School of Law (S.Law)

Permanent URI for this community

http://10.29.1.53:4000/handle/10570/85

Browse

Jump to a point in the index:

The trials and tribulations of Rtd. Col. Dr. Kizza Besigye and 22 others: a critical evaluation of the role of the general court martial in the administration of justice in Uganda

(Human Rights and Peace Centre, Makerere University, 2006-10) Naluwairo, Ronald

When the Chairperson of the Sessional Committee on Defence and Internal Affairs at the time, Hon. Simon Mayende introduced the Uganda Peoples Defence Forces (UPDF) Bill for the Second Reading, he informed Members of Parliament that the Bill was expected to harmonize military law with the Constitution and to improve the administration of justice in the UPDF. The Bill was developed within the overall context of professionalizing the UPDF.It was passed into law (i.e. The UPDF Act, Act No.7, 2005) in March 2005. The indictment and various trials of Rtd. Col. Dr. Kizza Besigye and 22 others, present one of the first major tests of whether the new law has achieved its intended objectives. In particular, the trials provide the opportunity to examine the compliance of the UPDF Act with the Constitution with particular regard to issues of administering justice, especially as dispensed by the General Court Martial (GCM). This Working Paper is an analysis of the role of the GCM in the administration of justice in Uganda. The paper makes the following key observations, conclusions and recommendations: • Any State organ that purports to exercise judicial power in Uganda must adhere to certain minimum international and constitutional standards of administering justice. In particular, such organs are obligated to protect and uphold the fundamental right to a fair hearing. The right to a fair hearing is multifaceted and very broad in nature. It includes the right to a public hearing by a competent, independent and impartial court. It also includes the right to be presumed innocent until proved guilty, the right to legal counsel, and the right not to be subjected to double jeopardy, among others. In their totality, these rights constitute the minimum standards for administering justice in a democratic society. • The indictment and trial before the GCM of Rtd. Col. Dr. Kiiza Besigye and 22 others sparked off a wave of public concern over the competence of the military court to conduct a fair and just trial in keeping with the above mentioned rights. It also presented an opportunity for a re-examination of the role of this court in the administration of justice in the country. While observing that the law governing the GCM has several laudable provisions on the right to a fair hearing, the paper makes the following conclusions: (i) The military court is established outside the Constitutional frame work for the exercise of judicial power and the administration of justice in Uganda; (ii) (iii) The court is not an independent tribunal. It lacks the minimum guarantees for an independent and impartial tribunal, which include; security of tenure of the members of the court, financial security and institutional independence with respect to matters of administration that relate directly to the exercise of the tribunal’s judicial function; (iv) The court lacks the necessary legal personnel for the effective administration of justice; and (v) The concurrent jurisdiction of the military court and the High Court to try offences of a generic nature defeats the main objective and rationale of the law against double jeopardy. The paper also questions the rationale of trying civilians accused of non-military offences, moreover in courts that are not designed to try non-military personnel. The GCM is incompetent to interpret and uphold the fundamental human rights of accused civilians. The court also lacks the necessary legal capacity to deal with the legal intricacies and evidential technicalities that most civilian offences present. The paper concludes with the following recommendations: (i) The GCM should be stripped of the jurisdiction to try civilians of non-military offences; (ii) The GCM should be made explicitly subordinate to the High Court; (iii) Appeals from the military court should go to the High Court in line with the Constitutional framework for the exercise of judicial power and the administration of justice in Uganda; (iv) The appointment of members of the GCM should be made by an independent body, preferably the Judicial Service Commission (JSC) on recommendation of the High Command; (v) The GCM Chairperson should be a retired, non-serving army officer appointed for a non-renewable six year period; (vi) The rest of the members of the GCM should be appointed for a period of three years, renewable only once, subject to satisfactory performance. This arrangement provides the necessary security of tenure of members of the court and guarantees sufficient continuity and institutional memory, and; (vii) In order to enhance the GCM’s capacity to handle complex legal issues and to help build public confidence in the court, the Chairperson of the court should be a person qualified to be appointed a Grade I Magistrate, while the rest of the court members should have legal training or a background of at least the equivalent of an ordinary diploma in law.
Interrogating struggles for economic, social and cultural human rights in contemporary Utake: a perspective from Uganda

(Human Rights & Peace Centre, Makerere University, 2006-11) Oloka-Onyango, Joe
The first annual state of governance conference in Uganda: conference report

(Human Rights & Peace Centre, Makerere University, 2006-11-24) Human Rights & Peace Centre (HURIPEC)

This report synthesizes the proceedings of the First Annual State of Governance Conference in Uganda. The Conference brought together representatives of the different political parties, members of parliament, senior members of the judiciary, legal practitioners, civil society organizations, academia, development partners and the media among others. The major objective of the conference was to provide a forum for open dialogue to a multiplicity of stakeholders to interrogate the major governance issues that arose during the course of 2006. The aim was to promote transparency, accountability, respect for the rule of law and democratic values within the structures of governance in Uganda. The Conference was convened by the Human Rights & Peace Centre (HURIPEC) of the Faculty of Law, Makerere University.
Intellectual property rights in Uganda: reform and institutional management policy formulation

( 2006-12) Bakibinga, David J.

The Paper reviews the Law governing intellectual Property Rights in Uganda, identifies areas requiring reform relative to international treaties and the proposals of the Uganda Law Reform Commission. Finally is treatment of intellectual property rights management geared towards the development of research findings into innovations, transfer thereof to users and private sector aimed at their commercialization and exploitation.
The problematique of economic, social and cultural right in globalized Uganda: a conceptual review

(Human Rights & Peace Centre, Makerere University, 2007-03) Oloka-Onyango, Joe

Uganda is largely considered a trailblazer in the debate about poverty eradication. Indeed, one of the most striking features of contemporary Ugandan society is the considerable rhetoric devoted to social and economic issues. However, the rhetoric is not matched by a deep-rooted and engaged policy framework within which questions such as the persistence of poverty, the consequences of socioeconomic marginalization and the improvement of equality of opportunity can be comprehensively tackled. That absence is clear in the lack of sensitivity to the human rights dimensions of the phenomenon—whether in the Poverty Eradication Action Plan (PEAP) or in the approach to the realization of the UN Millennium Development Goals (MDGs). The implications of this mismatch between rhetoric and practice are obvious. Among them, one could cite the absence of a culture of accountability, coupled with the perception that government actions in terms of providing safe water, education for all, or appropriate health facilities are gifts or privileges and not rights. This study—the first of nine in the HURIPEC Economic, Social & Cultural Rights (ESCRs) Project—provides a broad overview to the current situation of these rights in Uganda. It argues that the problem is not merely the fact that this category of rights is largely neglected in comparison to the attention that has been given to civil and political rights (CPRs), but also that when economic, social and cultural rights issues are addressed, there is an absence of a critical focus on questions such as access, accountability or appropriate mechanisms of redress. The study takes the issue of gender equality as the ‘mother of all rights’ in order to demonstrate that despite the considerable legislative and other reforms that have been pursued over the last two decades, there is an acute policy and implementation vacuum in this particular area of social concern. An assessment is also made of the key institutional mechanism involved in the formulation of policy on ESCRs, namely the legislature. Further assessments are made of the Uganda Human Rights Commission (UHRC) as well as of the Inspectorate of Government. The paper concludes that attention to ESCRs in Uganda is still rudimentary and in need of radical reformulation. In particular it argues that: (i) There is a need to revisit present approaches to the attainment of the MDGs and to the eradication of poverty which are lacking in sensitivity to core human rights principles and to transform them into mechanisms that will effectively address issues such as discrimination, inequality and social vulnerability; (ii) An opportunity has been opened through the amendment to the 1995 Constitution which stipulates that the National Objectives and Directive Principles of State Policy shall bind the state. The amendment has effectively transformed guiding principles on medical services, access to water, the provision of adequate shelter and housing and the right to food, among others, into binding obligations on the part of the state; (iii) Despite the positive achievements enshrined in the 1995 Constitution on Gender Equality, there remain several impediments at the national and local levels to its effective implementation, and with specific regard to the economic, social and cultural rights of women. New strategies addressed to the achievement of gender equality need to adopted at all levels of state action; (iv) All government ministries and related state agencies involved in the provision of basic social and economic services need to study the Human Rights Based Approach to Development (HRBAD) and to begin a process of consciously applying it to their various activities, at both the policy level and at the stage of implementation; (v) Parliament and its various committees must conduct human rights audits of the bills, resolutions and other measures introduced by the state in order to ensure that they do not violate economic, social and cultural rights; (vi) The arena of decentralization is particularly crucial to the implementation of ESCRs, and as such, there is a need for the design of appropriate mechanisms to ensure that this category of rights is given serious attention; (vii) Public Interest Litigation (PIL) needs to be pursued in earnest in order to address the many negative consequences of unchecked economic reform, and to ensure that ESCRs are transformed from the status of ‘gifts’ of the state to basic entitlements for the population; (viii) Steps should be taken to compel the government to meet its international reporting obligations, and specifically to submit its first report to the Committee on Economic, Social and Cultural Rights, which is long overdue, particularly in light of the fact that the government ratified the International Convention on Economic, Social and Cultural Rights (ICESCR) in 1987; (ix) Human Rights and development groups need to become more intimately involved in pursuing rights-based approaches to the realization of ESCRs, and in the design of activist and empowering strategies for civil society at large; (x) Different strategies need to be adopted with respect to different categories of rights, i.e. strategies taken for the implementation of the right to adequate shelter and housing need not be the same as those employed with respect to the realization of the right to water, and, (xi) Public institutions such as the Uganda Human Rights Commission (UHRC) and the Inspectorate of Government (IG) need to boost and improve their strategies in relation to the realization of ESCRs and particularly to ensure that they engage with districts and local councils in promoting their effective realization.
Protection of the right to health care of women living with HIV/AIDS (WLA) in Uganda: the case of Mbarara hospital

( 2007-04) Twinomugisha, Ben

The study examines factors that affect protection of the right to health care of Women Living with AIDS (WLA) in Uganda. It recognizes the critical role Anti-retroviral Therapy (ART) plays in the enjoyment of the rights to life and to health of WLA. Through human rights and gender perspectives, the study explores the major constraints to the protection of the right of WLA to access ART. The study does this in the first instance by analyzing the extent to which the legal and policy framework protects this right in Uganda, and delimits the scope, contours and content of the right, with a particular analysis of the situation of Mbarara Hospital in south-western Uganda. Also identified are the obligations of the state and other actors including private persons and the institutions of globalization. In theory, there is no doubt that WLA have a right of access to health care. However, the realization of this right is inhibited by both internal and external constraints. The first is that the existing legal and policy frameworks are largely antithetical to the protection of this right. Furthermore, there is inadequate attention to a Human Rights Based Approach (RBA) to policy design and implementation with respect to this right. Poverty and inequitable gender relations inhibit the promotion and protection of the right in question, and neither is adequately addressed by the policy framework. Against the above background, the study recommends several legislative, judicial, administrative and other measures for the enhanced protection of the right, including the following: 1. The right to health care should be explicitly recognized and incorporated into the Bill of Rights of the Constitution. 2. A health legislation that clearly spells out the relevant obligations and measurable benchmarks should be enacted. The legislation should expressly provide that the state is obliged to protect the right to health generally and the right to healthcare for vulnerable groups like WLA in particular. The legislation should provide for the active participation of the specific population for whom the policies are intended, such as WLA. 3. A Rights-based Approach (RBA) should be incorporated into the design and implementation of all legislation and policies relevant to the right in question. Free ART should be provided to all WLA in need of it, which ultimately necessitates increased funding to the health sector. 4. Inheritance and property laws and customs should be reformed to ensure that women inherit property. 5. There should be zero tolerance of sexual and domestic violence, and this should be incorporated into the legal and policy frameworks. 6. All necessary steps should be taken to eliminate or mitigate the stigma and discrimination against PLHA. 7. Home based or mobile care should be encouraged. 8. Both men and women should be targeted in any education, counseling and treatment strategies, while WLA should be provided with sustainable projects that enhance their vocational and business skills.
Decentralization without human rights?: local governance and access to justice in post-movement Uganda

(Human Rights & Peace Centre, Makerere University, 2007-06) Oloka-Onyango, Joe

Uganda’s actions in the arena of decentralization have received critical acclaim for introducing a number of important changes to the practice of local government. Needless to say, after more than 20 years in place, the system is confronted by a number of serious challenges, none more significant than the promotion and protection of human rights, and improving access to justice at the local level. There are three main levels at which the challenges must be tackled, namely: (i) Policy, concept and legislation; (ii) Implementation and action, and (iii) Support, monitoring and evaluation. This working paper conducts a critical audit of the extent to which the process of decentralization has taken on board the issue of human rights – civil and political, as well as economic, social and cultural. The main conclusions of the study are that a great deal remains to be done in order to make local governments more sensitive to the human rights of the populations they are supposed to service. At the same time, important stakeholders in the state and civil society outside it are yet to design appropriate strategies to comprehensively address the issue. In particular, the paper makes the following observations and conclusions: (A). Reassessing national policy: Decentralization is under pressure from several threats, not least of which the phenomenon of recentralization, which has witnessed marked reversals in the policy of devolution and has left local governments with fewer resources and more dependent on the largess of central government. These policy reversals must be critically interrogated and corrected in relation to both the wider goals of decentralization (devolution) and the more specific improvement of the local context for human rights protection. (B). Buttressing local capacities on rights and justice. The biggest impediment to the elaboration of a concrete program at the local level is the low-level of capacities for officials to do either human rights monitoring, or for them to ensure implementation of the Human Rights Based Approach to Development (HRBAD). (C). Improving access to information. Local government officials suffer from a dearth of information on human rights. More importantly, there is a general lack of a culture of publicizing the information which is in the possession of officials and which may be relevant to persons seeking to assert their rights. Despite the recent passing of the Access of Information Act, there is an absence of guidelines from the Ministry of Information on the obligations of public servants (including local government officials) in relation to the provision of information to the general public. (D). Processing information tool-kits on human rights. The simplification of documents on the Bill of Rights in the Constitution, and other relevant information on rights and duties needs support and duplication. (E). Improving CSO engagement. Civil society organizations (CSOs) and community based organizations have several obligations with respect to local government.
The role of forensic science in the administration of criminal justice in Uganda.

(Makerere University, 2008) Munduni, Ronald

The need for this study arose from the realization that forensic science plays a very important role in the administration of criminal justice. When an accused person is proved guilty before the courts of law, he / she is subjected to punishment. Thus, there is need to ensure that it is only the guilty that are punished but not the innocent. Forensic evidence, although corroborative, plays a persuasive role in courts’ decision making in cases where it is applicable. The main objective of the study, therefore, is to examine the effectiveness of the application of forensic evidence in the administration of criminal justice in Uganda. The study noted that there is no way the application of forensic evidence in the administration of criminal justice can be effective when the respective actors in the forensic field are deficient of forensic knowledge or have no local ways of enhancing the existing forensic knowledge they possess. The study further revealed that there are a number of persisting factors in Uganda that sometimes culminate into incorrect and misleading forensic examination results that are used in evidence in courts of law. Examples of such factors include corruption / undue influence, poor facilitation and time management, poor forensic facilities / equipment, incorrect methods of forensic evidence collection and examination. It was also found that the small number of forensic experts and the few forensic laboratories that are mostly located within Kampala do not provide a conducive environment for an effective application of forensic science in the administration of criminal justice in Uganda. Worse still, some forensic fields such as voice analysis, image and skeleton reconstruction are found to be non-functional in Uganda as they completely lack both the facilities and expertise. The study further discovered that most of the few existing forensic laboratories are not strategically located to avail privacy to the examiners to conduct interference free, constructive analysis and examination of forensic samples. Most of them play a dual role: they are used as offices and laboratories. The study further revealed that in Uganda there is no centralized body that regulates the functions of forensic experts. Thus, the latter operate in an uncontrolled environment that in effect, is likely to prejudice the process of administration of criminal justice. Last but not least, it was found that the government does not give sufficient support and recognition it deserves to upgrade the field of forensic science. The study recommends that government should establish forensic institutions so as to train a good number of forensic investigators and examiners. Their services should be decentralized to effectively cover the whole country. The government should also incorporate forensic science as a course unit within the University curriculum for both undergraduate and post graduate studies as a way to enhance forensic knowledge within the country. There is need for the government to establish and revamp those non-functional forensic fields so as to avail the population cheaper local services instead of hiring foreign experts. The study also recommends that the government should give sufficient support to the field of forensic science and address the issue of facilitation of the forensic investigators and examiners so as to provide efficient services to the public. It is further recommended that the government should establish a regulatory body to oversee and regulate the functions of forensic science in Uganda. The government should further promote cross boarder collaboration to combat the emerging sophisticated information and communication crimes such as online fraud. In order to alienate the fear or likelihood of conflict of interest, the study recommends that the government needs to have forensic bodies independent of criminal investigation and prosecutorial bodies. Last but not least, expert opinion derived from experience should only be admitted by courts in exceptional cases where other more reliable scientific methods are not applicable as experience does not have clear parameters that can be tested.
Limitations on solid waste management law in Uganda: A case study of Kampala City Council

(Makerere University, 2008) Toloko, Simon

The nature of handling and disposing of solid waste is still very poor in the country, with particular focus on Kampala. The study therefore attends the legal aspects of handling and disposing of waste, and looks into why, with the existence of the relevant legal and policy frame works, solid waste management practices are still wanting. What are the legal and non legal limitations to the law which relates to solid waste management that poor enforcement of the existing legal regime on waste management should be? This I sought to answer. The study covers the kinds and the causes of solid wastes; and draws lessons from other jurisdictions for comparative analysis. Solid waste management systems include recycling, incineration, waste reduction/prevention, dumping of waste, integrated approach and composting of waste; therein, environmental and human risk issues take place. In the law on the policy of waste management and disposal is low punitive measures for those that do not as stated; this, plus the multiplicity of laws and policies on waste management in the country are most in negating the enforcement process of regulating this activity which has become an environmental threat instead of economic viability as the case may be in other developed countries. Otherwise, there is a general negative attitude towards and therefore lack of public participation in waste management, hence, inadequate man power; to this is added the politics of the day. The study concludes that a need is on the government to enact a National law on waste management and to improve policy and guidelines as a control measure. The urban authority should by the most effective means enforce collection and disposal of waste; therefore the laws that relate thereto should be revised, and local participation should be encouraged.
Reflections on freedom of expression in Uganda’s fledgling democracy: sedition, “pornography” and hate speech

(Human Rights & Peace Centre, Makerere University, 2008-02) Ojambo, Henry Odimbe

Since the ascendancy of the National Resistance Movement (NRM) regime to power, Uganda has consistently been viewed and perceived by the international community as a source of hope for development and democratization in Africa. But Uganda can hardly boast of a strong economy, let alone strong democratic institutions. The country remains among the poorest on the continent with significant democratization challenges. In other words, one need not look at Uganda’s current situation to agree with those who see so much hope in the country. Rather, Uganda’s newly acquired international reputation is the consequence of her history, a history which has been characterized by anarchy, poverty and authoritarianism. Under the stewardship of President Yoweri Museveni, who has been president since 1986, the NRM government has registered notable success in restoring peace, promoting constitutionalism and democratization, initiating economic programs aimed at poverty alleviation, and promoting the rule of law, to mention but a few of its varied achievements. As part of its programs for the rejuvenation of the economy and democratic governance, the NRM regime has been at the forefront of promoting economic liberalization programs such as privatization and attraction of foreign investment, as well as enactment of new laws and the reformation of old ones. It is within this context that the country has experienced the unprecedented proliferation of media houses -- both electronic and print -- over the past two decades. This development raises many issues relating to the enjoyment of the right to freedom of expression, a right that forms an integral and critical component of democratization and good governance. Against the above background, this paper examines the extent to which the right to freedom of expression is actually enjoyed in Uganda and whether the legal regime pertaining to that right is adequately developed in order to ensure its sustainability. While different accounts could be offered for the proliferation of media houses under the NRM regime, the paper concludes that freedom of expression lacks a sound legal foundation and is thus extremely vulnerable. In particular, Uganda’s legal regime respecting freedom of expression is characterized by; (a) archaic and outdated restrictions (such as sedition) which only serve to undermine the enjoyment of the rights and in effect lead to a retardation of the democratization process and (b) weak and inappropriate regulatory mechanisms such as the Media Council. It is recommended that there is an urgent need to revisit the legal regime governing media freedom and among other things include provisions to address emerging challenges like racial intolerance.
Efficacy of Uganda’s graduated tax: The case of Moyo District.

(Makerere University, 2008-10) Obudra, Baku Raphael

This study was conducted to assess the efficacy of Personal Graduated Tax (PGT) as source of revenue for local governments to render services to the people and contribute to the development of the areas under their jurisdiction, in order to determine whether the tax should have been abolished or not, in view of the controversy surrounding it. The Study was conducted through analysis of the laws related to PGT, review of literature on the subject, field research through interviews with tax administrators and taxpayers, to assess their understanding and experience of the tax and attitude to it. The Study concludes that the taxation principle underlying PGT was not clear, as the nature of PGT was not clearly articulated. Hence, it was not clear whether PGT was income tax, property tax, service tax or development tax. It has also been concluded that PGT did not comply with the canons of taxation, and therefore, did not qualify as a good tax system, although it was a generally accepted tax, and it generated some revenue that complemented Central Government transfers to local governments, to enable them discharge their functions. Abolition of the tax, therefore, led to a financial gap for local governments that needs to be filled. Measures to enhance revenue generation by local governments and to improve on tax administration have been recommended. These are introduction of property tax instead of property rates, and vesting the jurisdiction of levying and collecting property tax wholly in local governments; transfer of responsibility for employment income tax to local governments; enhancement of grants from Central Government; and strict enforcement of local revenue administration laws.
Dream deferred? Democracy and good governance: an assessment of the findings of Uganda’s country self-assessment report under the African Peer Mechanism

(Human Rights and Peace Centre, Makerere University, 2008-10) Mbazira, Christopher

The New Partnership for Africa’s Development (NEPAD) heralds dawn of a new African continent with a commitment to redeem the continent in economic, social and political terms. One of the features of NEPAD is the African Peer Review Mechanism (APRM), based on the belief that no redemption can occur unless African countries engage in some form of self-assessment, critiqued through a peer review mechanism. The countries that have acceded to the APRM are expected to be objective and to carry out their self-assessment in all areas including good political governance, in good faith and in a transparent manner. Uganda has completed its Country Self- Assessment Report (Self-Assessment Report) November 2007. It should be noted, however, that the credibility of a self-assessment report and its findings depends on how objective the process was and whether it was independent of political forces. The process in Uganda shows that the APRM process is to a certain extent state-centric, with a largely executive controlled body, the National Planning Authority (NPA), designated as the National Focal Point. In spite of this, the process of the actual preparation of the Report by the APRM Commission enjoyed relative independence from the government. The Commission was constituted, on the face of it, by a relatively politically independent team representing a wide array of stakeholders from both the public and private sector. A review of the Self-Assessment Report indicates that Uganda has registered progress in the area of governance, including free and fair competition for political power and respect for the rule of law and supremacy of the Constitution. What is apparent from the Self-Assessment Report, however, is that the progress registered is mainly in comparison to past governments. The Report discloses a number of challenges that have hampered the deepening of democracy in the country. The biggest shortcoming of the Report, however, is that in some respects it judges progress by the extent to which the country has ratified the international instruments that prescribe standards of democracy and human rights. Sight is lost of the fact that ratification of an international instrument may not necessarily mean implementation. This appears to be the situation in Uganda. A review of evidence both within and outside the Report shows that the country is far from having free and fair competition for political power, respect for the rule of law and supremacy of the Constitution. These conclusions are based on the following: • The Electoral Commission is not only poorly funded but is also administered in a manner that does not assure all political candidates of its impartiality. Evidence suggests a Commission which is substantially still under the wings of the ruling National Resistance Movement (NRM) Political Organisation. While the Commission has registered some progress in salvaging its image, that progress has been very slow; it has been frustrated mainly by failure on the part of government to adequately facilitate the Commission. • In the same way as its predecessors, the ruling party has deliberately suffocated multi-party democracy and has for most of its term reigned over a largely one-party state. The 2006 change from the Movement system to Multi-Party democracy has not ended the violation of the right to engage freely in political activity. The ruling party is bent on using both police and military force to suppress free political activity. • The rule of law and supremacy of the Constitution has largely not been observed, Constitutional amendments have taken place following processes influenced by corruption and intimidation. Additionally, court decisions have been ignored with impunity. Government dissent of judicial processes has been expressed openly, especially by the use of the military to undermine the decisions of court. In light of the above, pressure should be placed on the NRM Government to honour the country’s commitments to full democracy and respect for the rule of law. The judiciary and other institutions that support democracy and human rights should be respected. The Electoral Commission must not only be allowed to operate in an impartial manner but should also be provided with adequate facilities in order to effectively carry out its mandated functions.
Equal opportunity, age-based discrimination and the rights of elderly persons in Uganda

(Human Rights and Peace Centre, Makerere University, 2008-11) Oloka-Onyango, Joe

Average life expectancy for Ugandans is currently estimated at 50 years for both men and women. Nonetheless, with developed healthcare systems and social conditions, there are telling indicators that a significant number of Ugandans live and will continue to live well beyond this age. By 2002, older persons constituted 4.6% of the total population. Whereas older persons are recognized among the category of marginalized groups in Uganda, they continue to receive minimal attention in comparison to others such as women, children, people with disabilities and the youth. Advocacy of the rights of older persons in Uganda is lackluster. Most support Offered to them is largely paternalistic. Social security also remains elusive, given that the majority of them do not actually qualify for such schemes having been mainly employed in the informal sector. For these reasons, older persons are regarded as unproductive and helpless and yet recent studies reveal that they are a major resource on history, traditional knowledge, health and culture. Older persons have also played an important role as the mediators of conflicts and disputes. Most importantly, older persons have been crucial in addressing the HIV/AIDS pandemic, protecting orphans and caring for those infected and affected. This study critically analyzes and assesses the issue of aged-based discrimination in Uganda against the backdrop of the struggle for equal opportunities of older persons. Its main objective is to ensure a more comprehensive approach to achieving full respect for the human rights of all persons regardless of age. Cognizant of recent steps by government to recognize the rights of older persons—specifically the formulation of the draft National Policy for Older persons and the establishment of the Equal Opportunities Commission—the paper argues for a new paradigm in which the rights of older persons should be considered. Despite the crucial place of older persons in the economy and in society at large, they remain discriminated against at almost all levels. This aspect of age-based discrimination has not spared the different programs and initiatives designed to help them. Older persons do not own most of the initiatives designed to protect them, and there appear to be few efforts in the direction of changing the status quo. Some hope lies in the enactment of the Equal Opportunities Commission Act in 2007. Putting in mind the fact that the Act in the main establishes the Equal Opportunities Commission (EOC) to deal with issues of the vulnerable generally, there is a need for considerable effort to influence the agenda of the Commission in ensuring that it fully recognizes and champions the rights of Older persons. The Commission should create sufficient space to enable older person’s full control and autonomy over the manner in which their rights and interests are to be given attention. The paper makes several recommendations in order to improve the situation of older persons including: a) The draft National policy provides a solid foundation for the rights of older persons and is a laudable step in the right direction. In particular, the policy underlines the obligations of the government of Uganda to older people in the country and may be used as a basis to demand for their rights particularly where the state is reluctant or unwilling to protect them; b) Issues of participation, protection and the positive image of older persons have to be taken into consideration for all interventions directed at their situation to succeed. To that end, older persons should be afforded a greater and more active role; c) As is the case with other vulnerable groups, the government should strongly consider forming a National Council for Older Persons and creating provision for their representation in Parliament. This will lead to better streamlining and advocacy of the rights of older persons and also enhance their levels of participation in the process of national development and governance; d) Non-governmental organizations (NGOs) need to strategically advocate for the rights of older persons and to mobilize to influence the agenda of the newly formed Equal Opportunities Commission towards the rights of older persons; e) Particular attention should be paid to provisions in the law barring the Commission from investigating any matter that involves behavior considered immoral, socially harmful or unacceptable by the majority of the cultural and social communities in Uganda. This limitation adversely affects the investigation of matters concerning age-based discrimination, given that older persons are often accused of ‘immoral’ practices such as Witchcraft; f) There is a dire need for the overall reform of the pension sector run by both the National Social Security Fund (NSSF) and the Public Service. Comprehensive reform of this sector should be undertaken and provision made for a Retirement Benefits Authority responsible for the regulation of pension issues in both the private and the public sectors. In this way, investment schemes will be better managed and pensioner’s life savings will not be invested in dubious schemes, as is currently the case; g) There is a need for the periodic review and scrutiny of parliamentary bills in order to ensure that the rights of older person are given the required attention and respect in the law making process. This is especially important where there is no parliamentary representation for older persons and calls for concerted and comprehensive advocacy on the part of NGOs committed to the rights of older persons; h) Mainstream human rights organizations should be encouraged to redefine their agendas in order to comprehensively incorporate the rights of older persons within their activities. At the same time, those groups that explicitly deal with the rights of older persons should strive to involve mainstream human rights organisations in their activities such as the International Day for Older Persons, which falls on October 1st of every year; i) The state should support the development and study of the subjects of Gerontology and Geriatrics in our institutions of higher learning and also by committing increased resources and funds to Gerontological research and to the study of both macroscopic and microscopic interventions in this area, and j) A free medical scheme for older persons should be put in place in order to address the most serious health challenges faced by them. The scheme should cover both consultation and drugs.
Frustrated or Frustrating?: the inspector general of government and the question of political corruption in Uganda

(Human Rights and Peace Centre, Makerere University, 2008-11) Ruhweza, Daniel R.

One of the main reasons the National Resistance Movement/ Army started a guerrilla movement, which subsequently over threw the so-called “bad” government of the day in 1986, was to eliminate corruption from the rubric of Ugandan society, and the office of Inspector General of Government (IGG) was created to achieve this goal. This study therefore examines the role of the IG in fighting corruption, with a special emphasis on political corruption. The paper recognises the critical role played by the IG in the promotion of the rule of law and of good governance and explores the main challenges frustrating the Inspectorate in achieving this goal. This is done by analysing the mandate of the IG and identifying the obligations of the Government and other actors in the fight against political corruption. It is against this background that this paper makes the following conclusions: • The rule of law and good governance are crucial ingredients of any democratic society and should therefore be encouraged and enforced by the state, public institutions, and private persons. All must join hands to ensure that the principles of good governance are upheld; • Corruption is a deadly cancer eating away at the soul of the nation and should therefore be fought with all available resources and mechanisms; • There are many serious challenges involved in fighting corruption— particular of the political variant—some of which are rooted in the decay of morality and of the ethical framework of society. The paper makes the following recommendations: • The government needs to show the political will to fight corruption by inter alia implementing the recommendations of the IG and improving the remuneration of the more experienced prosecutors and other professionals in the Inspectorate. • The jurisdiction of the Inspectorate of Government should be made explicitly clear to all stakeholders in order to avoid clashes among the different state organs involved in the fight against political corruption; • While, the role of the IG is crucial in the struggle against corruption, the mandate of the Inspectorate should be reduced in order to have more efficient results in the fight against corruption. This should be done by allocating the roles of Ombudsman and enforcing the leadership code to other institutions. • At the same time there is a need to guard against the excesses of the IG by encouraging more action from parliament to which the Inspector General of Government reports. • The IG Act also needs to be amended to coerce Parliament and the Executive to not only act, but to take appropriate action. • Parliament needs to constitute the leadership code tribunal provided for by Article 235A of the Constitution, in order to deal with those who are alleged to have breached the Leadership Code Act. • The judicial system and especially the recently created Anti-corruption Division of the High Court of Uganda should be well facilitated with the most recent technology for investigations and speedy trials.
African economic integration: The legal and institutional perspectives of the Common Market for Eastern and Southern Africa (COMESA).

(Makerere University, 2009) Maiteki, Bigirwa George

Every continent has at least one major integration movement. Europe has the European Union, Asia has the Association of South East Asian Nation (ASEAN) and the Asian Pacific Economic Cooperation (APEC), North –America has the North American Free Trade Area (NAFTA), Latin America has the latin America Association for Common Market (ANCOM), America has the Central American Common Market (CACM). Africa has three major ones; the South African Development Community (SADC), Economic Community for West African States (ECOWAS), the East African Community (EAC) and the Common Market for Eastern and Southern Africa (COMESA) which is the research focus. There are two reasons that make COMESA a more appropriate regional group for study in terms of relevance and interest as compared to other integration movements on the African continent. Nine of the African ten member states of SADC are also part of the member states of COMESA. COMESA is the largest regional grouping in Africa. The study sets out to analyse the history of regional Integration in Eastern and Southern Africa especially on COMESA. It will also be necessary to establish the limitations of the Legal and Institutional framework and its ramifications for the future of regional Integration. The study further assesses the Institutional and Legal opportunities, challenges and achievements of regional Integration in the context of COMESA. iv The study also deals with comparative aspects of the Legal and Institutional perspectives of COMESA with those existing in the EU, NAFTA and ECOWAS. Proposals for reforms that would engender COMESA activities in light of existing and future challenges are covered in the study as critical areas that would offer benchmarks for a cherished regional body.
The application of the exclusion clause to refugees under International and Municipal Law in Uganda

(Makerere University, 2009) Awet, Haile Okba

Uganda has been a home for refugees since time as early as the late 1930s when it received over 7,000 refugees mainly from Poland, Italy, Egypt, Cyprus, Syria and Palestine. The trend, however, escalated in 1950 where about 178,000 Sudanese refugees fled to Uganda as a result of civil war between the northern Arabs and the Southerners. Uganda also experienced another mass exodus in 1959 when about 80,000 Rwandese fleeing civil war between Tutsi and Hutu arrived in the country. During the early days of independence, another 33,000 refugees fled from the former Belgian Congo into Uganda due to a breakdown of law and order in the country.
A critical examination of the all-inclusive approach to corporate governance in Uganda: a case study of CELTEL (U) LTD.

(Makerere University, 2009) Mudde, John Bosco

It is widely perceived that the notorious collapse of Enron one of America’s largest companies in 2001, has focused international attention on company failures and the role that strong corporate governance needs to play to prevent them. The United Kingdom responded by refocusing on the Higgs report and the Smith report (2003) and the US produced the Sarbanes- Oxley Act (2002). Corporate governance, therefore, developed as a tool for monitoring and controlling corporate structures, and ensuring that accountability, transparency, fairness are included in the decision making process. It is designed to find a sustainable equilibrium between the interests of the various stakeholders. This must be supported by an adequate legal regulatory system that has credibility and is enforceable . The International Finance Corporation in conjunction with the African Management Services Company (AMSCO) developed the project for promoting corporate governance in Africa as a part of the programme of building private sector capacity in Africa. Similarly, there is growing pressure by bilateral and multilateral creditors to push government and corporate entities to demonstrate promotion of good governance. The mandate to promote corporate governance in Uganda is being handled by the Uganda Institute of Corporate Governance.
The role of forensic science in the administration of criminal justice in Uganda

( 2009-08-08) Munduni, Ronald

The need for this study arose from the realization that forensic science plays a very important role in the administration of criminal justice. When an accused person is proved guilty before the courts of law, he / she is subjected to punishment. Thus, there is need to ensure that it is only the guilty that are punished but not the innocent. Forensic evidence, although corroborative, plays a persuasive role in courts’ decision making in cases where it is applicable. The main objective of the study, therefore, is to examine the effectiveness of the application of forensic evidence in the administration of criminal justice in Uganda. The study noted that there is no way the application of forensic evidence in the administration of criminal justice can be effective when the respective actors in the forensic field are deficient of forensic knowledge or have no local ways of enhancing the existing forensic knowledge they possess. The study further revealed that there are a number of persisting factors in Uganda that sometimes culminate into incorrect and misleading forensic examination results that are used in evidence in courts of law. Examples of such factors include corruption / undue influence, poor facilitation and time management, poor forensic facilities / equipment, incorrect methods of forensic evidence collection and examination. It was also found that the small number of forensic experts and the few forensic laboratories that are mostly located within Kampala do not provide a conducive environment for an effective application of forensic science in the administration of criminal justice in Uganda. Worse still, some forensic fields such as voice analysis, image and skeleton reconstruction are found to be non-functional in Uganda as they completely lack both the facilities and expertise. The study further discovered that most of the few existing forensic laboratories are not strategically located to avail privacy to the examiners to conduct interference free, constructive analysis and examination of forensic samples. Most of them play a dual role: they are used as offices and laboratories. The study further revealed that in Uganda there is no centralized body that regulates the functions of forensic experts. Thus, the latter operate in an uncontrolled environment that in effect, is likely to prejudice the process of administration of criminal justice. Last but not least, it was found that the government does not give sufficient support and recognition it deserves to upgrade the field of forensic science. The study recommends that government should establish forensic institutions so as to train a good number of forensic investigators and examiners. Their services should be decentralized to effectively cover the whole country. The government should also incorporate forensic science as a course unit within the University curriculum for both undergraduate and post graduate studies as a way to enhance forensic knowledge within the country. There is need for the government to establish and revamp those non-functional forensic fields so as to avail the population cheaper local services instead of hiring foreign experts. The study also recommends that the government should give sufficient support to the field of forensic science and address the issue of facilitation of the forensic investigators and examiners so as to provide efficient services to the public. It is further recommended that the government should establish a regulatory body to oversee and regulate the functions of forensic science in Uganda. The government should further promote cross boarder collaboration to combat the emerging sophisticated information and communication crimes such as online fraud. In order to alienate the fear or likelihood of conflict of interest, the study recommends that the government needs to have forensic bodies independent of criminal investigation and prosecutorial bodies. Last but not least, expert opinion derived from experience should only be admitted by courts in exceptional cases where other more reliable scientific methods are not applicable as experience does not have clear parameters that can be tested.
International environmental law and the question of banned chemicals: the legal implications of the use of DDT in Uganda

( 2009-09) Kasande, Vennie

It is reported that more than a million people die of malaria in Africa each year, and nearly 800,000 of them are young children. In Uganda, malaria is killing 320 Ugandans daily. Over the past generations it has killed millions of human beings and sapped the strength of hundreds of millions more. It continues to be a heavy drag on man’s efforts to advance agriculture and industry. The evolution of malaria control saw the discovery of dichlorodiphenyltrichloroethane (DDT) as a chemical that could be used to kill mosquitoes which spread malaria to human beings. The use of DDT in malaria control has evoked emotions and passions of past DDT debate especially when it comes to protection of the environment. Use of individual researcher’s data by experts has found its way into the general public and policy debate. The debate gives the impression that the use of DDT alone will help solve the dynamic and intricate problem of malaria disease. The critical issue here has been the controversy between the need to protect public health even when the environment is threatened. Guided by the central research question of “What is the impact of international environmental law on banned chemicals for the control of malaria in Uganda?”, this study has analyzed the international environment law and its implication on the proposed re-introduction of indoor residual spraying (IRS) using DDT in Uganda. The study traces the evolution of malaria control policies and reviews both the international and national legal frameworks with implications for use of DDT in Uganda. It found that the question of malaria control policies has had a long history but it has remained controversial, the discovery of DDT as a means to control mosquitoes which causes malaria was received with much blessing but the emergency of the environmental concerns associated with its use have persisted todate. The way DDT has been treated in the POPs convention can be seen as a partial victory for those campaigning for its continued use in controlling malaria. However, the restrictions on the use of DDT under Annex B of the POPs pose a relatively onerous burden on its use. The study further investigates the perceptions of people on applying DDT to control malaria. It finds that the environmentalists and health workers hold varying views on the use of DDT in the control of malaria. It is also clear that the government on the other hand supports the use of DDT and is already taking practical steps to have the DDT spread to fight malaria. Although the government is determined and has already taken steps to use DDT in the fight against malaria, several issues in this approach remain contentious. It is thus important that the government revisits the legal and policy frameworks that impacts on the use of DDT as a malaria control policy. The study also discussed experiences in other jurisdictions and found that adopting an Eco-health approach is one of the ways Uganda can fight Malaria without using DDT. The study further finds that Uganda has several other options other than the application of DDT to control malaria. However once it chooses to apply DDT to control malaria, it has to take precautions such as monitoring of the process to avoid abusing the use of DDT in other sectors such as agriculture. It thus concludes that the question of international environmental law and the use of banned chemicals such as DDT in the fight against malaria can best be solved by striking a balance between the protection of the environment and public health. This calls for a holistic approach and developing mechanisms for dialogue between the environmentalists and advocates for public health. The study also recommends other options for instance using alternatives to DDT, using the ecohealth approach, use of alternative pesticides which are less toxic and applying the precautionary approach.
Efficacy of Uganda’s copyright laws in combating music piracy

(Makerere University, 2009-09) Namuddu, Janet

Copyright is the right granted to an individual to protect his skills and efforts in producing some work such as a book, song or picture. What is protected is the creativity in the choice and arrangement of words, musical notes, colours, shapes, to mention but a few. Copyright protects the owner of the property right against those who copy or otherwise use the form expressed by the author. A music copyright gives the author exclusive rights to control the publication, distribution of copies, public performance for payment or broadcasting the whole or sections of the work in the author’s country or abroad. Those are termed as the ‘economic rights’ of the author. It is unlawful to use copyrighted musical work without the copyright owner’s consent. This thesis examines the provisions of the Copyright and Neighbouring Rights Act, 2006 that protect music copyright. It also unveils ways that are used to pirate music in Uganda and the reasons advanced for the piracy. The problems encountered by music copyright owners in enforcing their rights are also discussed. The provisions, policies and practices of Uganda’s copyright laws, enforcement bodies and institutions relating to music business are critically analysed pointing out their weaknesses and making proposals for reform. The conclusion reached by the author is that copyright laws alone cannot combat music piracy. Enforcement bodies and institutions such as the Uganda Police, Broadcasting Council, Collecting Societies, Courts of Judicature and all stakeholders should join the move and fight the piracy plague. Government agencies should assign particular officers to deal with copyright issues or cases. This means establishing special sections in the Police, Uganda Revenue Authority and the Court system to deal with copyright cases without delay. The proposed areas for reform include keeping abreast of international developments, sensitization of the public, strengthening the enforcement provisions, encouraging musicians to cooperate with collecting societies, establishment of specialized institutions to deal with copyright matters and ensuring that stakeholders obtain some payment from the manufacturers and importers of blank tapes for recording sounds and images.

Browse

Browsing School of Law (S.Law) by Issue Date

Results Per Page

Sort Options