Sunday, October 20, 2013

Welcome to Professor Prof.(Dr) Saurabh Chaturvedi



 Prof.(Dr) Saurabh Chaturvedi
The Faculty of Law at the University of Iringa is pleased to welcome Prof.(Dr) Saurabh Chaturvedi, who officially joined the Faculty on 21st Sep.2013.

Dr. Saurabh holds a LL.B, LL. M and Doctorate in Law from CCS University, Meerut, India, and also MBA and PGDHRM from Indira Gandhi National Open University, India. Before joining academia Dr. Saurabh served Corporate of International repute for more than 9 years and deputed in various countries.

In Legal academics Dr. Saurabh served national Law University in India, Ethiopian Civil Services College in Addis Ababa, Ethiopia and Queensland State University, Brisbane, Australia.

Dr. Saurabh has authored two books and various articles published in journals of international repute and attended various conferences/seminars organized by International bodies in France, Sweden and India.

In Iringa University Dr. Saurabh shall supervise Ph. D scholars and guide LL.M students opting for Cyber Law, Human Rights and Jurisprudence.

Saturday, October 5, 2013

UNIVERSITY OF IRINGA (UOI) LAW STUDENTS TO TAKE PART IN NATIONAL MOOT COURT COMPETITION


Six Law students will represent the University of Iringa (UoI) in the National Moot Competition on International Humanitarian Law to be held at Accomondia Hotel in Dar es Salaam-Tanzania on 24th day of October this year.
 
 

Speaking from the main campus, the Dean Faculty of Law Advocate Renatus Mgongo said he is confident that University will compete constructively and eventually win the competition. This what Advocate said, ‘…we have every reasons to perform better because our students are competent and knows better the gist of the competition’.

Meanwhile, the names of students who will represent the University of Iringa in the said National Moot Competition have been released; the students include Monica Ramadhani, Janeth Nagai,  Joanna Brent Mcintyre, Anney B. Nahum, Albert Lema and Ernest Uzia.


 
 
 


SELECTED STUDENTS TO JOIN THE BACHELOR OF LAWS DEGREE AT THE UNIVERSITY OF IRINGA IN 2013/2014

The Faculty of Law at University of Iringa (Formerly, the Constituent College of Tumaini University) wishes to inform the interested parties that following students have been selected to join bachelor of Laws degree for the 2013/2014 academic year.
NOTE 1. LLB and other Degree programmes start on 21st October 2013; ALL the students are required to report on this date without any delay! 2. Read the Joining Instructions put in the website (www.tumaini.ac.tz) very careful and adhere to it; failure to adhere may lead to losing the chance. 3. Every student MUST pay the first installment regardless of the loan from HESLB for one to be registered. NOT OTHERWISE; 4. The admission letters are found at the university at the admissions’ office, they are not posted; make sure you get it before registration starts. 5. Inform others as you get this information.

Sunday, September 8, 2013

GOLDEN MOMENTS AS THE UNIVERSITY OF IRINGA (FORMERLY CONSTITUENT COLLEGE OF TUMAINI UNIVERSITY) CROWNED THE TANZANIAN UNIVERSITIES’ CHAMPION IN TANGA CITY (PHOTOS- EPISODE ONE)





































































































ENROLMENT RATE IN TANZANIAN UNIVERSITIES STILL LOW


By Queenter Mawinda

The Executive Secretary for the Inter-University Council for East Africa (IUCEA) Professor Mayunga Nkunya has said that Tanzania still lags behind in university students’ enrollment rate compared to other East African countries.

Professor Nkunya made the observation early this week in an interview during the second East African Community university students’ debates on EAC integration organized by Deutsche Gesellschaft für Internationale Zusammenarbeit (GIZ), the German agency for international development.

Professor Nkunya said in spite of the government’s attempts to increase the number of students enrolled in universities, there is a need to review the programs to increase students’ confidence and professionalism after completing their studies. That would enable them to tune themselves better to the labour market in East Africa and beyond.

With Tanzania aiming to reach a target of 300,000 students in its universities by 2015, the Minister for Education and Vocational Training Dr Shukuru Kawambwa told Parliament that a total of 65,000 students are this year being enrolled in local universities.

However the number is well below those admitted to universities in other East African countries, Prof. Nkunya noted.

For instance, in Kenya the Economic Survey 2010 reported a total of 143,000 students in public universities in 2009, up from 101,000 in 2008.

And in 2011, the country’s Joint Admission Board (JAB), which handles admissions of government-sponsored undergraduates to public universities, decided on a double intake of new undergraduate students. This enabled admissions of 32,611 students who sat for the Kenya Certificate of Secondary Education (KCSE) in 2009 and 2010 out of 96,000 who qualified.

These statistics are for public universities only in Kenya – while the Tanzanian target includes both private and public universities.

In Uganda, enrolment in public universities shot up when the National Resistance Movement took power more than 20 years ago, from about 5,000 students to more than 100,000 today. According to a 2008 Uganda Bureau of Statistics report, in that year the country’s 27 universities had 92,605 students.

According to Prof. Nkunya, many students fail to join universities because of the poor quality of education and curriculum used in high schools.

In an envisaged leap forward, there is need to harmonize education systems so as to increase student’s enrollment in universities as well as integration with other universities.

He said the EAC is still faced with lack of employment opportunities for fresh graduates, while the situation is worse for those who leave schools at lower levels, contributing to criminality.

Universities provide education that does not prepare students to creation of entrepreneurial capacity for empowering individuals to create self employment and employment for others, the don indicated.

There is need to establish strong ties between private sector and employers on one hand, to work hand in hand with universities so as to project students capability for employment or self employment

“There is a need to expand employment opportunities so as to reduce the number of youths who are unemployed in both regional groups,” he stated.

Currently the council is working closely with the East African Business Council (EABC) so as to make sure youths are given skills and knowledge that will enable them to be self employed.

With a tone of disappointment, he said that it was expected that communities near agricultural universities like Sokoine University in Morogoro would set examples for agricultural communities elsewhere in the country.

Our education system does not give students the opportunity to link with the outside world and communities, and oversee opportunity and challenges ahead, he stated.

“Universities should think outside the box and go beyond the mark on how students are going to contribute their education to the society,” he added.


 

UJAMAA AND THE NYERERE LEGACY: WHAT WENT WRONG?

By Joseph Mihangwa
 It is on record that Mwalimu began thinking Socialism during his student days in Britain.  He is quoted saying:  “It would be surprising to find a progressive student in those days who did not think in terms of Socialism”.
 
But Mwalimu was not a Marxist, partly because Karl Marx was influenced by Darwinist racist theories that relegated African peoples to second-rate human beings.  He also did not import European Socialism because it derived its arguments from class conflicts.
 
Mwalimu’s argument for African Socialism was summed up thus:  “For a Third World country, once you have accepted the idea of Socialism, there is a problem of succumbing to the ideology of evolution.  Marx says backward countries go through stages of development, with one stage leading to the other, and socialism is the product of developed capitalism”.
 
He goes on:  “But it is very difficult for an intellectual to say I’ll engage myself in building capitalism in order to later go on to Socialism.  So I felt we really have no choice at all if we are going to try and build socialism, we have to begin where we are…. And where we are is underdevelopment, not capitalism”.
 
When it came to applying African Socialism (Ujamaa) in Tanzania he says:  “Although people wouldn’t believe it, we did not abolish capitalism.  We gave it a less of a go-there wasn’t much capital around….In the meantime we have some African capitalists, actually we have what the Chinese call “nationalist capitalists” – sort of natural capitalists, although it is very difficult for them to survive without the tentacles of the transnationals”.
 
In the beginning, Mwalimu deliberately kept ideology out of the process of building TANU as a nationalist movement: “I thought if we get involved in ideologies, we’ll divide the people.  I wanted to get rid of the British. That was far more important than thinking capitalism versus socialism”.
 
Mwalimu says the opportunity to formulate the socialist vision for Tanzania arose out of the need to solve a practical problem of social justice:  “Before independence, the British used to give loans to the colonial officers to buy cars, but only to white staff.  After independence, there was a lot of pressure on me to give car loans.  I said no, but I’ll give loans to build houses.  Later the facility was extended to politicians.  One of them was my brother; he had built one house and was in the process of building another.  I thought to myself they cannot do this, these fellows are becoming businessmen, simply selling houses….  So I thought I should produce a series of articles on self-reliance”.
 
Out of Mwalimu’s deliberations came “The Arusha Declaration for Self-reliance”, which he admits summarises the vision of the Tanzanian society which he wanted to build:  “That was one of the best things we’ve ever done for this country.  It gave clarity to what we were trying to do.  People may now want to oppose it, they can oppose it.  But they know what they are opposing”.
 
Several years before retirement, Mwalimu was asked for what he would best like to be remembered by his countrymen; his answer was:  “For trying”.
 
As to the validity and relevance of the Declaration he said:  “In the basic things, I would not change a thing.  I do not think I would change the Arusha Declaration; with hindsight I would try to implement it differently, possibly in two areas”.  
 
About nationalization, he said he would have nationalized carefully, or taken joint venture with the owners, rather than nationalize outright.
 
On rural policies, Mwalimu said, he would have turned down “Siasa ni Kilimo” (Agriculture is politics), the rallying cry of the Iringa Declaration that led to the not so popular “Villagisation”; Mwalimu laments:  “I would have emphasized the family but encouraged the people to work together.  We wasted too much energy trying to develop communal farming.  We could have been more relaxed about it…..  But the object would have been exactly the same”.
 
On the demise of the defunct East African Community in 1977, Mwalimu reveals that he had prior warned President Jomo Kenyatta of Kenya about the intrigues by the people around him.  “But your people are destroying the Community”, he had told him.  He notes that Jomo was committed to the Community, but he had some narrow-minded people around him.
 
He personally traces the cause of the Community’s collapse to Kenyans’ resentment of a strong fraternity between himself, Milton Obote of Uganda and Kenneth Kaunda of Zambia.  He says:  “Some fellows in Kenya felt isolated, and when I tried to get Zambia into the Community they felt it would become three to one.  But they got it all wrong”.
 
Mwalimu reveals further that in any case the Community would have survived had it not been for the “chaotic situation in Uganda with Idi Amin there….  Tanzania and Uganda would have continued the Community, which would have meant not a breaking but withdrawal by Kenya; and Kenya would have not withdrawn”.
 
The other possible reason of the Community’s collapse was capitalist Kenya’s resentment of Tanzanian socialism:  “But I said this to them, and I will say it again; I am much more an African nationalist than a socialist.  The priority for Africa is not socialism; the priority for Africa is development and unity.  I would rather have a united capitalist Africa than a bunch of non-viable little things under socialism.  Over that I was absolutely clear”,  he clarifies.
 
Mwalimu admits that he may have been resented because he had been vocal about his vision:  “Some times when you are more vocal you anger more people.  So I annoyed more people than those who were not active….and therefore I was more disappointed”.
 
Throughout his political life, the organization of the Party was at the top of Mwalimu’s personal agenda, beginning with the drafting of the original TANU Constitution (based on CCP in Ghana, extracted from George Padmore’s Ghana Revolution), his resignation as Prime Minister soon after independence to re-organize the TANU, and finally the formation of the Chama cha Mapinduzi (CCM) to accommodate the politics of the Union with the island of Zanzibar, for which he remained Chairman for a couple of years after retiring as President.
 
Was Mwalimu ever against the multi-party system?  He replies in the negative:  “No!  No!  I was politically brought up by the British and I never saw anything wrong with the parliamentary system”.
 
The historical fact is that, the earlier post-independence elections were multi-Party.  It is also true that, Mwalimu’s democratic sensibility was unhappy with the success of TANU as a result of which opposition parties were annihilated to such an extent that up to 80 per cent of TANU candidates were being returned un-opposed.
 
Although he was ideologically a one-party man, Mwalimu was not ideologically opposed to multi-party system.  It was Mwalimu who lifted the lid off the debate on multi-partism in Tanzania:  ”Ideologically I’m a socialist.  Ideologically I’m a one-party man.  But I have introduced the debate on multipartyism because the idea that it is taboo to question our constitution is undemocratic….  I mean I cannot accept this”, Mwalimu pointed out.
 
SOURCE: ThisDay newspaper , http://www.thisday.co.tz/?l=11012 (accessed on 8th Sept 2013

People want a constitution for social and political emancipation

 
By Joseph Mihangwa
 
 In the liberal theory, the constitution is both a power – map as well as a terrain of constructing political legitimacy.  In this case, a constitution is not only a fundamental legal but primarily a political document.  In other words, the rulers (the executive) derive both the exercise of power and its legitimation from the Constitution.
 
The making and application of the constitution does not only signify the putting in place a certain constitutional and legal structure, but the process of constructing consensus; that is, making the political rule and the exercise of power acceptable and respectable.
 
Legitimacy can be defined simply as the quality of right to rule, and a legitimate regime is one whose subjects accept its right to govern.
 
The value of legitimacy is that, such a regime need not maintain itself primarily by force.  History suggests that governments founded on force are unstable and short – lived.  Their fragile equilibrium encourages increasing resort to repression, which inhibits constructive effort both by government and the governed.
 
Democracy, good governance and constitution are three inseparable institutions with symbiotic relationship in society, short of this will result in crisis of governance.
 
This raises the question as to the nature of the constitution we need at the moment.  Firstly, it should be a constitution which acknowledges the irresistible pressure for change inherent in human society.  Change is nurtured by ideas and man’s desire for justice and freedom.  The constitution should not interfere with these basic developments.   People must have the ultimate say.
 
Secondly, the constitution should honestly define “ab initio” its own boundaries, implicitly and explicitly as a human document.  It should not elevate itself to building castles in the air by arrogating to its unattainable powers and attributes.
 
This is why, for obvious reasons, the question regarding the need for a new constitutional dispensation and electoral system continues to raise a great deal of passion and heat.  Two strands of opinion dominate the national debate:
 
On the one hand, there is a view that our country has quite successfully gone through multi-party elections based on the constitution and the electoral law as they presently exist, therefore there is no need to review or write a new constitution.  Proponents of this view argue that what is required is just incremental improvements on the existing framework, as opposed to throwing it out of the window and starting all over, may be more practical approach to take.  
 
The opposing view premised on the recommendations of the Nyalali Commission, holds that, the underlying value systems which underpin the present constitution and electoral law suffer from deep – seated one party cultural and ideological trait.
 
This debate is not only interesting, but it goes to the root of our new organized pluralism.  We can argue for or against the need for a new constitution and a new electoral law.  What is not debatable, however, is that a new political reality has dawned on our nation; namely that the traditional concept of democracy anchored in representativeness through political parties inside and outside electoral organs is inadequate and outmoded. 
 
We believe that, social movements within our civil society have an important task of influencing the extent and nature of social, economic and political change in our country.
 
A viable civil society can be defined as a non-political organization which is capable of carrying out its responsibility under the terms of the objectives for which it is established.  The basic human problems, such as poverty, health, education, shelter, environment and the method of dealing with these problems should not be allowed to fall into the hands of the government alone.  It is just as wrong for the government to assume sole responsibility for the people’s welfare as it is for civil leaders to abandon their social responsibility to the communities.
 
Viable civil leaders and societies operate with emotional and intellectual commitment to their cause.  They would form pressure groups to ensure that whatever has to be done by the state is actually done and vice-versa.
 
Viability of civil society in any country is driven by dialogue of the people.  In fact, dialogue is the essence of the democratic process.  But it is a dialogue based on voluntarism.  In other words, it is a dialogue that widens the arena of politics beyond electoral and legislative politics which the latter, have led to a virtual exclusion of the masses.
 
But even at the broader societal level, our country needs an engaged community of thinking citizens.  Unfortunately, what multi-party politics is doing now, as it were during the one-party politics, is to reduce politics to the number of parties and the number of votes.
 
It is for this reason that such politics are elitist in character, since their assumption is that people do not and are incapable of thinking, and therefore, they must be represented; and further that, people are incapable of making their own history, that it is only the parties and the state which are capable of doing so.  Here the attempt is to even deny (and we have abolished) the existence of politics outside the parties.
 
Indeed, it is high time now to think beyond current party politics.  Is it possible for parties which are organically linked to the working people to emerge?  What mode of politics will make such a possibility a reality?  These are some of the questions which remain hanging, given the current political liberalization. 
 
One of the tragedies of our political transformation is that our country still suffers from very strong political impulses and even illusions conditioned by priorities of our polity as it is rather than it ought to be.  Whether it be over socio-economic issues, politics or the constitution, we seem to lack the mindset and the courage to dare and to accept change; not change for its own sake, but change for a better dispensation.
 
In my view, fundamentalist beliefs, of whatever origin or character, always foreclose honest and genuine debate and dialogue and therefore, the anti-thesis of democracy.  The tendency to view any challenge or criticism against a political party or the government in power by a honest citizen as anti-party or anti-government, and therefore he or she must be ridiculed, does not create a healthy climate for democracy and good governance.
 
Change is the litmus test for democracy.  Even Mwalimu Julius Nyerere, who had believed that change “causes disturbances” and upsets stability, was also quick to admit that stability itself was impossible to achieve without change (Read, Nyerere:  Stability and change in Africa).
 
And this is the challenge which must form genuine democratic debate about a new constitution and electoral law in our country today.
 
The constitution is the fundamental law of the country.  Our country’s development is importantly influenced by the nature and content of the constitution.
 
The importance of these two legal pinnacles of our country demands that they be put to public scrutiny.  Hence, political systems need to be understood by the people (the Civil Society) they serve and be suited to their own value systems.
 
Periodic elections, however free and fair, are insufficient criteria for pursuing genuine development, and that, it is the continual questioning of citizens, whose freedom of expression must be total to stimulate the reforms essential for maintaining the country’s democratic  effectiveness as the society transforms.
 
A constitution is at its best if it is the product of a social change, ushering in for the people a fresh breath of life, fresh ideals, and a sense of destiny: and if only it is inspired by intelligent, conscientious, far-sighted leaders, visionary of the highest order.
 
The constitution, when made under such favourable conditions, when the nation is in a confident, triumphant mood, becomes an embodiment of the natural will of the people, the consensus of the nation, and acquires an enduring value.
 
We must move away from politics of confrontation and polarization to politics of consensus.  The challenging starting point is for Tanzanians, leaders and followers alike, to jettison their shibboleths and illusions about the need for a comprehensive, as opposed to an incremental, constitutional and electoral reform.
 
The sad story about multipartism today is that the existing and the emerging parties, without exception, have confined themselves to the realm of fighting to remain in or to enter the State House.  As far as popular politics are concerned, the broad masses are only mobilized for support, knowingly or blindly.
 
This type of democracy does not address itself to the issues of redressing imbalances, inequalities, exploitation, etc, and all the talk is about capturing state power, no less, no more.  Clearly, multi-party politics is still imprisoned in the state controlled conception of politics.
 
In fact, political liberalization which continues currently is taking the form of another monopolization of political participation by very narrow circles of elites.  This process is also increasingly accompanied by further weakening of the civil society’s organizational capacities.  This is because it does not preclude the dominance of state repressive relations to the civil society.
 
The advent of pluralism and of market economy have, moreover, brought to the fore new challenges which the legal regime has to respond to.  Take the case of corruption:  this cancer is not only destroying the moral fabric, it is also undermining our very democratic institutions.  Corruption, at social, economic and political levels stems from the resort to unprincipled means and abuse of administrative authority.  We must thus quickly move towards an environment where corruption, inefficiency and lack of accountability by every citizen and leaders are effectively checked and sanctioned through legal means.
 
There is no democracy in a corrupt state.  Here, democracy is seen just as a form of rule which includes the right of representation only.  It is a matter of the ballot box, and it does not matter what means one uses to get the votes.  This is what is taking place in our country today, where political corruption has been legalized, making leadership the right only of the worthy, backed by a discriminative electoral law.
 
Democracy as a process of transforming the state, requires one to focus on the politics of social and political emancipation of the people.  It is necessary to deal with issues such as; in which way is production organized?  Who is producing?  Who is appropriating the surplus?  What forms of accumulation are taking place – in sum the relations of subordination and resistance at the level of production?
 
It is therefore imperative now, that our nation must resolve to take the ultimate decision as to what constitution she needs on her own without involvement of external forces or interests.
 
We want a constitution that puts the nation’s interests above all other in a spirit of realism, in which problems, obstacles and possibilities are assessed in their true nature.  The legitimacy of the constitution shall derive solely from its acceptance as a writ of accord as to how the people want to be governed and how they want to co-exist in the spirit of harmony, cooperation and reciprocal obligations.
 
The constitution must view the nation as a trust.  Under this principle, it is enjoined that the nation herself should be treated as a trust to be managed well with all sense of responsibility so that she can provide all that her people need in terms of happiness, comfort and decent living and at the same time be healthy enough to meet the needs of the generations to come.
 
Under this principle is the connotation that, society is the primary owner of all natural resources, in which, consequently, all people have equal rights of access.
 
Constitutional provisions are also needed to institutionalize a coordinated national strategy to preserve nature and environment.  There is an inseparable link between man and nature and therefore, misuse of or abuse of nature must be made a serious breach of the constitution.
 
Policy makers must be made to understand that, the constitution we advocate for is not one for CUF, CHADEMA, CCM or TLP, nor shall it be meant to satisfy interests of political heavyweights.  Rather, the constitution we want shall be for all the people – politicians and non-politicians and the civil society in general.
 
Democratic elections make governments more accountable to the people.  We need electoral laws that will facilitate smooth elections that will be free and fair, instead of encouraging violence, corruption and use of state organs in the electoral process, hence defeating the whole idea of integrity, transparency and good governance.
 
Any one seeking a legal remedy in elections should be enabled to knock on the doors of justice and be heard without unnecessary restrictions, like depositing 5m/-, or to cry for mercy and discretion of the court.
 
Indeed, we must now all come forward with the will, creativity and a readiness to struggle for the required transformation through the desired constitutional means.
 
 
Source:http://www.thisday.co.tz/?l=11018 (accessed on 8 Sept 2013) 

Monday, September 17, 2012

Call for Law Papers!


Special Law Edition
The East African Journal of Research.[1]
A Publication of Tumaini University, Iringa

Note:
We welcome papers on legal research and socio-legal research from different faculties and disciplines.

Format and submission guidelines 
·         Articles should be free of common English and writing errors.
·         Article length 3000 – 8000 words (including précis  of Masters and Ph.D    Theses)
·         Article title length should not exceed 15 words.
·         Article should have an abstract
·         Article should make use of Footnotes. Endnotes not accepted.
·         Spacing is 1.5, font-Times New Roman size 12, 1" page margins
·         Submit online copy

DEADLINE FOR SUBMITTING PAPERS – 30 SEPTEMBER 2012

CONTACTS:
Kindly forward your online copy of your article to:
Coordinator of the Publication, Dr. iur. Gracieux Mbuzukongira
Or Associate Coordinator, Adv.. Mugendi Kohi.

For additional information use the below contacts:
Dr. Mbuzukongiro (Mobile: 0764 872 397, E Mail: mbuzukongira@yahoo.com)
Advocate. Mugendi (Mobile: 0767 333 778, E Mail: mkohi@tumaini.ac.tz)


[1] The Journal is published twice a year under the Directorate of Research and Publications, Tumaini University, IUCo.

Thursday, September 6, 2012

WE'RE ONE CRUCIAL STEP CLOSER TO SEEING TONY BLAIR AT THE HAGUE

Desmond Tutu has helped us see the true nature of what the former prime minister did to Iraq and increased pressure for a prosecution.
Tony Blair arrives at the Royal Courts of Justice in London to give evidence on media ethics to the Leveson inquiry in May 2012. Photograph: Dan Kitwood/Getty Images


For years it seems impregnable, then suddenly the citadel collapses. An ideology, a fact, a regime appears fixed, unshakeable, almost geological. Then an inch of mortar falls, and the stonework begins to slide. Something of this kind happened over the weekend.

When Desmond Tutu wrote that Tony Blair should be treading the path to The Hague, he de-normalised what Blair has done. Tutu broke the protocol of power – the implicit accord between those who flit from one grand meeting to another – and named his crime. I expect that Blair will never recover from it.

The offence is known by two names in international law: the crime of aggression and a crime against peace. It is defined by the Nuremberg principles as the "planning, preparation, initiation or waging of a war of aggression". This means a war fought for a purpose other than self-defence: in other words outwith articles 33 and 51 of the UN Charter.

That the invasion of Iraq falls into this category looks indisputable. Blair's cabinet ministers knew it, and told him so. His attorney general warned that there were just three ways in which it could be legally justified: "self-defence, humanitarian intervention, or UN security council authorisation. The first and second could not be the base in this case." Blair tried and failed to obtain the third.

His foreign secretary, Jack Straw, told Blair that for the war to be legal, "i) there must be an armed attack upon a state or such an attack must be imminent; ii) the use of force must be necessary and other means to reverse/avert the attack must be unavailable; iii) the acts in self-defence must be proportionate and strictly confined to the object of stopping the attack." None of these conditions were met. The Cabinet Office told him: "A legal justification for invasion would be needed. Subject to law officers' advice, none currently exists."

Without legal justification, the attack on Iraq was an act of mass murder. It caused the deaths of between 100,000 and a million people, and ranks among the greatest crimes the world has ever seen. That Blair and his ministers still saunter among us, gathering money wherever they go, is a withering indictment of a one-sided system of international justice: a system whose hypocrisies Tutu has exposed.

Blair's diminishing band of apologists cling to two desperate justifications. The first is that the war was automatically authorised by a prior UN resolution, 1441. But when it was discussed in the security council, both the American and British ambassadors insisted that 1441 did not authorise the use of force. The UK representative stated that "there is no 'automaticity' in this resolution. If there is a further Iraqi breach of its disarmament obligations, the matter will return to the council for discussion as required in paragraph 12." Two months later, in January 2003, the attorney general reminded Blair that "resolution 1441 does not authorise the use of military force without a further determination by the security council".

Yet when Blair ran out of options, he and his lieutenants began arguing that 1441 authorised their war. They are still at it: on Sunday, Lord Falconer tried it out on Radio 4. Perhaps he had forgotten that it has been thoroughly discredited.

The second justification, attempted again by Blair this weekend, is that there was a moral case for invading Iraq. Yes, there was one. There was also a moral case for not invading Iraq, and this case was stronger.

But a moral case (and who has launched an aggressive war in modern times without claiming to possess one?) does not provide a legal basis. Nor was it the motivation for the attack. In September 2000, before they took office, a project run by future members of the Bush administration – including Dick Cheney, Donald Rumsfeld and Paul Wolfowitz – produced a report which said the following: "While the unresolved conflict with Iraq provides the immediate justification, the need for a substantial American force presence in the Gulf transcends the issue of the regime of Saddam Hussein." Their purpose, they revealed, was "maintaining American military pre-eminence". The motivation for deposing Saddam Hussein was no more moral than the motivation for arming and funding him, two decades before.

But while the case against Blair is strong, the means are weak. Twenty-nine people have been indicted in the international criminal court, and all of them are African. (Suspects in the Balkans have been indicted by a different tribunal). There's a reason for this. Until 2018 at the earliest, the court can prosecute crimes committed during the course of an illegal war, but not the crime of launching that war.

Should we be surprised? Though the Nuremberg tribunal described aggression as "the supreme international crime", several powerful states guiltily resisted its adoption. At length, in 2010, they agreed that the court would have jurisdiction over aggression, but not until 2018 or thereafter. Though the offence has been recognised in international law for 67 years, the international criminal court (unlike the Rwanda and Yugoslavia tribunals, which hear cases from before they were established) will be able to try only crimes of aggression committed beyond that date.

The other possibility is a prosecution in one of the states (there are at least 25) which have incorporated the crime of aggression into their own laws. Perhaps Blair's lawyers are now working through the list and cancelling a few speaking gigs.

That the prospect of prosecution currently looks remote makes it all the more important that the crime is not forgotten. To this end, in 2010 I set up a bounty fund – www.arrestblair.org – to promote peaceful citizens' arrests of the former prime minister. People contribute to the fund, a quarter of which is paid out to anyone who makes an attempt which meets the rules. With our fourth payment last week, we've now disbursed more than £10,000. Our aim is the same as Tutu's: to de-normalise an act of mass murder, to keep it in the public mind and to maintain the pressure for a prosecution.

That looked, until this weekend, like an almost impossible prospect. But when the masonry begins to crack, impossible hopes can become first plausible, then inexorable. Blair will now find himself shut out of places where he was once welcome. One day he may find himself shut in.


SOURCE:
guardian.co.uk, Monday 3 September 2012 17.30 BST

ARCHBISHOP DESMOND TUTU SAYS THE FORMER LEADERS OF THE U.S. AND U.K. SHOULD FACE WAR-CRIMES CHARGES

The immorality of the United States and Great Britain's decision to invade Iraq in 2003, premised on the lie that Iraq possessed weapons of mass destruction, has destabilised and polarised the world to a greater extent than any other conflict in history.


Instead of recognising that the world we lived in, with increasingly sophisticated communications, transportations and weapons systems necessitated sophisticated leadership that would bring the global family together, the then-leaders of the US and UK fabricated the grounds to behave like playground bullies and drive us further apart. They have driven us to the edge of a precipice where we now stand – with the spectre of Syria and Iran before us.

If leaders may lie, then who should tell the truth? Days before George W Bush and Tony Blair ordered the invasion of Iraq, I called the White House and spoke to Condoleezza Rice, who was then national security adviser, to urge that United Nations weapons inspectors be given more time to confirm or deny the existence of weapons of mass destruction in Iraq. Should they be able to confirm finding such weapons, I argued, dismantling the threat would have the support of virtually the entire world. Ms Rice demurred, saying there was too much risk and the president would not postpone any longer.

On what grounds do we decide that Robert Mugabe should go the International Criminal Court, Tony Blair should join the international speakers' circuit, bin Laden should be assassinated, but Iraq should be invaded, not because it possesses weapons of mass destruction, as Mr Bush's chief supporter, Mr Blair, confessed last week, but in order to get rid of Saddam Hussein?

The cost of the decision to rid Iraq of its by-all-accounts despotic and murderous leader has been staggering, beginning in Iraq itself. Last year, an average of 6.5 people died there each day in suicide attacks and vehicle bombs, according to the Iraqi Body Count project. More than 110,000 Iraqis have died in the conflict since 2003 and millions have been displaced. By the end of last year, nearly 4,500 American soldiers had been killed and more than 32,000 wounded.

On these grounds alone, in a consistent world, those responsible for this suffering and loss of life should be treading the same path as some of their African and Asian peers who have been made to answer for their actions in the Hague.

But even greater costs have been exacted beyond the killing fields, in the hardened hearts and minds of members of the human family across the world.

Has the potential for terrorist attacks decreased? To what extent have we succeeded in bringing the so-called Muslim and Judeo-Christian worlds closer together, in sowing the seeds of understanding and hope?

Leadership and morality are indivisible. Good leaders are the custodians of morality. The question is not whether Saddam Hussein was good or bad or how many of his people he massacred. The point is that Mr Bush and Mr Blair should not have allowed themselves to stoop to his immoral level.

If it is acceptable for leaders to take drastic action on the basis of a lie, without an acknowledgement or an apology when they are found out, what should we teach our children?

My appeal to Mr Blair is not to talk about leadership, but to demonstrate it. You are a member of our family, God's family. You are made for goodness, for honesty, for morality, for love; so are our brothers and sisters in Iraq, in the US, in Syria, in Israel and Iran.

I did not deem it appropriate to have this discussion at the Discovery Invest Leadership Summit in Johannesburg last week. As the date drew nearer, I felt an increasingly profound sense of discomfort about attending a summit on "leadership" with Mr Blair. I extend my humblest and sincerest apologies to Discovery, the summit organisers, the speakers and delegates for the lateness of my decision not to attend

  SOURCE: The Observer, Sunday 2 September 2012

Monday, August 27, 2012

BY Ryan Scoville:
Category: International Law & Diplomacy, Public

For the past two months, Julian Assange has been staying at Ecuador’s embassy to the United Kingdom to avoid arrest in England, extradition to Sweden on sexual assault charges, and possible extradition from Sweden to the United States for charges connected with Wikileaks’ disclosure of State Department cables in 2010. The UK has demanded that Ecuador hand over Assange, but today Ecuador officially refused. In response, British officials have threatened to suspend the embassy’s diplomatic immunity so that they can enter the embassy grounds and make the arrest.

The dispute raises a question that Britain has encountered before. In 1984, during an anti-Gaddafi demonstration outside the Libyan embassy in London, someone inside the embassy shot and killed a British law enforcement officer who was policing the protest near the embassy grounds. The British government, however, had no legal means of arresting the shooter. The Vienna Convention on Diplomatic Relations had established that the premises of a diplomatic mission “shall be inviolable,” that “agents of [a] receiving State may not enter them, except with the consent of the head of the mission,” and that the premises “shall be immune from search . . . .” Libya, moreover, refused to allow entry and search. This dissatisfying result eventually led Parliament to pass a law called the Diplomatic and Consular Premises Act of 1987. The Act provides that embassy grounds are not to be regarded as a foreign state’s diplomatic premises unless accepted as such by the British Secretary of State, and that the Secretary can withdraw his acceptance if doing so “is permissible under international law.” The result of a withdrawal is that the land on which the embassy is located “ceases to be diplomatic or consular premises for the purposes of all enactments and rules of law,” including the robust immunity provisions of the Vienna Convention. The Act thus creates a way for the British government to circumvent the inviolability principle. If the law had been in place prior to the shooting in 1984, the thinking went, the government could have entered the Libyan embassy and arrested the shooter. Now British officials are relying on the law as the basis for their threat to enter Ecuador’s embassy and arrest Assange.

I see a potential difficulty with the threatened usage: It is unclear that withdrawing acceptance of the embassy premises would be compatible with international law in the circumstances, as the Act requires. First, the Vienna Convention strongly suggests that sending state conduct cannot justify the denial of premises immunity. The inviolability principle has no express exception other than the consent of the sending state itself. And although embassy personnel must “respect the laws and regulations of the receiving State” and not use the premises “in any manner incompatible with the functions of the mission,” nothing in the Convention provides that failure to honor such obligations entitles a receiving state to disregard inviolability. Indeed, the travaux preparatoires states that the failure to use embassy grounds for legitimate purposes “does not render . . . [the] inviolability of the mission premises . . . inoperative.” Even if one were to consider Ecuador’s conduct a fundamental breach of the Convention, the UK could sever diplomatic relations, but the Convention would still require the British government to “respect and protect the premises” of the Ecuadorean mission. Second, given that sending-state conduct cannot justify the denial of premises immunity, it is questionable that the British government can accomplish the same result by withdrawing its acceptance of the embassy grounds. The entry of premises rendered non-immune by the withdrawal of acceptance is in form different from entry into immune premises, but in effect indistinguishable. If governments can withdraw acceptance too easily, inviolability seems to lose much of its meaning.


SOURCE:
http://law.marquette.edu/facultyblog/2012/08/16/diplomatic-premises-immunity-in-the-case-of-julian-assange/