By Barrister Peter Magomu Mashate
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 also an independent international organ.
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
The respective UN and Uganda constitution Preambles set out thus;
PREAMBLE OF THE UNIVERSAL DECLARATION ON HUMAN RIGHTS:
“Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,
Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people,
Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law,
Whereas it is essential to promote the development of friendly relations between nations,
Whereas the peoples of the United Nations have in the Charter reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women and have determined to promote social progress and better standards of life in larger freedom,
Whereas Member States have pledged themselves to achieve, in co-operation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms,
Whereas a common understanding of these rights and freedoms is of the greatest importance for the full realization of this pledge,
The General Assembly,
Proclaims this Universal Declaration of Human Rights as a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction”.
PREAMBLE OF THE UGANDAN CONSITITUTION 1995..
“ WE THE PEOPLE OF UGANDA:
RECALLING our history which has been characterized by political and constitutional
RECOGNISING our struggles against the forces of tyranny, oppression and exploitation;
COMMITTED to building a better future by establishing a socio-economic and political
order through a popular and durable national Constitution based on the principles of
unity, peace, equality, democracy, freedom, social justice and progress;
EXERCISING our sovereign and inalienable right to determine the form of governance
for our country, and having fully participated in the Constitution-making process;
NOTING that a Constituent Assembly was established to represent us and to debate
the Draft Constitution prepared by the Uganda Constitutional Commission and to adopt
and enact a Constitution for Uganda:
DO HEREBY, in and through this Constituent Assembly solemnly adopt, enact and give
to ourselves and our posterity, this Constitution of the Republic of Uganda,
this 22nd day of September, in the year 1995.
FOR GOD AND MY COUNTRY “.
FINAL MERGER OF AGENCIES BY PUBLIC SERVICE MINISTER HON WILSON MUKASA- MURULI.
On or about 1st December 2020 the government through the Minister of Public Service Hon Wilson Muruli – Mukasa recently released a final agencies merger list. The minister has done a very good job as such mergers were long overdue. This restructuring is very welcome.
What was however eye catching was the merger of the Uganda Human rights Commission and the Equal opportunities commission under Ministry of Justice and Constitutional Affairs. Perhaps this was an oversight and or may need revisiting.
The Constitution of the Republic of Uganda by virtue of Article 51 provided for establishment of the Human rights Commission. “.. 51(1) ” …..There shall be a commission called the Uganda Human rights Commission”.
Article 54 provides for independence of the Commission and states thus; “… Subject to this Constitution, the Commission shall be independent and shall not, in the performance of its duties, be subject to the direction or control of any person or authority”. [underlining of italics emphasis added].
It ‘s therefore arguable that the merger of the Human rights Commission with the Ministry of Justice and Constitutional Affairs may be inconsistent with the Article 54 of the Constitution of Uganda. Could this impinge on the unfettered service of this commission?
The Human rights Commission is now directly answerable to the line minister who is appointed by the Executive and therefore part of the Executive.
By the constitutional provision of Article 54, the Constituent Assembly elected delegates in 1994/1995in their wisdom as the framers of our constitution must have intended and intended to create a “CHECKS and BALANCE HUMAN RIGHTS COMMISSION” as a “police man” of sorts for human rights abuse and excesses whose Constitutional neutrality may be perceived as seemingly compromised by the merger.
This constitutional provision was operationalised by the Uganda Human rights Act 1997 in accordance with Parliament’s role pursuant to Article 58 of the Ugandan constitution.
Clearly it would put the line minister in a firing line of conflict of interest where human rights questions are raised for government to answer.
Its therefore in the best interest of the government to maintain distance and leave the Uganda Human rights Commission as an independent organ as it has been and as provided expressly in the constitution. This will afford the requisite confidence which the Commission enjoys as independent not a “poodle” of sorts.
Indeed, so fundamental is the independence of the Human rights Commission. For example, where powers are exercised by the Executive and/or any other authorized body and/or agent pursuant to Article 47 of the constitution relating to Detention under Emergency Law, it’s expressly provided under Article 48 of a duty to Review by the Uganda Human rights Commission.
Article 48(1) provides; “…The Uganda Human rights Commission shall review the case of a person who is restricted or detained and to whom article 47 of this constitution applies not later than 21 days after the commencement of the restriction or detention, and after that, at intervals of not more than thirty days”.
The question that inevitably arises is simply this who has the powers under Article 47 to declare such emergency? if it’s the Executive then various agencies do come into play in implementation of the Executive emergency order these without doubt include the Ministry of Justice and Constitutional Affairs who are now the supervisor of the “independent Human rights Commission”.
Similarly, the Equal opportunities commission is established by virtue of Article 32(3) which provides that; “..There shall be a commission called Equal Opportunities Commission whose composition shall be determined by an Act of Parliament”.
It is worth noting that this particular commission which has also been merged with the Ministry of Justice and Constitutional Affairs is not established as an Independent entity and or the constitution and the operationising Act of 2019 are silent on the status of this commission’s independence.
Therefore, while equally important may not necessarily raise qualms as does the independence Human rights commission.
The said Equal Opportunities Act stipulates thus;
“An Act to make provision in relation to the Equal Opportunities Commission pursuant to articles 32 (3) and 32 (4) and other relevant provisions of the Constitution; to provide for the composition and functions of the Commission; to give effect to the State’s constitutional mandate to eliminate discrimination and inequalities against any individual or group of persons on the ground of sex, age, race, colour, ethnic origin, tribe, birth, creed or religion, health status, social or economic standing, political opinion or disability, and take affirmative action in favour of groups marginalized on the basis of gender, age, disability or any other reason created by history, tradition or custom for the purpose of redressing imbalances which exist against them; and to provide for other related matters”.
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 form the Human rights Act.
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.
However, even then it was incorporated without ultimate sanctions or “biting teeth” in serious human rights violations. This is because ultimate authority was placed in the hands of the line minister in the storm of the court incompatibility declaration to come to parliament with the necessary legislation to correct the mischief.
This is because British Court were left with only residual declaratory powers of incompatibility with ECHR provisions “without teeth to bite”.
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 us and states thus;
“RECALLING our history which has been characterized by political and constitutional
RECOGNISING our struggles against the forces of tyranny, oppression and exploitation”
Against this turbulent history – LET US MAINTAIN MEANINGFUL INDEPENDENCE OF OUR UGANDA HUMAN RIGHST COMMISSION- A SAFETY NET FOR OUR SOCIETY.
THE WRITER IS A CONSITITUTIONAL AND HUMAN RIGHTS BARRISTER-AT-LAW OF THE HONOURABLE SOCIETY OF LINCLON’S INN OF COURT LONDON UNITED KINGDOM