99 (guns) Bullets and One (bullet) Gun

“We have appealed to their native justice and magnanimity and we have conjured them by their ties of our common kindred to disavow these usurpations….They too have been deaf to the voice of justice and of consanguinity”

          United States of America Declaration of Independence, July 4th, 1776

 

By David Bryan

The author penned the framework of this article several months ago, at the time when the 9 church goers were tragically gunned down by their ‘killer’, who was embraced by his victims. Fate would have it, the contents still had the shelve life, since unfortunately there has been incident after incident relating to loss of life by guns in America. The most recent being the highly publicized event on national news; the two journalist fatally shot last week by an ex-employee.

This has pushed the gun debate into the news cycle for the time being- but before we go there- with respect to all victims of gun violence and without sounding cavalier, are we not hearing the same arguments for and against gun regulation when those 9 Christians being ‘gun downed’ in Church? How many murders or homicides have been committed between July 2015 and August 2015?

When the infamous picture of the killer was circulated of those parishioners 2 out of the three primary objects were aptly dealt with- the killer was arrested and secondly the confederate flag was taken down from the state capitol buildings after the rally cry of the people, the third is yet to be ‘dealt with’- the gun.

Understandably, the passionate plea from the father, of the television murdered victim stated in no uncertain terms; he will join the fight and become a “crusader” for stricter gun control. This entails taking on the National Rifle Association (NRA). A battle in which they have won time and time again, despite the pain, tragedy and loss of life inflicted upon the American people by their ‘products’.

By all accounts, even President Barack Obama, has repeated on numerous occasions the same call in the gun debate for Congress to enact gun control laws which put in place background checks and simple solutions which can make the difference between life and death.

In contrast, such musings have had the opposite effect. Recent surveys have shown, the more calls for gun control, the more guns are sold. Smith and Wesson have seen a 600 % increase of their revenue since 2008. The American love affair with their “right of the people to keep and bear arms” is ingrained in their psyche.

So something somewhere is wrong. How can literally thousands of people die without those who are duly elected unable to prevent ordinary citizens from being “deprived of life [and] liberty … without due process of law”? What would cause the representatives of the people to ‘push’ the NRA for gun regulation and appropriate legislation?

There is no doubt, the silence on gun control in the USA is broken, and the code of silence to remain silent by the politicians is over. The same legislatures and ‘the most powerful lobby in America’ must be held accountable for its products, in the same way the once juggernaut tobacco companies were linked to those consumers who developed cancer through smoking and died. The causation of the cigarette and its manufactures were inseparable. Warning labels had to be modified; advertisements were banned from certain electronic and print networks.

That is not to say that NRA is to be blamed for criminal activities involving gun crimes. Unfettered power left unchecked in the hands of a few can only result in the erosion of the rights of the majority. Congress was never meant to be the rubber stamp for the motives of “big money interest” The Declaration of Independence is the antithesis of all forms of oppression.

Even monopolies are subject to ant-trust legislation. The dominant US Steel, telephone companies, the barons of banking and finance from Carnegie to Morgan, were all subject to the laws of the land. This is what made America the envy of the developed nations-democracy dictated; it was and is the government who governs not special interest groups and multi-national corporations.

The Second Amendment is, of course, to be preserved, but it is also a duty, a right to preserve life, liberty and security of person- laws which are enacted to fulfill this singular obligation cannot be in conflict, but are in harmony with protecting the lives of American citizens against gun crimes.

Rational gun regulation must be in accord with cutting edge technology akin to terrorist who are ‘red flagged’ in airline databases. The various agencies need to be ‘talking to each other’. The FBI National Database on Background Checks is a good place to start. The denial of close to 700,000 applicants for guns after background checks cannot be understated. But more has to be done.

The current system is one-dimensional and does not solve situations where guns are already in the hands of potential accused. Instances were employers fire disgruntle employees and they run afoul of the law by seeking revenge, by threatening managers and ex-workers, as in the recent shooting of the journalist, should be reported in a national database.

Upon receiving information that such individuals have a gun, they should be made to hand it over to law enforcement officials and debarred from getting another. So too, mental health patients, certified by mental health professionals, domestic abuse cases, where crimes are committed in these cases by such persons and reported to the police.

Mandatory questions should now include whether the parties own and or have a licensed firearm; they should be made to turn it over or their gun license suspended automatically and entered in the national database until the all clear is given.

The approach to gun violence cannot be flippant; it has to be structured with broad bi-partisan appeal involving not excluding the NRA- as was the recent bill sponsored by Senate Majority Whip John Cornyn “striking a middle ground”.

It seems that the definition of gun violence in the USA is a misnomer – gun violence does not only mean death by guns -those fatally shot, it also must include all other forms of gun related criminal incidents. This would therefore enlarge the particular class of individuals affected by guns.

Even though this class may be considered a small minority in scheme of things, such persons still have a legitimate right to heard and the expectation that they would be treated “equally” before the law and by their political representatives. Anything outside of that can be described as “discrimination” or “segregation”- what this author terms “gun segregation”.

It can be argued that the federal government has directly and indirectly created a system whereby the political elite class and the NRA have caused the system to be skewed in favour of laws being enacted to facilitate the NRA to the detriment of those seeking to have gun regulation i.e. the victims of gun crimes.

Segregation in the South for education and transportation on buses were no different. The legacy of this type of gun divide is that the victims of gun violence are told go to the back of the bus, to be seen and not heard, to have a voice but not a vote. To the point that the NRA’s influence is so ‘influential’ that representatives refuse to act or speak out against a system which empowers gun manufacturers.

No doubt, this system has been established with the help of the NRA because of its size, money and power. But these actions are contrary to the law; in particular when a “State grants a particular class of persons the right to engage in an activity yet denies other individuals the same right it violates the equal protection right” afforded under the Constitution”.

“The Constitution states only one command twice. The 5th Amendment says to the Federal government that no one shall be “deprived of life, liberty or property without due process of law” The Fourteenth Amendment ratified in 1868 uses the same eleven words, called the Due Process Clause, to describe a legal obligation on all states. These words have as their central promise that all level of American government must operate within the law (“legality”) and provide fair procedures”.

“The Fourteenth Amendment is not by its terms applicable to the federal government. Actions by the federal government however classify individuals in a discriminatory manner will under similar circumstances; violate due process of the 5th Amendment.”

“If the courts stretched the Fourteenth Amendment “due process to apply to the Bill of Rights to the States they stretch the 5th Amendment, “due process” to require the Federal government to afford the Equal Protection of the laws. The Equal Protection Clause of the 14th Amendment forbids the States from establishing segregated schools or otherwise discriminating individuals against some of their citizens.”

So what the NRA and the duly elected representatives at the State and Federal level, have done or are doing by their action or inactions is to violate the “due process clause” and Equal Protection Clause in the Constitution respectively as it relates to government following fair procedure for gun advocates for gun victims and gun regulation.

“Citizens are entitled to have the government observe or offer fair procedure whether or not those procedures have been provided for in the law on the basis of which is citing. Actions denying the process that is “due” would be therefore unconstitutional”, especially in “light of demonstrable urgency for public action” –as in the cases of gun violence.

Finally, the argument of the continued in action at both government levels for gun regulation because of NRA’s ‘big money’, making “due process” and “fair procedure” for the victims in-accessible, creates a climate of unconstitutionality- is not far-fetched. Such indifference and “usurpations” were the principal reason why the Declaration of Independence was drafted against the backdrop of a colonial culture of segregation. Such a compelling case that there is a ‘segregated gun culture’ in the passing of laws in the USA is therefore not far removed.

 

 

 

Peace is Achievable in Yemen

The Houthis started the civil war in Yemen. They now have to share the responsibility in bringing it to a permanent end. It was the Houthis who overthrew the legitimate government of the day. It was the Houthis who “ousted” the ruling party and “seized” its capital under President Abd-Rabbu Mansour Hadi in “late 2014” sparking the civil war.

It is the Houthis and their leader who has supported the former President Al Abdullah Saleh in the path of restoring Saleh to office, who do not understand “government for and by the people”. It is clear; the Houthis do not understand that it is their actions which have led to the widespread conflict in Yemen.

What the Houthis must understand that the Arab coalition and the international community, who support Hadi in restoring him to govern the nation are doing so in the interest of democracy, Yemen’s people and their country.

The Houthis and former President Saleh must also clearly understand there is no shame or defeat in peace for the whole of Yemen. No one wins when; Yemen fights Yemen and ‘everyone’ is at risk of losing Yemen and or dying. Everyone wins when peace is victorious and brings reconciliation.

It is unavoidable, the coalition forces will eventually re-capture the cities held by the rebel forces including the capital, but at what cost? The life of every Yemen citizen is precious and must be preserved for the future in rebuilding the nation of Yemen, not loss in a senseless way which can be avoided.

The Houthis must enter into a cease-fire truce and begin peace negotiations in order to bring this conflict to a permanent end. The return to the UN brokered peace talks must be in the interest of Yemen and its people; so as to provide the forum for the full ventilation of all issues that are of legitimate concern to both sides of the conflict.

 

 

 

One Government for One People is the Answer

The only way, it appears that the international community vis-à-vis the UN, Arab league, AU, EU and the US will assist Libya in fighting IS, is that it will have to form one government for its people. To bring both the international recognized government and the Libya Dawn as one for the sake of Libya.

This is the proper way. One government for one people: to fight one common enemy. It is difficult to ask the international community to choose sides in a conflict, which might aid and assist the other directly and or indirectly.

The sooner and the faster both sides recognized national unity and peace is only road to deliver Libya back in the hands of Libyans, then almost all the outstanding issues between the warring factions can and will be resolved. After this, a stronger Libya, a united Libya will emerge too take back what rightfully belongs to the Libyan people: Their country.

Unlocking the Deadlock Between India and Pakistan: Not only Peace will Suffer but also the People.

The cancellation of the talks between the National Security Officials of India and Pakistan is a blow to the regional peace process. The reality is, if these two independent nations cannot agree simply on an agenda in the promotion and development of peace, how then they can conclude an agreement for peace and the settlement of all other outstanding issues.

It is written, he that is “faithful in a little” will be “faithful in a lot”. Both Sovereign states have to decide to put aside their differences and proceed to the negotiating table without pre-conditions.  The State’s responsibility is to the people, first and foremost. To avoid, important dialogue between Pakistan and India is a deviation of the duties and obligation to find lasting solutions for peace and the promotion of it including the enhancement of trade, safety and security of the region.

Agendas are mutually agreed before any proposed talks.  As was done in Ufa between Prime Minster Modi and Prime Minister Sharif respectively, which was as follows:

  1. Equally, discussions surrounding such fundamental topics as terrorism, border security, Kashmir, Sir Creek, at meeting in New Delhi between the two NSAs to discuss all issues connected to terrorism.
  2. Early meetings of DG BSF and DG Pakistan Rangers followed by that of DGMOs.
  3. Decision for release of fishermen in each other’s custody, along with their boats, within a period of 15 days.
  4. Mechanism for facilitating religious tourism.
  5. Both sides agreed to discuss ways and means to expedite the Mumbai case trial, including additional information like providing voice samples.

There is nothing set in stone, so as to amend, delete, and or approve any other relevant modalities including but not limited to the issues stipulated above as long as the parties have agreed. To cancel the proposed talks and to include pre-conditions and or to add or subtract other issues operated outside the parameters of negotiating in good faith; which is the hall mark of constructive negotiations.

The solution would have been to include any other significant issue and or topic, to be agreed upon for discussion at another scheduled meeting, after the resolution of the primary agenda issues. There is no sense leaping from issue to issue with- out any amicable resolution.

One can only strongly encourage both NSA advisers from Pakistan and India to seriously re-double their efforts in finding viable solutions for not only their governments but their people on the original agenda issues devoid of any pre-conditions as soon as reasonably practicable. Negotiations are always carried out in an open democratic process.

Subsequently, if an invited guest is welcomed in the host country for a summit, why would the host country seek to debar their invited guest from meeting with whom he or she pleases outside the summit? Especially in light off the fact such meetings are the norm in democratic societies and can only aid the guest attendance at the summit.

It is clear at some point, that this third party, being the Kashmir leaders need to, at some point in the future, meet with both leaders from the respective countries together: either at a meeting one on one, and or together or separately. The method is unimportant; the meeting is the significant feature to the bigger picture of peace.

Finally, there can be no good prevailing reason, why this meeting was cancelled and or postponed. This is the essence of mature countries; there are not only able to deal with the ‘easy’ issues, but are able to confront and eventually overcome the challenging and difficult obstacles that hinder the development of great nations.

 

 

 

 

The President of Burundi’s Third Term Election As President is Unconstitutional

In an earlier article on the Davidic House, it was submitted the third term election of President Pierre Nkurunziza was unconstitutional. Without being redundant, it is prudent to outline the reasons for this conclusion. From the outset, President Nkurunziza’s has stated the reason why he was allowed to run for a third term in 2015 under the constitution, after his five year term in 2010 came to an end, because in his first term in 2005, he “was elected by Parliament” and  not the people.

Out of his own mouth the elected President has impliedly admitted that his actions to contest the last election resulting in his being elected President are indeed unconstitutional. On the face of it, his argument appears logical but on closer scrutiny it does not hold water when it is read with the key document establishing the legal infrastructure of the post peace process; which ended the civil war between the warring factions in Burundi: the Arusha Peace Agreement.

The President’s comments are disingenuous and what his statements do not explain is the important question any constitutional student would ask; why was the President elected by the parliament and not directly by the people? Or put another way, what was the reason why the President did not face ‘universal adult suffrage’ in 2005 when he first came to power? In seeking the answers of these questions; the issue to be resolved would be: Can the first term of the President duly elected by Parliament be counted as one term; and secondly, whether therefore this first term is counted as one term; as such is his term in 2010 deemed as his second term?

2005 Parliamentary Election

The 2005 Parliamentary elections were held to ‘elect’ the post-transition President whose predecessor was the Transition President simply because the drafted Constitution was not in force. So the framers devised a plan or interim solution to elect the President being Nkurunziza (the post transition President) under the Constitution once it became in force or became legally binding.

This interim ‘solution’ and or the time between the signing of the peace agreement and the proclamation of the Burundi Constitution was governed by the Transition President. This Arusha Agreement provided the body for which and how the transition of power was to take place and vested in Burundi. The Transition President under the said Arusha Agreement transitioned the country as the new ‘body’ to the next phase in the countries life as a Constitutional Government. The Constitution once ratified after the election of the first President i.e. the post Transition President; its Executive members gave breath to the new body of the Republic of Burundi.

So in effect, this new body now needed a new head in 2005. President Nkurunziza came to power therefore under the terms of the Arusha Agreement by being ‘elected’ by two-thirds majority of the members of Parliament and not by ‘election of universal adult suffrage as enunciated under Article 96 of the Burundi Constitution; because as stated previously, the Constitution was not in force or proclaimed.

2005 as One Term

The genius of the Arusha Agreement was that it made provision and expressly stated that the ‘election’ of the first term of the Post Transition President, even though elected by 2/3 majority of the Parliament was to be treated as his first term, even though the President was not elected by the people or direct universal adult suffrage.

This was critical, since the drafters of the Arusha Agreement and the Constitution foresaw the exact mischief which President Nkurunziza is creating by saying he was not elected by the people in his first term.

Now, Parliament having passed and being made into law the Constitution after the election of the Post Transition President states in Article 96 that the President of the Republic of Burundi is to be elected by universal adult suffrage with ‘one term renewable’. So that, the Post Transition President’s first term in 2005 is treated as his first term i.e. one term.

Mr. Nkurunziza was re-elected in 2010; another –one term: the math’s is unchanged. One plus one is two. One term in 2005; and one term in 2010. The President’s argument, his first term started in 2010 fails. His brazen attempt to seek re-election for a third term is unconstitutional from the circumstances.

The Constitutional Court’s Decision

The embattled President sought to legitimize and validate his attempt to run as President by seeking refuge in the Constitutional Court of Burundi.

The Vice-President Justice Sylvere Nimpagariste of the Constitutional Court comments is indeed instructive and persuasive. The self-exiled jurist lamented that on April 30th 2015 all the justices of the Court had decided the President was barred from running as President for a third term. But as a result of direct threats to their lives they changed their decisions in favour of the President to run for a third term.

The excellent article written by Dr.Kabumba, a constitutional law expert: ‘Did the Constitutional Court Misinterpret Burundi’s Constitution’ from the East African website is instrumental in the present arguments. Dr. Kabumba’s conclusion must be supported that the reasoning of the Constitutional Court is “illogical” and it departs from sound constitutional jurisprudence.

It is difficult to doubt the veracity of an imminent jurist, who risk his life by not signing the decision of the six other judges supporting the President and consequently leaving his country and career behind as Vice-President of the Court.

This decision rendered by the Constitutional Court of Burundi in any event was delivered, as all evidence appear and gives the presumption, it was decided under duress. Such a decision cannot stand in light of the extenuating circumstances and must be vacated by rendering it null and void. The President’s tenure is therefore unconstitutional under section 96 of the Constitution.

Presidential Abuse of Power

It is the people and the duly elected officials who have the rare opportunity to change the course of their countries history by strictly observing the rule of law, good governance and transparency in the affairs of the Burundi government.

Under section 116 of the Constitution of Burundi, the President of the Republic maybe ‘declared relieved of his functions for grave fault, grave abuse, corruption, by resolution by two-third majority of the National assembly and the Senate meeting together’. The Parliament of Burundi can decide together to lawfully remove the President as of their democratic right and not allow the President’s unlawful right to rule as a third term President.

The quote by Goodluck Jonathan former President can be aptly applied to Burundi; he said

“As I have always affirmed nobody’s ambition is worth the blood of any Nigerian [Burundian]. The unity, stability and progress of our dear country is more important than anybody else [President Nkurunziza].

The nation of Burundi must shun bloodletting that made it descended into the dark horrors of civil war which plagued Burundi society a little over 10 years ago. The selfish ambitions of one man cannot be the justification for the destruction of peace of an entire country and its people again.

 

 

 

 

 

 

North and South Korea Must Break from the Past- Escalate Peace!

By David Bryan

“There is no present or future, only the past happening over and over again, now”

 Eugene O’Neil

The current escalation of tensions between North and South Korea is deep-seated in a long history of conflict. If there is ever a classic case to show how easy it is tensions between two rival countries can escalate into the brink of war, this is an example. But in the modern era, under the leadership of South Korea’s President Park Geun-hye and North Korea’s Kim Jong Un this is the opportune time to break from the past.

What is needed is effective dialogue among the leaders of both countries to de-escalate this situation immediately.  Provocation has never solved problems. It is easier to pull a trigger than to sit down and talk -it is time the Korean peninsula show the world this is a false premise and they can enjoy cordial relations by improving on all aspects of their relationships. What is needed is for both nations to open the channels of communications in order to launch an initiative of lasting peace.

Let calm heads prevail. It is difficult to provide the evidence on which party is at fault; whether the land mines were planted by the North Korean army or were these the remnants of past wars and whether the broadcast by South Korea can be deemed an act of aggression towards North Korea vice versa.

It is also difficult to state that the current military exercises involving the South Korean army and the USA can deemed an act of aggression towards North Korea if this is the norm; since most countries through- out the world hold annual and joint military exercises. Can it be said then, with the same reasoning put forward by the President of North Korea, that the current military exercise involving China and Russia an act of aggression towards European countries?

All nations have the sovereign right to engage in such military programs within their territorial boundaries.

It serves no one, especially the Korean peoples, to have both nations intensify their grievances which can really be solved amicably without the gun. As there are no casualties, let this trend continue by entering into meaningful dialogue aided by UN mediators or other approved appointees.

 

 

 

Fighting Terrorism requires Temperance: Fighting Unlawful Detention Requires a Remedy

By David Bryan

Administrative Detention

It is easy to immerse oneself in the emotion of the ‘war against terrorism’, but at all times one has to be objective and not subjective of the facts of each particular set of circumstances.

It must be remembered, ‘ the war on terror’ is a metaphor- there is no war on any nation, country or kingdom- there is a war against individuals and persons who engage in acts of terror.

State power in this fight against terrorism must be balanced with judicial discretion. Those who swore oaths to maintain and uphold the law should not break the law in form or substance. The standard is higher for those legislative representatives operating in the judicial and legal sphere.

The comments, therefore, made by Israel’s Public Security Minister Gilad Erad on his Facebook page need special mention given the exacerbating condition of the Palestine, Mohammed Allan, who is on a hunger strike.

The ‘Islamic Jihadist’ principal reason for his hunger strike is to protest his ‘detention without trial’. Mr. Erad stated;

“I’m against the release of this terrorist. His release will be a prize for his hunger strike and may encourage other security prisoners to launch hunger strikes as well if they learn the State of Israel can be blackmailed. Fighting terrorism requires determination not compromise.”

It is trite law that every person is innocent until proven guilty. Has Mr. Allan been charged to determine whether he is indeed a ‘terrorist’? Is the law of Israel, deem a person is guilty until proven innocent? I think not.

Leadership is not cultivated in popular decisions-unpopular decisions are part of leadership. Right decisions may be unpopular-but they are right.The war on terror is not fought in State jails. The rights of citizens is to be protected by the State from terror.

However, a prisoner on hunger strike is not trying to ‘blackmail’ the State of Israel. A prisoner on hunger strike is trying to obtain justice. A prisoner on hunger strike, who is not charge for any crime, is fighting for the ‘prize’ of his life.

A prisoner on hunger strike is far from being interested in encouraging other ‘security prisoners’ to launch other hunger strikes. He is interested in being heard – a natural justice right- and not being ignored by the State until he is in a near death situation. A prisoner on hunger strike does not need permission to go on hunger strike.

When a prisoner strikes from food- one should listen to their grievances- not treat their actions as adverse. ‘Just law’ has to be tempered with compassion and grace. Rights of individuals- even those branded ‘terrorist’ cannot be non-existent because they are captured.

A Public Security Minister’s comments do more damage to the process by making such statements. These comments are not who Israel is or represents. This is not the Israelis than we have come to know and respect. All prisoners have the right to a fair trial and due process- to deny these basic rights- is an injustice and unconstitutional.

Nations cannot hold prisoners of ‘war’ after the ‘war’ and detain them, having laid no charges- this is unlawful. Equally no country should suffer the indignity of having its citizens detain unlawfully without formal charges being laid; as was done in the ‘prisoner of war’ camps. Israel is better than this.

It is not good enough to hide behind the wall of National Security thereby denying the rights and freedoms of individuals. Even the then Nazi army’s SS soldiers were exposed and lawfully charged for their crimes against humanity.

If there is indeed ‘grave evidence of terrorism’ held by the State, then proceed to charge them forthwith and hold their trials in camera and or transfer them to another facility pending the outcome of their trial. If, on the other hand there is no compelling reason to continue to imprison these persons then they must be released and or be deported.

The State balancing act is a thin one, but it cannot over-reach the principles enshrined in democratic societies. The pillars of democracy are established on the foundation of truth, equality, justice, fairness, freedom and righteousness.

State power cannot be used to withhold the rule of law against any ‘person of terrorist interest’ fundamental rights and freedoms under the Constitution.

Article 8 of the Universal Declaration of Human Rights emphatically states “everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted by the constitution or by law”.

Article 9 adumbrates “no one shall be subjected to arbitrary arrest,detention or exile and Article 10 enunciates ” everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him”.

Administrative Detention has its role in the true fight against terrorism and terrorist only as far as those said persons of terrorist interest are formally charged. However, to unilaterally and arbitrarily detain persons without charging them in prisons such as Guantanamo run against the grain of justice, fairness and due process. To continue to unlawfully detain them is cruel and inhumane.

Force-Feeding

The State has a responsibility to ensure the care of those persons within its mandate, including those within the prison system. It is difficult, to allow a person to slowing inflict the pain of death upon themselves and idly watch. Hunger strikes are sensitive or delicate situations.

Again, for the State to do nothing is painful. To save a life is not. The legal justification for force-feeding has many significant ramifications outside the scope of this article, that are better suited for judicial intervention.

But, suffice to say, to ask a medical professional to go against the ethics of his profession is unlawful. A law impinging an  unethical act is ultra vires. Consenting health professional are the ones who must administer the legal dose of medicine for the hunger strike victims.

The old adage that “prevention is better than the cure” is applicable in these circumstances, so that a remedy must be sought before the hunger striker reaches the point of having to be force fed.