An Open Letter to the President on Rights of Detainees

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Winny Amongi, 20, resident of Railways Quarters B commonly known as Labour Line is seen pleading with police officers to allow her to pick her things before she could board a lorry to prison in Kwania. Photo Credit: The New Vision

Dear President Museveni,

On March 18, 2020, when it became clear that Uganda was under an imminent threat of confirming the first case of the novel coronavirus disease, you took decisive action to disperse the high-risk environments for transmissions. You ordered for the closure of schools, universities, places of worship, among others.

The decision was timely. Indeed, by the time Uganda registered its first case on March 22, all those concentration points had been safely dispersed.

Mr. President, it is precisely because of this decisiveness and success that I write to you about a critical concentration point that is clearly not getting the due attention it deserves – the prisons.

Whereas prisons cannot be closed, critical and timely action needs to be taken to save hundreds of lives and avoid possible riots and formation of a complex breeding place for the virus.

It is for this reason, Mr. President, that I believe you invoked your powers on April 22 to pardon 833 prisoners in a move to decongest the overcrowded prisons.

As of 2019, Uganda prisons were holding over 55,000 prisoners in facilities that are designed to hold only 17,304. By any stretch of imagination, the 833 was a drop in the ocean. With an occupancy rate of over 319 percent, a lot more needs to be done to ease the pressure on prisons.

I find it, therefore, self-defeating to permit mass arrests for apparently violating emergency COVID-19 preventive measures. Images of Winny Amongi and other women traders in Lira clutching onto the naked bodies of their children as they were being wretchedly dispatched to prison on a lorry is a sobering illustration of the unjust arrests.

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Women boarding a truck to prison amidst tight security. Photo credit: The New Vision

Prison authorities have argued, rather disingenously, that they have quarantine centers for detention of suspects arrested during the pandemic. “We cannot risk having a case of COVID-19 in prison facilities and so we have set up isolation (he means quarantine. Isolation is for confirmed cases) centers,” Frank Baine, prisons spokesperson says.

Mr. President, there are two fundamental flaws with the proposed prison quarantine approach. Firstly, it denies prisons the much-needed room to decongest the existent general prison population. Secondly, it exposes thousands of suspects arrested during the pandemic to an outbreak because they are locked up together. All detainees – general population and those arrested during the pandemic – have equal rights.

For those who were doubting whether the virus can breach the prison walls, the confirmed case at Kaiti prison in Namutumba district – which has left over 200 prisoners and warders in quarantine – should serve as testament. The prison standard operating procedures, although helpful, cannot be an alternative to decongesting the facilities. They cannot for sure keep away the invisible enemy.

On March 27, Chapter Four Uganda in concert with Avocats Sans Frontieres, Legal Aid Service Providers’ Network, National Coalition of Human Rights Defenders, and the Muslim Centre for Justice and Law petitioned the government to take urgent measures to protect the rights of detainees in Uganda.

They, inter alia, called for the release of all convicts who are nearing the end of their sentences, detainees charged with petty crimes and those in the age-group at risk or with pre-existing health conditions. They also called for the release of all detainees who have clocked mandatory bail time, and suspension of pre-trial detention for minor offences that are punishable by sentences of less than two years’ imprisonment.

Mr. President, arresting people for violating the preventive measures is counterproductive in the fight against COVID-19. I believe it is the reason why on June 1, you ordered for the unconditional release of all those arrested.

It is time to stop the arrests and act to significantly lower general prison populations.

Locking up petty prisoners, as I have opined in the past, will not make our societies safer.

COVID-19 presents new threats to press freedom in Africa

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A photo of Wokulira Ssebagala protesting an attack on press freedom. Photo by Abubaker Lubowa

As the Coronavirus disease (COVID-19) continues to sweep across the continent, governments are stepping up emergency measures to slow the spread of the virus. Enforcement of the measures, in societies where impunity for violations is commonplace, is proving to be a big problem.

In the shadow of the battle against the public health crisis, another crisis is emerging. Journalists, media workers, and bloggers are being targeted for their critical work and expressions in many countries in Africa. Media houses are also being targeted – operating licenses are on the line and editorial independence is at greater risk.

Governments are demanding free airtime for government messages while failing to protect critical reporting that promotes transparency and accountability in COVID-19 government responses.

UGANDA

Since 2015, Uganda’s rankings in the state of press freedom has been on a steady fall. That on itself is concerning.

The latest is that in a space of five weeks running into April 2020, at least twelve journalists and media workers have been targeted for covering COVID-19 related stories. The lockdown has also facilitated arrests of journalists over frivolous grounds.

The reprisal attacks have taken the form of arbitrary arrests, assaults, confiscation of media equipment and orders to delete pictures, harassment, intimidation, tone policing, among others. The leading perpetrators are police and Local Defence Unit (LDU) officers, Resident District Commissioners (RDCs), and other local leaders on district COVID-19 task forces. The motivation has largely been to block reporting on critical accountability issues and an interest to gag the media.

On April 21 in the eastern region district of Kamuli, Tom Gwebayanga, the district bureau chief for the government-owned Vision Group was arrested and charged with spreading harmful propaganda for writing a news article on mismanagement of Ushs. 80m (US$ 21,100) donation. The money was meant to purchase relief food for the vulnerable poor in Kamuli town during the lockdown. In a phone call, Tom narrated  to me how he was given a tongue lashing by over twenty district officials on the COVID-19 task force. He says that while under duress, he apologised for writing the story. While under detention, the District Health Officer (DHO) Dr. Aggrey Batezaki attacked and punched him severally. He has since opened up a case of assault at police against the DHO.

Under the cover of darkness, police arbitrarily arrested NBS TV’s Samson Kasumba. They took away his phones to block him from informing his next of kin and his lawyer Nicholas Opiyo of his arrested. He was held incommunicado for a night and interrogated on sedition and spreading harmful propaganda allegations. He continues to report on bond under a General Enquiries file (GEF), charges remain unknown.

In the west nile district of Arua, the Deputy RDC harassed Radio Pacis journalist Alfred Nyakuni for reporting about Doris Oku’dinia, the Ediofe Health Center III enrolled nurse who wheeled a patient for over 3 kms to Arua regional referral hospital for treatment after failing to access an ambulance.

On March 19, Julius Ocungi, Kitgum bureau chief of the Uganda Radio Network news agency was attacked by police officers while taking photos of officers who were closing down a local bar in line with the COVID-19 government directives. He suffered injuries on his right leg and one of his eyes.

The security personnel further ordered Ocungi to delete his photos. He protested. “I asked them to give me a good reason to delete the photos. Did they do something nasty that they did not want to appear in the press? They are police officers, public officers. What are they trying to hide?” he told the Committee to Protect Journalists (CPJ).

KENYA

In Kenya, journalists have been harassed, threatened, physically attacked, and arrested for critically reporting on COVID-19 related response.

On March 29, police arrested three journalistsCitizen TV’s John Wanyama and Charles Kerecha and an independent journalist Mukoya Aywah – for allegedly violating dawn-to-dusk curfew despite journalists being exempted from the curfew restrictions. NTV Kenya’s Peter Wainana was allegedly assaulted by police in Mombasa for reporting on how police used excessive force against people who were struggling to board a ferry.

TANZANIA

In recent years, Tanzania has seen a proliferation of repressive laws aimed at silencing and punishing journalists and bloggers. During this COVID-19 period, the clampdown is on. Amnesty International and other human rights groups are calling for respect of the right to freedom of expression and press freedom.

On April 20, Tanzanian authorities suspended Talib Ussi Hamad, a journalist working with Tanzania Daima daily newspaper for six months for allegedly reporting about a COVID-19 patient without the patient’s consent.

In the same month, the Tanzania Communication Regulatory Authority (TCRA) suspended online content delivery by the Mwananchi daily newspaper for posting a photograph of President John Pombe Magufuli out shopping surrounded by a group of people in apparent breach of the global social distancing guidelines. The paper took down the social media post and issued an apology after the government said that the photo had been taken before the coronavirus crisis but that was not enough to stop the government from suspending it’s license.

The president is under the spotlight for apparently mismanaging the country’s response to the pandemic.

Three other media organisations have also been fined about USD 2,200 and ordered to apologise for “transmission of false and misleading information” on the country’s response to slowing the spread of the virus.

ZIMBABWE

In Zimbabwe, at least eight journalists have faced harassment and targeted attacked for reporting on the enforcement of the lockdown or other reporting in the context of covering COVID-19.

The Media Institute of Southern Africa (MISA) Zimbabwe has documented incidents of harassment and arrest of journalists for operating without valid journalism accreditation yet Zimbabwe Media Commission (ZMC) is yet to issue 2020 accreditation cards. Media workers, including newspaper vendors have also been targeted in the attacks. On April 20, MISA secured a court order directing police and other law enforcement agencies to interfere “in any unnecessary way” with the work of journalists during enforcement of the emergency measures.

In an interview with the International Press Institute (IPI), a freelance journalist recounted how he was stopped by police in Harare and “forced to lie down and beaten by officers who released him 15 minutes later.”

ZAMBIA

On April 9, authorities in Zambia shut down independent television news channel, Prime TV. The Zambia Independent Broadcasting Authority (IBA) had earlier cancelled the station’s broadcasting license for allegedly refusing to air the government’s COVID-19 public awareness campaigns. Prime TV was demanding money for airing previous state advertisements. In a statement, the IBA noted that the license was cancelled “in the interest of public safety, security, peace, welfare or good order.” IBA failed to provide a specific reason that can justify the cancellation of the license.

SOUTH AFRICA

In South Africa, police fired rubber bullets at Azarrah Karrim, a journalist working for News24 while they dispersed a group of people who were moving on the streets of Johannesburg. The South African National Editors’ Forum (SANEF) has filed a formal complaint to the police over the incident. “We have already seen three videos that show police shoot first and ask questions later,” Hopewell Radebe, Convener of SANEF in Guateng.

COVID-19: 6 measures to protect rights of prisoners in Africa

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Photomontage of an illustration of the novel coronavirus and a photo of prisoners at Lira Uganda government prison by Lynsey Addario

The COVID-19 lockdown in Africa has been gradual but it has started to bite. Schools, religious and other forms of mass gatherings, public transport, markets, cross-border movements, and flights have been suspended or severely restricted.

In Kenya, a 7pm – 5am curfew is underway to enforce social distancing at night. Rwanda is under 14 days total lockdown, Uganda is near total lockdown, and in South Africa, President Cyril Ramaphosa has ordered over 57 million people across the country to stay at home for 21 days. The police and military are out on the streets to enforce the lockdown – often brutally.

The above measures have strained social, economic and cultural life across the continent – and the world. Whereas all groups of people are feeling the pinch, there are specific groups that have unique vulnerabilities. If the novel coronavirus is to strike, the impact would be devastating.

In this piece, I focus on prisoners and people in the various forms of detention – including at police.

The World Health Organization (WHO) and national health ministries have issued specific prevention measures to reduce or stop the spread of the virus. These include social / physical distancing, self-isolation, and other basic hygiene practices such as regularly washing hands or using hand sanitizers.

How can these measures be practiced in Africa’s overcrowded prison and detention facilities? For instance, how can a prisoner maintain a 2-meter distance (4 meters according to Uganda’s health ministry) in prison? How can they self-isolate in the overcrowded prison facilities?

As of September 2018, the occupancy rate within Uganda prisons stood at a staggering 315.4% – the majority of whom are in pretrial detention. This is close to Philippines, which has the most overcrowded prisons in the world at 463% capacity. In my legal aid work, I visited several prisons across the country a hundred times in the past 8 years and know first-hand the dreadful conditions in many of them. The regular lockups for security reasons compound this problem. It is impossible to maintain social distancing in all of the facilities, unless of course, one is in draconian solitary confinement.

The situation is not any better in other African countries.

Several measures have been put in place by some governments to protect detainees. For example, Ugandan authorities have issued a practice direction for increased appearance in court via a video link where possible to minimize movements. They have also issued a ban on prison visits during the period of the lockdown. These measures, though well intended, fall short of protecting the rights of detainees or addressing the concerns of tensions and instability in prisons.

In view of the above, Chapter Four Uganda and other four partner human rights organizations have issued a joint statement calling for immediate and urgent measures to protect the rights of detainees. They warn that failure to act goes in direct violation of detainee’s human rights.

RELEASE PRISONERS

This is not a strange ask. The Penal Reform International reports that in September 2018, Rwanda released over 2,000 prisoners, including high-profile political detainees. During the same year, Cote d’Ivoire released over 8,000 prisoners who were accused of non-political crimes while in Egypt, over 700 prisoners received presidential pardon.

In the wake of the unprecedented COVID-19 pandemic, governments in Africa need to act first to release the following categories of prisoners to reduce overcrowding and prepare to deal with the virus:

  • Prisoners who are nearing the end of their sentences.
  • Prisoners charged with petty crimes.
  • Prisoners who are in the age group at risk or with pre-existing health conditions and whose detention is no longer justified.
  • Prisoners who have clocked mandatory bail or police detention periods.

SUSPEND POLICE CUSTODY AND PRE-TRIAL DETENTION

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Police ferry passengers to lie down after firing tear gas and detaining them in Mombasa, Kenya [The Associated Press]

Following the lockdowns and curfews, the police and other security officers are carrying out arrests and herding people into buses, lorries and cells – defeating preventive measures put in place by the same governments. This is mindboggling. We have seen it in Kenya and Uganda.

It is time for authorities to suspend holding people in cells for petty crimes, including those who are accused of breaching the COVID-19 preventive measures. Those who are arrested should be immediately advised, cautioned and set free. If this is not done, the security forces will lead massive infection campaigns and the officers themselves will suffer high COVID-19 infection rates.

Criminalizing individuals for violating prevention measures leads to criminalizing behavior due to low education levels or socio-economic status of such individuals. As a result, the society will be punishing its poorest members for trying to provide for their families or for failure to appreciate the gravity of the public health problem we have on our hands.

GRANT CONDITIONAL RELEASE OF CONVICTED PRISONERS

In all prison facilities, there are folks who comply with their detention requirements. Most of them are usually appointed to leadership positions within the prison. Others are let free to move out of the prison walls to carry out errands without any supervision and they return as required. It is time to consider the conditional release of such convicts, in consultation with competent judicial officers.

STERILISE PRISONS AND PROVIDE ADEQUATE HEALTHCARE

To stop the spread of the novel coronavirus in prisons, there is a need to urgently sterilize prison units to improve the hygiene of the facilities. There is also a need to increase the capacity for diagnosis and medical monitoring within prisons.

It is a fact that low testing abilities is a global concern in the fight against COVID-19. As a result, many governments are battling an invisible disease – especially when the asymptomatic patients are factored in.

Ultimately, quarantines and isolations will be used within prisons. While these measures may be legitimate to protect the health of the general prison population, it is important that it is done in exceptional circumstances in line with the UN Nelson Mandela Rules on confinement to avoid negative effects associated with solitary confinement of prisoners.

MAINTAIN CONTACT WITH RELATIVES, CURRENT AFFAIRS

Some countries, such as Uganda have moved to suspend prison visits by relatives. The objective is to minimize contact of prisoners with the outside world. Whereas this measure is understandable, there is need for prison authorities to implement alternative measures that will ensure prisoners benefit from meaningful human contact – as far as possible.

Chapter Four Uganda and other human rights organizations call for adoption of alternatives such as facilitating communication at a distance, behind a glass or by videoconference, where possible. Prisoner authorities should also facilitate increased phone calls. Telecommunication companies should consider providing free airtime and data packages for prison populations to facilitate their contact with the outside world.

Failure to implement these alternative measures to maintain contact can exacerbate tension, anxiety and insecurity of people in prison which can lead to violence, breakout attempts and chaos.

PROTECT FAIR TRIALS AND THE RIGHT TO LEGAL COUNSEL

The preventive measures imposed to stop the spread of the novel coronavirus are limiting access to courts, police and the prosecutor’s office. In times such as these, Chapter Four Uganda and partner human rights organizations call for alternative measures to facilitate the continuity of legal assistance provision to detainees to ensure compliance with international, regional and national laws.

Prisoners must be afforded contact with their legal counsel through phone calls, if visits are considered risky. Courts and the prosecutor’s office should also consider urgent matters on a case-by-case basis to ensure that the right to a fair trial is protected.

WE are all struggling to respond to the COVID-19 pandemic. While we are taking action to protect ourselves, we must not forget the most vulnerable populations such as folks in prisons. We cannot afford to wait until a case is confirmed in prisons. This is the time to act.

East Africa: Bar associations at crossroads

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One of the cardinal objectives of national bar associations is to protect and assist the public in all matters touching, ancillary or incidental to the law. The associations also seek to maintain and improve the standards of conduct of the legal profession.

Sadly, in many countries across the continent, the associations are failing to achieve these targets amidst the insidious erosion of human rights, democracy and the rule of law.

Many governments are making deliberate efforts to cripple bar associations through a carrot-and-stick approach. Advocates have aided the throttling of the associations. Because of the shenanigans of past leaders and indifference, many advocates find themselves struggling with apathy. The majority who turn up to vote repeatedly elect lackluster leaders who lack the values, gusto, and fidelity to law that a bar association needs in today’s world.

KENYA

Nelson Havi, the new President of the Law Society of Kenya (LSK) is already at work. Early this week, after receiving numerous complaints from advocates and members of the public, he stormed the offices to put a cabinet secretary on the spot for failing to comply with a court order requiring the ministry to open the Nairobi and Central land registries. Disregard of court orders is nothing new in Kenya – with the prominent case being that of Miguna Miguna.

Havi seeks to restore the lost clout of the LSK. Campaigning under the mantra of, “A brave new bar, promising to restore LSK’s lost glory,” he hopes to achieve his agenda – “monitor legislation, defend the rule of law, and ensure constitutionalism.”

There is no doubt that his to-do list is full.

During the heydays, the LSK was prompt, bold, and firm. It spoke truth to power. A lot is written, for example, about Chairman G.B.M Kariuki who firmly defended the rule of law and constitutionalism during his tenure between 1984 to 1986. It was not long before the establishment started meddling in affairs at the society to ensure that they have a leader who they can ‘do business’ with.

As the LSK recoiled to blowing hot and cold, activists such as Okiya Omtatah had to step in to fill the void on some of the core objectives of the society. Today, Omtatah is a prominent name in Kenya when it comes to defending the public’s interest through strategic litigation. He has, for example, gone to court to restore the toll-free emergency number 999, the staging of plays deemed controversial, lifting the ban on night travel, challenging excise duty stamps on the drinks packaging, among others.

UGANDA

Uganda Law Society (ULS) has recently come under the spotlight after the bar association’s president authored a statement rebuking and calling for the prosecution of lawyer Male Mabirizi for petitioning the Judiciary Service Commission (JSC) over the conduct of a judge. It was not a first. ULS has issued such unsolicited and unbecoming statements in the past.

A closer look reveals that such strange statements are no isolated incident. They are a result of the malaise that affects ULS today and raises concerns about the trajectory of the Law Society. This is something that should interest all members.

One of the core objectives of ULS is to assist the public in all matters touching, ancillary or incidental to the law. The Society is therefore expected to contribute to upholding and promoting the rule of law by advising the public on pertinent matters such as the ongoing spate of the clampdown on peaceful assemblies by the police.

In the past, ULS has been pivotal in efforts to protect the Constitution and uphold the law including through public interest litigation on human rights issues. The statement made by the ULS president is unfortunate as it undermines the image of the Society, right to petition, and the powers of the JSC – a constitutional body mandated to handle such matters. Indeed, the Chairperson of the JSC, Hon. Justice Benjamin Kabiito on receiving Mr. Mabirizi’s complaint simply advised him that it had been passed over to a registrar of JSC for consideration and further necessary action.

The ULS president’s misguided call for prosecution thereby run afoul of basic legal expectations. It is interesting to note that the legal profession has seen the rise of thematic law associations along religious and ethnic formations. Is this a vote of no confidence in the ULS, the statutory entity?

In a rare reminder of the heydays, in August 2013, the ULS voted to suspend the then Attorney General (AG) Peter Nyombi for persistently misadvising the President and other arms of government on critical matters of law. AG Nyombi was issued with a certificate of incompetence and forwarded to the Law Council for disciplinary action. History will remember Nicholas Opiyo, the then Secretary-General of the ULS for his selfless and bold efforts make sure the vote takes place. AG Nyombi joined AG Khiddu Makubuya, IGP Kale Kayihura and then DPP Richard Butera and others on the infamous ULS suspension list.

The failure by the ULS to look out for the interests of young lawyers in the profession is also deeply troubling. The exploitation and harassment of young lawyers is an open secret. It is time to deal with the elephant in the room to ensure young lawyers receive fair remuneration and decent working conditions.

There are also reports of a society that is struggling with corruption and poor governance. In 2019 alone, at least 4 senior staff resigned and an anonymous letter chronicling the woes at the Secretariat leaked. The new ULS leadership will also inherit a ULS house project that needs strategic foresight.

I hope the membership will be able to navigate the dark clouds that already hang over the electoral process that is supposed to deliver the new ULS President and Council.

The flagship project of the Society, the Legal Aid Project is also struggling. In February this year, at least 20 staff at several legal aid clinics were laid off due to a lack of resources to meet their salaries. The exit of the Norwegian Agency for Development Co-operation (NORAD), which has funded the project for over 20 years, has left a big void in legal aid service providers in the country. This could have been avoided because ULS has been receiving new donors on board and this could have facilitated the retention of its well-experienced staff.

I think that the Legal Aid Project should be lean with 4 or 5 regional clinics and well-remunerated and facilitated staff capable of providing legal services across the region while tapping into the strengths of Justice Centers Uganda and other legal aid service providers. The current model encourages staff to solicit money from clients for services. It is ineffective and unsustainable.

The exit of NORAD is yet another reminder to the government to enact the legal aid law for a state-funded legal aid initiative. Donor aid is not sustainable. The government needs to heed the call. It has an obligation to ensure that all people access justice, which often requires legal aid services.

TANZANIA

Tanganyika Law Society (TLS) is the country’s bar association. TLS’s current president is Dr. Rugemeleza Nshala. Like other bar associations in the region, the society is struggling to regain its lost glory amidst renewed efforts to strengthen state capture.

Today, the country is ruled through presidential proclamations with major ramifications to the principles of the rule of law and human rights. For instance, arbitrary arrests, and long pre-trial detention of suspects and prisoners of conscience are commonplace. The country has also recorded a proliferation of repressive laws designed to silence dissent.

Even while struggling, President Magufuli’s regime is determined to clip the wings of the TLS further. Early this year, amendments were proposed to the Tanganyika Law Society Act to restrict eligibility for membership of the TLS Council, and the introduction of new accounting and reporting requirements to the Minister responsible for Legal Affairs. The new proposals further seek to change the functioning of TLS Annual General Meetings by barring all members of the society from attending and replacing that with attendance on a representative basis.

In 2018, the TLS Act was amended to block public servants and politicians from becoming members of the TLS governing body.

Recently, a prominent advocate and immediate former president of TLS Fatma Karume was suspended from practicing law on mainland Tanzania over alleged misconduct. The “decision is explicitly a threat to all lawyers who work tirelessly for the public interest in this country,” said Dr. Nshala, the current LSK president.

Countering VPN: Uganda moves to double down on repressive social media tax

AFP:Getty Images:I KasamaniAs I strolled down the winding campus streets of Makerere University on a calm evening, I met an acquaintance. Seated on a pavement near Mary Stuart Hall, he had his eyes firmly fixed on his phone. “I am here to connect to Mak Air (the free University WiFi) to download some reading materials from the class WhatsApp group,” he said when we got talking. “I have data, but I don’t have money to pay for OTT (Over-The-Top social media service tax).”

He is just one of the many Ugandan internet users who are struggling to connect to social media platforms because of the tax.

According to We Are Social and Hootsuite Digital 2019 report, the number of active social media users in Uganda dropped by 11 percent between January 2018 to January 2019. The number of mobile social media users also dropped by 12 percent during the same period while the number of internet users (not subjected to the social media tax) remained unchanged.

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And yet, the folly and messy march by the Ugandan government to implement the repressive tax continues.

The controversial tax came into effect on July 1, 2018, after the passing of the Excise Duty (Amendment) Bill, 2018. The government argued that it was a move to increase the tax base and stop gossip. What the government will however not say is that the tax was introduced to smoother dissent online.

All internet users in Uganda have to pay the tax either daily (Ushs. 200/$0.05) or weekly (Ushs. 1,400/$0.36) or monthly (Ushs. 6,000/$1.56) or quarterly (Ushs. 18,000/$4.90) or annually (Ushs. 73,000/$19.9) to access social media sites or applications.

Shortly after the passing of the tax, in a last-minute bid to persuade President Yoweri Museveni not to assent to it, the Alliance for Affordable Internet (AAI) warned that if the new tax is enforced, Uganda’s poorest would be the hardest hit. They would have to fork out nearly 40 percent of their average monthly income for 1GB of data.

The law was, nevertheless, signed into law and the tax is well into the second year of enforcement. There have been tepid attempts by government officials to walk back from the tax, but nothing concrete.

What is new?

In a bizarre – but not surprising – move, Uganda’s chief tax collector Doris Akol, while appearing before the Parliament’s Finance Committee on January 14, 2020, proposed that instead of taxing users for accessing social media sites, the government should internet tax data directly.

In effect, what the Uganda Revenue Authority (URA) Commissioner-General Akol is proposing is a move from social media tax to internet tax. She argued that the policy shift would curb the huge evasions. It is, of course, foolhardy to imagine that the government does not know why the tax is being avoided. They know. But instead of eating humble pie by repealing the unjust tax, they are doubling down.

How a government official can propose such a policy shift is mindboggling. Here is why:

At a time when many governments across the world are struggling to get as many people as possible online to tap into the benefits of the digital revolution, the Ugandan government is enforcing policies that impede penetration.

Currently, users in Uganda pay one of the highest prices for internet data in Africa. According to several industry rankings, internet users in Uganda pay an average of $4.69 for 1GB of data – for generally poor and slow connections.

In comparison, consumers in Rwanda, the Democratic Republic of Congo (DRC), Sudan, and Burundi pay less than $1 for the same data package. In Kenya, users pay $2.73.

In a Uganda government National IT Survey 2017/18, 76.6 percent of internet users in Uganda cited the price of data as a key limitation on their use of Internet services.

Here’s what the government should be doing

In view of the prevailing situation that is backed up by data of government agencies, a sober government should be tackling the real challenges that the country faces to get more people online and advance the digital revolution.

The first thing is to immediately scrap the social media tax. It is an unjust tax, promotes net neutrality, impedes freedom of expression online, and frustrates small and medium enterprises that depend on social media for marketing and consumer feedback. In this digital age, it is almost impossible to attain freedom as expected without freedom of the internet.

The government should also take deliberate steps to increase internet penetration to lower unit cost of data. Research shows that low internet usage is one of the key drivers of high costs of data. What the social media tax does it to slow down penetration and data consumption, thereby risking to rise the data costs even higher.

It is incongruous that the telecoms have been left to fight a lone battle of driving internet penetration through data package deals; which, unfortunately, also encourage net neutrality.

The Ugandan government should also improve on the internet infrastructure. The study by a government agency quoted above shows that 49.2 percent of internet users are frustrated by very slow internet speeds. Further, 41.4 percent of respondents reported limitations associated with failure to access internet services due to a lack of network/connectivity in their areas.

The Ugandan government, like other governments across Africa, needs to take action to ensure that everyone in Uganda has fair and equal access to life-changing digital connectivity.

Uganda: 57 years on, political freedoms remain elusive

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Uganda’s Independence Monument. Internet photo.

On October 9, 1962, the Union Jack flag was lowered and the Uganda national flag was hoisted – bringing to an end of the 68 years of British colonial rule.

The agitation for Uganda’s independence began in the 1940s through demonstrations. In 1952, farmers who had had enough of the manipulative pricing of their cotton and other cash crops formed the first political party in Uganda – the Uganda National Congress (UNC) – under the leadership of Ignatius Kangave Musaazi.

The hope was that with independence, the ‘Pearl of Africa’ would not only mark an end of colonial rule, but it would also usher in true self-rule based on democratic values and attainment of dignity and fulfillment.

It was hoped that people from all walks of life would be able to exercise their individual and political freedoms, especially for critical thought and dissenting views, and that there would be fairness, accountability and justice for any violations that occur.

Indeed, over the years, Uganda has made progress in a number of areas.

In 1995, the country adopted a progressive Constitution that appeared to mark a new path from the many false starts on freedoms and accountable leadership. While recalling our history which has been characterized by political and constitutional instability, the Constitution provided for the protection and promotion of fundamental and other human rights and freedoms under Chapter Four. The supreme law further provides for other pillars of a democracy.

Today, that Constitution is a shadow of its former self.

Controversial amendments on presidential terms and age limit have crippled key safeguards in the Constitution that the very supremacy of the law is now in question.

We also continue to see a proliferation of repressive laws that are littered with unconstitutional claw back clauses on the guarantees of the Constitution. Impotently, the Constitution fails to cure the inconsistencies. Few positives by the courts such as reforming police powers on peaceful assemblies have been thwarted by new legislation by Parliament.

As Uganda marks 57 years as an independent state, civil liberties – largely in the context of political freedoms – remain an illusion.

Whereas there is a sense of tolerance of divergent views, many individuals and groups are often targeted, harassed and blocked from exercising freedoms. The rights to the freedom of speech and expression, freedom of the press, freedom of peaceful assembly and association, and the right to a fair trial remain most contentious.

Uganda, for example, continues to have insult and criminal defamation laws on the law books. The colonial era laws are enforced with devastating consequences on individual freedoms, leaving chilling effects on free expression. Repeated calls to repeal the laws remain unheeded. Today, sections 179 and 180 of the Penal Code Act are being challenged in the East African Court of Justice in Arusha, Tanzania. Insult laws under the Computer Misuse Act (section 24 and 25) are also being challenged before the Constitutional Court of Uganda.

Press freedom, especially coverage of assemblies and other political freedoms, remains a risky affair. Radio stations have been switched off, journalists have found themselves in trouble for hosting opposition figures and others have been brutalized by police and army officers in the course of their duties.

The Uganda Communications Commission (UCC) also continues to demonstrate increased stranglehold on freedom of the press. A few days ago, the UCC ordered five media houses (NTV, NBS, BBS, Bukedde TV and Radio Sapientia) to show cause why UCC should not revoke their licenses. The media houses are faulted for live coverage of police brutality and exchanges between rioting crowds and security personnel during a Bobi Wine convoy. UCC contends that the media houses breached the controversial Minimum Broadcasting Standards under section 31 and schedule 4 of the Uganda Communications Act, 2013.

Police continues to block Bobi Wine from holding music concerts at his private property, One Love Beach in Busabala. When he announced his 2019 Independence Day Concert, police and army was heavily deployed at his home and the beach to ensure no concert takes place. In sharp contrast, music concerts in support of the ruling party go on uninterrupted with heavy political messages.

Violations of personal liberty and the right to a fair trial also remain major concerns. Police continues to illegally detain suspects beyond 48 hours and incommunicado detention is also on the high. Prolonged detention on remand is also common. The 2018 Uganda Prisons Service report revealed that at least 9,100 inmates had overstayed their remand period. Of these, 3,844 are charged with petty offences.

We have made reasonable progress on a number of fronts. That said, respect for political freedoms is one of the greatest tragedies that we must pay attention to as we celebrate Uganda At 57. If we fail to do so, we shall be preparing yet another chapter of turbulent times in Uganda’s history. True independence means individual freedom and economic control.

The Disappearing Trial: “I never came to your court seeking for justice!”

Dr. Stella Nyanzi - Chapter Four Uganda photo

Dr. Stella Nyanzi. ©Chapter Four Uganda photo

It is common parlance in countries that use the English legal system that “not only must Justice be done; it must also be seen to be done.” One must travel the path of strict adherence to the cardinal principles of the right to a fair trial to achieve this justice.

The case against Dr. Stella Nyanzi in criminal case number 1115 of 2018 at the Buganda Road Chief Magistrates Court leaves a trail of concerns as to whether she was accorded a fair trial. It goes without saying that many accused in Uganda face similar, or worse fate, during their trials.

The first question that needs to be interrogated is whether the case against Stella should have proceeded to its conclusion in the very first place.

Unjust prosecution?

On November 2, 2018, Dr. Stella Nyanzi was arrested over what the police described as offensive communication on her facebook profile on September 16, 2018. Her arrest triggered the start of her trial on two charges of cyber harassment and offensive communication under sections 24 and 25 of the Computer Misuse Act, 2011 respectively. It is important to note that this trial is different from the “pair of buttocks” charge.

The charges were sanctioned and the prosecution ensued despite the fact that the two sections are being challenged in the Constitutional Court.

Chapter Four Uganda, Uganda Law Society, and Unwanted Witness Uganda are challenging the impugned sections for being inconsistent with or in contravention of Article 28(2) and 29(1)(a) of the Constitution of the Republic of Uganda and should, therefore, be declared null and void. The first petition against the law was filed in February 2016.

The question then is why did the case proceed on charges that are subject to a constitutional petition? It is unjust for a prosecution to be mounted on a law that is being challenged for being unconstitutional. The trial should, therefore, have been halted pending the determination of the constitutional petitions.

In the Supreme Court case of Charles Onyango Obbo and Andrew Mujuni Mwenda v the Attorney General, Justice Mulenga observed that;

The Constitution is the basic law from which all laws and actions derive validity. Where the constitutional validity of any law or action awaits determination by the Constitutional Court, it is important to expedite the determination in order to avoid applying a law or taking action whose validity is questionable.

It is therefore imprudent to proceed with a criminal trial when the constitutionality of the charges are in question.

In Davis Wesley Tusingirwe case, the Constitutional Court agreed with the Charles Onyango Obbo case and issued a stay of all matters in the Anti-Corruption Court:

It was argued that temporarily staying the criminal proceedings at the HCACD would greatly and adversely affect the operations of this country’s criminal justice system and that it would cause a stampede. We find that this is not necessarily so. First, the position at law is that where the constitutionality of any proceedings, Act, act or omission is being questioned and a prima-facie case is made out, then such proceedings, Act, act or omission should be stayed.”

During the trial of Shaka Robert at Buganda Road Chief Magistrates Court in criminal case number 328 of 2015 where he was facing offensive communication charge, related submissions made in court by counsel and the court stayed the proceedings pending the determination of the petition.

In Geofrey Kazinda v the Attorney General, the Court of Appeal referred to Justice B.J Odoki in which he concurred with Justice Mulenga that the trial court only enjoys discretionary powers on whether to halt proceedings or not if a party to the proceedings before the court is the one who petitioned on his or her own to challenge the sections for which they are being charged. The import of this is to avoid frivolous petitions to the Constitutional Court with the intention to stall prosecutions.

In Stella’s case, the two offences were already being challenged by other individuals and reputable organizations.

The question then is why do we continue to see a rise in prosecutions based on laws that are being challenged in the Constitutional Court?

Breach of fair trial guarantees

Was Stella afforded a fair trial, especially in regard to the right to a defense and equality of arms?

The Constitution of the Republic of Uganda provides for the framework of what amounts to a fair hearing in the determination of civil rights and obligations or any criminal charge against any person under Article 28.

Inter alia, the Article requires that an accused person shall be given adequate time and facilities for the preparation of his or her defence; and be afforded facilities to examine witnesses and to obtain the attendance of other witnesses before the court. The strict adherence to these minimum constitutional rights is in question.

Indeed, these concerns formed the basis of the application for revision to the High Court by the defence team. A total of nine grounds were raised in Application Number 24 of 2019 requiring the High Court to examine the lower court record to determine the correctness, legality or propriety of the trial of the findings and orders recorded since July 1, 2019.

Although the application failed, the revisional order by Hon. Justice Jane Frances Abodo raises questions as to whether the right to adequate time and facilities to prepare a defence and the right to a fair hearing in regard to the principle of equality of arms were observed, given the factors and circumstances of the case.

The right to defend oneself

Everyone charged with a criminal offence has the right to defend him or herself against the charges, in person or through a lawyer. For the right of defence to be meaningful, the accused must be given adequate time and facilities to prepare the defence.

In this case, Stella was given only two weeks to prepare and argue her defence. Although the matter was adjourned seven times after the case-to-answer ruling on June 21, the period during which she had to prepare, summon, and present her defence was such a short time. The defence expressed interest to summon 20 witnesses.

In assessing what amounts to adequate time to prepare a defence, several factors such as the nature of the proceedings, the factual circumstances of the specific case, the complexity of the case, and the accused’s access to evidence and to his or her lawyer and expert must be taken into account.

A sober assessment of these factors makes it rather obvious that two weeks is such little time for an accused to prepare and present defence. Any concerns about the admissibility and or performance of any of the defence witnesses should not be a ground for the court to dismiss the defence’s case and justify restricting the defence period to such a short window – especially in a situation where the accused is on remand.

It goes without saying that the right to a trial within a reasonable time should be balanced against the right to adequate time to prepare a defence. It defeats the purpose of a fair trial within a reasonable time if the net result of shutting down the defence is to deny the accused the right to adequate time, in this case at her own request, to prepare a defence. The urgency to close the case is intriguing.

Access to information that is, or may be, necessary for preparing the defence is yet another important guarantee that appears to have been eroded in this case. It is on record that Stella’s lawyers requested a typed record of proceedings to enable her to prepare her defence. It is also on record that the trial magistrate outrightly rejected, citing that it would encourage laziness of counsel. She further said that the record of proceedings is voluminous and that the defence lawyers had always been present in court taking notes.

In the application for revision, the High Court ruled that the failure to give the defence the typed record was mitigated by other factors and that it did not in any way cause a miscarriage of justice on the case of the accused person. If indeed the record is voluminous, is that not an even more important reason as to why the accused should have been afforded the typed record of proceedings and adequate time to prepare? Neglecting to grant the access compromises the right of the accused to information necessary to prepare defence and threatens the object of natural justice in the adjudication of cases.

“Equality of arms”

The last essential element of the right to a fair hearing that was violated in Stella’s case is the principle of equality of arms between the parties.

In any criminal case, it is important that both parties are treated in a manner that ensures that they have procedurally an equal position during the course of the trial. This is fundamental for their ability to make their case fairly.

In this case, it is noted that the prosecution had over three months to present three prosecution witnesses and make its case. It is therefore strange that after being put on defence, Stella was given only two weeks, in earnest, to prepare and present her defence. How is that fair?

The principle of equality of arms is crucial in criminal cases where the prosecution has all the machinery of the state against a citizen. This principle was violated by the sharp disparity in time granted to both parties to make their cases which affected the right to call and examine witnesses, access to information, and a spectrum of other rights that are essential for the exercise of the right to adequate time and facilities to prepare a defence.

The American Bar Association’s Center for Human Rights is monitoring Stella’s trial as part of the Clooney Foundation for Justice’s TrialWatch initiative. Look out for the full report.

Public Assemblies: Why the “tomato seller” argument is flawed

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An armored military vehicle blocks Opposition Leader Dr. Kizza Besigye. Internet photo, 2019.

In theory and principle, the right to freedom of assembly is straightforward. People are free to peacefully assemble and to petition. The role of the state is simply to ensure that all of us enjoy our rights equally – not one over the other.

The contestation has been rather on how assembly rights can be exercised without infringing on the rights of others and legitimately threatening political interests. Of course, this approach is fatally flawed and unconstitutional because it negates the purpose and  fairness of rights.

Look around, we happily inconvenience others on non-controversial assemblies quite regularly. Why is the standard different when the expression is critical, dissenting or unpopular?

When President Museveni penned an article on public assemblies, he noted that the state will not allow gatherings that are not “legitimate”. His opinions are partly supported by a law that enables the flawed approach.

In 2013, the Public Order Management Act (POMA) was enacted. Whereas the objective of the law was to provide a law that facilitates the enforcement of the right to freedom of assembly as guaranteed under the Constitution of Uganda, the law is littered with out rightly repressive and vague provisions that narrow assembly freedoms.

69 days after its enactment, Chapter Four Uganda and partners moved to court to challenge the law under petition number 56 of 2013. Specifically, the petitioners contest the definition of “public meeting”, re-introduction of section 32(2) of the Police Act that was declared unconstitutional by court in Muwanga Kivumbi v Attorney General, and other sections that provide prohibitive restrictions on individual liberties.

Six years on, the constitutional court continues to fail to dispose of the matter.

And so, the madness of an undemocratic society continues to unfold before us. We continue to fail to distinguish between notification and permission for assemblies. We openly – and brazenly – promote chaos to stop critical citizens from expressing themselves.

In all fairness, the preliminary part and a few sections of the law are progressive. But that is all.

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Cartoon depicting selective enforcement of the repressive law. Credit: Atukwasize ChrisOgon

The spirit of POMA is fundamentally troubling.

The public order law envisions enjoyment of assembly rights by a group without any inconvenience on others. Of course, there will always be some inconvenience. For example, traffic may be affected for a few minutes; business may slow down for a moment. Further, enforcement – which is often selective I must add – compounds the problem.

What we need is a honest conversation about necessity, proportionality and how to limit inconveniences suffered by others. We also need to talk about the benefits of peaceful assemblies to governance, development and resilience of communities.

To ask a group of people to go and assemble in a farm or forest, away from a public place, is to defeat the very purpose of the right. Assemblies don’t have to be held in markets but they are expected to be held in public places to engage folks. 

The law purports to provide for a ‘notification’ regime while in fact providing for a ‘permission’ regime. The bullish and domineering presence of police authority can be felt from a far. This is in contradiction with the acceptable notification regime that requires that presumption always be in favour of holding assemblies. Failure to notify the police, in itself, does not render an assembly illegal.

On whether an assembly is peaceful or not; the organisers intentions should suffice. It is not the place of police to declare assemblies violent simply because it involves dissenting or unpopular views. Peaceful includes conduct or expression that is annoying, dissenting or temporarily obstructing activities of third parties.

Finally, isolated acts of violence do not render the entire assembly non-peaceful or place criminal liability on the organizers. The police should arrest the individual suspects and allow the assembly to continue.

The bottom line is that any limitation to freedoms must be necessary and proportionate.

As noted by Mulenga J.S.C in the landmark Charles Onyango-Obbo case, limiting the enjoyment of freedoms is an exception to their protection, and is therefore a secondary objective. In the eventuality, only minimal impairment of enjoyment of the right, strictly warranted by the exceptional circumstances is permissible.

Current restrictions on assembly rights are unconstitutional. The “tomato seller” argument does not hold water. It is a perilous path down the valley to entrench the illusion of democratic freedoms.

Ending FGM: Lessons from Uganda and Kenya

On February 6, Uganda and Kenya joined the rest of the world to mark the International Day of Zero Tolerance for FGM. The day came amidst a surge in FGM incidents in Kween district – one of the hotspots in Uganda – where at least 100 girls and women were mutilated. The two continue to have hotspots despite outlawing the practice several years ago.

Civil society organizations such as Chapter Four Uganda, a civil rights watchdog in Kampala and the Kapchorwa Civil Society Organisations’ Alliance issued a statement on current situations.

Both countries have outlawed FGM, effectively designating FGM as a crime. FGM is not female circumcision. Uganda was the first to enact the Prohibition of Female Genital Mutilation Act in 2010 and Kenya followed suit in 2011 with the enactment of a law having a similar title to that of Uganda.

When the two governments expressed a strong willingness to end FGM by enacting the laws, it was hoped that the discriminatory and brutal practice would end. Indeed, we recorded a steady decline – but it still persists. And yet, even one victim or survivor is one too many.

There are a few lessons learned from the experiences of Uganda and Kenya in the fight against FGM since the enactment of the laws. There are also a few areas the two countries need to do more to improve on to end the practice.

Firstly, there is a need to be careful with legislation to ensure that we do not sweep the practice underground. For example, criminalizing all cultural practices that are related to FGM, including the harmless ones, is one sure way. Under Uganda’s anti-FGM law, participation in events leading to FGM is criminalized. Whereas it can be argued that the intention of the framers of the law was to penalize prior actions to avert the mutilation, provisions of section 7 threaten to outlaw even harmless cultural practices – which is not prudent.

This is not the first time we are facing a harmful cultural practice.

When the time came for Uganda to deal with the question of bride price and dowry, we were careful not to uproot the entire traditions and customs related to customary marriages. Instead, courts carefully went about it to understand the different cultural rights and ceremonies to ensure that we remove that which is discriminatory and unacceptable. For instance, it is the practice of demanding for the refund of bride gifts at the dissolution of marriage that was found unconstitutional.

Can you imagine if we outlawed kwanjula, kuhingira and other traditional marriage ceremonies or bride gifts in totality?

The communities that practice FGM believe that it is an important rite of passage for girls or women to womanhood. It, therefore, follows that efforts to do away with FGM must provide alternative rites of passage. It is important that as we debunk myths and misconceptions associated with the practice, we must also respect the cultural rights to exercise the rite of passage through harmless traditions. This calls for the promotion of alternative rites of passage into womanhood which is harmless and non-discriminatory.

Faced with a similar challenge, Dr. Susan Chebet founded the Tumdo Ne Leel Support Group in October 2003 to provide for an alternative rite of passage for thousands of young girls who would otherwise have been mutilated. The community-based organization is working with communities in Kenya’s pastoral regions of the North Rift to empower girls and women with education and train them on harmless traditions as a rite of passage to womanhood.

Secondly, the law needs to criminalize all forms of FGM – including where there are claims of consent of the victim or self-inflicted FGM. Whereas there are reports of forced FGM, many FGM incidents today indicate that the girls or women who undergo the cut demand for it. Under the pressure of stigma associated with not undergoing the cut or belief in the FGM myths and misconceptions, they find themselves in that sad situation. It is therefore crucial that the law, in addition to other efforts to combat these consequences of stigma, addresses this challenge. Consent or carrying out FGM on oneself must never be a defense.

Thirdly, the law needs an effective enforcement plan. Since enactment of the laws in Uganda and Kenya, there has been no major success in prosecutions. Local leaders and duty bearers who fuel FGM in communities often get away with it yet the law criminalizes acts that aid, abet, induce, or coerce carrying out of FGM. Over the years, persistent reports indicate that politicians either encourage or condone FGM for selfish political gains. Childbirth attendants are also often reported to be involved in cutting women when they go to give birth. All these perpetrators must be brought to book. Without a robust enforcement plan, the law will remain a shadow of itself.

There is no doubt that FGM is a criminal and discriminatory practice that violates basic human rights and fundamental freedoms of girls and women. We need to do more to challenge stigma, debunk FGM myths and misconceptions, invest in girl child education, end child and early marriages to preempt harmful family interests to pressure girls to undergo the cut in preparation for marriage, strengthen protection and oversight systems, and increase investment into the anti-FGM fight.

While at it, we must ensure that we focus on ending mutilation – any procedure that alters or causes injury to the female genital organs for non-medical reasons – while respecting other harmless and non-discriminatory traditions and practices that can be used as rites of passage for the communities. The acceptable alternatives are key for accelerating the fight against FGM.

Ugandan Universities: Civil liberties in peril

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Striking Makerere University students. © The Observer Newspaper

“If there is any principle of the Constitution that more imperatively calls for attachment than any other, it is the principle of free thought – not free thought for those who agree with us but freedom for the thought that we hate.”

  • Oliver Wendell Holmes, Jr., U.S. v. Schwimmer, 1928.

 

If there is one place where the matrix of freedoms should flourish, it should be at the university. As special kinds of small societies, universities are supposed to be a demonstration of what a nation aspires to be – a free society where freedom in all its manifestations thrives. This freedom is increasingly under threat in Ugandan universities.

Recent strange developments at Makerere University, one of the oldest and most prestigious universities in Africa, have left many baffled.

On the basis of frivolous  allegations, three leaders of the Makerere Administrative Staff Association (MASA) and the Makerere University Academic Staff Association (MUASA) namely Mr. Bennet Magara, Mr. Joseph Kalema, and Dr. Deus M. Kamunyu were recently indefinitely suspended. At the time, the university staff association leaders were lawfully mobilizing other staff of the organization in industrial action.

This was not a fast.

On September 10, 2018, at least 8 students were suspended from the university by the Vice-Chancellor on accusations that they were engaging in ‘unsanctioned’ and ‘illegal demonstrations’. The University Chief Security Officer was further ordered to “commence criminal proceedings” against the students. Several other students received warning letters for posting critical comments on social media platforms.

The latest onslaught on civil liberties at Makerere University is premised on the University’s Students Regulations of 2015 and section 5.9 (b) of the Human Resources Manual of 2009. These regulations contain vague provisions and to an extent, contravene provisions of the Employment Act.

For example, clause 6 (1) (d) of the regulations grant the Vice Chancellor powers to ‘suspend a student’ or ‘to discipline him in any manner he thinks fit,’ including expulsion. There is no obligation to investigate or subject the student to a fair hearing before imposing the sanctions.

All he or she has to do, after reprimanding the student, is to ‘seek approval of his action at the next meeting of the University Disciplinary Committee.’ These are excessive powers in a pre-cautionary situation. It is further not clear how often the said disciplinary committee seats.

HR Manual contravenes the Employment Act

Under section 5.9(b), the Makerere University Human Resources Manual vests powers in the Vice Chancellor to suspend an employee on half pay for a period not exceeding 90 days during the inquiries.

This contravenes section 63 (2) of the Employment Act that requires such suspension not to exceed four weeks (28 days).

The enforcement of the impugned provisions threatens constitutional freedoms and leaves a trail of many deeply concerning questions.

Precautionary suspension – vs – punitive suspension: A case for reform

Developments at Makerere University further raise questions on suspensions of employees under Uganda’s labor law.

Under section 63 of the Employment Act, 2006,  an employer has power to suspend an employee on half pay for up to four weeks during an inquiry.

The framing of the law, in its current form, fuses precautionary and punitive suspension – which violates labour rights of employees and the presumption of innocence.

Whereas it may be necessary for an employer to suspend an employee pending inquiries, the suspension must be precautionary, and on full pay. This is important to avoid unnecessary disruption of the life of the employee whilst still being considered innocent.

It is my considered opinion, therefore, that the Employment Act should be amended to provide for two types of suspensions – precautionary suspension and punitive / disciplinary suspension.

Precautionary suspension should apply for suspensions to allow time for inquiries whenever justified. Punitive suspension on the other hand should be reserved for employees who have been found guilty after a fair hearing. Procedure leading to precautionary suspension should also include an opportunity for an employee to be heard on whether or not the suspension should be confirmed.

Other Universities

Related concerns exist in other universities.

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An image of the notice

On December 12, 2018, Bugema University, a Ugandan Seventh-Day Adventist Church institution, issued a notice banning female students from wearing “miniskirts, earrings, necklaces, bangles, sleeveless and open tops, coloured nails, lipstick, trousers, and dresses above knee line” on campus. A student found with the items in the university is to face the university disciplinary committee for “serious action.” The orders have however been challenged in the High Court.

The issue of dressing in institutions of learning, especially in church-owned or sponsored institutions, is a matter being litigated in Kenya. After a local government prevailed over a school sponsored by Methodist Church of Kenya to allow Muslim students to wear hijab and white trousers in school, the Methodist church sued charging it amounted to discrimination and special treatment of Muslims.

In agreeing with the church, the High Court ruled that the decision to allow Muslim students to wear hijab and trousers was discriminatory, unlawful and unconstitutional.

On appeal, the Court of Appeal of Kenya in setting aside this High Court judgment found that it is discriminatory for a church-funded school to bar Muslim students from wearing their dressing. Although the Supreme Court of Kenya has since quashed the decision on technicalities, a fresh petition is expected to be lodged in the High Court.

Irungu Houghton, Amnesty International Kenya’s Executive Director observed;

“Students do not abandon their constitutional rights when they enter school, therefore their choices about their appearance… must be protected.”

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Yasin and Simon jubilate outside the main gate of the university. ©Campus Bee

In April 2016, Yasin Sentumbwe Munagomba and Simon Semugoma, law students at the Uganda Christian University (UCU) were expelled from the university for participating in a peaceful protest.

While quoting regulations 6 (v) and 8 (ii) of the 2015 – 2016 UCU Code of Conduct Handbook, the Vice Chancellor accused the duo of being masterminds of a demonstration against rise in tuition fees ‘without obtaining his approval and that of police’ and thereby damaging ‘the good image and name of the university’.

Yasin and Simon dragged the university to court and won.

In her judgment, Justice Margaret Mutonyi observed,

“their (Yasin and Simon) expulsion from the university was very high-handed, it aimed at destroying the future of their very own students and creating fear among the student community.”

The Islamic University in Uganda (IUIU) is also known for controversial suspensions and expulsion of students.

This simply has to stop. Many dreams are being shuttered for no justifiable reason.

Unfettered freedom to exercise freedoms, think the unthinkable, and to challenge the unchallengeable should be the norm, not the exception. At the university, that freedom is crucial for the marketplace of ideas where intellectualism and imagination flourish.

It is sad, for example, to see a university demanding approval or permission from the administration or police before students can hold a peaceful protest. It is sad to see students being suspended for expressing themselves on social media platforms. It is sad to see a university policing bodies and dressing of female students. We are better than this.

We need to examine the condition of free expression, peaceful dissent, academic freedom, mutual respect and tolerance at our universities before it is too late.