*Dominic Vincent Nkoyoyo
The July 11th bomb attacks in the Ugandan capital Kampala which left 80 people dead and many others injured, leaves no doubt that Al Shabaab which claimed responsibility, is a very dangerous and deadly criminal gang! It is a real threat to stability and peace in the whole of East Africa. So something has to be done right now to contain Al Shabaab.
These criminals are in the first place dangerous to the innocent Somali people who are scattered throughout East Africa. For seeing a Somali now, the natural reaction is to suspect that he or she might be a Kamikaze! And people in the transport sector might find it very difficult to carry people of Somali origin in their vehicles.
But in containing Al Shabaab we should avoid the natural temptation of taking war to the Somali people in retaliation. The Somali people are truly our brothers and sisters and they are fed up and tired of war. War has driven millions of them out of their country the majority of who are living in refugee camps in miserable and dehumanizing conditions. What they really want is peace and it is that which we should take them.
But it is also very obvious that if we do not send in enough troops Al Shabaab with the sophisticated weaponry and military training they are receiving, very soon they will over throw the Transitional Federal Government (TFG). This should not be allowed to happen. For the creation of this Transitional Federal Government was a result of very hard work and tough political negotiations and compromises involving clan members and the then war lords of Somalia. The (TFG) united what was then the Transitional National Government (TNG) and the Somalia Reconciliation Council (SRRC). Given the political history of Somalia this was a real success story. So should Al Shabaal overthrow the (TFG), there will be nothing left on which peace can built in Somalia.
And it is an illusion to think that leaving Somalia alone without external help will sort out its own problems. From 1991 when Said Barre was overthrow to the formation of the (TFG) in 2004, Somalis were left to themselves and all they did was to slaughter one another! So we should not abandon them.
But the big question is: How do we take peace to our Somali brothers and sisters without war, given that Al Shabaab is a very dangerous group? The AMISOM (African Union Mission in Somalia) Force Commander Major General Nathan Mugisha who is on the ground in Somalia has words of great wisdom which should serve as the foundation to our answer to this complicated question. In the AMISOM Bulletin, Issue 1, February 2010, he says: “It is a gradual process; peace cannot be achieved in a day as Rome was not built in a day. We have to identify the good Somalis – the positive –thinking Somalis – and encourage them to join the TFG in fighting for peace, while trying to convince those still out there in the bush to come to the negotiating table. We shall endeavour to convince them to lay down their arms and negotiate.” This in my opinion is the right military and political strategy we should follow.
We should avoid by all means following the Iraq and Afghanistan path. Should we do so, then we are in for a prolonged war with no success. Thousands of international troops have been poured into these two countries to fight the “insurgents” but with all their superior power and weaponry of advanced technology they have not managed to wipe them out!
It should be remembered also that in 1993 the Americans went into Somalia with sophisticated weapons and war planes in a bid to captured war Lord General Mohamed Farrah Aidid. But they neither captured him nor restored peace there! And yet all the time they were looking for Aidid he was right there in Mogadishu! And in 2006-2007, Ethiopian troops in their thousands poured into Somalia. With T- 55 tanks and jet fighters fought the Islamic Courts Union (ICU) forces who wanted to overthrow the (TFG). They entered the country on July 20th 2006 and by around February 2007 they had chased the (ICU) forces out of Somalia. And so they claimed victory! But unfortunately no peace came to Somalia. War will not bring peace to Somalia.
So far AMISOM has the confidence of the local people. And precisely it is in this in which lies the key to winning the Somalia war and restores peace to our brothers and sisters there. Our chief weapon in Somalia should not be the gun but …To win the confidence of the local people!
Al Shabaab has a force of about 10,000 fighters. The AMISOM troops together with the Government forces are about 8,000 at the moment. So we should send in better equipped troops to raise the number to about 25,000 fighters. But we should send them in there not to engage in direct fighting with Al Shabaab, but to keep the little peace which is still there concretized in the peace loving Somalis who are still in the country. We should not think that whoever is still in Somalia belongs to Al Shabaab.
The African Union leaders as they meet in Kampala must not delay any more in sending in these 25,000 troops. For the situation is getting worse by the day. The Uganda news paper New Vision, Friday 23, 2010 has reported that two Ugandan soldiers have been killed in Somalia while defending the Presidential Palace.
When Al Shabaab will see such a big number of well equipped troops arrive in Mogadishu, they will be frightened. And they will leave Mogadishu and its surroundings without a fight. For they will not want to lose their fighters. They will then resort to guerrilla warfare. At least in this way we shall have regained the whole of Mogadishu without or with very little bloodshed.
Once Mogadishu is peaceful enough then we have a place from where to work for the restoration of peace in the whole country. As I have said we should not engage in directing fighting with Al Shabaab unless it’s for self defence. For fighting they directly will result into the death of many innocent Somalis a thing we must avoid by all means. For the killing innocent Somalis by our troops will make them lose trust and confidence in us, and then we shall never win this war. They stop making any difference between our troops and Al Shabaab!
We should win the confidence of the local people not by killing them but by truly showing them that we are in there not for our interest but for their own interest and good. Once they get convinced of this, they them selves will be a protection to our soldiers. For they will show them where Al Shabaab fighters are hiding! And then our soldiers will be able to pick them without killing innocent people. And also the local people will begin discouraging their children from joining Al Shabaab. In this way we shall truly be winning the war without shedding much blood and at the same time restoring peace.
I appeal to all East Africans to join me in prayer so that the leaders of this Continent may listen to my appeal and advice. And also request you to constantly remember our Somali brothers and sisters in your prayers.
* Dominic Nkoyoyo is a monk at Monastery Val Notre-Dame, Canada
Disclaimer: Views expressed in this section do not represent the opinions of CISA.
Tuesday, July 27, 2010
Sunday, July 25, 2010
Proposed Constitution: The importance of human rights
*We continue the analysis of the proposed constitution- editor
We have rights because we are human; the government does not give them to us, and in a sense has no power to take them away from us. In reality we all know that governments are major violators of human rights. We also know that other citizens, commercial organisations, militia groups and institutions within society violate rights.
Recognition of rights in a constitution gives people a tool. Perhaps, more than any other part of the constitution, human rights need the active involvement of the people to leap off the printed page and become effective. Government may recognise that to achieve their objectives (good or bad) they need to follow the constitutional rules about the exercise of power. Without vigorous insistence by the citizenry they may be less scrupulous about observing human rights obligations that stand in the way of their own view of the uses of power.
What does the Proposed Constitution say?
An important preliminary point: people often misunderstand human rights provisions, and think that something that says “everyone has a right [to freedom of speech or religion or anything else]” means that everyone can do as they please without any possible limits! This is responsible for all sorts of misunderstanding. So as you read about the rights, please bear this in mind. There is a box below that explains about limiting rights.
The main features of the proposed human rights chapter are:
Strong provisions on non-discrimination, including a long list of prohibited grounds of discrimination, such as disability, pregnancy, marital status, health status (Art. 27), as well as the more familiar gender, race and belief, that are in the current constitution
• Banning of indirect discrimination – that is laws or conduct that discriminates in effect even if not intended to be discriminatory (Art. 27(4))
• Rights are to be respected by all and not just by the state (Art. 20)
• In addition to the most familiar rights (such as freedom of expression, assembly, association, movement, right to property and to a fair trial) that are recognised in the current constitution, various other rights are recognised, including a wider right to privacy (Art. 31), information (Art. 35), media freedom (Art. 34), right to vote (Art. 38) and right to fair working practices, including the right to strike (though not the right to work) (Art. 41), right to use the language of one’s choice (Art. 44), equal rights in marriage (Art. 45), consumer rights (46), right to fair administrative action (Art. 47) and right to a clean environment (Art. 42)
• Clear rights to health, housing and sanitation, food and water and social security (economic, social and cultural rights (Art. 43), and the state has the obligation to take measures necessary to achieve the progressive realisation of the rights (Art. 21) (see below)
• Clarification of how rights apply to various specific groups: children, youth, persons with disability, marginalized groups, the elderly (Arts. 53-57)
• Requiring the state to have policies of affirmative action to ensure that disadvantaged and marginalized groups can achieve true equality (Art. 27(6))
• A duty on the state must carry out its human rights obligations under international law (Art. 21(4))
• A provision that treaties (many of which relate to human rights) that Kenya is a party to are part of Kenyan law (Art. 2(6))
• Remedies – the procedure for going to court to protect rights includes the possibility of bringing an action on behalf of groups or even of other people who are unable to do so for themselves (Art. 23); the procedures must be simple and there must be no court fees for bringing a case to protect human rights (Art 22)
• A human rights commission with a constitutional status, role and protection (Art. 59).
Limiting Rights
It would of course be unreasonable for everyone to claim that freedom of speech means that there is no limit on what they can say. The Proposed Constitution is clear that the law can limit rights (except for 4 rights specially protected in Article 25). But the limitations must be reasonable. And it gives clear guidance about how to decide whether limiting a right would be reasonable. The main test is “is such a limitation on a right justifiable in a democratic society like Kenya”? The courts would decide if there is any dispute, but Parliament should also think about this, and the Human Rights Commission will also give guidance.
Whether it is justifiable to limit a right will depend on what objective is to be achieved by the limit and whether the limit is greater than would be needed to achieve that objective.
So – it will be justified to limit freedom of speech to protect reputations (though the current law on this topic may be too restrictive of freedom of speech), and freedom of religion would not protect Mungiki as someone seems to have suggested!
Some constitutions limit each right individually. This tends to make limitations appear more prominent than rights! That is the case with many of the rights in the current constitution. The Proposed Constitution takes a different approach, one that is legally neater, and more protective of rights.
Affirmative action
Like many modern constitutions, the Proposed Constitution recognises that sometimes more than equality is recognised. Affirmative action may be required for a while to achieve true equality of groups that are held back because of past practices of discrimination. But the Proposed Constitution not only says that such affirmative action is not discriminatory, but is also says that measures needed to overcome the consequences of past discrimination, including affirmative action, must be taken (Article 27(6)).
Overall impression
The Proposed Constitution is a considerable improvement on the current constitution which bans fewer forms of discrimination (and does not include a general ban on discriminatory behaviour); it does ban laws that discriminate in effect as well as by intention. In its style of drafting the Proposed Constitution is clearer, whereas the current constitution lays far more emphasis on when rights do not apply! The Proposed Constitution is very specific and firm about how human rights may be limited (see box). The recognition of economic social and cultural rights is very significant (see below). The right to information may prove to be valuable not just for the protection of individual rights but to facilitate citizens’ scrutiny of government (see section on “Participation”).
Poverty, Basic Needs and Economic, Social and Cultural Rights
Many people do not understand the idea of socio-economic rights (which are new for Kenya in the Proposed Constitution, though Kenya is a party to international treaties that recognize them). Some people ask questions like “how can government have a duty to feed everyone or house everyone?” In the years since the International Covenant on Economic Social and Cultural Rights and other treaties such as the Convention on the Rights of the Child were adopted the rights have been analysed and spelled out by courts, and international bodies in some detail. It is now clear that the main point of these rights is that people must be free to fulfil them for themselves. The state, and others, should not interfere with people’s rights to feed and clothe themselves and to live decent lives. Some rights require more state intervention, especially education (and there is a right to free and compulsory primary education). But the state must do more than stand aside: it must prevent infringement of these rights by others, and if necessary (for example in cases of extreme poverty or drought) must take positive steps.
The Proposed Constitution says that the State must realise the socio-economic rights progressively (Art. 21(2)), and it is for the State to show that it does not have the resources to fulfill the rights if this is its justification for failing to do so (Art. 20(5)). The courts in South Africa (and other countries) have been able to give some remedies for the victims of violations of socio-economic rights, and they should not be regarded as utopian “aspirations” or empty words, but a genuine tool for social justice.
These rights are not only a matter of legal enforcement. They are an agenda for the state (and one that, as we have mentioned, the state of Kenya has accepted). The State (meaning the government and its servants and agencies) must constantly think about how its policies affect the welfare of the people, ensuring that their socio-economic rights are promoted. At the time of the budget preparation, government should take into account its obligations.
Using the rights
The courts and the human rights commission will be stronger under the Proposed Constitution than under the existing law. People should take advantage of this to press for their rights and the rights of others. Traditionally courts usually allowed only people personally affected by wrongful acts to take a case to court, but the Proposed Constitution says that a person or organisation may bring an action to protect the rights of others who cannot bring cases for themselves (this would cover those who are too poor, for example, or situations where large numbers of people are the victims of violations of rights) (Art. 22).
The courts are directed to some extent how they should approach human rights cases. They are told to interpret the law, including the constitution, so as to achieve the realisation of the human rights, and the values that underlie them (Art. 20).
Many people may be unaware that Kenya is required to report on its own human rights performance to the UN Human Rights Council, and to the mechanism under the African Charter for Human and People’s Rights. These occasions can be used for civil society to present counter reports showing where the country falls short. The Bomas draft tried to make the UN process a national event by requiring that the government make the process public and ensure that it was debated at home (it should have included the African process in this provision). Unfortunately, this provision disappeared from the recent drafts.
*The analysis is courtesy of a team of lawyers led by an experienced Constitutional Lawyer of International Repute
Disclaimer: Views expressed in this section do not represent the opinions of CISA.
We have rights because we are human; the government does not give them to us, and in a sense has no power to take them away from us. In reality we all know that governments are major violators of human rights. We also know that other citizens, commercial organisations, militia groups and institutions within society violate rights.
Recognition of rights in a constitution gives people a tool. Perhaps, more than any other part of the constitution, human rights need the active involvement of the people to leap off the printed page and become effective. Government may recognise that to achieve their objectives (good or bad) they need to follow the constitutional rules about the exercise of power. Without vigorous insistence by the citizenry they may be less scrupulous about observing human rights obligations that stand in the way of their own view of the uses of power.
What does the Proposed Constitution say?
An important preliminary point: people often misunderstand human rights provisions, and think that something that says “everyone has a right [to freedom of speech or religion or anything else]” means that everyone can do as they please without any possible limits! This is responsible for all sorts of misunderstanding. So as you read about the rights, please bear this in mind. There is a box below that explains about limiting rights.
The main features of the proposed human rights chapter are:
Strong provisions on non-discrimination, including a long list of prohibited grounds of discrimination, such as disability, pregnancy, marital status, health status (Art. 27), as well as the more familiar gender, race and belief, that are in the current constitution
• Banning of indirect discrimination – that is laws or conduct that discriminates in effect even if not intended to be discriminatory (Art. 27(4))
• Rights are to be respected by all and not just by the state (Art. 20)
• In addition to the most familiar rights (such as freedom of expression, assembly, association, movement, right to property and to a fair trial) that are recognised in the current constitution, various other rights are recognised, including a wider right to privacy (Art. 31), information (Art. 35), media freedom (Art. 34), right to vote (Art. 38) and right to fair working practices, including the right to strike (though not the right to work) (Art. 41), right to use the language of one’s choice (Art. 44), equal rights in marriage (Art. 45), consumer rights (46), right to fair administrative action (Art. 47) and right to a clean environment (Art. 42)
• Clear rights to health, housing and sanitation, food and water and social security (economic, social and cultural rights (Art. 43), and the state has the obligation to take measures necessary to achieve the progressive realisation of the rights (Art. 21) (see below)
• Clarification of how rights apply to various specific groups: children, youth, persons with disability, marginalized groups, the elderly (Arts. 53-57)
• Requiring the state to have policies of affirmative action to ensure that disadvantaged and marginalized groups can achieve true equality (Art. 27(6))
• A duty on the state must carry out its human rights obligations under international law (Art. 21(4))
• A provision that treaties (many of which relate to human rights) that Kenya is a party to are part of Kenyan law (Art. 2(6))
• Remedies – the procedure for going to court to protect rights includes the possibility of bringing an action on behalf of groups or even of other people who are unable to do so for themselves (Art. 23); the procedures must be simple and there must be no court fees for bringing a case to protect human rights (Art 22)
• A human rights commission with a constitutional status, role and protection (Art. 59).
Limiting Rights
It would of course be unreasonable for everyone to claim that freedom of speech means that there is no limit on what they can say. The Proposed Constitution is clear that the law can limit rights (except for 4 rights specially protected in Article 25). But the limitations must be reasonable. And it gives clear guidance about how to decide whether limiting a right would be reasonable. The main test is “is such a limitation on a right justifiable in a democratic society like Kenya”? The courts would decide if there is any dispute, but Parliament should also think about this, and the Human Rights Commission will also give guidance.
Whether it is justifiable to limit a right will depend on what objective is to be achieved by the limit and whether the limit is greater than would be needed to achieve that objective.
So – it will be justified to limit freedom of speech to protect reputations (though the current law on this topic may be too restrictive of freedom of speech), and freedom of religion would not protect Mungiki as someone seems to have suggested!
Some constitutions limit each right individually. This tends to make limitations appear more prominent than rights! That is the case with many of the rights in the current constitution. The Proposed Constitution takes a different approach, one that is legally neater, and more protective of rights.
Affirmative action
Like many modern constitutions, the Proposed Constitution recognises that sometimes more than equality is recognised. Affirmative action may be required for a while to achieve true equality of groups that are held back because of past practices of discrimination. But the Proposed Constitution not only says that such affirmative action is not discriminatory, but is also says that measures needed to overcome the consequences of past discrimination, including affirmative action, must be taken (Article 27(6)).
Overall impression
The Proposed Constitution is a considerable improvement on the current constitution which bans fewer forms of discrimination (and does not include a general ban on discriminatory behaviour); it does ban laws that discriminate in effect as well as by intention. In its style of drafting the Proposed Constitution is clearer, whereas the current constitution lays far more emphasis on when rights do not apply! The Proposed Constitution is very specific and firm about how human rights may be limited (see box). The recognition of economic social and cultural rights is very significant (see below). The right to information may prove to be valuable not just for the protection of individual rights but to facilitate citizens’ scrutiny of government (see section on “Participation”).
Poverty, Basic Needs and Economic, Social and Cultural Rights
Many people do not understand the idea of socio-economic rights (which are new for Kenya in the Proposed Constitution, though Kenya is a party to international treaties that recognize them). Some people ask questions like “how can government have a duty to feed everyone or house everyone?” In the years since the International Covenant on Economic Social and Cultural Rights and other treaties such as the Convention on the Rights of the Child were adopted the rights have been analysed and spelled out by courts, and international bodies in some detail. It is now clear that the main point of these rights is that people must be free to fulfil them for themselves. The state, and others, should not interfere with people’s rights to feed and clothe themselves and to live decent lives. Some rights require more state intervention, especially education (and there is a right to free and compulsory primary education). But the state must do more than stand aside: it must prevent infringement of these rights by others, and if necessary (for example in cases of extreme poverty or drought) must take positive steps.
The Proposed Constitution says that the State must realise the socio-economic rights progressively (Art. 21(2)), and it is for the State to show that it does not have the resources to fulfill the rights if this is its justification for failing to do so (Art. 20(5)). The courts in South Africa (and other countries) have been able to give some remedies for the victims of violations of socio-economic rights, and they should not be regarded as utopian “aspirations” or empty words, but a genuine tool for social justice.
These rights are not only a matter of legal enforcement. They are an agenda for the state (and one that, as we have mentioned, the state of Kenya has accepted). The State (meaning the government and its servants and agencies) must constantly think about how its policies affect the welfare of the people, ensuring that their socio-economic rights are promoted. At the time of the budget preparation, government should take into account its obligations.
Using the rights
The courts and the human rights commission will be stronger under the Proposed Constitution than under the existing law. People should take advantage of this to press for their rights and the rights of others. Traditionally courts usually allowed only people personally affected by wrongful acts to take a case to court, but the Proposed Constitution says that a person or organisation may bring an action to protect the rights of others who cannot bring cases for themselves (this would cover those who are too poor, for example, or situations where large numbers of people are the victims of violations of rights) (Art. 22).
The courts are directed to some extent how they should approach human rights cases. They are told to interpret the law, including the constitution, so as to achieve the realisation of the human rights, and the values that underlie them (Art. 20).
Many people may be unaware that Kenya is required to report on its own human rights performance to the UN Human Rights Council, and to the mechanism under the African Charter for Human and People’s Rights. These occasions can be used for civil society to present counter reports showing where the country falls short. The Bomas draft tried to make the UN process a national event by requiring that the government make the process public and ensure that it was debated at home (it should have included the African process in this provision). Unfortunately, this provision disappeared from the recent drafts.
*The analysis is courtesy of a team of lawyers led by an experienced Constitutional Lawyer of International Repute
Disclaimer: Views expressed in this section do not represent the opinions of CISA.
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