I challenge Nagenda and Chibita!

Oct 21, 2002

SIR— For anybody who has followed the Government’s response to The Monitor story about the alleged crash of a UPDF helicopter, the weekend New Vision columns by Chibita wa Diallo and John Nagenda demonstrate why it is even more necessary to ensure tha

SIR— For anybody who has followed the Government’s response to The Monitor story about the alleged crash of a UPDF helicopter, the weekend New Vision columns by Chibita wa Diallo and John Nagenda demonstrate why it is even more necessary to ensure that such obtrusive state action should be unequivocally condemned. It is also necessary to ensure that it does not happen again.
While Nagenda’s piece is the usual hackneyed, jaundiced and confused opinion writing that we have come to expect from the Government’s chief “Squealer”, I was rather surprised that Chibita also jumped on to this bandwagon. Even though both gentlemen are state employees, Chibita has often demonstrated a fair-handed and even approach to issues of law and justice. Nagenda, on the other hand, is little better than “his master’s voice”. In this case, Nagenda is way off the mark. However, Chibita’s piece is a complete misreading of the intent of laws in a democracy that are designed to place reasonable restrictions on freedoms and rights. Consequently, the two columns raise a number of issues that need deeper examination. While it is true that human rights and freedoms are not absolute in any country, the measures taken to restrict such rights and freedoms need to be “demonstrably justified” in order to be accepted as reasonable. That is the standard recognised in international law, and it is the same standard in the 1995 Uganda Constitution. What does “demonstrably justified” mean?
Firstly, it cannot be a subjective opinion, just in the imagination of the minister in charge of information (Basoga Nsadhu) or even in the bigger imagination of President Museveni that a newspaper story has “caused alarm” or that it is “false”! Even if we were to accept for the sake of argument that a subjective test of these facts was acceptable, Basoga and the President should have shown who they believed was alarmed by the story, and the form in which such alarm expressed itself. It is not enough to imagine “alarm” or the response of the public to that “alarm” and unilaterally impose executive sanctions to address that imaginary “alarm.”
The same applies to the determination of the falsehood or otherwise of a story. A story must be proved to be false; it is not enough for the minister or the President to claim that it is false. Moreover, even if we accept that sanctions can be taken out of such subjective circumstances, those sanctions must follow the law. The UPDF has no powers of arrest under the law in Uganda, and the Police cannot search anybody’s premises without a search warrant; that is the law.
It may be excusable for Nagenda not to know this. However, Chibita is a highly-trained lawyer. The short point is that there must be an objective testing of the proposition that a newspaper story is actually false or that it has caused “alarm” to the public. And who is to make the test? In democracy, it is not the Executive, neither is it the Legislature. It is the Judiciary. The fact is that the Executive took action against The Monitor as its immediate response, and then charged them after the fact, rather than pursing the judicial approach first. This action speaks volumes over the supposedly democratic credentials of the Movement government, and its basic attitude to the law and the Constitution which it claims credit for having put in place.
What is the ultimate lesson of The Monitor story? The real test of a democracy comes when it is faced by the most adverse of circumstances. The point is to ensure that humanity and justice reign in society.

J. Oloka-Onyango
New York, USA

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