Analysis: Law as a tool of political oppression in Uganda
By Timothy Nsubuga
9th January 2012:
In this first part of our three part serialisation of Charles Ochen Okwir’s book Portrait of a Despot, we bring you a slightly edited exerpt from Chapter Three of the book [See: A Modern Despot’s Alfa Tool of Oppression] in which the author discusses how “modern despots” like President Yoweri Museveni use the law as a tool of political oppression. The author says:
The use of law, the most unlikely tool of political oppression, is for me one of the things that most ably define the character of the modern despot. And Uganda’s Yoweri Museveni has proved to be a master of that art. An art which any Lawyer, even one of average worth, would and should be passionately against. And because of that, I find great difficulty in merely coming up with a fitting way of introducing the subject.
Before the nullification of Sections 18 & 19 of the PPOA 2002 by the Constitutional Court, a dangerous consensus was steadily building within opposition circles that if everything constitutional failed, then a different level of political activism would be required to effectively challenge the crippling effects of those laws. Unfortunately, more than two decades of constant threats of a possible return to the bush by Museveni also ensured that not even the most aggrieved individuals in Uganda could gather the courage to take to the streets to protest against the use of law as a tool of political oppression.
Clearly, the threat of violence, chaos and or doom from modern despots often delivers the desired result for them. The modern despot knows that self preservation is an instinctive human reaction. So to take full advantage of it, he will issue threats even when he actually intends no harm. And to maintain the advantage, he will never let you know whether he means business or not.
It would therefore be unfair to blame people who choose the path of self preservation. Their tragic history will have taught them that the consequences of disregarding a despot’s threats could be loss of innocent lives at the hands of trigger happy security operatives. If they are lucky enough to survive the State’s bullets, then they would certainly get a free and unforgettable “blind-date” with the regime’s ghastly creatures of torture; crocodiles and snakes among them!
The very lucky ones might only end up in unlawful custody. In Uganda, that would mean being locked up in dark, dingy, and un-gazetted torture chambers that are, with sadistic irony, often referred to as “Safe Houses” by Museveni’s regime. On the whole, trial in accordance with the law is sometimes a very cruel lottery in a modern despot’s country.
In most cases, the decision to charge or release a political suspect will be left to the regime’s overzealous cadres who will have been deployed by the modern despot within State institutions like the Directorate of Public Prosecutions. And that is why modern despots can never do away with nepotism. How can they? To do otherwise would leave them perilously exposed to the due process of law; something they inherently distrust.
And the overzealous cadres often make no attempt to disassociate their despotic boss from their illegal actions. In fact, whenever they are challenged, their standard response will always be that they acted on “orders from above”. Well, who can blame them? After all, it is a well established fact that the service of a modern despot’s overbearing ultra ego naturally eats away at the servant’s own self esteem. So when they shout “orders from above”, it may actually be the only time they feel truly connected to the “high and mighty” in the land.
But if that is what could happen to individual, then how about the fate of offending political institutions or parties? How would they come off under such despotic laws and practices? Naturally, the answer cannot be significantly different. In Uganda, if a stubborn political party tries to challenge the status quo through civil disobedience, then Section 20{1} of the PPOA 2002 gives General Museveni a very “big stick” with which to smash such a party off the political landscape. And I am not dramatising anything here; far from it! It is pretty serious.
The law {in Section 20{1} of the PPOA 2002} says the Registrar General “…may apply to the High Court for an order winding up the political party or organisation” if it commits any offence under the PPOA 2002. It’s as simple as that. The entire process could be over in the blink of an eye if the Registrar General, like many others strategically positioned within the state system, also happens to be a Movement cadre acting on “orders from above”.
But even without the intervention of the Registrar General, Section 20{2} {b} of the PPOA 2002 still provides that conviction for “…any offence under this Act more than three times” means that such a political organisation shall automatically “…cease to exist and the High Court shall, on application by the Official Receiver, make such orders as may be just for the disposition of the property, assets, rights and liabilities of the political party or organisation”. End of story!
The other point to note about this Sub-Section is this: By saying the High Court “shall” on application by the Official Receiver make such orders as may be just for the disposition of the property, assets, rights and liabilities of the political party or organisation, the regime actually managed to deprive the Judiciary of any discretion to determine the extent of the punishment to be suffered by the “offending” party. It simply left the Judiciary with the discretion to do it in a “just” manner. In other words, kill them, but do so in a manner that will not cause widespread public alarm.
This is exactly what I meant when I said earlier that modern despots have both the killer instincts of their medieval predecessors and the obligatory regard for public opinion that you find in true democrats. So in a canny way, they somehow manage to position themselves within the precincts of that “grey area” beyond which you either become a democrat or a modern despot. In other words, they deceitfully keep themselves “half in and half out” of full democratic conduct.
Having tied both the hands and legs of the existing Judges using the law, the regime then set off on a final mission to take full control of the Judiciary by flooding it with its own “Cadre Judges”. With that, any independent minded and pro-democracy Judges who might still be left on the Bench will quickly find that they are in the minority with very little room to manoeuvre the wheels of justice through the treacherous terrain established by the despot.
This elaborate and well orchestrated process of legally suppressing peaceful political dissent also brings out one of the most important political lessons that modern despots have failed to learn. If as President, or Prime Minister, you decide to close all avenues for peaceful political dissent, then by default, you will also have opened alternative avenues for expressing that same political dissent. And these will usually be more dangerous means like civil disobedience, a coup d’état, or even a fully blown armed rebellion. The irony of it is that such dangerous alternatives pose a greater threat to the very power that the despot was desperately trying to preserve in the first place.
The other thing that I think is worthy of mention here is this. The very fact that political activists can, and do often find the courage to take difficult decisions to resort to dangerous means of expressing their dissent should be the perfect measure of how dearly they hold their inherent democratic rights. The trouble is that modern despots seem to be inherently incapable of living in peace with the enjoyment of those fundamental human rights.
But let’s stay with Uganda’s PPOA 2002 for a little longer; if we may. As we saw earlier, Section 6{4} thereof introduced a requirement for all political parties to register afresh in order to legally exist. Their freedom to operate freely in Uganda was, and still is today as I write, a totally different matter. In fact, in countries ruled by despots, the right of political parties to operate freely must be the real battleground in the struggle for democracy.
For the record, Section 6{4} of Uganda’s PPOA 2002 simply stated that, “…subject to Sub-Section 3 of this Section, any existing political party or organisation which fails to file the necessary documents for registration shall legally cease to exist and operate”. That requirement for registration was not only meant for the newly formed political parties and pressure groups. Even the “grey-haired” and almost senile parties like the Democratic Party {DP}, the Uganda People’s Congress {UPC}, and the Conservative Party {CP} were required to apply for re-registration.
With perfectly understandable rage, the greying men and women in these old parties must have asked: “How can these young pretenders even dare ask us to register again”? And it’s not difficult to imagine that to these old folks, it must have felt like being ordered by a disrespectful political toddler to go and wash your hands when the toddler himself has mud and blood all over his fingers. After all, the offending political toddler in the form of the NRM government had acquired his right to exist through the barrel of the gun and not through legal registration.
When the time finally came, the resistance put up by the old parties against the legal requirement to re-register was a civilised affair by any standards. In fact, you may even say it was as dignified as the political grandpas and grandmas themselves; men and women who, unlike Museveni, decided to take their grievances to the courts of law.
Predictably, the belligerents on either side interpreted the judgement that followed in ways that they thought would best serve their respective political interests. That meant that while Museveni’s regime argued that the Constitutional Court had only suspended the six months statutory deadline for registration, the opposition parties maintained that the actual requirement for registration had been suspended. So the debate raged on.
But in a modern despot’s country, complying with the requirement for fresh registration is one thing. Enjoying the right to operate freely thereafter is a completely different matter. That may require more than just a decision of a court presided over by men who, in Museveni’s own words, “…do not understand the ideals of the bush war revolution”. That in my view is a Museveni euphemism for suggesting that some Ugandan Judges do not take his regime’s revolutionary modus operandi into account when deciding politically significant cases.
All said and done, I think Section 6{4} of the PPOA 2002 produced fresh legal complications; complications that its architects had probably never anticipated. On close scrutiny, it becomes apparent that it enabled a logically unsustainable interpretation of the concepts of legal “existence” and legal “operation” as being mutually exclusive of each other.
If such an interpretation were to be allowed to stand, then neither the concept of “legal existence” nor that of “legal operation” would be of any use without the other. In other words, it would be absolutely useless for any political party to be allowed to “exist” while at the same time being denied the freedom to conduct countrywide political activities. After all, isn’t that what “operation” is all about?
Indeed, in giving their reasons for annulling Sections 18 and 19 of the PPOA 2002, the Constitutional Court had noted that all the State witnesses “…could not satisfactorily explain how a legislation which puts 98% stop on political activities, except within the Movement only, could be justified that it was…needed to protect the operation of the Movement”.
The “98% stop on political activities” that court talked about there was essentially the “legal operation” that Section 6{4} absurdly says is supposed to be mutually exclusive of “legal existence”. It simply doesn’t make sense. And the icing on the cake came when court added that “…the restrictions were no doubt too draconian and make a mockery of guaranteed freedoms and rights of association and assembly”. Therefore, by trying to retain those draconian legal restrictions on the enjoyment of political freedoms, Museveni, was in effect using the law to send a clear message to everyone in the land that he intends to retain his party’s unfair dominance of Uganda’s political landscape.
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.
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