1. law, govt and politics

2015
ISSUE #01
ULS NEWSLETTER
Members of the ULS-Strengthening Access to Justice for Children
and Youths in East Africa (SAJCEA) together with members of the
Uganda National Working Group (UNWG) who attended a meeting
on the Child Justice Manual that was held on 29th January 2015 at
the Imperial Resort Hotel pose for a group photo after the meeting
UGANDA LAW SOCIETY
The Uganda Law Society (ULS) is a body corporate established by the Uganda
Law Society Act (Cap 276) with statutory objectives among others to
improve professional standards of its members, and promoting human rights
and rule of law in Uganda.
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FOREWORD
MAGNA CARTA AT 800 YEARS
No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his
standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement
of his equals or by the law of the land.
To no one will we sell, to no one deny or delay right or justice.
Magna Carta, June 15, 1215
It was on 15th June 1215 at Runnymede, on the River Thames near Windsor when King John of
England affixed his seal on Magna Carta (The Great Charter) to avert civil war. At this time London
was under the control of the rebel barons because King John had refused to grant their demands; so
he agreed to negotiate with them.
It had been a long time coming for King John. The barons were unhappy with King John because of
his strained relationship with the Church; he had rejected the election of Stephen Langton as
Archbishop of Canterbury and so the Pope had issued an interdict, prohibiting people in England
from receiving the sacraments or being buried on consecrated ground. King John had been
excommunicated by Pope Innocent III in 1209, and the interdict remained in place until King John
surrendered his Kingdom to the Pope in 1213. In addition, in 1214, at the Battle of Bouvines, a
mercenary army raised by King John was defeated by the French and yet this army had been paid by a
tax known as ‗scutage‘. The barons had also urged that all oppressive rule be abolished but King John
refused to meet the barons‘ demands.
It became inevitable in May 1215 for the barons to renounce their oaths of allegiance to King John choosing Robert Fitz Walter as their
leader. Then came the turning point; the barons captured the city of London. The barons wanted to protect their rights and property
against a tyrannical King. The demands of the barons were recorded in the Articles of the Barons and after further talks, King John
granted the Charter of Liberties, subsequently known as Magna Carta, on 15 June 1215. On 19 June the rebel barons made their formal
peace with King John and renewed their oaths of allegiance to him.
Magna Carta would become one of the most famous documents in the world. It established for the first time the principle that everybody,
including the King, was subject to the law. It promised the protection of church rights, protection for the barons from illegal
imprisonment and access to justice without delay. Although nearly a third of the text was deleted or substantially rewritten within ten
years, and almost all the clauses have been repealed in modern times, Magna Carta and its protection of ancient personal liberties
influenced the formation of the American Constitution in 1789. It still forms an important symbol of liberty today. Lord Denning once
described it as "the greatest constitutional document of all time – the foundation of the freedom of the individual against the arbitrary
authority of the despot‖.
In the 21st century, four exemplifications of the original 1215 charter remain in existence, held by the British Library and the cathedrals of
Lincoln and Salisbury. These four original 1215 charters are on joint display at the British Library to mark the 800th anniversary of Magna
Carta.
Let us prepare to commemorate 800 years of Magna Carta this June on 15th. Like Franklin Delano Roosevelt said in 1941 at his inaugural
address; ―The democratic aspiration is no mere recent phase in human history... It was written in Magna Carta‖.
For God and My Country.
RUTH SEBATINDIRA
PRESIDENT- UGANDA LAW SOCIETY
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GO SLOW AMENDING THE CONSTITUTION ON COMPULSORY ACQUISITION OF LAND
Frank Tumusiime
Email: [email protected]
Among the human basic needs
include; oxygen, water, food,
shelter and sleep. It is clear that
owning property is a bridge to
accessing these basic needs.
Article 26 of the 1995 Constitution guarantees the right to own
property either individually or in association with others. It
prohibits compulsory deprivation of property, except when such
acquisition is necessary for public use or national security, public
safety, public order, public morality or public health. The
acquisition must also be made under a law which makes provision
for prompt payment of fair and adequate compensation, prior to
such acquisition.
Article 26 its self has got flaws that require amendment for the full
realization of the right to own property. To mention but a few; the
phrase acquisition in public interest is vague and subject to abuse.
For example the government give away of land formerly housing
Uganda Broadcasting Corporation and the Shimoni land were done
in disregard of public interest. Such moves propel investors to an
ocean of material prosperity and cast the displaced to an island of
poverty and material dispossession. Therefore as a preliminary step,
public interest circumstances and limits must be specified by law.
Another dilemma is that there is no comprehensive law, nor policy
to regulate the process of acquisition, compensation and
resettlement. As a matter of right, amendments to the law should
seek to invalidate any compulsory acquisition of land, which does
not provide for: notice to land owners; opportunities for land
owners to negotiate; free expert (survey and valuation) support to
the poor and marginalized; access to independent arbitrators in
case of disagreement on the assessed values and easy and
affordable access to judicial remedies; timely and prompt
compensation; and lastly compensation prior to taking over the
land in question. This will help avoid the prevailing slanted land
acquisitions and ensure that the voiceless and poor are not cast in a
valley of despair.
But instead of honoring citizen‘s right to own property, the
government is proposing to amend Article 26 in a way that will
deprive people of their means to live. The proposed amendment
seeks to take over private property before payment of a prompt
and fair compensation to the owners. Exception will be where the
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…the
property taken over comprises permanent and physical structures
that the owner may get paid before government takes such
property. Ironically, the main purpose of this proposal is to
promote investment in national interest and promotion of the
economy. But firstly, any business that cannot fund the startup of
paying for the acquired land is nonstarter and no investment at all.
Secondary, there is no national interest in displacing, isolating and
exiling thousands of people in their own country. Thirdly, the poor
once empowered can contribute to the development of our
economy in a much a higher value than some of the questionable
investors. The delay in developing Naguru housing estate, Shimoni,
and UBC land etc should serve as warning signals.
The proposal to limit prompt payment before taking over of the
acquired property to permanent physical structures does not only
comfort the rich but directly troubles and confronts the
marginalized and poor that cannot afford to set up permanent
structures. Worse still, these poor often lack the ability to challenge
such unfair acquisition in courts of law.
Another proposal is that; where the property taken over is not in a
form of physical structures in permanent materials, the
compensation should be paid within one year. Certainly majority
poor Ugandans living in mud houses, will have to wait much longer
without any compensation. The resultant landlessness and poverty
will rid affected citizens of their dignity, survival and wellbeing.
It should be remembered, even with the existence of Article 26
above, most people affected by various infrastructure projects have
had to wait for over four years. The planned construction of an oil
refinery and other infrastructure in the Albertine region, Hoima has
left the affected people longing for the day they will ever be paid a
fair and actual value of their property.
The Courts have already ruled that any compulsory acquisition of
property must be before payment of a fair and adequate
compensation (see Advocates for Natural Resources Governance
and Development & 2 Others vs. Attorney General; Constitutional
Petition Number 40 of 2012).
The Supreme Court sitting as a Constitutional Appeal Court (see
Constitutional Appeal No 1 of 2004, between Phillip Karugaba and
the Attorney General) has recognized that the right to property is
the highest right a person can have over anything to which one
claims ownership, from lands and tenements, to goods and chattels
and in no way depends on another man‘s courtesy.
practice of amending the Constitution without
introspection can cost generations of lives and stability…
The displacement of people should be the last resort as compensation for acquired land is no compensation, for it cannot replace the lost
social lifestyle, etc, nor can it put the displaced in the same social economic status. In most cases, the compensation won‘t repurchase the
lost assets. Even in a resettlement, the transaction costs, the production time wasted, the startup costs of a new productive activity,
locating other social amenities etc further eats down any meaningful value. Compensation is therefore a sort of damage substitution.
To the proponents of these amendments, let us regain our humanity. As lawyers, we can provide the much needed legal representation to
the afflicted, and counsel to policy makers. To our legislators, the practice of amending the Constitution without introspection can cost
generations of lives and stability. Please go slow while considering this amendment.
The author is a lawyer, coordinator and advocate for Natural Resources Governance and Development.
END
SEXUAL HARASSMENT IN THE WORKPLACE
Brian Kwame Emurwon –
Senior
Associate,
Katende
Ssempebwa & Co Advocates
(KATS)
A former Minister for Ethics &
Integrity (who, quite confusingly,
heads a Directorate and not a
Ministry) said that the curvaceous
beauties of Kampala, when scantily
clad, cause traffic accidents
because ‗some of our people are
weak mentally.‘ This made me wonder if similar catastrophes occur
when these curves are deployed in the workplace.
I got two interesting, and quite polar reactions, from two friends to
whom I happened to mention that I was in the process of writing
about sexual harassment in the workplace:
The first said, ‗Is it because of me? Brian, I‘m only human. I won‘t
pretend I don‘t see what I see.‘
And the other laughed hard as if he was being told that
Joseph Kony was penning a piece on Ahimsa.
The above notwithstanding, I ploughed on.
The section that deals with sexual harassment—section 7 of the
Employment Act—is among the most underemployed legislative
provisions in Ugandan labour law. A ULII search for case law on
sexual harassment yields a single result: Victor Juliet Mukasa and
Yvonne Oyo v Attorney General. This case does not at all deal
with sexual harassment in the workplace but rather with torture,
cruel, inhuman and degrading treatment meted out during a
highhanded anti-homosexuality operation conducted by the Police.
That, however, is a topic for another day
Clearly then, Uganda‘s sexual harassment law is yet to develop.
The question is whether jurisprudential development is necessary.
Is sexual harassment a problem currently prevailing in the Ugandan
workplace?
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A 2011 poll published by the local press sampled over 10,000
workers and found that a significant number of employees in
Uganda experience sexual harassment in the workplace.
Between 2008 and 2009, Kampala‘s Central Police Station
reportedly received a minimum of two complaints per month: none
of which led to a successful prosecution and many of which were
later withdrawn by the complainant (Gladys Oroma ‗Sexual
Harassment Cases Dropped for Lack of Evidence‘ ).
Although section 7 of the Employment Act is couched in gender
neutral language, one could be pardoned for presuming sexual
harassment to be primarily a concern of the female employee.
Frank Kiwalabye carried out a study on sexual harassment over 3
districts of Uganda in 2008. This study sampled over 1,400 female
respondents and found that more than 50% had experienced
sexually harassment in an employment context.
The Kiwalabye study also found that the majority of Ugandan
employers did not have an organisation-specific sexual-harassment
policy in place and lacked the capacity to deal with sexual
harassment when it occurred. Less than 14% of the respondents
were aware of any policy in their workplace aimed at protecting
them from sexual harassment.
Sexual harassment is clearly prevalent in the Ugandan workplace.
My next question is why is it so under-reported?
I believe three reasons can be advanced towards explaining why:
The first explanation goes to how the society in which we live
structures socio-sexual interactions between men and women. A
woman is taught to convey her modesty by rejecting a man‘s initial
overtures however welcome they may be in actual fact; conversely a
man is trained to believe that the name of the game is to overcome
all resistance wherever and howsoever it may be encountered.
This leads a victim of sexual harassment to second guess herself
and wonder if perhaps she was the provocateur of the harassment
in question. When she tactfully refused his advances; did she act in
any culturally-intoned way that intimated that her N.O. was actually
an N.O.W?
In an environment such as this it is extremely difficult for a victim
of sexual harassment to convincingly articulate how this particular
man ‗over-persisted‘ to the point of becoming a pestilent presence.
Such a suggestion or complaint would fail to garner a sympathetic
reception. Even before uttering it, the victim anticipates hearing in
response, ‗A man will be a man! How else do you expect him to
be?‘ ‗Don‘t be oversensitive.‘
The second reason in my view is that the victim may hesitate to
report the incident of sexual harassment for fear that the penalty
meted out to the perpetrator may be inordinately dire, ie dismissal
from employment. The perpetrator may be a person of high
stature, may be married with children, or may be, harassment-aside,
quite a likeable rapscallion. The lasting guilt of having jeopardised
or ended the career of this harasser may, in the mind of the victim,
outweigh any benefits of bringing the molestation to an end.
The first and second explanations flow into the third; which relates
to fear of reprisal after the incident is reported. The Kampala
Labour Office has noted that often a complainant is victimised
further by her employer and workmates after reporting the incident
of harassment to their office. This is due to the lack of sensitivity
towards and sympathy with the victim and the perception that the
embarrassment and punishment of the harasser exceeds the ‗crime.‘
The confluence of these three factors perpetuates the vice of sexual
harassment and underscores the need to adopt a proactive
preventative approach as opposed to a reactive punitive approach.
More so because the females identified to be particularly at risk are
the unmarried, new-hires, and low-rank staff (harassment of the
latter resulting, no doubt, from their lower economic and social
status; high-rank employees were found to be 28% less likely to
experience sexual harassment in the workplace), ie the most
vulnerable in the workplace.
According to the Employment Act, the responsibility for
preventing sexual harassment rests with the employer. An
organisation that fails to put in place adequate measures to protect
its employees thus exposes itself to serious legal liability for failure
to take reasonable steps to preclude the existence of a hostile work
environment. This liability is in addition to the vicarious liability
for sexual harassment perpetrated by a supervisor or person in a
position of authority within the organisation, particularly in a quid
pro quo context.
The first step in discharging this responsibility is the establishment
of a written policy safeguarding employees from sexual harassment
and putting in place remedial measures for handling sexual
harassment if it occurs. Under the law, every employer with more
than 25 employees must put in place measures to prevent sexual
harassment; this includes developing an organisation-specific antisexual-harassment policy and establishing a committee to handle
reports of sexual harassment incidents.
The policy should be the result of a consultative and participatory
process that ensures that the written policy serves as a vehicle for
articulating an organisation-wide understanding of the parameters
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of acceptable professional interaction; aptly identifies the type of
behaviour that falls short of the accepted standard; and prescribes
the steps to be taken in the event sexual harassment occurs.
Another step is sensitivity training for all employees to establish a
new culture in the workplace. This training would be aimed at
informing and educating them about the employer‘s unequivocal
stance against all forms of sexual harassment in the workplace. In
this manner, confidence is established in the workforce that sexual
harassment is a serious matter that will not be taken lightly and this
will have a deterrent effect. But the employer must show that the
policy is not merely words on a piece of paper, but has actual real
world application.
Lastly, complaints of sexual harassment must be investigated
promptly and with the utmost confidentiality and sensitivity. In
minor incidents, the identity of the victim must be kept secret and
the perpetrator warned verbally and informally to avoid the
complained of behaviour. In more serious cases the identity of the
victim cannot be kept hidden and special care should be taken to
protect complainant from reprisals on account of the disciplinary
action taken against the harasser. The investigator of the complaint,
who interviews the victim, alleged harasser, and all other potential
witnesses, must be someone with credibility with the rest of the
workers. The investigation must be seen to result in decisive
corrective action.
THE ULTIMATE QUESTION is, with men occupying the
majority of leadership positions in the ―employsphere‖, how do we
get from where we are to where we need to be on the issue of
sexual harassment in the workplace? From universal suffrage to
equal-pay for equal-work, the history of women‘s‘ rights activism is
one that‘s filled with tales of near– and, in some cases, outright–
criminal callousness on the part of men. However, like most sociocivil rights matters, this issue can get traction through the
intervention of the Government. A good starting point would be
for labour unions and concerned civil society organisations to take
the initiative of inundating the Commissioner for Labour with
petitions for inspection of workplaces for the purpose of ensuring
that the employers‘ duty to institute anti-sexual-harassment policies
is no longer more honoured in the breach than the observance.
END
NOTICE PRO-BONO DAY
The Uganda Law Society in conjunction with the Law Council and Democratic Governance Facility [DGF] cordially invites all
Advocates and members of the public who have legal needs but cannot afford the services of a lawyer to the 4th Annual Regional
Pro Bono day themed “Access to Justice for All Made a Reality” slated for 27th February 2015 at various locations nationwide.
Venues: Railway Grounds – Kampala; Buhinga Grounds - Fort Portal; Busoga Square –Jinja; Arua Hill Play grounds Arua; the Legal Aid Project Offices of Soroti, Mbarara, Masindi, Gulu and Kabale.
Registration fee: Free
This event will add 2 CLE hours to your compliance for the Advocates who attend.
STRENGTHENING ACCESS TO JUSTICE FOR CHILDREN AND YOUTHS IN CENTRAL
AND EAST AFRICA (SAJCEA) PROJECT WORKSHOP
Currently, there are no legal provisions or specific guidelines on child friendly procedures for Prosecutors, Probation Officers or
Police Officers. Interviewing witnesses, using child-friendly, culturally sensitive language, using interpreters, and preparing witnesses
for the courtroom experience, to name just a few, should be standardized procedures that all Prosecutors, Probation Officers, Child
Protection Officers and investigators are familiar with and are mandated to undertake.
The Uganda National Working Group (UNWG) is comprised of members from the Judiciary, the Justice Law and Order Sector,
the Directorate of Public Prosecutions (DPP), Legal Aid Service Providers‘ Network, Foundation for Human Rights Initiative Paralegal Advisory Services, Ministry of Justice and Constitutional Affairs – Department of Law Council, Ministry of Gender,
Labour and Social Development – Children and Youth Department, and the Uganda Law Society.
Under its current work-plan, the UNWG will conduct a 2 day workshop for key stakeholders within the Justice system to enhance
their capacities to promote restorative justice mechanisms in handling cases of children in contact with the law. The workshop is
scheduled for 24th and 25th February 2015.
UPCOMING CLE EVENTS
Its main objectives are:
Family Law Symposium
1. To create a platform to share experiences on Restorative
Date: 10th March 2015
Justice Mechanisms and options.
Venue: Golf Course Hotel
2. To strengthen the capacity of key stakeholders to implement
Fee:
150,000/=
a Child Friendly Justice System.
Points: 5 CLE Points
3. To make proposals for a comprehensive Child Friendly
Theme: To discuss Child Adoptions and Guardianships –
Restorative Justice system for Uganda.
Challenges & the role of lawyers; the operations and challenges of
the Family and Children Court & Administrator General‘s
The workshop facilitators will include Judges, prosecutors and
Department and to make recommendations on how to improve
probation officers from Uganda and Canada who will share
administration of family justice. The symposium will also
experiences from both the Ugandan and Canadian systems. It
examine the work of the Child Protection Working Group &
will focus on three thematic areas of Restorative
what the ministry is doing to make improvements in Child
Justice/Diversion, the Evidence of Child Victims/Witnesses
Protection systems.
and Legal and Policy Reform.
Matters arising from the workshop will guide the UNWG in
Legal Practitioners Conference on Litigating Election Cases
the formulation of proposals for reform of laws, policies, and
Date: [To Be Confirmed]19th March 2015
practices for the delivery of child friendly services to children in
Venue: Golf Course Hotel
contact with the law.
Fee:
FREE
Points: 5 CLE Points
ULS ANNUAL CONFERENCE & GENERAL
Theme: To explore the role of the legal professional in the
MEETING
conduct of election petitions and preparedness.
th
th
24 – 25 April, 2015
Block off the dates above for the largest gathering of the legal fraternity across the country – a meeting place of more than 1700
lawyers and legal professionals from around the region. This year the conference will discuss election preparedness of the profession
as well as Economic Social and Cultural Rights
Please remember, this is an Election year.
CLE Points: 10
Registration: Free
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EAST AFRICA INTEGRATION NEWS REVIEW
The Use of ID and Single Tourist Visa Still Pending
While other partner states already use the ID and the single
tourist visa for travelling within the East African Community
(EAC), the Ministry in charge of EAC affairs confirms that the
Burundi ID is still unreliable. Since the launch of a Single
Customs Territory, it is operational and clearing processes are
established in the country of destination while the goods are still
at the first entrance point in the EAC. When all the formalities
are finished, there won‘t be any non tariff‘s barriers. Trucks
come directly to the final destination.
On 14th October 2014, The European Union (EU) and East
African Countries (EAC) partner states signed an agreement
establishing an economic partnership between the two parties.
Indeed, the EAC secretariat has donated equipment for video
conferences which will allow Burundi to follow the meetings
organized by that department.
However, even if many activities have been carried out in the
Ministry of Home Affairs, some challenges still constrain the
achievements of the ministry. ―The lack of funds and
institutional harmonization has been major obstacles in realizing
our goals,‖ mentions the Minister. But, she hopes, TradeMark
East Africa (TMEA) pledges to support the Ministry to
harmonize Burundian laws with EAC ones.
Tanzania Keen to Crash Barriers
The government of Tanzania has embarked on a project to
develop three One Stop Inspection Stations (OSISs) to reduce
non-tariff barriers (NTBs) to trade which inhibit intra-trade in
the East African region. According to a statement made by
TradeMark East Africa (TMEA) which supports the project
including other development partners, the three locations have
been selected to capture the largest amount of transit traffic.
The three stations will be set up at Vigwaza in Coast Region,
Manyoni in Singida Region and Nyakanazi in Kagera Region,
where all regulatory authorities involved in vehicle inspection
along the Central Corridor will conduct their inspections jointly
at one location. The World Bank has agreed to support the
preparation of the detailed design, supervision and construction
of the third OSIS at Vigwaza, through the Southern Africa
Trade and Transport Facilitation Project.
The site at Manyoni captures traffic from the central corridor
and that from Kenya into Tanzania and the site at Nyakanazi
handles Ugandan, Burundian and Rwandan vehicles. According
to the Government of Tanzania, the project will reduce the
number of official checks for Transit Trucks from 17 to 3 along
the Central Corridor. ―Not only will the OSIS reduce
congestion of trucks parked along the roadsides and reduce
accident rate caused by exhaustive drivers, but also most
importantly, reduce time and costs through joint checks from
the Police.
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Nakaseke Passes By–Laws on Maize Quality Standards
Local government authorities in Ssemuto Sub County,
Nakaseke District have passed by-laws to guide and regulate
farmers and traders on meeting the maize standards for better
access to markets. This was a result of consecutive consultative
meetings on the East African Community maize standards,
organized by Southern and Eastern African Trade Information
and Negotiations Institute (Seatini) Uganda.
The by-laws emphasize proper drying of maize once it has
matured, confiscation of immature produce, burning of fields
that have been sprayed with harmful chemicals, and fields where
immature maize has been slashed to dry on the ground and
punishment of farmers who do not have granaries.
The project targets on improving quality of maize and sesame
for access to the wider EAC market.
Grand TFTA Cannot be Delayed Any Longer
Lusaka Trade proponents are arguing that the enhancement of
regional integration and creation of a grand Tripartite Free
Trade Area (TFTA) among the three Southern and East African
economic trading blocs cannot be delayed any longer as the
global market is yearning for more products from the continent
while the groupings need to increase intra-trade among member
countries.
The integrated market will comprise the COMESA, the EAC
and SADC. The establishment of a single and enlarged market is
expected to boost intra-regional trade and deepen regional
integration through improved investment flows and enhanced
competition. In fact, this integrated arrangement will create a
combined population of some 625 million people covering half
of the member states of the African Union (AU) and a Gross
Domestic Product of about US$1.2 trillion.
SADC, COMESA and EAC have agreed to hold the tripartite
FTA summit in Egypt to kick start the process, with the
gathering scheduled for the end of May 2015. Africa‘s
longstanding vision is to be an integrated, prosperous and
united continent.
It is hoped that when the member states meet, those countries
which will be ready to join the FTA and integrate will go ahead
and move on while others that are still undecided will be
compelled to join later to ensure the process is not delayed any
further than has been the case.
―We cannot afford to delay the implementation of the tripartite
FTA as well as accelerate regional integration because that is
Africa‘s dream and desire to break into the European market,‖
says Cassam Uteem, the former Mauritius president.
Series of intense consultations and negotiations have been going
on since 2008 when the three regional economic communities
made a commitment to jointly work together in regional
integration during their historic summit held in Kampala,
Uganda. The commitment shown by the three economic
communities has now proved fruitful as the Grand FTA is
within sight and becoming a reality.
PICTORIAL OF EVENTS IN THIS PERIOD
Above Left and Right: Members at recent Bar-Bench Fora & Sensitization on proposed amendments to the Civil Procedure Rules(CPR)
& the draft Mutual Recognition Agreements(MRAs) in Mbarara & Mbale on 28th January & 2nd February 2015 respectively listen to
contributions from attendees
Left: Members pose for a group photo after
a recent meeting to validate the Report on
the State of the Electoral System in Uganda
on 30th January 2015 at Golf Course Hotel
Below: Members of the SAJCEA Uganda
National Working Group meeting with the
ULS Head Legal Aid at the Secretariat on the
on 13th January 2015
Above: A ULS Member makes a contribution at
Page | 8 the Bar-Bench Forum on CPR and the draft MRA
in Kampala that was held on 4th February 2015 at
the Golf Course Hotel
THE FUNNIES
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