GAWAYA TEGULLE: COVID-19 and the Sheer illegality of the President’s “directives”

On March 30, 2020, Uganda’s President Yoweri Museveni delivered yet another COVID-19 address, declaring ‘total lock-down’. Everybody must stay indoors, except a few ‘essential’ service providers. And that would have probably have been okay, till you begin raising issues of law and strategy. And basic human decency.

The following day, bankers, medical workers and journalists in Kampala on their way to work got badly beaten up by a mixture of police, military and Local Defence Units (LDUs). One nurse was actually on the back of a boda boda, only for a soldier to hit her so hard, she fell off, landed heavily and hurt on the tarmac. Then the soldiers chased after the boda man and beat him up. Pregnant mothers died, because they couldn’t get transport to hospital.

Scores of people were tortured and are now locked up in jail for “disobeying the Presidential Directives” – an offense unknown in the laws of Uganda. They cannot access their lawyers because the lawyers are not allowed to leave their houses since they are not ‘essential’ service providers. The lawyers will in all likelihood get beat up should they be found driving to police or court.

Sick people must contact their Resident District Commissioners (RDCs) for clearance to go to hospital. No, I think it is the Local Council (LC1) Chairperson. Or somebody like Bebe Cool, Butchaman, Catherine Kusasira and a girl called oba Full-what? Or my extremely brilliant brother Andrew Mwenda. All these have a dotted line to Museveni. The nation is on tension, highly disorganized and completely disoriented. This is Uganda in 2020: modern, industrialized and Middle Income Status….making steady progress (and with absolutely no need to change leadership).

Issue One: For avoidance of doubt, the President right now is dabbling in the arena of absolute legal fiction. He can only exercise executive power in accordance with the Constitution. He cannot wake up one morning, declare something without legal premise, then deploy the military to enforce it, setting aside all known laws. Even graduates from Adolph Hitler and Benito Mussolini’s schools of governance wouldn’t do that; they’d try their best to look clever and sound constitutionally apt.

What the President ought to have done – under the Constitution which he took oath to obey and defend – is: first, declare a state of emergency for a maximum 90 days under Article 99 of the Constitution (which vests the President with executive power) and Article 110 (which empowers him to declare a state of emergency). Several states in Europe and the Americas have done so for COVID-19. He should then have given reasons for the declaration and the measures which must be taken to contain the situation. Second, seek approval of Parliament within fourteen days of the declaration.

Third, have Parliament enact laws to address the situation, so that the people of Uganda are clear about what has to be done, why it is being done and how. It also helps them reorganize their lives to cope with the emergency and have a sense of certainty. After 90 days, if need be, Parliament can still extend the state of emergency for a further 90 days till the situation is contained. What the President has done is issue uncoordinated directives that the armed forces are enforcing with incredible brutality that even the legendary Pol Pot of Cambodia (give him a Google!) would frown at. The Government issued two or three small statutory instruments (poorly conceptualized, badly drafted and hurriedly patched up) to close the borders, etc. The combination of directives and statutory instruments is vague and comical.

Issue Two: A state of emergency has the effect of suspending certain laws, rights and freedoms, in an organized and legal way. But even in a state of emergency, Article 44 does not permit the state to negate certain rights – freedom from torture and cruel, inhuman or degrading treatment or punishment; freedom from slavery or servitude; the right to fair hearing and the right to an order of habeas corpus – which the Museveni Administration is abusing with impunity.

This means the moment you deploy police, military and intelligence services to the public, the Constitution requires that you allow lawyers to have free latitude; so that they are available to provide legal support to people in need. The Uganda Law Society doesn’t have to beg for this. In a state of emergency – de facto or de jure – lawyers are essential service providers as a matter of law. They don’t need the permission of the President of Uganda.

You cannot lock up people arbitrarily in police cells and safe houses, but block lawyers from leaving their houses to access them. Or you say it is okay for the lawyers to access them – but they must walk. And still when you get to police, as a lawyer you will be informed that your client cannot get Police Bond, because the police is implementing a “presidential directive”. That’s legal fiction.

Issue Three – belongs to the field of strategic management. In times of national crisis, a responsible and responsive government must come up with a clear strategy to address the crisis, communicate this strategy well to ensure that the people on whose behalf it is crafted are able to understand it and buy into it, and then implement it in a way that presents a solution – not in a way that in itself creates further problems. Strategy development must of necessity integrate three components: fluidity, flexibility and adjustment when need arises. Museveni’s has missed that completely.

Now listen: we’ve had a presidential address almost every other day, providing ‘guidance’ to the nation about the national response to COVID-19. The frequency of the address suggests two things.

First, it may show that the President genuinely cares about the nation and he is providing leadership in a time of crisis, the way an airline pilot soothingly speaks to his passengers during turbulence; explaining the cause of the turbulence, how long it will last and telling them to fasten their seat belts and relax because all shall be well and they will land safely. He’ll tell you to obey the instructions of the Cabin Crew – the Flight Attendants led by the Purser – and all will be well.

But then again if the pilot talks nonstop, each time “clarifying” his earlier message and amending his orders, it may suggest that he is indecisive, lacks basic comprehension of the problem, has no ability to craft a strategy to address it and is groping in the dark for solutions in a haphazard manner. When a seasoned traveler observes that, he knows a plane crash is most definitely on the cards.

Lastly, Issue Four: The President’s mishandling of this situation – sheer abuse of power – shows how badly Uganda has degenerated. You get the feeling he is talking to small boys and girls that he has the right to order around and that his orders must not be qualified or questioned and that those who do not seem to comply must be beaten up by the military and its auxiliaries like the Local Defence Units (LDUs). Mr. President, save your patronizing tones for your family. We are not your children and you do not own this country. Bow to the law. Show respect for the Constitution and for this nation. Speak in official tones as a proper leader and show clarity and comprehension of issues.