there are two interesting clauses namely clause 14 and 26.1. Article 14 stated that: "All taxes, duties, levies or other lawful impositions applicable to licensee shall be paid by the licensee in accordance with the laws of Uganda in a timely fashion."

This otherwise clear and straight clause was followed by a rather controversial clause under Article 26.1 which states that any dispute arising under the Agreement, which cannot be settled amicably within 60 days shall be referred to Arbitration in accordance with the United Nations Commission for Internal Trade Law (UNCITRAL) Arbitration rules. The Arbitration award shall be final and binding on the parties to this Agreement. Apparently, this clause provides Heritage Oil with a base of an argument. A lifeline with no checks and balances.   

In as much as it may have been in the interest of Heritage Oil being a foreign firm to have disputes resolved in accordance with the UNCITRAL, the circumstances under which this clause was to apply should have been detailed. As it is, almost any dispute at the discretion of either party may be filed in the U.K at the expense of local tax payer. By allowing the clause to stand unguided, it inevitably contradicts Article 14 of the agreement under which Uganda Revenue Authority was proceeding to impose a legitimate tax in the laws of Uganda.

      

One wonders why these two Articles were not harmonized well knowing that the rising of a dispute was simply a matter of when and not if. Had they been harmonized, the matter should have been put to rest by the competent Uganda Tax Appeals Tribunal or other Ugandan Courts hence saving the unnecessary expenditure of over $4.4 million on lawyers in the U.K by engaging the U.S-based law firm, Curtis to defend it in the $404m tax dispute.

Taxes are statutorily provided for and any acts to make it contractual are ultra-vires. The exercise of such statutory powers cannot be fattened or overridden by an agreement or mistake. This should have been sufficient to enable government signatories avoid such unnecessary contradictions which apparently are costing us obscene sums of money to try to right what should have not gone wrong in the first instance.

With all these developments, Ugandans find themselves locked in between a hard rock and an island and have to bear with all the consequences simply because someone signed a document on our behalf devoid of protecting our interest.

It is high time that signatories who sign such agreements on behalf of the government of Uganda pay far more attention to the contents of an agreement and ensure that the interest of Uganda are fully protected to the best of their knowledge before they append their signatures and sentence all Ugandans to such embarrassments before the whole world.

Better still, such signatories should be answerable in case they negotiate a deal which does not fully protect the interests of Uganda. Perhaps this will make them more careful as to identify any contradictions and harmonize them in time.  

MIGINGO: RESOLVE ALL OTHER BOUNDARY ISSUES NOW

In pursuant of Article 9 of a joint ministerial communiqué signed on July 26^th, 2011 in Nairobi; the police chiefs of Uganda and Kenya sanctioned a joint-patrol agreement for the disputed island of Migingo in the Ugandan capital Kampala. Whilst this is a commendable step, it does not resolve the dispute. Infact, if not implemented well, it could well be another source of a flare up over the dwindling resources of the once-abundant Lake Victoria. In all fairness, this dispute has dragged on for far too long to the detriment of the spirit of the East African Community.  

Migingo is an uneven tiny island sitting on Lake Victoria and occupying a surface comparable to that of a football pitch. The first house on this island is said to have been built in 2002 and now, the island hosts close to 1,000 inhabitants most of whom are Kenyan whose predominant economic activity is fishing. By boat, it takes close to 6 hours to reach the island from Uganda and 3 hours from the Kenyan shore.

The whole saga started in 2004 when pirates invaded the tiny island prompting the community to call for help from their respective governments. The Ugandan government was first to get to the rescue of the fishermen and during their stay, they realized Migingo’s wealth. The tiny Island lies at the heart of the rare deep-water fishing spots on Lake Victoria. The Ugandan authorities steadily took charge of the management of the flourishing fishing business on the Island, introduced new regulations and taxes. Offenders were arrested and taken to the Ugandan shores for detention and prosecution regardless of their nationality. This magnetized the attention of the Kenyan politicians, media, and the public to the issue which rapidly turned into a conflict with some candidly sounding war drums in what they perceived to amount to territorial aggression.  

It should be remembered that earlier, Uganda and Kenya had come close to a shoot-out over Wayasi Island. It was later established that the Island which was also located on Lake Victoria actually belonged to Uganda. Apparently, the bigger problem is the fact that Kenya owns only 6% of the Lake Victoria compared to 43% owned by Uganda and 51% under Tanzania’s territory. This has created a scenario whereby Kenyan fishermen communities have sought settlement on nearby Islands within Lake Victoria regardless of ownership. This has triggered an immense mix up on issues of proximity, and now occupancy and sovereignty.

The last thing the spirit of the East African Community needs is a “Bakassi Peninsular” situation where Nigerian fishermen settlement led Nigeria to mistake occupancy and proximity to mean ownership leading to a short full-blown war with Cameroon. It needed a ruling from the International Court of Justice which ruled in favour of Cameroon to bring the dispute to an end.

All avenues need to be exploited to resolve not only this specific dispute, but also demarcate clear boundaries on all existent islands on Lake Victoria whether occupied or vacant to avoid such a standoff in future. While doing this, time is of utmost importance. Efforts must be scaled up and evidence from sources such as Google earth maps, the British Order In Council of 1926, Schedule 2 of the Uganda Constitution of 1995 which contains similar information with Schedule 1 of the 1967 Uganda Constitution, the Kenya Colony and Protectorate (boundaries) Order in Council 1926 and any other credible sources must be put to use. Most importantly, the verdict must be respected by both parties.

Masake Anthony

The writer works with Uganda Law Society.

mskmas@yahoo.co.uk

LESSONS FOR UGANDA FROM TROY DAVIS’S EXECUTION

“If one of our fellow citizens can be executed with so much doubt surrounding his guilt, then the death penalty system in our country is unjust and outdated” these were the words of former US President Jimmy Carter after learning of Troy’s execution. 

After spending 22 years behind bars and 19 years on death row having been convicted of the murder of off-duty Savannah police officer Mark Allen MacPhail in 1989, Troy Davis was finally executed by lethal injection in a Prison in Jackson on September 21, 2011 after the guilty verdict was upheld by the Supreme Court in a 23 worded document. 

But what makes this case completely mystifying is a man was executed with no DNA evidence, no murder weapon, and no further concrete physical proof other than eye witness accounts. It is more like you wake up and someone accuses you of murder and you are then sentenced to death for it simply because you were at the crime scene and your personal character is questionable. Since the verdict, not only has 7 out of 9 witnesses in the Troy case have either recanted or backed off their trial testimony but also others have pointed out to the possibility that another man at the scene fired the weapon. And yet with all this doubt, Troy Davis was still executed. 

The execution has triggered a lot of mixed reactions across the world from pro and anti death penalty advocates alike with the likes of former US Presidents Jimmy Carter and Bill Clinton, Pope Benedict XVI,  Archbishop Desmond Tutu, hip-hop star Sean 'P Diddy' Combs, Rihanna, Kim Kardashian, Reverend Al Sharpton, and many more openly voicing their concerns.

Troy, like many other condemned inmates continued to profess his innocence to his death. Even as he was strapped to a gurney awaiting the lethal injection, he said “I’d like to address the MacPhail family…I’m not the one who personally killed your son, your father, your brother. I am innocent….All I can ask….is that you look deeper into this case so that you really can finally see the truth.” The big question then is; what if a few years down the road the murder weapon is found and DNA evidence exonerates Troy Davis? 

This question underscores the utmost relevance of abolishing the death penalty. Infact, executing a perpetrator exonerates him from pain and anguish and instead unjustly victimizes the blameless family and friends who have to go through the agony of losing one they love. Let’s face it; the real punishment would be to serve a prison sentence with no possibility of parole. We need to start discussing about a substitute penal sanction of death penalty because the truth is that death penalty is simply outdated, unjust, and barbaric.   

In Uganda, no civilians have been executed since 1999 a time when 28 death row prisoners were hanged at Luzira prison. However, civilian courts continue to sentence convicts to death. An attempt to have it abolished by the Uganda Supreme Court failed when the court ruled that death penalty per se should remain constitutional in Uganda. The court nevertheless made a vital pronouncement which stated that mandatory application of the death penalty is unconstitutional signifying a major success towards the abolition of the death penalty in the country.

The court further ruled that after three years, a condemned prisoner will have suffered unusual and cruel punishment and the death sentence ought to be commuted to life imprisonment. 

Judiciary has done its part. It is now upon the elected leadership of this country to abolish this inhuman and cruel form of penalty from the civilian courts. Troy’s lawyer Thomas Ruffin describes such execution as “a legalized lynching”. Half of the most part, it indeed is “lynching” only that here it is being carried out by the state rather than a bunch of lawless hooligans on the street. There has to be better ways of punishing offenders.

Masake Anthony

The writer works with Uganda Law Society.

mskmas@yahoo.co.uk

OPERATIONALISE SENTENCING GUIDELINES TO REFORM CRIMINAL JUSTICE

During a National Legal Aid Conference held in October 26^th-28^th, 2011 at the Speke Resort and Country Club-Munyonyo, the President of Uganda Law Society James Mukasa Sebugenyi while discussing granting of civil Legal Aid: Testing the means and merits of the case noted one of Reginald Heber’s famous quotes, "Without equal access to the law, the system not only robs the poor of their only protection, but it places it in the hands of their oppressors, the most powerful and ruthless weapon ever created." Reginald Heber Smith, Justice and the Poor, 1919.

This quotation denotes the importance of protecting the indigent and the marginalized from exploitation while in the process of accessing justice to ensure equal access to justice to all whether poor or rich. Equal access to justice is the cornerstone of a democratic society and sustainable development. For the poor, it does not always have to be a case of Ambrose Bierce’s definition of a law suit where he described it as “A machine which you go into as a pig and come out of as a sausage” in the Devil’s Dictionary.

The sentencing practice in Uganda has been largely described as unscientific, uncertain, vague, inconsistent, and erratic. The poor have often received inexplicably higher sentences than the rich in almost similar cases. Even mandatory bail is often delayed where the poor are involved. Sentences have generally been either too soft or too harsh to the mystification of the public who often do not appreciate why certain sentences are imposed.

For a long time now, there has been the need to have clear sentencing guidelines under which the judicial officers should base themselves to pass specific sentences. This would inevitably mean that the poor and the rich will have to face the same sentences unless the judicial officer has strong reasons to depart from the set range. Such guidelines will further ensure that the rights of the victim and the community are taken into account prior to arriving at an apt sentence within the prescribed range. This will give criminal justice a new approach other than the traditional defense centered approach hence reforming the system.  

Currently, the objectives which guide a court on sentencing include uniformity of sentence, rehabilitation, reformation, punishment, protection of society, and deterrence. 

According to Justice Law & Order Sector (JLOS) which has been working with the Chief Justice in conjunction with DANIDA, the new sentencing guidelines will provide for sentences which further reflect the seriousness of the offence bearing in mind the degree of harmfulness or risked harmfulness of the offences, degree of culpability, and prevailing circumstances. The guidelines are aimed at regulating and providing for standardization of sentencing in Uganda.  

The guidelines will ignore things like the economic status of the convict and help address undesirable sentencing disparity in the criminal justice system. They will further make sentencing more predictable and transparent which will be crucial in strengthening public trust in the Judiciary. The guidelines, which should be made available to the entire public, will make the whole process more open and less mysterious. 

To further streamline criminal justice in the country, there is also need for clear guidelines to regulate the administration of the law of bail in courts of law. This will protect the poor from the commercialization of bail. If left unimpeded, it will continue to deny poor inmates on remand who have substantial sureties in circumstances where non-cash bail would be applicable but no money to oil the wheel for what is per se a constitutional right hence encumbering equal access to justice for the indigent.       

       

As we await the establishment of a Sentencing Council by Parliament, it would be very positive if the Chief Justice considered operationalising the sentencing guidelines as soon as they are complete through a Practice Direction under Article 133 of the 1995 Constitution of Uganda in the interest of criminal justice.

Anthony Masake

Mr. Masake works with Uganda Law Society

Uganda Cannot Achieve Development Without Increased Investment In Maternal… | Global Health Hub

Uganda Cannot Achieve Development Without Increased Investment In Maternal… | Global Health Hub

Safe Motherhood: We cannot achieve development without addressing maternal mortality

Sarah Brown, safe motherhood advocate and wife of former Prime Minister of the UK Gordon Brown once said, “I don’t believe that we will make the progress on HIV/Aids without addressing maternal mortality. We will not make the progress we want on malaria without addressing maternal mortality. We will not make progress on getting more children to school without reducing maternal mortality. When a mother survives, a lot survives with her.”

We have heard and read a lot about causes and statistics of pregnancy and childbirth and it is time we step up our act to save the mothers of this nation. Whereas the ways of ensuring safe motherhood are of the much part straightforward, their implementation can be complex.

But first, allow me send my sincere condolences to the family of the late Cecilia Nambozo from Mbale District who would probably be with us today had she received the necessary attention on time. Her tragedy depicts the plight of many other mothers out there in labour wards. Nicholas D. Kristof, a New York Times journalist, once noted that “Half a million women die each year around the world in pregnancy. It’s not biology that kills them as much as neglect.” Well said, I bet. There are those health workers who uphold the good image of the profession by acting professionally and these should be acknowledged but those who abuse the profession by neglect of duty in any form must be held accountable.

In fact, there is undisputed evidence that improved performance doesn’t necessary have to cost a lot. Developing countries such as Egypt, Tunisia, China, Malaysia, etc have embraced good practices which have remarkably reversed the rate of maternal mortality and morbidity. They have put their existing resources to better use by exploring cost-effective options to enhance the capacity of national health demands, systematically strengthened the healthcare systems, and drummed up grassroots support for the cause. I, however, acknowledge that the facilities and incentives of healthcare workers need to be improved.

Maternal death hugely compromises all the key human rights you can imagine such as right to life, family, education, health, etc. Human rights violations such as female genital mutilation/cutting, forced early marriages, gender-based violence, violation of women’s economic and property ownership rights, etc, constitute a major violation of a woman’s right to make decisions regarding her life and body leaving her vulnerable to social evils. It is obvious that the poorer the household, the higher the risk of maternal death.

According to the UNFPA fact sheet; worldwide, there is an estimate of 210 million pregnancies, 80 million unwanted pregnancies, 50 million induced abortions, 20 million unsafe abortions, 68,000 deaths from unsafe abortion, and 20 million infections and disabilities following childbirth. We need to make sure that Uganda is not affected by such statistics by avoiding unwanted pregnancies and encouraging family planning.

Within the context of inadequate financial resources, mounting health demands, escalating healthcare costs, rising population, and heightened public expectations, midwifery and nursing services present a platform from which we can scale-up health interventions to assist in meeting national health targets. We need to strengthen and make affordable midwifery and nursing education while efficiently managing maternal and neonatal health challenges. Without adequate fully qualified midwives at their work stations, almost all the other strategies to reduce maternal mortality and morbidity are bound to fail. Among other key interventions, we need to invest in midwives and increase availability of emergency obstetric care, address unwanted pregnancies, encourage delayed first birth for adolescents, promote cross-sectoral linkages, reduce the risk of unsafe abortion, stamp out Female Genital Mutilation and address contextual factors such as women’s education, lack of male involvement, access to economic resources, etc.

Most importantly, all workshops discussing strategies must ensure that they have the active presence of policy makers to cultivate ownership on their part. Otherwise, the great ideas will always remain on paper.

Mr Masake works with Uganda Law Society. 
mskmas@yahoo.co.uk

FAMINE AND ENVIRONMENTAL PROBLEMS ARE CHILDREN OF THE SAME MOTHER

The Horn of Africa is currently facing acute food shortage, severe malnutrition, famine and over 11.6 million people are being directly affected. Scores of people and animals have reportedly starved to death and millions are surviving on a single meal a day. Scenes of rotting animal skeletons and sunken eyes of malnourished bony children on national television are commonplace. In the face of these difficult economic times, it is only obvious that the crisis is bound to worsen unless a lot is done to mitigate the situation.

In Uganda, districts of Moroto, Napak, Kotido, Amudat, Kaabong, Nakapiripirit, Abim, Amuria, Katakwi, Adjumani, Arua, Koboko, Moyo, Yumbe and Bulambuli have already been tagged a red-zone area by the government. It is however wise to anticipate that the humanitarian crisis may stretch across more districts in the face of sky rocketing food prices amidst declining purchasing power and low harvests. 

In as much as several factors are responsible for this huge humanitarian crisis, poverty, starvation/famine and environmental problems are children of the same mother, and that mother is ignorance. Ignorance of the relationship between nature and human well-being.

The challenge of seeking to avoid future starvation and famines in the region is daunting but one we immediately must all work towards since drought is a recurrent phenomenon and we have to live with it. The UN Secretary-General Ban Ki-moon noted that “short-term relief must be linked to building long-term sustainability …….this means an agricultural transformation that improves the resilience of rural livelihoods and minimizes the scale of any future crisis. It means climate-smart crop production, livestock rearing, fish farming and forest maintenance practices that enable all people to have year-round access to the nutrition they need."

There is no way agricultural transformation which improves rural livelihoods can be attained when man is hostile to biodiversity. The Millennium Ecosystem Assessment presents a credible argument that human well-being largely depends on the services provided by nature. 

Biodiversity is declining rapidly due to drivers of which most of them are human-induced such as climate change, land use change, economic activity, technology, human population, habitat loss, pollution, overexploitation and other socio-political and cultural drivers. These drivers tend to interact and amplify each other.  

Biodiversity loss posses strong negative effects on several aspects of human well being such as food insecurity, and sudden environmental changes such as droughts, acute deterioration of farm soils fertility, floods, diseases and scarcer access to water resources.

With the explosive human population in this region of the world, communities have various competing goals, many of which depend on biodiversity. Due to socio-economic pressures, people are increasingly putting more pressure on ecosystems by trying to modify them to improve on their productivity which results in an irreversible change of the ecosystems. In the long-term, the value lost of such trade-offs may by far exceed the short-term economic benefits that may have been gained from the trade-off as we are now experiencing.

To mitigate this calamity, the necessity to tag monetary value benefits to an ecosystem by assessing their full economic value is crucial. 

It is wise for us to conserve our biodiversity by integrating it into agriculture, forestry, and fishery sectors because they affect it directly since they are wholly dependent on biodiversity. We need strong institutions in place to enforce sustainable use of ecosystems and inform communities of the benefits of conserving biodiversity. Other actions such as adapting to climate change and increasing transparency of decision making processes need to be put in place as well.

Masake Anthony

The writer works with Uganda Law Society

mskmas@yahoo.co.uk