Louise Edwards
Programme Officer – Access to Justice (East Africa)
Commonwealth Human Rights Initiative, New Delhi

The United Nations Special Rapporteur on extrajudicial, summary or arbitrary executions, Professor Philip Alston, presented his detailed report on Kenya at the recent 11th Session of the UN Human Rights Council.  In an extraordinary week of political maneuvering, reinforcing the internal tension that plagues Kenya’s Grand Coalition Government, the Kenyan delegation responded with an oral statement to the Council that contradicted their earlier written response. Having initially denied Professor Alston’s accusations of the widespread and systematic use of extrajudicial killings by the Kenya Police Force, the delegation conceded that there is a problem, but stopped short of acknowledging Government complicity.

The proceedings and outcomes at the 11th Session have received much local and international press.  Now, two weeks later, the focus must shift to action taken by the Kenyan Government to address the issues raised by Professor Alston and the fall out from the publication of his report, which included the killing of two human rights defenders that had previously cooperated with his mandate.  Despite the eventually positive response from the Kenyan delegation in Geneva, early signs of action are not necessarily promising.

Professor Alston’s report articulated what concerned local and international organisations have been saying about the Kenya Police Force for many years and which the Government failed to acknowledge until their oral statement to the Council – that extrajudicial killings are part of the policing landscape in Kenya. The oral statement also contained a public acknowledgement of Kenya’s weak police oversight mechanisms, the need to establish a local independent police commission and assurances that no human rights defenders would be intimidated or harassed as a result of their cooperation with the UN Special Procedures mandate-holders.

Nevertheless, it remains to be seen whether the promising outcomes in Geneva will translate into credible action in Nairobi.  Successive promises of reform articulated in a number of strategies and processes over the past 10 years have not been completed or sustained by the Kenya Government.  Kenyans continue to be policed by an organisation that lacks sufficient accountability structures, fails to protect or uphold basic human rights and is continually subject to illegitimate political interference.  Millions of dollars have been invested in the development and publication of commission reports, task force findings and reform strategies without any genuine steps by the Government to implement systemic reform.

The concerning state of policing in Kenya has received significant national and international attention over the past 18 months.  The police response to the 2007 post-election violence brought the issue of political partisanship, impunity and brutality to the fore.  The Waki Commission report into the violence strongly recommended comprehensive reform of the Kenya Police Force and Administration Police and Professor Alston’s report reinforced the brutal and corrupt practices that have been permitted to flourish by the unreformed, colonial policing model. 

Police reform is a daunting and long term process.  It requires substantial law reform, a radical shift in policing culture from one of impunity to accountability and the restoration of trust between police and the community.  None of these urgent reforms will happen in Kenya without the political and financial commitment of the Government to undertake reforms of this scope.  The recent establishment by the President of a special Police Reform Task Force represents a positive step towards delivering credible advances.  However, the Government must translate the Task Force’s recommendations into actual reform that goes beyond improving operational capacity to address governance, accountability and legal structures.  Otherwise the Task Force, for all its good intention, will become another failed reform vehicle.

Drawing on the previous recommendations and those foreshadowed to appear in the current Task Force findings, the Government should implement the following minimum reforms:

• Constitutional and legislative amendments that clearly separate the operational control of the police from the direct control from the political Executive and provide for transparency in monitoring police performance and conduct,
• Strengthening internal and external oversight mechanisms, including the enactment of legislation and budgetary allocation to give full effect to the Police Oversight Board plus the establishment of an independent complaints mechanisms,
• Establish a clear demarcation between the role of the Kenya Police Force and the Administration Police,
• Improve police human rights training and resourcing to strengthen human rights compliance and operational effectiveness in the prevention, detection and investigation of crime, and
• Establish clear legislative guidelines on the use of force, torture and adherence to basic due process that accord with Kenya’s existing obligations under international law.

If the Government is serious about reforming the police, a commitment to implementing past and current recommendations is not enough.  It must also take immediate steps that both demonstrate its firm commitment to reform and restore public confidence in the reform process.  A positive first action should be the investigation, prosecution and punishment of those police officers who commit or acquiesce to illegal acts including, but not limited to, those responsible for the 2007 post-election violence and the perpetrators of extrajudicial killings.

Other immediate steps must include measures to implement the Government’s guarantee of protection to individuals who have been intimidated or subject to retribution for their cooperation with the UN Special Procedures mandate-holders.  Human rights defenders, including members of the Kenya National Commission on Human Rights have been subject to threats and some have been forced to flee Kenya.  The high profile execution of two prominent human rights defenders, who cooperated with Professor Alston, and the failure by the police and Government to identify those responsible, highlights the inadequacy of protection and security for human rights defenders.  While Kenya has a witness protection programme, reform is urgently required to ensure the integrity of its internal processes (including accountability, Executive control and information storage and sharing) before those who are most in need of protection will have confidence in the systems that are designed to deliver it. 

The 2007 post-election violence, followed by the findings in Professor Alston’s report, and the tragic consequences for human rights defenders who cooperated with his mandate, have kept the problems with Kenyan policing firmly in the international spotlight.  Whether the political will to commit to genuine reform is present in the Grand Coalition Government remains to be seen, but what is clear to the international community is that the need for police reform is more crucial than ever.

The Commonwealth Human Rights Initiative (CHRI) is an independent, non-partisan, international NGO working for the practical realisation of human rights in the countries of the Commonwealth.
www.humanrightsinitiative.org

At the beginning of last week president Museveni instructed the Uganda parliament to create 14 new districts. After the president’s wish was communicated to the national assembly by his minister for local government, Adolf Mwesigye, speaker Edward Sekandi acted swiftly and directed the parliamentary committee on local government to give the matter the highest level of priority. Passage by parliament without major problems is highly likely.

A source close to Mr. Museveni’s state house confidentially told this reporter that Uganda’s president created the new districts to further dilute the power of individual members of parliament (MPs) in case  removing army MPs becomes inevitable. The source said: “His excellency has been under too much pressure from donors to take the army out of parliament. If you knew him, then you would know that he cannot let the opposition have that relative advantage, especially with 2011 so close. He cannot take any chances and the 14 districts are his insurance. The donors can say whatever they want. And, believe me, the 14 or more MPs plus numerous in the new districts are guaranteed to be NRM conc.”

Uganda’s constitution, which was written on Mr. Museveni’s watch, empowers the national parliament to evaluate proposals for new districts and reject them if they provide no clear value or are not financially viable. Virtually Uganda’s districts are not economically viable and rely on hand outs from European donors to pay their bills. For that reason, the donor community has for several years opposed the creation of new districts, arguing that they are expensive, unproductive and hugely corrupt. However, as Mr. Museveni has said on a few occasions: “The donor community is impotent [bifeera] when it comes to telling Uganda what to do.”

For each of Mr. Museveni’s 14 new 2 MPs will be added to the national parliament, along with a resident district commissioners (RDC) with 2 deputy RDCs, a district police commander, a district internal security officer (DISO) with a deputy and at least 50 other administrative and political positions. The richest districts in Uganda include Kampala, Mukono, Mbarara, Mpigi South and Luweero. But even they cannot pay their bills and offer basic social services consistently despite large grants from donors.

The new entities, listed below, will bring the total number of districts in Uganda to 97, from 39 in 1995.

According to a survey that was by commissioned by Uganda’s Inspector General of Government (IGG) and conducted by REEV Consult International, the Office of the President is neither among the most corrupt nor among the least corrupt in the country.  And the IGG’s office is one of the two least corrupt institutions. The survey report was released last week. The report, purports to reflect public perceptions of  institutional honesty in Uganda, says that the most corrupt institutions is Police (Traffic), followed by Police (General), UMEME, Lands Office, Kampala City Council, Other Municipal Councils and the Judiciary. And the least corrupt institutions are allegedly National Water Corporation, the IGG, NGOs, Agriculture, National Environmental Agency, Local Governments and Local Councils, in that order.

Uganda’s IGG is former judge Faith Mwondha. Mentioning highlights of the report to reporters, the IGG’s spokesman, Mr. Bageya Waiswa, said that corruption is taking a dangerous trend because it is involving the people who are supposed to fight it like the police and the judiciary.

The reaction from the judiciary was swift. Principle judge James Ogoola has discredited the report as unreliable and subjective. He admitted to Uganda reporters that there are instances of corruption in the judiciary but claimed that much progress has been made towards to reduce corruption and ensure free and fair delivery of justice to the population.

Other members of the legal profession agree with judge Ogoola that the report is not reliable, at best, and fake at worst. A former legal officer in the IGG’s office who spoke on condition of anonymity told us that this report is itself evidence that the IGG’s office is one of the most corrupt institutions in the country. According to the Makerere trained lawyer: “The first problem with this report is that the IGG paid REEV Consult to do the survey, but also demanded that her office be included in the institutions evaluated. The woman is so corrupt that she thinks her Number 2 position as the least corrupt institution is believable even with her highly publicized salary cheating scandal.

“The second problem is that, even Ugandan dogs know that President Museveni’s state house, his army and his national parliament are by far the most corrupt institutions in the country. Illegal land giveaways, daughters using the presidential jet to go for European medical care, the $3,000 third term sale to Museveni by parliament, Salim Saleh’s helicopter saga, the UCB loot, ghost soldiers, the CHOGOM loot, and the list goes on.  The only reason they don’t appear on the most corrupt institutions is because the corrupt IGG used a corrupt consulting firm, which obeyed her instructions to design the survey questions in such a way that state house, UPDF, Solicitor General’s Office and  Ministry of Works can never register as among the most corrupt.

“And the third problem is that REEV Consult International does not even have the technical capacity to conduct such a sensitive survey professionally. Its principal holds a controversial PhD in ‘Poverty Eradication’ from Makerere University.  The fact is that Mr. Nuwagaba grew up poor, has never lived in a rich country or even gone to school away from poverty. He was taught by poor part-time teachers, whose salaries are not paid on time but achieve PhD level knowledge on how to eradicate poverty?  Although Mr. Nuwagaba has aggressively used his tribe skills as smoothing government and even NGO decision makers to get consulting jobs, he is living example of the dumbing down Uganda has suffered under President Museveni.  It is fair to say that the IGG’s report is fake because it was rigged to make her office look good while protecting the state house, UPDF and other notoriously corrupt institutions. It is also fake because the doctor of ‘poverty eradication’ who conducted it is not qualified, otherwise he would have known that it including the IGG, who paid him, in a survey this nature is an obvious conflict of interest.”

In the 1960’s and early 70’s,  Makerere University was one of Africa’s top 10 best Universities.  During Mr.  Museveni’s more than 20 years in power,  the university’s standing has steadily fallen, as government has continuously cut the university budget.  To fend for itself, the university introduced private sponsorships and personalized post graduate programs such PhD in Poverty Eradication.  There have numerous press reports of forged transcripts and even degree sales at Makerere but, like in other white collar crimes in Uganda, prosecutions are extremely rare. The overall result is a large number of Makerere graduates who are ill-prepared to work professionally in or outside Uganda. And holders of  graduate degrees which are not worth the paper they are written on.

In August 2008, Makerere was ranked 59th out of the top 100 universities on the continent – its lowest ranking ever – after dropping 12 places from its 2007 ranking. For comparison, Dar es Salaam University is 24, University of Nairobi is 25, Strathmore University (Nairobi) is 29, University of Rwanda is 30 and Eggerton University (Kenya) is 32. Uganda has only Makerere in Africa’s top 100 but Rwanda has 2, Kenya has a total of 5 and Tanzania 2. The rankings are conducted by Webometrics.

In June 2008 I asked one of Buganda’s best strategic thinkers today the following question: “Given how things work with African, how can Buganda be taken seriously when it does not have an army?”. He gave me a reply that left me with mixed feelings of confusion and curiosity. He said, “You are mistaken. Buganda has an army, more disciplined and ready than Museveni’s UPDF or presidential guard (PGB). They are trained, they understand Buganda’s enemies from the inside and they are angry. The only missing piece is a serious Katikkiro to show them direction.”

After three months of investigation, it appears that former professor’s analysis was right on the money.  Actually a huge majority of Baganda in Museveni’s UPDF can convert to Buganda Defense Forces (BDF) overnight without much persuasion. Because the UPDF is not a professional army, the Baganda in it have received some of the best training but face excessive discrimination and most of them, like other Baganda youths, are very loyal to Kabaka. They are frustrated and, when Museveni’s system starts crumbling, they are willing to fight for a new order where Buganda is free to decide her future. And, after the Museveni nightmare, they are unwilling to follow the leadership of another smooth talking non-Muganda commander. Besigye is seen as no different than Museveni.

Probably the most educative source of information during my investigation was the series of interviews that I had with an active senior Muganda UPDF officer and close family friend. He explained that the UPDF is not a professional army, say like Kenya’s, because Museveni intentionally structured it to avoid a military coup. “And he succeeded because we do not have officer messes, a modern commissary, sports clubs or other things where officers or men can get to know and trust each other and their commanders. There is a total lack of trust among officers and men, made worse by the excessive tribalism and corruption by westerners and Banyarwanda who are mostly interested in stealing money and running businesses. That is why you can see a 25 year old Second Lieutenant from Nyabushozi with a huge house and several cars while a Colonel from Buganda or the North travels by boda boda.”  A military coup is nearly impossible because there is no real command-and-control in the UPDF and many important decisions are based on rumors and even advice from witch doctors.

The senior UPDF officers revealed that even Museveni is not sure of the UPDF force size because he has allowed the enlistment of ghost soldiers and foreigners for so many years. However, the officer  estimated that if one counts both active and retired combatants the effective number is about 100,000, with at least 20,000 of them being Baganda proper.  And there are many quality Baganda commissioned and non-commissioned officers since “most of us don’t have the opportunities to be corrupt and try to advance through training while most westerners think that it interrupts with their business activities.” Apparently there are also thousands of Baganda veterans who have served under a command and who would be ready to contribute when activated. Many of these, now taxis drivers, boda boda drivers, market vendors and artisans are very bitter about the way Museveni and his people have cheated Buganda and mistreated Kabaka Mutebi.

On who would command the so called Buganda Defense Forces or BDF, the senior military man said: “It is much simpler than you think. These nearly 10,000 or so Baganda fighters would follow any Muganda who has charisma so long as it is clear that the individual is loyal to Kabaka and has Buganda’s interest at heart. Baganda in the UPDF found out much earlier than the rest of you that Uganda is a failed state, after Museveni could not guarantee them salaries. We just don’t know what to do when Mmengo is as corrupt as Nakasero. If there is a Katikkiro who is 100% loyal to Kabaka and has the brains to understand the situation as well as show capacity to be a commander, we can do the rest. Buganda is our only home and the rest of the UPDF is too disorganized to be a problem for us. Also remember that our friends from Acholi, Busoga, Teso or Lango now know that despite the current corruption and cowardice in Mmengo ordinary Baganda are no longer cowards.”

The military veteran, who aspires to retire in the BDF, made one other interesting observation: “Remember that a band of Banyarwanda, who had a strong cause, took NRA equipment 400 Kms to hostile Hutu-led Rwanda and took power. Why should better trained Baganda who are already in very friendly home territory equipped with Ugandan arms stockpiles in Kyadondo, Busiro, Buddu, Buwekula and Buluuli and Bulemeezi not have it even easier. You see, as Uganda continues to fail, our cause to save Buganda and to never allow outsiders to terrorize us becomes stronger. The only thing missing is a leader in Mmengo who has the natural intelligence and patriotism of Muliika as well as the sophistication to assure Buganda that he is 100% obedient to Kabaka. If such serious leadership exists under Kabaka when things start to fall apart Okwonko style, a new BDF could take shape overnight and bring immediate order in the 18 counties of Buganda.”

The Uganda Human Rights Commission’s (UHRC) 10th Annual Report, dated July 22, 2008 exposes various human rights violations in Uganda and Government’s failure to honor UHRC rulings. The Report expresses concern with the continued practice of detaining suspects for more than 48 hours before being taken to court, restriction in access to some places of detention, persistence of torture, congestion in cells and long detentions without trial. The UHRC also is concerned about the poor general welfare of inmates, suspects continue to be detained with convicts, prisoners are hired out to private individuals and they work for long hours without food and remuneration and there are still challenges in access to medical care especially in former Local Administration Prisons and Police cells/posts. What is even more disturbing is the detention of children in adult prisons and police cells.

Over the years, the Commission has made several pertinent recommendations to government aimed at improving the situation of human rights in the country. The report tracks progress made on the implementation of these recommendations. Only a few have been fully complied with such as the passing of the Persons with Disabilities Act and the Equal Opportunities Act. Most recommendations have been partially complied with while others have not been complied with. UHRC urges compliance with all its recommendations.

Recommendations which have not been complied with include the following;
1. Enactment of various laws which have an impact on human rights:
•a law prohibiting torture,
•Domestic Relations Bill
•fixing a minumum wage
2. Establishment of a Victims Compensation Fund
3. Ratification of the Optional Protocol to the UN Convention Against Torture
4. Reporting to the UN Committee on Economic, Social and Cultural Rights
5. Detention of suspects in ungazetted places of detention known as ‘safe houses’. Although, there is a significant reduction in the number of such complaints there are still a few complaints. ‘Safe houses’ must completely be eliminated.