By James Mugerwa
If there was any doubt that Justice Ogola is an FDC demagogue apologist, Monday’s vile comments that ‘Uganda under rule of tear gas not rule of law’ quickly wipes off such doubt.
He has made no secret of his views that the zealots’ rationale for the ‘court siege’ and tear gas underlines Musevenis rule. He has outspoken enough to make me for sure and hopefully the State, uncomfortable as to his impartiality. In my criticism of Ogala I offer a challenge to the State and its organs to give a voice of resolved protest to these remarks in reciprocated venom.
Personally I am driven to action as a lawyer and as an ardent scholar of Musevenism for over 22 years. What is not in doubt is that the security forces under Museveni’s rule have been the most disciplined and people focused army, there is also no doubt that it is this discipline that makes the forces discipline the hallmark of Musevenism. Mr Ogola has been alive for long enough to comprehend the same, he also has been around long enough to comprehend that the past resentful relationship of the army and civilians is the major factor of the political turmoil’s this country has endured. He then deliberately and desperately chooses to cast these men and women in the same shadow as the previous tormentors of civilians. His venom is based on tear gas and on the ‘court siege both that can be combined in one transaction of origin, ‘attempting to overthrow Musevenis government by the use of force’.
It is on record that respect of the rule of the law has been always extended to Musevenis armed and unarmed adversaries, The shame attached to Ogola’s venom deliberately chooses to ignore the likes of Onen Kamdulu, Kilama, Achellam, Commander Benz of the ADF, Kenneth Banya and many others who have given access to justice, justice that they denied many Ugandans they massacred. They were all brought to the courts of law and or given amnesty. The price of defending this nation is high and it is usually paid by the same men and women in uniform that Ogola chooses to desecrate. I will talk about the basis of Ogolas vile comments, these comments are based on legality of the relevant action.
Ogolas seems to think that the independence of the judiciary is absolute, I say it is not. He needs to educate himself with the are internationally established principles of derogations hinged on a perceived state of emergency or public safety, notably the European Convention on Human Rights, the International Covenant on Civil and Political Rights and the European Convention on Human Rights, American Convention on Human Rights. They all provide exits to the principle of judicial independence. The experts on public safety are the men and women in uniform that through the warranting of the safety of Ugandans deemed it fit to attend and interfere with the workings of the judiciary. The underlying principle of such derogations is announcements of the state of emergency (where practicable), non interference with the non-derogable rights such as right to life etc and duration of such interference (not to take more than reasonable time to handle the situation).
The “best practice” is to always guarantee judicial independence; however each society has its own history, legal tradition (utter lack of public confidence in the judiciary), political system, culture, values and priorities. No single mechanism for maintaining an independent judiciary can be transplanted elsewhere without amendment and be expected to have the same effectiveness. Uganda must reflect on its problems and history, which is largely written in blood, written in massacres, rebellions, maimings and then evaluate its existing safeguards and their effectiveness in relation with the same security forces that have guaranteed our safety.
In the ‘siege scenario’ Security services felt that releasing the treason suspects would constitute and immediate danger to the public. This is a perception that whether right or wrong, judgment lies with the reasoned military expertise and intelligence that is clearly not in the know of Mr Ogola, it is the expertise and intelligence that provides the security blanket that Ogola sleeps and rises and has been like all Ugandans for the last 26 years. Much as Ogola has the duty to uphold the rights of Ugandans, security forces bear the ultimate accountability of protecting Ugandans from both internal and external aggression. Terrorism and or treason is complicated by nature, as said, it is the preserve of the security forces, mistakes or errors of judgment made by judiciary that result in the loss of life are not attributed to them in isolation but solely to the State. Even if the judicial decisions made on the day were right and there was no room to stretch the law for national security’s sake, Mr Ogolas vile remarks suggest that he is so prejudiced that even if such room was available, he does not recognize the duty of accountability and protection of the safety of Ugandans. It also means that he is no longer to be trusted with the cardinal principle of impartiality.
Teargas attribute is a sad one nevertheless, the one that clearly shows blatant prejudice and FDC fanatism in Mr Ogola. I presume the assertion stems from again the perceived right to demonstrate (freedom of expression or freedom of speech) without hindrance. However again we know that such a right is not an absolute one and permission of the same must be weighed against the rights of those who do not want to be involved. Police intervention is vital because I for one have always advocated for withdrawing of the police from Kampala streets and let the civilians protect and further their rights. Since a man has a legally non derogable right to enjoyment of their property, conversely they have the right to defend the same. However the consequences could be unimaginable. It is because of such balance that the police issues guidelines on how such processions or demonstrations must be conducted, again like judicial independence, such demonstrations must be conducted in reflection of our inherent present factors (e.g. what is the possibility of destruction of property and life, what is the impact on traffic and business for such demonstrations and finally what is the effect on the much needed tourism and foreign investment?). Weighing these factors again is the duty of the police. Where the demonstrators have failed to adhere to the police guidelines, then the use of teargas becomes imperative. Finally we also now know that the issue of demonstration was a disguise to facilitate the ‘Arab Spring’ equivalent here in Kampala. I firmly believe that it is to the disappointment of Mr Ogala that the latter did not succeed that he bemoans teargas since the other factors are too obvious by his standards.
All in all what we are living with now is the consequences of successive state organs failures in comprehensively dealing with issues of corruption, prosecution and anti-propaganda. Sometimes I wonder if anyone else cares about the image of the state other than the President and the UPDF. I have for example read the Petition forming basis for the dismissal of the treason against Besigye where the ‘court siege’ is the star reason, in my professional opinion it is shocking that the State failed to defeat this petition. The legal basis was wrong and the facts of evidence were largely flawed. The same applies to corruption and anti-government propaganda, there seems to be casualness and swagger which are the special province of complacency. There is a lame reactive attitude as opposed to a robust proactive approach in dealing with issues where the State is faulted. There is an arrogant micromanagement of attacks on the State that requires urgent and more focused attention. If I was Museveni I would retire some trusted soldiers and re-employ them in the public service, that way the State’s defences are upped more.