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

In a move that could be the first indication that President Museveni of Uganda might be prepared to use physical force against the Kabaka of Buganda, on October 8, 2008, Uganda’s heavily armed anti-riot police ready with teargas stopped Kabaka Mutebi from visiting the Buluuli Ssaza (county) Headquarters in Nakasongola.  Kabaka Mutebi was scheduled to preside over the 46th Buganda Independence anniversary celebrations which this year had been planned for Buluuli County. Buluuli is one of Buganda’s 18 counties. And it is in Buluuli that, a few years ago, President Museveni created  an anti-Kabaka “new” kingdom headed by a “Sabaruli”. Museveni’s current Sabaruli is called Mwogezi Butamanya.

It is not clear when president Museveni gave the final order to stop Mutebi.  However, according to a Uganda  police source who spoke on condition that her name not be revealed, Mutebi  had to be blocked because President Museveni and his people were shocked by the huge crowds of Baganda and Baluuli which greeted Kabaka Mutebi in Kakooge and Migyera towns. And because of the unexpectedly strong extremely well received speeches which Mutebi made at Migyera. There, Mutebi warned his subjects, in a very tough tone, to keep a sharp eye on and reject those who want to create confusion and divide the people of Buganda. Telling them, “It is terrible that certain individuals are working hard to divide my people, after the impressive progress we have made towards unity.”

This reporter’s police source revealed that the possibility of stopping Kabaka Mutebi from celebrating Buganda’s independence in Buluuli has been discussed by Museveni and his men for a long time.  According to him, every passing year Mr. Museveni has been getting more frustrated that the crowds at Buganda’s October 8th independence celebrations  keep swelling and his own Uganda independence event on October 9th keeps shrinking.  That is why they agreed to help Butamanya and Mukasa Muruli, former Museveni’s minister, coach Baluuli youths to organize a fake demonstration against Mutebi’s presence in Buluuli. “Mukasa Muruli and the youths were supposed to make a lot of noise, even threaten Kabaka, to give the police a pretext to stop the ceremonies if it became necessary.“ The source identifies the key plotters to include Ruhakana Rugunda, Kale Kayihura , David Tinyefuza, Buganda, Alfred Bitwire, Magara of Rapid Response Unit and minister Freddie Ruhindi plus district chairman Wandira and  RDC Masekera.  Museveni and his state house staff have been frequent briefed consulted on strategy and key decisions.

In a statement, Mr. Museveni’s minister for security Dr Rugunda blames it all on Kabaka Mutebi. He claims that it is Katikkiro JB Walusimbi who first expressed fears about the safety of Kabaka Mutebi in Buluuli to government. Then he (Rugunda) had confirmed that the threat was real and serious and communicated it to Walusimbi. By press time, this reporter had not confirmed if Rugunda is, this time, telling the truth. The situation has been more confused by reports in a foreign owned, Uganda government censored local paper that JB Walusimbi along with Buganda Attorney General Apollo Mabuya met with Ruhakana Rugunda, Freddie Ruhindi and Kale Kayihura on Monday, where the Mmengo officials were ordered to call off Kabaka Mutebi’s trip to Buluuli.

If Walusimbi and Makubuya met Ruhakana and Kayihura as reported, it is clear that their meeting was made irrelevant by Mutebi when he bravery decided to drive to Buluuli, in a convey of 40 motor vehicles, some carrying mattresses and other presents for his impoverished subjects. Most Baganda are strongly opposed to the frequent and often secret meetings that Katikkiro JB Walusimbi holds with President Museveni and his point people.

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?