BY BARRISTER PETER MAGOMU MASHATE
“When Elephants fight the grass suffers” Indeed, what has the ordinary Aids/HIV patient in Uganda got to do with the politics and semantics of Human rights and Values at the centre of this furore?
Isn’t it also correct that “What is Good for the Goose is also Good for the Gander”?
CULTURE & VALUES
Taking beer in Saudi Arabia and other Islamic nations is a Criminal offence whereas taking beer in Uganda, UK USA etc is a Social Event.
The falcurum of this disparity is on account of the CULTURAL VALUES each divide holds as so dear to their societies. The question then is harmonisation not compellabilty which seems to be the thrust of Secretary Blinken and indeed Amnesty international.
SOVEREIGNTY means supreme power or authority. It follows that the doctrine of “the sovereignty of Parliament” is the authority of a state to govern itself or another state as long as the state is in a position to establish it’s authority by whatever means necessary.
Once this phase is achieved and that authority and sovereignty is internally acknowledged within the borders, then that state will inevitably embark of diplomatic offensive to be recognised internally and welcomed in the INTERNATIONAL FAMILY OF NATIONS. The current guardian of that international family of nations is the UNITED NATIONS (UN).
That sovereign nation will be invited to sign up to the principles and tenets governing that international family and the first and foremost are the UNIVERSAL DECLARATION ON HUMAN RIGHTS.
This condition has no exceptions to any nattion regardless of size and power. Its also non negotiable and cannot be derogated from under any circumstances.
This Universal declaration on human rights has been adopted worldwide by way of what’s called the doctrine of regional or domestic compatibility and MARGIN OF DOMESTIC APPRECIATION .
Hence, we have the European Convetion on Human rights (ECHR) and all subsequently adopted in national legislation and/or consititution. For instance in the UK incorporated by Human rights Act 1998 and in Uganda straight into the consititution via Article 51(1) of 1995 consititution.
What this means is that once you breach any of the articles even in your national legislation by extension you breach the principles governing the UNIVERSAL DECLARATION ON HUMAN RIGHTS and therefore your obligations under the INTERNATIONAL FAMILY NATIONS (UN).
Article 6 of the ECHR clearly provides that there will be a Free and fair trial whenever this arises.
This means that one must be in a position to get free and independent legal advice for justice must not only be done BUT seen to be done.
Therefore, any national law so enacted without this safeguard could arguably render the Act unsafe, obnoxious and inconsistent with human rights obligations universal or domestic and countries with Consititutional and/or supreme courts if petitioned would most likely STRIKE OUT that incompatible provision.
This is not because the courts disagree with the spirit and or mischief that the Act of law is intended to cure but because of the UNIVERSAL human rights obligations on Uganda or any other country as long as our membership of the INTERNATIONAL FAMILY OF NATIONS is still desired.
BUT WHAT’S AMERICAN STAND ON THEIR NATIONAL INTERESTS?
The Americans following the 9/11 and the subsequent war of terrorism created the Guantanamo Bay as a place of detention of suspects incommunicado.
This is unlawful under international law and has since remained controversial even when justified as an imperative of national security and well being of the State. The US justification was national interest and the well being, values, security and stability the American State.
Similarly, when UK got embroiled in terrorism special courts for terrorism suspects were created but legal representation was retained but under very strict state conditions. The state grudgingly retained this element to deflect the challenge on account of DRACONIAN MEASURES/LAW that would have prevented suspects from access to legal advice.
Universally, for a law to remain good and humane that law should and ought not to exclude a suspect’s right to legal advice and representation.
The legal maxim that “JUSTICE MUST NOT ONLY BE DONE BUT SEEN TO BE DONE” is poignant and for purposes of this highly condensed and abridged article has to be read in conjunction with the preambles to Uganda’s constitution and that of the Universal declaration on Human rights of the United Nations which is the custodian of universal family of “civilised” nations.
I will respectfully submit that Human rights are universal and non-derogatory by any country in the world.
The right to life is sacrosanct and no government can legislate for less life not even by any standard of any draconian decree proclaimation that a citizen may have half-life or “half-glass of life”. Its either a glass-full of life or nothing and if it’s nothing its unlawful hence the universal declarations of human rights including the Uganda Human rights commission to guarantee full life and check abuse and excesses.
It would seem to me to be an over-reaction to withhold assistance to the vulnerable and the sick in Uganda and in the process condemn generations because a sovereign parliament has enacted a law that may seem unsavoury and inconsistent with your lifestyle.
No body has challenged Saudi Arabia for criminilisation of alcohol simply because its a Social event else where.
The best and civil way forward is not threats but engagement. The question that should be asked by Secretary Blinken is one of whether or not there are safeguards in the recent Bill as passed by parliament.
The other question is whether the sanctions therein and the due process leading to such sanctions is proportionate and transparent.
Where any inadquacies pertain and are not justified His Excellency the President of Uganda has the prerogative and may refer the bill back to parliament.
Therefore, the other question is whether indeed the UN Charter & Uganda Consititution are the EMBODIMENT of Human & Cultural VALUES? Indeed, the respective UN and Uganda constitution Preambles are helpful and may be referred to.
Mathew Chapter 7 verse 3 in the New Testament teaches thus; ” Why do you look at the Speck of sawdust in your brother’s eye and pay no attention to the plank in your own eye?”
The US, UK etc and indeed UK where the Amnesty international is based provides a good example of the need to apply this biblical verse and trade slowly and carefully particularly on matters that go to national cultural and religious Values such as those of Saudi Arabia and others and therefore stability of respective nations. Values are certainly for sale because they are inherent.
I once represented a Ghanaian (Doctorate in rats) client in London who however in accordance with the culture of his tribe in Ghana was relied on and in good cultural faith circumcised Ghanaian boys around. On that occasion over bleeding landed him in police hands hence prosecution. Police thought his title as Dr was a “passing-off”. But when I cited in Court that even in the UK Jewish rabbis were allowed in the interest of their culture to clean their boys the prosecution had no leg to stand on. This is because “What is good for the Goose is also good for the Gander”. Therefore so powerful are the CULTURAL and societal values which are at the centre of the current furore.
UNITED KINGDOM DILEMMA;
The United Kingdom feared so much the European Convention on Human rights (ECHR). It deliberately refused to incorporate it in British law throughout the Conservative governments of day. But the European Union constitution never allowed any of its members to derogate from the Human rights Act.
The European Union was incorporated by Sir Edward Heath (RIP) in 1972 and yet it was not until Tony Blair Labour party landslide victory in 1997 that the said ECHR was eventually as a manifesto pledge incorporated into British Law as the Human Rights Act 1998.
This kind of British “sitting on the fence” on the question of Human rights could be viewed in the light of many challenges of the time which included but not limited to the Northern Ireland conflict of the Irish Republican Army insurgency (IRA) amongst other concerns.
THE BRITISH UNWRITTEN CONSTITUTION
In any event, Britain has no written constitution and operates by conventions. That system contends that what is not prohibited by law is a right and what is provided by law is similarly a right.
In contrast Uganda has a written constitution of which we are proud of and cherish very much you only have to read again the preamble of our constitution which recites our turbulent past and suffering which among other things reinvigorates and explains Uganda Parliament recent action.
In the circumstances I most respectfully submit that the subject at hand sparks very strong emotions on either side of the divide but countries and in particular the US through the Secretary of State Mr Bliken whom I most respectfully address cannot make decisions on emotions by threatening to withdraw Aid from Uganda’s vulnerable and sick people and condemn them to death.
This is a VERY BIG STICK and simply not right and excessively disproportionate in all the circumstances of this case looked at in the round.
WRITER IS A CONSITITUTIONAL AND HUMAN RIGHTS BARRISTER-AT-LAW OF THE HONOURABLE SOCIETY OF LINCLON’S INN OF COURT LONDON UNITED KINGDOM