By John Stephen Katende

23^rd January 2012:

In this third and final part of our [three part] serialisation of Charles Ochen Okwir’s book Portrait of a Despot, we bring you this slightly edited exerpt from Chapter Three [See: A Modern Despot’s Alfa Tool of Oppression] in which the author talks about how President Museveni’s government has restricted the enjoyment of fundamental human rights in Uganda.  The author says:

One of the most fundamental benchmarks by which democratic practices are judged in civilised societies is the observance and protection of human rights.  We are talking about rights like freedom of association, freedom of assembly, freedom of expression, freedom of movement, and of conscience inter alia.

We also know that these fundamental rights have always been of a constitutional nature.  As a result, they enjoy commensurate legal protection.   But theory can sometimes be notoriously difficult to reconcile with practice.  You can therefore be sure of an epic battle.  A draw, however desirable, is very unlikely; especially if we have a crafty modern despot acting as Referee.

It is precisely for this reason that I think a country like Uganda, and many others like it, are yet to demonstrate their fitness for inclusion into the community of civilised nations.  The constitution of Uganda has of course made great strides in that direction.  But we must not forget that a bitter civil war exists between legal theory and practice where modern despots are concerned.

In Uganda, these great sounding human rights theories, or aspirations for that matter, are captured under Chapter IV of the Constitution of Uganda 1995.  That Chapter concerns itself with the “Protection and Promotion of Fundamental and Other Human Rights and Freedoms”.  A Bill of Rights, if you like!  In fact, Article 20[1] thereof goes even further and declares that “…fundamental rights and freedoms of individuals are inherent and not granted by the state”.

Put differently, it tells Ugandans that those rights are their “God given” rights.  That the State has no power to grant or deprive anyone of those rights except as ordered by a competent court of law.  For its part, clause [2] of the same Article 20 declares that: “…the rights and freedoms of the individual and groups enshrined in this Chapter shall be respected, upheld, and promoted by all organs and agencies of government and by all persons”.

Like most legal instruments of that nature, the Ugandan constitution too appears to be patriotic in aspiration.  It also appears to conform to internationally accepted standards.  But the reality is a different matter.  History has shown us that the similarities often end with the great sounding theories and aspirations.

In the case of Uganda, its turbulent political history has taught Ugandans that one of the most common deficiencies in written laws which purport to protect human rights is that they are notoriously inconsistent with and almost at variance with the actual practice of implementation.

In the pseudo democracies that modern despots preside over, these inconsistencies have been brought to the fore in cases where the State’s security agencies are involved.  In fact, in Uganda, the brutality of the regime’s security agencies makes a total mockery of the word Shall in clause [2] above which makes it mandatory for “…all organs and agencies of government” to respect, uphold, and promote those rights.

Article 43[1] has been the biggest victim of misinterpretation by State security agents.  It’s too important an article in this debate not to be re-stated here.  It provides that:  “…in the enjoyment of the rights and freedoms prescribed in this Chapter, no person shall prejudice the fundamental and other human rights and freedoms of others or the public interest”.

Plain and simple!  The enjoyment of any right must, as it should, carry some degree of responsibility for the person claiming it.  The trouble is that a modern despot’s security agent is hardly your typical, rational minded or bona fide citizen.  They are a different breed; a breed that is prepared to stretch the boundaries of legal interpretation into the illogical sphere.

In fact, any human rights activist worth his salt knows that denials and or violations of human rights by the State are often justified by reference to constitutional limitations to the enjoyment of those very rights.  And more often than not, you will find that those limitations are invoked arbitrarily by frontline security agents who think they have an implied wink and nod of approval from above.

As we shall soon see, it’s a wink and not that has enabled Uganda’s security agencies to milk these constitutional limitations to the point of violating Article 43{2} {c}; another constitutional provision that counter imposes its own safeguards on Article 43[1] that places limitations on the enjoyment of fundamental human rights.

For the record, Article 43{2} {c} states that: “…Public interest under this article shall not permit any limitation of the enjoyment of the rights and freedoms prescribed under this chapter beyond what is acceptable and demonstrably justifiable in a free and democratic society, or what is provided in this constitution”.

A very sensible “watchdog clause” in my view!  But as I said earlier, even the police who are supposed to be the customary enforcers of law and order have [for lack of professionalism] been party to the execution of illegal orders.  Don’t take my word for it.  Have a look [below] at the arguments advanced by Uganda’s Inspector General of Police [IGP] Major General Kale Kayihura to justify police heavy handedness.

Kayihura: “Why we have banned rallies at the Square”

The Uganda Police Force continues to receive requests for convening public assemblies, processions and other functions at the constitutional square and the surrounding areas in the Central Business District of Kampala.  In fact, Article 20 paragraph [1] of the Constitution of the Republic of Uganda, 1995 provides that the fundamental rights and freedoms of the individual are inherent, and not granted by the State.

Furthermore, Article 20 paragraph [1] also provides that the freedoms of the individual, and groups enshrined in the constitution shall be respected, upheld, and promoted by all organs and agencies of government and by all persons.  Specifically, Article 29 of the Constitution grants every person, among others, the right of freedom to assemble, and to demonstrate, together with others, peacefully and unarmed.

However these rights and freedoms are not absolute. Indeed, article 43 paragraph [1] provides that in the enjoyment of the rights and freedoms prescribed, no person shall prejudice the rights and freedoms of others, or the public interest.

In fact, recent events in the central Business District have exemplified situations where convening of public assemblies, rallies, and other functions, resulted in incidents prejudicial to the rights and freedoms of others, public interest. Indeed, the City has recently suffered acts of vandalism, looting, malicious damage to property, and general disorder on account of such functions.

Accordingly, in conformity with the legal position abovementioned, and in pursuance of the powers coffered upon the Inspector General of Police under the provision of sections 32 sub section [2] of the Police Act Cap 303 notice is hereby given that the convening of assemblies, processions, and other functions, at the Constitutional Square, and the surrounding areas of the Central Business District of Kampala, is here by prohibited.  This is in pursuance of our duty entrusted to us by article 212 of the Constitution to protect life and property in Uganda.  End.

So the question has to be:  Didn’t Kayihura know about Article 43{2} {c} that sets out the conditions under which the Article 43{1} limitations may not apply?  Of course he did.

In fact, unlike some of his lay constables, Kayihura’s case is made worse by the fact that he is a Lawyer.  So the assumption must be that he knew that his men were violating both people’s human rights and the provisions of the constitution but still decided to invoke the Article 43{1} limitations in defence of his men’s brutality.

To a well meaning government, Article 43{2} {c} would have been the perfect legal guide for democratic conduct.  But by failing to be strict in its prescription, Article 43{2} {c} effectively gave the discretion back to the oppressive regime to subjectively decide what limitations are “…acceptable and demonstrably justifiable” in a free and democratic society.

In fact, IGP Kayihura’s subjective view that “…recent events in the central business district” resulted in “…incidents prejudicial to the rights and freedoms of others and the public interest” is the perfect example of how the law, by failing to be strict in its prescription, handed unfettered discretion back into the hands of the regime’s frontline operatives.

So if General Museveni decides that a peaceful demonstration by an opposition party is not “acceptable”, then that is exactly how it will be treated by the police and other law enforcement agencies.  Only a successful legal challenge can overturn his decision; by which time of course, serious harm may already have been done to innocent lives.

Secondly, if he decides that it is “demonstrably justifiable in a free and democratic society” for opposition parties to be banned from addressing political rallies, then they will be banned; full stop!  Again, only a successful legal challenge can overturn his decision.  But the damage to an opposition party’s mobilisation efforts will have been done.

And the saddest fact about this whole mess is that it is not just high ranking government officials like Museveni and Kayihura who have that obnoxious attitude engrained in their minds.  In a Daily Monitor article of 13^th November 2002, [See: “We Must Pick Either Free Expression or National Security”] Mr. Vincent E. Bua reviewed the proceedings of a debate that had taken place at Makerere University-Kampala.

He said the then Director of Information at the ruling NRM Secretariat Mr. Ofwono Opondo said, “…no freedom should be above the freedom of the state to exist”.  He then added that, “…we must protect the security of the country even if it means treading on some freedoms”.

If Vincent Bua quoted Ofwono Opondo accurately, then good old Ofwono Opondo did not disappoint me there.  He did exactly what I tried to explain earlier.  In other words he, in his subjective wit and wisdom, decided that it was “acceptable” to put the “freedom of the State to exist” above an individual’s human rights.

Not only that, in Ofwono Opondo’s view, it was also “demonstrably justifiable to tread on some freedoms” if that was indeed what it would take to protect the “security of the country”.  That is despotic unilateralism at its very best.  Full of illegitimate authority; it must be added.

The modern despot’s political insecurities often make the temptation to clamp down on human rights and other freedoms irresistible for him.  And it’s for this very reason that Museveni’s regime has over the years lost countless cases of torture filed by torture victims. As a result, it has been forced to pay out huge sums of taxpayers’ money to victims of torture; money that would have been better spent on fighting the abject poverty in the country.

‘Portrait of a Despot’ is now available for Ugandan based readers to purchase from Uganda Bookshop [opp Christ the King Church,] Makerere University Bookshop, Kyambogo University Bookshop, Jicca Bookshop in Wandegeya, Matti Bookshop on Kampala road, and from Silkon Book Centre and Rise & Shine Bookshops in Mukono.

Worldwide customers can also order a copy of the book by clicking on the title of the book here Portrait of a Despot.  END:  Please login to www.ugandacorrespondent.com every Monday to read our top stories and anytime mid-week for our news updates.