At his best, man is the noblest of all animals; separated from law and justice, he is the worst.
Let the Law Prevail
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At his best, man is the noblest of all animals; separated from law and justice, he is the worst.
102 REASONS WHY ARTICLE 102(B) SHOULD NOT BE REPEALED FROM THE 1995 CONSTITUTION OF THE REPUBLIC OF UGANDA
By Lawyers Andrew Karamagi and Jacqueline Asiimwe
1. Uganda should let the 1995 Constitution’s safeguards for transition be tested.
2. The Constitution of Uganda should be a durable document.
3. Job security and tenure of public officials cannot be guaranteed under life presidency.
4. Uganda should establish a culture of constitutional rule by following the established rules.
5. The National Resistance Movement has potential leaders who can replace Y.K. Museveni.
6. Article 102(b) is the last existing safeguard that will ensure peaceful transition.
7. Museveni’s life presidency will exacerbate the simmering ethnic animosity in Uganda.
8. The amendment will impede generational transition in other spheres of Ugandan life.
9. Mr. Museveni’s legacy and positive achievements need to be secured and protected.
10. Amending Article 102(b) will stifle the independence of the judiciary as an institution.
11. The legalization of life presidency will require increased levels of coercion to enforce.
12. A free and independent media cannot thrive under unrestrained Executive tenure.
13. Businesses will operate in an even more constrained environment under a life president.
14. The employment structure within civil service will increasingly become top-heavy.
15. Under life presidency, patronage will become more entrenched rather than the exception.
16. If amended, long-term civil servants will have less incentive to be accountable to the public.
17. The proposal violates Uganda’s duties in the African Charter on Human & People’s Rights.
18. The proposed amendment is a threat to Uganda’s image as a bastion of regional stability.
19. “…if you want very active leaders, it is good to have the ones below 75.” Y. K. Museveni.
20. The proposed amendment will be a reversal of the democratic progress Uganda has made.
21. The amendment will dislocate the Constitution’s foundation of checks and balances.
22. The amendment, if enacted, will worsen elections-related apathy and despondency.
23. The amendment offends Uganda’s obligations under the United Nations Charter.
24. The proposed amendment is inconsistent with the democratic vision of the NDP II 2040.
25. Amending the Constitution would degrade the trust that Ugandans have in Parliament.
26. The proposed amendment violates the reasons advanced by Legal Notice No. 1 of 1986.
27. The partisan tendencies/perceptions of public institutions will be mitigated by transition.
28. The amendment doesn’t augur well with Mr. Y.K. Museveni’s promises to retire in 2006.
29. The amendment will degrade decency in and further commercialize electoral politics.
30. The amendment will further impede the realization of the objectives of multi-partyism.
31. We can as a country begin to respect the Rule of Law in observance rather than in violation.
32. Article 102(b) offers the NRM an opportunity to lead Uganda through peaceful transition.
33. Mr. Museveni can take the honour of being Uganda’s first resident former president.
34. Peaceful transition will lay the foundation for national reconciliation and truth-telling.
35. The amendment will exclude, rather than include more Ugandans from national leadership.
36. Peaceful transition will restore plummeting investor confidence and ratings in Uganda.
37. Religious institutions have warned against the proposed amendment, citing valid reasons.
38. In a region suffering civil strife, a politically uncertain Uganda doesn’t help matters.
39. Politics should not be seen as a do-or-die-affair—retirement should be encouraged.
40. The proposed amendment does not augur well with the promises of NRM’s 2016 Manifesto.
41. Peaceful transition will facilitate the realization of much-needed electoral reforms.
42. The domestic business community will be worst hit in the event of a upshot of civil strife.
43. The danger of personalizing the UPDF and other armed forces will be averted by transition.
44. Uganda should wean herself off reliance on donor assistance by building her democracy.
45. Uganda’s leadership should retire and pass over knowledge through writing and teaching.
46. The older generation needs to bequeath a better country to the younger generation.
47. A refugee crisis precipitated by civil strife in Uganda would upset the Great Lakes Region.
48. As a UN member, Uganda should uphold shared minimum democratic values.
49. The amendment does not augur well with Mr. Y.K. Museveni’s 1986 inaugural speech.
50. It is not safe for an individual to be the singular centre of power.
51. As a leader in peace-keeping and support operations, Uganda should uphold democracy.
52. Uganda’s wealth of jurisprudence risks being distorted by neo-patrimonial rule.
53. The proposed amendment places Uganda’s land question into danger.
54. The amendment if successful will embolden and fuel dictatorial tendencies across the world.
55. Academic freedom cannot thrive under life presidency.
56. The removal of the age limit will pave way for the total criminalization of dissent.
57. Under a life presidency, discussion about services becomes a luxury not an inalienable right.
58. As an outcome of regime longevity, arms proliferation and violent crime increases.
59. The removal of the age limit will threaten whatever there is that is left of public institutions.
60. The amendment will be synonymous with the personalization of the State of Uganda.
61. Amending Article 102 will be an indictment on NRM’s leadership development abilities.
62. Removing the age limit will jeopardize ongoing regional diplomacy for regional stability.
63. Amending Article 102 places the pressing issue of historical injustices into abeyance.
64. The amendment stands to derail all efforts at a National Dialogue for Peaceful Transition.
65. The amendment is a threat to the growth and development of the petroleum sector.
66. Amending the Article will entrench negative notions that others have about Uganda.
67. Article 102(b) is a crucial building block for institutionalized democracy in Uganda.
68. Uganda should maintain Article 102 because it creates political certainty and predictability.
69. It is not fitting to taint Gen. Museveni’s legacy in the same light as his predecessors.
70. The proposed amendment does not add positively to our democratic trajectory as a country.
71. The proposed amendment is an affront to the obligations of Uganda under the IGAD Treaty.
72. The proposed amendment is contravention of the NRM’s founding Ten Point Programme.
73. The proposed amendment will fundamentally alter the democratic spirit of the Constitution.
74. “The vigour is not as much after 75 years of age.” Y. K. Museveni.
75. As a notion, geism against Uganda’s youthful population will be fueled by the amendment.
76. The costs of patronage will increase and worsen the burden on the taxpayer.
77. If amended, the likelihood of recourse to violence to settle political questions is higher.
78. It is advisable that Uganda’s pool of leadership talent isn’t suffocated by life presidency.
79. The proposed amendment is a threat to Uganda’s image as a tourist destination.
80. Article 102 is a safeguard for creating and expanding civic and political space.
81. Article 102 needs to be respected so as to bolster into its fledgling multiparty dispensation.
82. Amending Article 102 contravenes our governance commitments under the EAC Protocol.
83. Uganda needs to develop and pursue a fresh and less-confrontational foreign policy.
84. ‘Districtization’ will continue and further divide Uganda along ethnicities.
85. Amending Article 102(b) will militate against the doctrine of Separation of Powers.
86. Under a fresh Administration, it will be easier to crackdown on corruption and impunity.
87. A new set of leaders will infuse fresh energy and ideas into the Ugandan polity.
88. Peaceful transition will improve Uganda’s position as a viable investment destination.
89. The Old Guard needs to be retired in a dignified rather than violent fashion.
90. Uganda should stop being the odd-man-out in the region on matters of peaceful transition.
91. Uganda needs a rejuvenated vision of the future that incorporates the digital revolution.
92. Peaceful transition from one leader to another will open a new page in Uganda’s politics.
93. It is in the NRM’s interest to secure its legacy and ensure that it outlives its Founders.
94. Institutional independence will be threatened by the legalization of life presidency.
95. The amendment will be wastage of the findings of the Odoki Constitutional Commission.
96. Uganda’s youthful population cannot be led and planned for by septua- and octogenarians.
97. Absence of limits to incumbency and power erodes institutional independence.
98. The Constitution of Uganda should not be amended for the benefit of an individual.
99. “The problem of Africa is leaders who want to overstay in power.” Y.K. Museveni.
100. Uganda should end the 54 year old spell of violent political transitions.
101. The legalization of life presidency is antithetical to the Rule of Law.
102. Uganda is a constitutional democracy, not a monarchy.
The letter of the law versus the spirit of the law best explain's what Most African leaders have continously ignored while interpreting the Constitution. When one obeys the letter of the law but not the spirit, one is obeying the literal interpretation of the words (the "letter") of the law, but not necessarily the intent of those who wrote the law. Conversely, when one obeys the spirit of the law but not the letter, one is doing what the authors of the law intended, though not necessarily adhering to the literal wording. Thanks to leaders who appreciate the spirit of the law. .
A Great piece from Lawyer Andrew Karamagi .
HERE IS WHY I AM NOT GOING TO DIAL *197*2 #: SIM CARD RE-REGISTRATION IS UNLAWFUL.
Gentlemen Tumwebaze and Otunnu, I have read your most arrogant and infantile responses to the well-thought, measured and clear statement that was issued by Uganda Law Society regarding the SIM Card Re-registration stampede you have caused countrywide.
From the outset, I must note that for a very long time now, it feels burdensome being a Ugandan. Many times I wonder whether you people in those positions of power are Ugandans or are sober when you take most decisions—right from the appointing authority down to the regime’s sycophants and stooges who have distinguished themselves in pulling off scandals, one after another, while the sails of impunity move faster than the wheels of justice.
For the reader who may not have seen the responses of both men who are fed, clothed, housed and transported by we taxpayers, I will take the liberty to reproduce the statements they made as captured by the Saturday Monitor newspaper at page 4:
“The Commission is unbothered by ULS’s views. That is their opinion and we have our won. Our directives and deadline stand.” Fred Otunnu, Corporate Affairs Director at Uganda Communications Commission (UCC).
“The overriding principle is to deny criminals an opportunity to use SIM Cards for their criminal work. If ULS has some advice to give to UCC that will improve the outcome, they are welcome but they should not stand in the way of this noble exercise.” Frank Tumwebaze, Minister, Information and Communication Technologies.
Here are five reasons why I think you both must be joking!
i) The “National ID” is an inferior document (to the passport for example) and is not the only proof of identity and does not override other valid (and superior) forms of identification:
It is apparent to me that many of you people who purport to be in charge of the public affairs of this country are actually clueless about the very policies, the resultant laws and regulations that govern your institutions and jobs.
If only you had taken time to address your minds to the 1995 Constitution of the Republic, the Registration of Persons Act, 2015; the Interception of Communications Instrument No., 42 of 2011, you would not have sounded as ignorant as you did when you dismissed the Law Society’s instructive position on this matter.
Section 55 of the Registration of Persons Act, 2015, stipulates that to be registered, one is required to furnish any of the following: a birth certificate, where applicable, a voter’s card, a driving permit, a passport or a baptismal certificate. In law, this means that a National ID is issued on the strength of the source documents listed under Section 55.
The National ID is not a source document. To simplify the point by borrowing from biology, the National ID is a sterile male, has no womb and as such cannot give birth. Birth Certificates, Voter’s Cards, Driving Permits, Passports or Baptismal Certificates are fertile female documents upon whose presentation the National ID is given or issued. You cannot present a National ID and get a passport. But once you present any of the “female” documents I have listed, you will receive a National ID. The National ID is in that regard of less weight than the other documents which require a more elaborate process before being obtained. Anyone with a passport knows how elaborate the process of obtaining one is.
In the same vein, Regulation 7(3) of the Interception of Communications Instrument No. 42 of 2011 enacts to the effect that identity documents such as passports, work permits, student IDs and voter’s cards suffice to prove an individual’s identity and cannot be trumped by the national ID, a document of less weight. Your directive is therefore manifestly unlawful and does not make sense.
Begs the question: Tumwebaze and Otunnu, why are you disturbing Ugandans and other phone users? If someone already registered their SIM Card(s) under the initial registration process, moreover using valid and legally protected forms of identification, why are you hinging the validity of their registration on an inferior document, to the extent of not only insulting those who are offering differing opinions to your own but also threatening to take them off-air?
Are you alive to the fact that your directive amounts to re-registration and is not registration? Which law allows you to conduct re-registration?
ii) Can we entrust our (bio-, meta- and other) private data to foreign, private and poorly regulated telecom companies?
The impugned directive that you have issued exhibits a total disregard of the potential intrusions into the privacy of the very personal information of Ugandans. By requiring we citizens to hand over vital information to private players, we are in many ways handing over significant chunks of our citizenship to them.
It is a known fact that the vast majority of the telecommunications companies operating in Uganda are subsidiaries of foreign (and multinational) conglomerates. These stateless, faceless and in many ways untouchable corporations have distinguished themselves in misusing private information in various countries ranging from unsolicited adverts and ‘information’ through to outright criminal activity—often with impunity.
Their biggest priority is the profit margin, not privacy or other rights. Who knows that they wouldn’t engage in any dubious deal-making with customer information? Have you Tumwebaze or Otunnu heard about something called identity theft?
This is worse in a country like Uganda where the telecom companies are stronger than the regulator, Uganda Communications Commission which can only bark and issue a press statement whenever Ugandans complain about the indiscretions of these companies. For a long time while Ugandans complained about unsolicited messages, political campaign jingles and commercial adverts of all sorts, the Commission was impotent and all its warnings were shrugged off and laughed at by the powerful telecoms which knew that no punitive action could be done to them. It took a near riot at one of the meetings between subscribers and telecoms for the point to be driven home. Matters are not helped by the fact that Uganda suffers nearly irreparable institutional breakdown.
Who knows how Corporation X will use my information for nefarious purposes? With Ugandans’ personal information in the hands of private companies, how can we guarantee the digital and other security of people in sensitive positions like Judges, Intelligence Officers, Commanders of the Armed Forces, Heads of Public Offices and Departments, Business Executives, Political Party Leaders or those who simply want to live a quiet and undisturbed life?
What happens if some brilliant kid at Makerere or any other University hacks the database of one of these companies? Or worse, Al Shabab? Or what happens if an errant employee sells this information to unscrupulous persons or entities?
Do you know what the spirit of our Data Protection Bill, 2015, is? It seeks, when enacted to protect subscribers from unsolicited content or the harvesting and distribution of their user preferences, locations, habits and related information from various online entities. Are you aware that several of fellow members of the Commonwealth, for instance the United Kingdom have made the effort to enact data protection laws which emphasise the centrality of the subscriber’s consent in all aspects of communication?
Why must Uganda be the odd-man-out when other societies are progressing towards a more enlightened fashion of regulating telecommunications thanks to your obsession with arbitrariness? Are you alive to the possibility that the disconnection of phone lines can amount to a deprivation of the constitutional rights to expression, association, economic rights and academic freedom?
Please save me that empty talk about how you are going to pass a law which will govern the telecom companies on how to use this information. If Uganda implemented half of the policies and laws that have been passed over the past decade alone, we would be a glistening first world economy! Last I checked, corruption is not legal, but going by daily news headlines whether on electronic or print media, one would be forgiven for thinking that corruption is legal in Uganda. So much for impotent laws like the Anti Corruption Act, Anti-Money Laundering Act, Leadership Code Act and paper tigers like the Inspectorate of Government, the Anti-Corruption Division of the High Court, Economic Monitoring Unit at State House and all the other statutory and institutional frameworks that have been established only to cause an exponential increase in the theft of public funds.
The loss of privacy is immeasurable and cannot be undone. Going by your history, your knee-jerk reaction in the event of a privacy violation would be to institute yet another useless Commission of Inquiry!
This directive runs afoul of the Constitution which expressly and unequivocally protects the right to privacy for all Ugandan citizens. Your directive is, to this extent, a brazen affront to the 1995 Constitution. Ugandans should not hand over their private information to Airtel, MTN or any other telecom!
iii) How practical is your illegal directive?
Let us assume for a moment that the re-registration stampede you’ve ordered is founded in law. For a population of over thirty five million, with only four million two hundred thousand National IDs collected—notwithstanding printing errors and double issuances, how are you going to re-register twenty two million phone users in the period you have provided? Are you sober?
I needed some money over the long weekend but the neighbourhood ATM wasn’t online and so I walked to a nearby Mobile Money outlet to draw some. While waiting to be served, I overheard the desperation with which an old lady narrated her fears of having her phone disconnected…she had walked for up to an hour but could not find help to have her SIM Card re-registered as ordered by you the high and mighty of Uganda; her dusty feet were proof of the walking she had endured in vain. This mother and senior citizen of the nation I am sure is not alone in her predicament. I wonder what is happening in the far-flung parts of the country if people in the capital Kampala are struggling this hard.
Secondly on this point of practicality, and given the fact that 78% of Ugandans are below thirty years of age, half of whom are below the age of fifteen, what remedy do you have for the millions of Ugandans who are between the ages of 13 and 17, own SIM Cards registered in their names and were not able to be registered for National IDs but possess valid Identity Documents such as birth certificates, passports or student IDs—all of which are protected by Registration of Persons Act, 2015 as competent identification documents? How about Ugandans who study, work or live outside the country but registered their SIM Cards already? Are you going to buy them air tickets before 20th April so that they come home and re-register? Are prisoners going to be disconnected by reason of their incarceration?
iv) The Prospects of Protracted, Multiple and Costly Litigation:
Your manifestly illegal directive is potentially the subject of protracted, multiple and costly litigation which will only exacerbate the backlog that our Judiciary is laboring under and further mete out collective punishment on we taxpayers when litigants are awarded—as they surely will be—damages for the inconvenience your arbitrary directive is going to cause if implemented. From subscribers’ Mobile Money balances, to loss of business by individuals and companies and the attendant inconveniences, many aggrieved persons will seek recourse to civil litigation which can be avoided if you swallow your pride and heed to the law. Our judicial officials need to be allowed space and time to handle more important issues and not these potential outcomes of your disregard for settled law.
v) What was the purpose of the initial registration process?
My fifth and final reservation regarding SIM Card re-registration revolves around the fact that most phone users, as an advent of Mobile Money services, are registered and their identity information is readily available. Statistics indicate that there are way more Mobile Money transactions than bank transactions on a daily basis. In fact, banks have been wary of the in-roads that telecoms have made into the financial services sector and have been playing catch-up but with little success. This volume of transactions via the phone cannot be done without clear identification—it means that the majority of phones in Uganda are registered.
This leaves me wondering why the Communications Commission doesn’t use that already existing information to streamline the identity information and then pursue those particular phone lines which are completely unregistered.
It brings me to Gen Kale Kayihura who jointly addressed a press conference on this matter and hinted on the recent murder of AIGP Andrew Felix Kaweesi as one of the major reasons for this re-registration. If the allegations that the assassins used unregistered phone lines to coordinate the murder are true, the correct person to punish for this is not all Ugandans—it is the phone company to whom the SIM Cards in question belong.
UCC should not blame or punish Ugandans for its failure to do its job. If UCC takes punitive action against the telecoms which allowed unregistered phone lines to be in use, long after the initial registration deadline lapsed, that would be a clear statement of intent to crackdown on sophisticated and violent crime. Telecoms must stop allowing their retail agents on the streets who sell SIM Cards without proper registration of subscribers.
To stampede Ugandans into re-registration when there are SIM Cards being sold on the open market without following the due registration processes is an exercise in futility only comparable to a fool’s errand.
I will end on a note of suspicion: Issue No. 456 (February 10-16, 2017) of The Independent news magazine featured a lead story wherein it was reported that Members of Parliament on the Defence and Internal Affairs Committee stumbled upon five hundred billion shillings that had been dubiously allotted to the Defence Budget for purposes of procuring spying equipment and sophisticated eavesdropping software.
It seems to me that this illegal operation has hit a technical snag that can only be resolved by forcing Ugandans to re-register using National IDs so as to enable the regime to spy without restrictions both on its own and those who hold alternative views. I am fortified in my suspicion by the fact that no other possible explanation for this re-registration exercise makes sense. The only other possibility is that this is yet another financial scam from which greedy public officials with the collusion of telecoms are somehow seeking to make a quick buck.
In the absence of clear explanations, we citizens can only speculate.
For the reasons I have given in the foregoing, come hell or high waters, I am not going to abide by your unlawful directive.
Many public officials such as yourselves do not fear public interest litigation because government is sued and ordered to pay for the indiscretions of people like you, further burdening the innocent taxpayer. I am not going to target the Attorney General in pursuit of recourse—I am going to seek remedies through Court from you Tumwebaze and Otunnu, in your individual capacities should you go ahead with this illegal directive.
Like millions of other Ugandans, I am sick, tired and fed-up of being misgoverned and under-served by a regime whose central obsession everyday is how to constrict the rights of citizens and extort the very last coin out of them in the form of prohibitive taxes, market dues, charges and pointless exercises such as this SIM Card re-registration.
Think about the inevitable post-Museveni era and where you will live having committed all these injustices against us. You are neither the first and nor will you be the last to occupy those offices. Stand warned!
A good legal education should not just train lawyers to interpret and apply the law. It should actually teach them to question the laws. To CHALLENGE unjust laws. Because even the most unjust of men will try to hide their unjust actions behind a semblance of legality. They clothe injustice in unjust laws and perpetuate their unjust will and deeds in the name of the law. Thus apartheid was legal in South Africa as was Hitler's Germany. Therefore it shouldn't be for us lawyers to say, 'but that is what the law says.' That should be left to police officers; the faint-hearted ones actually, because courageous ones shouldn't enforce unjust laws, unjust justice. Any legal education that doesn't sharpen intellectual reasoning, logic, analysis, synthesis and argument is worse than no legal education at all . Thanks
America’s trial lawyer for over 50 years GERRY PENCE has a writing style that sweeps you off your feet. From ‘Win Your Case,’ he writes, “When I walk into a court room I see the judge for who he is----an ordinary man with extraordinary power. But he is my judge and he belongs to me-----to serve my case, my cause, with sound and just rulings. I give him the presumption of decency but should he stray from this role and become one of those tyrants, who sits up there like a maddened emperor, I may disrobe him, without his clothing he is a disgusting sort. His skin is usually too white, bleached like a daisy that has been smothered under the manure pile. He will wear funny little pink pajamas tonight at bedtime, with patterns of little jumping teddy bears, and he’ll make some excuse to his wife for his bedtime failure who if truth were known is only pleased that he has consigned himself to his own bedside. I don’t create such a vision of the man out of disrespect for his office but I have no intention of respecting an office held by a man who disrespects justice, seeing him as he most likely is permits me to know my power. It belongs to me and I don’t intend to deliver it to him---- which doesn’t mean I shall disobey his orders, display my contempt or otherwise misconduct myself. There is a profound difference between respecting a judge’s rulings and enduing the unjust ones.”
Okiriata & Co. Advocates. updated their website address.
Whether fact or literary fiction, my mind tells me the author of the following piece made a fine use of the alphabet.lets always appreciate facts while in court. Thanks
“Counsel, I was not impressed by your conduct today. And it’s not that I have a personal issue with you. Any sane adult will make just the very same observations.
Look, I have been in the legal profession for three decades now; ten years in private practice and twenty years as a judge. Never, in my professional life, have I ever seen an advocate make such careless comments as you did today.
I know you have won a few cases and perhaps made a few millions of money, but c’mon, this is not the right place to demonstrate either how much you hate the opposing counsel or how little you think he knows. I was shocked when I heard you refer to him as ‘an engineer of fabrications’ and his witness ‘a man intoxicated with fermented soup’.
I did not believe that was happening in my court. My nerves are yet to calm down. When I saw you rubbing your lips against each other and twisting your mouth like a cow chewing cud, I did not know you were lubricating your throat so the rough words could come out with little resistance.
From your hairstyle to the perfume you are wearing, I can tell you were admitted to the bar recently. Complaints have been made in all corners of the profession about young advocates behaving as if the world rotates on their feet, but I have never imagined a real case would unfold before my eyes.
Did you notice wrinkles of anger tearing the lotion I applied on my face? You didn’t. Did you realize your client, who was probably in court for the first time, looking utterly shocked and perhaps cursing the day he came across your beautifully designed business card? Again, I bet you didn’t because from the look of things you are yet to gather the mature pieces of your life to form a responsible advocate.
I called you to my chambers not because I am a coward who could not reprimand you in public but because I care about your career. I did not want to warn you in front of your client lest you lose the lucrative briefs – current and potential. I just wanted to correct you in private. I don’t believe in writing people’s folly in the skies for the entire world to read. We are not fighting over rain. Let’s leave that to the idle angels of death.
And look at your dress code! Nothing about the colour, but the flamboyance. There is a yellow lapel flower on your coat and a pocket square the colour of the very many political parties in Kenya combined. Last time I checked they specified colours to wear to court. My mind tells me this extends to colours of boutonnieres. In a nutshell, the law does not give you carte blanche to dress as you please.
I am annoyed that an advocate can walk into this sacred room looking like he is going for a wedding or a date. Do you know what your wardrobe did to my already damaged Monday mood? You transported me back to the littered museum of my past. I broke up with a man who loved to dress that way. And I need not be reminded of him.
You must either drop this showiness next time you appear before me or wrestle the fangs of the law. I am that petty.”
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