This is a response to a blog article entitled 'Mr. Mwenda your article on Rwanda is heavily one sided and probably compromised' available at http://ugandaspeaks.wordpress.com/2010/08/11/mr-mwenda-your-article-on-rwanda-is-heavily-one-sided-and-probably-compromised/. It was written in response to Andrew Mwenda’s 'Rwandans again disprove sceptics' available at http://independent.co.ug/index.php/the-last-word/the-last-word/3-the-last-word/3323-rwandans-again-disprove-sceptics
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Dear Stephen, allow me to make a few comments on your post. However, please note that my intention is to do so in the most respectful and cordial way position. In the event that my tone sounds disrespectful or 'ugly,' please pardon the limits of my diction of the language of this forum;-
Phraseology
I begin by stating that I have a problem with the heading of your piece especially with the use of the word ‘compromised’. It is arguable that Andrew’s piece is one-sided, however, I do not think that the mere fact that he agrees (or seems to agree) with Kagame's governance and developmental policies, means Mwenda is 'probably compromised'.
I would suggest that a further elucidation on why you arrive at this would help. As I understand it, our Constitution allows everyone freedom of speech and expression - which freedom, i presume, allows one to criticise - but also to 'support / agree' with a position. In the premises, I think mere agreement or support does not necessarily mean 'compromise' unless one had a stated position which one has departed from and we can be able to systematically identify this strain of compromise -
'Opposition' based 'democracy'
Further, you also state that ‘there was no opposition' (in Rwanda) during the last elections. This is, in my humble opinion, a very wide statement. It would probably be more authentic if you substantiate on what you mean by an ‘opposition' and whether the ‘opposition’ must only come from a system that has nothing to do with the current status quo as one could borrow the inference from the reasoning of Professor Kelsey when he opined that a revolution is one which completely overhauls a status quo.
I therefore find hard to appreciate your criticism of the opposition in Rwanda. We have seen opposition parties in Uganda arise from the status quo- as should always be the case. However they still qualify to be oppositions even without a political following or without political space. Look at the Dalai Lama, the monks in Tibet, Aung San Suu Kyi, and many other examples. More so, we have seen political coalitions all over the world that discard the idea of an opposition - for a while - UK, Zimbabwe, Kenya or in some cases members of the opposition are incorporated into the new government - see USA's Secretary for Defence ( advise me if I am wrong). Look at the modern democracies in Israel, France, and Italy - (even Russia where President Putin is now Prime Minister?) etc. Is that an affront to a proper opposition? I wonder.
In my humble analysis - if one can call it that, I do not think that for one to be an opposition member in Rwanda, such a person/persons must only be like Victoria Ingabire who was arrested for inter alia. denying the genocide. However, without breaking the rules of sub judice - if at all they apply-, Legislation that criminalises denying of holocausts is not unique to Rwanda alone. (http://en.wikipedia.org/wiki/Holocaust_denial). Neither are allegations of state sponsored killings unique to Rwanda alone ( http://world-ice.com/Articles/Assassinations.pdf or http://www.iespolicy.org/files/08.27.09%20Chyanda.pdf )
The Democracy Peril
I am therefore compelled to ask what a ''respectable democratic process'' should look like - before we ask the broader questions of whether democracy is really the way to go anyway. Look at the case of Botswana hitherto applauded for its democratic tendencies. Compare it to the ouster of Mbeki or the de-nationalisation of Chiluba and Kaunda from President(s) to non-citizen(s). The story(ies) of undemocratic processes in what we applaud as democratic nations run like an endless river drip in and out of Africa.
I am not happy with the fact that a coalition government can be formed when people have EXPRESSLY stated their views through the ballot box. Does this make it less or more of a democratic process? I wonder especially recalling the words of one long gone - "Democracy is the worst form of government, except for all those other forms that have been tried from time to time." (Winston Churchill, House of Commons speech Nov. 11, 1947).
The aforementioned notwithstanding, please do not misunderstand my reservations as a hoodwink to cover Rwanda's failures in ‘democracy’ or ‘human rights’. (I place these two words in quotations marks because they mean different things for different people). Rather, I would like to learn to know more. For example, what yardsticks do we use when gauging the state of Rwanda as ‘an enclave in repression in that part of Africa’ as compared to Libya, Egypt, Sudan, Ethiopia or Somalia? Better (or worse) still, let us compare it to say other states be it USA, Canada, Jamaica or even Iran, Iraq, Libya, Sudan or any other country? Are any of these countries exemplary and if so, what yardsticks are used?
Way forward
I guess all that I am saying is that statements like ''Who does not see that democracy and human rights in Rwanda have hit the skids and are on a roller-coaster.'' OR ‘‘the recent events coming out of that country have provided a clear indication of what governance in that country is like.'' Or ‘‘Rwanda seems to be turning into an enclave in repression in that part of Africa'' OR ''Rwanda seems to be turning into a country of fear'' are hard to appreciate by folks like me who need more than just the statement to believe the statement.
Of course, no doubt. Just like Andrew Mwenda, you are entitled to hold these views. However, if these views are meant to help others like me, to appreciate or realise ''the truth'' that Andrew has hidden from our eyes, we need much more evidence to counter one position as against the other. I have for example, questioned a few people who are currently living and working in Rwanda. People who told me (and I do not know if it is true) that voted early this month. People whose account of the events in Rwanda seem to be different from what you insinuate above. Their version of the events seems to be different from what you write. However, that does not mean you have no iota of truth in what you say. However, it means they, like Andrew, might be appreciating a different Rwanda from what we know or hear about. That is why I find it hard to discount the version of Mwenda outright as either one sided or compromised. This is because, unlike me and many others, he was IN Rwanda at the time in question. He observed the elections and followed the debates. He questioned the president at a recent talk show as reported by David Kiiza- Musoke(http://www.monitor.co.ug/News/National/-/688334/975168/-/x3a4e0/-/index.html ) at least there is photographic and print evidence for all this. Is that enough justification for us to accept his views as gospel truth? No. Is it still possible to discount his views? Again, in my humble opinion, No.
It is true as you state that 'REPRESSED AFRICA (emphasis mine) seems to be taking the view that when a leader does something good for the country, we should celebrate at the favour he has done ‘his’ people.'' Indeed this is, with due respect, a no-brainer. It is and has always been the vote-buyer. It is politics. It is life. Like the proverb states in one of our Ugandan local languages, ‘a pumpkin that is going to bear fruit, starts with a flower.’ We vote for people because of what they HAVE DONE or what they WILL DO (once again emphasis mine). To discount the 93% votes given to Kagame as a result of a non-existing opposition is in my view problematic. In the absence of evidence to show that those who wanted to vote for the opposition were forced, hounded out of their homes and 'made' to vote, I will find it hard to believe so. Remember that while many of us will assume that Presidents like Kagame or others like Mugabe, Hitler, Museveni, or even Italy’s Silvio Berlusconi have no place in today’s world, they are propped there for a variety of reasons – spelt as majority voice otherwise called democracy.
Conclusion
Humanity has a will. The will to choose. We choose to vote or not to vote. By casting my vote or refraining from voting, I have 'participated' in the same way as one who voted for the 'opposition' whatever that means.
Last but not least, I do agree that we should condemn leaders who are ‘‘heavy handed’’ Who as you state, 'think... everybody who has a different opinion does not deserve any space''. However I should add that such condemnation must be done on the basis of credible or at least convincing evidence rather than mere conjecture. In the event however that such condemnation is based on the latter, it should be made clear.
If in writing this peice, I have broken the rules that I seek to apply, i accept my shortcomings
I thank you
Monday, August 16, 2010
Sunday, August 08, 2010
ON SEDITION
This article is inspired by the various debates surrounding the arrest and questioning of the Editor of the Uganda Record Timothy N. Kalyegira mainly due to the Uganda Record reports on the bomb blasts in Kampala on the night of July 11, 2010 and the insinuation or suggestion by the Uganda Record that this could have been a state-orchestrated crime.
In my opinion, it is easier and even cheaper to ignore or counter divergent views rather than try to police people’s thoughts, opinions and ‘conspiracy’ theories. However, the closure of media houses or the prosecution of journalists as an option of first resort does not and has not helped in clearing the air about allegations made or opinions expressed. More so, the trial of the Daily Monitor journalists for criminal defamation allegedly because they reported about Justice Mwondha's double salary as IGG and Judge clearly showed the ineffectiveness of such prosecutions.
In my experience, one will receive tangible results when journalists are sued (instead of) prosecuted e.g. Teddy Sezzi Cheeye while Editor of the Uganda Confidential. Assuming that what has been opined is untrue and has injured the one’s reputation, the aggrieved party has the right to sue for damages for defamation. However, in order to be successful, one must show in the first instance that they did have a reputation and that the reputation was damaged and that the opinion is the sole cause of the damaged reputation. In such suits, the publisher or writer must prove that the opinion or publication was not fair comment or privileged or justified "truth." This is why General Moses Ali's suit against the Daily Monitor newspaper failed. Indeed failure to successfully sue might lead to the defendant publisher claiming for costs against the plaintiff like in the case of Ofwono Opondo Vs The Daily Monitor Newspaper when the plaintiff withdrew his suit probably upon realizing the futility of his claim.
I obviously agree that the State is in a catch 22 situation of recognizing rights of others while protecting rights of others. However, His Lordship Justice Mulenga held in the petition of Charles Onyango Obbo and Andrew Mwenda Versus the Attorney General that (I)t can be said that tolerating offensive conduct and speech is one of the prices to be paid for a reasonably free and open society… In his opinion, which I agree with, Article 29 (1) (a) does not stipulate or specify what a person is free to say or express. Both the constitution and the Press and Journalist Act, which was enacted in 1995 to ensure the freedom of press, do not provide a definition of freedom of expression or of the press. Was this an over sight? I think not. In any case we have seen that there have been situations where previous denials have been proven as true like the International Court of Justice's findings on the involvement of Uganda in DRC.
Depending on what the content of the publication is, the resort to criminal “redresses” in my view does not normally help unless the state is draconian. It is a clear violation of the right to freedom of expression and an infringement on the right to information. In any case, as Dr. Henry Odhiambo notes in his HURIPEC working Paper 18 REFLECTIONS ON FREEDOM OF EXPRESSION IN UGANDA’S FLEDGLING DEMOCRACY, “As a mechanism for immunization of the leadership to adverse criticism by their subjects, sedition can therefore only be maintained where the goals of the leadership are to stifle accountability and promote graft, inefficiency, and all sorts of political decadence.” This is probably why most of these prosecutions have either failed to take off or been withdrawn especially after the 1995 Constitution was promulgated.
I will borrow the reasoning of the Indian Supreme Court decision in Rangarajan v. Ram, to wit; commitment to freedom of expression demands that it cannot be suppressed unless the situations created by allowing the freedom are pressing and the community interest is endangered. The anticipated danger should not be remote, conjectural or farfetched. It should have proximate and direct nexus with the expression. The expression should be intrinsically dangerous to the public interest. In other words, the expression should be inseparably locked up with the action contemplated like the equivalent of a ‘spark in a powder keg’.
Therein lies the challenge - what is public interest? How do we measure public interest? It is very problematic to assume what is or is not public interest. Therefore, like in the case of CBS being closed, the nexus between the riots and the broadcasts have to be clearly made not assumed. That is why in the first sedition challenge, the Constitutional Court held that assuming a right will be infringed is not enough. Allowing others to determine this reminds me always of the Henrik Ibsen book An Enemy of the People - recalling that public interest can easily be swayed by a convincing tongue like the one of by Mark Anthony after the assassination of Julius Caesar.
I therefore agree with Dr. Odhiambo when he further notes that “In targeting the intention of the author of any communication and his or her message, (the Ugandan law on ) Sedition makes unfortunate assumptions that create a real and substantial risk of punishing constitutionally protected conduct, particularly in form of viewpoints. In the first place, the provision seems to assume homogeneity of the audience in terms of how they interact and perceive any given communications. Secondly, the provision also seems to be premised on the rather unfortunate assumption that leaders must always be highly regarded by the public. To the contrary, as already stated, not only do studies “in cognitive psychology and behavioral economics indicate that individuals operate with significant, persistent perceptual biases,”54 but it also deserves reiterating the point that the traditional, conservative view of the relationship between the governed and the governors has no place in a democracy.”
I rest my case
……………..
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Daniel R. Ruhweza Esq.
Attorney & Lecturer-At-Law
http://danielruhweza.blogspot.com/
Those who stand for nothing, fall for anything. Alexander Hamilton, US lawyer & politician (1755 - 1804)
In my opinion, it is easier and even cheaper to ignore or counter divergent views rather than try to police people’s thoughts, opinions and ‘conspiracy’ theories. However, the closure of media houses or the prosecution of journalists as an option of first resort does not and has not helped in clearing the air about allegations made or opinions expressed. More so, the trial of the Daily Monitor journalists for criminal defamation allegedly because they reported about Justice Mwondha's double salary as IGG and Judge clearly showed the ineffectiveness of such prosecutions.
In my experience, one will receive tangible results when journalists are sued (instead of) prosecuted e.g. Teddy Sezzi Cheeye while Editor of the Uganda Confidential. Assuming that what has been opined is untrue and has injured the one’s reputation, the aggrieved party has the right to sue for damages for defamation. However, in order to be successful, one must show in the first instance that they did have a reputation and that the reputation was damaged and that the opinion is the sole cause of the damaged reputation. In such suits, the publisher or writer must prove that the opinion or publication was not fair comment or privileged or justified "truth." This is why General Moses Ali's suit against the Daily Monitor newspaper failed. Indeed failure to successfully sue might lead to the defendant publisher claiming for costs against the plaintiff like in the case of Ofwono Opondo Vs The Daily Monitor Newspaper when the plaintiff withdrew his suit probably upon realizing the futility of his claim.
I obviously agree that the State is in a catch 22 situation of recognizing rights of others while protecting rights of others. However, His Lordship Justice Mulenga held in the petition of Charles Onyango Obbo and Andrew Mwenda Versus the Attorney General that (I)t can be said that tolerating offensive conduct and speech is one of the prices to be paid for a reasonably free and open society… In his opinion, which I agree with, Article 29 (1) (a) does not stipulate or specify what a person is free to say or express. Both the constitution and the Press and Journalist Act, which was enacted in 1995 to ensure the freedom of press, do not provide a definition of freedom of expression or of the press. Was this an over sight? I think not. In any case we have seen that there have been situations where previous denials have been proven as true like the International Court of Justice's findings on the involvement of Uganda in DRC.
Depending on what the content of the publication is, the resort to criminal “redresses” in my view does not normally help unless the state is draconian. It is a clear violation of the right to freedom of expression and an infringement on the right to information. In any case, as Dr. Henry Odhiambo notes in his HURIPEC working Paper 18 REFLECTIONS ON FREEDOM OF EXPRESSION IN UGANDA’S FLEDGLING DEMOCRACY, “As a mechanism for immunization of the leadership to adverse criticism by their subjects, sedition can therefore only be maintained where the goals of the leadership are to stifle accountability and promote graft, inefficiency, and all sorts of political decadence.” This is probably why most of these prosecutions have either failed to take off or been withdrawn especially after the 1995 Constitution was promulgated.
I will borrow the reasoning of the Indian Supreme Court decision in Rangarajan v. Ram, to wit; commitment to freedom of expression demands that it cannot be suppressed unless the situations created by allowing the freedom are pressing and the community interest is endangered. The anticipated danger should not be remote, conjectural or farfetched. It should have proximate and direct nexus with the expression. The expression should be intrinsically dangerous to the public interest. In other words, the expression should be inseparably locked up with the action contemplated like the equivalent of a ‘spark in a powder keg’.
Therein lies the challenge - what is public interest? How do we measure public interest? It is very problematic to assume what is or is not public interest. Therefore, like in the case of CBS being closed, the nexus between the riots and the broadcasts have to be clearly made not assumed. That is why in the first sedition challenge, the Constitutional Court held that assuming a right will be infringed is not enough. Allowing others to determine this reminds me always of the Henrik Ibsen book An Enemy of the People - recalling that public interest can easily be swayed by a convincing tongue like the one of by Mark Anthony after the assassination of Julius Caesar.
I therefore agree with Dr. Odhiambo when he further notes that “In targeting the intention of the author of any communication and his or her message, (the Ugandan law on ) Sedition makes unfortunate assumptions that create a real and substantial risk of punishing constitutionally protected conduct, particularly in form of viewpoints. In the first place, the provision seems to assume homogeneity of the audience in terms of how they interact and perceive any given communications. Secondly, the provision also seems to be premised on the rather unfortunate assumption that leaders must always be highly regarded by the public. To the contrary, as already stated, not only do studies “in cognitive psychology and behavioral economics indicate that individuals operate with significant, persistent perceptual biases,”54 but it also deserves reiterating the point that the traditional, conservative view of the relationship between the governed and the governors has no place in a democracy.”
I rest my case
……………..
--
--
Daniel R. Ruhweza Esq.
Attorney & Lecturer-At-Law
http://danielruhweza.blogspot.com/
Those who stand for nothing, fall for anything. Alexander Hamilton, US lawyer & politician (1755 - 1804)
On sedition and Hate Crimes
This article is inspired by the various debates surrounding the arrest and questioning of the Editor of the Uganda Record Timothy N. Kalyegira. http://ugandarecord.co.ug/ mainly due to the Uganda Record reports on the bomb blasts in Kampala on the night of July 11, 2010 and the insinuation or suggestion by the Uganda Record that this could have been a state-orchestrated crime.
The very fact that there are divergent views on whether or not Timothy Kalyegira should be questioned or tried for his views is enough to show the division on whether one should be tried for having a divergent view. In my opinion, it is easier and even cheaper to ignore or counter divergent views rather than try to police people’s thoughts, opinions and ‘conspiracy’ theories.
The fact that there is no universal application of what can and cannot be said or written makes it even more complicated. In Canada and USA, it is an offence to preach against homosexuality ( see http://www.christianlawjournal.com/featured-articles/british-street-preacher-harrassed-by-police-for-preaching-against-homosexuality/; http://theologica.ning.com/forum/topics/so-it-is-now-illegal-to-preach?xg_source=activity; OR http://www.christianlawjournal.com/featured-articles/professor-fired-for-teaching-catholic-doctrine-on-homosexuality-is-reinstated/; OR http://www.christianlawjournal.com/featured-articles/street-preacher-can-preach-hell-fire-even-more/) while in Uganda it is an offence to promote homosexuality.
In other countries like Rwanda, one cannot question the occurrence of the genocide.( http://en.wikipedia.org/wiki/Laws_against_Holocaust_denial.) Indeed Peter Erlinder, who is lead defense lawyer at the U.N.'s International Criminal Tribunal for Rwanda was arrested for denying the Rwanda genocide. (http://www.reuters.com/article/idUSTRE6515H320100602).
The aforementioned status quo is just a tip of the iceberg regarding the whole human rights debate which includes controversies like abortion, death penalty, female genital mutilation, dress codes, extra ordinary rendition and other various issues which border on cultural relativism, legal pluralism, and many other yardsticks.
It is probably enough to say that their existence cannot be ignored as noted by the British Foreign Office website reminding tourists visiting the United Arab Emirates that "You should respect local traditions, customs, laws and religions at all times, and be aware of your actions to ensure that they do not offend other cultures or religious beliefs. Women should dress modestly when in public areas, such as shopping malls. Clothes should cover the tops of the arms and legs, and underwear should not be visible. Public displays of affection are frowned upon and there have been several arrests for kissing in public." (http://uk.news.yahoo.com/21/20100805/tuk-bikini-briton-arrested-in-dubai-6323e80.html)
With the aforementioned background, when one tries to analyse the offence of sedition per se, one cannot imagine how many people would be in gaol today -worldwide- if they were prosecuted for having conspiracy views which would be considered “seditious thoughts, expressions or theories.”
In America today, the list of writers and producers of controversy is endless. I can easily mention the controversial book Obama Nation ( http://en.wikipedia.org/wiki/The_Obama_Nation whose author was deported from Kenya - http://www.timesonline.co.uk/tol/news/world/africa/article4897758.ece, The Zeitgeist movie (http://www.zeitgeistmovie.com/, and the documentary Fahrenheit 9/11 http://turktube.nl/video/1564e43565ae9fc/Fahrenheit-911--Michael-Moore- http://www.imdb.com/title/tt0361596/plotsummary; http://en.wikipedia.org/wiki/Fahrenheit_9/11. I suspect if these had been produced in Uganda, those responsible would certainly be behind bars or crippled financially like former Chief Editor of the Uganda Confidential, Teddy Sezzi Cheeye.
Be that as it may, I do acknowledge that the state is in a “catch 22” situation. It needs to deter divergent views while in the same vein should be seen to promote freedom of speech and expression as mandated by our Constitution, the African Charter of Civil and Political Rights as well as the international Covenant on Civil and Political rights. The Bahati Bill‘s attempt to oust Uganda’s commitment to these international covenants clearly shows the dilemma our legislators face. We should therefore expect the State to act when we challenge it - however, the State will not act in a fashion that we think it ought. It might close media houses like CBS or arrest journalists and in extreme cases lock them up for good or as is reported in many jurisdictions worldwide, kill them like the hanging of Ken Saro Wiwa of Nigeria. (http://africanhistory.about.com/od/countrieswest/a/SaroWiwa.htm)
In Uganda, our State normally prosecutes the journalists or writers of "controversial" articles or programmes. According to the Independent Magazine, personalities like Andrew Mwenda, Managing Editor The Independent magazine, James Tumusiime; the Managing Editor The Observer newspaper, Ssemujju Ibrahim Nganda, the Political Editor The Observer newspaper, a Luwero farmer David Ntege, Beti Kamya; MP Lubaga North, Hussein Kyanjo; MP Makindye West, Issa Kikungwe; MP Kyadondo South, Betty Nambooze Bakireke; DP Spokesperson, Meddie Nsereko of CBS Radio, David Mpanga, Buganda's Research Minister and Daudi Ziwa have been either charged or quizzed. (http://allafrica.com/stories/201001270492.html).
These people have joined the ranks of Rosa Parks, Martin Luther King Jr, Mandela, Aung Sang Suu Kyi, and many others who refused to keep quiet about the injustices they see in their communities and have instead taken the road less travelled by exercising their rights to civil liberties including the freedom of expression. Whereas many of us will hold their actions as illegal, I strongly recommend that those who have not, should read a stellar piece by Martin Luther King Jr – Letter from a Birmingham Jail- http://www.africa.upenn.edu/Articles_Gen/Letter_Birmingham.html - where he states at one point that “one has a moral responsibility to disobey unjust laws. I would agree with St. Augustine that "an unjust law is no law at all." Such reasoning is what led to the release of Nelson Mandela, the Civil Rights Act in America (which paved the way for blacks to vote), as well as the successful challenges to laws like the Witchcraft Act of Uganda, corporal punishment, divorce, adultery and others. It is this reasoning that has laid the ground for female emancipation, the Anti female genital mutilation Act among others.
It is upon this basis that I agree with the Supreme Court’s findings in which that "publication of false news" cannot be an offence as it contravened Article 29 (1) (a) which states that every person shall have the right to freedom of speech and expression, which shall include freedom of the press and other media. Section 50 on false news, provided that any person who publishes false news, statement, rumors or report, which is likely to cause fear and alarm, commits a misdemeanor.
The lead judgment by Justice Mulenga noted that;
...in the absence of constraints of freedom of expression, the objective of upholding the truth would be defeated… I do agree that Article 29 (1) of the Constitution guarantees free speech and expression and also secures press freedom. These are fundamental rights. It can be said that tolerating offensive conduct and speech is one of the prices to be paid for a reasonably free and open society… Article 29 (1) (a) does not stipulate or specify what a person is free to say or express. Both the constitution and the Press and Journalist Act, which was enacted in 1995 to ensure the freedom of press, do not provide a definition of freedom of expression or of the press… Nevertheless, there is no dispute as to what that freedom encompasses… In the 1967 constitution, and before that, in the independence constitution of 1962, the freedom of expression was defined as freedom to hold opinions and to receive and impart ideas and information without interference. The African Charter on Human and Peoples' Rights, an international instrument for freedom to which Uganda is party, in its article 9, also states that every individual shall have the right to receive information, expression and disseminate his opinions within the law. The Supreme Court Justices submitted and declared Section 50 of the Penal Code void. (http://allafrica.com/stories/201004120772.html)
The Constitutionality of the offence of sedition has now been challenged by Andrew Mwenda after being arrested for his views on the death of Garang. http://andrewmwendasblog.blogspot.com/2008/11/when-uganda-arrests-its-most-prominent.html. Obviously it isn't Mwenda alone who holds this view. The law self-acknowledges its limits when it confines itself to those who commit the offence by “act, speech or publication” (Section 39(2). That sedition has been challenged previously is clear. See Uganda Journalists Safety Committee and Others v Attorney General (Ruling) (Constitutional Petition No. 7 of 1997) [1997] UGCC 9 (19 December 1997) ( http://www.ulii.org/ug/cases/UGCC/1997/9.html )
In my view, the aforementioned challenge led to the amendment of the charge sheet to include another problematic offence of 'promoting sectarianism." We wait to see the findings of the Constitutional Court. Subsequently however, Hon. Betty Kamya Member of Parliament for Lubaga North was charged with the above offence for penning a controversial article which inter alia queried President Museveni’s Ugandan heritage. The article, entitled “Where is Museveni's Heart, (Daily Monitor, January 28, 2008) drew a 17 page response from the President which in my view, was the right response to such articles because the readers are then given fair ground to engage with the issues. However, by seeking to prosecute Kamya, the legislator was given another opportunity to query why those who promote are charged in the courts of law but those who actively carry out the deed are not. It is worth noting that these cases have never been prosecuted to date.
Now I think many of us have said, written or expressed views which would easily be construed as seditious. However why do we continue to do so – in spite of the law? Allow me suggest that it is because we agree with the reasoning of Martin Luther King Jr. who stated -
We should never forget that everything Adolf Hitler did in Germany was "legal" and everything the Hungarian freedom fighters did in Hungary was "illegal." It was "illegal" to aid and comfort a Jew in Hitler's Germany. Even so, I am sure that, had I lived in Germany at the time, I would have aided and comforted my Jewish brothers. If today I lived in a Communist country where certain principles dear to the Christian faith are suppressed, I would openly advocate disobeying that country's antireligious laws.
I quote Dr. Henry Odhiambo with approval when he notes that
‘In a democratic dispensation, accountability on the part of the leadership to its subjects is a critical requirement. It is through such accountability that the electorate can make informed decisions for purposes of casting their votes. It therefore follows without debate that leaders under a democratic dispensation cannot afford to shield themselves from adverse criticism. As a mechanism for immunization of the leadership to adverse criticism by their subjects, Sedition can therefore only be maintained where the goals of the leadership are to stifle accountability and promote graft, inefficiency, and all sorts of political decadence.” http://www.huripec.mak.ac.ug/working_paper_18.pdf
Does this mean that the writer or opinion maker should have no sensitivity or responsibility? Obviously not. Apart from recognizing that journalists have the right to protect their sources of information, a reasoning which is similar to the Witness Protection Act recently passed in Uganda, Article 43 does envisage that there will be a limitation of fundamental freedoms justified if it infringes upon other fundamental rights or on the public interest.
As Dr. Odhiambo notes, over and above the requirement to found a limitation on fundamental rights upon legitimate and compelling legislative objectives, it is critical that any such limitation does not unnecessarily diminish the enjoyment of the right in issue, as well as infringe upon other rights… the standard to be met in ensuring that any limitation is not caught by the doctrine of over breadth is one of proximity (causality) between the intended objective and the potential effect of the limitation.
I agree with the finding of the Indian Supreme Court decision in Rangarajan v. Ram to wit; our commitment to freedom of expression demands that it cannot be suppressed unless the situations created by allowing the freedom are pressing and the community interest is endangered. The anticipated danger should not be remote, conjectural or farfetched. It should have proximate and direct nexus with the expression. The expression should be intrinsically dangerous to the public interest. In other words, the expression should be inseparably locked up with the action contemplated like the equivalent of a ‘spark in a powder keg’.
Conclusively, Odhiambo writes that
“The Ugandan law on Sedition would certainly fail this principle of constitutionality. In targeting the intention of the author of any communication and his or her message, the Sedition provision makes unfortunate assumptions that create a real and substantial risk of punishing constitutionally protected conduct, particularly in form of viewpoints. In the first place, the provision seems to assume homogeneity of the audience in terms of how they interact and perceive any given communications. Secondly, the provision also seems to be premised on the rather unfortunate assumption that leaders must always be highly regarded by the public. To the contrary, as already stated, not only do studies “in cognitive psychology and behavioral economics indicate that individuals operate with significant, persistent perceptual biases,” but it also deserves reiterating the point that the traditional, conservative view of the relationship between the governed and the governors has no place in a democracy.”
I rest my case.
The very fact that there are divergent views on whether or not Timothy Kalyegira should be questioned or tried for his views is enough to show the division on whether one should be tried for having a divergent view. In my opinion, it is easier and even cheaper to ignore or counter divergent views rather than try to police people’s thoughts, opinions and ‘conspiracy’ theories.
The fact that there is no universal application of what can and cannot be said or written makes it even more complicated. In Canada and USA, it is an offence to preach against homosexuality ( see http://www.christianlawjournal.com/featured-articles/british-street-preacher-harrassed-by-police-for-preaching-against-homosexuality/; http://theologica.ning.com/forum/topics/so-it-is-now-illegal-to-preach?xg_source=activity; OR http://www.christianlawjournal.com/featured-articles/professor-fired-for-teaching-catholic-doctrine-on-homosexuality-is-reinstated/; OR http://www.christianlawjournal.com/featured-articles/street-preacher-can-preach-hell-fire-even-more/) while in Uganda it is an offence to promote homosexuality.
In other countries like Rwanda, one cannot question the occurrence of the genocide.( http://en.wikipedia.org/wiki/Laws_against_Holocaust_denial.) Indeed Peter Erlinder, who is lead defense lawyer at the U.N.'s International Criminal Tribunal for Rwanda was arrested for denying the Rwanda genocide. (http://www.reuters.com/article/idUSTRE6515H320100602).
The aforementioned status quo is just a tip of the iceberg regarding the whole human rights debate which includes controversies like abortion, death penalty, female genital mutilation, dress codes, extra ordinary rendition and other various issues which border on cultural relativism, legal pluralism, and many other yardsticks.
It is probably enough to say that their existence cannot be ignored as noted by the British Foreign Office website reminding tourists visiting the United Arab Emirates that "You should respect local traditions, customs, laws and religions at all times, and be aware of your actions to ensure that they do not offend other cultures or religious beliefs. Women should dress modestly when in public areas, such as shopping malls. Clothes should cover the tops of the arms and legs, and underwear should not be visible. Public displays of affection are frowned upon and there have been several arrests for kissing in public." (http://uk.news.yahoo.com/21/20100805/tuk-bikini-briton-arrested-in-dubai-6323e80.html)
With the aforementioned background, when one tries to analyse the offence of sedition per se, one cannot imagine how many people would be in gaol today -worldwide- if they were prosecuted for having conspiracy views which would be considered “seditious thoughts, expressions or theories.”
In America today, the list of writers and producers of controversy is endless. I can easily mention the controversial book Obama Nation ( http://en.wikipedia.org/wiki/The_Obama_Nation whose author was deported from Kenya - http://www.timesonline.co.uk/tol/news/world/africa/article4897758.ece, The Zeitgeist movie (http://www.zeitgeistmovie.com/, and the documentary Fahrenheit 9/11 http://turktube.nl/video/1564e43565ae9fc/Fahrenheit-911--Michael-Moore- http://www.imdb.com/title/tt0361596/plotsummary; http://en.wikipedia.org/wiki/Fahrenheit_9/11. I suspect if these had been produced in Uganda, those responsible would certainly be behind bars or crippled financially like former Chief Editor of the Uganda Confidential, Teddy Sezzi Cheeye.
Be that as it may, I do acknowledge that the state is in a “catch 22” situation. It needs to deter divergent views while in the same vein should be seen to promote freedom of speech and expression as mandated by our Constitution, the African Charter of Civil and Political Rights as well as the international Covenant on Civil and Political rights. The Bahati Bill‘s attempt to oust Uganda’s commitment to these international covenants clearly shows the dilemma our legislators face. We should therefore expect the State to act when we challenge it - however, the State will not act in a fashion that we think it ought. It might close media houses like CBS or arrest journalists and in extreme cases lock them up for good or as is reported in many jurisdictions worldwide, kill them like the hanging of Ken Saro Wiwa of Nigeria. (http://africanhistory.about.com/od/countrieswest/a/SaroWiwa.htm)
In Uganda, our State normally prosecutes the journalists or writers of "controversial" articles or programmes. According to the Independent Magazine, personalities like Andrew Mwenda, Managing Editor The Independent magazine, James Tumusiime; the Managing Editor The Observer newspaper, Ssemujju Ibrahim Nganda, the Political Editor The Observer newspaper, a Luwero farmer David Ntege, Beti Kamya; MP Lubaga North, Hussein Kyanjo; MP Makindye West, Issa Kikungwe; MP Kyadondo South, Betty Nambooze Bakireke; DP Spokesperson, Meddie Nsereko of CBS Radio, David Mpanga, Buganda's Research Minister and Daudi Ziwa have been either charged or quizzed. (http://allafrica.com/stories/201001270492.html).
These people have joined the ranks of Rosa Parks, Martin Luther King Jr, Mandela, Aung Sang Suu Kyi, and many others who refused to keep quiet about the injustices they see in their communities and have instead taken the road less travelled by exercising their rights to civil liberties including the freedom of expression. Whereas many of us will hold their actions as illegal, I strongly recommend that those who have not, should read a stellar piece by Martin Luther King Jr – Letter from a Birmingham Jail- http://www.africa.upenn.edu/Articles_Gen/Letter_Birmingham.html - where he states at one point that “one has a moral responsibility to disobey unjust laws. I would agree with St. Augustine that "an unjust law is no law at all." Such reasoning is what led to the release of Nelson Mandela, the Civil Rights Act in America (which paved the way for blacks to vote), as well as the successful challenges to laws like the Witchcraft Act of Uganda, corporal punishment, divorce, adultery and others. It is this reasoning that has laid the ground for female emancipation, the Anti female genital mutilation Act among others.
It is upon this basis that I agree with the Supreme Court’s findings in which that "publication of false news" cannot be an offence as it contravened Article 29 (1) (a) which states that every person shall have the right to freedom of speech and expression, which shall include freedom of the press and other media. Section 50 on false news, provided that any person who publishes false news, statement, rumors or report, which is likely to cause fear and alarm, commits a misdemeanor.
The lead judgment by Justice Mulenga noted that;
...in the absence of constraints of freedom of expression, the objective of upholding the truth would be defeated… I do agree that Article 29 (1) of the Constitution guarantees free speech and expression and also secures press freedom. These are fundamental rights. It can be said that tolerating offensive conduct and speech is one of the prices to be paid for a reasonably free and open society… Article 29 (1) (a) does not stipulate or specify what a person is free to say or express. Both the constitution and the Press and Journalist Act, which was enacted in 1995 to ensure the freedom of press, do not provide a definition of freedom of expression or of the press… Nevertheless, there is no dispute as to what that freedom encompasses… In the 1967 constitution, and before that, in the independence constitution of 1962, the freedom of expression was defined as freedom to hold opinions and to receive and impart ideas and information without interference. The African Charter on Human and Peoples' Rights, an international instrument for freedom to which Uganda is party, in its article 9, also states that every individual shall have the right to receive information, expression and disseminate his opinions within the law. The Supreme Court Justices submitted and declared Section 50 of the Penal Code void. (http://allafrica.com/stories/201004120772.html)
The Constitutionality of the offence of sedition has now been challenged by Andrew Mwenda after being arrested for his views on the death of Garang. http://andrewmwendasblog.blogspot.com/2008/11/when-uganda-arrests-its-most-prominent.html. Obviously it isn't Mwenda alone who holds this view. The law self-acknowledges its limits when it confines itself to those who commit the offence by “act, speech or publication” (Section 39(2). That sedition has been challenged previously is clear. See Uganda Journalists Safety Committee and Others v Attorney General (Ruling) (Constitutional Petition No. 7 of 1997) [1997] UGCC 9 (19 December 1997) ( http://www.ulii.org/ug/cases/UGCC/1997/9.html )
In my view, the aforementioned challenge led to the amendment of the charge sheet to include another problematic offence of 'promoting sectarianism." We wait to see the findings of the Constitutional Court. Subsequently however, Hon. Betty Kamya Member of Parliament for Lubaga North was charged with the above offence for penning a controversial article which inter alia queried President Museveni’s Ugandan heritage. The article, entitled “Where is Museveni's Heart, (Daily Monitor, January 28, 2008) drew a 17 page response from the President which in my view, was the right response to such articles because the readers are then given fair ground to engage with the issues. However, by seeking to prosecute Kamya, the legislator was given another opportunity to query why those who promote are charged in the courts of law but those who actively carry out the deed are not. It is worth noting that these cases have never been prosecuted to date.
Now I think many of us have said, written or expressed views which would easily be construed as seditious. However why do we continue to do so – in spite of the law? Allow me suggest that it is because we agree with the reasoning of Martin Luther King Jr. who stated -
We should never forget that everything Adolf Hitler did in Germany was "legal" and everything the Hungarian freedom fighters did in Hungary was "illegal." It was "illegal" to aid and comfort a Jew in Hitler's Germany. Even so, I am sure that, had I lived in Germany at the time, I would have aided and comforted my Jewish brothers. If today I lived in a Communist country where certain principles dear to the Christian faith are suppressed, I would openly advocate disobeying that country's antireligious laws.
I quote Dr. Henry Odhiambo with approval when he notes that
‘In a democratic dispensation, accountability on the part of the leadership to its subjects is a critical requirement. It is through such accountability that the electorate can make informed decisions for purposes of casting their votes. It therefore follows without debate that leaders under a democratic dispensation cannot afford to shield themselves from adverse criticism. As a mechanism for immunization of the leadership to adverse criticism by their subjects, Sedition can therefore only be maintained where the goals of the leadership are to stifle accountability and promote graft, inefficiency, and all sorts of political decadence.” http://www.huripec.mak.ac.ug/working_paper_18.pdf
Does this mean that the writer or opinion maker should have no sensitivity or responsibility? Obviously not. Apart from recognizing that journalists have the right to protect their sources of information, a reasoning which is similar to the Witness Protection Act recently passed in Uganda, Article 43 does envisage that there will be a limitation of fundamental freedoms justified if it infringes upon other fundamental rights or on the public interest.
As Dr. Odhiambo notes, over and above the requirement to found a limitation on fundamental rights upon legitimate and compelling legislative objectives, it is critical that any such limitation does not unnecessarily diminish the enjoyment of the right in issue, as well as infringe upon other rights… the standard to be met in ensuring that any limitation is not caught by the doctrine of over breadth is one of proximity (causality) between the intended objective and the potential effect of the limitation.
I agree with the finding of the Indian Supreme Court decision in Rangarajan v. Ram to wit; our commitment to freedom of expression demands that it cannot be suppressed unless the situations created by allowing the freedom are pressing and the community interest is endangered. The anticipated danger should not be remote, conjectural or farfetched. It should have proximate and direct nexus with the expression. The expression should be intrinsically dangerous to the public interest. In other words, the expression should be inseparably locked up with the action contemplated like the equivalent of a ‘spark in a powder keg’.
Conclusively, Odhiambo writes that
“The Ugandan law on Sedition would certainly fail this principle of constitutionality. In targeting the intention of the author of any communication and his or her message, the Sedition provision makes unfortunate assumptions that create a real and substantial risk of punishing constitutionally protected conduct, particularly in form of viewpoints. In the first place, the provision seems to assume homogeneity of the audience in terms of how they interact and perceive any given communications. Secondly, the provision also seems to be premised on the rather unfortunate assumption that leaders must always be highly regarded by the public. To the contrary, as already stated, not only do studies “in cognitive psychology and behavioral economics indicate that individuals operate with significant, persistent perceptual biases,” but it also deserves reiterating the point that the traditional, conservative view of the relationship between the governed and the governors has no place in a democracy.”
I rest my case.
MUSINGS
On the Burqa
This is obviously a controversial topic and whereas I do not hold out to be an expert but only seek to share my opinion on it.
Some will agree that when the Burqa is compared with other types of dress, there seems to be one major difference - one can see the face for most of the other types of attire. It is probably the harsh weather conditions that force people mainly from the desert and arid regions to cover their faces, a practice that subsequently took on religious and cultural undertones. This custom or tradition is common also in some hamitic tribes of mainly north, east and central Africa who tend to have pastoralist traditions or influences(J.H. Speke, Journal of the Discovery of the Source of the Nile, London: Blackwoods, 1863, p.247).
The Bantu speaking groups of Africa do not generally have this tendency although it is cropping up due to mixed marriages or the search for variety in fashion today. However, depending on how one is constructed, it seems that when exposed to other communities, shielding one's face all the time, be it with either dark shades or veils complicates communication and opens the door for as many assumptions as one can imagine.
Interestingly, the argument on the Burqa has taken on various paradigms. Many have argued in terms of "greater society's good", "dictatorship", "human rights", "majority rule" "education” or “empirical evidence" as opposed to (probably) "religion" or “culture”? I think that is where the rubber hits the road. The questions therefore become - What is society? Whose/ which society? How much leverage does one give to cultural or legal relativism? which religion supersedes the other? It seems these questions are a result of the perils of globalization.
Can we therefore have a compromise? http://vimeo.com/3004295
The reed dances performed by the virgin girls of Swaziland raise eyebrows in some societies in the same way that the Burqa or belly dancing would do in others. The “global village” is undergoing a struggle within itself to find a common ground on what should be the minimum standards for association. That is why I think our responses are based on our appreciation of these issues from our various cultural or religious world views.
How I would wish that my interpretation or world view of these issues should take precedence over other people. However, I know that is probably not possible to convince all and the debates will forever continue. As discovered by Jared Diamond in his stellar book, Guns, Germs and Steel, the opinions of those with the power to convince by either coercion or otherwise do and will take the day. It is unfortunately very Machiavellian and explains why some countries’ harsh human rights records have been ignored in the name of economics.
We will therefore continue to see this “new” global village struggling to form a new religion and culture. Ideally, I think the Darwinian backed theories of "survival for the fittest" will take prominence but that does not stop theorists and philosophers from dreaming of a “better” world where all views are respected and all types of yardsticks considered or implemented in the name of cultural and legal relativism. However, as noted earlier “reality” is that it all remains theoretical until a coercive or convincing power decides to implement or cajole others to implement it. This explains why France has been able to ban the Burqa totally while England grapples with the issue.
As the global village continue to wrestle within itself, I hope the solution compromise position will be in line with my worldview which urges me to propose, that at a bare minimum, human beings should be able to associate with each other on the same level plane – whereby we are able to see each other's faces and facial expressions when we communicate in each other's physical presence.
For now, let the debate continue
http://vimeo.com/3004295
ASLEEP
She is probably asleep right now
This lady of my delight
I wonder what she dreams about this dusk
My lady of great desire
Does she see me?
Walking up to her
Dear Lady are you there?
Taking her well manicured hand in mine?
Does she sense my presence?
Cool, deep, heavy
Awake !!
Sweet lady of my despair
I gaze at her resting eyelids and listen
Quiet graceful breathe
Smooth skin so pure so nice
This lady -
My lady of great excite
I see her now yet naught
My babe of perfect sight
She rests
Her small tiny frame –
Under long silky duvets of the fairest blue
Long beautiful hair
carefully capped behind her gazelle-like neck
Like a baby in a cradle
My one of silent night
Do I see her eyes dance?
Is it at the sight of me?
Does she blossom at the touch of my hand?
Like the flower kissed by the morning ray?
Beautiful lass
Of my eyes
She is asleep?
No?
Awake?
O my maiden of purest white
Does she sense my presence?
So near -Yet so far
Sweet lady of my entire
….
July 29, 2010
This lady of my delight
I wonder what she dreams about this dusk
My lady of great desire
Does she see me?
Walking up to her
Dear Lady are you there?
Taking her well manicured hand in mine?
Does she sense my presence?
Cool, deep, heavy
Awake !!
Sweet lady of my despair
I gaze at her resting eyelids and listen
Quiet graceful breathe
Smooth skin so pure so nice
This lady -
My lady of great excite
I see her now yet naught
My babe of perfect sight
She rests
Her small tiny frame –
Under long silky duvets of the fairest blue
Long beautiful hair
carefully capped behind her gazelle-like neck
Like a baby in a cradle
My one of silent night
Do I see her eyes dance?
Is it at the sight of me?
Does she blossom at the touch of my hand?
Like the flower kissed by the morning ray?
Beautiful lass
Of my eyes
She is asleep?
No?
Awake?
O my maiden of purest white
Does she sense my presence?
So near -Yet so far
Sweet lady of my entire
….
July 29, 2010
The Justice Buffet?
At the centre of this controversy is the question of justice and whether it was seen to be done. However this is only part of the wider discussions relating to allegations that British Petroleum Company wanted oil concessions in Libya and other political undertones. This melee’ has been referred to by the Daily Telegraph’s David Winnett as the oil for terrorists scandal in his July 20th 2010 article.
My attention is also drawn to a couple of years back, when I interviewed a middle aged woman who had been convicted and sentenced to death for allegedly hacking her husband to death. The lady admitted that she had done the dastardly deed in self defense although the courts of law thought otherwise. She then mentioned that she was more concerned about the welfare of her children, who were allegedly thrown out by her husband’s family into the streets and were reportedly scavenging for food in the city dumpsters. I did not venture to discover the authenticity of her story although it got me thinking about the whole concept of the multifaceted way in which people pay the price for what they have done.
In England, one Ian Huntley who is serving life sentence for killing school girls Holly Well s and Jessica Chapman aged 10 had his throat slashed with a razor blade in the prison where he is serving a life sentence. The 36 year old man is now suing the Prison service for over 100,000 pounds. 20,000 pounds for injuries and 60,000 pounds as punitive damages. Additionally, he is seeking 15000 pounds through the Criminal Injuries Compensation Authority. It should be noted that the families of the girls he slew in 2002 received 11000 pounds each for his actions.
Recently I asked a close acquaintance what justice was and with a near sneer, the response I got was that justice does not exist. The recent bombings in Kampala city which took place while middle age Ugandans were enjoying the final whistle of arguably the best world cup final hosted by south Africa further challenged me. The pictures of young men and women, probably in their late twenties, having recently gained their independence from their parents and enjoying their new found freedom at Kyadondo Rugby Club and Kabalagala Ethiopian restaurant got me wondering- What enemy was so enraged by this behavior? Were they really collateral damage? Will attacking the Al Shabaab hideouts in Somalia like the bombarding of Afghanistan and Iraq serve as “just desserts” for the dead, dying and injured? Is “compensation” of the said victims by the government of Uganda an adequate conclusion to this matter? In essence, is it justice?
With hindsight these sets of facts beg the question, was justice served and if so, whose justice was served?
Back to the case of the convicted wife I do suspect that many people will support the role of the state in punishing this unfortunate lady for what she did to her husband and I guess the arguments about taking the law into one’s own hands have been mentioned so many times that I need not get into the same discussion. The proponents for theories of punishment will certainly have a field day arguing to and fro why she needs to be punished. However, the truth (depending on what our interpretation of that is) remains that only the dead man and his now widowed wife know what happened on that fateful evening.
The question that I am now asking is whether it makes sense for the children of these two unfortunate parents to not only be deprived of a mother, but also neglected by the punishing party (read the state and immediate family) and cast into the dumpsters. The question that begs to be asked is whether such a punishment model is the best way forward in the circumstances. The kids will probably steal in order to survive or get involved in other forms of crimes – be it prostitution, drug trafficking, simple or armed robbery. That is if they do not get recruited into inhaling petroleum products in order to “forget their misery” and create more misery for law enforcement officers in future. As such there will be a rethinking of our criminal justice system which has taken what I refer to as the “well trodden path” in the pursuit of justice – this is retribution which at the end does not seem to achieve the real ends of justice.
Let us look at the Al Shabaab bombings in Kampala. The media is currently awash with stories of how the bombings could have occurred and how lax our security systems currently are. Those responsible have either blamed the organizers of the social gatherings for not being security conscious or struggled to put the blame on other technicalities. However the purpose of this article is not to levy blame however noble such a duty might be, but rather to ask the question – what would justice be for the victims and victim’s families?
What then is Justice? What should a meal of justice entail for a people who are starved of it? For a nation or a tribe? For a victim? What would the main course of such meal entail? Allow me to suggest that such a term has been misinterpreted by many. Some call retribution justice while others consider deterrence or rehabilitation as justice. I wish to suggest that these are merely different faces of justice and are not ends to justice in themselves. For some, deterrence of further crime should take priority while for others it is either to rehabilitate the offender or for retribution.
With regard to the Kampala bombings, I opine that, an apology from the organizers of these entertainment events, as well as from those who are given the honorable duty to detect and prevent crime should be the first attempt at “justice”. The effect of such an act is far reaching for the grieving families as was seen in Australia when former Prime Minister Kevin Rudd apologized for the former governments’ policies of taking away children of mixed race. The repercussions of the truth and reconciliation commission which largely brought to light a different concept of justice – the justice from Archbishop Desmond Tutu’s promotion of the concept ubuntuism-showed that forgiveness does have a unique part it plays in this “meal” of justice. This forgiveness makes the rest of the meal palatable. It is like the sauce – the accompanying stew. This concept of justice is mainly promoted in many indigenous communities of the world. It is seen expressed in various ways in New Zealand, Australia, Africa and other places. In Uganda, we see processes like Gomo Tong, Nyono Tong Gweno, Mato Oput in northern Uganda. It ensues that society can continue to live together in spite of the hardships that it has undergone. The confessions (if you call it that) by Winnie Mandela compared to the non-cooperation of the “old crocodile” P.K Botha are both telling in the incompleteness of this process and begs another ingredient into this meal.
Reparations?
I appreciate the fact that reparations have been promised to the victims of the 7/11 Kampala bombings. The International Criminal Court has also set up a fund for victims of mass atrocities, crimes against humanity and war crimes. However, it has been argued that this can only be fully appreciated and accepted after the perpetrators of these crimes are “brought to book”. As to what this means is a subject of debate by many criminologists, penologists and law makers worldwide. The concept of the “generally accepted view” of justice is also problematic since it depends of who is interviewed and what kind of exposure such interviewees have had. The perception as proposed by Rawls in his book “A Theory of Justice” that we can imagine a veil of ignorance/ clean plate when we consider questions of justice is discounted by Hans-Georg Gadamer's philosophical hermeneutics who argues that every act of interpretation/understanding is situated. History and tradition, Gadamer stresses, are always at work in understanding. As a result, any theory, according to which people, behind a "veil of ignorance", would be in a position to imagine a just society is unrealistic. Understanding inevitably takes place in a particular place and at a particular time. There is no overarching standpoint. As such therefore, to assume the reparations should be the highest or lowest consideration for the justice buffet is erroneous. I postulate that any vitamin-rich food in this diet of justice would be the reparations that restores the loss suffered especially if it is of an economic kind
Retribution ?
Equating retribution with justice has been a common concept used by many like Tim Allen in his book “Trial Justice.” For the proponents of this theory, giving the accused person his or her “just desserts” is sufficient to qualify as “justice.” The Hammurabi Code and the Mosaic laws of “an eye for an eye” have been justified as appropriate over the decades in spite of the silent voices of fallible trial systems like those of Jesus Christ, Thomas More, Saddam Hussein and others. The death penalty has been meted out for offences like murder, rape, corruption (in china) and treason. However, as the hanging of Saddam Hussein showed, the death penalty makes murderers of us all. In any case, it has been argued that Saddam Hussein was found guilty even before he was tried. The current trial of Charles Taylor by the Special Court for Sierra Leone will probably return a guilty verdict. The jury is “of course - officially - still out” in spite of the fact that the media has abandoned the requirement for respecting the rules of sub-judice. Turning back to this discourse on retribution, for some, imprisonment and the death penalty have lost their ethical and moral justifications mainly because of constitutional and political concerns coupled with challenges from the world-wide human rights movement- an equally complicated subject that I will reserve for another day.
However, the alternatives like restitution, fines, community service are either nonexistent or too expensive for many states to enforce in spite of the fact that they arguable make more sense for the victims of crime and injustice.
In many instances, people will seek retribution and justify it as the silver bullet for justice. Unfortunately, like in the case of the convicted mother, the children and relatives of the convicted end up suffering and in many cases are scarred for life. As to whether this is a justifiable consequence for punishment of their convicted relative is questionable conclusion.
Many will however agree that retribution does take the cake (if you come from the western world) or is the meat (for the African cultures) of any meal. However, in light of the fact that there are diabetics, vegetarians or probably Hindu visitors in our midst, it is worth considering alternative meals for the various attendees.
Rehabilitation
My visits to Luzira Maximum Prison, first as a young student researcher and then as a practicing advocate revealed to me that the motto of the prison is to inter alia rehabilitate the criminal. The educational programs, collaboration with the Uganda Christian University Mukono as well as carpentry, tailoring and agricultural workshops are aimed at achieving this purpose. The success of some of these trainings is seen by the various stories of men and women who have served their prison terms and gone on to live productive lives. However, some, like one of my former clients who run a successful business before being incarcerated, have not been so lucky and left jail with only the shirt on his back and a bible in a polythene paper bag. Arguably many convicts do get an opportunity to learn a skill in the prison- it may be a better way to commit crime, as one of my clients confided in me, or a new life skill either as a cobbler, tailor or carpenter.
However, it should be noted that in some cases, rehabilitation is confused with education or re-education. This is because a substantial number of convicts have been arrested for flimsy colonial reasons such as being “idle and disorderly” a crime whose justification in the law books today is very hard to maintain as it infringes on the human right to move freely. Further still, the list of derelict convicts is very high because they do not have the monetary power to afford good lawyers, police bond or court bail. This is very obvious when one visits any magistrate court in the rural areas where convicts are either walked for miles to the court rooms or transported on lorries and other non-passenger service vehicles. The majority of accused persons are alleged to have stolen food or trespassed on land. This is not to discount crimes of defilement, rape, murder and bodily harm, many of which are caused by various factors like poverty, alcoholism and drug abuse as analysed by Ugandan Criminologist Tibamanya Mwene Mushanga in his book Criminal homicide in Uganda
a sociological study of violent deaths in Ankole, Kigezi and Toro Districts of Western Uganda.
As such, the song of success attributed to rehabilitation needs to be understood in this context. Rehabilitation should be seen as the seasoning or the salt of this meal of justice. Without it, very few legal practitioners or teachers would proudly claim that justice or the law works.
Deterrence
Nothing easily slips out of the mouth of those I have asked about the purpose of justice than the word “deterrence.” Some have argued that as long as the individual is deterred from committing a crime again, that is justice fulfilled. Better still if other people are deterred from committing the crime again. It is true that the individuals who are either incarcerated or subjected to the death penalty are actually from the crime but the recent incidence in England where over 30,000 people signed up to a face book page in memory of Raul Moat who shot and fatally wounded his former girlfriend and then killed her new lover leaves a lot of question marks regarding the whole aspect of general deterrence. In any case, punishments like the death penalty seem to have hit a snag in effectiveness since the prevalence of fatal stabbings, gang bang shootings, suicide bombers, murders and manslaughters are on the increase and not otherwise.
As such whereas deterrence might be an argument many have used to justify the existence of certain punishments, its ineffectiveness is similar to the relevance of dessert. It is not necessary although it would be good to have it.
Conflict situations
The concept of Justice is complicated further when dealing with conflict situations like in East Timor, South Africa, Northern Uganda, Sierra Leone, Sudan and other similar places. Here, societies have been destroyed by long spells of insurgency, mass atrocity, crimes against humanity like rape, mutilations, slavery. The social fabric has been disorganised, familial roles have been exchanged with fathers and husbands resorting to – like in the case of Uganda-alcoholism, drug abuse and domestic violence and mothers turned into bread winners either as prostitutes or beasts of burden.
Children born under such circumstances and kept in squalid internally displaced people’s camps or abducted by the rebel forces as beasts of burden, slaves, soldiers’ wives or child soldiers themselves have not only lost their childhood but their innocence and families to return to. This is because may are forced to kill their own parents and relatives by hacking them to death with grotesque tools like the hand hoe, machetes, pangas name it. The scenes of sliced lips, ears and nostrils, the pictures of limping and disabled haggard beings living in grass thatched huts that are occasionally torched to the ground during the raids allegedly by the rebels, ignite in us a sense of possible hatred and vengeance that knows no bounds.
We might probably bay for the blood of these allegedly “brute animals” that have done this to society – these beings probably deserve the type of punishment that is recommended by Foucault in his writing Discipline and Punish which begins with a detailed, stomach-turning account of a punishment in the style of the Old Regime:
On 2 March 1757 Damiens the regicide was condemned 'to make the amende honorable before the main door of the Church of Paris,' where he was to be 'taken and conveyed in a cart, wearing nothing but a shirt, holding a torch of burning wax weighing two pounds'; then, 'in the said cart, to the Place de Grève, where, on a scaffold that will be erected there, the flesh will be torn from his breasts, arms, thighs and calves with red-hot pincers, his right hand, holding the knife with which he committed the said parricide, burnt with sulphur, and, on those places where the flesh will be torn away, poured molten lead, boiling oil, burning resin, wax and sulphur melted together and then his body drawn and quartered by four horses and his limbs and body consumed by fire, reduced to ashes and his ashes thrown to the winds.'
Would this be an appropriate punishment? I know many who would agree that it is. However, I doubt the authenticity of this argument based on the above discussion.
This is because we ignore the causes of crime, the purposes of the punishment and the unique circumstances of each case. Take for instance Northern Uganda- the majority of these crimes are committed by young adolescents who have been forced into a rebellion against an enemy they do not apprehend. They are forced to kill their own parents and relatives or tribes mates or clan mates for reasons that they do not understand. Many are indoctrinated and forced to live in fear of being killed if they do not kill. Some video clips on YouTube show that the majority of rebels allegedly killed in Uganda Peoples’ Defense Forces raids are women and children who have probably had no choice in being part of Joseph Kony’s outfit. Does justice for these people really make sense? I doubt it
Let us take the argument further by considering the role of the international criminal court. This court does not carry the death sentence but will probably prescribe long custodial sentences for the convicts. However, the prisons should abide to the minimum human rights standards for the victims. This means the accused persons shall be living fairly comfortable lives save for physical access with the outside world. Compare that with the kind of life Joseph Kony and his commanders are currently living and tell me whether the punishment of the ICC if ever given is not a better option
Lessons from the past?
My discussion therefore begs the question – what then? Well, clearly justice means different things for different people and prescribing one form of justice is not only myopic but also inconsiderate of the cultures, aspirations and values of the peoples of the world. African communities for example, valued societal integrity and cohesion above the individual. Individualised justice – though existent- did not supersede what society demanded. As such, any punishment that compromised or ignored the values of society was looked down upon. It is for such reason that punishments such as expulsion from the community were valued more than mere floggings and or prison terms- if ever they existed. In many cases, compensation and restitution were used to settle scores between families, clans and tribes. I do not wish to over glorify these societies of old because they had certain punishments like death for virginity loss that I obviously do not agree with. However, the option for making the relatives of the deceased in a better place or restoring them to the position they enjoyed but for the act of the accused, seems to me a better form of justice which not only inconveniences the culprit but also acts as a double edged sword that helps heal society.
Of course this is not to say that an evil deed should not go unpunished as is the case with Buddhism where an evil deed shall be punished either in this life or the next. Such is the variety that needs to be considered.
Holistic Justice?
What then would be a well balanced and tasty meal of justice served in any society? The above discussion shows that there are clearly huge issues with what people consider to be justice or its purposes. Clearly no system of justice is a silver bullet that answers the call for justice. Instead there is need to consider all these aspects as being part and parcel of the holistic picture. A meal needs all the trimmings: the starters, the main course and the dessert for some or a plate full of carbohydrates, vitamins and sauce for others. It is impossible for us to push one description of justice as being the ‘be all and end’ all. Such a view of consideration would in my opinion be myopic and will obviously fail.
The writer is an attorney and lecturer-at-law
druhweza@gmail.com
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