A DOCUMENTATION FROM OUR LEGAL OFFICER
Human Rights defense did not start yesterday, Human Rights defense is not going to end tomorrow. This only means that once the defenders are gone, others come for despite the longevity of the struggle to ensure absolute respect of such rights, it seems there is always going to be a need to push even harder. We can always discus this.
Today, we want to discuss the Human Rights defenders, today is the day we add our voice to the many that have spoken out on behalf of Human Rights defenders, today we seek to discuss issues to do with individuals who chose to dedicate their lives to speaking for and on behalf of others.
We hope to expound on firstly; the motivation:- what inspires a person to sacrifice themselves and their peace to take on a struggle that most at times is never theirs to begin with? Is it a calling, is it for the money, is t for the love, is it for humanity, this is to say that, why chose to carry a cross for which you by all means need help with and yet it was never yours to begin with.
We seek to understand the extent to which Human Rights defenders are protected firstly by the laws of Uganda, Government policy if any, bye-law if any as well as by society. We shall in this regard address our minds to immense amounts of literature authored by different human rights defenders narrating their experiences in the matter from which we shall expound in order to draw lessons but also in the end understand if anyone speaks for us, if any one cares about us, ever!
We seek to add some effort to advocate for a better environment in which Human Rights defenders work. We want to believe that by sharing our experiences and talking about other people’s experiences, we pick lessons, we strategize better, and we have better understanding of the dynamics and therefore stand a better chance at improving our wellbeing and performance under the given circumstances.
We intend this to be a series of engagement on the above issues which we have found it wise to commence with this article. This article shall illustrate the position in which Human Rights defenders work with in this country, to set a background from which we hope to have fruitful engagements on the same.
The understanding is that there are people out there who have no voice, people that have no platform on which they can express themselves in a bid to relay for relevant attention the issues that affect the as a group of people, minorities or as individuals. As such, those that do have a platform ought to speak for the former. This would, rather mistakenly insinuate that the latter are actually better or perhaps well off and as such being capable and well placed to lend a voice to the voiceless or a platform for that matter.
The fact therefore, that the Human Rights defenders themselves are facing their own wrath for doing their job is rather saddening.
Eric Ssali the Programs Director of the Masaka KP HIV Prevention and Support Organization [MAHIPSO]. This was Eric’s response to me when I asked him about what motivates him as an individual to do the work that he does in a bid to defend Human Rights In general. “Eric further said, my motivation would be, “If I don’t do it, who is going to do it? If I also sit back and wait for someone else to do the work, what happens to the movement, if there are those that are there fighting for the change, why can’t we also join and fight for the change”.
After I heard from the Programs Director, I took it upon myself to engage the Executive Director of the same Organization Mumbejja Joseph Ssemanda, the idea is that one can tell so much about the output of an institution from its head, verily Mumbejja put a stamp to this.
In response Mumbejja was elaborative, they said that they are motivated by the hope that tomorrow will be a better day. They explained that the reason they keep working so resiliently with extreme amounts of energy is to ensure that tomorrow is better than today in light of the lives of the people in the community for and on behalf of which they work. The community must be recognized, respected, for by virtue of the fact that they are human beings, they are entitled to the inherent rights as everyone else and as such, the government should include Key Populations in their programs of access to health, justice and economic empowerment. Mumbejja says they risk their life and personal safety to make a contribution to this goal for the better good of the KP Community at large.
On a normal day, persons who work with given communities have an experience of the challenges that the given community faces and as such, take the stand to try and make a difference. On a special day, however, you meet a young vibrant man making an effort to make a contribution as well. I spoke to him. I wanted to know what exactly goes through his mind and why he chooses to take up the responsibility of working for the good of the people that most of his kind dread and despise so much.
He said, “I have friends in this community”. “they were my friends before I knew anything about their orientation”. “I care about my friends and I want to make a contribution in any way I can”. “As such, in MAHIPSO, I practice my profession for which I went to school, I am employed by the community and I can say without fear of contradiction that I haven’t found any challenges related to the community members’ nature or sexual orientation of the community members directly or otherwise.”
There are a thousand reasons in the world as to why different people would be doing the things they do. I guess what puzzled me the most from time immemorial was why withstand the risk, the abuse, the labeling, the outcast status of society. Don’t get me wrong I have always heard about the money narrative from back in the day. The stories of how LGBTQI people had millions of money to just throw around and “recruit” other people. The stories about how Ugandans would leave here, go abroad, get recruited, come back wealthy enough to build houses, buy cars and again apparently “recruit”. The stories I have heard, never made sense to me then, they never make sense to me now, and may never make sense to me ever. I had always failed to understand why anyone would choose money over their freedom, their peace, their positions in their families and society at large. I did not know better, but the one thing I knew even when I could not necessarily authenticate it, was that the people that sacrificed themselves to speak for the “out casts” had to be drawing their motivation from somewhere, they had to be getting their motivation from somewhere.
Having been through Makerere School of Law, I went through the renowned Prof. Sylvia Tamale’s hands at some point. The good professor is a human rights god. She spoke for women, she spoke for children, she spoke for the LGBTQI and no doubt, she has always been most known for speaking for the latter. I remember at one time she told a story of how she once had an engagement with a couple of female law students about the work she does. Prof. Sylvia narrated that during the time she was dean of the School of Law, her office was located just next to a lecture room. It was at such a time when students had to make choices on the subjects of law they were willing to do. They had choices between Intellectual Property, Labor law, Health and the Law, Human Rights and among others Gender and the Law which the good Professor was in charge of. She narrated that, unknowingly, the student had such a lengthy conversation just right outside her office window on how they would never opt to take her class ever in their long wide life because they were not willing to be brain washed by her “Teachings” she elaborated on how she contemplated and struggle with making the decision on whether to call them in or not as they meanwhile went on and on about how they dreaded the possibility of being brain washed.Dr. Tamale holds a Bachelor’s Degree in Law from Maker ere University Kampala, Post Graduate Diploma in Legal Practice from the Law Development Center. Master of Laws from Harvard University, Doctorate of Philosophy in Sociology from the University of Minnesota. She is a lawyer, academic, and activist turned professor.
She called them in of course. She wanted to pick their mind and have an honest conversation as opposed to intimidating them in her position as dean. She narrated that she made the effort to make them understand the position from which she spoke as she spoke or did what she did. She also made it clear that she wouldn’t get offended ever if a student did not take her class, in fact, she said, that is why there were so many options and hers was only one of them.
It will interest you to know that the students in question were female. Female students that the good professor single handedly fought for at such a time when sexual harassment had become such a big issue at the MAK. Even more interesting is that it was at the time when the narrative had changed and had been turned towards the female students accusing them of wearing so indecently and being the number one cause of the sexual harassment at the university.
The university sought to propose a dress code policy for the female students so to prohibit them from dressing in a manner the “seduces” the male students and lecturers something Dr. Sylvia as she then was heavily opposed. Her argument was that we all get turned on by different things on a human body. So, if a girl said that she gets turned on by a man’s lips, were the men willing to cover them?
I could go on and on about the good Doctor, I do not want to start talking about Counsel Nicholas Opio and all the shenanigans he has been through just recently, the lists are longer than I can write but after all is said and done; who speaks for us?
Human Rights law in this country Uganda has been examined, discussed, dissected, and elaborated upon by so many scholars of a high stature to the extent that I cannot begin to hold out as an expert at it, but like we asked prior, we seek to add our voice.
Anyone that has had training in law, will tell you about what we call the maxims of equity. One of these maxims is that “Equity shall not act in vain”. This maxim alludes in most cases to the sanctity of the judicial institutions of this country. This is why it is only on very rare occasions that you will find a judge making orders in light of conjugal rights in favor of an aggrieved party in a case. This is primarily because, however much deserving the said party is of the said conjugal rights, there is absolutely no way in which the courts can see to the enforcement of the same and as such, by ordering so, the orders of the court will be in vain and in the end drain the sanctity of the judicial system.
In the same light, one cannot help but wonder whether the continuous fight for a better environment in which human rights are respected does not drain the legitimacy of the fight. In a scenario where Human Rights defenders are arrested at liberty by security agencies in absolute void of any authentic charges levied against them save for the trumped-up ones with politics written all over them. Are the voices for equity being wasted, we have the opportunity to examine this.
The need to respect Human Rights can be traced from as far back as the 10th of December 1948 when the universal Declaration of Human Rights was adapted by the UN General Assembly after World War 11. The Human Rights revolution against this back ground spread world over which brought about the signing of various International and National Commitments.
Uganda has taken it upon herself to ratify most of the said International Commitments to protect Human Rights, these Include:
- The International Convention on Economic, Social and Cultural Rights (ICESCR) on 21April 1987.
- Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment on the 26 June 1987.
- Convention on Elimination of All Forms of Discrimination Against Women. On 21 August 1985.
- International Convention on Civil and Political Rights on 14 February 1996
When we talk about law, we base our entire discussion in the Constitution of Uganda  Article 2 of which elaborates the supremacy of the constitution to the extent of being the supreme law of the land and any other law that is inconsistent to it, shall be null and void to the extent of such inconsistency.
That said, Human Rights and liberties are embedded in Chapter 4 of the constitution and many other laws and policies surprising among all being that on the 13th February 2019, Uganda Police Force launched a Human Rights Policy that aims at promoting democratic accountable and Human Rights sensitive policing in the country. This is surprising because on a number of occasions the police has done the exact opposite of the statement head of their policy, they have used the law to crack a whip on Human Rights Defenders under the guise of law enforcement. More often than not, these police actions are politically motivated for instance: on the 20 September 2017 approximately 20 police officers raided Action Aid Uganda Offices in Kansanga an area of Kampala, preventing staff from leaving the premises for several hours. All the circumstances showed a biased police force looking for nothing but to inconvenience and intimidate a civil Society Organization for Challenging Government to provide better service delivery of the citizens of Uganda.
The law as it is in Uganda and also considering how it is enforced can make one think that there is an incongruity in Uganda’s legal framework itself and law implementation in regard to protection of Human Rights. Some laws directly contravene the provisions of the Constitution and the International instruments that Uganda ratified. As a matter of fact some of the laws that were originally intended to bring about tranquility have been manipulated by some individuals to curtail other people’s rights. Take for example, the Anti Money Laundering Act, and how the state uses it more often than not to suffocate Civil Society Operations in Uganda. The money donated by donors to facilitate the operations of civil society has been flagged and has sometimes been frozen pending “investigations” all in a bid to silence the vocal Human Rights Activist. In 2020, Counsel Nicholas Opio had Christmas in jail.
The Experience of Human Rights Defenders: The Experience of Human Rights Defenders:
Eric Ssali will tell you of how he and his team faced arrest in Rakai when they went out to extend HIV services to the Key Population persons in the area. Eric narrates that hardly had they even settled in the hotel premises than they saw police raid the hotel straight to where they had stationed to operate that day, he describes the shock and confusion that covered the room when Police shut down and arrested the team on grounds of “promoting Homosexuality”
In HIV programing, Key Populations are people who belong to communities most at risk of contracting HIV but are criminalized. By and large, the LGBTQ person are part of the KP populations and MAHIPSO as an organization took up the mantle to extend such services to them. The idea is that people already belong to these communities and that whether or not MAHIPSO existed, they would still be who they are. For MAHIPSO to take up the mantle to ensure that they live a healthy HIV free life, does not mean that they are promoting acts of Homosexuality.
Therefore, arresting and detaining a team of social workers reaching out to the under privileged on grounds that they are promoting “un becoming behavior “is only tantamount to saying that, KPs should be left to die of HIV, and that way they will be no more and so will their way of life. This would be a notion tainted with absolute myopia.
In a speech delivered on 18th November 2009 by Dr. Sylvia Tamale at Makerere University, Kampala assessing the impact that the Anti– homosexuality Bill would have on human rights painted a rather clear picture of the origin of the fuss over homosexuality in Uganda and the vague notions of “recruitment” and “promotion”. Dr. Tamale explained that Homosexuality has troubled people for a very long time. Some religions find it distressing and there are many debates around it. “where did the idea of destroying homosexuality come from?” as His Excellency President Museveni had pointed out at the inaugural Young Achievers Awards Ceremony the weekend before the speech, homosexuals existed prior to the coming of Europeans to Uganda. According to the President, “they were not persecuted but were not encouraged either”. As a matter of fact the idea of destroying homosexuality came from colonialists. In other words, homosexuality was not introduced to Africa from Europe as made would like to believe, rather Europe imported legalized homophobia to Uganda.
She added that today, with all the economic, social and political crises facing Uganda, homosexuals present a convenient group to point fingers at as the “biggest threat” to society.
This explains why there will always be homosexuality stories hovering over the head of any vocal outspoken activist as a blackmail strategy used to tap into the homophobic nature of our society so as to discredit their cause. For politics, that is understandable because politics has always been known to be a dirty game.
What beats my understanding is why it is very important to some individuals or different entities to persecute the people who make an effort to deliver health services to these communities or even legal services they need in light of the fact that the security systems have often times come off as targeting them.
In Human Rights advocacy, you often hear terms like diversity. Diversity basically means the practice or quality of including or involving people from a range of different social and ethnic backgrounds and of different genders, sexual orientations etc. the understanding is that the various communities of marginalized persons in Uganda are in diversity and as such, each one of us must pick an interest in ensuring that the marginalized people, the unfortunate people, those who are considered out casts, have a voice. This is because given the diversity as an individual you may never really know which one of your own is a part of these communities, you many never know which one of your young children will grow up and find themselves a part of these communities or even which one of these may slide into any of these communities. By their very nature, by the fact that these are minorities, the fact that most people that belong to these communities are better off discreet than vocal, we may never know which one of our own will need these voices that are being suppressed and shut.
As an individual, I find it rather inconsequential to appeal to humanity when making case over issues as this one. When you read Lord of The Flies by William Golding, the one thing you learn is that human beings are inherently evil. Selfishness, greed are vices every human being is well capable of, all that is needed is a situation that puts one to test. In that regard, an appeal to humanity has failed us since time immemorial because human being may choose to close their ears to other people’s challenges for as long as it does not affect them as individuals.
However, for instance in a poem by Niyi Osudare titled Not My Business. The poet displays the selfish nature of his character where he goes on and on about how his neighbors were being picked up in the wee hours of the night by Gun wielding men. The character however keeps recurrently stating that the escapades were not any of his business “for so long they do not take the yam from my savoring mouth” when all his neighbors had been picked up one after the other, the Jeep on which the captors always came, entered appearance, parked in waiting in its usual place… his time had come.
We are making an effort to appeal to personalities, we need people to understand that the communities of people who need a voice to speak for them do not fall from heaven, these people are part of the society which makes it more likely that one of them could be our own or a dear one to one of our own or even not but could be one that will render immediate help to a dear one when they need it the most. In other words they are human beings, and as such, just as equal as everyone else.
Counsel Patricia Kimera in an article she wrote in relation to her experience defending LGBTQI people arrested in Uganda gives you a clear picture of the different groups of people that threaten the existence of Human Rights defenders not to mention making it very difficult to do their jobs. Counsel Patricia is the Director of Access to Justice Programme at the Human Rights Awareness and Promotion Forum [HRAPF] an organization situate in Kampala, Uganda which among other things runs a legal aid clinic for people who struggle to find legal representation, including LGBTIQ people.
Patricia shares that sometimes they receive calls from police officers calling them to say, “we have your people here, come and give them legal representation”. She further adds that the morning after the 10th night of November 2019 she found that police had arrested an un precedented 125 people on grounds of being homosexual.
She goes ahead to elaborate that those who murder LGBTIQ people are ordinary citizens with strong preconceptions that must be debunked for the situation to improve, it is difficult work but it has to be done.
In Uganda, prevailing societal attitudes as well as our laws are homophobic and restrictive. Sec.145 of the Penal Code Act criminalizes consensual same sex relations as “carnal knowledge against the order of nature”, punishable by life imprisonment. Transgender people have more often than not been arrested and charged with “impersonation”.
As if that is not bad enough, the new NGO Act passed in 2016 made it harder for human rights organizations to support LGBTI people, by forbidding groups that work on something that is deemed to be illegal or against the public interest from officially registering as NGOs.
Counsel Patricia shares that the reactions of some of the parents at the court were really awful. She was the lead lawyer for the defendants and the parents seemed to believe that they were responsible for “recruiting” their children into homosexuality. She adds that one parent, who had agreed to be responsible for their child while they were out on bail, gave her his ID as part of this process but later demanded that Patricia returns it to him something she was unable to do for the ID was already with the court. The said parent became so angry and seemed ready to physically attack her.
WHO SPEAKS FOR US?
THE LAW; The rights of Human Rights Defenders are legally guaranteed at the International, regional and National levels. In the same regard, there exist mechanisms at each of the different levels to provide support to the implementation of these legal guarantees.
International law; has three instruments that form the core documentation of fundamental rights and freedoms, namely; The Universal Declaration of Human Rights adopted in 1948 The International Covenant on Civil and Political Rights (ICCPR) of 1966 and its two protocols and the International Covenant on Economic Social and Cultural Rights (ICESCR) of 1966, collectively known as the international Bill of Rights. The above instruments stipulate the fundamental human rights accruing to anyone by virtue of being human beings. In addition, the United Nations Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to promote and Protect Universally Recognized Human Rights and Fundamental Freedoms (UN Declaration on HRDs) was then adopted by the Un General Assembly in 1998.
At the Regional Level; The African Charter on Human and People’s Rights (ACHPR) provides the standards for the rights of Human Rights Defenders. The Charter which was ratified by Uganda on the 10th May 1986 protects human rights and basic freedoms on the African Continent. There are recommendations hereunder to establish an African Commission for Human and People’s Rights as well as an African Court on Human and Peoples’ Rights as well as appointing an African Special Rapporteur on Human Rights Defenders. The special Rapporteur impacts on the situation of Human Rights Defenders through country missions and the subsequent recommendations, in addition to communications to states.
National Level; The Constitution of Uganda provides for a wide range of Human Rights to all human beings, including Human Rights Defenders it defines the obligations and duties of the state and recognizes rights which are crucial to the work of Human Rights Defenders, including the freedom of expression, assembly, movement and association.
The rights to participation provided for in Article 38 of the constitution is vital to the work of Human Rights Defenders as it affirms the right to influence policies of government through peaceful activities, Overall these provisions reinforce the pivotal role that Human Rights defenders play in society and legitimize their work.
Article 50 provides recourse to courts of Judicature by any person or organization, to seek orders for redress when their Human Rights are violated. Recourse can also be sought from the Uganda Human Rights Commission (UHRC) under Article 53(2) of the Constitution, which provides the UHRC has powers to make orders for redress and remedies where proof exists that Human Rights and freedoms have been infringed upon. Moreover, State security forces are obligated to promote and protect rights, as is stipulated in Article 221 of the Constitution as well as the Police Act, Prisons Act and UPDF Act.
Parliament also has a standing committee on human rights in parliament draws attention to the promotion and protection of human rights in the legislature as all of its functions are geared towards this.
We must take cognizance of the various legislations that have significant impact on Human Rights Defenders and are more often than not a hindrance to their operations and work. These include; The Public Order Management Act, 2013; has provisions that limit freedoms of expression, opinion and assembly and was not conforming to international Human Rights Standards. The Act is equally restrictive to the rights of freedom of assembly and association, rights that are crucial to the work of the defenders. The Acess to Information Act 2005; this is an enabling Act to Article 41 of the Constitution of Uganda. It provides for matters related to access to information including the kind of information and how to acess it. The limited sensitization and general awareness about this Act has been expressed by several scholars, Human Rights Defenders and the general public since the period after its enactment. The NGO Registration Amendment Act 2006; that I have already alluded to came as a restriction and to hamper the work of outspoken NGOs considering the requirement to declare the objectives of organizations as a precondition for registration
Despite a seemingly adequate and comprehensive framework and existing mechanisms for the protection and promotion of the rights of Human Rights Defenders, there are certain glaring impediments in their working environment. These include: Limitations in knowledge and use of the instruments and laws which has greatly hindered their application and use. Failure to domesticate and apply international instruments; these set quality standards that could be used to make a better place for Human Rights defenders and enable them ably deliver on their mandate. We have failed as a country to domesticate these instruments ironically even after ratifying so many of them. Misapplication of Legislation; this is a common vice in Uganda that has been used to suffocate Human Rights Defenders hindering them from doing their work. Many times authorities exploit the loopholes in the legislations and use them to curtail the operations of Human Rights defenders. A great Case in Point is the exploitation of the provisions of the Public Order Management Act on the Rights and freedoms of assembly has been conveniently misapplied to incline Ugandans to being merely incidental to the political will of whoever commands the police. This has greatly affected activities and operations of the human Rights Defenders at all levels. Failure to respect Legal guarantees; The state has a number of occasions failed to implement legislation or court decisions guaranteeing protection of rights. These among others are the many hindrances towards a strong legal framework within which Human Rights Defenders can ably ad effectively deliver. As such the National Human Rights mechanisms remain known and utilized for the many times Human Rights Defenders have interacted with Courts of law, the police, Uganda Human Rights Commission in light of ensuring a safe environment with in which they can operate.
It is safe to say, that as regards the law only to the extent of its existence, the law speaks for us, loud and clearly. The question of whether or not enforcement has been as effective is on I cannot without fear of contradiction or prejudice answer in the positive in my view.
The Activists: Renown activists that I have more than once cited in this Article have always voiced their concerns and deliberated on various issues in order to make a better environment for Human Rights Defenders to operate in Uganda.
This has been a great challenge most especially owing to the fact that Human Rights Defense in this country is more often than not looked at as an attack on the state and security agencies and as such Human Rights Defenders normally suffer the consequences of their activism. Dr. Stella Nyanzi has more than twice been arrested and convicted of crimes so trivial to the extent of serving jail time at the expense of the wellbeing of her minor children and family. Counsel Nicholas Opio has charges of money laundering trumped up on him to date, he is only free on bail, Opio’s vocal nature landed him in trouble with the state that would rather have had him silent. Dr. Sylvia Tamale has more often than not always spoken out for the girl child, the woman and the LGBTQI community, clearly explaining their rights and liberties as much as she can, she has on number of occasions been attacked and demonized for her work to the extent that in 2003 she was named worst woman of the year, something she says charged her up the more.
For all intents and purposes Human Rights Activists have spoken out at every single chance they get, despite the challenges, the voices can still be heard. For what it is worth, they have helped to eliminate total silence about the lives of Human Rights defenders and as such the situation is not as bad as it would have been if no one spoke at all. As a matter of fact, if no one spoke for the Human Rights Defenders, then their voices would have been silenced at once. This only means that they would then be unable to speak for the under privileges, the minorities and “outcasts”
Having said that, I can ably say that there is effort out there intended to secure a safe environment for Human Rights Defenders to Work, the law is in place, Civil Society has done tremendously well advocating for the same, not forgetting parliament. The challenge has always been the state, because enforcement of law and policy solely lies in their hands and for as long as we keep seeing Human RIGHTS Violations inflicted upon Human Rights Defenders, or we continue seeing a deliberate witch hunt staged against Civil Society, we shall always be inclined to think that we under attack. For now we are as badly off as people with no body to speak for them. No one speaks for usAn article published on the 23/01/2020 by the Open Democracy Organization @ opendemocracy.net
 The principle of equality in enjoyment of human rights is enshrined in Article 2 while Article 3 provides for the right to life, liberty and security of a person as essential to the enjoyment of all other rights. Articles 4 to 21 set out other civil and political rights.
 It is important to note that Article 4 of the ICCPR identifies rights that are non- derogable; meaning that they cannot be infringed upon under any circumstances.
 Uganda acceded to the protocol on 14th November 1995. By virtue of this, Uganda as a State Party is legally bound by the provisions of the protocol and is subject to the jurisdiction of the Human Rights Committee. However, Uganda has not acceded to the second Optional Protocol which provides for the abolition of the death penalty.
 General Assembly Resolution 53/144 of 9th December 1998.
 Chapter 4 of the 1995 Constitution of Uganda, “Parliament of Uganda accessed January 20, 2014. http://www.parliament.go.ug/new/Images/stories/constitution/Constitution_of_Uganda_1995.pdf.
 Guide to understanding the Parliamentary Standing Committee on Human Rights (Kampala; Human Rights Centre Uganda, 2013)
 Presentation on the public Order Management Bill by Margret Sekaggya, briefing for civil Society Organization 5th September 2013.
 Amendment of Subsection 3