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.

A report in the April 8, 2009 issue of the Uganda government Bukedde newspaper that, the day before, Katikkiro JB Walusimbi laid a flower wreath at the mass graves of victims of the 1994 Rwanda genocide has upset some Baganda. Our reporters in both Masaka and Kampala have told us. According to the reports, most ordinary Baganda in Buddu and around Kampala think that it is a good thing to commemorate the terrible killings that took place in Rwanda. But a large majority of them are asking why the Katikkiro of Buganda found time and money to buy flowers for graves of Banyarwanda although he did not have time to accompany Kabaka Mutebi to Buluuli last October fearing to upset Museveni.

The Kampala people are especially unhappy that incidents like the Budo Junior fire and child sacrifices which target Baganda are just  quiet form genocide but Owek. Walusimbi does not take expensive flowers let alone mabugo (condolence funds) to the victim’s families. Some also complained that Katikkiro Walusimbi has not cared to officially investigate why tens of Baganda children are murdered every month without government action. Yet when one mulaalo child was killed around Kiboga in Ssingo county, the police commander even personally camped in the area until some people were arrested.

On October 8, 2008 Mr. Museveni’s armed soldiers stopped the Kabaka of Buganda, Ronald Muwenda Mutebi II from going to Nakasongola to preside at the 46th anniversary of independence from Britain. The president later stated that, while Kabaka Mutebi was being harassed, Katikkiro Walusimbi was in telephone negotiations with David Tinyefuza and Mr. Museveni’s state house. Nakasongola is the main town in Buluuli county of Buganda. October 9, 1962 is when Buganda formally joined the other parts of today’s Uganda to become a federal republic. Under the terms of the 1962 independence agreement, Buganda remained a kingdom under Kabaka and retained control of its own education, healthcare, police and local administration systems. In 1966 then prime minister Milton Obote overthrew the constitution, used Idi Amin to attack Kabaka’s palace, made the kingdom illegal, exiled the Kabaka and stole 9,000 square miles of Buganda native lands and numerous other properties.  After decades of persecution by Obote, Idi Amin and Obote II, the Baganda joined Mr. Museveni and thousands of  Rwandan Tutsi refugees to remove Obote II and make it possible for the Kabaka to return to his kingdom.

In 1993/94 thousands of  Rwandese Tutsi refugees used Uganda army weapons to take power in Rwanda, in the middle of a genocide which started after that country’s president Habyarimana was assassinated. After more than 20 years since Mr. Museveni and his Baganda and Tutsi partners removed the Obote II regime, Mr. Museveni has refused to return the 9,000 square miles of native lands that Obote stole. He also refused to recognize the Baganda rights to return to the status as a federal state within the republic of Uganda. As the Baganda continue to demand that Mr. Museveni act honorably, the relations between the Buganda Kingdom and central government have become increasingly hostile. And many Baganda, especially the youth, are demanding that Katikkiro (head of Buganda government) Walusimbi resign due to conflict of interests because of his strong business and personal relationships with both Mr. Museveni and Rwanda government.

BUGANDA EMERGENCY RESPONSE COMMITTEE
PRESS AND GENERAL BRIEF

23rd JULY 2008

This is an update on the unfolding situation of the detained Buganda Kingdom Officials.

The Current Situation:

As all are now aware, two Ministers of the Buganda Government and the Chairperson of Buganda’s Central Civic Education Committee were arrested by plain clothed security operatives on Friday July 18 th 2008. The arrested individuals are:

1. Owek. Charles Peter Mayiga (Minister of Information and Cabinet and Lukiiko Affairs, Buganda Government);
2. Owek. Medard Lubega (Minister of State for Information, Buganda Government); and
3. Omuk. Betty Nambooze Bakireke (CCEC, Buganda Government).

They were arrested on the day of the successful inaugural Buganda Conference. It is increasingly apparent that the Uganda Police Force, which is the arm of Government, lawfully vested with the powers of arrest and investigation had nothing to do with the clandestine and brutal operation of the 18th July 2008. The Police have only been brought in to provide cover for an operation being carried out by a more clandestine security organ. As we write, the officials have been detained for coming to 120 hours without being presented to any court of law. This is a blatant violation of Article 23(3) of the Constitution of the Republic of Uganda, which directs that no person arrested upon reasonable suspicion of having committed a criminal offence under the laws of Uganda shall be detained for more than 48 hours from the time of his or her arrest.

The Detainees Physical Wellbeing and Welfare:

Instead of presenting the officials to a court of law, the Government has decided to take them around Western Uganda, moving them around Bundibugyo, Ibanda, Fort Portal, Kyenjojo, Ntoroko and Kagadi and other places unknown. The Uganda Human Rights Commission has come out and stated that these movements amount to physical and psychological torture which is contrary to Article 24 of the Constitution. It is also hindering the detained officials’ access to their next-of-kin, legal representatives and personal doctors in violation of Article 23(5) of the Constitution. The Uganda Human Rights Commission stated that two of the detained officials are in need of medical care. There is also a concern that the detained officials are suffering from the combined effects of dehydration, lack of nourishment (hunger) as well as sleep deprivation. Betty Nambooze is said to be suffering from mastitis (inflammation or infection of the breasts that causes swelling and fevers) owing to the fact that she has not breastfed her 1 year old child for over 5 days. She was allegedly detained in a car at Ntoroko for most of the day on the 21st July 2008 before being driven to Bundibugyo and dumped in the cells there. It has also been reported that Medard Lubega Ssegona collapsed during an “identification parade” in Kagadi, Kibaale District. The Kingdom of Buganda has despatched a team of Ministers to the places where the officials are being detained to investigate their wellbeing and to offer moral as well as physical support. But it must be reiterated that whilst Kingdom of Buganda and the families of the detainees will do their best to ensure that the detainees have access to food, clothing and medical care, it should not be in any doubt that responsibility for the physical wellbeing and welfare of the detainees rests squarely with the Government of Uganda and the individual actors responsible for the perpetration of these gross crimes.

Curious Justification of the Government’s Actions:

Senior Government officials have come out with a curious justification for the detention of the Kingdom’s officials well beyond the lawful time limit and subjecting them to physical and psychological torture, which should be of concern to all Ugandans. Appearing on the WBS TV programme “Issues At Hand” on the 22nd July 2005, the Minister of State for Internal Affairs, Hon. Matia Kasaijja, said that the provisions of Article 23 of the Constitution, requiring suspects to be produced before a court of law within 48 hours of arrest, are a “bad law” and do not bind Government. The Minister of Defence, Hon. Dr. Crispus Kiyonga, appearing before the Parliamentary Committee on Defence also said that even though 48 hours had elapsed, Government would only produce the detained officials before a court at its own convenience and give an explanation later. This statement echoes that of Hon. Kasaijja, insofar as it implies that the provisions of the Constitution do not bind Government. Worse still, the Co-ordinator of National Intelligence, General David Munungu Tinyefuza, was quoted in the Daily Monitor as saying that under some circumstances, which he did not specify, “some laws can even be suspended”. This can only have been a reference to the provisions of Article 23 of the Constitution. These statements, which come on the back of blatant violations of the provisions of the Constitution, are very alarming. It is also worth quoting Article 3(2) of the Constitution here, so as to highlight the grave implications of the statements of the those high ranking Government officials and the actions of Government:

“Any person who, singly or in concert with others, by any violent or other unlawful means, suspends, overthrows, abrogates, or amends this Constitution or any part of it or attempts to do any such act, commits the offence of treason and shall be punished according to law.”

[Emphasis ours] For ease of reference, the punishment for treason, under the laws of Uganda is death.

Difficult Negotiations:

As previously stated, the Katikiro has been engaged negotiations with high ranking Government officials, trying to secure the release of the detained Buganda officials. It must be made clear that this situation has been forced upon the Katikiro. He is not seeking special favours but is acting in good faith and out of concern for the physical wellbeing of the detained officials. The Katikiro is also thoroughly convinced of the innocence of all of the detained officials and is trying to ensure that they are swiftly restored to liberty and re-united with their families. However, with every passing day, the situation deteriorates and it increasingly appears as if the detained officials are being held as hostages in order to compel the Katikiro and the Kingdom of Buganda to make various concessions regarding the conduct of Buganda’s affairs. However, the Katikiro has the interests of the people and the Kingdom of Buganda at heart and will not make any concessions.

Call to Action:

We continue to call upon all Ugandans, Religious Bodies as well as human rights and civil society organisations to join the Kingdom of Buganda in denouncing this heavy-handed and illegal action and to engage the Government of Uganda to abide by the Constitution and to cease and desist from the needless persecution of people who are engaged in lawful and democratic debate. The Kingdom of Buganda would like to thank the Uganda Human Rights Commission, the Acholi Parliamentary Group, the Foundation For Human Rights Initiative and all others who have come out with timely statements of support and assistance.

BUGANDA EMERGENCY RESPONSE COMMITTEE

The United States DOD has defined an occupied territory as:

Territory under the authority and effective control of a belligerent armed force. The term is not applicable to territory being administered pursuant to peace terms, treaty, or other agreement, express or implied, with the civil authority of the territory.

We argue that even a casual but sober review of Uganda’s political history should lead to the conclusion that the aggrieved people of Buganda, under their Kabaka (king) have a case to declare their nation an occupied territory under the authority of a belligerent armed force.

• Fact: Buganda has internationally recognizable boundaries that in 1967 were not in dispute by any of her neighbors (Tanzania, Busoga, Bunyoro, Ankole, Tooro and Lango).
• Fact: The natives of Buganda constitute a distinguishable nation, with distinct cultural practices, national language and customary laws that developed over more than 500 years ago.
• Fact: In 1962 the civil government of Buganda, headed by Kabaka of Buganda, entered a legal agreement (Uganda Constitution of 1966) with other nations and populations in colonial Uganda to federate and gain independence as a single country.
• Fact: In 1966 Prime Minister Obote and his supporters, without consulting Buganda’s civil government or population, illegally overthrew the Uganda Constitution with the use of armed forces. The then Kabaka, Muteesa Walugembe, was exiled to the UK where he died under suspicious circumstances.
• Fact: Between 1966 and 1986 various warlords, including Obote, Idi Amin and Museveni captured Uganda state power through the violent and illegal use of arms.
•  Fact: After Yoweri Museveni captured power by the force of arms in 1986 he organized an exercise to develop a new national constitution that would return the governance of Uganda to a legal status. The flagship activity of the constitution making exercise was the independednt Odoki Commission (leg by Justice Odoki) which collected information that would be properly address the aspirations of all the people in Uganda.
• Fact: According to the “Odoki Report”, over 90% of the people of Buganda explicitly demanded that they be governed under federal form of government which prevailed before the overthrow of the 1966 Uganda constitution.
• Fact: Museveni, Bidandi-Ssali and their supporters illegally (under natural law) broke the terms of the constitution making process and administratively invalidated the demands of the people of Buganda and introduced an experimental substitute that they dubiously name “decentralization”.
• Fact: Since 1986 has, through decrees and targeted laws, constructed a legal system that is selectively punitive to Buganda, her people and her civil leadership, the Kabaka institution. One example is the currency reform decree which devalued the Uganda Shilling by 90% in an environment where Baganda held over 60% of all cash wealth in Uganda. Another example is the 1998 Land Act which set “mailo” land rent (nearly exclusivel found in Buganda) to less than 1$ (US) regardless of size and freely gave away Buganda’s 9,000 square miles customary lands but not those of other nationalities.
• Fact: Museveni, Tinyefunza and their accomplices have issued numerous public statements over radio in newspapers threatening to “destroy” elements of Buganda’s civil leaders, calling Buganda leaders “hyenas”, reminding Baganda that “you don’t have the guns”, telling Kabaka Mutebi to fire Buganda leaders “who don’t agree with Government” and even reminding Baganda of the “1966 crisis” when the 1962 constitution was overthrown.
•  Fact: Buganda’s civil leaders (Kabaka’s Government), with overwhelming support, are only demanding that Museveni and his supporters stop the injustices again the people of Buganda – return the 9,000 square miles and other properties and restore the only form of governance that Buganda has ever willing accepted (federal).

Over the weekend of July 19, 2008 the people of Buganda held a national conference (Lukiiko Ttabamiruka) to discuss the issues of land, poverty and governance which confront them. The Uganda government seems to have underestimated the conference until, on July 18, 2008, one Buganda official, Lubega Ssegona, eloquently’s spoke about its expected results in front of Government agents.

Unexpectedly powerful speeches by Kabaka Mutebi, his wife Nnabagereka Nagginda and others seem to have created virtual panic among Government officials and their Baganda collaborators, resulting in one of the most ill conceived political decisions by Museveni since he came to power. The government arrested Betty Nambooze, Peter Mayiga and Lubega Ssegona (detainded just before the meeting) to preempt further political damage. And in the process handed Baganda nationalists the strongest case so far that the Uganda government considers any expression of Buganda nationalism as a crime. Evidence that Buganda is all but occupied by a belligerent force that will not tolerate and use force against the national aspirations of the native population. Isn’t Buganda under armed occupation?