Victims of Rape & their Endless search for Justice

Time check. 9.00 am. The venue is an unfamiliar one, I am at the Chief Magistrates Court in Mpigi. This is a small court outside the heart of Mpigi town, at the tail end of a fairly modern winding road that has recently been tarmacked. As I sat in the small patio adjacent to the two courtrooms, many things became apparent and couldn’t go unnoticed. The glow of the rising sun, the helter-skelter movement of the court officers and the distraught look on the faces of the clients as they stood each absorbed in their own worries. For a moment I wondered where their imaginations were. They were definitely knee-deep in the mire of thought.

The rays that pierced through the small openings in the courtroom wall reminded me of my own days as a little boy, when I would stand in the doorway on mornings like these to play with the intermittent rays that came down in slants to form silhouettes. I sat and watched as the large glowing sphere rose slowly into the dull morning sky, it illuminated everyone around, young and old, male or female, and it did so without discrimination. I stared at the radiant sky as the big ball of fire climbed higher and higher into the sky, the morning was beautiful but it did little to reflect on the contorted faces of those that towered over me.

In that small little corridor where we struggled to fit, the court rooms were conspicuously visible but the Chief Magistrates Office need extra attention to notice. A few metres away, there lay a barely noticeable room which as I was to later learn housed suspects as they waited to be arraigned in court. There was nothing attractive about it and it could ideally go unnoticed on any normal day.

Tick…tock…tick…tock my small watch was counting down every minute, there was a growing urgency in me, a kind of eagerness that kept me expectant. All eyes were riveted towards the gate, as the vehicle carrying suspects was expected in any time. It is after they arrive at court that it will begin. An old lady was sitted next to me, her face slackened, her brow furrowed, her eyes darting with concern, searching from one place to another as if expecting something. I couldn’t guess with precision what she was expecting, but whatever it was, it caused her concern! I was to later learn that her daughter had been defiled and for a year plus she had been on a long, winding and treacherous road, one that leads to justice. She was nowhere close!

My concentration shifted to our client, Mary. Her story is also one of those painful ones that mothers in this nation have gone on to endure day in day out. One evening, an unfortunate occurrence happened to Mary’s daughter and it was for that single reason that we were sharing a seat that morning. As she returned home from a party, Mary’s daughter was defiled by a boda-boda man, one she had trusted to take her home. She was abandoned in a thicket in the dead of the night and left to figure out her way home. The girl was only 17. She was only lucky that a civil society organization (Center for Health, Human Rights & Development Center for Health, Human Rights & Development) was implementing some of its activities in the district of Gomba and that is how they learnt of the case. The accused’s family had employed all tactics, trying to box the complainant into a corner to accept being paid off but she had a bigger force behind her and she could therefore not succumb.

I shudder to imagine how many more girls are made to go through similar excruciating and harrowing experiences, and because the accused can afford to pay them off they simply have no option. The court process is (deliberately) long and tiring, adjournment after another and the hope of getting justice always vanishes with each passing day. The undertaking of having to recount the experience to ‘strangers’ in a court room is to say the least, traumatizing. Majority of those who suffer sexual and gender based violence are from the lowest strata in the community and because their voices are not heard, they let those with power dictate proceedings. Those wielding power use it to the disadvantage of the poor and in the end it is a chain of avoidable suffering.

Luc Huyse in his book All Things Pass, Except the Past famously said, “Justice is for the rich and forgiveness for the poor”. As a society, we ought to reject what is not right, stand for truth and let justice prevail.

Let us have the Conversation on Abortion

Ester Nagudi is a 13 years old girl from Manafwa District; she is tricked into having unprotected sex and ends up getting pregnant. Ester has no option but to try out an abortion since she cannot imagine herself facing her parents. A friend she trusted recommended an elderly woman who asked her to find a cassava stick. The woman peeled off the outer layer of the stick and told Ester to lie on her back and raise her legs. She pushed the stick inside and pulled it out, only blood spurted out but nothing else came with it. Ester’s life has never been the same again from that day! This is a story of a girl whose life is taken on a garden path, takes a complete turn for the worst and is made to pay for just one mistake that she made (or was made to make).  There are many more horrendous stories that talk about cases of insertion of objects into the uterus, dilation and curettage performed incorrectly, ingestion of harmful circumstances, application of external form and various other methods of unsafe abortion.

I didn’t think that abortion was a conversation we needed to have until my eyes stumbled on that harrowing story, I was taken aback by the facts and figures. For a long time I had always thought that the feminists and their great movement were simply advancing an agenda that only they knew about, I actually thought they were acting up but for the past few days and weeks reality has stared me in the face. It simply never occurred to me that such horrors exist, I had it all wrong!

Two weeks ago, I had the opportunity of starting my internship program. This was with a prestigious organisation called Center for Health, Human Rights and Development (CEHURD), one that has for a long time championed the realisation of health rights in our country. Its impeccable record in litigating health related cases is second to none. Sometime last year CEHURD brought a case before the Constitutional Court, asking them to interpret Article 22 (2) of the Ugandan Constitution on whether there is a violation in the failure by the legislature to enact a law that regulates the termination of pregnancies. The fact is that we have no law in place on abortion but is our society ready to have the law? It is this abortion file that I have been poring over for the past fortnight and reality is beginning to check in.

There is a very critical question we need to start by answering. As a country, do we need to follow in the footsteps of our next door neighbors Kenya and Rwanda to enact a law on abortion? If that is answered in the affirmative then we also need to know whether we are ready to accept it. I have been a keen follower of the debate on abortion albeit making little contribution and for every single person who has claimed that it is not a law that we need, religion has been their basis. They have argued that God doesn’t allow killing. They have also argued that in case abortion is made ‘legal’ then there will be an upsurge in promiscuity. I don’t intend to delve into the spiritual realm because it is one that is complicated to fathom but let us look at the argument of promiscuity because that is what we all understand. The law that should be in place first of all is not one of legalizing abortion; it is one of regulating the termination of pregnancies. The two are not the same, in fact they are completely distinct. The English meaning of regulation is “controlling a conduct.” That in and of itself defeats the promiscuity argument form the onset because if you think women will become loose simply because abortion has been legalized, you have it wrong. The law will be seeking to put down the various conditions under which one can undertake a safe abortion. So their being loose will not be because the law has been enacted. If anything, it will make them more responsible! The Ministry of Health has itself realised that abortions ought to be carried out, they are something that you cannot dispense with and this is why they have come up with guidelines on the carrying out of abortions. The question then should be, if guidelines can be issued then why not a concrete law?

Many have also attempted to argue that a child (born and unborn) is a gift from God and therefore no one should take their life. That is a given and it is not in dispute. But if a child is a gift from God, then should we also presume that one that is as a result of rape is also from God? Doesn’t the argument become self defeating because then it would mean that rape is no longer a sin itself because a product of a sin cannot be a gift. I have also heard others argue that you could probably be killing a future leader or someone very important. I find this argument very shallow for these reasons. If one is a victim of incest, would you rather have the shame and embarrassment of an abomination in a family live with you for generations than do away with? Secondly, would you rather save the life of a baby that you are unsure of than ensure the safety of the mother you are very sure of, one who is giving the life and is expected to sustain it until a certain age? These are all choices that we need to have a conversation about because they are about the lives of our people; they are about the lives of our children and the children of our children and for a fact they matter.

At the end of the day, one disturbing fact remains, there is no regulation on abortion and the unsafe abortions will continue. Another Ester will become wasted and the chain will go on. I think it is about time we had this conversation on abortion.

My Love-Love Affair with Clinical Legal Education (CLE)

Officially, it is over. The ending we all feared for is benignly staring in our faces. From the start we knew it was never going to last forever but for some reason we allowed ourselves to be carried away. It’s hard to know what is real and what is nostalgia. Each story is a brick in a monument, built slowly overtime. At some point, it doesn’t matter what is real and what is imagined. An idea can be immortal, as many of us who have had this experience will testify but we also knew so well that one day we had to walk out and close the (boardroom) door behind us.

For beginners, Clinical Legal Education is a module one offers in their second semester of third year at Makerere Law School. It is a cocktail of activities and events that combines theoretical approach to legal education with a practical and hands on approach. There are numerous activities that the student can engage in under direct supervision or in self-directed activity. This might include; legal research, fact-finding inquiry, assisting qualified lawyers, interviewing clients and witnesses, drafting letters and other documents and depending on applicable rules, engaging in negotiations and even advocacy before courts and tribunals. The advantage of this is that the student gets to acquire a vast number of skills while still at university and would therefore have a smooth run in practice and at the bar. Much more than this is the closeness and proximity you develop with the lecturers. A rapport with one or two that you interface with on a daily, a camaraderie that you strike up with those that you regularly bump into as you criss-cross the corridor trying to beat a deadline all make this a worthwhile venture.

CLE offers a practical approach that comes with learning through experimenting. It is a notorious fact that students who participate in CLE receive basic training on legal drafting, research, negotiating and oral advocacy from law teachers and practitioners who volunteer to work on a part-time basis at the clinic. In our university and many other law schools across the region, there is an obsession and student enthusiasm for live cases. CLE gets to offer the student an opportunity to interact with live cases which is a win-win situation for both the student and the client who is helped. The client is in most cases a member of the community that cannot afford the services of a practicing lawyer but can benefit from the well of knowledge of the law student. From its inception, CLE has targeted a variety of people ranging from the student community to the entire legal regime and this is what has made it head and shoulders above the rest of the teaching models. Legal clinics which were essentially put up to conduct CLE were established by law students and law lecturers principally to bridge the gap between imparting practical legal skills and theory. They were established also in response to the growing need for basic legal service by indigent populations in the region. The above shows that the benefits accruing from CLE were not limited to students but would spread to the community too.

The module has also created a difference in the employment world. A number of law students, even those with high marks on graduation, far exceed the number of job opportunities, meaning that academic success is no longer enough. Students are expected to apply for jobs during the academic stage, yet employers are increasingly looking for candidates who have life experience, preferably in lawyering and people, skills together with a sense of commercial awareness-when they apply for positions. CLE has been crucial in improving our student employability. I can tell you for a fact that at the bar, students are frequently tested on opinion-writing skills. In practice, these are very similar to the letters which students draft to the clients. Having already done the vast majority of the work, this would be a simple way for us to develop an additional skill.

Also very important is the fact that CLE grants the opportunities for connections between organisations and the students. The difference between the successful and the less successful in our world today are the connections that one strings together. Among the many programs a CLE student interfaces with, internships and externships top the pile. These involve students being attached to organisations and getting involved in the work that they do. This is normally organised such that the students are attached to a particular organisation of their choice where they would be able to enjoy their stay and also benefit in terms of knowledge and experience. This is highly advantageous, as employers cite experience as a very important factor in modern day employment. Many more benefits accrue from this because I for one and a few of my colleagues had the benefit of doing externship at TASO-Mulago and the experience opened our eyes to the reality of the deep rooted suffering, discrimination and marginalization that our people constantly live with. I noticed that there is an embedded stigma that is associated with people living with HIV. On our first day, because none of us knew with precision the exact location of the TASO centre at Mulago, we often stopped on the way to ask kind strangers for directions. However, we were often greeted with grins and chuckles that were punctuated with soft sarcastic laughs. The fact that we were two boys and two girls added spice to the mix. When we finally got to the TASO centre, the stories were more painful. Patients lamented about rejection by their families, property grabbed from them, women chased by their husbands and so much untold suffering. Many of them also confessed of how they were born with HIV and only grew up to discover the ugly truth. Every Tuesday afternoon as we would be returning to University, we often patted ourselves on the back for the contribution we had made, but deep down the truth was biting, very little had been done to change the multitude of lives that we had left behind us.

Like all others, the CLE class of 2018 had its moments, it had its highs and lows, we had our hall of fame and we had that of shame too. We sometimes laughed so hard that we often forgot ourselves but we were also never short of mind-blowing moments when deadlines were looming. There are not many bittersweet memories in one’s lifetime that you sit back and reflect on with deep fondness, nostalgia and gladness, ones that you wished should never have ended so soon.  Mario Puzo in his thriller ‘The God Father’ said that the beauty about life is that it ends. The thread from this book is that everything good will one day come to an end, and knowing that there is an end date to anything is what makes it more beautiful.

CLE was worth my every single minute!

Does the Right to Education have a Corresponding duty not to fail?

There is a very huge erroneous belief about failure, especially in academic circles today. Often times, it has shattered dreams and on various occasions blown away people’s self esteem. This delusion grows bigger with each level of advancement and so does the desire to pass. I have on a number of instances interacted with students who have been through schools that divide classes according to performance, create separate schedules for those considered weak and also go ahead to demand extra pay for the “slow learners” as they are often tagged. I for one think this is very wrong and have my reasons and it is this that has driven many out of school but also helped a few others succeed. But the question we need to answer today is, can there be a limit to such often misguided acts? Acts where certain students can’t be registered in a school for fear of making bad grades that may taint the school’s image, acts where others are not allowed to sit final exams by Uganda National Examinations Board (UNEB) because they have not passed internal school exams and many other acts of such a nature. I understand schools have a standard but to what extent do they exercise this standard?  Only last week, Hon Justice Stephen Mubiru pronounced himself on this matter in the case of Ayikoru Gladys vs The Board of Governors of St Mary’s Ediofe Girls Secondary School. I think this is a very welcome judgement especially in this era of cut-throat competition between schools at final examinations that has seen many come up with ingenious approaches of upstaging the system at the expense of the students.

This is a case where Gladys after being promoted to Senior Four at Ediofe Girls, was asked to sit what was called a pre-registration examination that would then qualify her to be registered for UNEB at the end of the year. She failed the said examination and the school henceforth refused to register her, prompting her to find another school. The basis of their refusal was premised on the fact that she was a very weak student who would taint the image of the school with her bad performance. They also offered her an option of allowing her attend classes at the school but be registered elsewhere. Justice Mubiru while castigating the actions of the school held that the school has acted arbitrarily and their actions amounted to discrimination towards Gladys. He ordered the school to pay 10 million in damages for all the suffering caused to her.

I must begin by saying that the case of Gladys was a very unfortunate one, it is however not only her who has gone through such a traumatizing and humiliating experience, but thousands others who have not had the opportunity of making formal complaints. However, we need to take a look at the legal regime of the right to education to clearly ascertain if it comes with an obligation to be wise or dull or a struggling student or perhaps a slow learner.

Article 30 of the Constitution which is the leading authority on this matter provides for a right to education for every person. It is on the basis of this that various acts of Parliament are founded to create the various academic stages. The Education (Pre-Primary, Primary and Post Primary) Act and the University and Other Tertiary Institutions Act are the main Acts that put in place all the existing major learning stages that exist in the country today. On the international plane, the UNESCO Convention against Discrimination in Education has provided explicitly for non-discrimination in the education sector, Article 17 of the African Charter creates a right to education and the UN Committee on Economic, Social and Cultural Rights has stated that education is a fundamental right that affects the growth, development and welfare of human beings, and as a human right, education is the primary vehicle by which economically and socially marginalized children and adults can lift themselves out of poverty and obtain the means to participate fully in their community. If there is a requirement for everyone to receive a basic education, how then does it fit within the standards that are set by certain schools and don’t their acts of registering their students elsewhere amount to discrimination? Does it also call for a certain level of brilliance to achieve this right?

Justice Mubiru in his very powerful judgement says that discrimination that is intrinsically morally wrong occurs when an agent treats a person identified as being of a certain type differently than he or she otherwise would have done because of unwarranted prejudice against persons of that type. He goes on to say that wrongful discrimination occurs when one is led to defective conduct toward another by unjustified hostile attitudes toward people perceived to be of a certain kind or faulty beliefs about the characteristics of people of that type. It is this that gives us an impression of where the acts of these schools fall. It is important to note that much as I may be against the separating of classes according to performance for personal reasons like lowering of esteem, it doesn’t in and itself come within the ambit of discrimination. This is basically because the motive is on helping the weaker students get to the same pedestal with the brighter ones, perhaps with more input and as the learned judge says, the disparate treatment is not motivated by feelings of resentment, detestation, hostility, prejudice, spite or malevolent ill will. Schools function as facilitators of teaching and learning and that necessitates multiple types of assessment to further society’s interests in educating its young people. It is clearly in the school’s interest to design a system that will permit excellent teaching and learning. More so, segregation in a school environment is not always negative. The provision of separate educational facilities, or by other discriminatory means, separation for special treatment or observation of individual students from a larger group for their benefit, such as segregation of gifted children into accelerated classes or remedial classes for those who are not equally gifted, is clearly responsive to their varied abilities and designed to enhance their skills optimally.

Justice Mubiru argues and I entirely agree, that in a school environment, students often identify themselves with a multiplicity of formal groups such as clubs, classes, sports teams as well as informal ones such as discussion groups, peer or friendship groups etc. Identity groups may also emerge on the basis of academic performance, hence the coining of the phrase “slow learners”.  He went on to say that although group identification is not always based on competition, identification is based on social comparison. Group identity is part of how people feel about themselves. These powerful emotional reactions and connections may produce feelings ranging from pride to prejudice. In situations involving intergroup competition, members may distance themselves from a group when it is performing less well than others. Group identity, precisely by creating an “us versus them” mentality, can produce conflict, discrimination, and prejudice in the school environment. Social identity theory states that the in-group will discriminate against the out-group to enhance their self-image. It is visible in various academic spheres today, that the administration and the teachers too often side with the “in-group” (who are the so called brilliant) as against the “out-group” who they consider as dull (as if it was a choice) and lazy and therefore can be done away with. It is therefore wrong to “ferry” students to be registered in other schools for fear of “contaminating” your grades because then it is a deliberate attempt to sideline them at the expense of the brilliant ones. And as the learned judge rightly points out, this is a vice that will lead to disproportionately targeting persistently low-performing students for expulsion from schools. There is no choice in being dull and therefore education is a right for us all!