Battling over Human Rights : Twenty Essays on Law, Politics and Governance [1 ed.] 9789956762156, 9789956762620

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IN

LAW, POLITICS AND GOVERNANCE. WHILE OFFERING BROAD NEW THEORETICAL INSIGHTS ON THE

PLACE OF HUMAN RIGHTS AT THE INTERNATIONAL AND REGIONAL LEVELS, ITS GREATEST STRENGTH IS TO DEMONSTRATE HOW THE ULTIMATE POINT AT WHICH SUCH RIGHTS SHOULD RESONATE IS THE LOCAL.”

DR. WILLY MUTUNGA, CHIEF JUSTICE AND PRESIDENT OF THE SUPREME COURT OF KENYA “MANY IN ACADEMICS EXCEL BECAUSE OF NARROWING DOWN THEIR AREAS OF SPECIALISATION. THIS IS NOT THE CASE WITH BATTLING OVER HUMAN RIGHTS. THE TWENTY ESSAYS IN THE BOOK MOVE FROM THE GENERAL TO THE PARTICULAR ADDRESSING A WIDE RANGE OF CURRENT HUMAN RIGHTS ISSUES AND STRUGGLES.

UNDERPINNED BY THOROUGH RESEARCH, OLOKA-ONYANGO HAS DONE AMPLE THIS BOOK IS ESSENTIAL READING FOR THE POLITICIAN, AS WELL AS FOR ACADEMICS AND STUDENTS OF LAW, POLITICAL SCIENCE, PUBLIC ADMINISTRATION AND DEVELOPMENT STUDIES. IT IS ALSO A MUST READ FOR THE COMMON MWANANCHI!” CHRIS MAINA PETER, PROFESSOR OF LAW UNIVERSITY OF DAR ES SALAAM AND MEMBER, UNITED NATIONS INTERNATIONAL LAW COMMISSION (ILC) JUSTICE TO THE ISSUES HE SET OUT TO WRITE ON OVER THE YEARS.

“IN THIS BOOK, OLOKA-ONYANGO DEALS WITH WHAT CAN MEANINGFULLY BE DEFINED AS THE POLITICIZATION OF HUMAN RIGHTS AT VARIOUS LEVELS, NAMELY, THE INTERNATIONAL, THE REGIONAL AND THE DOMESTIC.

WHO IS KEY IN FOSTERING HUMAN RIGHTS TRANSFORMATION, THE PEOPLES THE ESSAYS DEMONSTRATE THAT IT IS NOT ONLY INDIVIDUAL PERSONS WHO CAN BE OPPRESSED BUT ALSO NATION STATES AND EVEN REGIONAL BODIES, DEPENDING ON WHERE THEY ARE PLACED WITHIN THE INTERNATIONAL GEO-POLITICAL ORDER. ALTHOUGH THE ISSUES HANDLED IN EACH ESSAY ARE DIFFERENT, THEY ARE ALL BOUND BY THE SAME CRITICAL QUESTION: ARE HUMAN RIGHTS CONCEPTS UNIVERSALLY UNDERSTOOD AND APPLIED?” PROFESSOR LILLIAN TIBATEMWA-EKIRIKUBINZA, JUSTICE OF THE COURT OF APPEAL, UGANDA AFFECTED OR OUTSIDERS?

J. OLOKA-ONYANGO is a Professor of International Human Rights and Constitutional Law based at the School of Law, Makerere University, Uganda. For several years he directed the Human Rights & Peace Centre (HURIPEC) and served as Dean of Law. Langaa Research & Publishing Common Initiative Group P.O. Box 902 Mankon Bamenda North West Region Cameroon

J. Oloka-Onyango

This book brings together twenty think-pieces on contemporary Human Rights issues at the international, regional and national level by one of Africa’s foremost scholars of International Human Rights and Constitutional Law, J. Oloka-Onyango. Ranging from the ‘Arab Spring’ to the Right to Education, the collection is both an in-depth analysis of discrete topics as well as a critical reflection on the state of human rights around the world today. Taking up issues such as the African reaction to the International Criminal Court (ICC), the question of truth and reconciliation before the outbreak of post-election violence in Kenya and the links between globalization and racism, the book is a tour de force of issues that are both unique as well as pertinent to human rights struggles around the world.

BATTLING OVER HUMAN RIGHTS Twenty Essays on Law, Politics and Governance J. Oloka-Onyango

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PROVIDING CRITICAL INSIGHTS INTO NUMEROUS CONTEMPORARY ISSUES THAT ARE OF MAJOR CONCERN

BATTLING OVER HUMAN RIGHTS Twenty Essays on Law, Politics and Governance

“BATTLING OVER HUMAN RIGHTS BY ONE OF AFRICA’S MOST DISTINGUISHED SCHOLARS IS AN

INTELLECTUAL MASTERWORK THAT TRAVERSES THE WHOLE ARENA OF RIGHTS DISCOURSE AND PRAXIS,

Oloka-Onyango, J.. Battling over Human Rights : Twenty Essays on Law, Politics and Governance, Langaa RPCIG, 2015.

Battling over Human Rights: Twenty Essays on Law, Politics and Governance

Copyright © 2015. Langaa RPCIG. All rights reserved.

J. Oloka-Onyango

Langaa Research & Publishing CIG Mankon, Bamenda

Oloka-Onyango, J.. Battling over Human Rights : Twenty Essays on Law, Politics and Governance, Langaa RPCIG, 2015.

Publisher: Langaa RPCIG Langaa Research & Publishing Common Initiative Group P.O. Box 902 Mankon Bamenda North West Region Cameroon [email protected] www.langaa-rpcig.net

Distributed in and outside N. America by African Books Collective [email protected] www.africanbookscollective.com

ISBN: 9956-762-62-8 © J. Oloka-Onyango 2015

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All rights reserved. No part of this book may be reproduced or transmitted in any form or by any means, mechanical or electronic, including photocopying and recording, or be stored in any information storage or retrieval system, without written permission from the publisher.

DISCLAIMER All views expressed in this publication are those of the author and do not necessarily reflect the views of Langaa RPCIG.

Oloka-Onyango, J.. Battling over Human Rights : Twenty Essays on Law, Politics and Governance, Langaa RPCIG, 2015.

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To the three most important women in my life, Sylvia, LKO and Maama Eva .

Oloka-Onyango, J.. Battling over Human Rights : Twenty Essays on Law, Politics and Governance, Langaa RPCIG, 2015.

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Table of Contents

List of Tables……………………………………………… vii Overview……………………………………………………ix Acknowledgements……………………………………….. xi

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Part One: Theoretical Approaches To Global Issues………………………………………………………. 1 1. Behind and Beyond the ‘Arab Spring’: History, Philosophy and Politics in Contemporary Human Rights Struggles…………………………………………………… 3 2. Clipping the Wings of the International Criminal Court (ICC): Assessing African Responses to Contemporary International Justice………………………………………… 25 3. On Race, Development, Responsibility to Protect (R2P) and the ICC………………………………………………….37 4. From Classroom to Praxis: The Role of the Legal Academic in the Public Arena…………….………………… 47 5. The International Jim Crow: Globalization, Poverty and Contemporary Expressions of Racial Discrimination…………………………………………..….. 55 Part Two: Addressing Regional Questions……………… 95 6. Truth and Reconciliation Commissions: Assessing the African Experience…………………………...…..................... 97 7. Towards a pan-East African Citizenship and Identity: A Bird’s Eye View……………………………………..….… 107 8. Who Owns the East African Community?.............................. 151 9. From the Outside Looking In: Unleashing the Skeletons of Truth, Justice and Reconciliation in Kenya…………........... 169 Part Three: Excavating the Domestic Ugandan Scene…………………………………………...……............ 199 10. The Implications of the White Paper on Political Transition in Uganda………………………………................. 201 11. Multiplying the ‘jiggers’ in the Feet of Officialdom: v

Oloka-Onyango, J.. Battling over Human Rights : Twenty Essays on Law, Politics and Governance, Langaa RPCIG, 2015.

Reflections on the Challenges Facing Civil Society in a Multiparty Dispensation…………………………………….. 233 12. The Rights of Elderly Persons………………………........ 243 13. Uganda Today: What Needs Undoing?.................................. 281 14. Police Powers, Politics and Democratic Governance in post-Movement Uganda…………………………………….. 291 15. ‘We are more than just our bodies’: Notes on the Case of Young Women-who-have-sex-with-women in an Age of HIV/AIDS and Homophobia………………………………. 347 16. Every Child has a Right to succeed … But do we let them?............................................................................................. 411 17. Constitucide: On the Birth and Death of Democratic Constitutionalism in Uganda………………………………... 433 18. The Asian Question and Lessons of Law, Policy and Politics in the post-Repossession Era: The Larger Picture……………………………………………………..... 451 19. Towards a New Kind of Politics and Constitutionalism in (B)uganda: Reflections on the Next Two Decades……....... 459 20. Of Mice and Farmer’s Wives: Unveiling the Broader Picture behind Recent Legislation in Uganda…………............ 473

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Bibliography………………………………………………. 483

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List of Tables

6.1: Truth and Reconciliation Commissions (1974-2002)……. 99 14.1: The Nine Principles of Policing……………………….. 297 14.2: Inspectors-General and Commissioners of Police of Uganda (1959-2011)…………………...……………………. 325 14.3: Comparative Breakdown of UHRC Complaints (2008—2010)………………………………………………...337 16.1: Number of Primary Schools (2002-2011)……………… 417 17.1: Supreme Court Decision in the 2006 Presidential Election Petition……………………………..……….……... 439

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17.2: Qualitative versus Quantitative Definitions of the Word ‘Substantial………………………………..………….. 441

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Overview

The twenty essays brought together in this collection consist of various kinds of reflections over a period spanning a little over ten years. They largely rrepresent the author’s preoccupation with matters of International, Regional and Domestic Human Rights and their link to the socioeconomic and political context within which such rights are supposed to be realized. In other words, they are an exploration of the choppy waters in which these seemingly wellgrounded rights battle to stay afloat. Some of the essays were written as keynote public lectures at which the author sought to expound on broad principles of the theory and concept of Human Rights. Others were highly empirical analyses that drew on primary research data in order to investigate a specific problem facing a discrete group of individuals or a particularly challenging phenomenon that had arisen to test the application of theory. The style in which they were written thus depends very much on the kind of audience that was being addressed, the place at which the lecture was being delivered or submitted and the wider context within which the event in question was happening. All of them represent an ongoing struggle to find an appropriate balance between fostering more respect and adherence to the corpus of human rights law as we know it, while also warning against an uncritical embrace of a phenomenon that is plagued by many tensions and contradictions. Each essay tackles an area of concern and attention on the table of intellectual, policy and activist debate in Africa and around the world. Although the Arab Spring may have transitioned into a rather cold and extended winter, the questions of democratization, inclusion and accountability that were hot on the table in the summer of 2011 still remain of maximum concern today. Human Rights within the East African Community is an area that is growing in scope and attention as each of the institutions which were created to execute its mandate confront new dimensions of the link between regional integration and respect of fundamental human rights. And the International Criminal Court (ICC) remains ix

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embroiled in one major question: why Africa? Even though the debate over globalization has in some respects retreated from the academic arena there are still dimensions—such as its links to racism and poverty—that merit a second look. With respect to the case of Uganda, questions relating to the promotion, protection and implementation of Human Rights may mutate and change, but at base the concern remains with questions of Governance, resistance and the rights of discrete social and sexual minorities. Also of concern is the place of civil society within the vortex of the struggle for the realization and enforcement of human rights and how Law continues to be an instrument of both oppression and of liberation. Questions of focus, strategy and impact in each of the different subject areas tackled remain the subject of ongoing debate. Ultimately, these essays demonstrate that as we progress further into the 21st Century, the battle over Human Rights ideals and their implementation will continue to be one of the most engaging, albeit controversial questions of our age.

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J. Oloka-Onyango Kampala, May, 2015

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Acknowledgements

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Numerous individuals and organizations have provided research and intellectual support and succour to enable the writing of these essays. The Human Rights and Peace Centre (HURIPEC) at Makerere University and the Centre for Basic Research (CBR) in Kampala provided institutional homes for the honing of my investigatory and writing skills and the provision of the relevant raw material to set the conceptual framing for the work. Students and colleagues at various universities, think tanks and civil society bodies around the world have given me a place to muse and to force myself to ask more questions than to satisfy myself that I have discovered the answers. The Stellenbosch Institute for Advanced Studies (STIAS) provided a serene and monastic atmosphere in which to complete the book. Special mention needs to be made of Sylvia Tamale—my partner in life and in love—as well as my several research assistants over the years, including Rose Ssengendo, Jacqueline Tumusiime, James Muhindo, Daniel Ngabirano, Monica Godiva Akullo and Rose Karoro. Without them, this book would never have seen the light of day. I end with thanks to Francis Nyamnjoh, Roselyne Jua and all the other people at Langaa Publishing who helped to make this publication a reality.

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Part I

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Theoretical Approaches to Global Issues

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Behind And Beyond The ‘Arab Spring’: History, Philosophy and Politics in Contemporary Human Rights Struggles 1 I was very reluctant to come to Oxford this year. The reasons were both personal and political. I first taught on this course in 2006. And on each of the four subsequent years that I came back, I felt that it was a great learning experience. But in 2010 I decided to give it a break and said farewell to all the friends I had made here over the years, and told them I was never coming back. I was suffering from burnout and lethargy; I hadn’t taken a full holiday in all the years I had been here and felt that I was registering (and delivering) diminishing marginal returns. Issues on the political front were only marginally better, whether in my own country Uganda, or in the world at large. I felt that Human Rights had taken a serious beating, that the forces of scepticism had finally triumphed and that the Human Rights Movement was in general terminal decline. From being a human rights disciple, I felt acutely like a human rights hasbeen. But for those of you who know that force of nature called Professor Elizabeth Griffin, it was impossible for me to say ‘No’ to coming back this summer when she asked me to last year. However, right from the time I accepted the invitation to return, I wondered what I would say, especially since Liz insisted I give the keynote address. And then the winds changed course in 2011, opening with the January 18 ‘Jasmine Revolution’ or ‘Tunisami’ in Tunisia and continuing with the meteoric changes that infected Cairo’s Tahrir Square in Egypt, and which are continuing to be felt all over Africa and the Middle East (in at least 16 countries) even as we speak. These developments or uprisings are what are now referred to in the popular media as the ‘Arab Spring.’ As I watched these developments rage around the world, I felt I had got back my 1

Plenary Lecture presented at the University of Oxford, England, July 19,

2011.

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groove. Even though we are only halfway through the year, 2011 is being compared to 1989—with the fall of the Iron Curtain in Eastern Europe—and other history-defining moments in the story of contemporary human rights. Thus, as we begin examining the place of history, philosophy and politics in contemporary human rights struggles, my lecture this morning is entitled ‘Behind and Beyond the Arab Spring.’ It is a reflection on both how far the idea of human rights has come, where the idea came from and how it has developed until the point we have arrived at today. Being back at Oxford this year causes me to reflect on three seminal events—aside from the Arab Spring—that have taken place in 2011 and which relate intimately to my life of activism, teaching and personal well-being as a person who claims to be a human rights scholar. They also go to the core of the key issues that I feel lie at the foundation of our understanding of how Human Rights operate in the 21st Century. The first of these took place in Geneva barely a month ago today, on June 17, 2011 when the United Nations Human Rights Council (HRC) took an historic vote. The issue at stake was that of Sexual Orientation and Gender Identity (‘SOGI.’) The resolution called for a study of the laws and practices of violence against LGBTI persons and how International Human Rights Law can be used to end such violence. It also called for the convening of a panel to discuss the issue at the 19th session of the HRC. These undertakings may appear rather modest, but the vote was historic because it was the very first time that the question of sexual orientation and gender identity was adopted in a formal UN resolution. Brazil’s 2004 attempt was blocked, and as recently as November, 2010, the General Assembly had successfully voted out the words ‘Sexual Orientation and Gender Identity’ from a report by the Special Rapporteur on Extrajudicial, Summary and Arbitrary Executions. The June Resolution was also historic for being sponsored and introduced by South Africa, the only African country that dared to stand up and be counted. The Resolution reinforced the idea that human rights are not only about majority interests, but that they are more acutely about minority autonomy and protection. 4

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The second event I would like to recall is the recent nomination and vetting of the well-respected lawyer, academic and long-time human rights advocate, Dr. Willy Mutunga as Chief Justice of Kenya. Willy’s nomination drew considerable ire and resistance, especially from religious groups and conservative movements in the country. They were appalled that Willy wore an ear stud, that he was going through his second divorce and that as Resident Representative of the Ford Foundation in Nairobi he had supported the rights of Lesbian, Gay, Bisexual, Transgendered and Intersexed (LGBTI) people and sex workers. They asked him—at a minimum—to remove his earring before they could support his candidacy. In response, Willy asked: “Which is prettier, my earring or the colonial wig and gown that judges are forced to wear?” He declared that he would much rather continue to proudly wear his earring than become Chief Justice. Mutunga was also asked whether he was gay. “I am not,” he replied, but “I’m not a homophobe either.” He also pledged to treat all people who came to his court with the equality and dignity they deserved: “I don’t pick and choose whose rights I defend,” he asserted. The remarkable thing about what I call the ‘Mutunga circus’ was not so much about how coolly Willy acted under pressure. Rather it was the response of the Kenyan people—Kenyans of all ages and classes—who in forum after forum on radio talk shows and in blogs and tweets consistently expressed their support for him. In the face of powerfully conservative forces, Willy survived the process by successfully juggling through the hoops of scrutiny, hostility and innuendo. On June 16, Kenyan and other activists around the region celebrated Willy Mutunga’s swearing-in as Kenya’s new Chief Justice by wearing t-shirts emblazoned with the statement: “Willy is our stud!” My final event involves both joy and pain in equal measure. On January 4 this year, I was at the High Court in Uganda when Justice Kibuka Musoke ruled that a newspaper called Rolling Stone had invaded the privacy of several gay rights activists by publishing an issue outing a number of them under the headline: ‘Hang Them!’ Among the plaintiffs in the case was prominent Gay rights activist, David Kato. The judge not only declared that homosexuality as such is not a crime under Ugandan law—rather it is very specific 5

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acts of a sexual nature such as sodomy—but also that Media freedoms could not be abused in the name of exposing alleged homosexuals to abuse, blackmail and victimization. The case was a major landmark in the struggle to end discrimination against LGBTI people in Uganda. However, barely three weeks later, David was found murdered in his house, a possible victim of a hate crime. The death galvanized the human rights community in Uganda in a manner that no other event could possibly have done, demonstrating how much the element of sacrifice is a crucial one in all human rights struggles. David Kato’s death was a poignant reminder of how so often the struggle for human rights consists of one step forward and very many steps back. You may have noticed that all three events I have recounted have one thing in common, that is the issue of non-conforming sexualities or resistance to sexual domination and exploitation. Or to put it another way, it is the quest for Sexuality Rights. To me, this encounter is of particular significance currently because it represents one of the last frontiers in the struggle for full equality and the realization of human rights for all, a struggle which began centuries ago. In all parts of the world that struggle is ongoing, extensive and sometimes vicious. It is testimony to the resilience and currency of the idea of human rights that they remain at the forefront of most contemporary political, economic and social struggles in the world. But where exactly did that struggle begin and how has it evolved over time? More importantly, what are the philosophical, conceptual and structural questions that frame the phenomenon we know as Human Rights? To answer these questions I would like to focus on the following: the history and philosophy of the idea of Human Rights; the structures and organization of the contemporary human rights corpus and finally, to consider the main challenges that the idea of human rights confronts in the early 21st century. In addressing those challenges I will focus on what I call the ‘other story.’

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The Human Rights Idea: Historical and Philosophical Roots Although there is a great deal of academic debate about the meaning of human rights, (and separately of the meaning of the two words ‘human’ and ‘rights’) I prefer the most simple rendering of the term: human rights are claims or entitlements that belong to human beings by virtue of their humanity; not on account of grace, benevolence or generosity. They entail a minimum level of respect for the physical, mental and social welfare of the human being, and they are intended to guarantee that all human persons live a life of full dignity, equality and non-discrimination. Others have described human rights as certain things that ought never to be done to people (as individuals or groups) by the state or by non-state actors (e.g. torture, discrimination, or censorship) or things that people must be permitted to freely do (e.g. to speak, marry, move and assemble or associate) with few restrictions, if any. Human Rights are also variously referred to as: Freedom or Autonomy Rights; Food or Bread Rights, and Collective or Group Rights (such as the right to culture, religion, and peace, for example). In this respect, human rights have been pooled into generations, with civil and political rights as the first; economic, social and cultural rights as the second and group or collective rights as the third; this is a framework that has largely been discredited for reasons that will become apparent later in my lecture. Human rights are also referred to as ‘Stay-off’ (restraint-onpower) or ‘Give-them’ (Affirmative Action) rights, which apply in the particular case of groups or individuals who are recognized as vulnerable and powerless or historically marginalized. Alternatively, human rights are defined as a legal process that sets definite limits on the exercise of political power; or as political or socioeconomic entitlements translated into the language of the law. In this sense, we talk of ‘Human Rights Law,’ representing the conversion of the various attributes which make up human rights into positive law, e.g. Bills of Rights, a Constitution or an International Treaty. Where there are rights, there are correlative duties, mainly on the part of the State. Over the course of time, we have seen the evolution of five core duties, including the duty to recognize, respect, protect, fulfil and promote. These are obligations that cut 7

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across all categories of rights, but which can also be applied to individuals, and to groups or collectivities, such as the family, schools, health care providers, corporations and the community at large. Whichever way human rights are described, their rendition today reflects the diverse philosophical influences that have informed their growth and development. Natural Law theorists such as John Locke (the so-called ‘father of liberalism’), Voltaire and Rousseau argued that rights were given by God, while Thomas Hobbes suggested the existence of a hypothetical social contract between rulers and the ruled, an idea which was reinforced over time by Thomas Paine, John Stuart Mill and Hegel. Positivists gave vent to the idea that rights must be rendered in legal form in order to be binding. Critics of the idea have provided some cause for caution, with Bentham describing rights as ‘nonsense on stilts,’ while Marx dismissed them simply as bourgeois entitlements. African scholars like Issa Shivji and Makau Mutua have critiqued its Eurocentric roots and contemporary manifestations, as well as the missionary-like conceptualization in which Human Rights Advocates often appear to be stuck, especially when transposed across borders and cultures. While human rights might appear to be self-evident, as a matter of fact, they have never been taken for granted. Ultimately they are the product of political, social, cultural and economic struggle. In fact, the whole concept of human rights emerged as a subversive idea in International Law because it challenged the basic foundations and the core organizing principle on which International Law is built, viz., state sovereignty. This principle— which was first articulated by the Peace of Westphalia in 1648— stated that political entities conferred with the title of states were to enjoy exclusive sovereignty over their lands, people, and agents both at home and abroad. Oppenheim defined International Law as a law governing relations among states, exclusively. Defining International Law in this way meant that individuals and other non-state actors or entities could not be the subjects of International Law. Instead, Oppenheim and other writers at the start of the 20th Century classified individuals only as potential objects of International Law. States were perceived as hermetically 8

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sealed, and only interstate relations deemed proper matters for International regulation. In other words, the business of International Law was the business of states; it was not the business of individuals, and what states did to their individual citizens was their exclusive business. Hence the idea of non-intervention as the corollary to state sovereignty: ‘Don’t scratch my back and I’ll stay off yours!’ But what we celebrate as Human Rights did not emerge solely from the ideas of philosophers or the benevolence of states. Rather, it also owes its origins and growth to parallel developments in International Law, politics and the economy that have taken place since the 18th century. Among those developments are the following: The Anti-Slavery Movement The Laws of War International Criminal Law The Rights of Minorities International Labour Law, and Anti-colonial struggles (dating back to the American War of Independence, but more prominently with the liberation of India in 1947 and the rapid process of decolonization which followed in dozens of countries around the world). I would like to briefly recount how each of these forces have intimately shaped the defining characteristics of human rights as we know them today.

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The Anti-Slavery Movement Slavery was regarded as the ‘natural’ order of things by some and simply as a trade in commodities by others. But despite having been in existence for centuries, the movement against slavery only began modestly in 1787 in the United Kingdom. And it took nearly 100 years for that movement to register its first legal success which ironically came with the Treaty of Berlin of 1885, when European states affirmed that trading in slaves (but not slavery itself) was a violation of Customary International Law. In 1926 the Slavery Convention which was adopted under the League of Nations finally made slavery a violation of International Law and called upon states 9

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to work towards its abolition. The struggle against slavery laid the foundations for the principles that inform many of our contemporary human rights treaties today.

The Laws of War War among states is as old as the formation of states. However, during the late 19th and early 20th centuries, the growing destructiveness and cost of modern warfare led states to codify basic customary legal norms governing the conduct of states during war. More humane impulses emerged from these conflicts, the first of these being the Lieber Code of 1863, which came out of the American Civil War and is recognized as the first successful attempt to codify the existing laws and customs of war. In Europe, the International Committee of the Red Cross (ICRC) was instrumental in pushing for the adoption of the 1864 Geneva Convention regulating the treatment of wounded armed forces and the 1899 Hague Convention on the laws of war. The 1907 Hague Convention codified what could and could not be done during war, e.g. the prohibition of the killing of civilians and non-combatants. International Humanitarian Law and Human Rights Law have a very close relationship.

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International Criminal Law Related to the Laws of War as a precursor to IHRL is International Criminal Law or ‘ICL.’ This branch of International Law was fully embodied in the establishment of the tribunals at Nuremberg and Tokyo in the aftermath of the 2nd World War, the attempts following World War I (such as the trial of Kaiser Wilhelm II of Germany) having aborted. Nuremberg and Tokyo set out the basic typology of international crimes that formed the kernel of what we today call ICL, viz., i) War Crimes; ii) Crimes Against Humanity, and iii) Aggression against the Peace, i.e. starting war and invading another country’s territory. The trials firmly established the point that individuals could be tried and held accountable for their misdeeds during war; that the defendants should have minimum due process, and that such trials should be undertaken by the ‘international community’ as a whole. 10

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T he Rights of Minorities One of the main products of the 1919 Treaty of Versailles and the other World War I peace treaties which followed was that they established the League of Nations—the doomed precursor to the United Nations. Central to Versailles and the other World War I peace treaties was the development of the regime of law mandating that defeated powers provide basic rights and protections to minorities living within their borders. For example, the 1923 Treaty of Peace with Turkey provided for the full protection of life and liberty, religious freedom, and freedom of movement to all its inhabitants regardless of national, linguistic, racial or religious background. Although the League of Nations did not survive the political vagaries of the time, many of the principles embodied in the treaties which were passed during its watch have endured for a long time thereafter.

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Labour Law Throughout history, workers have attempted to pursue their interests at the workplace, with some of the earliest recorded uprisings demanding better wages and working conditions taking place during the Peasant’s Revolt in the Middles Ages in England. Gains were first made in relation to child labour in 1833 and eventually with the establishment of legally-recognized trade unions. The International Labour Organization was formed in 1919 as part of the League of Nations to protect worker’s rights. The ILO later became incorporated into the United Nations, and has provided many declarations and conventions—the latest being that on domestic workers this year—which have shaped and improved the global and national treatment of labour. The labour movement demonstrates that economic, social and cultural rights have been an early issue of major concern to human rights activists and practitioners and a direct challenge to the hierarchal generations theory of Human Rights.

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Constitutionalizing Human Rights: The International Bill of Rights and its Progeny The shock of the Second World War led very quickly to the realization that it was no longer appropriate or possible to leave the business of protecting human rights to the sovereign state alone. In other words, what a country chose to do to its own citizens could no longer be considered a matter of internal domestic concern. Linked to this were of course the outrages committed in the name of National Socialism and fascism in the Axis countries and the havoc wreaked to peace and economic development by the ravages of war. Hence the evolution of the idea of the United Nations conceived at Yalta in the Ukraine at the end of the war in 1945 and translated into a permanent international institution later the same year. The United Nations Charter was primarily a document about international peace and security as well as economic development, but it incorporated several provisions relating to the promotion and protection of human rights, bringing together the two dimensions of human security and individual well-being for the first time in an integrated and purposive system. The intricate architecture of this global institution (namely, the Charter and Treaty bodies) has come to play an extensive role in the implementation, monitoring and enforcement of the human rights regime over the past 65 years. What is described by scholars as the ‘constitutional moment’ in International Human Rights Law came with the passing of the Universal Declaration of Human Rights (UDHR) in 1948, which proclaimed a ‘universal standard of respect for all individuals.’ Its legal pedigree is retraceable to instruments such as the British Magna Carta of 1215 and the British Bill of Rights of 1689; the French Declaration of the Rights of Man and of the Citizen of 1789, the Code Napoleon of 1804, and the US Bill of Rights. As a matter of historical accuracy, the constitutional moment for human rights did not actually start with the UDHR because two days before the UDHR was adopted on December 10, 1948, the United Nations adopted the Genocide Convention, an instrument that took nearly fifty years before a prosecution was brought under it, in the International Criminal Tribunal for Rwanda (ICTR) case of Jean Paul Akayesu—reflecting the absence of an enforcement 12

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mechanism written into the treaty. The third instrument which made up the trio of early adoptions of international human rights law was the 1951 Convention Relating to the Status of Refugees. What did the UDHR do, and why is it regarded as so important in the story of international human rights? By the simple act of proclaiming human rights as ‘universal,’ it marked the beginning of the end of the Oppenheim view of International Law, i.e. that state’s enjoy absolute sovereignty under International Law and individuals are merely the objects of the regime. The UDHR also brought together broad, general rights, rights of all categories (civil, political, economic, social, cultural and group) and it covered all persons, whatever their individual characteristics. It was written in simple, broad and inclusive language, a striking statement against tyranny and oppression, a beacon of hope for both oppressed minorities and suppressed majorities, and encompassing the key elements in global humanity, struggle and dignity. Today there is no country in the world that does not ascribe to the UDHR as the main human rights instrument. In fact, the Declaration has become so widely accepted that it is argued by many scholars and activists to have become part of Customary International Law or jus cogens. But that is not to say the UDHR was without problems. First of all, it clearly garnered more support from Western countries than from elsewhere. Although there were no votes against it, of the 48 countries that voted on the document, 40 voted in favour, while there were 8 abstentions including all the members of what was then the Soviet Bloc (Byelorussia, Czechoslovakia, Poland, Ukraine, USSR), as well as Yugoslavia, South Africa and Saudi Arabia. There were only three African countries among the 40, the rest still being colonies. Ironically, the three main powers of the time each had serious human rights skeletons in their own cupboards—the United Kingdom and France as colonial powers and the United States with institutionalized racism. Although the UDHR covered both categories of rights, it laid a greater emphasis on civil and political rights, with 20 of the substantive provisions dealing with this category, while only eight covered economic, social and cultural rights. A single article was devoted to the issue of duties, while the final article of the document was a general prohibition against the destruction of the 13

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rights in the Declaration. All these limitations in the instrument have generated considerable debate about the meaning of ‘universality,’ the phenomenon of cultural relativism, and the extent to which religious, moral and socioeconomic factors were the real driving forces behind the instrument. An additional problem was that the UDHR was simply a Declaration, i.e. a statement or proclamation, which (although made by states) is a non-binding instrument that differs from a Convention, a Charter or a Protocol that will normally have both obligatory provisions, as well as an accompanying mechanism for the enforcement of those provisions. Efforts thus began almost immediately to move to an enforceable international instrument, which would make a reality of the lofty proclamations in the UDHR. But why did it take so long to get an enforceable instrument? The answer lies in Real politik: First of all, Cold War tensions between the countries of the Western and Eastern blocs projected human rights to be an overtly political tool in the struggle for global dominance around the world. Secondly, ideological divisions over the categorization and definition of rights stymied attempts to secure a consolidated mechanism of enforcement. The Western bloc argued that the only real rights were civil and political, while Eastern bloc countries countered with the argument that economic, social and cultural rights were more fundamental; a classic chicken and egg argument. Finally, the issue of self-determination—especially of the many countries that were still colonies—stopped much forward movement to an enforceable international instrument until there was a critical mass of newly-independent countries from the socalled ‘Third World’ to get the necessary numbers to push through to binding instruments. Thus it took 18 long years after the UDHR for the international community to finally agree to have not one, but two covenants that would translate the goals of the declaration into enforceable rights. Hence the 1966 promulgation of the International Covenant on Civil & Political Rights (ICCPR) and the International Covenant on Economic, Social & Cultural Rights (ICESCR), which together with the UDHR have come to be known as the ‘International Bill of Rights.’ The division between the two covenants (and the absence 14

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of an individual complaints mechanism for the ICESCR until only recently) reflected an unfortunate privileging of civil and political rights, a problem that we still confront today. Since the adoption of these two instruments, there has been a proliferation of instruments at the international level. The core of the system is made up of seven treaties categorized by particular types of wrongs or violations, on the one hand, or by identity, i.e. a particular class or category of people, on the other, or by a combination of the two. These treaties cover Racial Discrimination, Women, Torture, Children, Migrant workers, Enforced Disappearances and Persons with Disabilities (PWDs). There are also two declarations on Minorities and Indigenous Persons, which still belong in the category of ‘Soft Law.’ All the treaties are in general characterized by a Committee system, with reporting (by States) and Individual petitions (by persons affected by violations) as the main mechanism through which the rights being covered are enforced. The international treaty system is an important avenue for addressing violations because it can often influence local events. Treaty bodies such as those which supervise the implementation of legal instruments such as the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW), the Convention against Torture (CAT) and the Convention on the Rights of the Child (CRC) have had a tremendous influence in forcing states to alter their domestic legal regimes to conform with international standards. In 2006, the United Nations introduced what is called the Universal Periodic Review (UPR) as an attempt to complement/plug-in the perceived loopholes in the charter and treaty-body systems. In addition there are numerous other universal instruments, including principles, guidelines, standard rules and recommendations which while having no binding legal effect, have an undeniable moral force and provide practical guidance to States in their conduct. International human rights law has also found domestic expression. At the present time, we have three regional systems, namely the European, the Inter-American and the African. The first regional instrument was the American Declaration of the Rights 15

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and Duties of Man, which predated the UDHR by six months (April, 1948). It was followed by the European Convention on Human Rights (formally the Convention for the Protection of Human Rights and Fundamental Freedoms), which was drafted in 1950 and came into force in 1953, and finally you have the African Charter on Human & Peoples’ Rights, which was adopted in 1981, but had been on the drawing boards since 1960. While Asia does not have a binding continent-wide legal instrument like its counterparts, recent developments in the Association of South East Asian Nations (ASEAN) grouping give some hope that at least part of the continent will soon have a functioning regional human rights mechanism. Finally, the Council of the League of Arab States has the 2004 Arab Charter on Human Rights, which has been in force since March 15, 2008, but does not appear to have fully gotten off the ground. The Organization of Islamic Conference (OIC) adopted the Cairo Declaration on Human Rights in Islam in 1990, but this is of a declamatory nature only. A whole range of human rights work and standard setting also takes place in World Conferences, both those which directly address the issue, or those which are only tangentially connected to it. The first on human rights was held in Tehran, Iran in 1968, and the second twenty-five years later in Vienna, Austria in 1993. The third World Conference on Human Rights (WCHR) is scheduled to be held (in an undisclosed location) in 2018. The Vienna meeting was especially important because it re-emphasized the fact that human rights are universal, indivisible, inalienable, interrelated and interconnected. It also affirmed that ‘Women’s Rights were Human Rights!’ Other conferences such as the Cairo International Conference on Population and Development (ICPD) of 1994 and the 1995 Beijing Women’s international conference were responsible for projecting the question of violence against women—which had not received sufficient attention in CEDAW— onto the international stage. Hence, there is a host of different ways in which human rights are now enforced. Each country has different mechanisms and instruments by which they go about enforcing the international corpus of human rights, but the vast majority of them will trace those mechanisms to the UDHR and its progeny. Indeed, IHRL 16

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has become so accepted a part of International Law, that it is possible today to speak of International Law as no longer being limited to the regulation of relations between sovereign states but as firmly also extending to the treatment of individuals within states. Nowhere is this more apparent than in the main enforcement agency of the International Law regime, the International Court of Justice (ICJ). For a long time the ICJ regarded individual human rights as having no place within its jurisprudence, confining itself only to direct disputes between states. Thus, in 1966, the ICJ refused to grant any relief with regard to the situation of Namibia which had been invaded and occupied by South Africa in breach of a UN mandate over the country and in clear violation of the right to selfdetermination. Today, the ICJ is actively engaged in the adjudication of several claims involving human rights even if the primary parties involved in the suits are states. Hence, human rights and humanitarian law issues were at the centre of three recent cases, viz., the Advisory Opinion on the Palestine Wall (2004), Congo v. Uganda (2005), and Bosnia and Herzegovina v. Serbia and Montenegro (2007). Finally on the issue of enforcement, there is the ICC as well as the Office of the High Commissioner for Human Rights that was established in 1993; the jury however, is still out on a World/International Court on Human Rights which would move beyond the recommendatory or persuasive findings of the treaty bodies or of the UPR.

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Human Rights In The 21st Century: Challenges And Opportunities The preceding account is largely the ‘official’ or ‘conventional’ story. But it is important to be wary of the official (or single) story, because there is always a dialectical, a reverse or an alternative side to any account of history or politics. There is an old African saying to the effect that “Until the lions have their own historians, the history of the hunt will always glorify the hunter.” Thus, while the great abolitionists of slavery ostensibly abhorred the enslavement of one human being by another, they saw nothing wrong with the colonialism which replaced it, ironically at the very same conference 17

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in Berlin where the legal ban on slavery was pronounced. The colonialism sanctified at Berlin laid the foundations for the institutionalized racism and apartheid that we are still battling today. And even though colonialism has been eradicated from virtually all continents, questions of economic self-determination and the impact of globalization continue to undermine, minimize and even sabotage the full realization and enforcement of human rights of all categories. In this regard, the issue of Poverty and Human Rights is a crucial one, and related to this is the role of actors like multinational corporations. A related concern is the place of international financial and trade institutions such as the World Bank, the International Monetary Fund (IMF) and the World Trade Organization (WTO). Despite the humanitarian impulse that today informs the laws of conflict, the main initial motivation behind the first laws to regulate the conduct of war was the need to reduce the cost of killing, in other words, economic, rather than moral or humanitarian considerations. Similarly although Nuremberg and Tokyo provided us with the foundation for international criminal liability, the trials suffered several limitations, including the use of the death penalty, the denial of the right of appeal, and the fact that the international judiciary was composed of Military personnel. Nuremberg and Tokyo (in many respects in the same way as the ad hoc tribunals for the former Yugoslavia and Rwanda) have never escaped the criticism that they represented ‘Victor’s Justice’ or Siegerjustiz in German. On its part, the International Criminal Court (ICC) faces the charge that its form of justice is targeted only against the weak and the vanquished. And despite an attempt to explain the rationale behind its indictments to date, Chief Prosecutor Moreno Ocampo has not been very successful in dispelling the appearance that the crimes which fall under his remit have been committed only on the African continent. There is no doubt that the range and depth of the human rights movement has grown tremendously over the last 60+ years, reflecting a veritable explosion of norms, standards and institutions. But as we celebrate this growth, it is important to recall that any of the successes in the general movement of human rights are the 18

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product of centuries of slow and gradual evolution, responding as much to changes in social, economic and political conditions in individual countries, as to the moral, religious and cultural forces that were at play. Secondly, that growth also reflects the paradox that while states are the main violators of human rights—just as they were the major beneficiaries of slavery or the primary generators of war—they are also the entities which have been designated as the main protectors of the idea. In the words of former Indian Chief Justice PN Bhagwati, “The State is the necessary friend as well as the recurrent enemy of human rights.” In other words, the state is Janus-headed, to borrow from Frans Viljoen. And it does not matter which state you are talking about as has been demonstrated with the human rights violations committed in the name of the War on Terror in the United States, or as has been manifest in recent developments in Immigration and Asylum law and practice in numerous countries in Western Europe in the wake of the recent upsurge in refugees and other migrants from North Africa. Thus, while much of the momentum for change is driven by states—both in what they do and what they fail to do—it is quite clear that non-state actors, or what we today call NGOs or human rights defenders (from the anti-slavery movement to the ICRC to trade unions) have been crucial actors in the evolution and development of the movement. Some of the tools that human rights groups use today (petitions, lobbying, boycotts, and urgent action appeals) have a very long pedigree dating as far back as the anti-slavery movement. Recognition of the rights of minorities was undertaken in many respects in order to forestall the ultimate expression of their liberation, namely self-determination, while the limited attention given to the rights of workers was designed to prevent a more sustained attack on the exploitative effects of capitalism. In short, each of the main gains made in the struggle to realize human rights have been marked by paradox, hypocrisy and even supreme selfinterest. What is important to note is that Human rights activists and scholars have carefully exploited these fault-lines in order to widen the space for the protection of individual freedoms. Despite concerted efforts to expand that space and even though the human 19

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rights system has grown prolifically to cover so many groups that were initially excluded, there still remain groups and issues outside its purview, among them persons suffering extreme poverty, internally displaced persons (IDPs), people living with HIV/AIDS (PLWHA) and members of the LGBTI community. Finally in our quest to avoid the dangers of a single story, it is important to address the usual question that arises whenever we discuss human rights: are they a ‘Western’ invention? My response to that question is to ask another: can you have an idea of health without experiencing sickness, or can you have resistance without the experience of oppression? While much of the official story on human rights is dominated by the ideas of Dead White Men (the socalled ‘DWMs’), non-Western traditions, cultures and religions have long articulated notions about rights, autonomy and dignity which lie at the core of our contemporary ideas on the issue, even if we are still struggling for their formal recognition and incorporation in the official story. Hence, the Mandelan idea of Ubuntu, or the Ghandian notion of Swaraj—both of which borrow extensively from ancient African and Hindu philosophical traditions—need to be given more prominence in the official account. Every culture has its Magna Carta, such as the 14th century Kurukan Fuga out of the Mali Empire in West Africa, or the ancient Hindu Manusmriti (Laws of Manu). The Official Story still needs to acknowledge these influences more directly. Even if one were to accept the idea that human rights are Eurocentric, it is important to dissect the notion of ‘the West’ even further in order to appreciate that the so-called western tradition is a varied one, not only differing from one geographical location and/or historical period to another, but also from one social class or group to another. Just take the question of freedom of speech which has vastly different permutations in a country like the United States in contrast to one like Germany. Unfortunately, in many instances, the official account of human rights not only adopts a homogenizing perspective, it also presents the idea as if there are no tensions, internal ambiguities or outright contradictions in the concept. Thus, it is important to point out that the Western tradition is also necessarily a contradictory and multifaceted one, a character reflected in the many internal struggles which have seen 20

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people of colour, women, workers, peasants, indigenous peoples and minorities of all kinds in the West chant the mantra: ‘Ain’t I a human?’ Our brief survey of the historical, philosophical and structural roots of the idea of human rights, underscores the point that there are still many tensions and unresolved contradictions that inform human rights today. In other words, the terrain of human rights has never been and cannot in the 21st century be uncontested.

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Some Preliminary Lessons From The Arab ‘Spring’ For Human Rights Struggles Today By way of conclusion, it is possible for us to return to the Arab Spring in order to examine some of the key issues that the contested terrain of human rights in the 21st century raises. The first of course relates to the right to self-determination, reflected acutely in the Tunisian and Egyptian ‘revolutions,’ but also in the other struggles taking place around the region. A loud cheer of support rang out across the world when first Ben Ali in Tunisia, and then the Hosni Mubarak regime of Egypt came tumbling down. In Africa we finally said goodbye to Ben-Ali-ism and Mubarakism. We cried for those who lost their lives, and we cheered with the people of all walks of life who came together in large public spaces to demonstrate that the popular will can overcome state-inspired violence without itself resorting to the force of arms. Egypt and Tunisia provided the blue-print for the varied uprisings that we have witnessed over the course of the last 5 months in among other countries, Bahrain, Yemen, Libya and most recently, Syria. Six months after these earth-shattering events, where have we reached? In both Egypt and Tunisia, the Military remains in control with only a lacklustre commitment to fundamental change beyond arranging for elections. In Tunisia, Ben Ali and his wife were summarily tried and sentenced in one-day trials, hardly a demonstration of human rights fidelity, while in Egypt, although Mubarak and his sons are still on trial, impatience is growing with the slow pace of change. Indeed, two weeks ago, those very same groups that led the Tahrir Square revolt, including women, Coptic Christians and members of the Muslim Brotherhood were back again demanding fundamental change. The first lesson of the Arab 21

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Spring is that Democracy, unlike war, does not just break out. Enforcing human rights is a process, not an event. But it is the case of Libya which dramatically raises the issue of how the human rights system operates in the contemporary context, especially when juxtaposed to the international military-security complex. It surfaces numerous questions as to how and when the system of humanitarian intervention or the responsibility to protect (R2P) is invoked. In particular, what is the threshold that should invite such action? Who determines that threshold, and finally, how is the intervention operationalized? How do we prevent interventions à la carte? Is there a danger that the language of human rights which was once used primarily by the victims of repression has now become the language of power and of interventionists who turn victims not into agents but into proxies? Has human rights been subverted from a language that empowers victims to a language that serves the designs of an interventionist power on an international scale? Is there a kind of humanitarian ‘imperialism’ in which human rights is used as a ruse to execute war? In a recent book on Darfur, Mahmood Mamdani warns us that there is indeed a script of dominance which underpins these interventions (Mamdani, 2010). All these are important questions that are also linked to the iniquitous and imbalanced political and economic structures of international governance that have been in place since the 1940s such as the Security Council and the IMF which have grown in parallel to the international human rights institutions and which are in dire need of reform. Thus, in examining the case of Libya we need to contrast the reaction of the international community to the uprisings in Yemen and Bahrain, and imagine the response of the international community if a Libya- or Syria-like situation were to develop in countries like Saudi Arabia or in Israel? For human rights activists the lessons of the events of the first half of 2011 are very clear; whenever you have a robust spring you hope for a bright summer. However, human rights activists know that it is always prudent and inevitable to prepare for a long drawnout winter. And it is in the winter that human rights activists like you all hope or intend to become that we need to return to the basic principles that have given the movement such potency and 22

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resilience over the centuries. These are, among others, the right to self-determination, protection of human dignity, equality and nondiscrimination, individual autonomy, full liberty and enhancing the ability for self-actualization. Needless to say, as the Mozambican movement FRELIMO used to say in its struggle against Portuguese colonialism, a luta continua—the struggle continues.

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2 Clipping The Wings Of The International Criminal Court (ICC): Assessing African Responses To Contemporary International Justice 1 As I prepared to come to Tokyo last week, I read a newspaper report published by the Herald newspaper of May 18th, 2009. The paper reported that Libya and Senegal had started lobbying African countries to withdraw their membership from the International Criminal Court (ICC) until reforms were done to ensure it is not ‘American-centric,’ ‘unfair,’ ‘unjust and undemocratic.’ The presidents of the two countries, i.e., Muammar Gaddafi and Abdoulaye Wade were reported to have begun contacting their counterpart presidents from around the continent to come up with a common position on the issue. They said their goal was to “clip the wings of the ICC before it flies too high.” President Wade was quoted as having said the following:

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We need an ICC that is democratic and accountable to all and not to one powerful nation. It is clear the ICC is being manipulated and we need to clip its wings before it flies too high. We don’t need an ICC that closes its eyes on Israel, Afghanistan and Pakistan but opens its eyes on Sudan. Africa should withdraw its membership until the ICC becomes democratic, just and fair. This should be our gift for the Africa Day celebrations (on May 25).

For anybody familiar with the African context, if this had been Gaddafi speaking, it would not have raised any eyebrows. After all, Gaddafi—who according to pundits and politicos was a well-known supporter of ‘international terrorism’—has only recently been rehabilitated by Western governments, eager to do business with his oil-rich country. Despite the ‘new leaf’ he appears to have turned, Gaddafi remains a critic of the dominance of world affairs by the West and would have a lot to fear from the ICC, given his past activities around the continent and elsewhere. 1

Paper presented at Keio University, Tokyo, Japan on May 23, 2009.

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President Wade on the other hand rules a country which has largely escaped much of the political turmoil and civil conflict that has afflicted so many of the countries in his backyard. Countries in the West African region such as Sierra Leone, Liberia and Cote d’Ivoire are only just recovering from many years of turmoil. Senegal has been largely democratic since independence in 1960, supporting a multiparty system of government and vibrant institutions of civil society. One would think that Wade would have nothing to fear from the ICC, and indeed, would welcome its attempt to deal with the long-standing problem of impunity for serious human rights violations committed by African heads of state from Mauritania to the DRC. Furthermore, although his political party was regarded as somewhat left-of-centre his stay in office has not been marked by particularly radical interventions. That he joins ranks with a leader who could himself be targeted by the court raises a number of questions about the role and place of the ICC within the context of the debate about justice, rights, and accountability on the continent. At the same time, it raises a number of questions about the African response to the ICC. This is because President Wade is not alone in expressing his displeasure with the ICC. Recent ICC indictee, Sudan’s President Omar el Bashir—while scrupulously avoiding states where he could be arrested—has been traipsing all over the continent and the Middle East since being indicted by the court in March this year. Wherever he lands, he is received with rapturous and heroic applause. Rwandan leader Paul Kagame has expressed extreme displeasure about the indictment of his trusted aide by a court in France, leading him to sponsor an African Union resolution against the idea of universal jurisdiction. In response to the Bashir indictment, former South African president Thabo Mbeki is leading an African Union mandated panel seeking a postponement of the proceedings, arguing that a chance should be given to the pursuit of a peaceful settlement of the Darfur conflict. These reactions from the African leadership are particularly surprising if one considers their initial response to the ICC. The above actions raise a number of questions about the operation of International Criminal justice in the 21st century, and 26

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particularly about its ramifications in the African context. Among them, the following are the ones I would like to ask: 1. Why has the ICC met such resistance and open vilification in countries across the African continent? 2. What do the people say? Is the Wade/Gaddafi response to the ICC a widespread reaction, or are African leaders simply protecting their own turf? 3. What is the place of politics in understanding the response of African leaders and of ordinary people to the ICC? and finally 4. How can international justice as exemplified by the ICC remain true to the goal of fighting impunity in a manner that also deals with the problems of perception and substance that it has encountered with its experience in Africa?

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From Where Have We Come? The rules of International Law in general and of International Humanitarian Law (IHL) and International Human Rights Law (IHRL) in particular are quite lofty and idealistic. However, they would mean little without the mechanisms to enforce them. Consequently, International Law has developed a number of mechanisms to ensure that the rules of IHL can be implemented, while also paying attention to the place of IHRL. Thus, has emerged the fairly new regime of International Criminal Law (ICL). The 1907 Hague Convention codified what could and could not be done during war, e.g. the killing of civilians and non-combatants. Needless to say, these rules did not stop World War 1. The first attempt at the creation of an international tribunal for crimes committed during war was the Constantinople war crimes tribunals (otherwise known as the Turkish Courts Martial of 19191920) established to take stock of the massacre of Armenians during World War I. Further to this, the 1919 Treaty of Versailles required that Kaiser Wilhelm II be placed on trial for a ‘supreme offense against international morality and the sanctity of treaties.’ Wilhelm fled into exile in the Netherlands which refused to extradite him to face the 32 charges levelled against him. Although the Kaiser was never tried and the Turkish Tribunals were compromised by political deals, the importance of Constantinople 27

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and Versailles was that for the first time, an international treaty clearly stated that a sovereign could be subjected to trial, and penalties could be imposed on heads of state for violations of fundamental human rights. Versailles was also important as it established the League of Nations—the doomed precursor to the United Nations. In 1928, the Kellog-Briand Pact made by 15 nations renounced the ‘… recourse to war for the solution of international controversies.’ Together with a 1929 General Convention on Prisoners of War, this did not prevent further war. These developments were followed with the Nuremberg and Tokyo trials that set out the basic typology of international crimes that formed the kernel of what we today call ICL, viz., a. War Crimes; b. Crimes Against Humanity, and c. Aggression against the Peace, i.e. starting war and invading territory. The trials firmly established the point that individuals could be tried and held accountable for their misdeeds during war; that the defendants should have minimum due process and that such trials should be undertaken by the ‘international community’ as a whole. From a human rights perspective, however, the trials suffered several limitations, including the use of the death penalty, the denial of the right of appeal, and the fact that the international judiciary was composed of Military personnel. In the aftermath of the War, quite a deal of discussion was devoted to the establishment of a permanent court to try war criminals. The Convention on the Prevention and Punishment of the Crime of Genocide of 1948 clearly contemplated this in Article VI: Persons charged with genocide or any of the other acts enumerated in article III shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction.

The Cold War prevented much movement on the issue, and even when the Additional Protocols to the Geneva Convention 28

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were adopted in 1977, they did not consider the establishment of a tribunal. As the Cold War thawed, it brought in its wake the phenomenon of failed or failing states, and the resurgence of ‘hot’ (mainly ethnic) wars and civil conflicts. The war in Yugoslavia sparked new debate on the issue of setting up an international judicial mechanism to handle international crimes. In 1993, the UN Security Council established the International Criminal Tribunal for the former Yugoslavia (ICTY) under Chapter VII of the United Nations Charter, to try persons accused of war crimes, including grave breaches of the Geneva Conventions and other violations of international humanitarian law committed in the territory of the former Yugoslavia. Thus, the ICTY became the first tribunal to be created since Nuremburg and Tokyo in the aftermath of World War 2. It was followed by the International Tribunal on Rwanda (ICTR) and eventually by the creation of the ICC through the Treaty of Rome in 1998. Since the ICC was set up, we have also had the Special Court on Sierra Leone (SCSL), the Cambodian Tribunal, and the Lebanon (Hariri) Tribunal. All of these have been established as special international judicial bodies to investigate international crimes. In many respects, international criminal justice has come of age, if one takes just the growth of institutional mechanisms to address international crimes over the last decade or two. What has been the legacy of these new tribunals? The first is in relation to their jurisprudence, for example on issues such as detention camps, the question of superior responsibility, sexual and gender based violence (SGBV) and the crime of genocide. Thus the famous case of Jean Paul Akayesu at the ICTR was the first in which an international tribunal was called upon to interpret the definition of genocide as given in the Genocide Convention, and also went on to underscore the fact that rape and sexual violence may constitute genocide in the same way as any other act of serious bodily or mental harm, as long as such acts were committed with the intent to destroy a particular group targeted as such. Secondly, they have been able to bring to trial former heads of state (e.g. the ICTR conviction of Jean Kambanda, former Prime Minister of Rwanda; Slobodan Milosevic—who died halfway through his trial by the ICTY, and Liberia’s Charles Taylor who is 29

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currently in the SCSL dock at the Hague). Thirdly, the tribunals have spurred an increased interest in addressing the issue of impunity for war crimes, and together with the growing principle of universal jurisdiction, have made many sitting presidents rather fearful of what may happen to them after they leave office. The saga of Charles Taylor—indicted by the Special Tribunal for Sierra Leone and currently under trial in the Hague—sent shivers down the spine of many an African leader. However, the ICC indictment of President Bashir brought the issue closer to home, It demonstrated that a sitting President can be indicted even while still in office; the veil of presidential immunity—at least in the international arena—has fully and firmly been pierced. Nevertheless, there are serious challenges that contemporary ICL and the institutions it has created face. The first relates to their legitimacy, ranging from charges that they are not impartial (a modified form of victor’s justice or sugerjusticz), that they are overly political (who gets indicted and why), and that they have become an entrenched aspect of the globalization and further entrenchment of western cultural imperialism, a claim that is made even more critical by the fact that the trials do not take place in the primary locales of where the offences took place. Secondly, that these tribunals place an unduly heavy emphasis on justice, particularly of the retributive kind. It is asserted that this objective is pursued at the expense of peace, particularly in societies which have been afflicted by serious and sustained armed conflict. Thus, it is argued that they will ultimately have a deleterious impact on the quest for peace, both in their selective application as well as with respect to the internal dynamics and politics of the countries from which suspects are drawn and tried. It is also argued that the tribunals undermine national sovereignty, particularly of states that do not have a firm foundation of political stability and free democratic contestation. So What’s Really Wrong With The ICC? After a period of seeming dormancy, the ICC hit the legal and political headlines with the announcement of several indictments. Since 2006, the ICC prosecutor has initiated four investigations, all of which are in Africa. As of early this year the ICC has made 30

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public arrest warrants for thirteen individuals. Two have died, seven of them remain free, four are currently in court custody, including Thomas Lubanga (former DRC warlord), Germaine Katanga (ditto), Mathieu Ngudjolo Chui and Jean-Pierre Bemba. Those who remain free include Joseph Kony and Raska Lukwiya (both from Uganda), and Omar al Bashir (the President of Sudan) who has raised the most controversy. The fact that all the people indicted by the ICC are African has caused concern and raised a number of questions about the process of effecting international criminal justice in the 21st century. Among the claims that are made in consternation at this fact are the following: 1. How come those responsible for invading Iraq and Afghanistan, sanctioning the torture of prisoners (at Abu Ghraib and Guantanamo Bay), as well as for designing the policy of extraordinary rendition (such as George Bush, Donald Rumsfeld and Tony Blair) are still free and not facing indictment? 2. Aren’t African countries being targeted because of their relative poverty, lack of military clout, and general marginalization from world politics? 3. Why has the ICC not focused on those multinational corporations and individuals who supply the many conflicts that take place on the continent? 4. What about the Israeli government’s actions in Gaza, and of Russia in Chechnya, and 5. How come countries like Sri Lanka, Burma and Columbia (with much longer histories of insurgency, armed conflict and gross human rights abuse), are not on the ICC radar? In sum, the charge out of Africa is that ICC justice is incomplete, parallel or even imposed justice; justice for those without power and resources, versus impunity for those who have clout and muscle. To quote from a recent news article from Ghana: No one should be treated or made to feel s/he is above international law when it comes to things that matter to the whole world. No nation no matter her economic, social or military capabilities should be treated differently when it breaks international law. No individuals no matter the office that s/he holds should be exempted from prosecution if he or she breaks international law. It is

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by upholding this principle that the ICC will be seen to be impartial and unbiased. For what is good for the goose is equally good for the gander.

But the views on this issue are not all against the ICC. At a meeting of pan-African academics and activists in Dar es Salaam last month, Nobel prize winner Wole Soyinka referred to what he called the ‘new’ imperialisms afflicting Africa. Rather than looking outside, he chose to focus his sights on what he called the ‘enemy within,’ on what he described as tyrannical rulers such as Robert Mugabe in Zimbabwe, Isias Afwerwoki in Eritrea and Omar el Bashir in Sudan. Soyinka argued that until these new imperialists are brought to account for the atrocities they have committed, Africa will continue to remain hostage to impunity and the gross violation of human rights. It is thus clear that there is a division of opinion on the efficacy of the operation of the ICC. Against, this background we need to ask the question: what is really wrong with the ICC?

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Towards A Reconciliation In certain respects, the problems facing the ICC are not new. They are as old as the first attempts (already recounted in this Chapter) to bring to book the perpetrators of war crimes and crimes against humanity in international, rather than purely national frameworks of justice. As Kingsley Moghalu has argued, it is important to underscore the point that such trials are neither motivated nor influenced solely by abstract notions of justice. Indeed, such trials are the product of the interplay of political forces that have led to an inevitable clash between globalization and sovereignty on the sensitive question of who should sit in judgment over international criminals. In particular, the ICC raises the more fundamental question of who and how a war criminal should be defined and whether such an exercise can ever be free of the wave and waft of political influences. At the same time, the objection of African leaders needs to be distinguished from the legitimate concerns that have been raised concerning both the form and the substance of the ICC’s approach 32

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to the issue of international justice. After all, until the lens was turned onto one of their own, African leaders were very happy to see the ICC take up the case against their rebels. Ugandan leader Yoweri Museveni, for example was ecstatic to see the ICC turn its guns on Joseph Kony, particularly if it did not ask questions about the other party to the conflict, i.e. the government’s UPDF. Indeed, President Museveni specifically invited the ICC to take up the issue, thus making the case of Northern Uganda the first on which the ICC turned its attention. Despite what may be described as the structural context in which the institution operates, the ICC has made serious mistakes. Some of the mistakes could be regarded as mistakes that are built into the nature of its function as an international institution. Although it enjoys the legitimacy of the ‘international community’ there is no doubt that the members that make up this community (states) are not equally represented in the same way as national political actors like Congress-people or members of parliament. Secondly, the ICC is devoted to the indictment, prosecution, and ultimately the conviction of criminals who operate on the national or global scale. These will invariably be significant political actors; thus, the operation of politics cannot be divorced from the operation of the law. The operation of politics will be even more turbulent when the target of an indictment is a political actor who still enjoys the privilege of incumbency. Is it of any surprise that the cries against the ICC have been loudest once the lens was turned on a sitting president? It is significant that in the case of its predecessor tribunals (from Nuremberg through to the ICTR), the main targets have been members of regimes which have fallen. Indeed, neither the victors in the Balkans war (the USA or its NATO allies), nor those in Rwanda (the current RPF government) have had any of their actors indicted, and yet we all know that there are always at least two sides to a conflict. When the ICTR made the slightest motion towards investigating officers of the Rwandese Patriotic Army (RPA), the response they got threatened to disrupt relations between the ICTR and the government of Rwanda. The ICC also suffers from a degree of over-politicization. Even its latest indictments in the Haskanita case (involving the rebel killing of 33

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Bolivian peacekeepers), appears as a move designed to blunt the criticism that their focus was only on one side in the conflict. However, a great deal of the objection to the ICC stems from the fact that it is an instrument essentially designed for retributive justice. Other forms of justice have only a minimal place to occupy within this schema. For example, in the case of Northern Uganda, attention was shifted from the true scale of what was done to the people and the full range of the actors involved (including the Ugandan government) and focused instead on what was believed to be the infinitely manageable task of prosecuting only a handful of individuals. Moreover those prosecuted were uniformly drawn from only one of the many parties to the conflict.

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Conclusion The above analysis demonstrates that the ICC has finally emerged from the cocoon of inactivity which initially dogged it. An old African proverb says that it is better that people attack you for doing something wrong, rather than for doing nothing at all. However, the ICC needs to seriously go back to the drawing board in order to address the many criticisms that have been levelled against it. In the first instance, the ICC needs to show more balance in its investigation and prosecution—both within Africa and outside it. Prosecutor Moreno Ocampo needs to rely less on references submitted to him (as has been the case in the majority of cases so far) and use his powers to commence investigations and to initiate prosecutions pro prio moto. There is also no doubt that the ICC has not been very successful in publicizing exactly what it does, from where it derives its mandate and in educating both the professional and lay publics about what its basic functions are supposed to be. In this regard the ICC has also failed to clarify on its objectives. Some observers ask if the ICC is seeking justice for the victims of the violations, why then has most attention been focused on the perpetrators? The ICC also needs to address the issue of perceived partiality. Just as in the case of northern Uganda it made the mistake of focusing only on the LRA and not the UPDF, in Sudan by focusing mainly on Bashir, it ignores the variety of players who are implicated in the Darfur fracas. Finally, the ICC needs to salvage 34

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itself from the charge that in the peace vs. justice debate, it is only in favour of the latter. This argument is particularly problematic for countries that are in a conflict or post-conflict situation. What is really at stake is not peace versus justice, but rather, different forms of justice. However, there is no doubt that done wrongly, the quest for justice can undermine the pursuit of peace. This involves the deliberate construction of the many elements of transitional justice which must entail a complex combination of prosecution and accountability, reconciliation, truth-telling, reparations and institutional reform. Over-emphasizing retributive justice by focusing in the main on prosecutions in isolation from a holistic approach to justice will ultimately undermine the pursuit of both justice and of sustainable peace.

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3 On Race, Development, Responsibility To Protect (R2P) And The ICC: A Critique Of David Chandler 1 Although I come from the discipline of International Law (IL) rather than International Relations (IR), there are of course several similarities in terms of the subjects of scrutiny and the objects of attention. Thus, some of the critiques in David Chandler’s work are also familiar and I’m particularly happy that his articles were included in the collection of readings that were distributed for this workshop since it represents a minority view in IR Theory generally. I’m also happy because the readings focus on three issues that are of central concern in International Law discourse and praxis today. The first of these is on Race and culture, especially the debate about Cultural Relativism, 2 the second on the topic of transitional justice and peace-building (the International Criminal Court (ICC) and the Responsibility to Protect - R2P) 3 and the third is on the issue of development (and its link to human rights). 4 Regarding the first of these, I think it is important to underscore the issue of race or culture and its relevance in a postcolony, particularly for those working in the Ugandan context where it may seem that this phenomenon is not all-pervasive. Hence, I think it was really useful to have first Laila Abu-Lughod and then Nevidita Menon articulating their views on the issue, with Copyright © 2015. Langaa RPCIG. All rights reserved.

1

Discussion comments at the Makerere Institute of Social Research (MISR) workshop on Political Studies, Kampala, May 18, 2011. 2 David Chandler, ‘Race, Culture and Civil Society: Peacebuilding Discourse and the Understanding of Difference,’ Security Dialogue, Vol. 41, No.4 (2010): 369–390, DOI: 10.1177/0967010610374314. 3 David Chandler, ‘Born Posthumously: Rethinking the Shared Characteristics of the ICC and R2P,’ Finnish Yearbook of International Law, Vol. 21 (2010): 1-9. 4 David Chandler, (2010c), ‘Where Is the Human in Human-Centred Approaches to Development? A Critique of Amartya Sen’s ‘Development as Freedom,’ (mimeo), subsequently published in Sandro Mezzadra, Julian Reid & Ranabir Samaddar (eds.), THE BIOPOLITICS OF DEVELOPMENT: READING MICHEL FOUCAULT IN THE POSTCOLONIAL PRESENT, Springer (India), New Delhi, 2013.

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the former speaking about how race manifests itself within the context of Arab patrilineal relations, while the latter considered the phenomenon in its Indian context. I also think it was particularly important for Ugandan scholars to get a sense from Professor Oyèrónké Oyéwùmi of the pervasiveness of race and culture within a country like the United States given her particular positioning as a diasporan African working at a university in New York. Chandler provides a perspective on race from his location at an academic institution in London. So unlike Ronke (who is an Outsider/Outsider), David Chandler is an Insider/Outsider, one who in a sense has committed academic hara kiri (or suicide). So all in all, I think the MISR researchers should have had their fill on the topic of racism and its contemporary expression. But my quarrel is that the bridge isn’t made; in other words, how do we in Africa deal with the phenomenon of race, especially since today it does not appear to be as pervasive a force as it used to be when Uganda was a protectorate/colony. According to this argument, race and racism are issues in South Africa and Zimbabwe, but not here in Uganda! So although we had a lot of discussion following Ronke’s presentation about culture, it mainly focused on local (Yoruba, Ganda, Luo) culture, and was much less about global culture. Indeed, for many African researchers in general (and for Ugandans in particular) I see the focus increasingly turning to what has been described as the ‘new imperialisms,’ i.e. the despotism of local leaders such as President Museveni. The point is not that such leaders are not despotic, or that they should not be researched and examined in their own terms (after all I make my bread and butter from criticizing him), but I think as researchers and scholars we have kind of lost the plot by not making the links and connections between the local and the global. I therefore hope that this will be the subject of much more critical focus in the remaining workshops and as MISR further refines and develops its research agenda. It is also my hope that more serious attention will be paid to the issue of race because of what internal critics of the discipline and current practice of International Human Rights Law (IHRL) call the SVS syndrome or metaphor. What is the SVS syndrome? This is the “Savages-Victims-Saviours” metaphor on which much of the discourse and practice of contemporary IHRL and IR rests (Mutua, 38

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2002: 10-38). The savages are the violators (invariably dark-skinned and from the Global South); the victims are invariably powerless and agency-less (and the same colour as the Savages), while the Saviours are invariably lighter-coloured, benevolent and omniscient. These so-called saviours are like God, with a small ‘g’ and linked in various ways to the religious movements that we know, but obviously they come from a whole range of constituencies in the West. Understanding how the contemporary human rights movement is intricately wound up with the SVS syndrome is crucial to appreciating both the possibilities and (more importantly) the limits of the movement. Dissecting Relations

The

Chandler

Approach

To

International

So what does Chandler talk about in his three articles under review, namely, ‘Race, Culture and Civil Society,’ ‘Where is the Human?’ on Amartya Sen, and ‘Born Posthumously’ which is an examination of the ICC and the R2P?

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R evisiting Race, Culture and Civil Society Chandler’s first article which is entitled ‘Race, Culture and Civil Society’ demonstrates how pervasive the SVS syndrome has become, stretching from the arena of conflict resolution, to Transitional Justice (TJ) to development. However, it also shows how little the so-called ‘saviours’ (civil society) have been interrogated with respect to their role in reproducing the cultural hegemonies of the West. Chandler is generally unhappy with this nonchalance. Hence, at p.371 he says: In the civil society paradigm, the hierarchical views of race and cultural difference are reproduced, but through the focus on their alleged lack of rationality or lack of autonomy. This emphasis on the autonomy of the subject of peacebuilding intervention presents external intervention as an act of empowerment or of capacitybuilding, consciously disavowing colonial discourses of fixed distinctions of superiority.

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While I agree with Chandler’s analysis about race/culture and its pervasiveness in the evolution of International Relations and the imperial project, I think that race per se needs to be articulated in a more clear fashion. Such articulation (or linking between the different forces at work which drove capital outside its Western borders) would be particularly useful for researchers ‘on-theground’ (so-to-speak) in countries like Uganda. Articulating the race/culture analysis that Chandler presents us would help in distilling and explaining the different forms of Western domination and how it continues to exercise such crucial influence even at the local level. Thus, and again for our local researchers; how has domestic civil society been affected by this discourse and practice? Chandler demonstrates how the phenomenon of race as discourse has been reincarnated as ‘Culture-talk’ and the manner in which it has been deployed in the areas of development, conflict and democracy. Again, although this is largely correct, it doesn’t provide enough of a variegated picture for us to understand the different actors at play. Take for example the case of international business, especially through its civil society links (i.e. Philanthropy or Corporate Social Responsibility (CSR). From a review of developments in this area it is seriously questionable whether there is a civil society as such—international or domestic—in countries such as Uganda. I think this is especially true today with the emergence of the ‘new philanthropies.’ There is now a considerable influence of international business on both the construction and the operation of civil society in all three areas of Chandler’s concern. Neither international nor local civil society would survive without it. I’m thinking here particularly of the philanthropic business foundations e.g. the Open Society (George Soros), and the Melissa & Bill Gates Foundations (Microsoft), and the key and influential roles such bodies have come to play in the processes of Transitional Justice/Peace Building, Development, and Capacity Building in our part of the world; shouldn’t we then be talking about ‘Race, Culture and the New Philanthropies’? or to coin a phrase, “phila-society,” and not civil society? It is my considered belief that such megaphilanthropies are our new ‘saviours’ in the SVS paradigm. 40

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The difference between the new and the old is not just about money. In my view, there is a qualitative distinction between the new and the old philanthropies. Gates and Soros are different from old school actors like Ford and Rockefeller. Not only are they funding much more, but they are also doing much of the typical civil society work themselves and not via the agency of civil society (think of the Open Society’s Justice Initiative, or the Gates Global Health and Global Development Programs). In many respects such interventions are displacing global and local (‘old’) civil society and getting into the trenches directly. And what they are funding has crucial implications for 21st century development and rights issues such as health (malaria, polio and HIV/AIDS), food security (especially in relation to the debate about genetically-modified seeds) and justice (substantive, transitional and reconstructive). That is why these new philanthropies are so interested in the ICC and in all the other tribunals (the former Yugoslavia, Rwanda, Sierra Leone, Cambodia, the Lebanon, etc.). But I’ll come back to the ICC after considering what Chandler has to say about Amartya Sen.

Amartya Sen and the H umanist Impulse in Contemporary International Relations

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Using Foucault’s critical exploration of shifts and transformations in Liberal frameworks of governmental rationality, Chandler focuses on the work of development economist and Nobel Prize winner, Amartya Sen. He argues that Sen’s focus is the ‘... transformative project of development reduced down to that of enlarging individual agency understood as choice-making capacity (Chandler, at 12).’ He goes on to say, Freedom (per Sen) now becomes an internal process of empowerment, one with no fixed measure of comparison and no fixed end or goal. Where the colonial subject needed development for the fixed and universal goal of self-government as freedom, Sen’s subject has an ongoing struggle for ‘freedom’ in which the inner life of the individual is both the means for freedom and the measure of freedom (Id., at 13).

I generally agree with the main thrust of Chandler’s paper on Sen, and would just pose the following broad question in the spirit 41

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of MISR’s request to situate the work of our presenters within the context of contemporary debates on development. The question is this: To what extent does the Senian/Senist conception actually influence international development policy and praxis today?. This question is especially critical given that in the list of international institutions mentioned in Chandler’s paper (i.e. UNDP, World Bank, etc.), no mention is made of the WTO and the IMF—institutions which are very far from the Senian/Senist conception of the human and much more influential than any of the UN development agencies which swallowed the Senian/Senist conception of the human with vigour. In other words, does Sen’s idea about the place of the human within development really count for much? When placed against the hegemonic discourse and practice of those institutions that wield most power on the global development stage, my response to that question would be ‘no.’ The importance of what I may refer to as the ‘other’ international economic agencies, assumes even greater prominence when compared to the influence of agencies such as UNDP on the development discourse. To cite only one example, the fanfare that used to accompany the annual launch of the Human Development Report (HDR)—under Sen’s disciple IDS Professor Richard Jolly— has now dried up. This raises the question of whether the Senian/Senist influence over international development discourse and practice was not, in fact, ephemeral. Launches of the HDR in the 1990s would draw even the President and his entire Cabinet. Today, there is hardly a mention of it on the back page of the newspapers. In my view Sen was sexy, but not very influential. Today, development discourse hardly mentions him.

Revisiting the ICC and the R2P I want to end my review with a look at Chandler’s ‘Born Posthumously’ article. The ICC/R2P article retraces the establishment of both institutions to what Chandler calls the “postinterventionist world,” and the manner in which the two have adapted to 21st century realities and are now “…finding their feet.” The article gives a good articulation of the crisis of liberal interventionism of the 1990s which saw Western governments becoming more embroiled in the contradictions of trying to be the 42

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“Global Policeman” in the aftermath of the Cold War, but with a Code of Conduct that was contingent on time, place, geo-political interest and other considerations. In other words, they were very much like the Uganda Police when confronted by the Walk-toWork protestors; they were completely at sea. But I would take a slightly different view from the one Chandler makes that both the ICC and R2P were originally designed “… in response to the need to limit the claims upon the West; as a retreat from Western responsibility.” Maybe it was a retreat from responsibility. But it was hardly a withdrawal from influence. And, departing here from Spiderman who Chandler elliptically quotes as saying with great power comes great responsibility, in my view with great power comes great influence. In departing from Chandler’s view, I would like to suggest instead that both the ICC and R2P were designed as new mechanisms by which Western states sought to reinforce their global hegemony. If the retreat alluded to was anything, I believe it was primarily strategic (or tactical) and allowed for a licking of the wounds (of Iraq and Afghanistan) as they waited to fight another battle in this long drawn-out war of global dominance. In my view, both the ICC and R2P have come to typify the reincarnation or transformation of Western dominance in the early 21st century. I thus disagree with the assertions that the two institutions were ‘stillborn.’ Chandler’s paper poses 5 rhetorical questions (at p.5), only 3 of which I would like to re-quote for the present analysis: 1. Why has the interventionist promise of R2P been shelved? 2. Why has the ICC taken on so few cases?, and 3. Why is the ICC increasingly seen to be putting the needs of stability ahead of the need for justice? Chandler’s paper was written in December 2010, which means that he had no opportunity to examine the more recent dramatic events that have taken place since that time, particularly those in Northern Africa. If he had, I’m sure he would have posed these questions in a different way, especially given what has happened in Tunisia, Egypt, Sudan and Libya and also with the recent developments elsewhere in the Middle East, i.e. Bahrain, Yemen, Syria, Israel, etc. 43

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First of all, I would disagree with the assertion that what Chandler calls the ‘interventionist promise’ (I would prefer to call it the ‘interventionist impulse’) of the R2P has been shelved. UN Security Council Resolution 1973 of March 17, 2011, which approved the no-fly zone over Libya, represented a revival of the R2P idea, if not in form, then at least in language; if R2P was ‘stillborn’ as Chandler asserts, in my view Resolution 1973 represented its forceful second coming and rebirth. What does the Libya resolution say? Paragraph 4 of the resolution states as follows: “Reiterating the responsibility of the Libyan authorities to protect the Libyan population and reaffirming that parties to armed conflicts bear the primary responsibility to take all feasible steps to ensure the protection of civilians.” Clearly, this formulation is drawn right out of the R2P book, but Resolution 1973 represents a changing of focus because at the time of its adoption in 2009, R2P had a clear process by which it was informed (otherwise known as the 3 steps of International Responsibility): Step 1: Restating the states’ primary responsibility to protect its populations and prevent mass atrocities; Step 2: Seeking mediation and assisting states with capacity building and, Finally (and as a last resort) Step 3: ‘robust’ military action. In the case of Libya, the NATO-influenced members of the Security Council inserted Step 1 into the resolution as a bluff, because on the ground they jumped straight away to Step 3. Caught up in the contradictions generated by their hasty intervention and now unable to revert to Step 1 (political mediation), the Western Alliance is trying to move to Step 4 (assassination), and ultimately Step 5 (regime change), which were in fact the unwritten impulses behind R2P when it was first formulated in 2005. In other words, what happened/is happening in Libya today can only be described as ‘R2P2’ or R2P (Plan ‘B’). The interventionist impulse is right back! The second example that is telling of what the R2P was designed to do is provided by the case of Cote d’Ivoire, again, as it happens, on the African continent. Step 1 of the original R2P 44

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(internal political resolution) was jettisoned in favour of UN/French military intervention (Step 3) and eventually regime change (Step 5: from Laurent Gbagbo to Alassane Ouattara). Step 4 (assassination) was vetoed (by the French) because of the fear that it would thrust the civil war into greater depths of conflict. That is why it was French commandoes and not the Ivorian New Forces who captured Gbagbo. Also note that Step 2 in the R2P formulation in the case of Cote d’Ivoire was jumped essentially because the primary movers behind this action were the African Union (AU) and Economic Community of West African States (ECOWAS). These recent developments in Cote d’Ivoire can help us return to Chandler’s questions 2 and 3 (about the ICC) which I believe can be answered together. While it is true that the ICC has taken on so few cases in comparison to the potential instances of conflict or post-conflict around the globe (such as Columbia, Sri Lanka, the USA in Iraq and Afghanistan and Israel) where ICC jurisdiction could arguably be brought into action—it has as a matter of fact taken up many cases in Africa: at the present time, at least 7 African countries are under ICC scrutiny, i.e. Uganda, DRC, Sudan (Darfur), Kenya, Libya, Zimbabwe and (since yesterday with the Ouattara government’s request to Mr. Ocampo) Cote d’Ivoire. Also, if you look at all the countries listed in my ‘recent developments’ list (Tunisia, Egypt, Sudan, Libya, Bahrain, Yemen, Syria and Israel), the only ones that have been targeted by the interventionist impulse are on the African continent. In light of the above, I think that the important point for African scholars of IR is that far from the ICC and R2P representing a retreat from the interventionist impulse, they point to a simultaneous disempowering of African states and regional institutions such as the African Union (AU) and a reinforcement of institutions that are dominated by Western powers. In other words, it reflects the reinforcement of the SVS metaphor, this time with the ICC and R2P as the saviours. That is why the AU was completely ignored in both Libya and in Cote d’Ivoire. And indeed it is also the reason the ICC has pursued justice in all the instances of the African states mentioned above at the expense of stability, and not the reverse as Chandler asserts. Is it any wonder that at the 45

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last 3 summits of the AU, vociferous calls have been made for states to (at a minimum) withhold cooperation with the institution, and at a maximum to withdraw completely from the Rome Treaty?

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4 From Classroom To Praxis: The Role Of The Legal Academic In The Public Arena 1

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I want to thank Prof. Kameri-Mbote and her colleagues at Strathmore University, for inviting me to share my thoughts on the important topic of Law and Ethics, and particularly to make some reflections on the role of the academic lawyer outside the classroom. I would like to begin my reflections by asking three basic questions: x How can we, as guardians, researchers and elaborators of the law use our strategic position in the Academy to influence legislation, arbitration and advocacy in order to transform the existing structures of political, economic, social, sexual and cultural dominance? x How can we use lawyer-activism to advance the elimination of prejudice and subordination, and also to purge entrenched cultural norms of caprice and corruption from our communities at all levels?, and x How can we develop a jurisprudence of equality, empathy and policy engagement in order to ensure that the Law School is not simply a by-stander? In short, how can legal educators engage in processes that ensure progressive change? Or to put it in another way, how can we use law to fundamentally transform society and to alter the skewed allocations of social, economic, cultural, sexual and political power? Several years ago, Prof. William Twining constructed two powerful images of lawyering: the one of Pericles, the other of the Plumber (Twining, 1967, 44). 2 The Plumber was the strict legalist who viewed law as a set of black and white rules from which there could be no deviation and which reflected the ‘sovereign command’ 1

Reflections presented at the Strathmore University 7th Annual Ethics Conference; Nairobi, Kenya on October 29, 2010. 2 It is noteworthy that Twining taught law at Dar es Salaam for several years and greatly influenced the teaching of the subject there for many years to come.

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that had to be obeyed under threat of sanction. To the plumber there is no gray. The most (in)famous expression of the Legal Plumber is: ‘It is the Law!’ regardless of how oppressive, discriminatory or fascist the law may be. On the other hand Pericles was more versatile and dynamic, approaching law as a multifaceted and diverse discipline requiring a combination of idiosyncratic skills and attributes rather than mastery of the black letter of the law and of the technical rules of advocacy. Twining’s description of Pericles forced us to think of lawyers as leaders, as teachers, as planners, as statesmen and stateswomen—not simply as technicians well versed in the nuts and bolts of fixing the sink. While the Plumber asked: what is wrong with the sink?, Pericles forced us to ask questions such as: why is the sink white? Is there an alternative version to the sink? And finally, what is the political economy of sink-making? In the ‘American Scholar,’ Ralph Waldo Emerson considered the meaning and function of the intellectual and put forth the idea of the “One Man,” by which he meant the complete person, or the person who embodies all dimensions of human potential and actuality—the farmer, the professor, the engineer, the priest, the scholar, the statesman, the soldier, the artist. According to Emerson the intellectual is this thinking whole person. Emerson’s intellectual preserves great ideas of the past, reformulates and communicates those ideas in the present, and creates new ideas for the future. At the same time, Emerson’s intellectual, while enriched by the past, is not bound by the history books. His or her most important activity is action. According to Emerson, inaction is cowardice. Emerson’s intellectual is the “world’s eye” and communicates her or his ideas to the world not just to fellow intellectuals. Finally, Emerson’s intellectual does all of these things not out of obligation to society, but out of obligation to themselves (Lightman, n.d.). If we were to combine Twining and Emerson, then I think you would have some idea of the ideal role of the legal scholar outside the classroom. But what is the home of this legal scholar? If your home is in chaos, how can you hope to bring order to the world around you? If in your home you learn prejudice and discrimination, how can you be inclusive in broader society? If your home is the fountain of sexism, hatred and chauvinism, how can you hope to spread equality outside it? In other words, how does the Law School home 48

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provide the necessary conditions for the academic lawyer to productively engage with the wider world? The modern Law School is of course primarily an educational institution, rather than merely a technical one; it is an institution devoted much more to the fabrication of Pericles, than it is for the assembly line production of Plumbers. A glance at the courses on offer in any of our law schools in East Africa will clearly demonstrate this fact. However, I would also like to suggest that the Law School is much more; it is a cultural institution that produces a cadre of intellectuals who speak a similar language, with particular ethical values and with a more critical outlook to life than is the case with other disciplines. Whichever way you look at it, Law Schools are institutions which manifest certain distinct peculiarities, some of them positive and endearing, but many in dire need of reform. Law Schools are thus powerful instruments in shaping the manner in which lawyers engage with the world outside the academy. And it is a sad reality of contemporary life that many of our East African law schools are failing not only to produce Pericles, but we are stumbling in even turning out the competent Plumber. I submit that the general state of legal academia in our region of the world is of a sector of society obsessed with making money while delivering very little in terms of changing the status quo. As such, we must ask critical questions of today’s academic lawyer outside the classroom having been nurtured in a context which does not lend itself to the transformation of the broader society. Given the broad thrust of our law schools, I want to suggest that in order for us to go beyond even the engaged legal intellectual of Twining’s and Emerson’s vision—which I submit must be our minimum objective if we are to remain even remotely relevant to the society in which we live—we have to become legal scholaractivists. Laws Schools need to seize the forefront in the debate, research and discussion about the impact of law on society and not to merely contribute to the production of law as such. And I am not speaking of the scholar-activists who concentrate on issues of Human Rights or Constitutional Law (the ‘usual suspects’), who most easily lend themselves to such work. I am saying that we need Legal scholar-activists even in Commercial Law, to challenge the dominant modes and methods by which our institutions of 49

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commercial activity (the banks and the companies) are doing law. We need Legal scholar-activists to re-think the way in which we plan and exploit (destroy) our environment; we need Legal scholaractivists to reconceptualise gender relations both within the Family and outside it. We need the Legal scholar-activist to animate our Criminal Law and demonstrate the manner in which so many of the rules which we apply to ostensibly Criminal behaviour are the product of demented and controlling minds. How can you apply the doctrine of ignorance of the law when the vast majority of the people in our societies have never even read the Penal Code? So who then is the ideal Legal Scholar-Activist? In his 1993 Reith Lectures the late Edward Said of Columbia University stated that the basic mission of a public intellectual should be to advance human freedom and knowledge (Lightman, Id.). This mission often means standing outside of society and its institutions and actively disturbing the status quo. At the same time, Said’s intellectual is a part of society and should address his or her concern to as wide a public as possible. Said’s intellectual is constantly balancing the private and the public. His or her private, personal commitment to an ideal provides the necessary moral force for the process of engagement both inside and outside the classroom. And yet, the ideal must have relevance for society; the public intellectual cannot be totally ‘off the wall.’ Alan Lightman argues that Said’s ideas raise a number of interesting questions: How does the intellectual stand both outside and inside society? How does the intellectual find common ground between what is of deeply personal and private interest and what is of public concern? How does the intellectual engage him or herself with the changing issues of society while at the same time remaining true to certain unchanging principles? Among those unchanging principles is the respect for fundamental human rights in as broad a manner as possible. I would like to apply Said’s perspective on the role of the intellectual to two instances in which I have been personally involved in order to demonstrate the different dimensions of the responsibility of the Legal scholar-activist as I see it. The first of these relates to the debate we had in Uganda a number of years ago regarding the proposed amendment to the 50

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1995 Constitution in order to allow President Museveni to stand for a 3rd term in 2006. I opposed both the proposed amendment, as well as the projected manner in which the changes to the Constitution were intended to be effected, which was by referendum. My argument was that a referendum to amend the Constitution was not the proper method of effecting the change, since the letter of the Constitution simply did not allow it aside from the basic fact that increasing the terms of a President who by that time had been in power for nearly twenty years was a bad idea for Ugandan democracy. I argued that the primary problem facing Uganda was the unprincipled action of leaders determined to hold on to power. Invariably, these criticisms drew a negative reaction from State House. I was accused of being elitist, and of having equated the common people of Uganda to a mob because I said that a referendum in the conditions then prevailing would amount to ‘mob justice.’ Perhaps the friendliest attack was to be described as an ‘arm-chair’ politician, and being dared to submit myself to the electoral process and demonstrate that my ideas truly resonated with the general public. President Museveni labelled me an ‘Agent of Disorientation,’ and I was also accused (not for the first time) of partisanship. To this day, the State House website carries an unflattering description of me attempting to spread half ideological and political untruths about the democratization process in Uganda. I will return to the lessons of this foray into the public space after describing the other encounter I have experienced as an academic venturing out of the lecture room. As you may be aware, Uganda is currently engaged in an intense struggle over the issue of sexual orientation. Early this year, an over-zealous legislator called David Bahati drafted the ‘Antihomosexuality Bill.’ The Bill was ostensibly designed to achieve the “…strengthening (of) the nation’s capacity to deal with emerging internal and external threats to the traditional heterosexual family.” It argued that “…same sex attraction is not an innate and immutable characteristic,” and there was a need to “…protect the cherished culture of the people of Uganda, legal, religious, and (the) traditional family values of the people of Uganda against the 51

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attempts of sexual rights activists seeking to impose their values of sexual promiscuity on the people of Uganda.” The bill sought to strengthen the criminalization of homosexuality in Uganda by introducing the death penalty for people who were considered to be serial offenders; those who are suspected of “aggravated homosexuality” and are HIV-positive, or those who engage in sexual acts with persons less than 18 years of age. Ugandans who engage in same-sex sexual relations outside Uganda will likewise fall under the jurisdiction of this law, and may be extradited and charged with a felony. Furthermore, the bill required anyone who is aware of an offense or an offender, including individuals, companies, media organisations, or NGOs who support LGBTI rights to report the offender within 24 hours of coming by such information. If an individual fails to do so he or she is also considered an offender and is liable on conviction to a fine or imprisonment of up to three years. The Bahati Bill garnered a great deal of public support, despite the fact that the Penal Code already proscribed most of what can be described as homosexual activity. Indeed, some polls claimed that support for the Bill stood at 99.99% of the populace! Thus, on the one hand you had a proposed legislation which garnered considerable public support and which would have been passed by an overwhelming majority in Parliament had the opportunity arisen. There was clearly a public interest dimension to the Bill. On the other hand, for a Lawyer scholar-activist the Bill raised a number of disturbing issues regarding human rights, sexual autonomy and the situation of vulnerable minorities. It also surfaced a number of concerns relating to Said’s ‘unchanging principles’ on which public debate and action should be based. In these circumstances, what would be the role of the Lawyer scholar-activist? From my perspective, there was no doubt that the Bill had to be fought. Thus, together with a number of colleagues, we set up the Uganda Civil Society Coalition on Human Rights & Constitutional Law, specifically intended to ensure that the Bill was not passed by Parliament, and directly engaging with the issue of sexual orientation and the rights of sexual minorities. Through a series of targeted actions, including public sensitization and advocacy about the pitfalls of the Bill we went to work to ensure that the Bill did 52

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not become law. As of the present time, the Bill has been shelved, in part on account of the work of the Coalition and of like-minded individuals in civil society. Whether or not the Bill will remain shelved remains to be seen. My experience with the 3rd term debate and the Bahati Bill as well as with the other instances of public advocacy in which I have been personally involved present a number of broader lessons about public activism by an academic that I would like to share with you. First, is that the lawyer scholar-activist needs to be aware that there are many dangers and pitfalls to becoming engaged in the public arena. Speaking of the Public Intellectual, Alan Lightman states that,

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Such a person must be careful, he [or she] must be aware of the limitations of his knowledge, he must acknowledge his personal prejudices because he is being asked to speak for a whole realm of thought, he must be aware of the huge possible consequences of what he says and writes and does. He has become, in a sense, public property because he represents something large to the public. He has become an idea himself, a human striving. He has enormous power to influence and change, and he must wield that power with respect (Lightman, Id.).

From all these experiences I took many lessons. Taking up a public issue—especially one as controversial as issues of sexual orientation or the question of governance—can be alienating. Very few of my fellow academics are willing to be engaged in these kinds of issues, and even civil society was split down the middle. On the contrary, there has been a great deal of vitriol; we have been labelled as ‘Gay’ or ‘Gay lovers,’ of disrespecting African culture and of being on the payroll of the ‘International Gay Conspiracy.’ Thus, taking up public causes can be a lonely exercise. Out of the 3rd term debate, I learnt that for the Legal scholaractivist to be at all active on the political or social scene it is impossible to avoid being labelled as partisan. Indeed, the higher the degree of engagement and activism by the Lawyer scholaractivist, the greater the likelihood of being branded partisan. The fact is that once you are not on the same page as the government of the day, you will be regarded as against them and on the side of the 53

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opposition. The partisan label will invariably follow. However, in my humble opinion, keeping silent is also a partisan act in favour of the person or institution violating your rights or the rights of others. In other words, once you step out of the Ivory Tower to enter the arena of public debate and action, you lose the cloak of academic ‘objectivity.’ I have also learnt that at the end of the day, it is better to be labelled politically partisan than to be described as a ‘useful idiot,’ a term attributed to Vladimir Lenin—the founder of the Soviet Union—and used to describe those public intellectuals who defend the most oppressive and dictatorial regimes against any charges. It is much better to be labelled ‘Gay’ or ‘Gay-lover’ as me and my partner (another lawyer activist) have been, than to stand by and allow society—even if it is the majority of society—to take away the basic liberties and freedoms of any vulnerable minority, however detested or reviled they may be by wider society. Being a Lawyer activist-scholar dealing with the issues I have spoken about in this chapter—particularly questions of sexuality— is obviously not free from internal conflict and turmoil. Indeed, many of you might disagree with my stance on these issues. But as the great South African lawyer-activist-jurist Albie Sachs has said, in dealing with the Law, you must combine reason, passion and logic to balance the competing interests that make up society (Sachs, 2009). It is only where the full dignity of all has been realized and respected and everyone is given equal life chances that we can achieve a truly just and democratic society.

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5 The International Jim Crow: Globalization, Poverty And Contemporary Expressions Of Racial Discrimination I swear to the Lord I still can’t see Why Globalization means Everybody but me I swear to my soul I can’t understand Why Freedom don’t apply To the Black Man ...

Langston Hughes 1

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Who Is “In The Loop”? In a recent report about the impacts of globalization, the United Nations Development Program (UNDP) argues that the new information and communication technologies which are driving globalization are also polarizing the world into the connected and the isolated. “This exclusivity is creating parallel worlds” (UNDP, 1999). So much of the future of sustainable human development depends on who is “in the loop.” The ‘loop’ of globalization essentially refers to that network of “global elite” who are the main beneficiaries of late twentieth century developments “… in science, technology, communications and information processing that have made the world smaller and interdependent in so many ways…” (Alston, 1998 at 29). Outside the loop are the vast majority of humankind affected by the “invisible barrier” that “… is like a world wide web, embracing the connected, and silently—almost imperceptibly—excluding the 1

Jim Crow’s Last Stand (1943).

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rest.” (UNDP, op.cit.) 2 This critique of globalization is becoming increasingly common, but what is often absent from these discussions are the racial dimensions of the phenomenon. For example, there is no mention that women of colour are the most excluded from the loop (Orford, 1998, 171 and Sforza, 1999 at 141). The UNDP’s critique of the current forces of globalization advocates for globalization with a “human” face, but neglects to mention what colour that face might be. This chapter argues that globalization has resulted in a new international ‘Jim Crow.’ In American legal history, Jim Crow was that insidious and debilitating group of laws and structures that characterized much of the development of race relations in the United States after slavery and before the civil rights movement gained ground. Jim Crow mandated discrimination in housing, voting and even in sexual relationships between White and Black— those ominous laws which were directed against the offence of ‘miscegenation.’ They designated the Black race as an inferior one and even though many of the laws were promulgated after slavery, they had the same effect of designating people with a different skin as second class. Surprisingly, Jim Crow was in bold and manifest display at both the World Conference on Racism (WCR) at Durban, and later at the Johannesburg World Summit on Social Development (WSSD), both of which were held in the early part of the 21st century. 3 Much of the discourse about globalization is conducted from an ethnocentric, “World Order” perspective that does not take into account the relationships of power and domination essential to an understanding of the phenomenon. Stuart Eizenstat—former United States Secretary of State for Economic, Business and Agricultural Affairs—provides a succinct summary of this perspective:

2

The report states: “The Internet is linking people in a new global network, but access is concentrated among people in rich countries. OECD countries, with 19% of the world population account for 91% of users.” (inside cover). 3 The WCR took place in Durban in 2001, while the WSSD was held in 2002 in Johannesburg.

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By any measure, globalization is a net benefit to the United States and the world. Worldwide, the opening of once sheltered states and untapped markets has benefited nations and peoples from Seoul to Santiago and from Budapest to Botswana. Despite the current global crisis, real incomes in developing countries are still 50% higher than they were fifteen years ago. In twenty years, the poverty rate in Asia has been cut in half and more than 350 million people have been lifted out of destitution and hopelessness. 4

Forget for a minute the questionable Rostowian “trickle-down” theory by which Eizenstat was informed. However, perspectives such as his have serious implications for the overall observation and enhancement of the fundamental principles and norms of international human rights law. This is partly because they focus almost exclusively on macroeconomic categorizations of growth. Such categorizations omit both the essential aspects of equity, nondiscrimination and inclusion and the fundamental issue of sustainability that are today central to any conceptualization of development. For states located in the so-called “developing” region of the world, such perspectives raise serious implications for the struggle against the conditions of relegation in the global economic order to which they have been subjected for centuries (Slater, 1998 at 647). For some time, many in the human rights field considered the contemporary fascination with globalization to be simply another intellectual fad. This may explain why human rights scholars and activists were slow to examine globalization’s implications for the basic obligations of states and the other actors relevant to the debate (Orford, op.cit.). Indeed, in the debate over the promulgation of a Multilateral Agreement on Investment (MAI) in the mid to late 1990s, the human rights movement joined the struggle quite late. Activists from the labour, environmental and consumer advocacy groups led the movement against the treaty, which was ultimately abandoned by the Organization for Economic Cooperation and Development (OECD) (Oloka-Onyango & Udagama, 1999). There are numerous human rights obligations implicated in the discussion of these issues. Those obligations are inter alia to respect, 4

Stuart Eizenstat, “Learning to Steer the Forces of Globalization,” (Editorial) International Herald Tribune, Friday, January 22, 1999.

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promote and protect international human rights—obligations that are central to the effective enforcement of the basic elements of the movement (Eide, n.d., at 14 to 15). Most importantly for the purposes of the present analysis the right to be free from racial discrimination has long formed a central pillar of the human rights instruments. What should be of great concern is the near total absence of any analyses that connect the phenomenon of globalization to racism, racial discrimination and xenophobia. And yet, from instruments as diverse as the Universal Declaration of Human Rights (UDHR) and the two covenants, to the Convention on the Elimination of Racial Discrimination (CERD) and the Convention on the Elimination of All forms of Discrimination against Women (CEDAW), the issue of non-discrimination based on race is a critical issue. The globalization intellectual ‘industry’ has spawned a whole list of euphemisms that essentially mask the racial underpinnings and overtones of the phenomenon. 5 Indeed, they present a picture of a colour-blind globalization—a picture that grossly misrepresents existing reality. There is a very serious connection between globalization and racial discrimination in its contemporary manifestation. Given the problems associated with the issue of globalization— from both a conceptual and an empirical level—this Chapter contributes to the discussion from a human rights perspective and sets out to address the imbalance in the literature on globalization by critically examining the connection between the phenomenon and the continuing scourge of racial discrimination, racism and xenophobia. In this new epoch in human history, Jim Crow has gone international. Racism and xenophobia on the international scene are not simply an incidental by-product of the phenomenon of globalization. Rather, they are intrinsic to its various manifestations. Globalization is not a colour-blind phenomenon, and consequently, the response of the human rights community to

5

Among the euphemisms frequently in use are: “Poor”, “South”, “Developing”, “Migrants” (but only the illegal ones), and refugees. As Patricia Williams has said of the use of the term “underclass” in the domestic US context, it is simply another euphemism for blackness. See Williams, op.cit., 32-33.

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its adverse consequences must take this factor seriously into account. Comprehending Globalization

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Globalization has been described as the process by which the globe is rapidly becoming a single, fused economic unit—driven partially through the formation of regional trading blocs but increasingly across the globe. The driving force behind this global ‘free’ market, is “… finance capital, which moves rapidly from one part of the world to another,” (Pillay, 1997 at 4) and is “… made possible by the explosive strides in technology—particularly in communications and information—since the computer chip revolution in the 1960s.” (Id.) Although the foregoing definition is one most commonly in use with only slight variations, it does not canvass the various, even contradictory ways in which the phenomenon of globalization manifests itself (Giddens, supra., at 2). For the purposes of the present analysis, it is necessary to underscore the point that globalization has qualities that both liberate and empower, as much as it has qualities that marginalize and exclude individuals, communities, and whole countries from the benefits of the global bounty. Any discussion of globalization must capture and weigh both the possibilities for empowerment and liberation, as well as the dimensions that are destructive and violative of broad notions of human rights, racial equality, nondiscrimination and the struggle for Sustainable Human Development (SHD) (Stavenhagen, 1998 at 9).

Globalization in Historical Perspective Globalization is part of an historical process (Hall, 1991 at 20). Three distinct epochs or processes of globalization are discernible from an examination of human history (Chimni, 1999, at 338-339). The first era accomplished colonial imperialism in which capital crossed national boundaries and established itself as a political and economic force in non-Western parts of the world. Colonialism remained in place for several decades and only witnessed a demise in the aftermath of the Second World War and the decline of the hegemonic power of the western imperial powers. Colonialism was 59

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not simply an economic system. It also had tremendous cultural and social ramifications. Among the most distinctive of these was the racial. The racial dimension of the process came through quite clearly in the literary depictions of the African continent as ‘dark’ in the works of authors like Joseph Conrad and explorers like Henry Morton Stanley (Said, 1994, and Hochsfield, 1998). What can be described as the second stage of globalization gave birth to the internationalization or universalization of human rights principles and the growth of a global civil society. That process commenced within the interstices of the colonial enterprise, and in many respects was directed against the hegemonic overrule of western powers. One angle was manifestly political and rooted in the demand for the recognition of the right to self-determination and culminated in the liberation movements that eventually assumed the reigns of political power upon the attainment of independence. The second facet of this universalization commenced with the promulgation of the UDHR and has continued to the present time and been characterized by the elaboration of numerous standards and instruments that essentially encompass virtually the whole corpus of human existence. This second stage focused on the state as the critical unit but has not been free of ethnocentric underpinnings. Take as just one trite example, the right to self determination—a right central to both international human rights covenants. The contemporary manifestation of the right to self-determination in international law and practice retraces its origins through a labyrinthine panoply of Western theorists and politicians stretching from Jefferson to Wilson. And yet, historical and contemporary analyses of the phenomenon of Self-determination omit “… the parallel experience of the self-determination of non-Western peoples.” (OlokaOnyango, 1999). The second stage of globalization has run concurrently with the third—the age of late capitalism in which there is a manifestation of “…multinational hegemony and the dominance of international financial institutions both emerging as suprastatal centres of authority.” (Baxi, op.cit., at 39). The state has lost its central position. The critical difference with this second stage is the magnitude and speed with which the transactions that lie at the core of 60

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globalization have been executed. The three stages are connected, and indeed overlap, although it is necessary to decipher those elements which are novel and those that are basically a continuation from earlier ones. As Manuel Castells points out in describing globalization: A new form of socio-economic organization has emerged in the last quarter of the twentieth century…. Indeed, for the first time in history the entire planet is capitalist…. Yet this is a brand of capitalism that is at the same time very old and fundamentally new. It is old because individual satisfaction (deferred or immediate) is its driving engine. But it is fundamentally new because it is tooled by new information and communication technologies that are at the root of new productivity sources, new organizational forms, and the construction of a global economy (Castells, 1998 at 4).

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In the excitement of the truly revolutionary benefits that this third phase of globalization has brought to humankind we forget that it is part of a dialectical process of simultaneous gain and loss. Too often, the gains have tended to benefit those who are racially, sexually or economically dominant (and usually a minority) while the larger domain have lost out. Without appreciating the historical dimensions of the process of globalization, we stand to simply repeat the mistakes of the past rather than to learn from them. In the sections which follow, I consider some examples of the impacts of globalization in order to foreground the benefits which have accrued and posit those against the costs which have been inflicted.

T he Social and Economic Impacts of Globalization: Some Examples Structural Adjustment Programs (SAPs) Globalization has had a chequered career since it first became identified with certain specific economic formulations such as the liberalization of capital controls, the privatization of state-owned enterprise and SAPs (Chibundu, 1997 at 3 to 5). Designed by the International Monetary Fund (IMF) and the World Bank and known in popular jargon as the “Washington Consensus,” the latter have been in place in numerous countries since the early 1980s 61

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(Mkandawire & Soludo, 1999). Despite the almost frenzied liberalization of African economies throughout the 1980s and 1990s, and the application of stringent SAPs by multilateral institutions (MLIs) like the Bank and the Fund, Africa’s marginalized position in the world economy has not changed significantly (Hoogvelt, 1997). In fact, due to agricultural policies enforced by the IMF as part of a structural adjustment package, there has been a rise in poverty and food insecurity in Mozambique, Zambia, and Malawi. “…[T]here are also more specific links between agricultural liberalization and rising poverty. These include an inability to protect the poor from rising prices, failure of input and credit supply, and the failed liberalization of food reserves.” (Oxfam, 2002, at 4). At the same time, “while advocating market liberalization for Mozambique, Zambia, and Malawi, donor countries happily follow the opposite path at home, providing subsidies to their agricultural sectors and farmers.” The EU spends an average of $16,000 subsidizing their farmers, while the U.S. spends $20,000 per farmer. Yet these are the donor countries which push for the removal of subsidies in Sub Saharan Africa (Id at 9). Some scholars have even linked the rise in ethnic dislocation and tensions in the region to the socioeconomic forces unleashed by increasing globalization (Amin, 1998 at 31). Unemployment, homelessness and cuts in social services are not confined to any geographic location; globalization is wreaking its vengeance on every part of the world (Sané, 1994 at 41). Those who gain from these policies are invariably from a particular part of the globe. Their racial make-up is predominantly of a specific kind. A glance at the annual lists of the richest people in the world over the past decade will demonstrate this fact more aptly than any literal description. If you add to this the oft-cited fact that the world’s three richest individuals have more wealth than several developing countries put together, the inequities assume unacceptable dimensions. But it is not enough to consider only the contemporary manifestations of the phenomenon of globalization. They must be linked to their historical precursors. In so doing the connections and distinctions can be made between those forces which have 62

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evolved over time, and those which are genuinely novel in their evolution and impact. Asbjørn Eide’s remarks below provide some assistance in helping us to draw the necessary connection:

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The policies of structural adjustment pursued in the 1980s probably contributed in many places to intensified tension between the different ethnic, racial or social groups in society, and may have had enormous cost in terms of lost development opportunities … In recent years, the policies of structural adjustment have been improved but continue to carry risks for the economic and social rights of the most vulnerable part of the population (op.cit., paragraph 115).

There are distinct racial attributes possessed by the “most vulnerable part of the population.” Globalization has certainly fostered racism, negative ethnic differentiation and discrimination in many parts of Africa (Osaghae, n.d.). Links have been made between globalization in the form of SAPs and the rise of ethnic conflicts as well as the increase in xenophobia that has emerged in bold relief in the 1990s (Id., 44-54). SAPs have become the most prevalent modus operandi for the structuring of the economies of a majority of African countries goaded on by institutions like the IMF and the World Bank. According to Julius Ihonvbere, this has left the poor majority, with “… no option but to find solace, support and security in ethnic or communal associations where the state has woefully failed.” (Ihonvbere, 1994 at 51), although some scholars have also pointed to positive aspects of its impact, such as the consolidation of ethnic support groups for persons laid off from their jobs as a consequence of economic liberalization and privatization (Adekanye, 1995 at 335). In all these developments, the impact of globalization on the situation of women—particularly women of colour and especially women of minority and indigenous groups—has been tremendous. The effects of globalization are not similar for poor and rich alike. Thus, when policies like deregulation are accompanied by cutbacks in social services and amenities it is quite clear who bears the brunt of their removal, given that such programs were initially created for low-income people (Schmidt, 1995 at 75). It is also quite clear who the main beneficiaries of such policies are. In some 63

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instances, the delivery of such services is privatized and placed in the hands of a single company that proceeds to fix prices and engage in monopolistic practices thereby extending the pool of negatively affected individuals.

C ultural Homogeneity Upendra Baxi has provided a distinct and more colourful definition of the phenomenon of globalization which helps us to understand its implications for culture and society:

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The space for plurality shrinks to a point where the whole world becomes an endless chain of shopping arcades or chains of department stores, where all of us become potential Gremlins, lustfully mutated micro-organisms, in pursuit of instant, technologically mediated pleasures, stranger to the very idea of joy. The vision of global threatens to take away local spaces. “Think globally, act locally” is a maxim confiscated of its meaning in an era when the “local” becomes the ghetto of the “global.” One world imperialism is in the making of globalization (Baxi, 1994 at 45).

Baxi’s viewpoint illustrates that there are serious limitations with the most common definitions of globalization. The dominant emphasis on the economic aspects of globalization without considering its political, social and cultural consequences is disempowering in many respects (Slater, 1994 at 97). This is because it obscures both the potential and the actual destructiveness of the processes of economic globalization, as well as its connection to the phenomenon of racism, racial discrimination and xenophobia (Aina, 1997 at 8-10, and 18-20). But there is need for even more critical reflection on this matter. It is erroneous to imagine that all the peoples of the industrialized countries—clearly the main beneficiaries of the process of globalization—gain in equal measure. Thus, even within those regions that are ostensibly the main beneficiaries of globalization, there is a distinct pattern of benefit, which is highly exclusionary in terms of both race and class, not to mention the highly gendered aspects of the processes of exclusion and marginalization (Orford, op.cit.). In other words, growing inequality between major regional blocks and countries in the world is not the 64

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sole outcome of the processes of globalization. Thus, the UNDP recalls that, “In 1960 the 20% of the world’s people who live in the richest countries had 30 times the income of the poorest 20%—by 1995 82 times as much income.” (UNDP, 1998 at 29). There is also growing inequality within all these countries. Furthermore, where there are already manifest differentiations based on race, gender and class, these are exacerbated. Ali Mazrui mentions the twin phenomena of homogenization and hegemonization which have accompanied globalization. While “homogenization” is the process of expanding homogeneity, “hegemonization” is the emergence and consolidation of the hegemonic centre. This can be observed in things like dress codes, language, and educational systems (Mazrui, 2000). The growth of global industries like Coca-Cola and Reebok may initially appear to be quite innocuous. But, as the 1998 UNDP Human Development Report points out, there are “Global elites” and “Global middle classes” who follow the same consumption styles, showing preferences for “global brands.” (UNDP, op.cit., 1998 at 6). While UNDP points to the dangers to consumer rights entailed by processes of globalization, there is little doubt that the homogenizing influence of a global culture primarily characterized by consumerism adversely affects the status and well-being of minority and indigenous groups (Giddens, op.cit., at 5). As Fleur Johns has observed in relation to the Aboriginal peoples of Australia: “Without a positive right to determine their own cultural future, Aboriginal people have no international means of opposing incremental processes of cultural homogenization and cultural expropriation.” (Johns, 1995 at 173). Johns expounds upon this point with an examination of the boomerang, arguing that it has been “…transformed into a commodity and image [that] almost completely excludes Aborigines. As a souvenir or logo the boomerang is more emblematic of a culture and economy in which Aboriginal people remain relatively powerless than an image of Aboriginal culture itself.” (Id.).

TRIPS and Anthrax The process of globalization may itself carry within it notions of racial superiority and discrimination based on a vision of the world 65

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seeking to make uniform, to dominate or to suppress all others (Kaisiepo, 1998 at 13). Take, for example, the case of intellectual property rights (IPRs) which under the aegis of the WTO is covered by the Agreement on the Trade Related Aspects of Intellectual Property Rights (TRIPS). In the words of one author, TRIPS is basically designed to benefit, “corporatized, post-modern economies.” (Gana, 1995 at 143). Furthermore,

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By mandating this model, governments in developing countries are faced with the difficult job of destroying, or at least attempting to destroy, native conceptions about life and living and about what constitutes an ordered society. The allocation of material value to goods and the way in which this value is expressed, is grounded firmly in the history and evolution of a people. The internationalization of property rights threatens to undermine if not totally destroy, the values that indigenous systems ascribe to intellectual property and the manner in which they allocate rights to intellectual goods (Id.).

In this regard, international legal regimes that give shape and substance to the processes of globalization, foster the enhanced exclusion of groups that already exist in a disadvantaged relationship to society at large. When South Africa attempted to address the HIV/AIDS crisis in the country by permitting compulsory licensing for HIV/AIDS drugs, the U.S. accused them of violating the TRIPS agreement and the reprisal was swift and severe. The U.S. government warned South Africa that they would impose economic sanctions, a major U.S. drug manufacturer based in South Africa threatened to cease all operations resulting in a loss of thousands of jobs, and the International Federation of Pharmaceutical Manufacturers threatened to punish South Africa by refusing to introduce any new drugs, including AIDS therapies (Spectar, 2002, at 259-261). Interestingly enough, just as these measures were being introduced against South Africa, both the United States and Canadian governments argued that the potential public health emergency caused by anthrax would justify breaking the TRIPS agreement. The irony of this position was not lost on David Fidler, an international legal consultant for the U.S. Department of Defense who commented that, 66

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The anthrax attacks demonstrate that bioterrorism can trigger a public health emergency that may require governments to break patents. At the same time, the scale of the public health emergency in the United States caused by anthrax (twenty-two cases with five deaths) pales in comparison to the millions of HIV/AIDS-related deaths developing countries are suffering annually. Surely, if the United States can legitimately claim that anthrax attacks trigger the right to use compulsory licenses under TRIPS, then developing countries can legitimately claim that HIV/AIDS and other infectious disease crises, such as tuberculosis and malaria, are public health emergencies that allow them to use compulsory licenses (Fidler, 2002 at 21-22).

In a clear demonstration of double standards, the American powers justified action on the part of their own populations that they were simultaneously denying to others; how else can such action be described but as racism?

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E nvironmental Racism Racism and globalization come together in the environment, with the phenomenon referred to as “Global environmental racism”—a manifestation of a policy that has found domestic expression in countries such as the United States, but which also has a global dimension (Dent, op.cit., at 90-92). Within the United States, the problem of “environmental racism” arises when, “…decision-makers choose waste-disposal sites based on factors other than the equal distribution of the benefits and burdens of the location. Often, a location for a site is chosen solely on the basis of which neighbourhood is the least likely to present effective opposition to its selection as a disposal site. Empirical evidence suggests that such neighbourhoods typically are comprised largely of minorities and the poor.” (Marbury, 1995 at 279). And even when companies are found guilty of being polluters, the Environmental Protection Agency (EPA) fines polluters in white communities at rates 506% greater than polluters in communities of color (Lavelle and Coyle, 1992 at S1). At the international level, the phenomenon of environmental racism is a “…microcosm of the problem of hazardous waste exporting.” (Id., at 291). There is little doubt that such exports are largely targeted at countries that are poor and mainly located in the Southern Hemisphere of the globe. 67

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As Prof. Giddens (op.cit., at 5) has observed: “Some trans-national companies sell goods that are controlled or banned in the industrial countries—poor quality medical drugs, destructive pesticides or high tar and nicotine content cigarettes. As one writer put it recently, rather than a global village, this is more like global pillage.” Coupled with this is the phenomenon of ‘rotten’ or illegal trade in commodities such as drugs, arms, and tobacco to mention a few.

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Human Rights And Racial Discrimination: The General Picture Human rights issues are seriously implicated in the preceding discussion in several different respects, from the right to selfdetermination to the freedoms of association, expression and assembly (Butegwa and Awori, 1998). They also emerge in the respective obligations to protect, promote, respect and progressively realize the human rights standards that are central to this body of international law. The prohibition against racial discrimination is recognized as one of the most vital norms in international human rights law, enjoying the status of jus cogens, i.e. a peremptory norm of international law from which no derogation is acceptable. The term “racial discrimination” essentially means treating people less favourably than others on account solely or mainly of their racial characteristics. Discrimination may both be the result of ‘identical treatment’ in cases where different treatment would be more appropriate, or ‘different treatment’ in situations where persons should be treated the same (International Commission of Jurists, 1995). The processes of globalization in several different respects fail to meet this basic standard of compliance with the norm of non-discrimination. There are several relevant international human rights instruments to cite in connection with the preceding argument. Among them are the Charter of the United Nations, the UDHR, the two Covenants and most importantly, the CERD. Article 4 of the CERD, covers the requirement to criminalize racist hate messages—an obvious and growing location for which is the Internet that is perhaps the most symbolic feature of the globalization process (International Council on Human Rights, 68

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1999 at 43). Fundamental to any discussion on the issue of racism, racial discrimination and xenophobia is the 1948 Convention on the Prevention and Punishment of the Crime of Genocide. In addition, there is the UNESCO Declaration on Fundamental Principles concerning the Contribution of the Mass Media to Strengthening Peace and International Understanding, to the Promotion of Human Rights and to Countering Racialism, Apartheid, and Incitement to War (United Nations, 1994 at 126). The need to limit racist hate messages is implicit in basic human rights documents, extending from the UN Charter to the UDHR. Central to their ethos is the primacy of the right to equality and freedom from racism. Several regional instruments also recognize this primacy, as does the existing domestic legislation of several nations. In this respect, several countries do not uphold the right of free speech in absolutum. Such countries have outlawed certain forms of racist speech (Id., at 30). Of course, this does not eliminate the problem and (some may argue) it may simply force the expressions of racial hatred to assume different forms or simply to disappear underground. The Convention on the Elimination of All forms of Discrimination against Women (CEDAW) is important to this discussion because it generally outlaws any disparate treatment of women. Article 11 specifically deals with the issue of discrimination in employment, which in the age of structural adjustment assumes a particular importance. In instances of privatization, downsizing and the other essential devices of globalization, it is most often minority, indigenous and poor women who are most adversely affected (Keller-Herzog, op.cit.). The Convention on the Rights of the Child (CRC) has relevance to the issue of child labour, while the various instruments governing the situation of Migrant workers, minorities, and refugees are also critical in many different respects. Finally, the numerous International Labour Organization (ILO) conventions and recommendations are also pertinent. Although the standards relating to the treatment of the different categories of people covered by these instruments are fairly elaborate, the question of enforcement is an entirely separate matter. In the first instance, many states (the United States among them) have not even ratified several of these instruments. Others 69

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have entered reservations to some of these instruments, and thereby limited their potential impact and utility. Even for those states which have ratified the instruments with few or no reservations, compliance is an entirely different matter—ranging from the failure to issue reports on their individual country situations, to simply ignoring all the standards of enforcement that the instruments contain. Ultimately, one must look to the contexts of individual countries in order to secure more effective compliance with the basic tenets of the international instruments to which they belong. It is important not to confuse or collapse the concepts of “race” or “racism” and “ethnicity.” As Allen and Eade point out, racism and nationalism have particular qualities that make them different from other kinds of ethnicity. Furthermore, these qualities, “…also make them enormously important in modern states, and perhaps even more important as the sovereignty of states is being eroded by processes associated with ‘globalisation.’” (Allen & Eade, 1996/97 at 239).

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E nforcing State Obligations Human rights can only have meaning if they are enforced within the specific country conditions within which each individual exists. Unfortunately, globalization has reduced the role of the state, and as a consequence, increased the power of non-state actors, especially TNCs and MLIs. There is a lack of effective mechanisms to enforce the accountability of such non-state actors which allows them to even evade domestic laws (Schmidt, op.cit.). Many of these laws include principles of affirmative action for marginalized or traditionally discriminated groups, women, minorities and indigenous peoples. Furthermore, because they are private, nonstate actors, enforcing certain obligations like respect for Codes of Conduct, trade union laws, rights of association and expression, and a host of other protections for those who are vulnerable, may prove difficult. The process of “downward leveling” or the “race to the bottom” in which generally poor countries vie among each other to attract foreign direct investment (FDI) by the lowering of social protections, ultimately does not enhance the protection of fundamental human rights (Wirpsa, 1994 at 77). An aspect of such 70

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leveling which is often linked to the processes of globalization is the Economic Protection (or Export Processing) Zones (EPZs), that are increasingly being established in several countries in the South. Many do not have very well developed regulatory mechanisms. Nevertheless, Article 26 of the International Covenant on Civil and Political Rights outlaws discrimination on any ground, whether in the public or the private arena. It is thus impermissible to treat people less favourably than others on any grounds, unless there is an overriding justification (as with affirmative action) to do so. According to Eide the state has a dual role with respect to implementing human rights: The role of the State is therefore double-faced, like Janus. The State must respect human rights limitations and constraints on its scope of action, but it is also obliged to be active in its role as protector and provider. By necessity, there is some tension between these two aspects of the role of the State. It is both an ideological and a practical question whether the main emphasis should be on the constraint side or the action side. The real question is how the obligations of the State can be made operative in a way that ensures the optimal balance between freedoms and satisfaction of needs (Eide, op.cit.).

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But in many instances, the state has been rendered virtually impotent in the wake of the phenomenal growth of non-state power. Comprehending this power is the first necessary step that we must take before commencing a discussion of what to do about it.

T he Question of Non-state Actors If nothing, globalization illustrates that the power which nonstate actors have come to wield in the late twentieth century has become a major issue in the debate about the enforcement of international human rights standards. Prominent among such actors are the family (Coomaraswamy, 1997 at 19), communities, guerrilla (or rebel) groupings, terrorists, and—most importantly for the present discussion—transnational corporations (TNCs) and multilateral institutions (MLIs) (Kakaire, 1999 at 12-13). Viewed in isolation, such prominence would not be cause for alarm. However, the omnipotence of TNCs and MLIs coincides with the evolution 71

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of a particular doctrinal and normative framework regarding the issue of international trade and investment. It is a framework that seeks to minimize their obligations, while maximizing their benefits. That framework is essentially governed by an ideology driven by the primacy of the market-place, in which it is argued that government intervention in the market should be kept to a minimum—an ideology described by George Soros as “market fundamentalism.” (Soros, 2002.) But what this has meant is that pride of place has been given to an economic paradigm of growth through consumption—a paradigm that is inherently unsustainable, especially in relation to the environment. But it is also unsustainable in relation to a host of other social issues (Diller & Levy, 1997 at 678). In the area of international trade there is also a manifest duality in the legal regime and in practice. The philosophy of present-day international trade regimes ostensibly favours free trade. However, as Barry Coates has pointed out, in the contemporary world, such a notion is simply mythical—especially when applied to the industrialized countries of the West which have long dominated the arena of international trade. 6 At the core of this concentration of economic power today is the institution largely responsible for perpetuating the myth of free trade, the World Trade Organization (WTO). The basic philosophy of this organization is one that stands in stark contrast to contemporary international reality. As one observer has pointed out: Its notion of free trade relies on assumptions that are wildly unrealistic in a world where multinationals control 70 per cent of world trade; where environmental costs of production are loaded on to taxpayers instead of companies; where information is controlled through advertising and patent laws; and where corporations get away with forming secret cartels and avoiding tax. Small companies, especially those from poor countries, have little chance to compete. It’s like a schoolboy climbing into a ring with Mike Tyson. The rules may be the same for both, but competition is short and brutal (Id.).

6

Barry Coates, “Why Free Trade is a Myth,” The Independent (London), October 10, 1999.

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In so far as the issue of racism is concerned, one does not need to scratch very far below the surface in order to expose its ugly head. First, is the issue of the management of the institutions that govern and control the international economy. Leadership of both the IMF and the World Bank are shared by the United States and Europe. Management of the two institutions is shared by the two via unwritten (but intrinsically racist) custom, and has consequently been dominated by white males throughout their fifty year history. Even as Michel Camdessus announced his resignation, the search for his successor centred around European male candidates! 7 In the case of the WTO a bitter fight over the director-generalship led to an arrangement in which the candidate supported by the United States (Mike Moore) shared his tenure with the Thai economist, Supachai Panitchpakdi. What this demonstrates at a minimum, is that the degree of power and influence that these two geopolitical blocs exercise in the contemporary political economy is reflected within the institutional arrangements under which they operate. It is also a well-known fact that there is still a preponderance of western citizens who dominate the civil services of these institutions. In a nutshell, aside from the ideological context within which these institutions operate, the structural problems relating to discrimination based on race are abundant. Unless they are addressed in a frontal and direct manner, the plight of those who do not belong to the dominant racial makeup will remain unaddressed.

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T he Role of United Nations (UN) Mechanisms and Agencies In an extensive study of what he describes as the International Law of Development (ILD), Prof. James Paul argues that the law in this area has evolved over time since the establishment of the UN in 1945 (Paul, 1995 at 307). It is to the UN that we look as the primary progenitor and implementor of this law, and indeed in many respects, the UN has striven to address the inequalities of history and economy that continue to plague modern society. 7

AFP, “Scramble for top IMF job,” The Monitor (Kampala), November 13, 1999 at 16.

73

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Nevertheless, the law is still deficient in addressing the burdens “… created by unfair terms of trade, heavy debts, and structural adjustments. It does not yet address all the dangers to large numbers of people posed by unregulated flows of capital and industries in and out of countries, or other risks to the human welfare that seem to attend the new global economy.” (Id., at 313). In addition, even where ILD does attempt to address the inequalities intrinsic to the international legal regimes, it rarely takes into account the racial dimensions of those inequities. With the exception of apartheid (which was difficult to ignore) the connections between the inequities of trade and investment are rarely linked to their consequences in terms of discrimination based on race. In other words, in many respects these forces are viewed as colour-blind which is hardly the case. Given the above limitations in existing ILD, there is a need for a return to the notion of a human rights impact assessment (HRIA) that has intermittently been considered in UN fora since the late 1970s, and which was finally incorporated in the final Declaration of the Vienna Conference. According to Katrina Tomaševski (1995), The purpose of human rights impact assessment can be most succinctly defined as anticipating effects of the planned development cooperation intervention on human rights, in particular possible adverse effects, and facilitating the introduction of safeguards to either prevent or mitigate any adverse impact. The human rights impact assessment should thus anticipate and prevent, or reduce and mitigate, harmful consequences of specific development projects on human rights, and thereby strengthen the institutional capacity to recognize pertinent problems and respond to them within the context of international development cooperation (Id., at 409).

Such an assessment must begin by examining the issue of discrimination in all its manifestations, and especially that which is based on overlooking or undermining the racial attributes of the “other.” Only by critically engaging the issue in this fashion is there some hope for progress. But a systematic review of the issue cannot stop there. It is often believed that the traditional bogeymen of the international system—the World Bank, the IMF and the WTO—are those most 74

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responsible for the violation of human rights. But even organizations such as the United Nations Development Program (UNDP) may find themselves unwittingly subscribing to or creating projects and programs that have an adverse effect on the observation of human rights (Kothari & Prove, 1999 at 16). One of the most controversial of such recent programs is the Global Sustainable Development Facility (GSDF), that was conceived as a program of collaboration between the UN system (and particularly UNDP) and several multinational corporations (Karliner, 1999 at 318). However, there are even more powerful cartels that operate alongside TNCs and facilitate the achievement of their objectives through different, much less-transparent fora. It is not by accident, for example, that the aborted Multilateral Agreement on Investment (MAI) was conceived and negotiated through the Organization of Economic Cooperation and Development (OECD). Indeed, as one observer has pointed out: The United Nations, on its part, despite being the most universal multilateral institution, does not participate in the processes of negotiation and real decision-making concerning these vital topics. These power groups (the IMF, World Bank, OECD, and WTO—JOO), headed by the United States, use it within their scheme of a world government to legitimize their attempts to politically and militarily dominate the rest of the world, through the Security Council, and to impose the globalization of their political and ideological concepts (National Economist Association of Cuba, 1999). The struggle that then exists is for all organizations that operate on a global scale to become more fully appraised of the consequences of their actions. With particular regard to the racial implications of their actions, the Sullivan Principles developed in the late 1970s with regard to the apartheid regime may provide a model (McCrudden, 1999 at 172-175). However, the issue does not simply apply to TNCs. MLIs (including such notorious actors as the World Bank and the IMF, as well as those who have traditionally been viewed as less malevolent such as UNDP, the OECD or UNICEF) also need to adopt principles that bind them to ethical and non-discriminatory practices. Such organizations must look within and not simply with regard to the impact of their operations. 75

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I nternational Civil Society and the other Side of Globalization There is another related dimension that has accompanied the process of the internationalization of capitalism, and one that is critical to the debate. This “other side” in the debate about globalization is the phenomenal growth in non-state, relatively autonomous actors, concerned with issues such as trade, consumerprotection, the environment and human rights (Pasha & Blaney, 1998 at 422). This “globalized” civil society has emerged apace with developments in communications and the internationalization of legal principles from the UDHR to the recent Conventions on various aspects of the environment (Stanley, 1999 at 8). It has highlighted the possibilities of empowerment in the international domain (Bhabha, 1999 at 11). International civil society has successfully globalized many issues of contemporary concern to humankind, utilizing all the benefits of information technology and the other global means of communications that globalization has made available. Indeed, in the debate over the Multilateral Agreement on Investment (MAI), the operations of global civil society were crucially significant in the eventual abandonment of the process of negotiating the draft treaty (Oloka-Onyango & Udagama, op.cit.). One commentator thus described the confrontation between global civil society and the actors behind the MAI as “the clash of globalizations.” (Kobrin, 1998). A significant question nevertheless remains as to whether global civil society is itself free of many of the structural prejudices and elements of discrimination that they blame on others. For example, what is the degree to which civil society actors from the “South” effectively participate in the formulation of the mainstream global human rights agenda and influence its outcome? (Mutua, at 607626). Is global civil society truly free from the hierarchies of race, gender, ethnicity and class? How much attention is being paid to the debilitating consequences of the processes of globalization and the need for a genuinely holistic approach to human rights that does not privilege one category of rights over another? (Mumtaz, op.cit., at 17.) Such interrogatories of the movement assume particular importance if we proceed into a deeper examination of what issues 76

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the international human rights movement predominantly tends to focus its attention (civil and political rights), and its methodologies of operation (Mutua, op.cit., 589-657). There are many inequities that pervade the arena of global civil society in which there is supposed to be mutuality of support and action. Khawar Mumtaz has for example observed that at the World Conference on Population and Development in Cairo in 1994, women from the South “… found inadequate reciprocal sentiment for their issues of sheer survival in the face of rising globalization, for the right of quality of life and sustainable livelihoods. They found that the issue of globalization was not receiving matching support and attention that the women of the South were willing to give to the women of the North.” (Mumtaz, op.cit.). Vijitha Eyango has lamented the fact that the feminist movement in Africa has “…been shaped by everyone other than African women.” (Eyango, 1998 at 64). She has also pointed out that the discourse on gender equity in Africa continues to be determined by western interpretation and scholarship. Eyango laments that,

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… there is a shortfall related to the representation of African women in women’s organizations. Although there has been the explosion of international organizations dealing with gender equity in Africa, African women tend to constitute a small fraction of the overall organizational structure. The dominant structure represented in those organizations continues to be a western one which develops a framework of investigation aiming to integrate African women into the overall development process along lines similar to those faced by themselves (Id. at 64).

The message of the preceding laments is not one confined to the women’s movement. The message is that global civil society must step back and make an incisive and critical self-examination of the extent to which it also respects the human rights ideals to which it is bound. Global civil society must strive to free itself of debilitating social divisions that might be transposed onto the international arena (Pasha & Blaney, op.cit.). Given that civil society has been so critical in the globalization of so many of the basic ideas that have broken down barriers of inequity and 77

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discrimination, it should not itself fall prey to the very same fissures that have caused so much damage to the world. These fissures reveal themselves in the international discourse over female circumcision/female genital mutilation. Describing a vital aspect of African identity as ‘mutilation’ has proven offensive, if not psychically mutilating, to critical African constituencies like the Premier Group des Femmes d’Afrique who prefer to employ the term “female circumcision.” This semantic tug-of-war is emblematic of the constellation of misunderstandings that surround the practice (Obiora, 2000 at 262). Leslye Amede Obiora critiques the “…emerging radical feminist consensus that overwhelmingly ignores the incommensurability of cultural motivations and meanings by projecting Western understandings of female circumcision onto African cultures.” The Nexus Between Globalization And Racism, Racial Discrimination And Xenophobia

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There is little doubt that even as humankind has made significant progress in breaking down the formal structures of racial discrimination, differentiation, and xenophobia, these problems remain major social issues in numerous countries around the world (Jalali and Lipset, , 1998 at 317-343). To borrow the words of Patricia Williams: How precisely does the issue of colour remain so powerfully determinative of everything from life circumstance to manner of death, in a world that is, by and large, officially ‘colour-blind’? What metaphors mask the hierarchies that make racial domination frequently seem so ‘natural,’ so invisible, indeed so attractive? How does racism continue to evolve, post-slavery and post-equality legislation, across such geographic, temporal and political distance? (Williams, 1997 at 13).

Racism unfortunately continues to be pervasive in various aspects of contemporary human interaction—from the social and political, to the cultural and economic. Racism is not a peripheral matter. Rather, it is a structural phenomenon that must be dealt with as such. Although the past few years have witnessed an 78

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increase in the incidents of racism, racial discrimination and xenophobia, there is little doubt in my view that such increase is simply a manifestation of the resurgence of the phenomenon as a whole.

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Racial Discrimination in International Law The definition of “racial discrimination” in the International Convention on the Elimination of all Forms of Racial Discrimination (ICERD, 1965 at 47) is fairly comprehensive and seeks to cover virtually all the mechanisms and processes of distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin. Nevertheless, some commentators have criticized the CERD definition as not being broad enough. Berta Hernández-Truyol for example, has critiqued the definition because it “…effectively institutionalizes the US construct for the analysis of race: binary white/black paradigm.” She argues that this model is “…underinclusive, incoherent, and misdirected by virtue of its conflation and confusion of interdependent and indivisible but holistic and nonatomized identities.” (Hernández-Truyol, 1997 at 413). Lisa Crooms has also argued that the conceptualization of race in the ICERD assumes that maleness “… represents a point of gender neutrality and the centrality of principles of formal equality to (US) anti-discrimination law.” (Crooms, 1997 at 620). Furthermore, that “Race is conceptualized in phallocentric terms that cannot handle, as race claims, those women’s human rights violations for which there are no parallel violations for men.” The short point of both these critiques is that the definition in the Race Convention was built in the image of the United States and that image is an essentially male one—clearly a limited paradigm within which to conceptualize and address the issue on a universal level. These contestations raise serious questions, particularly about the gendered character of definitions that are employed in international legal instruments—a phenomenon that has been pointed to as one of the many debilitating factors in the realization and protection of women’s international human rights (Charlesworth and Chinkin, 2000). For women of colour around the world, such discrimination is compounded on account of the 79

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racial factor (Oloka-Onyango, 1996). Of course they also raise serious questions about the fashion in which we view the whole issue of race. For the purposes of the present analysis, racism can be described as an ideology of racial supremacy and the mechanisms used to keep selected racial groups in subordinated positions. It includes violence and genocide; racial hate messages, disparagement and threats, overt and covert disparate treatment as well as sanitized racist comments (Matsuda, 1993). The ideology of racism is reinforced by “gutter racism, parlor racism, corporate racism and government racism… with violence as a necessary and inevitable part of the structure of racism.” (Id., at 24). Within the context of the phenomenon of globalization, racism assumes more importance when the question is addressed to the private, as opposed to the public dimensions of racism. 8 The discussion around environmental racism helps to generally define racism. Environmental racism need not be a conscious effort to continue the subordination of a race of people – any action that has negative predictable consequences for racial minorities can be an act of environmental racism. And simply taking a color-blind approach does not eliminate the possibility of environmental racism. According to Torres, “taking into account the racially distributional impacts of a particular regulation [or action] may be required in order to avoid perpetuating a racially identifiable set of harms.” Such a color-blind approach merely changes the action to an “averse” racism but racism nonetheless. (Vasquez, 1993 at 368). As critical race theorist Gerald Torres explains, “When seeking to determine whether an activity is racist, the one characteristic that must be present is one of domination and subordination. The action need not necessarily be one of intention…” He goes on to explain that “…regulations gain no immunity by claiming colorblindness where a demonstrable impact on subordinated racial groups exists. In fact, the most common expressions of racism today take an ‘aversive form.’ Hewing to a strict color-blindness 8

Article 2(d) of the CERD stipulates that states parties have a duty to bring to an end “…racial discrimination by any persons, group or organization,” which provides the obvious legal foundation for action against private actors. The implementation of this provision is of course not without difficulty.

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defense in the construction of seemingly racially neutral policies may be nothing more than the legal expression of an aversive form of racist behavior.” (Torres, 1992 at 839-840). Similarly, not all the racism that results from globalization is intended, but the fact of negative predictable consequences for people of color is sufficient to define the processes as racist. The public/private dimensions of the issue assume particular importance in the discussion about the links between racism and globalization, given that the most prominent actors involved in the process of globalization are private, non-state entities, such as transnational corporations (TNCs). Michael Posner has made the following observation of this issue:

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… there are also big international companies, many of them based in the United States and the West, that are in the middle of this discussion. The question is what affirmative obligations or responsibilities go with being an economic actor in this setting? We should discuss how to enforce rights or standards—which are fairly clear on issues like non-discrimination, slave labor, or even child labor. There is an emerging consensus that these are rights and standards, but when local governments are weak or unwilling to enforce, what is the affirmative obligation of companies?” (Harvard Human Rights Program, 1997 at 18).

Together with the other prominent actors in the debate on globalization—such as the multilateral institutions (MLIs) like the World Bank, the International Monetary Fund (IMF) and the World Trade Organization (WTO)—comprehensive mechanisms of human rights supervision and enforcement are still largely lacking (Messner, 1999 at 4). Effectively engaging this issue in an exhaustive manner is an obligation for all states, civil society and for the United Nations.

The Many Faces of the Global Jim Crow The 1990s and early 21st century have witnessed what can only be described as dramatic global developments with regard to issues concerning racism, racial discrimination and xenophobia. On the one hand, it is the decade of the final collapse of official apartheid in Africa, and, on the other, of the genocide in Rwanda. It is both the era of “multiculturalism” and “World Music” and of “ethnic 81

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cleansing” in the Balkans. Overall, there is an alarming rise in the phenomenon of racism, racial discrimination and xenophobia, and in particular, the incidences of violent and virulent forms of racism and negative ethnic differentiation appear to have gained in strength. In many respects, both the positive and the negative developments in this area can be related to the phenomenon of globalization (Thomson, et al, 1995 at 1). Jim Crow is very much alive on the international scene. The methods by which the structures of racism are perpetuated are varied, and include both low and high levels of distribution, ranging from graffiti to violent murder. The shocking decapitation of James Byrd Jr. who was tied to the fender of a car and dragged for two miles is one such recent example of the latter. 9 In the age of globalization, a particularly disturbing format for the distribution and propagation of racist messages and symbols is the Internet, which has literally exploded onto the global scene in the last several years. The benefits of the World Wide Web are numerous and fairly obvious in breaking down the barriers of communication, creating global issue-based networks and releasing a flood of information. However, the same mechanism can just as easily be used to pervade violent, sexist, hateful, pornographic and invariably racist data. Those sites have heightened the use of the medium as a particularly effective, and difficult to manage forum for the transmission of racist and xenophobic messages. According to one observer speaking of the medium with respect to violent sites: “There’s still a little bit of the wild, wild Web aspect of it.” 10 The same applies to racist sites. Indeed, in many respects, the process of policing such portals of technological expression is extremely difficult. As Joel Wallman has observed: “Movements which are small and isolated in their own countries gain solace and often practical assistance from like-minded groups abroad.” (Wallman, 1996 at 21). The Internet has greatly facilitated this global process of the international consolidation of hate (Banton, 1999 at 13).

9

See, “Painful Killing Described As Trial Nears its End,” New York Times, February 23, 1999, A16, col.2. 10 See Reuters, “Victims call for end of web violence,” reported in the New Vision, May 26, 1999 at 20.

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In similar fashion, radio—as in the case of Radio-Télévision Libre des Milles Collines (RTLM) that played a supremely negative role in the Rwandan genocide—is an even more powerful and pernicious tool (Metzl, 1997 at 629). This is particularly the case in societies that suffer high levels of poverty and marginalization, attended by illiteracy and dictatorship where alternative and oppositional politics is highly circumscribed. Unfortunately, sometimes the connection of such societies with the forces of globalization—which may be manifested in the form of international arms transfers (in the case of Sudan, Angola or the Congo) and SAPs (in relation to Burundi)—is not necessarily positive (Ndikumana, 1998 at 43). The former provide the necessary tools with which to promote armed conflict which often leads to ethnocide, while the latter have exacerbated conditions of unemployment, social exclusion and dispossession, the combination of which adds fuel to underlying tensions.

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Women of Colour and the Phenomenon of Globalization There is little doubt that globalization does not affect all people in equal measure. Just as globalization has produced a “north” in the “south” (with a number of beneficiaries of globalization being based in those developing countries worst hit by the ravages of adjustment) it has also produced a “south” in the “north.” The “south” in the “north” is confronted in many of the inner city ghettoes that are part and parcel of the urban landscape of the twenty-first century capitalist city. Whether in the north or the south, it is quite clear that women of colour often face the brunt of the negative impact of the processes of globalization. It is trite to note that because of the aforementioned factors, globalization has impacted greatly on the process of the migration of women from the less privileged parts of the world to work as domestic staff, and in even less savoury professions. Women from the Philippines, Bangladesh and other Asian countries travel to find work in the Middle East where they are the subject of a host of discriminatory practices, including sexual violence. Referring to the report on Kuwait by the Committee on the Elimination of Racial Discrimination (CERD) on this matter, David Weissbrodt has pointed out that women domestic staff are subject to, “… debt 83

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bondage, other illegal employment practices, property deprivation, illegal confinement, rape and physical assault.” (Weissbrodt, 1999 at 13). He further points to the very serious problem of the trafficking in women that takes place both between and within regions:

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Women and children become vulnerable to trafficking because of social and economic relations of power, including “the economic disparity between the richest states or regions and the poorest.” In many countries, large proportions of prostitutes are illegal immigrants—often trafficked women and girls (Id., paragraph 89, at 28). 11

We need not point out the obvious: women and girls are the disproportionate victims of such practices, and of numerous others that have evolved in response both to the economic crisis, as well as to the insatiable greed of men with wealth and power. This is most clear in the case of sex tourism (Keller-Herzog, 1999, at 9). But it finds expression in different arenas of social existence also. Thus, a recent report on child mortality which compares Uganda, Mexico and several cities in the United States, concluded that despite the phenomenal improvements in health care in general and child survival specifically, the rate of infant mortality is worse than that of twenty other industrialized countries (Minnesota Advocates for Human Rights, 1999, at 165). This statistic is compounded by the following stark fact: “Gross disparities in infant and child mortality rates persist among different groups in the country. Poor children and Black children are the most vulnerable. Black infants die at more than twice the rate of White infants…. These disparities are growing in terms of both race and poverty.” (Id.) The intersection between race, gender and class is vividly brought to the fore by Kimberlé Crenshaw in discussing the contemporary situation of African-American and Latina women in the United States: Burdens of illiteracy, poverty, child-care responsibilities, the lack of job skills, along with the pervasiveness of discrimination, make it difficult for women to establish independence. Securing even the 11

Also see notes 39, 40 and 41.

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most basic necessities, such as housing, is beyond the reach of many. This pattern is particularly common among battered women who seek protection in shelters, since women with independent sources are more likely to seek private assistance. Yet, even women who have sufficient economic resources often face housing problems, as they are likely to encounter discrimination on the basis of race, gender, class and family status. This is especially the case for AfricanAmerican women.

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Indeed, the above description could easily be applied to any country in the south. To conclude, globalization has radically altered the situation of women around the globe. Although it has certainly created new opportunities and inlets for women in the marketplace—opportunities that were previously closed to them— many of the costs of such incorporation outweigh the benefits. In the particular case of women of colour, any assessment of their situation must clearly be tempered by the reality of their systematically regimented exclusion and exploitation. To borrow the words of bell hooks in lamenting the fact that the feminist movement did not go far enough for women of colour, The feminist movement we dreamed would change the lives of all women for the better has had little impact on the lives of masses of women. It has most positively changed the lives of well-educated women with varying degrees of class privilege. Thirty years ago, most of these women were white; today they come in varying shades. But as their class power has increased, and with it their acceptance into the mainstream, male-dominated worlds, they have abandoned all concern for women who are working-class and poor. Sometimes when I am on these streets, I feel I am in the old South; in the affluent world around me, dark-skinned nannies tend the children of the mostly white women who are “liberated”—free to have careers, to stay out all night, to pay someone else to the dirty work of childcare and housework (hooks, 1999, at 9). 12

Immigration and Migration Ali Mazrui points out that at the same time that there is a cultural Westernization of the world, there is also a “post-colonial 12

bell hooks, “The American Century Women: How was it for them?” The Guardian (London), November 8, 1999, at 9.

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demographic counterpenetration.” (Mazrui, op.cit., at 7). Globalization promotes the free movement of goods and capital but controls the movement of certain kinds of people, particularly refugees, asylum seekers and migrant workers. In some ways, the role of the state has diminished, but in other ways, particularly in terms of regulating and policing immigration, its powers have increased. Nowhere is this more apparent than in the arena of immigration and asylum law and policy, especially in Western countries, where “Fortress Europe” (O’Keefe, 1995) and “Fort Knoxica” are the dominant policy frameworks governing contemporary approaches to the phenomenon of immigration and even to the provision of asylum (Frelick, 1998 at 268-271). April Gordon points to the “growing fear” of many in Europe and the US that “… there are too many immigrants, that many of them are racially and culturally unassimilable, and that they take jobs from the native population.” (Gordon, 1998 at 97).

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I ncreased Xenophobia A classic example of the Fort Knoxica syndrome can be found in Proposition 187 that was passed by California voters in 1994 and was designed to exclude immigrants from education, medical care and social service benefits, and also prohibit public schools from admitting undocumented alien children (Jamison, 1995). The law also compelled each school to verify the immigration status of any student, parent, or guardian suspected to be out of status. Fortunately, in the case of United Latin American Citizens v. Wilson 13 the Court enjoined the enforcement of the law in so far as it limited the right of undocumented alien children from attending public schools. On the negative side however, the Court did not invalidate provisions in the law that prevented undocumented aliens from receiving public, post-secondary education as well as certain welfare and medical benefits. The belief that globalization leads to an increasingly unified ‘global’ world, is rather misleading. Simultaneous to the very processes of opening up, there are parallel movements of closure that manifest the duplicitous nature of the phenomenon. Thus, 13

C.D. Cal. 1995.

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while the contemporary forces of globalization are increasingly dismantling economic boundaries, physical and geographical borders are in fact becoming even more rigid. Unfortunately, the rigidities are often imposed on the basis of considerations that are ultimately discriminatory in nature (Shore, 1996/97). The simultaneous opening and closure of Europe through political and economic integration may have fostered the spread of xenophobia and ethnicity (Id., at 259). In this way, processes such as economic integration that are at the core of the phenomenon of globalization, enhance the marginalization of many non-white Europeans, thereby compounding the conditions of discrimination which they already face. Post-Cold War Europe has been characterized by the emergence of “… ethnocentrism, virulent nationalism and religious extremism.” (van Boven, at 107.) The rise in xenophobia and overtly racist practices has led to a serious diminution in the legal protection of refugees, migrant workers and asylum seekers in many countries (Muus, 1997). It goes without saying that those most adversely affected happen to be people of colour (Jalali and Lipset, op.cit., at 323). In a far-reaching analysis of identity, citizenship and exclusion in Europe, Jacqueline Bhabha demonstrates that the situation of non-nationals in the context of consolidating “Europeanization” is unfortunately one of increasing marginalization: Racial harassment and violence persist across EU member states. Discriminatory police behaviour and visible ghettoization characterize European metropolitan cities. Widespread racism in employment and in the provision of public services remains a matter of acute public concern across the EU. Despite formal legal entitlements to an extensive range of state benefits, in practice, Europe’s third country nationals do not enjoy the full civil rights to which the “native” population has access (Bhabha, 1998 at 602). 14 14

In a later paper, Bhabha demonstrates the dialectic of European integration that simultaneously includes and excludes: “The creation of a seamless European space has encouraged the reinforcement of the external boundary, with free movement presupposing restricted movement from outside. European coordination and harmonization have generally resulted in the imposition of the most restrictive rule or lowest common denominator, as states have compiled shopping lists of excludable categories or nationalities to comply with each of

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The resurgence of racism, racist practices and xenophobia are of particular concern among several of the institutions that are supposed to be central to providing solace and protection to the populace. Most prominent among them are the Immigration and Police services, many of which over the past few years have manifested attitudes that demonstrate a growing insulation from the changing demographic situation around them. Nineteen ninety-nine witnessed the choking, suffocating and shooting deaths of refugees, immigrants and asylum seekers (particularly Africans) in Austria, Belgium, the United States, and Germany, culminating with the death of a Sudanese deportee on a flight from Frankfurt to Cairo (Latter, 1994 at 191-192). Those deaths have either been at the hands of Police officials or Immigration Officers, with among the most brutal being the death of Guinean immigrant Amadou Diallo shot over forty-one times by members of the New York Police Department (NYPD). 15 The report of an inquiry into the death of Stephen Lawrence in the United Kingdom provides an illuminating definition of the resilience of a phenomenon first cogently described in the mid-1960s as “institutional racism”—a phenomenon by which the learned Commissioners were convinced the London Metropolitan Police Service (MPS) was plagued. To quote: “the concept of institutional racism which we apply consists of”: The collective failure of an organization to provide an appropriate and professional service to people because of their colour, culture, or ethnic origin. It can be seen or detected in processes, attitudes and behaviour which amount to discrimination through unwitting prejudice, ignorance, thoughtlessness and racist stereotyping which disadvantage minority ethnic people. 16

their concerns, and to secure agreement on the acutely sensitive topic of immigration control and asylum policy.” (Bhabha, 1999 at 18). 15 Ronald Kayanja, “Fighting Racism? You Need Money,” Sunday Monitor, March 14, 1999, at 29. 16 ¶ 6.34 THE STEPHEN LAWRENCE INQUIRY: REPORT OF AN INQUIRY BY SIR WILLIAM MACPHERSON OF CLUNY, CM 4262-1 (February, 1999), accessed at: http://www.official-documents.co.uk/document/cm42/4262.html.

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It is not enough to believe however, that humankind has simply reverted to the most basic of instincts. Differentiation within those countries where globalization is believed to be leading to dramatic levels of economic growth and development (especially in the West) appears to have become part and parcel of the process. Globalization thus essentially benefits a small, privileged minority, while marginalizing a considerable number, often erroneously referred to as the “underclass.” (Williams, op.cit., at 32-33). That marginalization—which disproportionately affects people of colour, immigrants and women—explains why even in the midst of globalization processes that have dramatically increased levels of overall (global) wealth, there is also growing immiseration. The differential forces that motivate the phenomenon can also partly explain the increasing incidents of racism, racial discrimination and xenophobia. Although grounded in xenophobia, such fears may reflect certain realities that stem in part from the phenomenon of globalization. In the first instance it demonstrates that the contraction of the world has made movement much easier. This has resulted in more people of “difference” seeking various opportunities wherever they can be found. At the same time, the fear of immigration is fuelled by the differential benefits of globalization. While a handful of TNCs graduate from making super-profits to reaping mega-profits, the gains made are being accrued in a context of “recession, restructuring, and deindustrialization.” (Id., at 97). The result is the loss of numerous jobs and the stagnation of people’s incomes. For those who believe that the country “belongs” to them, it is but a short step to find a scapegoat in the “other.” Latent xenophobic feelings are easily translatable into violent and virulent forms of racism directed against those who are viewed as exacerbating the problem: “they’re taking our jobs!” becomes the common lament.

Disparity in Refugee Treatment In the United States, Haitian refugees have suffered from explicit disparate treatment. Recently, national television showed 220 Haitians jumping off a ship and rushing towards dry land. Viewers also saw the Haitians as they were rounded up and jailed in 89

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detention centres. Last December, President Bush signed an executive order to require that Haitians be treated differently than all other refugees; they are detained without any right to bond hearings. When questioned about this disparate treatment, President Bush said that “the immigration laws ought to be the same for Haitians and everyone else, except for Cubans.” He neglected to say that it was his executive order that had caused Haitians to be jailed without bond. 17 Unfortunately, latent racism (aversive racism) sometimes afflicts the international humanitarian system—that body of instruments and institutions that has assumed even more prominence in the age of globalized crises. Within the context of the refugee crisis for example, dual regimes or systems of support and protection have manifested themselves time and again. In the wake of the crisis in Kosovo, some observers commented on the differential treatment of refugees who are white and those who are not. Miller and Simmons have examined the disparate treatment in the diet and rations, health services, shelter provisions and even water rations between refugees from Kosovo, and those in many African situations. 18 The situation of African refugee and internally displaced women acutely brings together the relationship between gender, racial discrimination and the loopholes in contemporary international legal standards. Globalization has relegated black, African women to the bottom of the heap.

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Success Stories In the case of the sanspapiers (migrants without legal papers) movement in France, an alliance of sympathetic organizations and individuals in France came together to combat the racist effects of France’s immigration laws (Lloyd, 1998 at 58). They went as far as establishing a Website in English, French and Wolof that provided 17

See, Clarence Page, ‘The President’s Boat People,’ Chicago Tribune, Nov. 6, 2002, at 27; Rosemary Roberts, ‘What if Haitians Had Been British?,’ News and Record (Greensboro, NC), Nov. 1, 2002, at A19; Kathie Klarreich, ‘Detention of Haitian Refugees Stirs Debate,’ The Christian Science Monitor, Nov. 4, 2002, at 2. 18 Christian Miller and Ann Simmons, Chicken for Kosovo Refugees, no water for the Africans,” The Monitor, May 26, 1999, at 14 (originally printed in the Los Angeles Times as “Relief Camps for African, Kosovars Worlds Apart,” on May 24, 1999).

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tremendous inspiration to other undocumented workers in the rest of Europe and North America. Information technology has allowed for news about human rights violations to be instantaneously transmitted from any point in the world, enabling the movement to activate its traditional instruments of human rights action—the pooling of common human outrage and the mobilization of shame. In other words, the story of globalization has not all been negative. In the words of Barry Carr when referring to the growth of social movements in Mexico and the United States in response to the NAFTA,

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The 1990s have seen the emergence of a variety of social movements (worker unionist advocacy groups, environmental, human rights and indigenous organizations) which have learned how to exploit the internationalization of politics, economic life and communities in order to build cross-border alliances in the first and third worlds (Carr, 1999 at 49).

In New York City, a diverse group of women working as domestic workers joined forces to push for the passage of a bill in the New York City Council that would protect the rights of the city’s 200,000 domestic workers. Within the movement, there is growing solidarity between African-Americans and women from the Caribbean, Latin America, and Asia who make up the bulk of the industry. One organizer commented that “People feel it’s more appropriate for women of color to be doing this work. They still see domestic workers as this product that you purchase as part of a lifestyle and that has a lot to do with racism and sexism in our culture.” 19 But, their group, Domestic Workers United, challenges these ideas by lobbying the city to enforce a code of conduct that would reflect basic fair labor standards including minimum wages, overtime, and Social Security payment. 20

19

Lynda Richardson, ‘Public Lives; A Union Maid? Actually a Nanny, Organizing,’ The New York Times, April 4, 2002, AT B2. 20 Chisun Lee, ‘Domestic Disturbance,’ The Village Voice, March 19, 2002, at 31.

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Racism And Globalization In The Post-9-11 Environment In the first week after 9/11, 645 separate incidents of backlash against Americans of South Asian or Middle Eastern descent were documented. The backlash included verbal and physical harassment, property damage to homes and places of worship, and even murder (South Asian American Leaders of Tomorrow, 2001, at 3). After 9/11, the INS in New York began doing sweeps of local mosques, and detaining any immigrant whose papers were not in order. Justifying this unprecedented violation of civil liberties, U.S. Attorney General John Ashcroft explained that

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You want any population that might be thinking about committing a crime to be unsettled and distressed about it. So you have an elevated profile of enforcement. There is going to be an awareness in the community that we are going to ask people to do that in such a way as to elevate a sense among those who would break the la that it isn’t the thing to do. 21

The initial wave of private citizens committing hate crimes has considerably eased, but as one commentator writes, “…individuals and communities continue to bear the effects of the ‘public’ violence as well as the collateral effects of profiling in the workplace and in their neighbourhoods (Ashar, 2002 at 1196). Minority communities—especially those who are not ‘native’ continue to remain under suspicion, with profiling becoming a daily pattern of their lives. In sum, extremism was met by extremism. Certainly this backlash has done nothing to bring the different groups in society closer together. Conclusion There can be no doubt that globalization has critically opened up contact between different parts of the world. Information and Communications Technology has led to the much faster spread of news, of gadgets and of ideas. This ‘villagization’ of the world has meant that economic opportunites that were previously closed or 21

Jeffrey Toobin, ‘Ashcroft’s Ascent,’ The New Yorker, April 15, 2002, at 53.

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difficult to get to are now very much on the horizon. It is this villagization which explains why global economic production has been boosted by such phenomenal amounts in a very short span of history. However, there is a deeply contested vision of what globalization precisely means and of its respective benefits and disadvantages. Unfortunately, we have heard too much of one side of the story—the side which strives for the Coca Colonization of the world, and whose dogma is ‘Markets, markets, markets!’ irrespective of whether their intervention in the market is positive or not. It is a view that seeks to re-create the world in its own image, and in the process to do away with any competing visions of what should be allowed as the ‘global.’ This view of globalization is essentially an economistic one. It is a hegemonic one. And it is one that seriously dissempowers those involved in the struggle for basic human rights and the abolition of all forms of discrimination. It negates the freedom of choice, it fosters the heightened exclusion of minorities, of women and of other marginalized groups, and it promotes insidious forms of ethnic and racial chauvinism and xenophobia. To compound it all, globalization conceals a very uncomfortable reality. The reality is that the true beneficiaries of globalization are in the main not people of colour, although vigourous attempts have been made to conceal this fact. The euphemisms for race in the globalization debate are now numerous. Among them, the most obvious are: ‘Poor,’ ‘South,’ ‘Developing,’ ‘Migrants’ (mainly of the illegal type) and ‘Refugees.’ These are almost exclusively people of colour. And that is the basic problem with globalization. The larger problem is not simply that globalization has produced a resurgence of ‘incidents’ of racism. The fact is that the phenomenon as a whole needs to be grappled in a more comprehensive and far-reaching fashion. Even as one of UNDP’s so-called ‘global elite’ who according to the 1999 UNDP Human Development Report is ostensibly ‘in the loop’ (i.e. connected to the Internet, able to travel outside my own country with relative ease, and spared the near-death existence in which the vast majority of humankind is today trapped) the phenomenon of racism stalks me too. Indeed, it is not hard for a black person of whatever status in life to imagine themselves meeting the fate of a Stephen Lawrence in Britain (whose racist 93

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death and the Police investigation were the subject of the McPherson Inquiry in 2001); a James Watt who was decapitated on a lonely Texas road for the sole reason of being Black, or an Amadou Diallo who died for the innocence of being a Guinean immigrant in the line of fire of a New York Police Department (NYPD) possé. The fate of all these people was inextricably linked to the fact of their skin colour. Moreover, their deaths happened in what ‘Patricia Williams has called an ‘officially colour-blind, postslavery and post-59 equality legislation’ world. The stark reality is that being black means that one is effectively placed ‘outside the loop’ of globalization. The UNDP statisticians tell us that the 225 wealthiest individuals on this planet have an income equal to 47% of the world’s population; who are these 225? The standard answer is that they are almost exclusively from the ‘Northern’ hemisphere of the world. That may be true, but we know that there are also people of colour in the geographic North. The more critical question to ask is how many black people make it into the list of the Fortune-500? The UNDP statisticians have also developed the now-famous Champagne glass illustrating the distribution of global income and demonstrating that the top 20% of the population consumes 82.7% of global income, while the bottom 20% consume a mere 1.4%. What they do not illustrate are the colour shades behind these statistics, viz., the top is white and the bottom is coloured. And in this instance, there really is no mixing.

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Part II

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Addressing Regional Questions

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Truth and Reconciliation Commissions: Assessing the African Experience1 Since the mid-1970s, transitional justice has emerged as a major approach for countries emerging from conflicts in which there have been wide scale and grotesque human rights abuse. The main challenge faced is of determining who was responsible for the atrocities and assigning appropriate punishment. There is thus a need to ask a number of questions, including the following: 1. What were the forces that led people to commit such crimes? 2. How many people (and who) were involved in the atrocities? 3. How do you best go about achieving reconciliation? To begin answering these questions, it is necessary to start by asking: What is Transitional Justice? Several definitions of the term have been given. The first is that transitional justice is a response to widespread or systematic violations of human rights. The second is that it is a process of seeking recognition for the victims, and the last is that it is designed to promote possibilities for peace, reconciliation and democracy. It is important to emphasize the point that transitional justice is not a special form of justice (adapted to societies-in-transformation); it cannot be permanent, and must eventually give way to more formalized and institutionalized mechanisms for dealing with disputes and legal conflicts in society. Significantly, the approach of transitional justice was first applied in Latin America and the former communist bloc countries of Eastern European in the 1980s and early 1990s and mainly in response to political changes in these regions of the world which were accompanied by demands for justice. While it was possible because of the change in regimes, it was also due to pressure from human rights and civil society activists, who wanted to address systematic abuses.

1

Presented at the International Law Institute (ILI), Kampala, May 30, 2008.

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The following were the (non-exclusive) initiatives that came to be known as ‘transitional justice’: 1. Criminal Prosecutions: Judicial investigations of those responsible for the violations, typically of the ‘big fish’. 2. Truth Commissions: Inquiries or investigations aimed at reporting on key periods of past abuse. They often comprise of official state bodies that make recommendations to remedy such abuse and to prevent its recurrence. 3. Reparations Programs: State-sponsored initiatives that help repair the material and moral damages of past abuse. They typically distribute a mix of material and symbolic benefits to victims (including financial compensation and official apologies. Of course the most serious mass violations that necessitate reparation are slavery and colonialism, although ironically, efforts at securing some form of compensation have met consistent resistance. 4. Security System Reform: consists of efforts aimed at reforming and transforming the military, police, judiciary and related state institutions from instruments of repression and corruption into instruments of public service and integrity. 5. Memorialization efforts: including museums and memorials that preserve public memory of the victims and raise moral consciousness about past abuse, in order to build a bulwark against its recurrence, and 6. Traditional Justice: consists of the application of informal, customary mechanisms for the settlement of conflicts and which has emerged as a prominent avenue for peace and reconciliation for nations emerging from conflict, e.g. Northern Uganda, and Sierra Leone. From the above, you can broadly divide the types of justice regimes into: restorative and retributive. Transitional justice is particularly crucial in democratic transitions and the transformation of nations because it ostensibly fosters peace and reconciliation which are critical aspects for any aspiring democratic country. What is important to emphasize is the is need for a holistic and comprehensive approach which looks at both the context as well as the prospects for applying any one (or a combination) of the initiatives outlined above. There is particularly a need for sensitivity to gender issues in personal, family and societal relationships, 98

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particularly since modern conflicts disproportionately target women and girls. Truth and Reconciliation Commissions: The Experience Commissions of this kind have been established all over the world and with a variety of goals. The table below outlines some of them: Table 6.1: Truth and Reconciliation Commissions (1974-2002) DATE OF COMMISSION

TIME COVERED

Uganda

1974

1971-1974

1975

Bolivia

1982-1984

1967-1982

Commission Disbanded

Argentina

1983-1984

1976-1983

1985

Uruguay

1985

1973-1982

1985

Zimbabwe

1985

1983

No

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COUNTRY

REPORT PUBLICLY ISSUED?

Uganda

1986-1995

1962-1986

No

Philippines

1986

1972-1986

No

Nepal

1990-1991

1961-1990

1994

Chile

1990-1991

1973-1990

1991

Chad

1991-1992

1982-1990

1992

Germany

1992-1994

1949-1989

1994

El Salvador

1992-1993

1980-1991

1993

Rwandab

1992-1993

1990-1992

1993

Sri Lanka

1994-1997

1988-1994

1997

Haiti

1995-1996

1991-1994

Limited, 1996

Burundi

1995-1996

1993-1995

1996

South

Africac

1995-2000

1960-1994

1998

Ecuador

1996-1997

1979-1996

Commission Disbanded

Guatemala

1997-1999

1962-1996

1999

Nigeria

1999-2001

1966-1999

Report in Process

Peru

2000-2002

1980-2000

2003

Uruguay

2000-2001

1973-1985

Report in Process

Panama

2001-2002

1968-1989

2002

Yugoslavia

2002

1991-2001

Commission Ongoing

East Timor

2002

1974-1999

Commission Ongoing

Sierra Leone

2002

1991-1999

Commission Ongoing

Ghana

2002

1966-2001

Commission Ongoing

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Legally, the basis for transitional justice was partly founded in the 1988 decision of the Inter- American Court of Human Rights in the case of Velasquez Rodriguez v. Honduras. 2 Faced with reports of numerous disappearances in Honduras from 1981 to 1984, the Inter-American Court of Human Rights established that states have the following obligations: 1. To take reasonable steps to prevent human rights violations 2. To conduct serious investigations of violations where they occur 3. To impose suitable sanctions on those responsible for the violations 4. To ensure reparations to victims

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Revisiting the Truth Commissions Approach Truth and Reconciliation commissions have been defined as ‘bodies set up to investigate a past history of violations of human rights in a particular country—which can include violations by the military or other government forces or armed opposition forces’ (Hayner, 1994 558). The main characteristics of truth commissions include the investigation of past incidences; investigation of patterns of abuse over a set period of time rather than a specific event; their temporary nature and the fact that they are often officially sanctioned and authorized by the state. The last aspect is critical since it represents acknowledgment of the state of past violations and illustrates a commitment to address those abuses (Hayner, Id.). In some cases however, Truth commissions have been and may be established by Non-Governmental Organizations (NGOs) although where this is the case they are instituted by young and new governments that inherit nations flailed by conflicts in a bid for reconciliation. Seldom is the case when commissions are instituted amidst international pressure for accountability and reconciliation. Truth commissions are vitally important in settling widespread human rights violations where it is hard to identify specific perpetrators and victims of these violations. These challenges are 2

Accessed at: http://home.att.net/~slomansonb/Honduras.html.

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often too complex to be solved by one particular approach and are rather challenging to domestic courts. For these reasons, Truth commissions have since been relied on in several countries including, but not limited to Uganda (1974 and 1986-1995), Bolivia (1982-1984), Argentina (1983-1984), Uruguay (1985), Zimbabwe (1985), Philippines (1986), Nepal (1990-1991), Chile (1990-1991), Chad (1991-1992), Rwanda (1992-1993), Burundi (1995-1996), South Africa (1995-2000), Nigeria (1999-2001) and most recently in Sierra Leone and Ghana. 3 For the case of Uganda perhaps the most impactful commission was the 1986 Commission of Inquiry into Violations of Human Rights (October 9, 1962 to January 25, 1986) 4 presided over by Justice Arthur Oder. The commission was mandated to conduct investigations into human rights violations committed under the governments of Milton Obote and Idi Amin. The commission’s report and recommendations were handed over to President Yoweri Museveni of the National Resistance Movement who instituted the commission in 1994. Subsequently, the report and its recommendations informed the Bill of Rights as enshrined in the 1995 Constitution of the Republic of Uganda that has since formed a basis for human rights advocacy, protection and promotion in Uganda. Prospects for peace between the National Resistance Movement (NRM) and the Lord’s Resistance Army (LRA) since the commencement of the Juba Peace talks mediated by the government of Southern Sudan, have led to calls for a Truth and Reconciliation Commission once the final peace agreement is reached. It is believed that this would offer a holistic approach to truth, peace, justice and reconciliation given the gravity of human rights violations visited on the people of northern Uganda for the last two decades. Some actually argue that such a commission must incorporate mechanisms for addressing the variables of reconstituting political order, rewriting the constitution and developing a national framework to facilitate the participation of civil society and political parties’ in the democratization process 3 4

Accessed at: www.usip.org/library/truth.html. The Commissions of Inquiry Act Legal Notice No. 5 (May 16, 1986) (Cap.

56).

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(Mutua 2007). Proponents of this view believe that such an approach is key in addressing the current ethnicization of politics and challenges posed by the genocidal conflict in the north. Sentiments to establish a Truth Commission have also been echoed in Kenya following the disputed December 2007 presidential election that saw widespread violence and human rights violations committed against innocent citizens. This trend goes to emphasize the role Truth Commissions are capable of playing in securing sustainable peace through reconciliation. Perhaps the most successful story with regards to truth commissions on the African continent is the South African Truth and Reconciliation Commission established under the Promotion of National Unity and Reconciliation Act and headed by Archbishop Desmond Tutu. 5 The mandate of the commission was to bear witness to, record and in some cases grant amnesty to the perpetrators of crimes relating to human rights violations, reparation and rehabilitation. The most laudable attribute of the commission was its reconciliatory approach as opposed to the Nuremberg Trials from WWII, and the subsequent prosecutions of former Nazis and Nazi sympathizers. The success of the Truth and Reconciliation approach in South Africa has inspired the creation of similar commissions in other countries. However, the most overriding criticism of the Tutu Commission was its failure to reconcile the Black and White communities in South Africa and the fact that it was undermined by leaders of the apartheid regime (Hamber et al, 2000, 18-42). From a human rights perspective it has been asserted that the Truth and Reconciliation Commission sacrificed justice at the altar of peace given that most of the perpetrators were released on amnesty. Finally, the Commission did nothing to address the question of Economic Justice. The Debate On Truth Commissions And Justice Whereas the role of truth commissions in engendering peace and reconciliation cannot be overemphasized, there are also

5

No. 34 of 1995.

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limitations in the degree to which these bodies have been successful in achieving fundamental change. Unlike formal court systems, truth commissions do not have punitive powers. Instead, they emphasize reconciliation and tend to avoid individual responsibility. As such, some human rights violators and repressive regimes have “ambushed” their findings to exonerate themselves from future prosecution by securing amnesty. For example, within five days of release of the report in El Salvador, a sweeping amnesty law was passed to protect those implicated from facing trial (Hayner, 2001, at 40). Coming to the African Continent, the South African Truth and Reconciliation Commission granted amnesty in return for testimony (Hayner, Id., at 41). Some observers have argued that this trade-off undermined the pursuit of justice especially for victims and those who lost their loved ones to human rights violations. Truth Commissions have also been criticized for legitimizing new governments that present themselves as the harbingers of democracy, rule of law and social justice yet many of them abandon these attributes after they have acquired such legitimacy. The 1986 Ugandan commission and the case of Chad are emblematic of truth commissions that were used mainly as a tool to discredit previous regimes. For the case of Uganda, the 1974 commission has been largely criticized for not attempting to rectify the past, but was instead a rather flimsy effort to placate international pressure. In the cases of Haiti and Zimbabwe publication of the commissions’ report was frustrated for being critical of the government in power. Amidst these sceptical trends however, truth commissions are laudable in as far as they involve public airing of the victim’s cases in hearings that are open to everybody. Such involvement is critical in securing public legitimacy as opposed to say criminal prosecutions. There is far more public participation in the proceedings of Truth Commissions as opposed to the formal court systems. This is crucial in enhancing reconciliation and cohesion as the public are made to own the decisions of the commissions. Truth commissions have four main goals namely, 1. To contribute to transitional peace by creating an authoritative record of what happened; 103

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2. To provide a platform for victims to tell their stories and obtain redress; 3. To recommend legislative, structural or other changes to avoid repetition of past abuses, and 4. To establish who was responsible and providing a measure of accountability for the perpetrators (Kenneth, 2000, at 61). On the role of truth commissions in reconciliation as opposed to other approaches of transitional justice, in the words of Archbishop Desmond Tutu chairman of the South African Truth and Reconciliation Commission ‘While the allies could pack up and go home after Nuremberg, we in South Africa had to live together.’ His comment was based on the need for social transformation and the reconciliation of South Africans after the apartheid regime as opposed to a punitive approach like that adopted by the Nuremberg Trials. The South African experience with truth and reconciliation commissions has been praised for transforming the nation from a racial oligarchy to a democracy, under the rule of law (Newitt & Bennun, 1995). This has been referred to by some commentators as a miracle of transformation. Credit largely goes to the highly organized anti-apartheid movement which had the strong will to negotiate with the apartheid regime (Nagan, 2007). In terms of restorative justice, there is great psychological benefit to those seeking trauma healing after intense conflict and being subjected to human rights violations. Through the acknowledgement of past crimes, the dignity of victims is restored and the healing process stimulated. This notwithstanding, there are some arguments that truth telling instead reinstates old anger which triggers posttraumatic stress. Lastly, it has been argued that Truth commissions also provide a future deterrent to would be human rights violators and also the fact that they illustrate the determination and commitment of new governments to end impunity. Conclusion Post conflict realities pose many complex economic, political and social challenges. These multifaceted challenges cannot be adequately solved by one isolated approach. Rather, it takes the 104

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amalgamation of all approaches and the necessary political will to thwart all major impediments to peace and reconciliation after resolution of the conflict. Nonetheless, Truth commissions are not an end to the problem, but must be viewed as complimentary to other transitional justice approaches. Above all transitional justice as a whole requires genuine efforts at reconciliation to succeed. The process of resolving conflict and moving on is often messy and painful. Nothing can be achieved minus reconciliation of the warring parties, perpetrators and victims of violations. Clearly, it is a question of time and healing for reconciliation and transitional justice as a whole to succeed.

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Towards A Pan-East African Citizenship And Identity: A Bird’s Eye View1 Few other issues of political and sociological concern evoke as much tension, confusion and even conflict as those related to the struggles around questions of citizenship and nationality. Particularly in the post-Cold War era, the issue of who we are and how we relate to the rest of humanity has become a major focus of concern (Huntington, 1990 and 2004). At a sociological level, these issues find manifestation in questions such as language, religion and even dress and attire, as in the case of the conflict over the headgear of Moslem and Sikh school children in France. Politically, the issues revolve around matters of inclusion, participation and nondiscrimination. Even centuries after the demise of institutionalized slavery, the United States is not ashamed to congratulate itself on electing only the third citizen of African-American origin to the Senate.2 With respect to the countries of East Africa—in this chapter collectively given the acronym Utake 3—the effects of such struggles were vividly manifested in the genocide in Rwanda. As if that were not lesson enough, even as we write, the crisis in the Darfur region of South-western Sudan appears to be heading in a similar direction. Closer to home, Uganda has been embroiled in a civil war in the northern part of the country that is nearing two decades of subsistence. How many times will the African people evoke the mantra: “Never again!”?

1

Concept paper for the Kituo cha Katiba project, Citizenship and Identity Struggles in East Africa, November 27, 2004. 2 Barack Obama—feted by the East African media as a ‘son of the soil’ because of his Kenyan father—was elected Senator for Illinois in the recently concluded US elections. 3 ‘Utake’—connoting Uganda, Tanzania and Kenya—is the name the youth of East Africa use to describe not only their cultural identity (music and language, etc.), but also their aspirational horizons that transcend the existing geopolitical boundaries of the countries in the region.

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Viewed in its narrow, dictionary conception, citizenship simply implies a state of ‘belonging’—the legal relationship that individual human beings enjoy with the state to which they have closest affinity—by accident of birth, descent, marriage, naturalization or other legally-recognizable process. Following on from this, the assertion of citizenship necessarily carries with it certain rights, while at the same time it also imports several duties. On the rights side, one should be free to vote, to travel without undue hindrance and to lay claim to certain basic social services. The duties include an obligation not to discriminate, violate the rights of others and (with some pain) pay our taxes. On first glance therefore, such a relationship may appear free of complexity: is the state meeting its obligations to uphold and protect the rights of its citizens? Conversely, are the citizenry faithfully executing their duties to the state? However, there are aspects of the notion of citizenship that need deeper interrogation. We need to examine the ways in which ideas about citizenship can be made more inclusive, less conflictual and more empowering than they currently are. How do we extend the benefits of citizenship to those individuals and communities who have been traditionally marginalized and excluded? In which ways can we ensure that both women and men enjoy the benefits of citizenship without discrimination or exclusion? Where are the youth in the contemporary debates and struggles around the issues of citizenship and nationality? How do we salvage our social citizenship? 4 Finally, how can the imbalance between rights and duties be redressed, especially given the coercive and patrimonial character of the state structures we have inherited and modified? The term ‘nationality’ evokes even deeper and more complex relations—relations that transcend many of the geopolitical and conceptual boundaries imposed by our colonial and postcolonial experience. They relate to the shared linguistic, cultural and ethnic affiliations that the peoples of the region enjoy. Many of those affiliations are at a level well below the formal and ritualistic 4

Social citizenship entails, “… claiming and protecting rights, entitlements and obligations of individuals…” [and] ensuring that the state, “… abides by the obligation to be accountable to the society especially by promoting access to social livelihoods.” (Kanyinga & Katumanga, 2003, at 157).

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constructs imposed by the state; thus many peoples at the frontiers of Utake’s states feel more affiliation across the border than they do to those on their own side. While those affiliations may have many positive and even benevolent attributes—cultural boat regattas or collective ceremonies of circumcision—they also have the potential to explode in a fashion that wreaks considerable havoc and damage on the wider body politick. The concept of a pan-East African Luo nation, for example, may at first glance appear non-conflictual until it begins to engage basic precepts of the foundations of our states as they currently exist. This is because the Luo, in similar fashion to several other ethno-linguistic communities, straddle all the borders of the region. Similar concerns have also emerged with the debate over the status and position of Buganda vis á vis the rest of Uganda. Any action that might challenge our inherited boundaries—physical and conceptual—is bound to raise the political temperatures considerably. Against the backdrop of growing concern about how to make notions of citizenship, identity and nationality more, rather than less inclusive, the point of departure of this chapter is to offer some ideas on what issues need further consideration and critical analysis. The determination of these issues is at basically two levels. The first concerns those internal to the individual states that make up Utake while the second relates to those that cut across the artificial boundaries that divide those countries up. This is whether they are manifested through the formalized structure of the East African Community (EAC), or through informal or even casual relationships that cross borders. Such an analysis is crucial for a number of reasons. In the first instance, while each of the Utake countries share a common colonial and even postcolonial history, there are many microscopic distinctions in the specific experiences of each country. Simply contrast the experience of Uganda that has had nine leaders since independence in the early-1960s, while both Kenya and Tanzania have had only three. The idea that presidential term limits are an accepted aspect of democratic governance appears settled in the latter two, while in Uganda it remains an issue of considerable contention. At the same time, neither Kenya nor Tanzania have had as extensive an experience with the decentralization of central government power as has Uganda. 109

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The reflections in this chapter are thus mainly concerned with the big picture. It is a broad mapping that can allow for a progressive movement to a consideration of the microscopic situation in Utake; it is not intended to be exhaustive on the many dimensions of citizenship, identity and nationality that exist. Neither does it deliberately omit discussion of other issues that may be considered pertinent. The basic idea is to provide a mapping of the questions that I consider lie at the core of the present debates about citizenship, identity and nationality in Utake, and in this way to provide some broad indication for further, more detailed research. In this spirit, the following section provides a general overview to the situation of citizenship, identity and nationality struggles in Utake, covering, inter alia, the broad constitutional, legal and policy framework, as well as the place of gender relations and the role of civil society therein. It also reviews what role the East African Community has and can play with respect to promoting positive notions of citizenship and nationality within and across borders, especially given the declaration of a ‘fast-track’ to East African political integration. The chapter moves on to consider the economic dimensions of citizenship—the impact of various policies of liberalization on the populace, and the vexed question of rights to land. I end with a consideration of the issue of the right to water, both to develop the metaphor of citizen’s rights to economic and social necessities, as well as in a bid to flag the often controversial aspects of policies that government may adopt without critical consideration of their consequences. The last two parts of the chapter critically review the situation of a host of marginalized communities in Utake and offer some reflections on what I believe to be the key issues requiring deeper examination and reflection. Although the scale of issues covered is fairly extensive, the depth of analysis here can only touch the surface; hence the notion of a ‘bird’s eye view.’ It is intended to merely highlight those issues of general and specific conceptual, political and legal concern to the three countries of Utake collectively, as well as those which have resonance at a more specific and narrow country level. This broad map will thus provide a preliminary agenda for further, more microscopic research. To put 110

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it another way, the bird’s perspective needs to be consolidated with the view of the frog—from the bottom up.

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East Africa Today: The State Of Citizenship, Identity And Nationality Struggles There are considerable similarities between the three countries of Utake which do not require re-statement. Suffice it to say that those similarities warrant a holistic consideration under a single unifying framework of analysis. This is particularly the case given both the historical and the more contemporary attempts at economic and political union. It is further compounded by the manifest artificiality of the borders dividing them, although bureaucratic and chauvinist attitudes sometimes serve to solidify these demarcations. 5 Of the three, Tanzania has had the most placid and unconflicted history. This is whether with respect to general political developments or in regard to the specific issues of citizenship, identity and nationality with which we are concerned. In many respects therefore, Tanzania offers significant lessons on nation-building, accommodation of diversity and the construction of a national ethos sealed by the genuinely national language that Kiswahili has become. Uganda has had a long and chequered experience characterized by mass expulsions of citizens and migrants, serious internal conflict and significant political instability. On its part, Kenya has lived under a stable, but autocratic regime of governance since independence, pock-marked with ethnic clashes that were the culmination of a policy of cleansing pursued by the government of the day in the 1990s (Ndegwa, 1997, at 599-616). At the same time, Uganda has led the way with dramatic and radical experiments both in the arena of politics and governance, as well as with respect to the economy. In sum, there are many points of convergence, which provide a useful commencement point for a critical analysis of citizenship, identity and nationality issues.

5

For example, Uganda and Tanzania were recently involved in the redemarcation of their border—an exercise that effectively disenfranchised many of those affected by the exercise.

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Issues peculiar to each country of course make parallel comparisons difficult. Certainly the degree of socialized violence in Kenya—especially in Nairobi—gives cause for serious pause and concern. Explaining the phenomenon in relation to the attack on author Ngugi wa Thiong’o and his wife Njeeri, Peter Kimani in the East African asserts that, “Since Ngugi’s time, Kenya has seen a shift in the balance of power from uniformed policemen to anonymous citizens—equally armed and even more brutal.” 6 Quite obviously, the monopolization of violence in the Kenyan state is under serious challenge, and its transference to ordinary citizens in the street is an issue that merits further concerted attention. Uganda is currently embroiled in a serious discussion on the place of cultural or traditional entities, and the parameters of political power that they should exercise. Not only has it brought to the fore many of the country’s traditional ethnic cleavages, but it also raises serious questions about the extent of democratic consolidation that the country has actually undergone since the Movement government came to power two decades ago. At the same time, Uganda is still embroiled in the conflict in the northern part of the country that despite appearances of coming to an end will leave a scar requiring considerable effort to heal. Finally, despite the on-the-surface placidity of the Tanzanian experience, there are still numerous issues of concern—the most obvious being the situation in Zanzibar—that have potentially negative implications for the resolution of citizenship and nationality questions in the country (Oloka-Onyango & Nassali, 2003). 7 All these issues not only affect the local context of debate they also have implications for the broader question of regional integration, especially under the framework of the proposed single political union for all three countries. Left unchecked, the rising xenophobia that is manifest even against citizens of Utake could have dire consequences. 8

6

Peter Kimani, ‘Literary Star Eclipses Politicians,’ The EastAfrican, September 6-12, 2004, at 1. 7 See also Darren Taylor, ‘The Paradise Paradox,’ The EastAfrican, September 20-26, 2004 at 1 (Part 2). 8 For example, in Zanzibar the upsurge in crime is blamed primarily on ‘Mainlanders’ or Kenyans. See Taylor, Id.

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U nderstanding the Constitutional Framework All three countries of Utake face complex constitutional issues of varied scope and intensity. Despite having spent seven years in promulgating and debating a new constitution, Uganda went back to the drawing board with the establishment of a Constitutional Reform Commission in 2001 (Majamba, 2001). As part of this exercise, Uganda is set to revisit the issue of citizenship in the wake of publication of the Government White Paper responding to the report of the Constitutional Review Commission (Republic of Uganda, 2004). Among the many issues set for reconsideration is that of dual citizenship. An extremely divisive issue in the Constituent Assembly (CA) discussions in the early 1990s, today there is less contention over whether or not Ugandans can hold the citizenship of more than one country (Barya, 2000). However, many politicians and other pundits seek to introduce restrictions to the policy, which could in effect lead to a lop-sided approach to this aspect of citizenship.9 In particular, the residual xenophobia for persons of Rwandese extraction—whether citizens or not—could lead to provisions that seek to exclude those who hold dual Ugandan/Rwandan nationality from enjoying the benefits of the reform. At the same time, a number of additional issues proposed in the Paper—the rights to land, the reform of the local government system and the curtailment of the powers of the Judiciary—have significant implications for citizenship, identity and nationality issues in the future if implemented in their current form. On its part, Kenya’s experience of constitution making can best be described as tumultuous. Following nearly a decade of agitation the Moi/KANU government finally established a review commission in 1998 (Mutunga, 1999 and Wamugo, in Southall et al, 2000). Dogged by government intransigence and resistance, internal wrangling and political manipulation, the Constitution of Kenya Review Commission (KCRC) eventually managed to produce a new draft towards the end of the Moi presidency (Ssempebwa & Peter, 2003). The Commission (and Kenyans in general) were confident 9

See for example the statement of Ugandan Minister of Communications, Michael Werikhe to the effect that the proposal on dual citizenship, is “… not a blanket provision, we shall follow it up with some restrictions.” Ahmed Wetaka, ‘Dual Citizenship to be Limited,’ The Monitor, November 11, 2004 at 7.

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that under the new political dispensation offered by the NARC government which took the reins of power at the end of 2002, it would not take long for a new instrument to become a firm part of the Kenyan constitutional regime. After all, not only was the change in government spurred on by the mobilization of grassroots and organized communities, but also many of those who emerged to seize the reins of power came from these very same ranks. 10 The hopes and aspirations for change were further spurred by the NARC government’s declaration that a new constitution would be ready for adoption in only six months (180 days) of assuming power. It is now nearly two years later, and finalization of the constitution still appears some distance over the horizon. In the words of Makau Mutua, The biggest failure of the Narc Government has been its unwillingness to provide a new democratic constitution. It is no secret that the refusal by NAK and LDP to agree on whether Raila becomes a powerful Prime Minister—and shares real power with President Kibaki—has been the major stumbling block. Raila, a political mastermind with a singular drive for personal power, has exposed his contemporaries in Narc as novices. NAK wants to protect the executive powers enjoyed by President Kibaki under the present constitution. LDP on the other hand, seeks to dismantle the imperial president and replace it with an overbearing, but unelected premiership. Both sides are dead wrong. But since neither side understands the greater national good, both would rather gridlock

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10

One of the most vocal critics of the Moi regime was Kiraitu Murungi (Kenya’s current Minister of Justice and a major protagonist in the factional infighting that has plagued the NARC government). In a paper written in 2000, he stated: “A tiny but powerful minority in President Daniel Arap Moi’s kitchen cabinet feels threatened by constitutional reforms. This group has, in the past, broken numerous laws, and oppressed and robbed Kenyans in their struggle for accumulation of wealth and power. They are therefore determined to safeguard their interests and have paralysed the reform process because they have high stakes in the current system. In addition, they have a deep psychological fear of the unknown. Their priority is scarcely constitutional reform. Rather, it is personal survival. Consequently, they are only willing to admit cosmetic reforms which do not threaten them.” Murungi, 2000, in Southall et al, op.cit. With only slight modification, the same charge could be levelled against the Kibaki government of which Murungi is a member.

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the government, torpedo the reform agenda, and make nice with KANU. 11 The response of most observers is that the stalemate actually reflects much more than a simple about face on the part of the NAK faction in the government. At a deeper level than the clash of personalities—the mercurial Raila Odinga and the taciturn Kiraitu Murungi—is a more serious standoff between Kenya’s major ethnicities and a debate not only on the how, but also the who. The Moi regime provided a hiatus from the domination of Kenyan politics by the two main ethnic communities—the Kikuyu and the Luo—and heralded an era in which the less populous and hitherto uninfluential groups called the shots. Kibaki’s ascension to power saw the re-emergence of what has been dubbed the “Mount Kenya Mafia,” comprised mainly of Kikuyu and Meru some of whom had been influential in the Jomo Kenyatta era. Just as Raila’s father (Jaramogi Oginga Odinga) had been short-changed by the Kenyatta clique being dismissed from the Vice presidency and having his party banned, the Luo are today apprehensive that Raila will also be a victim in this 3rd act of the post-independence Kenyan drama. Recently, the two NARC factions announced a resolution over the contentious issue of sharing power between the presidency and a Prime Minister. 12 Whether or not this agreement will diffuse the wider tensions is certainly an issue for further consideration and critical analysis. As one observer asked, while the spider may have been killed, will the cobwebs also be removed? Tanzania differs from both Kenya and Uganda in that its constitutional instrument of governance for many years following independence did not contain a bill of rights, thereby seriously limiting the parameters for citizenship protection within the constitutional framework. Julius Nyerere’s argument at the time of negotiating independence was that entrenchment of such a bill 11

Makau Mutua, ‘Narc has rejected the path of reforms,’ East African Standard, September 4, 2004 at 4-5. 12 See Mark Agutu & Clair Gatheru, ‘Relief as Constitutional Deal is Struck,’ Sunday Nation, November 7, 2004 at http://www.nationmedia.com. But even that rapprochement—known as the Naivasha Accord appears short-lived. See Fred Oluoch, ‘Why NAK Doesn’t Want a New Constitution,’ The EastAfrican, November 15-21, 2004 at 40.

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would simply act as a consolidation of colonial privilege and as a bar to the necessary drastic action required to be taken by the state with respect to issues such as property expropriation. Moreover, under the socialist ideological framework within which Mwalimu constructed his vision for the country, individual proclivities were given short shrift. Thus, it was not until 1977 that a bill of rights was introduced into the Tanzanian constitutional regime (Peter, 1997). Even then, it lacked a framework for implementation. Moreover, as Sirkku Hellsten has pointed out, the Bill did not provide an absolute guarantee of the protection of the basic rights of Tanzanian citizens (Hellsten, 1999 at 53-77). This anomaly was corrected in 1994 with the promulgation of the Basic Rights and Duties Enforcement Act. Since that time, Tanzanian courts have fairly actively enforced the protections enshrined in the Bill with some degree of success, albeit not without criticism. In 1998, the government published a White Paper which selectively highlighted areas necessary for constitutional reform, and subjected them to review or revision. The result was the 13th amendment to Tanzania’s constitution, covering, inter alia, the powers of the executive, the electoral system, and the establishment of the Commission for Human Rights & Good Governance to replace the Permanent Commission of Inquiry (Mallya, 2003, at 34-52). Despite these developments, there are still calls for more comprehensive constitutional review, particularly with respect to the relationship between the Mainland and Zanzibar. Furthermore, citizenship issues recently surfaced as several prominent individuals—among them the journalist/lawyer and politician, Jenerali Ulimwengu—were subjected to challenges regarding the veracity of their claims to Tanzanian nationality. Because of the outcry that followed, the government beat a retreat. However, that the issue was raised in the first instance clearly demonstrates how easily questions of citizenship and nationality can be negatively manipulated for political gain. Although still relatively calm in comparison to its Utake brethren, Tanzania still offers many intriguing dimensions to the citizenship and nationality debate that require further interrogation. Zanzibar is even more scintillating. It is thus necessary to conduct a post-Mwalimu analysis of the manner 116

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in which citizenship, identity and nationality issues are mediated within Tanzania’s constitutional and socio-political frameworks. As Michael Okema has pointed out, the issue is “… not so much of shedding tears for Ujamaa as of bewailing the vacuum that has resulted.” 13 Needless to say, discussion has continued over whether or not Tanzania should have a wholly new constitution, as has the issue of relations between the mainland and the islands (Migiro, 2000). The lesson that emerges from the above brief survey of the state of constitutional development in the three countries of Utake is that their constitutions are the site for considerable struggle. In other words, the black letter of our constitutions belie the underlying social, economic, political, and even the cultural tensions by which the instruments were informed. In this way, it is essential to unearth the philosophical and pragmatic considerations that went into their design and eventual promulgation. Only then will it be possible to understand why—in the face of a constitutional provision that prohibits discrimination, for example— discriminatory practices continue to thrive and to even become entrenched in all three countries. But the constitutional context only provides a framework for understanding the general posture of a country on issues of citizenship, identity and nationality. Far more important, for the purposes of this research are legislation and policy.

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Law and Policy Beneath the broad provisions of the Constitution, lies a vast array of legal and policy formulation. Much of it is carried out away from the limelight, but with considerable impact on the manner in which citizenship, nationality and identity issues play themselves out. In particular, laws on immigration, customs, trade, movement, property ownership and refugees are of great concern to an understanding of these issues. At a more sociological level, laws and policies on the family, marriage, land and succession are also critical. First of all, because laws do not change very frequently they provide 13

Michael Okema, ‘Alas, the Tribe is Dead, the Nation Stillborn….’ The EastAfrican, September 6-12, 2004 at 13.

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an historical roadmap for an understanding of the course of development of a particular phenomenon within the context of the political economy of a specific country. Thus, a survey of just the citizenship and immigration laws of all three countries of Utake would relate an interesting story of the manner in which issues such as ‘Africanization’ have been dealt with over the years. What of the issue of dual citizenship—for so long considered anathema—and about which there is currently serious debate in at least two of the three countries of Utake? (See ROU, 2004 at 63). 14 Finally, it is necessary to establish how much power is exercised by politicians (government ministers and other functionaries such as District Commissioners) and bureaucrats (at Immigration departments and behind the doors of Refugee and Citizenship Boards) in determining who belongs versus who does not. Policies of inclusion and exclusion are central to an understanding of citizenship, identity and nationality issues. Our regimes of criminal justice enshrine a host of laws that have implications for the inclusion or exclusion of individuals and communities on grounds that may be manifestly discriminatory. These include laws on the kinds of associations that can be formed and on the penalization of particular forms of action or expression. They also enshrine attempts at policing expressions of ethnic chauvinism, segregation or hatred. One of the earliest actions of the NRM government in Uganda was to amend the Penal Code in order to provide for punishment of the offence of sectarianism. This was an omnibus offence designed to address what were perceived as the negative historical cleavages based on ethnicity and sectional discriminatory treatment that had plagued the country virtually since independence. Government enthusiasm for prosecution of the offence waned considerably for reasons that are not manifest.

14

Also see Njeri Rugene, ‘Dual Citizenship May be Allowed,’ Daily Nation, November 15, 2004, accessed at: http://www.nationmedia.com/dailynation/nmgcontententry.asp?category_id=1 &newsid=19904. President Benjamin Mkapa has categorically stated that dual citizenship is not something he supports, thus shelving the debate in Tanzania, at least for the time being.

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Needless to say, it is essential to subject the arena of law to a more critical consideration in order to surface the hidden messages that may serve to marginalize or disenfranchise people. In an age of globalization and mindful of the largely negative role played by the media in Rwanda in the propagation of hate speech—particularly Radio Milles Colline—it would be of particular interest to map out the laws and policies in this area. Also of critical importance would be a consideration of the practitioner’s responses to them. In other words, how finely is the line drawn between the protection and promotion of free speech and the prohibition of hate speech in practice? Both Kenya and Uganda have recently been afflicted by this problem. In the wake of the internal NARC wrangling over constitutional reform in Kenya and the failed talks over ‘federo’ in Uganda, FM radios have become particularly poignant flash points for the expression of manifestly extremist and xenophobic tendencies. 15 But it is necessary to avoid wholly endorsing the states’ measures of sanction against them, as these could have the effect of literally throwing out the baby together with the dirty bath water. All three Utake states have been quick to curtail media rights when the issue is not necessarily in the public interest. At the same time, although law ostensibly reflects policy, there are numerous initiatives that never find their way into the black letter of the law. For example, Uganda’s refugee law has been outmoded for decades having been promulgated two years before the country attained independence. On the face of it the law is extremely draconian, reflecting the dominant control approach to refugee migration that was governing during the late colonial era. Although the political will among successive governments has never been sufficient enough to change the law, Ugandan refugee policy has clearly reflected a more liberal disposition. Indeed, as the Refugee Law Project points out, the Control of Alien Refugees Act has never been strictly applied in Uganda (Lomo, et al 2001 at 9). Needless to say, the result has been an ad hoc system of refugee management. Moreover, since the law is in place and has never been repealed, over-enthusiastic (or simply malevolent) officials can 15

Of recent, President Museveni has attacked several FM stations (among them CBS and Radio Simba) accusing them not only of misrepresentation about government/Buganda relations, but also of spreading hateful messages.

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easily invoke it in order to constrain refugee rights and liberties. This is regardless of the fact that this could be in direct contravention of the Constitution or of international obligations that the country has entered into. Furthermore, given that the law is also primarily addressed to refugees who come from rural settings, it is virtually silent on urban refugees, an arena of interaction where the policy framework is woefully inadequate (Refugee Law Project, 2001). Tanzania has long been recognized as a liberal point of refuge for those fleeing persecution in the countries of the region. However, the situation in Tanzania today with regard to refugee policy is characterized by ‘multiple sectoral policies’ but the mechanisms to coordinate them are ‘rather blurred or missing.’ (Mchome, 2003). Indicators are that this could be reflective of the adoption of a more restrictive refugee policy, especially in the wake of the refugee crisis that followed the Rwandese genocide. Citizenship, identity and nationality issues implicate the whole arena of Customary Law which is a regime of law in Utake that is much maligned but insufficiently studied for an assessment of its implications for the arena of analysis with which we are concerned. Customary law defines who belongs, whether as spouses, children or assimilados. In this way, Customary Law has a crucial role to play in understanding the intricate issues surrounding citizenship, identity and nationality questions at a sub-national level. These customary or cultural forces operate in a particular fashion and as a consequence of specific contextual factors, and it is important to understand how the one influences the other (Chanock, 2003). In many parts of Utake, Customary Law governs relations of land ownership, succession and inheritance. Not only does Customary Law define much of what we understand to be the ‘family’ but it also critically implicates issues of participation, inclusion and discrimination. As one respondent stated, women under most customary regimes of law in Kenya are expected to live in the ‘shadow’ of a male counterpart, whether it is the father, the husband and sometimes even the son. Indeed nowhere does the phenomenon of Customary Law find more graphic expression than in relation to issues of gender, ethnicity and religion.

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Questions of Gender, Ethnicity and Religion Each of the issues we have selected for consideration in this conceptual analysis have critical relevance to the fashion in which social relations between men and women are affected. This is as true of the issue of land rights as it is of the question of the rights and duties imposed by the legal relationship of citizenship, as much as it is true of the ability of citizens to participate in and influence local and national political life. It is therefore imperative that a gendered analysis be applied to each of the thematic areas that have been highlighted for analysis. In other words gender relations are a cross cutting issue that traverse the various aspects of citizenship, identity and nationality with which we are concerned. Put another way, it is impossible to understand the different ways in which male and female citizens, migrants or refugees are affected by the legal regime or social order, unless one adopts a gendered analysis to the specific issues under examination. Notions of citizenship, identity and nationality are by no means gender-neutral, and in fact in many respects they are highly gendered. Given this situation, it is also necessary to devote some specific attention to the issue of gender relations per se. Thus, it is important to consider how—right from the most microscopic unit of society (the family)—inherited power relations affect the manner in which men and women are able to effectively partake of the benefits of citizenship. Thus, while men could extend citizenship to the children of their foreign-born spouses, for many years in all three countries of Utake, the reverse was not possible. 16 However, even where there has been some transformation in the legal regime, what of the situation on the ground? What is the reality, to cite one example, for the spouses of foreigners regarding any of the rights that accrue within marriage or upon its dissolution? What are the considerations regarding child custody? Who gets priority in matters of inheritance? This issue can be taken even further. At core is the malevolent operation of patriarchy, where the interests of the male spouse are given precedence over those of the female. Within such a context, even with respect to a 16

Uganda amended this situation with the 1995 Constitution, and a similar provision is contained in the Bomas draft of 2004.

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marriage in which both spouses are citizens of the same country, there are differential ways in which the benefits of citizenship are divided between them. One needs only to look at issues of property ownership, succession and rights under divorce in order to appreciate that the fact of citizenship per se may in fact be irrelevant. Consequently, looking at the law alone will not be enough. Rather, there is need for a critical examination of the on-ground reality. For women, the assertion of rights to full participation in the benefits of citizenship must be extended to include freedom from sexual, physical and gender violence. We need to ask how successful the respective regimes of law have been in effectively addressing these issues. We must also look at women’s ability to travel, work, settle and be identified as autonomous human beings free to make independent decisions without reference to a male counterpart, whether husband, in-law or son. There are still questions over the right of women to be registered and acknowledged as heiress to familial and even public resources. Issues still abound regarding the right to engage in direct political activity (including the right to contest and win the presidency) even in those countries (such as Tanzania and Uganda) where significant advances have been made with respect to local and national female political representation. All these are still rights that continue to elude many women in all three countries of Utake regardless of what the law states. Citizenship and nationality research needs to centre on the manner in which laws, policies and practices differentially affect the two genders. The notion of ethnicity is obviously central to an understanding of the manner in which citizenship, identity and nationality questions find concrete expression, whether within the constitutional framework or otherwise. Furthermore, the idea of ethnic identity is most closely associated with boundaries—physical or conceptual—because these, …determine who is a member and who is not and designate which ethnic categories are available for individual identification at a particular time and place. Debates over the placement of ethnic boundaries and the social worth of ethnic groups are central mechanisms in ethnic construction. Ethnicity is created and recreated as various groups and interests put forth competing visions of the ethnic composition of society and argue over which rewards or

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sanctions should be attached to which ethnicities (Nagel, 1998 at 239).

At core, ethnicity reflects the use of a mechanism by which to consolidate power and wealth to the exclusion of other competing interests. Many of our countries were shaped much more by the consolidation of colonial power than by its rational management. Policies of divide-and-rule, open discrimination and coercive methods of economic exploitation all contributed to that consolidation. Ethnicity was and continues to be a central element in the organization of power (and subsequently in the distribution of the wealth that accrues from the exercise of it) in African countries. Unfortunately, the transition from colonialism did not succeed in fundamentally altering this situation, and in many respects exacerbated it. Indeed, it is necessary to reflect the caution made by Ahmednasir Abdullahi that, “… the width and depth of the areas covered in a constitution for a third world developing country is a reflection on how polarized a particular country is, usually along ethnic lines.” (Abdullahi, 2004). Judging from the length of at least two Utake constitutions—those of Kenya and Uganda - the polarization runs very deep. But there is a need to be cautious when applying the concept of ethnicity to the concrete situation, for it is indeed difficult to speak of the Baganda of Uganda, the Kamba of Kenya or the Wahaya of Tanzania as if there are no similarities between and differentiation within them. Ethnic groupings are split along lines of class, religious belief and practice and other factors of social and economic differentiation. How do we treat the mixture of ethnicities in terms of identity; where do those who straddle the fence between ethnicities stand? In sum, to presume homogeneity within an ethnic group is the height of folly. Consequently, although the Banyankole may appear to be particularly privileged on account of President Yoweri Museveni’s current governance of Uganda, it is too simplistic to imagine that every Munyankole is similarly privileged merely by virtue of this fact. Indeed, the situation among the Banyankole is complicated by the sub-ethnic and class division between the Bairu and the Bahima. Many of the tensions between the two have parallels with the Hutu and Tutsi divisions in 123

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neighbouring Rwanda and Burundi, the devastating effects of which have been vividly brought home on more than one occasion. Notwithstanding the above, most analysts agree that ethnic polarization has heightened in Uganda since 1986, just as it has in Kenya. The appellation “Mount Kenya Mafia” used to describe President Mwai Kibaki’s close advisors basically refers to their geographical origin and ethnicity. Conversely, nobody knows (and even mentions) President Benjamin Mkapa’s ethnicity because it is irrelevant in the context of Tanzanian politics. Thus, it is important for any research on ethnicity and its implications for citizenship, identity and nationality issues to be able to establish the manner in which such considerations play an unduly prominent role in either promoting or minimizing access, distribution and participation in national affairs. In northern Uganda, the issue of ethnicity has been a major point of preoccupation since the 1986 capture of state power by a regime that was largely regarded as “southern.” While the reasons for the continuation of the conflict nearly two decades after it first broke out are varied, it is quite clear that the ethnicity and identity aspects of the war require further critical scrutiny and research. Northerners in general (even those who are relatively more privileged) feel marginal, dispossessed and excluded from the mainstream of political and economic activity in the rest of the country (Ginyera-Pinycwa, 1993). The north no longer feel that they are receiving the benefits of Ugandan citizenship, and that this is as a consequence of their nationality. Conversely, those areas not affected by instability and displacement appear unable to relate to the plight of the people of the north, as if the North is another country. The position of the state on the issue has compounded the extant feelings of dispossession. This stems not merely from the attempt to use the ‘Iron Fist’ of military force to quell the rebellion but also by the government’s consistent resistance to the declaration of the north as a ‘disaster area.’ This is the case in spite of the numerous reports about the problems in the area, and the literal explosion of the problem of internal displacement. As of the time of writing, estimates of the number of displaced people range between 1 and one and a half million. Quite clearly, this vast group 124

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of individuals cannot be said to be beneficiaries of the rights of citizenship that are enjoyed by the rest of Ugandans. Northern Uganda may present the most glaring case of ethnic alienation in Utake, but in both Kenya and Tanzania the issue is by no means absent. During the author’s research tours of both countries several respondents expressed views about increasing ethnic polarization among both the political elite, as well as within the broader sections of society. With respect to Kenya, this is unsurprising. As already pointed out, the situation in that country has at several critical points in its history been tainted by negative ethnicity, and it would be remiss not to examine this issue in some detail (Ngunyi, 1996, esp. 198-206). But there is a need to move away from ground that has been well travelled. Consequently, the analysis needs to be extended to consider the situation of the Somali, the Giriama, the Ogiek and other ethnicities that have faced persistent issues of discrimination and exclusion. 17 The case of Tanzania was surprising, especially given the historical backdrop of minimal ethnic tension and the country’s record of achieving closer national cohesion than either of its neighbours. Respondents interviewed during the field research pointed to the increasing proliferation of ethnic societies and the invasion of ethnic politics in deanship elections at Dar es Salaam University. Some attributed the rise in ethnicity to the abandonment of the system of national service (which brought together youth from all parts of the country) and the sharp increase in disparities in wealth brought on by the policies of economic liberalization; Tanzania is now a highly stratified society. All these reflections pointed to the need for a critical examination of the roots and character of the polarization which was claimed to have come into place. It also demonstrates that there is a need to link that polarization (or the perceptions of it) to the contemporary political economy of the country, in order to establish the extent to which it has infected the body politick as well as social relations among the peoples of Tanzania. Put another way, it is important to establish whether these feelings are simply a manifestation of nostalgia for 17

Nuruddin Farah recently wrote a thought-provoking op-ed piece on this issue. See Nuruddin Farah, ‘Another Little Piece of My Heart,’ New York Times, August 2, 2004.

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the ‘golden years’ under Mwalimu, or they are reflective of deeper, more fundamental issues. Finally, in this respect, it is essential to review the manner in which issues of religious belief and affiliation link up with questions of citizenship and identity. We have already seen how the issue of Northern Uganda is reflective of an increasing ethnicization of the political context. But it is also intricately linked to the heightened use of religious symbolism, beginning first with Alice Lakwena’s Holy Spirit Movement (HSM) and extending to the more recent Lord’s Resistance Army (LRA) under Joseph Kony (Heike, 1998). The recent Kanungu massacre in Uganda brought to the fore the idea that there is a whole coterie of individuals who do not consider the state to be their primary or even their most essential point of reference (UHRC, 2002). At the same time, the brands of religious identity espoused by the LRA’s Kony or by Joseph Kibwetere of the Movement for the Restoration of the 10 Commandments—the group that organized the Kanungu inferno—is clearly different from that which has been expressed before. There is also a need to understand the forces behind the growth and proliferation of evangelical religious orders and to come to grips with these groups as emergent and potentially powerful social forces. In other words, religion is re-asserting itself as an important element of identity in contemporary Utake. Against the above background, traditional religions are under siege in all three of the countries of Utake, whether we are speaking of mainstream Islam or Christianity. Fundamentalist trends and religiophobia are very much in resurgence, in part a reflection of global influences, but also a response to local conditions of poverty, stress and marginalization. The response of the state and of the dominant religious groupings has not been very helpful. For example, the debate over whether or not the new Kenyan constitution should include references to Kadhi courts reflects an acute insensitivity to the feeling of marginalization that the Moslem community feels. A similar disdain for these courts exists in mainland Tanzania, even though for many they have absolutely no idea of the fashion in which these courts operate. In the wake of the 9-11 paradigm shifts, and particularly over the issue of terrorism, the Moslem community in all three countries 126

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has several issues of identity and citizenship with which they are confronted. Not only is there an international dimension to the issue, but it is increasingly finding local manifestation. For example, the Allied Democratic Front (ADF)—an anti-Museveni movement that flourished for several years in the western part of Uganda—was largely tainted with the brush of fundamentalist Islam. Over the course of several years, Muslim youth (especially those belonging to the Tabliq sect) were routinely targeted and persecuted on account of alleged links with the ADF and beyond. Quite clearly, such actions do little to foster a process of enhanced inclusion for a religious minority that already feels under persecution.

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Civil Society (in)Action Against the backdrop of the phenomenal growth of civil society in each of the countries of Utake, the preliminary question that must be asked is the extent to which that growth has impacted on the central issues of citizenship, identity and nationality with which we are concerned in this study. An inquiry into this question needs to consider both the expressed intentions of civil society actors that claim to be concerned with this area, and with their actions. In other words, the rhetoric may not match reality. In examining that reality, it is important to recall the multifaceted character of the citizenship, identity and nationality issues with which we are concerned. Thus, civil society actors in Utake have been prominent over issues to do with land, gender equality and civil and political rights (Mutunga 2004). Fewer groups deal with questions relating to forced migration (refugees and displaced persons), which has tended to be the preserve of humanitarian groups. Additionally, there is a serious dearth of groups that deal with the rights of pastoralists, minorities, indigenous people or with economic, social and cultural rights in general. Similarly, the question of conflict and its resolution has attracted only lukewarm attention, although in the case of Uganda, this is likely to change in light of the ostensible ending of the war. Research in this area of concern must necessarily focus on those groups that are addressing broad issues relevant to citizenship, identity and nationality concerns. It must also review the reasons as to why there is a reluctance to take up issues other than those that 127

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have traditionally been the focus of attention. Finally, it is important to examine the obstacles that CSOs face particularly on issues that the Utake governments feel are politically sensitive. At the end of the day it is important to recall that the dominant actors in civil society as we know it may not necessarily be the key to explaining the more intricate issues of citizenship, identity and nationality with which we are concerned. Thus, it is important to also consider the work of those operating at the local level—community based organizations (CBOs) and self-help groups—with agendas that are driven by the concerns most dominant at that level. Certainly, interesting and relevant accounts of citizenship, identity and nationality issues can be excavated from within this area. In each of the three Utake countries, civil society is at something of a crossroads. In Kenya, there appears to be a degree of exhaustion and disillusionment—after putting in so much effort to thwart the KANU regime in its attempt at recreation, Kenyan civil society seems to have retreated into a cocoon. In this respect it will be necessary to establish the status quo and to critically review the manner in which citizenship, identity and nationality issues are currently being engaged. Indeed, against the broader polarization of society along the political and ethnic lines already mentioned, an important issue for examination would be the extent to which those divisions have invaded Kenyan civil society. 18 None of the civil society actors in Tanzania or Uganda have been as active in terms of engaging the state in their respective societies, choosing instead to adopt either collaborative or nonconfrontational methods of engagement. In the case of Uganda, very few civil society actors have dared engage the state on the issues of nationality and inclusion emerging from the northern conflict, for example. 19 A number have been active in voicing resistance to the International Criminal Court (ICC) intended prosecution of Joseph Kony and the LRA leadership (Branch, 2004, 22-26). In Tanzania, the issue of the status of Zanzibar is only dealt 18

In at least one interview, reference was made to the characterization of certain civil society leaders as either NAK or LDP—the two main rivaling factions within the ruling NARC. 19 The bold exception has been the Gulu-based Human Rights Focus (HURIFO).

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with in a peripheral fashion by Tanzanian groups, with few attempts to critically engage the matter in terms of its implications for the characterization of the state today.

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Reviewing the role of the East African Community Many East Africans look back with nostalgia to the defunct East African Community and consider its demise in the mid-1970s as a low point in the evolution of a pan-East African ethos and identity (Morris & Read, 1966, esp.222-236). The revival of the community a little over two decades later was thus met with considerable approval particularly from within the intelligentsia, which claims to have a more outward-looking pan-regional perspective. In many respects such approval is clearly warranted given that both from a logistical as well as a sentimental perspective, the idea of increased cooperation and even amalgamation between the countries of Utake should be a given. However, there is a need to critically examine the extent to which the Community as reformulated is in a position to actually foster the bottom-up needs of the peoples of Utake as opposed to the top-down interests of the leadership. It is also necessary to consider the extent to which there is an organic, or grassroots support for the goals of integration as espoused by Utake’s leaders. Indeed, one could find that there is considerable hostility (especially based on fears of economic displacement and marginalization) to the idea of closer cooperation. As far as the existing situation is concerned, the jury must still be considered to be out. The EAC has made several strides in moving the debate on regional integration forwards and in this respect tangible results can be pointed to. However, most of these issues have either been pro forma, with little fundamental impact, or they amount to little more than regional window-dressing. In particular, the EAC needs to deal with many of the petty bureaucratic obstacles that stand in the way of closer cooperation and consolidation. 20 In other words, there is a great deal more that needs to be done in order to push the agenda of a more comprehensive pan-East African citizenship to come into existence 20

For a telling account of the bureaucratic hurdles of crossing borders in East Africa, see Ona Ekomoloit, ‘Face to Face with ugly East African borders,’ New Vision, November 19, 2004 at 12.

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sooner rather than later or never at all. While, the recent report proposing an East African federal state by the year 2010 must be welcomed, the obstacles in the way of achieving this goal must not be underestimated. Paramount among them is the political will necessary to move away from the constraints of the nation-states as they currently exist and surrender sovereignty to a larger entity. There is a litany of issues that the EAC could immediately take up which would ease the progress towards a Pan-East African federation and citizenship. For example freedom of movement within the region could be facilitated in order to improve the levels of contact among the peoples of Utake such that East Africans moving across the borders would not be regard as migrants, but simply as transferees between states that exist in a quasi-federal relationship. The East African passport today serves as little more than an identity card since it confers no additional rights in comparison to the national documents. 21 Ideally, it should be the precursor to East African citizenship, enabling persons who hold such documents to exercise a variety of rights wheresoever they may wish within the region. Secondly, there are restrictions over the exercise of property rights, such that Utake citizens are treated no differently from other foreigners. Much more needs to be done in the way of sensitization given that in all three countries the xenophobia about citizens of the neighbouring countries ‘taking away’ and benefiting from the bounties of the host country abound. Furthermore, clear problems exist in terms of the right to work in the three countries, with work permits remaining an issue of national jurisdiction, rather than determined at a regional level, through, as already suggested, the mechanism of the East African passport. Of course more can be done to push for harmony on customs and trade, while recognizing that there are realistic national barriers that may stand in the way of improved consolidation. There are particular issues with regard to the Bureaucracies that need to be sorted out in order to facilitate and not hinder the evolution of a pan-East African identity and eventually, citizenship. Finally, there is a need for the development of more harmonious and rights21

Indeed, during the research tour I conducted for this study, each of the Immigration officers at the points of entry through which I moved had a different viewpoint on what benefits the passport conferred, if any.

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sensitive regimes of refugee protection and non-discrimination, a task which the EAC is best positioned to assume. These would be preliminary steps necessary to the development of a fully-fledge East African ethos and identity away from the occasional rhetorical flourishes that seem to have become customary.

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H atukushirikishwa! Land, Property And Access To Resources Hatukushirikishwa! (‘we were not involved’) is the cry that Tanzanian Law professor and land rights activist, Issa Shivji heard wherever he went in the course of finding out views on how property regimes could be progressively reformed (Shivji, 1998, at vii). It is a cry that transcends all the countries of the region and in many respects extends to the core of the notion of citizenship in its economic manifestations. Given that the populations of Utake are predominantly rural, and thus dependent on the land for livelihood and sustenance, the issue of land assumes paramount importance. Furthermore, within a context of growing inequality between those in the rural versus the urban areas, populations that are multiplying on the higher side of world averages, and decreasing alternatives for productive employment, issues of land, property and access to resources are bound to gain in importance. The situation is not helped by rising levels of corruption, nepotism and related vices, which compound feelings of marginalization and dispossession felt particularly by the property-less. Against the above background, it is crucial to recall the overall context within which land and other property rights struggles are being waged. And in this respect, economic, social and cultural rights (ESCRs) become critical. This section of the chapter considers how each of the aspects we have listed above interface with citizenship, identity and nationality issues in Utake. It begins with an examination of the overall economic policy framework wherein I hazard some views on its connection to citizenship, identity and nationality issues. It then proceeds to give more flesh to the issue of land rights and concludes with an examination of economic, social and cultural rights (ESCRs). In particular, I focus on the issue of the right to water to demonstrate how fundamental 131

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the promotion and protection of this category of rights is to a redefined notion of inclusive citizenship.

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Citizenship and the Politics of Economic Liberalization If citizenship includes participation in the formulation and execution of programs and policies that affect ones very existence, then with respect to economic policy Utake is peopled by noncitizens. They are non-citizens in the sense that these policies largely exclude their input; they remove basic and fundamental rights from their realization and they exacerbate conditions of alienation and dispossession. This is true even though the programs of poverty alleviation and eradication in place since the mid-1990s have created a chimera of participation and consultation. Thus, the Poverty Eradication Action Plan (PEAP) in Uganda provided the blueprint for the Poverty Reduction Strategy Chapters (PRSPs), which is the dominant model through which these issues are currently addressed around the world. The PEAP makes some pretence at participation, but effectively leaves the final decision to the bureaucrats in the Ministry of Finance and at the International Financial Institutions (IFIs), particularly the World Bank and the International Monetary Fund (IMF). Quite clearly, to the extent that there is any broader citizen participation it is limited to a narrow, literate, urban-based and articulate elite. The bare fact is that technocrats and bureaucrats remain in control. A central issue in the debate about economic policy and citizenship in Utake is obviously the issue of foreign aid. In many respects, such aid is taken as a given, for those on the ideological right, it is regarded as the outlay of benevolent and rich countries, while leftist-leaning scholars argue that it is deserved compensation for the centuries of exploitation and resource-transfer that Africa has suffered. Others argue that there is absolutely no benefit to aid and it should in fact be stopped. Whatever the perspective, it is quite clear that aid raises several issues regarding citizen’s rights and participation in its utilization. 22 It also goes to the roots of some of the questions about the notion of a global citizenship. Here, it is 22

Several recent articles have addressed this issue. See for example David Ndii, ‘No State can Afford to Live by the Begging Bowl,’ The EastAfrican, November 8-14, 2004 at 14.

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important not only to ask relevant questions about the processual dimensions of aid—who determines whether we get aid and on what terms—but there are also the substantive aspects that need review. What is the aid for? How is it utilized? How do we decide what our priorities should be? But there is a more disturbing aspect to the phenomenon of aid that is only rarely addressed—the mind-set that believes that nothing is possible any longer without it. This mind-set has led both Tanzania and Uganda to donor support of more than 40% of their total revenue. 23 Kenya is still below 10% and in this respect is at an advantage, although the NARC government also appears to have adopted the same hat-in-hand practices of its neighbours. Quite clearly, regardless of the character of conditionality (or its absence) with respect to these disbursements there is a problem affecting our self-worth (Warioba, 2004), especially since Kenya does not have to follow the path of Uganda and Tanzania. In summary, it says many things about our collective identity. 24 Central to the politics and economics of citizenship is the manner in which power is shared or distributed between the central and local levels of governance. Of the three countries of Utake, Uganda has undertaken the most extensive reforms in the area of local government, while the 2004 draft Constitution of Kenya also marks an important reorientation of the character of governance that since independence has been highly centralized. Of course, Tanzania is most famous for its ujamaa system, which appears to have been abandoned rather than reformed. Despite its many problems, there is no doubt that it sought to enhance popular, local citizenship participation and involvement. And yet for all the advances that have been made in the decentralization of power, problems of citizen inclusion and participation still abound even in the situation of Uganda. Indeed, a recent study has concluded that the Ugandan system does not “… constitute a genuinely participatory system of local governance.” (Paul & James, 2003 at 334). The political economy of liberalization 23

Richard Ndung’u 2004, ‘Focus and Clarity in Budget Speeches,’ msafiri, issue 48 at 31. 24 See Andrew Mwenda, ‘Foreign Aid Undermines Democracy in East Africa,’ The EastAfrican, November 8-14, 2004 at 14.

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runs right through the system from top to bottom. Conditionality imposed from the IFIs is extended to the local level of governance with the effect of closing off grassroots control leaving the local population and the political class at that level with a limited voice. In the words of Paul and James, “Needs are read from the top, and programs imposed downward.” (Id., at 334). If we are convinced that some of the most basic elements of citizen participation are manifested at the local government level, then obviously there are serious issues of reform that have to be addressed. It requires a veritable reversal of the existing conceptualization of local government that gives superior status (and veto powers) to central government, and to push for reforms that will fundamentally alter this power relationship.

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Land Struggles in Contemporary Utake Recent developments in each of the Utake countries demonstrate how seriously the issue of land rights and the struggles around them has become. Indeed, without fear of exaggeration, the land question is of central concern to many of the issues of identity and citizenship with which we must be concerned. For example, to what extent has the regime of land governance in our countries been democratized in order to give full expression to the legitimate needs and aspirations of the vast majority of the population? How effectively has the question of landlessness been handled? In which ways have attempts been made to balance community needs and individual interests in land? As was recently demonstrated with respect to the (non) publication of the report on land use and abuse in Kenya, land is a highly political issue, with serious implications for one’s location within a society’s political economy. Indeed, land disputes lie at the core of some of the growing expressions of xenophobia towards refugees, migrants and other displaced communities. 25

25

In Uganda this has become a particularly volatile issue of recent, with reports of Local Councilors chasing away refugees in Hoima and Masindi districts in the north-west, alleging that they were grabbing their land. The same is true of Nakivale Refugee Settlement in Mbarara district in the southwestern part of the country. See RLP 2004.

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In dealing with the tensions and struggles over land, to what extent can we surface not only the colonial influences over these developments, but also the pre-colonial questions of conflict and expropriation? (Giblin, 1998, at 1-56). Furthermore, is it possible to divorce the issue of rights to land from questions of identity and ethnicity? Land is of course a critical aspect of identity politics in the case of Uganda. Recent calls for Baganda not to sell their land to ‘foreigners’ has sparked serious fears that such a policy is a slippery slope that could eventually result in non-Baganda being forced to migrate away from this part of the country. The fear has extended into the debate about constitutional reform, and in particular about the issue of ‘federo’—the demand by Buganda for increased autonomy. The case of the Maasai claims for land rights in Kenya following the expiration of treaty regimes with the British also demonstrates the potential for conflict between the state power and sub-regional and ethnic entities over issues to do with land control and utilization. The Maasai are struggling not simply for the resource but also for a firm foothold within the context of the process of political consolidation, which in Kenya at the moment still appears to be under negotiation. Against the onslaught of homogenizing ideas of land tenure and the easy equation made between private tenure and development, how can there be a strategic reconceptualization of the manner in which land is viewed in order to make it a central aspect of the determination of an inclusive citizenship? (Lund, 2000). In this respect, a critical issue of concern is the question of private investment and the often controversial policies adopted to facilitate the acquisition of land; private foreign investors in most instances trump locals in terms of who has the more secure land rights. As Issa Shivji has pointed out in critiquing the Tanzanian law on investment which provides for a joint venture ‘partnership’ between an investor and a village government: “In practice, more often than not, the so-called joint ventures are nominal. The real motive of the investor is to acquire land. The result is invariably the alienation of village land under the guise of a joint venture.” (Shivji, 1998 at 33). In a comparative study of land rights in Scotland and several African countries, Toulmin and Pepper make the point that many African countries still systematically exclude certain groups from 135

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engaging in debate and decision-making, especially over crucial resources like land. Among them are women, visiting herders, ethnic minorities and new settlers: “Where valuable resources are at stake, definition of identity has become of increasing economic importance, with the definition of who can be regarded as a ‘community member’ tightening as land becomes scarcer.” (Toulmin & Pepper, 2000 at 6). This applies with some modification to the case of the countries of Utake. In several parts of Uganda, recent conflicts over the rights of settlers and visiting herders have provoked government intervention to prevent the situation from escalating into all-out conflict. In one case, a ‘settler’ won the election for the highest district office but was forced to stand down on the intervention of President Museveni who was prevailed upon by the ‘indigenes’ not to allow the bafuruki (the people from ‘elsewhere’ or migrants) to take over the district. Until the space for political action had been invaded, the fact of the settler’s arrival and establishment in the area had not been problematic. Given the polyglot character of most of Uganda’s districts, the precedent set in this regard is a negative one. It is similar to the ethnic clashes that led to the eviction of several communities from the Kenyan coast (especially from Mombasa) in the 1990s (KHRC, 2001). Essentially, it means that a basic right of citizenship—freedom of movement and the right to settle and work in any part of the country—has effectively been negated. To date, this issue has not been satisfactorily resolved in Kenya, despite a judicial inquiry into the matter (Akiwumi, 2002).

The Question of Water, or another Way of Linking Citizenship to Economic, Social and Cultural Rights Citizenship and identity issues are more often than not associated with civil and political rights, i.e. the right to vote, freedom of movement, or the rights of participation in the governance process. However, the processes of globalization have thrown up in bold relief the fact that economic, social and cultural rights are just as significant in the quest to grasp so many of the issues of citizenship, nationality and identity with which we are concerned. Citizenship will determine whether or not you are entitled to public health care and to any subsidies that may go with 136

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it. Rights of citizenship will provide you with some form of social security and it will also allow your children to go to school in a context where the state has undertaken to universalize primary education. Nevertheless, there are serious problems that affect the full realization of this category of rights, including questions of access, prioritization and discrimination. This entails ensuring the fundamental obligations that ESCRs import, also known as the ‘3As and the Q,’ (accessibility, affordability, availability and quality) are fully realized. The question of water is a particularly important one, especially given its potential to fuel conflicts as it increases in scarcity, becomes more polluted and increasingly affected by poor management. In particular the tensions between the upper and lower riparian countries over the use of the water is bound to raise the potential for increased conflict. 26 More importantly, the right to water raises serious questions about the degree of involvement of citizens in determining the kinds of policies that should govern its management. Recently, in the case of Tanzania, the issue came to the fore with the privatization of water services in Dar es Salaam. ActionAid alleged that the process neglected the basic needs of poor people. As a consequence, they have been unable to meet the high bills that have resulted, and instead have resorted to unsafe water sources. 27 There has also been a skewed distribution of the water, with larger quantities and better services being directed to the fewer, but richer clientele who can afford the cost. All in all, the privatization process violated several of the basic tenets of a rights-grounded approach to the realization of ESCRs. If a majority of the citizenry are denied accessibility, affordability, availability and quality with respect to water, then quite clearly they are not benefiting from some of the essential attributes of citizenship. Similar tests can be applied across the board to other categories of economic, social and cultural rights in a concrete 26

David Kaiza, ‘Move Faster on Nile Waters Treaty—Ministers,’ The EastAfrican, November 8-14, 2004 at 5. 27 ActionAid, Turning off the Taps: Donor Conditionality and Water Privatization in Dar es Salaam, http://www.actionaid.org.uk/wps/content/documents/TurningofftheTAps.pdf.

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fashion. In particular, the rights to healthcare, education, food and shelter, raise numerous questions on the way in which the governments of Utake have failed to promote their progressive realization (Oloka-Onyango, 2004).

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Revisiting The Marginalized: The Situation Of Indigenous And Minority Peoples Marginalization can assume a multiplicity of forms—from the social and the economic, to the political and the cultural. Moreover, it is often forgotten that the essence of human rights is to protect minorities against the homogenizing onslaught of majorities. While majorities must have their way, minorities must have a say particularly on issues that are fundamental to their very existence. Unfortunately, the situation with regard to indigenous and minority peoples in Africa has not been very edifying. The argument is often heard that we are all minorities. Alternatively, when claims are made for the enhanced protection of the right of indigenous peoples, the retort most often heard is, ‘who is not indigenous?’ This explains why the African Charter on Human and Peoples’ Rights makes no mention of either minorities or indigenous peoples, even though it is famous for introducing the notion of peoples’ rights into mainstream human rights discourse. 28 The consequence has been that either these groups must conform with the views and practices of the majority, or face increasing and relentless pressure to do so. Furthermore, because of the vulnerability of their situations, their land and resources are easy prey to those who can garner majority support backed by state sanction and international capital in order to dispossess them. This issue is of particular concern in relation to the rights of indigenous peoples. Evidence from elsewhere in the world has demonstrated that because of their strategic location and close proximity to coveted resources (minerals, land, timber, and water etc.), indigenous peoples are the target of particularly unscrupulous attempts at dispossession, sometimes in collaboration with state 28

It was not until 2001 that African leaders recognized that there was a need to address the issue of minorities and indigenous peoples. See the Kidal Declaration (2001/3).

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functionaries. In the East African situation, there is a need to conduct a thorough examination of the situation of the region’s indigenous peoples and to ascertain the specific rights issues by which they are affected. Correspondingly, it is necessary to consider the response of governments to these issues as and when they are raised.

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East Africa’s Minority Communities Utake has many peoples, several of whom can be classified as minorities. Indeed, many of them came from outside the region. In the words of Haroub Othman, “There are those who were brought in by the winds that blow during different climatic situations; those who came because of trade; those who came in search of slaves or driven by the forces of colonialism; those who came with the Bible and the Quaran in their hands; and those who were running away from persecution and discrimination.” (Othman, 2002). There are many reasons why minorities feel that many of the basic rights of citizenship elude them. Many of them are invisible either in the arenas of public service, in education or in economic affairs. They also suffer from stereotypical portrayals of their cultures and identities as well as deliberate discrimination. They lack effective representation at all levels and find difficulty in securing employment; in a nutshell they are marginalized. Obviously, this means that they do not enjoy the full benefits of citizenship, which they are denied principally on account of their identity. In Uganda, the only commission provided for by the Constitution that has not come into existence is the Equal Opportunities Commission (EOC) that was specifically designed to cater for the situation of minorities. 29 Now, under the White Paper proposals for constitutional reform, the suggestion has been made to merge the mandate of equal opportunities into the operations of the Uganda Human Rights Commission, an act that would reinforce their marginalization. This is because as it is, the UHRC faces several problems of its own that will only be compounded by

29

See Peter Nyanzi, ‘Marginalised Groups Still Await the EOC,’ The Monitor, November 12, 2004 at 22.

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expanding its mandate. 30 Quite clearly, there is still a great deal to be done in both conceptualizing who minorities are, and the best ways of ensuring that their fundamental rights are given increased protection (Tamale & Oloka-Onyango, 2002, 113-138). Often overlooked is Utake’s South Asian community. This is in large part because of their wealth, which symbolizes empowerment and influence rather than the marginalization usually associated with minority status. Citizenship issues have obviously featured prominently for this group, especially against the backdrop of the 1972 expulsion of the community from Uganda. Very little has been done by way of research to consider the situation of the Asian minority in Uganda after their return, or to make a comparison with their existence in Kenya and Tanzania. Particularly in the arena of social relations between black and brown we find that there is a minefield of tense relations and even explosive connections (Kahyana, 2003). A great deal of angst was recently expressed by a story on an African-Asian love affair in Kenya. It first run in the literary journal Kwani and was taken up by the quarterly Awaaz that has recently emerged as a vocal arena for the articulation of the diverse stories of the Asian community. 31 The reaction to the story went to the core of many of the issues concerning the community: What are the hopes and fears of the Asian community? In which way do they identify themselves? How do they relate to the political, social and cultural aspects of their living in Utake?

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A Look at the Situation of Pastoralists Each of the countries of Utake have significant populations of pastoralists. In Tanzania there are the Barbaig and the Maasai in the northern part of the country, who spill over the border into Kenya, where you also find the Turkana, the Nandi and the Pokot. In Uganda you have the Karamojong and the Bahima. Each has faced specific issues related to either their mode of living, or to their 30

There is a tendency for the Commission to collapse all these groups into a single group along with children, women and persons with disabilities, and to describe them as ‘vulnerable.’ This is a questionable approach to the issue. For example, see UHRC, 2000-2001, at 42-54. 31 See, Mwangi Githahu, ‘Picture Story causes a stir,’ Sunday Nation, September 19, 2004.

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cultural and traditional attributes. Barbaig land was appropriated in the early 1980s for wheat production (Mvungi, 2000, 88-99). The Kenyan Maasai were the victims of what perhaps ranks as colonial rule’s most egregious appropriation of land in eastern Africa, and the recent attempt to re-assert the rights to their land is an issue certain to gain in magnitude. Likewise, the Maasai in Tanzania are facing the extinction of their customary land rights in favour of wildlife conservation (Juma, 2000, 133-172). The Karamojong of north-eastern Uganda have always been treated as an oddity with each successive government devoting itself alternatively to their ‘modernization’ or to their disarmament. In virtually each instance, the dominant approach has been coercive and top-down, avoiding the central issue of what the pastoralists themselves want. In the words of Sengondo Mvungi,

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Customary rights are superior and precede all rights. They should not be easily assailed by statute, unless the natives (sic!) are consulted and have given their consent to any act or measures that compromise their rights. The critical point underlying these cases is that the state authorities do not recognise the right of pastoralists to own their land. In reality pastoralists own not only the land on which they live but also the land upon which they graze their stocks (Mvungi, supra).

A number of studies have focused on the situation of pastoralists and it is essential to review not only their findings, but also to establish the response (if any) they have elicited. What are the new issues pastoralists face, especially in a context of a world that is globalizing at tremendous pace? How have the states of Utake sought to accommodate the diversity of their lifestyles and cultures or alternatively to alter or suppress them? Are they involved in the programs of development and ‘modernization’ by which the pace of progress in the rest of the country is dictated? To what extent do the regional institutions devoted to economic integration—especially the EAC and the Inter-governmental Authority on Drought and Development, IGAD—address the situation of pastoralists in any serious fashion? Focusing on these questions will allow for a critical appraisal of the extent to which pastoralists have been incorporated into the mainstream of citizenship and been able to benefit from it. 141

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F isherfolk, Frontier and Forest Peoples Perhaps the most marginal of the marginalized and consequently those who enjoy the least of the benefits of citizenship are fisherpeople, forest-dwellers, hunter-gatherers and those who live on the frontiers of the artificial borders that the countries of Utake have inherited. What all appear to share in common is nominal citizenship, limited to the payment of taxes and to meeting the most coercive aspects of their relationship to the state. With regard to the people who live on the frontiers, there is a dimension to their existence that is represented by the fact of conflict. Particularly for those who live in the so-called Kapotur (Karamojong, Pokot and Turkana) region that marks the northeastern boundary between Uganda and Kenya, conflict has a long history. The fact of conflict has been a marked feature of relations between these communities for years (Musambayi, 2003, 135-153). But it is important to understand that such conflict is not a ‘natural’ or endemic part of their existence. As Musambayi points out: The colonial process not only defined national boundaries but also sought to constrict the movement of these nationalities. It also alienated their land which was normally reserved for grazing purposes in the course of dry spells. It is the attempts to manage this harsh situation in total disregard of state and provincial borders in search of pasture land, water and self-reproduction through cattle-rustling that continues to inform their relationship with the nation-state … It is notable that their geographical milieu coincides with their political and economic marginalization (Id., at 136). The factor of conflict has also greatly affected the livelihoods of the Batwa who live on the borders between Uganda, Burundi and the Democratic Republic of Congo (DRC) (Minority Rights Group, 2002). Indeed, the fact of their marginalization is emphasized by the lack of any focused attention to their situation. Most accounts of the Rwandan genocide speak only of the ‘moderate’ Hutu and Tutsi, and yet the Twa were equally victimized by the brutality. Fisherfolk, frontier, and forest people also share in a heightened degree of dispossession of their livelihoods, which in many respects are sacrificed to processes of commercialization and the enhancement of the livelihoods of those who possess wealth and power. Majamba lucidly makes this point with respect to the issue 142

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of hunting laws and institutions in Tanzania. These, he argues, basically cater to the tourist hunter. Unsurprisingly, local communities are thus upset that foreigners are allowed to hunt wild animals while they are prevented from doing the same: “Most of them did not seem to understand the logic behind controlled hunting that benefits foreigners while they constantly keep being evicted from their ancestral lands.” (Majamba, 2001). There is a need to do more in-depth analysis of the manner in which these peoples have been treated, and in particular, those who straddle the borders, such as the islanders of Lake Victoria, and the forest dwellers of the Congo/Uganda border; what are the identity issues they confront? How are they treated by the dominant communities they neighbour? What has been the attitude of the state towards their situation? There may not be specific regimes of law that cater to the interests of their communities. However, it would be important to consider the extent to which the tensions Majamba refers to have been accommodated, or simply to establish who is given priority in a contest between the interests of these communities and those who may possess power and wealth.

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Where/Who are the Youth? Considerable lip-service attention is paid to the situation of the youth of Utake. Theirs is mainly a citizenship by proxy—either through the agency of their parents, their tutors or their elders. And yet, the youth are both the main engine and possibly the main brake to the pursuit of broader and more embracing ideas of citizenship. Their means of communication, such as music, travel, art and literature contain a potentially rich source for revisiting our notions of citizenship, identity and nationality. The youth of Utake are pushing the geopolitical frontiers of the region into oblivion and in many respects are leading the way in the process of integration irrespective of the pious claims of the politicians and the bureaucrats. The example of the singer José Chameleon exemplifies this. Although Ugandan, he sings in Kiswahili, a language that is much more widespread and popular in Kenya and Tanzania. Ugandans have resisted Kiswahili for decades despite bureaucratic efforts to ensure its teaching in schools and colleges. 143

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Chameleon’s star quality in Uganda has done much more for the spread of the language than any politician, teacher or trader. The medium of music is one to which the youth can relate with ease and has great potential to shape their attitudes to life and community. Conversely, the youth in the other two countries of Utake are finding a star from a country which traditionally has not spoken the lingua franca able to articulately communicate and express their needs and interests. In other words, music is providing a means of self-identity and enhanced community. So too are the East Africa FM Radio, and television that—whether by default or design—are building a pan-East African identity that all the youth of Utake can relate to. Studying the youth in their various forms of expression is crucial to understanding the ways in which the next generation of East Africans view issues of citizenship and identity. But children are even more affected by issues of citizenship and identity. Defiled by their parents, conscripted by rebel and government armies, denied a voice in any matter of national or even local interest, there are several issues that compound the dispossession of children. Critical thought needs to be given to the existing methods of their incorporation into the body politick based on the model of the Convention on the Rights of the Child (CRC), and to consider how best to address the many issues of marginalization that children face in contemporary Utake.

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The Intricate Case of Sexual Minorities There are few subjects in the world today that draw as much contention as that of homosexual (gay and lesbian) relations. In the recent (2004) US elections, the issue was brought to the fore by President George Bush’s conservative constituency, and witnessed the passing of constitutional amendments barring same sex marriage in all eleven of the states in which the issue was placed on the ballot. Early last year, the issue exploded to the fore in Uganda when a university law professor and an Anglican Bishop spoke out in support of the recognition of gays and lesbians and called for their non-discrimination. The barrage of media attention (print and online) was unprecedented. Caught up in the same furore, the White Paper specifically proposes a constitutional amendment to confirm that marriage is confined to heterosexual couples. Zanzibar 144

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recently increased the penalties in a law criminalizing same-sex relations, and yet, it is a well-known fact that such relations have long existed and been tolerated on the island (Taylor, op.cit.). For many of those East Africans ranged in opposition to gays and lesbians, the issue is mainly one of morality—homosexuality violates the basic social mores and sensibilities of African, Christian and Moslem communities and should simply not be tolerated. 32 However, the issue is more intricate and involved than just the moral. There is the politics of sexuality and its highly gendered nature. There is the issue of the degree to which the state can police the human body and enter into the most sacred of spaces, the bedroom. There is also the issue of whether individual sexual activity or inclination can really be policed or changed, especially when it involves consenting adults. Many gays and lesbians in Utake are coming out of the closet and demanding for the decriminalization of their orientation, even if they are less vocal in pushing for formal legal recognition of their situation. 33 Finally, there are the very many issues of discrimination, non-inclusion and participation especially for those who openly identify themselves as homosexual (Tamale, 2003, 42-49). While officialdom may be in denial about it, there are serious issues relating to health that the continued denial of same sex relations implies. In sum, while homosexuality is increasingly assuming more importance as an issue of identity, the states of Utake are trying their best to bury their heads in the sand in the vain hope that it will disappear.

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On Displacement: Migrants, Displaced Persons (IDPS)

Refugees

And

Internally

Migrants and Non-citizens It is incorrect to assume a uniform treatment of all migrants and non-citizens. Rather, the mode of treatment very much depends upon where one is from (their country of origin), plus the class

32

For a recent comment, see Chibita wa Duallo, ‘US Poll a Lesson to Gay Activists,’ New Vision, November 18, 2004 at 59. 33 See ‘Reply to Concerned parents of gays,’ New Vision, November 18, 2004 at 11.

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location to which such a migrant belongs. According to Christopher Clapham,

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What matters, in short, is not where we go, but who we are when we go there. Most population movement excites no attention, because the migrant is classified as ‘one of us,’ and the movement of people within an area in which they are regarded merely as ordinary human beings is treated as ‘normal.’ Those who are ‘not one of us,’ on the other hand, are instantly identifiable, and it is their arrival that creates a political problem (Clapham, 2002 at 1).

While xenophobia continues to manifest itself in all three Utake countries, the form and direction of such sentiment is highly varied. Thus, Rwandese migrants are held in disdain in Uganda, particularly since the falling out between the leaders of the two countries over the war in the Democratic Republic of Congo (DRC). But, it should be remembered that anti-Rwandese sentiment in Uganda dates back decades, and has found varying levels of hostile treatment. 34 Despite the claims of closer East African cooperation and the many protocols over work and movement, there appears to be little progress in this direction. Ugandan workers (even professionals) in Kenya have a considerably much harder time in securing permission to work than do their counterparts who seek work in Uganda. While Tanzania has proved the more tolerant of the three, recent tensions between Zanzibari (islanders) and Tanganyikans (mainlanders) demonstrate that the issue of migration—especially when linked to questions of an economic nature—remain volatile. The situation is compounded by the fact that scholarly treatment of this issue has been minimal. And yet, there are several issues of interest that need to be given consideration. The expulsion of migrants and non-citizens is a practice that all three Utake countries have engaged in with Uganda being the most notorious. Among the issues necessary for consideration are the extent of legal protections that the countries extend to migrants, the power of bureaucrats (especially immigration, Police and other law enforcement officers) over these largely defenceless individuals and 34

For example, at the height of the bush war in the 1980s, several Rwandese—even non-refugees—were expelled from Uganda on account of their perceived support for Museveni’s NRA.

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the response of local communities to the phenomenon. What are the actual conditions under which minorities live? Because the EAC is supposed to be a crucial institution in the promotion of integration, it would also be important to establish what perspective they bring to the issue.

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Refugees and East African Host State Policies We have already made the point that the law may not be reflective of practice and this is particularly true in the arena of refugee legislation in Utake. The reasons for this are several, but perhaps the most important is that refugees do not have a constituency. In other words, they do not exercise any political clout within the countries in which they are hosted. Consequently, refugees are much more prone to the shifting sands of political expedience as opposed to the application of universal principles of international law. Thus, policy formulation changes at the whim of specific developments on the ground at any one point in time. Additionally, there is an unfortunate disconnect between human rights and the rights of refugees, such that, as Harrell-Bond and Kagan have pointed out, refugees are “… relegated to the category of ‘humanitarian’ problems …” (Harrell-Bond & Kagan, 2004). There is a fundamental difference between a humanitarian and a human rights perspective, the former essentially being one of charity, rather than empowerment, autonomy and self-actualization. A number of issues arise that require further consideration with respect to the situation of refugees in each of the Utake countries. First, relates to the character of the constitutional and legal regimes that govern their existence; how many recognize them as individuals or groups of people requiring specific attention? Where they do, what is the level of enforcement of their rights. For example, Uganda’s 1995 Constitution (following a practice that had long been in existence in Tanzania) made a radical departure with the past by making provision for the acquisition of Ugandan citizenship by refugees who had continuously lived in the country for a period of twenty years before the new constitution came into force. This meant that refugees and other migrants who had lived in the country since October 8, 1975 could apply for and be automatically granted Ugandan citizenship. However, refugees continue to have 147

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problems with the enforcement of this provision, in part on account of bureaucratic intransigence, but it is also a reflection of a deeper and more xenophobic approach to the situation of refugees. Both Kenya and Tanzania have long reformed their domestic legislation to move away from the control paradigm that still informs Ugandan legislation in this area. However, there are larger questions that require further investigation. For example, what is the role of the UNHCR on the ground in these countries, and to what extent does the operation of this UN agency actually promote the rights of refugees? In a recent critique of the agency’s Refugee Status Determination (RSD) procedures, several problems have been pointed to as being an obstacle to the effective realization of the rights of refugees. For example, issues such as giving refugees the reasons for rejection of an asylum application, the right to appeal these decisions, and the right to have counsel to represent them in status determination hearings are problematic in all three of the Utake countries. This is so in spite of the involvement of UNHCR in the adjudication of refugee issues. Many countries do not grant refugees the right to engage with the judicial process, preferring to confine their options to administrative procedures alone. This quite clearly violates the rights of refugees to a fair hearing. the sub-text of refugee treatment in all three countries definitely requires reform.

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Understanding the Concept and Pattern of Internal Displacement While the fact of displacement has been endemic to human existence for millennia, the origins and form of displacement that is taking place today is markedly distinct even from the situation only one or two decades ago. Whereas displacement outside countries used to be the norm (refuge), today internal displacement has become a much more acute problem. In Africa currently, the numbers of internally displaced far outnumber that of refugees. Uganda exemplifies this shift in the displacement scenario, with the number of its refugees markedly reduced since the heyday of political instability in the 1970s and 1980s, while that of its IDPs has markedly shot up. As a matter of fact, the total number of refugees that Uganda produced at any one point in time has never 148

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matched that of IDPs, which today stands at around one and a half million. In Kenya, although the magnitude of the problem is much lower, the issue of the Rift Valley and Coast province cleansings of the early and mid-1990s is still very much alive. But the numbers only tell one half of the story. If there is any group of people to whom the concept of citizenship is hollow, it is IDPs. This is because they are caught between the proverbial rock and a hard place. While they have been forced to leave their homes and have been subjected to refugee-like conditions, legally they do not have the same status. The implications of this fact is that they lack that most fundamental right that refugees have, the right to protection. Since they haven’t left home, they are presumed to still enjoy the benefits and protection of their home state. Of course, the reality is quite the opposite. The rights perspective is subordinated to the humanitarian impulse which does not foreground the situation of an individual in preference to their collective security and well-being. The fact of being uprooted and forced to leave what has been your home has numerous psychosocial impacts. Unfortunately, because they have no legal status there is little that can be done aside from the extension of humanitarian assistance. Problems abound with regard to land resettlement claims, support and assistance. Attempts should therefore be made to reassert their rights as citizens. Rather than treating their situation through a humanitarian framework, efforts should be directed towards ensuring that their rights as citizens are recognized and enforced.

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Reconceptualising Citizenship and Identity From the preceding account, there is a great deal of work that still needs to be done at both the microscopic and the macro level in terms of analysis, synthesis and implementation. Citizenship, identity and nationality issues have obviously assumed a prominence that extends through myriad spheres of our contemporary existence. There is hence a need to further extend the debate, rather than seeking its closure or termination. For individuals, communities, states and supra-national bodies such as the East African Community, citizenship, identity and nationality 149

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may mean different things. The task is both to understand what those different meanings are, and to establish whether they can be harmonized in their diversity. If harmonization is not possible, at the very least there should be recognition of the vast diversity of the interests and perspectives of the community of peoples that make up Utake. At base, the fundamental objective of an inclusive and pan-regional citizenship should be the construction of reinvigorated notions of citizenship. In order to convey both the magnitude of the issues that are under examination and to appreciate the forces which are propelling them it should be both qualitative and quantitative. It should seek to mark distance from conceptualizations of citizenship, identity and nationality that may be exclusionary and discriminatory. The key question is how to make the mechanisms and structures that contribute to our contemporary understandings of citizenship and identity more applicable and relevant to the vast majority of the citizens of Utake.

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8 Who Owns The East African Community? 1

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You cannot in measurable terms go into each household and say this is the benefit from the community. The community offers an opportunity. Those who take advantage of the community benefit from it … Those who decide to sleep, whether you are in a region, you will gain nothing. When you create a larger market called East Africa, then your opportunities to benefit are much greater.2 At the end of last year I took a short trip around East Africa. The intention of my visit was to explore what the people of Utake (Uganda, Tanzania and Kenya) thought about the issue of citizenship. My findings revealed two main things. The first was that there are considerable similarities between the three countries of Utake that do not require re-statement. Suffice it to say that those similarities warrant taking measures to have a single unifying geographic and political entity that does away with the physical borders in the region. This is particularly the case given the historical, cultural, economic and political affiliations that all of us East Africans share. Moreover, the artificiality of the borders dividing us is something that makes no sense to virtually everybody, especially those in towns such as Busia, Mutukula, Katuna or Namanga, who cross them willy-nilly without caring for issues of territory and sovereignty. Among the youth in particular, the sense of EastAfricaness is particularly strong. This is witnessed not only by the increased exchange of students between the three countries, but also in the development of common East African icons, such as East African TV and Radio, and cross-boundary musical stars like Jose 1

Presentation at a Development Network of Indigenous Voluntary Organizations (DENIVA) Public Dialogue on the East African Community, Kampala, November 23, 2005. 2 Amanya Mushega, Secretary General of the East African Community, ‘Uganda Needs to Swim in Big Pond,’ The Weekly Observer, Ocotber 27 November 2, 2005 at p.19.

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Chameleon, Nazizi and Bushoke. Thus, it is safe to conclude that most Utakeans (the peoples of East Africa) feel a close affinity for their brothers and sisters across the border. They follow the ups and downs of their neighbours; they share in their successes, and lament their losses; there is sometimes also a little bit of protectiveness and jealousy. In other words, East Africa today experiences all the normal joys and pains of siblinghood. My second conclusion was that despite this closeness, very few of the people I talked to young and old could concretely relate to the idea of the East African Community, let alone to the idea that we could one day all be citizens of an entity larger than our present countries. There was embarrassingly little knowledge about the revived community. Most of them scoffed at the idea of East African Federation—whether by the year 2011, or even by the year 2050—despite the optimism of our political leadership that federation in under a decade is indeed a feasible idea. All these issues raised a central paradox for me. How come the people of East Africa feel very much like East Africans, but at the same time, they do not feel like they belong to the East African Community? Why is ownership important? Just think of the difference between a Landlord (nannyini ttaka in Luganda) and a squatter (omusenze). The landlord has all the rights, while the squatter has none. Ownership is important because it confers rights or entitlements, just as much as it confers obligations and duties. Ownership is crucial because it gives one a say in the methods and means by which one is governed. Ownership confers upon one a sense of bearing and inclusiveness. Most importantly, ownership gives one a sense of belonging, or to put it another way; it confers upon one a right of citizenship. In my view the problem with our revived Community is essentially one of ownership: does it belong to the governed or does it belong to the governors? For the purposes of the present analysis, I am particularly concerned about the following: how much is the revived East African Community (EAC-2) a creature of popular will? What kinds of claims can the broad masses of the citizens of Utake actually make on this entity? Is EAC-2 sufficiently insulated from the dangers and pressures that led to the collapse of EAC-1? 152

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How can our voices be heard? In a nutshell, who really owns the East African Community?

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A Short Point On Our Collective History Against the preceding background, it is important to begin our dialogue by recalling that the East African Community we are talking about today is not an entirely new animal. Historians will recall that the first East African Community (EAC-1) dates back to the late 19th century. It began with the construction of the Uganda/Kenya railway in 1897, followed by the governor’s conference (1900-1947), which became the East African High Commission (1947-1960), that was followed by the East African Common Services Organisation, (1961-1967), which eventually led to the Treaty of East African Co-operation (from 1967 until the break-up in 1977). Indeed, it is sad testimony to what we lost that the European Economic Community (EEC), (now the European Union—EU) was in many ways modelled on the EAC and then left us behind. Most cooperation and success under EAC-1 was registered in the economic fields, with minimal progress in the political, legal and socio-cultural fields. The near-exclusive emphasis on economic cooperation was illogical and indeed inimical to the growth of a formidable union of the three countries. The lack of the legal basis upon which any cooperation could be based (including on the economic front) meant that differences of opinion on the actions and misdeeds of the members could not be properly sorted out. This perhaps explains why the structure collapsed when internal pressure increased. EAC-1 collapsed (or more appropriately was destroyed) in 1977. The reasons for that destruction were quite clear: political differences between the leadership of the body; perceived and real inequalities in the benefits each country was deriving from the association; the influence of individual prominent political actors (Idi Amin in Uganda, Julius Nyerere in Tanzania and Charles Njonjo, then Attorney General of Kenya), and also the weakness of the foundation on which the organization was built (Kamanga, 2001, 126-130). Thus, the present Community (EAC-2) is in effect a 153

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second marriage. Have the three countries of East Africa resolved all those issues which led to the first divorce and break-up of EAC1? EAC-2 has now been with us for several years, and dates back to the establishment of the Tripartite Commission for Cooperation on November 13, 1993. The Treaty for the East African Community came into force on July 7th 2000, with the revised institution being officially launched on January 15th 2001, meaning that today EAC-2 is still a toddler of only five years of age. Despite the relative infancy of the institution, we can still ask ourselves a number of questions about where it has come from and about the direction in which it may be heading.

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From The Tripartite Commission To EAC-2 To fully answer the many questions we have posed, it is important to recall the basic foundation on which EAC-2 was constructed. Article 5 of the treaty clearly demonstrates that the new body was designed to pay attention to much more than its predecessor, which had mainly focused on matters of an economic nature. The eight objectives of the Community are to: (i). improve the standard of living and quality of life of the people of East Africa; (ii). ensure balanced, orderly, consistent and fair development in East Africa; (iii). ensure reasonable and proper use of natural resources taking into account safety and sustainability of the environment; (iv). promote the active participation and benefit of the people in development; (v). enable the business community and the general public to play a leading role; (vi). strengthen and improve the role of women in development; (vii). promote peace, security and stability in East Africa, and (viii) promote other activities aimed at a successful community. While many of these objectives were present with respect to EAC-1, there are several new ones that were added in. For the purposes of the present analysis, Objectives (iv), (v), (vi) and (vii) 154

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are particularly important. In the first instance, these address some of the key issues of sustainable development, peace, security and stability that have been of central concern to the peoples of the region since the collapse of EAC-1. Secondly, they also point to the place of the people in the organization (ranging from the business community, to women to civil society). This second point is taken further in the Treaty provisions governing the operational principles of the Community (Article 7). In particular, the first principle is that of people-centred cooperation. Principle No. 4 concerns the creation of a conducive environment, which encompasses ensuring law and order, providing good policies and putting in place a good infrastructure. To what extent have these principles, particularly the one of people-centred development, been at the foundation of the operation and development of EAC-2? Those who were around at the time will recall that the draft treaty was put to public debate from May 1998 to April 1999. The response was lacklustre and indeed the involvement of the broader masses of the populace was marginal. One wonders why this was the case and indeed there are several explanations including the following: (i) the non-involvement of civil society and other non-state actors in the conception, formulation and final packaging of the treaty; (ii) the lack of publicity and information surrounding the process; (iii) the inability to see what real benefits would be gained from the treaty; (vi) the emphasis mainly on macro-economic (and rather abstract) issues, and (v) the use of top-down methodologies and approaches. Indeed, there was hardly any attempt to involve the people in the process from its very beginning. At best, only the urban-based elite of the three countries were involved. No attempts were made to get the masses of women, peasant, business, worker or youth groups that are present in all the East African countries engaged in and feeling part of what should have been regarded as a monumental development in the history of the region. Rather, as was the case at inception, the process was largely elite, top-down 155

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and driven by the political and bureaucratic leadership of the three countries. Although presented as the main beneficiary of the process of cooperation, the same governments have conceptualized the people as passive recipients of their policies. In light of the above development, how much has the actual functioning of EAC-2 moved away from the features that destroyed EAC-1? How much does reality reflect the rhetoric contained in the treaty? I will focus here first of all on the East African Legislative Assembly (EALA) because the idea of effective representation lies at the centre of any concept of people-centred cooperation. Then I will turn to the East African Court of Justice (EACJ) because the notion of justice is crucial to the idea that aggrieved people can find a remedy. I then move on to an examination of the proposals for the creation of an East African Federation by the year 2010, and conclude by asking the question: what role is there for regional civil society? Or to put it another way, how can we capture ownership of our community?

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On The Question Of Representation And The East African Legislative Assembly (EALA) There is no doubt that the most critical issue in ensuring genuine people-centredness is the question of representation. How are the people of East Africa represented in EAC-2? The main representative body of EAC-2 is the East African Legislative Assembly (EALA), which is governed by Articles 48 through to 65 of the treaty. Of particular concern to our inquiry is the way in which elections for this body are conducted, i.e. its composition. EALA members are elected by individual National Parliaments of each member state. There were several problems with this methodology. In the first instance it was indirect. While indirect elections are not necessarily unrepresentative, they nevertheless reflect a limited franchise. Secondly, in each instance the ruling parties/movements in the three parliaments manipulated the elections in order to secure their interests in the regional body. The process essentially produced mainly NRM, CCM or KANU representatives to the regional 156

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assembly. 3 It is obvious that the presumption on which these elections were based was that the interests of the ruling parties were the same as those of the peoples of the three countries, demonstrating that most members are more interested in preserving and protecting national interests and sovereignty than in pursuing a regional vision for the Community. Thirdly, there are many questions about the inclusion of minorities, and about gender balancing (or the lack thereof) among those who were selected to be our representatives. This was the result of the lack of uniform approaches to the electoral process in each country, and of the broad and general manner in which the provisions of the treaty on the EALA election were formulated (See Art.50). Indeed, at the time of the election the Kenyan women’s movement staged a demonstration against the manifestly sexist exclusion of women representatives by the Moi government. The problem was compounded by the fact that in each instance the ruling parties/movements in the three parliaments manipulated the elections in order to secure their interests in the regional body, which essentially produced mainly NRM, CCM or KANU representatives to the regional assembly. 4 It is obvious that the presumption on which these elections were based was that the interests of the ruling parties were the same as those of the peoples of the three countries. Indeed, one criticism of EALA is that most members are more interested in preserving and protecting national interests and sovereignty than in pursuing a regional vision for the Community. There are many questions about the inclusion of minorities, and about gender balancing (or the lack thereof) among those who were selected to be our representatives—which was the result of the lack of uniform approaches to the electoral process in 3

Tanzania has 8 CCM representatives and only one who was deemed to be the representative of the four opposition parties, while in Uganda Yona Kanyomozi (who was the only non-NRM candidate) ‘sneaked’ through the barriers which had been put in place to stop opposition candidates from being elected. 4 Tanzania has 8 CCM representatives and only one who was deemed to be the representative of the four opposition parties, while in Uganda Yona Kanyomozi (who was the only non-NRM candidate) ‘sneaked’ through the barriers which had been put in place to stop opposition candidates from being elected.

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each country, and of the broad and general manner in which the provisions of the treaty on the EALA election were formulated (See Art.50). Indeed, at the time of the election the Kenyan women’s movement staged a demonstration against the manifestly sexist exclusion of women representatives by the Moi government. But there are even more serious issues when you turn to the question of substantive as opposed to formal representation; are the members of EALA effective representatives of the people of the region? Here, several issues emerge. The first relates to the power that EALA members have, which in terms of Art.49 appears quite limited. Secondly, there is an issue about the extent of consultation that these members engage in with their constituents (whether conceived of as the general populace or more narrowly as the National Assemblies of the three countries). Thirdly, there is the issue of their effectiveness, whether in articulating the interests of the people of the region, or in influencing the heads of state. There are also the gendered dimensions of operating within an overtly gender-biased institution which leads to minimizing the role and status of the female representatives. We need to take into account questions such as the resources the EALA has, the substantive matters on which they have power to deliberate, and the binding force of their decisions. To crown it all, each individual head of state effectively exercises a veto power over the implementation of a law that has been passed by the EALA (Articles 62 and 63), effectively representing a negation of the idea of people-centred development. It is difficult not to come to the conclusion that the EALA is simply a chapter-tiger—a fact demonstrated by their failure even to achieve meaningful concessions regarding the passing of the budget for the institution this year. A Note On The East African Court Of Justice The East African Court of Justice (EACJ) is governed by the provisions of Article 23 of the treaty. Essentially, the principal function of the court is to interpret the provisions of the treaty to ensure compliance by member states. However, Article 27 limits the court’s jurisdiction only to the interpretation and application of the treaty. Provision is made for the extension of this jurisdiction to 158

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include either original, appellate or human rights matters by way of an additional protocol (Article 27.2), but that is yet to be done. The court also serves other functions, including: (a) as an industrial court (on disputes between the community and its employees arising out of the terms and conditions of employment of the community or the application and interpretation of the staff rules and regulations and terms and conditions of service of the community (Article 31); (b) as an arbitrator if so named; (c) over matters referred by any court or tribunal of a partner sate concerning the interpretation the treaty, and (d) to give advisory opinions on a question of law arising from the treaty which affects the Community upon the request of the Summit, the Council or a partner state (Article 36). The treaty specifies in what instances and which bodies can submit references to the Court, but these are confined to a partner state, the Secretary General or any person (both legal and natural) resident in a partner state. Any resident of a Partner State may challenge the legality of any Act, regulation, directive, decision or action of a partner state or an institution of the community, but only in relation to interpretation of the treaty provisions. In sum, the Court has no jurisdiction where infringements that occur relate for example to the human or other individual rights of the residents. What do the above provisions reflect? First, that there was a concern, right from the start that the court should not be allowed too much freedom of action to significantly affect the political and legal institutions of partner states, such as the Executive or other issues of democratic governance. Secondly, the provisions on the appointment of judges also reflect the need to control the institution by the Heads of State in Summit. By deciding who to nominate and then appoint as judges the Summit members exercise an extension of their national powers. The Summit not only exercises control over the mode of appointment but also in the subsequent composition of the court by retaining the power to appoint the President and Vice President of the Court from among those already appointed. The procedure for removal—which can only be affected upon the 159

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recommendation of an ad hoc tribunal—likewise vests with the Summit (Article 26). While the creation of this tribunal is made on the basis of a complaint over misconduct or inability to perform the functions of the respective office, it is not clear who is to initiate the process leading up to appointment of the tribunal or even how the process is to be set off. The lack of clarity coupled with the fact that it is generally the Summit to initiate the process means that the East African heads of state enjoy wide control over the removal of judges as well. It seems therefore that other persons are not in a position to seek redress in the event of a complaint against a member of the bench. From the above survey it is clear that there are clear limitations imposed by the treaty on the independence, effective functioning and quality of the court. Indeed, one could say that the judges of the EACJ are the most underemployed public servants in the region. To make matters worse, they add to the traditional distance that courts normally have towards the public through having an extremely limited jurisdiction and almost no power to actually affect the daily lives of the peoples of the region. The limitation of the court’s jurisdiction only to the interpretation of the treaty provisions was clearly designed to keep the level of scrutiny over the actions of the individual executives of each country to a minimum, and to limit the extent to which questions could be raised over the extent to which human and peoples’ rights were being observed in individual member states. That is not to mention other issues of good governance that could arise. It is of no surprise that since its establishment to date, the EACJ has yet to decide a substantive case. Towards An East African Federation: The Ultimate In Ownerships? From the preceding analysis it is quite clear that EAC-2 is much more top-down than people-driven, but even the top manifests some degree of hesitation when action needs to match words. For example, my trip through the region coincided with that of the Committee on the Fast-Tracking of East African Federation, 160

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headed by Kenya’s Attorney General Amos Wako. In his report to the Summit, Wako stated as follows: In our visits, the people wanted the movement of the people of East Africa within East Africa to be eased if not made free. This to them will be an indicator or the litmus test to show that we are now serious in moving towards the Federation. Wako went on to state that: The Committee is of the opinion that it is within the administrative capacities of the Partner States to immediately effect the following in January 2005: ¾ The holders of East African Passports should be exempted from immigration requirements when traveling within East Africa. ¾ The Partner States should publish their identification documents acceptable to them, which will be recognized at common borders to allow or facilitate free movement of the citizens of the Partner States. ¾ The administrative structures to be in place to enable the citizens living along the common borders of the three Member States of EAC to move freely across the common borders. ¾ Establish clearing channels at entry points for citizens of the Member States of the EAC. ¾ The fishing in Lake Victoria should take place without undue restriction to national boundaries but should take into account the environment and sustainability of the Lake and its Eco-system. ¾ By July 2005, harmonized procedures on the issuance of Entry/Work Permits to citizens of the Partner States should be in place. ¾ By August 2005, East Africa should be a single air space. This should result in reduction of air fares and travel time within East Africa. Wako further pointed out that “The major obstacle to free movement of East Africans in East Africa is lack of Identity Cards. To fundamentally ease the travel of the people of East Africa within East Africa, it is strongly recommended, that on a priority basis, the Partner States should take steps to ensure that East African Identity 161

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Cards identifying the citizen of the Partner States should be issued by December 2006.” I am unaware of how many (if any) of the above stipulations have been met, and I would be glad to be advised if they indeed have. What is however clear is that all are critical elements in the transfer of ownership of the EAC-2 from the bureaucrats to the people. Moreover, these are all actions to be taken from the top, and would more or less be greatly welcomed by those of us on the bottom. There are a litany of other issues that the EAC could immediately take up which would ease the progress towards a PanEast African federation and more inclusive citizenship. For example, East Africans moving across the borders should not be regarded as visitors or migrants, but simply as transferees between states that exist in a quasi-federal relationship as is the case under the ECOWAS system of free movement. The East African passport today serves as little more than an identity card, since it confers no additional rights in comparison to the national documents. Ideally, possession of a passport or a recognized East African ID should be the precursor to the status of East African citizenship, enabling persons who hold such documents to exercise a variety of rights wheresoever they may wish to within the region. Restrictions over the exercise of property rights should be removed such that Utake citizens are treated preferentially in comparison to other foreigners. Much more needs to be done in the way of sensitization given that in all three countries the xenophobia about citizens of the neighbouring countries ‘taking away’ and benefiting from the bounties of the host country abound: sometimes we are more hostile to our neighbours than to foreigners who come from thousands of miles away. At the same time, the acceptance of new policies or measures should not be simply assumed. This point was dramatically illustrated with respect to the near-abortion of the proposed Customs Union. Anybody who knows anything about regional integration will appreciate that a unified Customs framework is an essential element in the process of increased regional cooperation. Indeed, “…it marks the entry point to the aspired regional integration.” (Ruhangisa (n.d.). However, the coming into force of 162

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the protocol on the Customs Union early this year produced a highly negative reaction. In Kampala, you will all recall the traders strike in mid-April this year, and to date, it is not clear whether the Protocol has in fact been fully implemented. On this issue Secretary General Amanya Mushega describes the discomfort of the Uganda Manufacturers Association (UMA) over the Protocol as the ‘fear of the unknown.’ When told that sensitization was insufficient he retorted that business people failed to take the arrival of the union seriously. But, this begs the question; if indeed consultations were undertaken, then why was the reaction so negative? Either the consultants did not take the objections seriously enough or they simply did not listen to them. In any event, the fact that the Community had to go back to the drawing board graphically demonstrates that there was need for a better model of consultation and information dissemination. Thus, even if we may all want (and dream about) political federation, it is an entirely different thing when the matter has actually germinated. Indeed, the debacle over the Customs Union demonstrated that the method is as important as the message: form and substance are intimately linked. If political federation is going to amount to more than a pipedream, the Community needs to first deal with all those petty bureaucratic obstacles that stand in the way of closer cooperation and consolidation. 5 Under the vision presented by the Wako Committee, political federation will represent the ultimate in ownership of the EAC. This is of course a debatable question as the rejection of the European Constitution earlier this year demonstrated that the people of Europe felt that they would actually lose ownership as a result of closer federation. Even without extending the debate as far as federation, it is possible to conclude that Wako’s list of proposed things to be done above is one that would be acceptable to any EastAfrican. But more importantly, the question of federation imports the issue of the political will necessary to move away from the constraints of the nation-states as they currently exist and to consider the question of 5

For a telling account of the bureaucratic hurdles of crossing borders in East Africa, see Ona Ekomoloit, ‘Face to Face with ugly East African borders,’ New Vision, November 19, 2004 at 12.

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whether or not they are in a position to surrender their sovereignty to a larger entity. This is the issue to which I would now like to turn.

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Revisiting The Issue Of Political Good Will And Regional Citizenship Secretary General Amanya Mushega scoffs at the idea that the success of EAC-2 was dependent on the political goodwill of the three Presidents. Mushega contrasts the situation today with the time of the collapse of EAC-1 in 1977 and argues that the foundations on which EAC-2 is built are stronger than its predecessor. However, the other finding of my travels in the region was that the state of politics, democracy and social welfare in all the countries of Utake is in bad shape. Indeed, the state of national citizenship in each of these countries is in a dire condition. The people of the individual countries of East Africa feel that their voices are not heard; they feel that the state, the bureaucracy, and their representatives in Parliament are insensitive to their plight. They feel that our leaders are mostly interested in securing and holding power for power’s sake, and that the plight of the common man and woman on the street is of minimal concern. Each of the countries are plagued by corruption scandals of mind-boggling scale. In Kenya just say the words ‘Anglo-Leasing.’ In Tanzania, the processes of privatization and investment have been hit by numerous scandals, while of course here in Uganda we have the graft-riddled Global Fund among others. Indeed, if we were to survey just the events of the last month in East Africa we would see that things in our individual countries are far from ideal. Tanzania is often referred to as a ‘successful democracy’ but you can hardly describe it as a functioning multiparty democracy. The election for President actually took place when the ruling CCM nominated Jakaya Kikwete as its presidential candidate; the postponed election in December will be a mere formality. But the real problem of Tanzania lies on the islands of Zanzibar—Pemba and Ungujja. Although the election last month was less violent than the one 5 years ago, or than that in 1995, it nevertheless demonstrated that those islands are still extremely 164

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troubled and divided. If Zanzibaris feel isolated from their own union which includes only mainland Tanzania, how much more marginalized will they feel in a federation that extends to Kenya and Uganda? Kenya has just peacefully concluded a landmark referendum on the adoption of a new constitution. Needless to say, the run-up to polling day was marred by violence and even killing—in stark comparison to the election in 2002. Furthermore, the split in the country is extremely troubling. Superficially it may appear like an ethnic divide, but more fundamentally it represents a critical difference of opinion over how the Kenyan state should be governed; how the national cake should be divided, and how the rights of citizens should be best protected. Indeed, it would be naïve to see the referendum as the end of the troubles in Kenya; we have simply entered another phase of them. Finally, we come to our bonny land—the ‘pearl’ of Africa. What is the state of play here? In his statement of acceptance at last week’s NRM-O delegates conference, it is notable that President Museveni placed the issue of East African Federation at the top of his list of seven points that will have to be dealt with once he wins the election in March next year. But I ask myself, how can we federate with others when we have even failed to cooperate among ourselves? How can we speak about a democratic and prosperous East African federation when we are pushing our country even deeper into political stagnation? What about the culture of constitutional manipulation and alteration in order to cater to our personal whims, rather than the interests of the broader population? How can we even imagine that we can have a peaceful, free and fair election for the President of East Africa when all our elections to date are marred by violence, vote rigging and intimidation? Is this what we want to export across our borders? To compound it all, none of the leaders of the Utake countries feel there is anything fundamentally wrong with the governance patterns in our region. Unlike when President Julius Nyerere refused to sit on the same table as Idi Amin because of what he was doing to the Ugandan people, the current crop of East African presidents simply turn a blind eye to the infidelities of their partners. How can that be the foundation for political federation? 165

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Given that our individual countries are plagued by the vice of political monopoly, how sure are we that the first President of the East African Federation will not refuse to hand over power and instead change the ‘Peoples’ Federal Constitution’ in order to secure another kisanja? It is important to recall that EAC-1 collapsed because it was built on a shaky foundation. If the foundation of mal-governance that we have created today is even less stable, how can we hope that EAC-2 will prove a more resilient institution? This is the point to which I now turn by way of conclusion.

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On Civil Societies and Working from Top-Down To BottomUp It has become something of a cliché to state that civil society in Utake needs to do more in order to ensure that the ideals of regional cooperation are eventually realized; that has been the song and the story since EAC-2 came into existence. However, it is a cliché that necessitates repeating. Under Art.127 of the EAC Treaty, partner states are to promote, “an enabling environment for the participation of civil society in the development of activities within the community.” The question that then needs to be asked is to what degree have civil society actors asserted their rights of ownership over EAC-2? Quite clearly much remains to be done. The few groups that have focused on the Community (such as the East African Law Society, Kituo cha Katiba, and the East African Business Council), must be commended for having devoted some effort to addressing this area over the years. All these groups have observer status at the Community which enables them to engage with the Secretariat and to make their input. However, it is a long-standing complaint that the rules governing the grant of observer status are cumbersome; one must be registered in all three member states. This effectively excludes nationally-based groups who may nevertheless have a significant contribution to make to the Community activities. There is an additional problem in that the headquarters of the Community are located in a city (Arusha) where access is rather limited to national actors. This implies the need for such groups to organize themselves and either link up with the groups that do have representation at Arusha or for satellite groups 166

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to be established in the individual states to focus on Community activities. There is a need to develop closer scrutiny mechanisms over the process of integration. For example, there is currently a process of consultation about the review of the treaty underway.6 Civil society needs to get more involved in the process. Given the state of governance in each of the Community’s member countries, to what extent has civil society asserted its claim over national citizenship? Where are the voices of civil society on the sorry state of affairs affecting our individual countries? Furthermore, to what extent are civil society actors in one country (e.g. Uganda) speaking out and raising issues of concern relating to the mode of governance in our neighbours? How many Ugandan groups, for example, provided observers for the election in Zanzibar? How many Tanzanian or Kenyan activists have spoken out on the recent negative developments on the state of governance in Uganda? What the above implies is that there is a great need for a focus on the state of governance within the individual countries that make up the Community. Civil society actors in each of the East African member states need to pay special attention to those groups that are particularly marginalized by historic, economic or socio-cultural reasons, such as minorities, including the Batwa, the Benet, the Ogiek and the numerous other marginalized groups around the region. There are many reasons why minorities feel that the basic rights of citizenship elude them. Many of them are invisible either in the arenas of public service, in education or in economic affairs. They suffer from stereotypical portrayals of their cultures and identities as well as deliberate discrimination. They lack effective representation at all levels and find difficulty in securing employment. Obviously, this means that they do not enjoy the full benefits of citizenship, which they are denied principally on account of their identity. In a nutshell, there is still a great deal to be done in both conceptualizing who minorities are, and the best ways of ensuring that their fundamental rights are given increased protection. My 6

The review is being headed by the chairperson of the Legal, Rules and Privileges Committee, Medi Kaggwa, who also happens to be one of the Ugandan members of the EALA.

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conclusion is that civil society needs to adopt more proactive measures in order to check the excesses of the state and also to ensure that EAC II adopts more pro-people measures in its operations: Utake may belong to us; but we still need to do a lot more in order to secure full ownership of the East African Community.

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9 From The Outside Looking In: Unleashing The Skeletons Of Truth, Justice And Reconciliation In Kenya1

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Let this be the day on which all of us commit ourselves to erase from our minds the hatreds and the difficulties of those years which now belong to history. Let us agree that we shall never refer to the past. Let us instead unite, in all our utterances and activities, in concern for the reconstruction of our country and the vitality of Kenya’s future. 2

The basic argument presented here is that official Kenya is in a state of denial. It is denying its past; it is denying its present and it is denying its future. In this respect, the Kenyan state is suffering from what can only be described as calculated historical amnesia, an amnesia that was unfortunately imposed by the immediate postcolonial governors of the country (captured in Kenyatta’s quotation above), and which amnesia has regrettably persisted to the present day. This is despite the momentous events at the end of December 2002, when the country witnessed regime change for the first time since independence in 1963. For those both within and outside the country, the rise to power of the NARC government under President Kibaki seemed to herald an important opportunity for the people of Kenya to finally address past injustices and untruths. In this respect, the appointment of a Task Force on the Establishment of a Truth, Justice and Reconciliation Commission in April 2003 by Hon. Kiraitu Murungi then Minister for Justice and Constitutional Affairs—and chaired by Prof. Makau Mutua—was a milestone in the country’s quest for transitional justice (Maina, 1

Keynote presentation at the Kenya Human Rights Commission conference on Revisiting Truth and Justice in Kenya: A Non-partisan and Non-governmental Engagement, Serena Hotel, Nairobi, December 07, 2007. I am grateful to David Njuguna and Baxter Bakibinga for the comprehensive background research they did for this chapter. Needless to say, all errors of omission or commission remain mine. 2 Jomo Kenyatta, first President of Kenya, on Kenyatta Day, October 20, 1964.

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2004). For those of us across the border who had a particular interest (and stake) in the country, we thought that at last the skeletons would be let out of the closet; the colonial skeletons of the land-grabbing and the Mau Mau massacres; the immediate postindependence skeletons of Pio Gama Pinto; of Tom Mboya and of J. M. Kariuki, and the late-independence skeletons of Robert Ouko, of the ‘ethnic clashes’ in the Rift Valley, and of the Goldenberg Scandal. Alas, this was not to be, as the new government began to grow shy of confronting the truth. Very soon, the calculated historical amnesia returned, even as what I call ‘unofficial’ Kenya sought to have the truth unearthed and the question of reconciliation placed firmly on the table. 3 Against the above background, this chapter has several objectives. The primary one is to provide some perspectives on the issue of transitional justice and to link these to the key historical events concerning truth, justice, reconciliation and reparations in present-day Kenya. The second objective is to highlight the implications of a transitional justice perspective on Kenyan history for the contemporary rights of the people of Kenya. It is also to provide some reflection on the manner in which each of Kenya’s post-independence governments, i.e. under Presidents Kenyatta, Moi and Kibaki have addressed (or failed to address) the issues of truth, justice, reconciliation and reparations. Although this may all be old history to you, I thought that it would be important for us to make a collective recap of that history before we turn to the present. Finally, I look at the challenges involved in developing an appropriate strategy for handling the many demons of Kenya’s past. Before doing that, however, it is necessary to come to terms with the idea of transitional justice.

3

It is important to point out that when the TJRC Task Force submitted its report in October 2003, it indicated that an overwhelming 90% of the people supported the establishment of an effective Truth, Justice and Reconciliation Commission, as a vehicle that would reveal the truth about past atrocities, name perpetrators, provide redress for victims, and promote national healing and reconciliation.

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From The Universal To The Local: The Birth And Growth Of Transitional Justice

Understanding Transitional Justice What is Transitional Justice? How does it relate to existing justice mechanisms? Can you have transitional justice without a transition? Where is the justice in “Transitional Justice”? The concept, “Transitional Justice” is more complex than it appears. The United Nations offers the following definition of the term:

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The full range of processes and mechanisms associated with a society’s attempts to come to terms with a legacy of large-scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation. These may include both judicial and non-judicial mechanisms, with differing levels of international involvement (or none at all) and individual prosecutions, reparations, truth-seeking, institutional reform, vetting and dismissals, or a combination thereof (United Nations, 2004).

This is a very broad definition but with a clear focus on dealing with the legacy of a traumatic past. But we must recognize that although the Nuremberg trials at the end of World War II in many respects mark the starting point of what is now known as transitional justice, the emergence of transitional justice as an area of study and intervention is a relatively new development in response to major political transitions in Latin America and Europe in the late 1980s and early 1990s. A cursory Google search of the term brings up definitions such as: x Societal responses to severe repression, societal violence, and systematic human rights violations that seek to establish the truth about the past, determine accountability, and offer some form of redress. x How societies “transitioning” from repressive rule or armed conflict deal with past atrocities, how they overcome social divisions or seek “reconciliation,” and how they create justice systems so as to prevent future human rights atrocities. x A range of approaches that can heal wounds and contribute to reconciliation and democratic renewal. 171

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The range of approaches that societies use to contribute to a holistic sense of justice for all citizens, to establish or renew civic trust, to reconcile people and communities, and to prevent future abuses. Transitional Justice is thus a field that in many respects is still in its infancy and still finding its feet, notably in Africa. It is a field which at a conceptual level has been overly dominated by western academics and institutions who like to use Africa as a test-bed for their theories of so-called ‘international justice’, without taking due cognizance of the need to incorporate a range of perspectives on justice for it to truly be worthy of the name ‘international.’ As a new field, the boundaries of what can be considered Transitional Justice have not yet been fixed. Should it only relate to situations where there is a clear political transition from one government to another (regime change)? Or can it also relate to measures taken to reduce the need for such a political transition? Or indeed can it be applied to measures taken long after political transition has already occurred? There have been at least 25 Truth Commissions established around the world since 1974 (Andrews, at 124). Their work offers extremely useful insights in the do’s and don’ts of how to establish and operate a Truth Commission. Yet it is clear from the outset that there is no single universal model applicable to all nations, societies and peoples (Mutua, 2003 at 2). Indeed, Henry Steiner has observed that, “the truth commission has been a protean organ not only in the many institutional forms it has assumed, but also in its varying membership, in the diverse functions it serves, and its range of powers, methods, and processes. Each country… has given its commission a distinctive architecture.” (Steiner, 2000 at 1218). Transition mechanisms are the result of change from an old to a new political dispensation that seeks to tackle the gross human rights violations of the past with the objective of ensuring that the same are not repeated (Muringo, 2004, at 22). Such mechanisms are a key feature of states in transition, whether those emerging from dictatorship to democracy or from violent conflict to peace (Murungi, 2004 at 38). These are bodies such as Truth and Reconciliation Commissions, Judicial Commissions of Inquiry, UN

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x

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Courts, Special Regional Tribunals Reconciliation Commissions.

as

well

as

National

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T ransitional Justice in the Contemporary Kenyan Context The political history and governance of the Kenyan state is a catalogue of human rights violations compounded by the arrogance of power. Since its creation by the British in 1895, the Kenyan state has largely been a predatory and illiberal instrument, an ogre defined by its proclivity for the commission of gross and massive human rights violations. Little need be said of the colonial state, as it was specifically organized for the purposes of political repression to facilitate economic exploitation. In 1963, Kenya formally became an independent, sovereign state, ending decades of direct British rule (Africa Watch, 1991, at 5). Kenya’s independence history, however, has witnessed the most abominable human rights violations and economic crimes known to humanity. 4 The Task force on the Establishment of a Truth Justice and Reconciliation Commission further observed, that not even the re-introduction of multi-Partyism in 1991, or the two general elections in 1992 and 1997—which were the first of their kind in decades—brought relief from state-directed human rights violations and the shameless theft of public coffers and property, evils that became the trademark of the Kenya government. A host of wounds have been inflicted on the Kenyan body politik by successive regimes of government, starting with the colonial. State perpetrated atrocities have been committed against the citizens for whom there has been no official acknowledgement or apology. As Wanjiku Miano (2004 at 10) observes, for close to a hundred years, Kenya has been ruled by regimes which had no respect for human rights, the rule of law, social justice, transparency, accountability and other tenets of democracy: “We cannot move forward without referring to the past. Just as a tree grows upwards, its roots grow downwards…We need to uproot weeds in the garden so that we can plant.” (Murungi, 2003).

4

Report of the Task Force on the Establishment of a Truth Justice and Reconciliation Commission, [Chair: Prof. Makau Mutua], at 9.

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Speaking at the same conference, Makau Mutua, Chair of the Task Force on the Establishment of a Truth, Justice and Reconciliation Commission observed that, “A state that sees no evil, hears no evil and speaks no evil is an evil state.” According to Kivutha Kibwana, both the colonial and post-colonial regimes were characterized by autocratic and kleptocratic tendencies which ensured that the dignity and worth of the citizen was affected more in the breach than in observance (Kibwana, 1995). Kenyans believe that a Truth Commission will renew the country’s morality in politics, in law, in the economy and throughout society. But what exactly is a truth, justice and reconciliation commission? In the case of Kenya, it is important to recognize that a significant transition actually took place in 2002. However, it is also clear that it was a lacklustre transition; a transition in which an opportunity was lost; an opportunity to address the legacy of past violence, and to begin identifying certain dynamics in order to prevent future violence and impunity. Thus, because Goldenberg was not comprehensively tackled, we ended up with Anglo Leasing; because we failed to deal with the clashes in the Rift Valley and on the Coast, we have now ended up with the battles in Mt. Elgon. Because we failed to address what happened to the Mau Mau, we have ended up with the assault on Mungiki and the massacres that were committed in its name (KNHRC, Preliminary Report, 2007). Contrary to the hope of those who want us to forget, collective historical amnesia causes the catalogue of ills to grow with time, rather than to diminish. The TJRC Task Force Report states that transitional justice captures two notions. First, it acknowledges the temporary measures that must be implemented to build confidence for the construction of a state ravaged by human rights violations. Secondly, it rejects the application of any rigid set of norms or criteria as a beachhead to the future (Task Force, 12-13). It basically calls for deep concessions on either side of the divide, between victims and perpetrators. No single party or faction can be fully satisfied. Hence, a society cannot fundamentally change if the transition from autocracy and the plunder of public resources to democracy does not become a reality. 174

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According to Wanjiku Miano a truth commission is, “… essentially an institution conceived by a regime for a country that is emerging from a period of gross human rights violations and economic crimes.” (Miano, supra., at 11). Such commissions are internationally familiar concepts whose objective is to “…offer countries ways of responding to years of bare-knuckled barbarism, run rampant, of horrific human rights violations that took place for political, ethnic, religious, economic class, ideological, gender, and other conflicts that arose over justice, power and control over economic resources.” (Mutua, in KHRC, 2003 at 64). On her part, Pricilla Hayner defines a Truth, Justice and Reconciliation Commission as a “…non-judicial investigating body, granted some form of official sanction from the state but operating as independently as possible. Its focus is first and foremost generally on victims, listening to their stories in order to reclaim a denied or silenced history, and using its information and conclusions to craft recommendations for reforms in order to prevent a repetition of such abuses in future.” (Hayner, 2003). Universal definitions are however lacking for such commissions, as they take different forms depending on the specific purposes they are intended to serve and the given country’s unique circumstances. In the case of Kenya, there will be a need to consider which of the several different formats is both appropriate and feasible. What this means is that the establishment of such a body is ultimately a political process, and it is thus necessary to engage with the politicians if any progress is to be made in pushing forward the process. Central to the construction of such an institution is the historical experience of the country. Key Issues Relating to Truth, Justice and Reconciliation in Kenya

Accounting for Political Assassinations The Kenyatta Regime is now largely recognized to have witnessed some of the worst forms of political repression, although the Mzee was largely treated as a benevolent and benign ruler, in the mold that fitted those leaders who came to power in the immediate aftermath of independence. After combining the powers of the 175

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Prime Minister with those of the Governor General, Kenyatta became an Executive President and then embarked on neutralizing Parliament as an effective watchdog whereby crude and inhuman means such as assassinations were resorted to. Among the most prominent assassinations of the time were the following: Pio Gama Pinto: a trade unionist, parliamentarian and journalist who opposed Kenyatta’s allocation of land to political allies, and led the first group of KANU ‘Backbenchers’ who teamed up with KADU opposition members to constantly keep the government on its toes. Fatally shot on February 25th 1965, at the time of his death outside his Nairobi home he had been lobbying for land to be given to the poor Kenyans (Taylor, 2005). The murder of Pinto has never been solved, especially since the person convicted for the crime has protested his innocence up to the present time. Several commentators have implicated high officials of the Kenyatta regime and the CIA (Kibwana, 1998 at 125). Tom Mboya, who was KANU Secretary General, Cabinet minister and often tipped as a likely successor to President Kenyatta. Mboya was assassinated on July 5th 1969. At the time of his death he was the Minister for Economic Planning and Development. High ranking officials in the Kenyatta regime were considered prime suspects in the assassination and the government attracted much public resentment. Later, a lone gunman called Nahashon Njenga was arrested and charged with the murder. During the trial, Njenga talked of a ‘big man’ as the brains behind the plot. No ‘big man’ was ever arrested and Njenga was sentenced to death (Id., at 129). J.M. Kariuki was the prominent legislator from Nyandarua and a gifted public speaker and relentless critic of the government’s social and economic policies. Last seen alive at the Hilton Hotel in Nairobi, accompanied by Kenyatta’s bodyguard, Kariuki disappeared in late February 1975. The government’s statement in Parliament read by (then Vice President/Home Affairs Minister) Daniel arap Moi claimed that he was on a trip to Zambia. A few weeks later, his charred and badly mutilated remains were found rotting in Ngong Forest near Nairobi (Id., at 130). After Kenyatta’s death in 1978, arap Moi, ascended to the presidency without much of a power or popular base. Needing to 176

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assure Kenyatta’s cronies who had been running the show that he was not going to upset the cart, Moi declared that he would follow Kenyatta’s footsteps (nyayo) in governing the country (Id., at 131). Unfortunately, Moi followed his predecessor’s footsteps to their logical conclusion including the vices that Kenyans expected to end with mzee’s regime; human rights violations such as political assassinations. Of course the most prominent death during the Moi era was that of Foreign Affairs Minister Robert Ouko, who disappeared from his farm in Koru near Kisumu on the night of 12th February 1990. On 16th February the government announced that his body had been found at Got Alila Hills. Badly mutilated and burnt, the body had a bullet hole in the head. At the scene, items including a gun, a diesel can and matches were found. All apart from the diesel can belonged to Ouko, but the government announced that he had committed suicide. Maina Kiai observes that, “Dr. Ouko had been frequently outshining President Moi and his cronies in international gatherings.” (Kiai, 1994 at 140). It would later be alleged that US concerns over increased repression against opponents constituted the point of rift between President Moi’s regime and his Minister for Foreign Affairs. 5 For example, Kenneth Matiba suggests that, “Government Minster Dr. Ouko, who on his own motion tried to expose corruption in relation to the Kisumu Molasses Plant, paid with his own dear life through an assassination which is yet to be resolved.” (Kibwana, 1996 at 37). Bishop Muge: In one of his sermons, the late Anglican Bishop Alexander K. Muge emphasized the moral obligation of churches to “…protest when God-given rights and liberties are violated” and to “give voice to the voiceless.” (Sabar-Friedman, at 32). He further maintained that, “I shall not protest against violations of human rights in South Africa if I am not allowed to protest human rights violations in my own country.” 6 Bishop Muge’s death in a car crash in August 1990 is still shrouded in mystery (Adar 2001, at 1). 5

Interestingly, all actors involved in the Ouko assassination have died in mysterious circumstances. They include senior police officers who carried out the investigations. See, Atemi Caleb, “Ouko Murder Unresolved 13 Years On,” East African Standard (Nairobi), 12th Feb 2003, at 1 and 4, and Hempstone, 1997. 6 Weekly Review, 24th April 1987.

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Finally, Catholic Priest and U.S. citizen Father John Kaiser was brutally murdered on the night of August 24th, 2000. As a parish priest in Rift Valley, he became a famous human rights defender, particularly involved in the protection of women from powerful politicians. 7 It is known that Kaiser helped furnish the evidence that FIDA Kenya relied on to institute a private prosecution against Hon. Julius Sunkuli, then M.P. and Minister of State in the Office of the President. In 1999 the Law Society of Kenya honoured Fr. Kaiser by awarding him its Human Rights Award. 8 Naivasha police told the Kenyan Newschapter, The Nation, that he had been shot in a “gangland style execution.” Then U.S. Ambassador Johnnie Carson—afraid that Kenyans would try to protect President Moi and paint Kaiser’s killing as something other than political assassination—arranged for the FBI to join the Kenyan police and CID in the investigation. Both concluded that his death was more consistent with a suicide than a homicide, a proposition that was rejected both nationally and internationally (Levitt, 2007). With the rise of the NARC regime, came the hope that political assassinations had ended, however the assassination of Dr. Odhiambo Mbai—Chairman of the Devolution Committee of the Constitutional Review Conference in 2003—and the resultant ethnic polarization it engendered demonstrates that we aren’t yet out of the woods, and that the sceptre of settling political scores with the mechanism of elimination, is yet to end. Finally, however, it is not only the named victims of assassination that we should only be concerned about. What about the untold stories; the Unheard and Unremembered victims of systemic political violence who never made the headlines? The ordinary Wanjiku’s and Kiano’s; the Omondi’s and Akinyi’s; their story can only be told through a concerted process of truth-telling.

7

He condemned land grabbing and the murders of workers and peasants through politically motivated and executed violence shamelessly called “ethnic violence” in Kenya. 8 ‘Memo to the International Human Rights Movement on the Murder of Father John Kaiser on the Night of August 24, 2000’, in KHRC, 2003 at 333.

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Detention-without-Trial and Torture There is little doubt that over the past several years of independence, the Kenyan state—taking the cue from its colonial predecessor— used its enormous power and resources to vanquish and eliminate all those deemed political opponents. Torture became state policy. Hundreds, if not thousands (known and unknown) have been tortured and mistreated. Many were killed in the process while others were maimed for life; men were castrated, women and girls were raped. But such torture would not have reached the levels it did without the mechanism of detention without trial, a phenomenon that dates back to the colonial era.9 At the dawn of independence in August 1959, about 1,000 detainees were still in detention. Despite being a graduate of the system of detention, President Kenyatta borrowed heavily from the colonial government to use the same repressive and draconian laws 10 years later to detain critics of his government including his former comrade-in-detention Achieng’ Oneko. Under Kenyatta’s instructions, Vice-President Moi 11 invoked his administrative prerogative to detain Oginga Odinga and eight other leaders of the then opposition Kenya People’s Union (KPU) in 1969. The party was proscribed using the same colonial laws that had banned the Mau Mau. In 1975, MP Martin Shikuku stated that KANU was dead. Reacting to demands that Shikuku substantiate his remarks, Deputy Speaker Jean Marie Seroney stated that ‘there was no need to substantiate the obvious.’ The two were carted away from the grounds of parliament and detained in blatant violation of the privileges and immunities conferred by the National Assembly (Powers and Privilege) Act (Kibwana, 1996 at 125). 9Among

the most famous included Jomo Kenyatta (who was to become Kenya’s first President), Fred Kubai, Paul Ngei, Bildad Kaggia, Kung’u Karumba and Achieng’ Oneko. The six were detained at Lodwar, a colonial outpost in the remote Northern Kenya. Kenyatta’s wife, Mama Ngina, was also detained for four years by the colonial government. 10 The Public Order Act and the Preservation of Public Security Act. 11 Moi explained that the KPU leaders were detained because “any government worth its salt must put the preservation of public security above the convenience of a handful of persons who are doing their utmost to undermine it.” See Current Biography, 1979, at 262.

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George Anyona—who in the absence of Shikuku became known as the ‘one-man backbencher’ was also arrested in Parliament and detained without trial in 1977. Writer, and then Chairman of the Department of Literature at the University of Nairobi Ngugi wa Thiong’o was detained in 1977, while his play ‘Ngahika Ndenda’ (I’ll marry when I want) was promptly banned because the government regarded it as a threat to its efforts to keep the poor people misinformed on their rights. The Kamirithu Social Hall, where the cast had been rehearsing and where the performance was scheduled, was razed to the ground (Kibwana, 1996 at 130-131). By the time Kenyatta died in 1978, there were at least 26 people in detention and any real or perceived political challenge had either been extinguished or incarcerated. One of President Moi’s first moves on assuming office was to release all political detainees on December 12th, 1978. This action raised hopes that Moi’s rule, his philosophy of ‘Peace, Love and Unity’, would be more tolerable than that of his predecessors. However, this was not to be. Moi’s vow to follow Kenyatta’s nyayo proved starkly real: he destroyed the last vestiges of civil liberties and concentrated power in his hands in a manner that would have made both Kenyatta and the colonial authorities envious (Kibwana, 1996 at 132). Detention without trial resurfaced in 1982. Stephen Mureithi one of Moi’s business partners and the deputy head of the Special Branch was the first detainee when he challenged Moi’s power to transfer civil servants. His lawyer John Khaminwa was also arrested for associating professionally with people who had the audacity to challenge Moi’s authority. Between May and June 1982 a spate of arrests of university staff ensued, among them that of Willy Mutunga of the Faculty of Law, Alamin Mazrui of the Linguistic Department and Mukaru Ng’ang’a of the Institute of African Studies. They joined George Anyona and his lawyer John Khaminwa in detention, the two having attempted to form an opposition party with Oginga Odinga, citing the hostile political climate engendered by KANU. 12 Perhaps on account of his

12

The country had been a de facto one party state since the banning of KPU in 1969. Kibwana, Id., at 133.

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advanced age, Oginga was placed under house arrest and not detained. In response to these expressions of opposition, President Moi moved the first Constitutional Amendment Act, No. 7 of 1982, thereby introducing the infamous Section 2(A), which effectively transformed the country into a de jure one-party state, confirming the de facto situation since 1969. Furthermore, Parliament reinstated the detention laws which had been suspended in 1978. Colonial era laws, such as the Chief’s Authority Act, the Public Order Act, the Preservation of Public Security Act, and the Penal Code gave the President the right to suspend all the individual rights guaranteed in the Constitution, officially laying the basis for an oppressive dictatorial rule (Kimondo, 1996 at 54-56). The failed coup of 1st August 1982 where members of the Air Force attempted to overthrow Moi by force, led to the explosion of political tensions in Kenya. The first political detainee after the coup was Koigi wa Wamwere, 13 then MP for Nakuru North, and critic of the Moi regime’s social and economic record. Raila Odinga, a son of Oginga Odinga, was arrested together with Otieno Mak’ Onyango, a journalist, and Prof. Alfred Otieno of the Engineering Department at the University of Nairobi and charged with treason for allegedly planning the coup. 14 Titus Adungosi, the Chairman of the Students Organization of Nairobi Unity (SONU) and six student leaders were tried and jailed for sedition in September, 1982. Sixty seven other students were held in custody until February 1983 when they were granted Presidential clemency.15 In 1986 alone, 100 people were arrested and detained for their alleged association with Mwakenya, a movement started by some Kenyans in Europe who had fled Moi’s oppression, and demanded, inter alia, 13

Wamwere, who had been detained before in 1975 after contesting a parliamentary seat against one of Kenyatta’s cronies, carved a niche for himself among the country’s poor as a brave and consistent supporter of economic rights. 14 Their case dragged on until March 1983, when the charges were withdrawn, and they were detained without trial. 15 Adungosi died in prison in December 1988 under mysterious circumstances after being deprived of medical attention. No inquest was held to ascertain the cause of death, contrary to Criminal Procedure Code.

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social justice and respect for human rights (Umoja, 1989, at 96, and Widner, at 177-178). Lawyer Ng’ang’a Thiong’o was convicted for sedition on his own plea of guilty in the same year. He stated that police tortured him boasting that nothing would happen to them even if the suspects died. The suspects were given four ‘options’: 1) Confess to the alleged crime and receive a jail term; 2) Be detained without trial at the president’s pleasure; 3) Be tortured to death, or 4) Be charged with treason and sentenced to hang. Those who refused to succumb to the torture were detained without trial. They included Gacheche wa Miano, Kariuki Gathitu, Ngotho Kariuki, Katama Mkangi, Mirugi Kariuki, Wanyiri Kihoro and when they challenged the torture through lawyer Gibson Kamau Kuria, he too was promptly detained without trial (KHRC, 1992). The period between 1989 and 1991 in Kenya saw one of the worst human rights violations in its history. Moi constantly used detention as an instrument for suppressing outspoken opponents. Some detainees were former or sitting Members of Parliament arrested for demanding among other things the introduction of multiparty politics. Prominent pro-democracy advocates were detained. On July 4, 1990, Kenneth Matiba and Charles Rubia were arrested and detained. More arrests followed among them, Raila Odinga, lawyers John Khaminwa, Mohamed Ibrahim, James Orengo and Gitobu Imanyara. Paul Muite and Gibson Kamau Kuria went into hiding; Kuria later fled into exile in the US where he was joined by Kiraitu Murungi who was attending a conference in Addis Ababa when the crackdown started. After the infamous ‘Saba Saba Skirmishes’ where the Rev. Timothy Njoya was brutally beaten by anti-riot police in 1990, exdetainees George Anyona, Ngotho Kariuki and Edward Oyugi were arrested and charged with the offence of sedition. Then, in a dramatic development, Koigi wa Wamwere, lawyers Mirugi Kariuki and Rumba Kinuthia and five others were charged with treason in October 1990. 16 Despite the 1992 multiparty elections, detention, 16

There were fears that the state had no concrete evidence to convict them and merely used the charges to hold them without trial since treason was nonbailable (See, KHRC, 1992).

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arbitrary arrests and the torture of ordinary people-particularly the pro-democracy and human rights advocates and the opposition MP’s continued although at a declining rate throughout the 1990s. 17 This is best illustrated by the failed attempt by anti-detention crusaders to have the detention laws abolished. A 1993 motion in Parliament sponsored by the opposition party Ford Kenya and moved by MP for Kabete Paul Muite, to have Part Three of the Preservation of Public Security Act scrapped was defeated by the government side. During the debate, ex-detainees Achieng Oneko, then Rarieda MP, and his Butere counterpart Martin Shikuku strongly supported the motion. Oneko described detention as “obnoxious, cruel and dehumanizing”. Shikuku wept while narrating his ordeal in detention. 18 Attorney General Amos Wako opposed the motion, and Shikuku told him “… one had better be jailed for 70 years than be detained.” He said many people left detention camps sick or half mad. 19 KANU took advantage of its numerical strength in Parliament to throw out the motion. It was not until 1997 when the pressure for constitutional change mounted to the point of threatening to tear the country apart that KANU gave in. Through the mediation of diplomats, KANU and opposition parties agreed to form the Inter-parties Parliamentary Group, (IPPG), which recommended that the continuous preservation of the Public Security Act, which provides for detention without trial be repealed. 20 However, according to the then Nyeri MP Wanyiri Kihoro, the amendment still did not stop the President from detaining people. “The law itself has not been abolished. The President can use Cap 57 to declare a state of 17

MP’s have been arrested for addressing “illegal” meetings even in cases where such meetings are licensed by the government. KHRC, OctoberDecember 1995; KHRC, July-September 1996, and KHRC, 1996. 18 “When you arrive, they (prison warders) tell you to start removing your clothes, one by one, until you are stark naked, then they leave you for one week in a cell, one remains chained to the bed day and night with a 150-watt bulb which remains on for 24 hours so that the detainee loses count of the days.” 19 Mr. Matiba suffered a stroke while detained in 1990 and went to London for medical attention after release (Mutua, 2003 at 281). 20 IPPG recommended that: (a) Section 4 (2) (a) on detention without trial be repealed. (b) The proviso “provided that no person shall be restricted on account of his or her political beliefs and or activities” be inserted immediately after Section 4 (2) (b).

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emergency and detain his critics.” The lawyer, who is a former detainee, says that the government “…uses crude methods of oppressing Kenyans. The police and provincial administration harass the ordinary people and MPs with impunity.” 21 The Moi regime goes down in Kenya’s history as the most notorious in detaining and torturing its political opponents as a tool to break and silence its critics. The notorious Nyayo House (infamously known as the Nyayo House Torture Chambers) 22 remains dreaded to many Kenyans to date. Fortunately, the Kibaki Regime has not used detention as a political weapon.

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The Question of Economic Crimes There is no doubt that the issue of economic crimes committed by past regimes reflects a major low-point in Kenya’s history. However its inclusion in the proposed Truth Commission elicited some debate, with scholars like Pricilla Hyner arguing that, “…a question that would logically be raised in Kenya is, whether it makes sense for economic crimes to be involved in a commission’s mandate, along with human rights crimes…” (Hyner (2003), at 8 to 9). In contrast, Makau Mutua states that, “…economic crimes such as the looting of the public purse, land grabbing, public corruption and the transfer of stolen public funds into personal bank accounts offshore must be investigated without delay.” (Mutua, op.cit). After considering several arguments for and against the inclusion of the investigation of economic crimes in the mandate of the truth commission, it was recommended by the TJRC Task Force that economic crimes should be included: “It would represent such a yawning gap in the record of truth of Kenya should it be excluded, that it would be advisable rather to face the challenge of managing it. The question should not be about if it will be done, but how it will be done.” 23 Despite the fine points of the 21

Stephen Mburu, ‘How Detention was Used to Break People’, Special Report, Sunday Nation, April 30, 2000. 22 The TJRC visited the underground cells in Nyayo House, and which the then Minister for Justice and Constitutional Affairs Hon. Kiraitu Murungi termed as a ‘National Monument of Shame’, which stands as a living testimony the brutality of the state (TJRC, Task Force Report, supra., at 21). 23 Annex 6. ‘Comparative Analysis of Truth Commissions,’ at 150.

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debate it is clear that economic crimes are so closely intertwined with human rights violations that it is impossible to establish watertight compartments between the two types of violations. This is particularly the situation in the Kenyan case where such crimes were committed as part and parcel of human rights violations. The earliest form of economic crimes in Kenya’s history involved the land question. The late Pio Gama Pinto attempted to fight against the illegal allocation of land which clearly cost his life in 1965. Kenyatta used land as a political tool by allocating it to his loyalists. On the other hand, it has been reported that the earliest known major scandal occurred in 1975 and involved the Ken-Ren Fertilizer Company ‘…in which Kenya lost about Kshs. 480 Million to an American conman.’24 A cursory look at media reports reveals a society plagued by corruption, even at the highest level in the country. On being elected as President, arap Moi affirmed his commitment to end corruption, and called on all Kenyans to assist him in this endeavour and in the quest for ‘social justice and freedom.’ He rightly stated that those engaged in corruption should be seen as enemies of Kenya. 25 However, during his subsequent 24 year reign he failed to fulfil this promise. The alternative media commented on the cynical acceptance of corruption as follows: “Kenyans are so used to hearing of corruption in high places that a new revelation amounts to just that another new revelation.” 26 The period from 1983-1989 was characterized by Moi’s attempt to build an image of a doer, an innovator and resolver of all society’s problems. His wide ranging projects, from the destruction of forests to set up the Nyayo tea zones, Nyayo wards, Nyayo buses and the Nyayo 8-4-4 education system were indicative of this ‘innovative’ spirit. However, the common denominator in all the Nyayo projects was the corruption that accompanied the operations, the disaster that their failures visited on the society and the net negative effect that the nation continues to grapple with. 27 24

An article in the Daily Nation, of 14th September, 1994 in Kibwana ‘Anatomy of Corruption,’ at 47. 25 Reported in the Daily Nation (DN) on 15TH October 1979 at 47. 26 Reported in The People Newspaper, 23rd May 1993, at 43. 27 The Independent of London (June, 1993) aptly summarizing the AuditorGeneral’s report regarding Goldenberg.

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By the mid-1990s, Moi was literally running a bandit economy. It was in this context that the Goldenberg Scandal became a household name. 28 In a nutshell, “the (Goldenberg) case confirms the breadth of financial and banking scandals that are undermining the Kenyan economy.” (Musambayi, 2006, at 29). It has been reported that Goldenberg involved theft of an estimated 65.6 Billion shillings from the Treasury through the fictitious export of gold. 29 The scandal evolved out of a proposal put to the Commissioner of Mines and Geology that substantial revenue could be earned from the exportation of gold. The brainchild behind the proposal, businessman-turned-politician Kamlesh Pattni, convinced both the Commissioner Collins Owayo and the Vice President and Minister for Finance, George Saitoti, that the idea was feasible and qualified for export compensation. Saitoti approved the request for export compensation at 35 percent, and the company was paid export compensation to the tune of a staggering 18 Million Pounds Sterling. 30 Conservative estimates from the period between 1994 and 1995 put the effects of corruption at K.Shs.127.4 billion, and the theft of public land amounted to K.Shs.9.7 billion in 1990-99. 31 The Nairobi City Commission alone lost over K.Shs.20 billion worth of assets over two decades. 32 Credit institutions had also been ‘eaten up’, and the Agricultural Finance Corporation lost US$ 78 million. 33 The government also lost K.Shs.2.4 billion in road construction via ‘cowboy contractors’. 34 In May 2000, the Parliamentary Anti-

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28

As Mutahi Ngunyi (a Sunday Nation columnist) noted, for every 5 shillings, 1 was lost in corruption. 29 Jaidi Kisiero, “Sharing Guilt over Kenya’s Biggest Scam”, Daily Nation (Nairobi), 24th December, 2002, at 17. 30 See, the Daily Nation investigative series by Sarah Elderkin carried on July 30 and August 6, 1993. It also noted that gold has never been discovered in large quantities in Kenya’s history. 31 See, ‘The Bandit Economy,’ East African Alternatives, (Nairobi), September/October, 1999, at 21. 32See “Looters Grabbed Kshs 20 Billion in Nairobi,” Volume 7 No. 4 Kenya Confidential (Nairobi), January–February, 2003. 33 See, “Kirwa Orders Probe of US$ 78 million loses at AFC,” The East African, 10th – 16th February, 2003, at 1. 34 See, “Kshs 2.5 Lost on Road Swindles,” Daily Nation, (Nairobi), 23rd January, 2003; ‘Mugoya Constructors Company was notorious,’ at 1.

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Corruption Committee released its report on corruption containing the infamous ‘List of Shame,’ cataloguing the names of prominent Kenyans persistently implicated in corrupt activities. 35 Upon the historic election of the NARC government in 2002, President-elect Mwai Kibaki captured the mood of the overflowing masses at Uhuru Park when he noted that, “I am inheriting a country which has been badly ravaged by years of misrule and ineptitude… and the era of anything goes…and roadside policy declarations. One would have preferred to overlook some of the all too obvious human errors and forge ahead, but it would be unfair to Kenyans not to ask questions about certain deliberate actions or policies of the past that continue to have consequences on the present.” (Kibaki, 2003, 7-9). Despite being elected on the platform of zero-tolerance to corruption, the Kibaki government soon engaged in high level and sophisticated vice and conversion. As Mutahi Ngunyi notes, “Unlike the case of KANU days when corruption was available to all, this has now become a preserve of a few, and the disturbing thing is that these ‘sharks’ are not apologetic about it. They are openly cutting deals with ‘corruption gurus’ of the KANU Regime” 36 Shockingly, NARC now agrees with KANU that past atrocities should not be investigated. This is the logical outcome of having been stained by the brush of corruption and failing to implement its zero-tolerance approach to the vice. NARC thus found itself embroiled in its own scandals, most notably the AngloLeasing scams that involved the looting of the treasury by NARC through fictitious deals involving high ranking government officials. As part of the cover-up, NARC hounded John Githongo—its anticorruption czar—out of office in February 2005 when it became clear that he knew too much about its corrupt deals (Mutua, op.cit., at 177). Githongo fled to the United Kingdom fearing for his life, where he has been releasing shocking dossiers on what he terms as the ‘Goldenberg-2 scam.’

35

See, The Daily Nation, 10th May, 2000, at 1-2, The Daily Nation, 19th July, 2000, at 1 and 20th July, 2000, at 1. 36 See Ngunyi. M, ‘Death that raises More Questions than Answers’ Sunday Nation (Nairobi), 21st September 2003, at 15.

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M assacres and Possible Genocides The use of political violence by the state to quash opposition was directed not only at individuals, but also at groups and communities. By far the most brutal massacres of Kenyans have been carried out in Northern Kenyan, and in particular in the North Eastern Province which since colonial times has been the epicentre of human rights violations. But more shockingly, postindependence governments have treated Northern Kenya as enemy territory and its residents as ‘second-class citizens’. The region is an abject lesson in marginalization and official neglect. It has been rendered so remote and inhospitable that its residents do not and cannot feel Kenyan. Frequent military expeditions, the brutality of the provincial and district administrations, massacres, castration of males, rape of women and girls the dumping of toxic waste, and the complete lack of development have turned the area into a vast wasteland. The 1983 Wagalla massacre where a total of 3000 people were brutally and callously exterminated by state security forces (an army unit) 37 has been described in the following way by the TJRC Task Force Report: “…the Wagalla massacre may meet the criteria for genocide since it was directed at one community, the Degodia (TJRC, Task Force Report, at 21).” Other massacres included the Bagalla Massacre, the Malka-Mari Massacre, and many others in the region. The 1969 Kisumu Massacre in which scores were brutally murdered when President Kenyatta visited the area is also of note. In January 2003, a few days after elections, the outlawed Mungiki sect massacred more than 20 people in the Rift Valley CapitalNakuru. 38 The Sect remains a major point of concern. However, questions have been raised by the scorched-earth response of the Police to the scourge.

Politically-Instigated Ethnic Clashes Throughout the 1990s, the Moi government instigated and at times directed the ignition and execution of ethnic clashes against 37

Permanent Secretary Hezekiah Oyugi’s unit was able to rein terror on the entire nation for a period of 10 years (Musambayi, supra., at 24). 38 See, ‘Scandal of Army Vehicles Diverted to Mungiki Militia’, Daily Nation (Nairobi) 31st January, 2003, at 1.

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communities that were deemed to be opposition. Directed at the so-called opposition communities and zones; these clashes exploited the volatile question of land as a pretext. Communities that had lived peacefully together for decades were suddenly turned against each other as the KANU state sought to stamp out opposition to its rule. Various investigations and reports by the Law Society of Kenya, the Churches, the Kiliku Report, the Akiwumi Report, and many others established beyond the shadow of doubt that KANU, its senior officials, their allies, many of its MPs and local politicians, the Police and security forces, and the provincial and district administrations either instigated or carried out attacks against individuals and communities deemed opponents of the regime (TJRC, Task Force Report, at 22). Ethnic violence first broke out in Kenya in November 1991 at Miteitei, a small settlement on the border between Western, Nyanza and Rift Valley provinces. The rise of vigilantism accrued against the background of mounting pressure on President Moi and KANU to legalize pluralism. The regime capitulated and Kenya became a multiparty state in December 1991. Simultaneously, violence escalated and spread to multi-ethnic districts in Rift Valley and Western Kenya (Kagwanja, 2001 at 74). President Moi confidently predicted that the return of a multiparty system would result in an outbreak of tribal violence that would destroy the nation. His prediction was alarmingly fulfilled (Human Rights Watch/Africa Watch 1993, at 1). The Kalenjin elite invoked ‘majimboism’ as a code-word for ethnic territorial claims, that later metamorphosed into an ideological justification for the indiscriminate and violent expulsion of ‘non-citizens’ consequently subjecting them to ‘ethnic cleansing.’ In May 1993, the vigilante war to punish groups associated with the opposition entered into main towns in the Rift Valley. KANU youth squads demolished more than 600 kiosks in Nakuru, most of which overwhelmingly belonged to Kikuyu hawkers. Throughout the province, Kikuyu were specifically singled out for retribution. 39 In 1997, a political challenge to KANU came from the Marakwet who, together with the Keiyo and Tugen, were hitherto considered 39

Reported in The Daily Nation, (Nairobi), 11th May, 1993.

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part of KANU’S traditional ethnic constituency. Hence, they became targets of cattle raids from their Pokot neighbours whereupon violence between the Pokot and the Marakwet began. By November, continuing violence had displaced at least 10,000 families from both sides. 40 Violence in Trans Mara district began around March 1997. In October alone, 15 people died in different incidents of violence. Cattle rustling and land disputes were the professed reasons for the clashes. The violence, however, had a deep pedigree in the electoral agenda of the local and national KANU elite in 1997. Continued state repression and the restriction of the space for the civil society action left grave doubts as to whether ‘free and fair’ multi-party elections were possible. Against this background, a new vigilante force called ‘Jeshi la Mzee’ (old man’s army), purportedly Moi’s army and not part of the officially recognized state system, surfaced in Kenya’s main towns at the end of April 1997 (KHRC, 1997, at 51). 41 A few days after the NCEC rally in Mombasa on 26th July 1997, ethnic violence erupted at the Coast. On 13th August between 200 and 500 Mijikenda ‘warriors’ dressed in short pants tied head bands and traditional kanzu attacked and burnt down the Likoni Police Station, killing 6 police officers and making away with 30-50 guns and 3,000-5,000 rounds of ammunition. The targets of the violence, however, were up-country people—mainly Luo, Luhya, Kikuyu and Kamba. Armed gangs attacked and razed their businesses and houses in Ukunda, Matinga and Msambweni in Kwale district. Leaflets warned people from up-country to leave the area or face

40

‘The Update 31st December 1997: 12. Interview with Wilfred Schasfoort, Technical Adviser, National Council of Kenya, Displaced Peoples’ Programme, Eldoret, 25/11/97. 41 The force comprised of members of the notorious KANU Youth Wing and fresh recruits drawn from the burgeoning lumpen, the unemployed, impoverished and disillusioned youth who thronged Kenya’s main cities.

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attacks. 42 This is reminiscent of the reconstruction of citizenship and group rights in the Rift Valley.43 The period before, during and after the December 1997 general elections was marred by harassment, intimidation and violence in many parts of Kenya. In January 1998 ‘ethnic’ violence flared particularly in the Ol-Moron and Njoro regimes of Laikipia and Nakuru districts respectively. On the night of 25-26 January, ‘fresh killings’ started in the Njoro division of Molo constituency, Nakuru District. Without warning and in a well-organized way, Kalenjin i.e. Kipsigis and Ndorobo raiders attacked the Kikuyu in the Stoo Mbili trading centre. Police officers went to the area and found about 100 Kalenjins raiders torching 40 houses belonging to the Kikuyu.44 According to Gibson Kamau Kuria (1996 at 418-419) “ethnic cleansing and majimboism are confusing the questions of ownership and citizenship.”. The majimboism which was agreed upon is vastly different from the one being advocated for now. Furthermore, the history of Kenya shows that majimboism has always been used by those who are not prepared to accept defeat which mostly follow any free and fair election, and those who lack the confidence that they will obtain power after such elections.”

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The General Human Rights Deficit Over its forty-year rule in Kenya, KANU failed to foster a culture of the rule of law and respect for human rights. The list of human rights violations and economic crimes is too long to tabulate. But the most severe have already been mentioned. All these violations were perpetrated in spite of the fact that on its face the Kenyan Constitution guarantees fundamental rights. Over time, the government substantially eroded and weakened many of the safeguards that had been established since independence. The Bill

42

The leaflets stated, ‘The time has come for us, the original people of the Coast to claim what is rightly ours; We must remove these invaders from our land.’ 43 Indeed, ‘the warnings and attacks were strikingly similar to the ethnic violence which had taken place prior to the same groups’ (Human Rights Watch 1998, at 42). 44 Reported in The Daily Nation, (Nairobi), 14th August, 1998.

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of Rights 45 gives individuals basic rights but then restricts them with qualifying limitations or claw-back clauses. 46 Derogation from the Bill of Rights is also permitted during an emergency.47 As noted above, the first major blow to the rule of law came in 1966 when the nascent state passed the PPSA, 48 in essence re-enacting colonial detention laws. The TJRC Report states that, although on its face constitutional—and even formally a democracy since 1992—the Kenyan state was in reality until 2002 highly repressive and authoritarian, trapped in the culture of the one party state. However, the TJRC under-estimates how extensive the problem is. Indeed, although the last decade in Kenya can be described as a transition to democracy, that transition will be stillborn unless Kenya creates institutions to cultivate the rule of law and promotes a culture that promotes and protects the fundamental human rights of its citizens. In many respects, Kenya is still held ransom to the Ghost of Repression. While there is no doubt that advances have been made, what can be described as the infrastructure of repression remains, calling for an entirely new social, economic and political compact which comprehensively addresses the legacy of the past. In the following section, I briefly look at what successive governments have done in the attempt to address this legacy.

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Assessing The Governmental Response Kenya has enjoyed relative peace since independence, if we define ‘peace’ as the absence of civil armed conflict. In fact, former President Moi took every opportunity to emphasize this point, referring to the situation in unnamed neighbouring countries (read ‘Uganda’) to drive the point home. However, this did not mean that the country was free from human rights violations. At independence in 1963, those in power amassed considerable property from the departing colonial government, thwarting the 45

Section 70-83 Constitution of Kenya on the Fundamental Human Rights and Freedoms. 46 For instance, Section 76(2) protects individuals against search and entry but then Section 76(2) quarterlies such protection (a) in the interest of defence, public safety, public order, public morality etc. 47 Section 83, Constitution of the Republic of Kenya. 48 The Preservation of Public Security Act, Cap. 57, Laws of Kenya.

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belief that the end of colonialism would terminate the injustices, expropriation and other human rights abuses that were the essence of colonialism. However, little or no effort was made to ensure that the people of Kenya were able to enjoy the fruits of independence. Consequently, the failure to address past outstanding grievances created a leeway for the same to be repeated during the postindependence period.

The Kenyatta Government (1963-1978) President Kenyatta’s regime created the rather unfortunate precedent of a deliberate attempt to ignore the past with various consequences for different groups of people. After Kenyatta was elected Prime Minister without consulting his peers he travelled to Nakuru to reassure the white settlers of his intention to ‘forgive and forget’ thereby setting a dangerous precedent, which then resulted in a lack of accountability on the part of colonialists for the gross human rights violations they committed. The Mau Mau veterans were side-lined upon questioning the post-independence government’s commitment to its people. Today, there is a continuing demand for the recognition and redress of those who fought for independence so as to enable them to reclaim their land and to secure compensation from the colonialists. 49 As Muringo has argued, looking into the plight of independence heroes would be essential to the transitional process (Muringo), op.cit.). The Kenyatta government omitted to do anything on this issue, and thus set the stage for continuing neglect.

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‘Nyayo’ Under President Moi (1978-2002) As the longest-serving government in Kenya, the Moi government had the best chances and opportunity to address issues of past human rights violations and the question of reparations. However, it is clear that the chance was lost. Instead, the Moi regime instigated new levels and form of violations with impunity. The clamour for democracy in the early 1990s expanded the political space, changing the framework of democratic governance 49

Through their lawyer Paul Muite, the Mau Mau veterans have now sued the British government for past human rights violations (without the support of the Kenyan government).

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in Kenya forever. After the amendment of Section 2(A) of the Constitution, it was evident that Kenyans could express their views more freely. As a consequence, various Commissions were then set up to address human rights violations and the misappropriation of public property. However, there is a catalogue of calamities that befell these efforts: many of them never made their findings public. Nor is it evident that where recommendations were made, they were ever implemented. Worse still, a number of them were simply disbanded before completing their task. For instance, three major reports were produced on the violence in the Rift Valley and Western Kenya in 1992, including: 1.) The Cursed Arrow; A Report on Organized Violence against Democracy in Kenya provided by the National Christian Council of Kenya (NCCK); 2.) Report on the Task force appointed by the InterParties Symposium; 3.) The Report of the Parliamentary Select (Kiliku) Committee to Investigate Ethnic Clashes on Western and other parts of Kenya, 1992. It must be stressed that the findings and recommendations of these reports were neither investigated nor implemented (Mute, 1998 at 466). Other Commissions set up by the government include the Akiwumi Commission established to investigate the tribal clashes in 1992 and 1997, and the Ndungu Land Commission whose findings and recommendations were also not implemented. The Gicheru Commission of 1993 established to investigate Dr. Robert Ouko’s death was disbanded by President Moi before completing its task. Furthermore, the termination of the private prosecution of Prof. George Saitoti by Raila Odinga in 1998 and the Constitutional Review deadlock during the Moi regime also serve as evidence that the government was not ready and lacked the necessary political will to address past issues relating to human rights violations. All in all, the Moi government has a woeful record of public accountability, addressing impunity, or even—at a minimum—telling the truth.

Rainbows and the Kibaki Government (2002-2007) Under the impetus and goodwill generated by the results of the 2002 general elections, the NARC government initially manifested a willingness to initiate a structural transformation of the political, economic, social and cultural life it inherited. Indeed, structures 194

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were immediately set up to effect a genuine transition including moving along with the drafting of a new constitution, and the appointment of the Truth, Justice and Reconciliation Task Force in 2003. The government also set up the Goldenberg Inquiry to investigate Kenya’s biggest corruption scandal and executed what it described as ‘radical surgery,’ of the Judiciary. 50 Other transitional mechanisms put in place by the Kibaki Regime included the setting up of the Parliamentary Select Committee to investigate Dr. Ouko’s death, the Fr. Kaiser Inquest, and the repossession of looted property i.e. the Kenyatta International Conference Centre from KANU. In addition, the government pushed through the establishment of the Kenya Anti-Corruption Commission headed by Justice Aaron Ringera, and the Ethics and Governance docket headed by John Githongo, an internationally acclaimed anti-graft czar. Despite all the efforts, a critical evaluation of the political will of the NARC government demonstrates that the desire for genuine and far-reaching transformation of the state rapidly faded away. Most astonishingly, the NARC regime now supports KANU’s assertion that to pursue the crimes of the past amounts to ‘witchhunting.’ There can be several explanations for this change in face. The first is that the NARC government is comprised of many of yesteryear’s human rights violators; secondly, the reform agenda was quickly overtaken by a status-quo approach (Mutua, at 113). Thirdly, despite being elected on a zero-tolerance to corruption platform, corruption under the NARC government has been taken to another level, a level of such magnitude that the vomit is not only spewed over the shoes of the so-called donors, but most importantly, on the shoes of the people who elected the government into power so overwhelmingly. The regime has also been infected with the past regimes’ disease of not implementing the findings and recommendations of Commissions. Most notable in this respect are those of the TJRC Task Force whereby 90% of Kenyans recommended the establishment of a truth commission by June 2004. The Goldenberg 50

The Ringera Commission identified over 23 High Court and Court of Appeal judges as corrupt, and over 45 magistrates who were asked to leave the Judiciary in 2003.

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Inquiry recommended the prosecution of high ranking government officials: to date, this has not been done. Ironically, the Constitutional Court ruled that the Commission of Inquiry into the Goldenberg affair erred in making its final report by omitting crucial evidence and also being biased against certain persons. Furthermore, Prof. George Saitoti has been cleared of any wrong doing. Likewise, Kiraitu Murungi and David Mwiraria who were implicated in the Anglo-Leasing scam have been cleared and reinstated in President Kibaki’s government. According to Odhiambo, the conduct of the state in respecting and implementing human rights provisions under the law did not measure up to required standards (Odhiambo, at 85). Suffice to note; despite Kibaki’s promise to investigate J.M. Kariuki’s death in 1975, as his presidency draws to a close, it is yet another forgotten pledge.

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Surfacing And Addressing The Challenges: Confronting The Devil Within Against the preceding analysis, it is quite clear that there are several challenges facing both official and civic Kenya in seeking a final and enduring response to the issue of past human rights violations and the demise of impunity. In the following analysis, I offer a few of them. The first is the question of Political Will. Muthoni Wanyeki has described how in each of the main political parties, there are several personalities whose records—political, economic, and civic—can be brought into question. Indeed, there are many skeletons—alive and dead—in the Kenyan political closet. Speaking of political will is one thing; securing it is quite another. One could say that despite President Kibaki’s good intentions on the evening he was sworn in, the reality he confronted the next morning forced him to back-track on the commitment to address the issue in any comprehensive fashion. The key question is therefore how to secure the commitment from all the main political actors that they will actually address the issues of truth, justice and reconciliation confronting the country. Such commitments do not come easily; secondly, the timing at which they are made is crucial. Already, significant time has been lost, but as I understand it, the campaign period for the next 196

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election has only just began. Civic society therefore needs to force this issue onto the campaign platform and to compel the candidates to take a stand: for truth and against impunity. Forcing such a commitment can take several forms: a memorandum of understanding (signed by each candidate), a pledge, or as part of a Manifesto. Needless to say, ultimately it will be dependent on how much pressure can be brought to bear by civil society on the political actors. If that commitment is not forthcoming, then I would suggest that some critical thought be given to the establishment of a Peoples’ Truth Tribunal. This suggestion is particularly important because of the period of time that has to be covered (stretching back to the colonial era); the dissipation of memories and witnesses, and the possibility of records of events disappearing. A third challenge is for us to think much more of processes, other than institutions. It is clear that the report of the TRJC recommended the establishment of a commission, but there is no need to be locked into a particular framework. Rather, it is more important to think of processes of accountability which can achieve the same goal, while not necessarily being tied to a particular institutional framework. Finally, Kenyans must face up to a challenge that is threatening to rend this country apart. Even if it survives the coming election, it is nevertheless a vice that must be confronted, immediately and directly because it will affect all attempts at reconciliation with the past and the prospects of a genuinely fresh start. I am speaking of the challenge of Ethnic and Community loyalties; of the challenge of destroying Mount Kenya mafias, Lake Victoria brotherhoods, Kitui cabals and Rift Valley compañeros. For any transition process to be effective it must be all-inclusive. It must bring on board all stakeholders (past and current ruling classes) and it must strike a balance between competing interests. And rather than pretending the vice does not exist, there is a need for a frank and open acknowledgement of the depth of ethnic ideology in Kenya and the manner in which it has affected virtually all aspects of economic, political and social governance in the country. Failure to do that will mean that the next crisis will be much larger than any other we have witnessed before. 197

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In Lieu Of a Conclusion

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The debate on transitional justice is only at the beginning in Kenya. It is thus premature to seek to terminate it with a definitive conclusion. What is clear is that Kenya’s transition remains a mirage until what I have described in this chapter as the ‘infrastructure of repression’ or what can be euphemistically called the ‘Ghosts of Misdeeds Past,’ are laid to rest. Part of the solution lies in the promulgation of a new Constitution with the aim of strengthening alternative centres of power, such as the Judiciary and the Legislature. But there is also a need to cede more power to discrete and devolved arms of government at the local level. However, the project of constitutional reform in Kenya cannot take place within the framework of collective historical amnesia by which this blessed country is currently encompassed. That amnesia has inflicted untold damage on the Kenyan social, economic and civic body politic. The past cannot be wished away; it is time to confront the ghosts of that past and to lay them to rest. Failing to do so will have dire consequences.

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Part III

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Excavating The Domestic Ugandan Scene

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The Implications Of The White Paper Chapter On Political Transition In Uganda 1 Political developments in Uganda since submission of the Report of the Constitutional Review Commission (CRC) on December 10, 2003, have moved at an astonishing pace—from preoccupation with the lifting of presidential term limits (the so-called kisanja debate), to the more recent dispute over the proposed disciplining of traditional leaders by Parliament. These developments have serious implications not only for the future of political and civic stability in the country, but also for the gains and sustainability of the drive to improve standards of living and reduce or eradicate poverty under the Poverty Eradication Action Plan (PEAP). There are also consequences for the PEAP’s related goals, including the elimination of corruption, enhanced transparency and accountability in the governance of society, and the increased participation and inclusion of the most marginalized members of society regardless of gender, ethnic origin or religious belief. Needless to say, the manner in which the Government White Paper (WP) debate is handled, the process by which the 1995 Constitution is amended, and the actual evolution of the political transition are all critical to the maintenance of the achievements of the last two decades. This chapter offers a critical assessment of the WP recommendations that have a direct bearing on the political transition process. The WP is divided into two parts, namely, those proposals directly responding to the CRC Report, 2 and those constitutional issues that the CRC did not specifically address. 3 Of the WP’s thirty-nine chapters at least eight in Part I, 4 and eleven in

1

Review and assessment of the Government White Paper on the Report of the Commission of Inquiry on the Constitutional Review and Uganda’s Political Transition; October 16, 2004. 2 Chapters 3 to 19. 3 Chapters 20 to 39. 4 These are Chapters 3, 4, 5, 6, 8, 13, 16 and 17.

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Part II 5 have a direct bearing on the political transition. Needless to say, extensive analysis of each of these sections of the WP is impossible. Instead, the analysis we make here attempts to surface the most prominent and obvious implications of the proposals made by the government. In this respect, no comment will be made where the recommendations of the CRC and the WP coincide and where the implications are politically benign. The second part of this essay provides a short analysis of the conceptual framework by which the WP appears to be informed, plus a synopsis of the September 2003 Cabinet memorandum to the CRC. This is a necessary backdrop to obtaining a more complete understanding of the possible implications of the WP recommendations. A more detailed comparison between the recommendations of the CRC and those contained in the WP follows, while the fourth part of the essay considers the new issues raised in the WP. 6 The chapter ends with a recap of the main conclusions of the study, and a personal assessment of the direction in which I see political developments progressing over the remaining months of the transition to a multiparty system of governance.

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From The Cabinet Memorandum To The White Paper: Conceptual Framework And Dominant Philosophy To fully understand the main political implications of the White Chapter, it is essential to grasp the forces that led to its conception and the dominant philosophy by which it was guided. Most importantly, it is crucial to remember the genesis of the constitutional reform process, which dates back to 2001 (Mugwanya, 2001). In the first instance, the debate and promulgation of the 1995 Constitution took place within a context in which there was very little give and take, especially over the issue of political systems. At core was the belief that the Movement 5

i.e. Chapters 21, 23, 24, 25, 26, 27, 30, 31, 34, 37 and 39. For ease of reference, the following is the method of citation employed in this chapter: (a) Report, i.e. CRC or WP; (b) Chapter, and (c) Page number. Thus, a reference to an issue found in Chapter Three at p.15 of the White Paper, will be cited as: WP 3:15. 6

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‘system’ was the best thing to happen to independent Uganda—a view that garnered considerable support both within Uganda and externally—and consequently that it should be given all necessary support. The reverse rationale was that political parties were a harmful and malevolent influence on the body politik and that everything possible (short of an outright ban) had to be done to prevent their re-occupation of the Ugandan political space. There was also an underlying conviction that without President Yoweri Museveni at the helm, such transformation in the mode of governance and political economy of the country would never have taken place (Oloka-Onyango, 1997). To compound it all, there was a tendency to over-constitutionalize many issues that would most appropriately have been left to ordinary legislation - a direct response to the absence of constitutionalism that had plagued the country since the 1960s. The combination of these factors was a long, complicated, sometimes contradictory and top-heavy document, with many positive provisions, but with others that clearly needed review even before the ink had dried on the instrument. It is thus not surprising that the issue became a hot potato in the 2001 elections. However, the appointment of the CRC in the heat of presidential campaigns was initially meant more to deflect the criticisms of President Museveni’s main opponent (Kizza Besigye) than it was intended to be a genuine effort to address the many contradictions inherent in the document. Needless to say, the review process developed a momentum of its own. Particularly important was the dramatic about-turn by the government on the issue of political systems, with a commitment being made to return the country to a multiparty system of government. 7 The stakes grew considerably with the evolution of the idea that the CRC could be used both to secure an extension of the presidential term as well as to critically re-shape the relations between the organs of the state, albeit in a largely negative way. 7

It is interesting to note that even the initial declaration that Uganda should change from the Movement to a multiparty system was not motivated by a genuine belief in the merits of the latter but by two external factors, viz., in response to the demands of internal critics of the system and to the pressures of donors.

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T he September 2003 Cabinet Memorandum The preceding account explains the September 2003 Cabinet memorandum to the CRC (Republic of Uganda, 2003). It is important to recall that the memo was submitted after the deadline for the receipt of public submissions had passed, illustrating that a need was felt to place Cabinet’s imprint on the CRC’s recommendations. After all, the CRC was supposed to make its report to the Cabinet. Furthermore, the memo contained a host of quite astonishing proposals, among them the following: x the elimination of the Uganda Human Rights Commission; x curtailing the powers of the Inspectorate of Government, especially with respect to the power of prosecution of corrupt public officers; x empowering the President to dissolve Parliament if the two disagreed on a matter declared to be a “matter of confidence” by the President; x lifting the two term limit on the office of the President; x abridging the grounds on which Parliament could reject a Presidential nominee, and, x reducing the years required for a person to qualify to be appointed as a judge. What becomes quite clear is that these proposals were animated by a desire to reverse the considerable gains made in enhancing executive accountability, parliamentary and judicial oversight, the fight against corruption and the protection of human rights. 8 Most importantly, throughout the hearings of the CRC, the issue of lifting the term limits had never arisen. Without a recommendation to this effect coming from the people, it would have been a very difficult proposal to justify. Viewed in totality, the Cabinet memo demonstrated that one of the major objectives of constitutional review—at least from the government perspective—had become how to secure near-total executive supremacy over the other organs of government.

8

The more cynical view is that these proposals were a red herring designed to deflect attention from the real point of the Cabinet memo—securing reference to the removal of term limits in the CRC report.

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The White Paper Vision Of Governmental Comparisons With The Report Of The CRC

Power:

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Political Systems and Good Governance Although less strident than the September memorandum, it is clear from the outset that the White Paper was just as preoccupied with ensuring that the NRM government retained its pre-eminent position in the political arena. Whereas the government indicated that it was indeed committed to a transition from the Movement system of government to a multi-party political arrangement, such commitment is only expressed in a muted and lukewarm fashion throughout the chapter. Put another way, although there was a clearly professed commitment to the transition, there was a lack of a clearly discernible political will to effect a genuine transition from the Movement system to a multiparty political arrangement. Thus, for example, short shrift was given to the CRC suggestion of an alternative electoral system (e.g. proportional representation or a government of national unity—GNU). Little thought was devoted to the actual functioning of the machinery of elections (the Electoral Commission) in a multiparty context. Power was still largely perceived of as belonging to a select revolutionary cadre under an omniscient and benevolent leader, reinforced by a vanguard, disciplined and efficient military. The conception of decentralization—perhaps the most radical and progressive reform under the Movement government—was under considerable threat of a nearly complete reversal. Even the language of the document was tentative in many parts, with extensive use of the conditional word ‘if’ particularly in reference to the transition from the movement to a multiparty political system. Why was this so? It is necessary to turn directly to the WP for a more complete answer to this question.

Changing the Political System While the question of political systems and good governance lies at the core of the recommendations affecting the political transition, the WP analysis and recommendations on this issue were in fact quite ambiguous. First of all, the WP rejected the CRC proposal that the multiparty system of political participation be 205

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adopted through the process provided for by Article 74(2) of the Constitution (by resolution of Parliament upon a petition by district councils) (CRC 4:36). Instead, the government recommended the wholesale amendment of Article 74, to provide that “… from the end of the current term of Parliament, public elections in Uganda will be held under (a) multi-organizations/multiparty political system.” It considered this method to be “cheaper” (WP 3:14). This recommendation was also ostensibly dictated by the need to preserve the “power of the people” to change the political system. However, such a recommendation was illogical, both in terms of financial cost, as well as in terms of political necessity. In the first instance, the provisions of Article 74 were inserted in the Constitution at a time when the official mindset was firmly in favour of the continuation of the Movement system of government, which explains the fairly convoluted process governing its implementation. Secondly, it also presupposed that there would be two distinct and opposing sides on the question of the transition from one system to another as was the case with the 2000 referendum. In the specific instance, the premier Movement organs (the chairperson, the National Executive Council—NEC and the National Council) had endorsed the decision to make the transition. The Movement had already been transformed into a political party, viz., the National Resistance Movement—Organization (NRM-O), complete with flag and slogan. The method proposed in the WP was certainly more costly, and was especially ludicrous given that no organized political forces (whether among the opposition parties, or even among adherents of the Movement system) had emerged to oppose the basic principle that there should indeed be a transition. To amend Article 74 to specify what the Government desired, required reference to Chapter 18 of the Constitution on constitutional amendments. Under Article 259, the amendment of Article 74 needed to be supported by at least two-thirds of all members of Parliament, plus a referendum. The question then becomes, why not simply refer the issue to a referendum directly, as provided for by the existing provisions of Article 74, rather than first amending it? Also unclear was how the proposed amendment would have preserved the power of the people to amend the Constitution in the fourth year of future parliaments, since it would 206

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in effect have done away with the provisions of Article 74(3) of the Constitution which specify as much. The proposal indicated that the government was groping for a way of saving ‘face’ having spent the years since 1986 demonizing and castigating the multiparty political system. The possibility of course existed that government was in fact not genuinely committed to a transition and that the proposal would be rejected in referendum, although such an outcome was unlikely. The only logical conclusion is that the NRM-O desired to use the process as a method to solicit and consolidate support ahead of both the constitutional amendment process and of presidential and parliamentary elections to follow. In either event, the proposal was designed to ensure that the government emerged winner— a clear attempt to have its cake and to eat it. Obviously that was not to be a good tiding for the transition since it gave the NRM-O a head-start in the electoral struggle in a context where the remaining actors were prevented from similarly reaching the people.

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Continuance of Political Systems The CRC recommended the “complete liberation of the political space” and listed several laws that required review or amendment (CRC 4:36). The WP agreed to this proposal in principle (WP 3:15). Unfortunately, the CRC recommendation did not go far enough. Several additional articles of the Constitution that delimited the political space in fact had to be repealed and not simply reviewed, including Article 70 (on the Movement system), and Article 269 (on the regulation of political organizations during the movement period of governance). It was no longer logical to retain reference to the Movement system when it had in fact been clearly demonstrated to be an organization.9 Again, the retention of the Movement as a political system could only be viewed as part of the maintenance of government ‘face’ in light of a fairly radical change in position on this issue. But it had even more serious implications in the run up to the elections and throughout the transition. For example, what exactly was left of the Movement if it 9

See Dr. Paul K. Ssemogerere & 5 others v. Attorney General (Constitutional Petition No.5 of 2002).

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had been transformed into a political party/organization? What was the role of the Movement Secretariat? Why should state resources still be used to fund its activities, as opposed to those of the other competing organizations and parties? What, in any event, were the activities the Movement was supposed to engage in? Retention of the Movement structures over the transition period was a definite guarantee of a tilted playing field in the run-up to elections. To genuinely improve the arena of political contest, a further review/revision of several laws in addition to those listed by the CRC was necessary. These included: the Administration of Parliament Act (Cap.257); the Local Governments Act (Cap.243); the anti-Terrorism Act; the Electronic Media Act (Cap.104); the Press and Journalist Act (Cap.105); the NGO Registration Act (Cap.113); several provisions of the Penal Code Act (Cap.120), and the Emergency Powers Act (Cap.297). 10 There was also a need for a comprehensive review of all legislation that offended constitutional rights as enshrined in the Bill of Rights, particularly rights of association, assembly and expression (especially political speech). In sum, in order for the transition to do away with not only the form of the Movement system, but also its substance, the reform of the legal regime needed to be considerably more comprehensive than was envisaged. Otherwise, the transition to a multiparty system would be a half-hearted one.

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Executive Authority, Parliament And The Separation Of Powers The 1995 Constitution can be regarded as a hybrid or sharedpower Constitution, in that it provides for a fairly autonomous and directly-elected President, with potentially strong Parliament and Judiciary, both of which were designed to check the excessive use of executive power. This contrasts with a system that is either purely presidential or purely parliamentary - the latter being the case obtaining in the United Kingdom. At the same time, there are two competing legacies that Uganda inherited, namely the experience of parliamentary supremacy bequeathed at independence, and that of 10

All chapter references are to the 2000 volume of the Laws of Uganda.

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excessive presidential authority enshrined in the 1967 Constitution, and in operation until 1995. Since the enactment of the Constitution, these legacies have vied for supremacy. This has been the case especially with respect to presidential relations vis á vis Parliament and with respect to the oversight/review function of the Judiciary and other Constitutional bodies such as the Uganda Human Rights Commission (UHRC) and the Inspectorate of Government (IG). The most vivid example of this occurred with the first amendment to the Constitution and its subsequent reversal by the Judiciary.11 Most Parliamentarians (and the Executive) considered as ludicrous the judicial “assault” on what was perceived to be parliamentary sovereignty or supremacy (Wapakhabulo, at 1011 and Nsibambi, 2001).

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Presidential Exercise of Legislative Roles While the CRC explicitly rejected the exercise of any legislative power by the President (CRC 5:58), the WP suggested “limited legislative powers” with respect to the following issues: Investment, Environment, Public Health and Historical and Archaeological sites (WP 4:17). However, the WP did not suggest a constitutional amendment to effect this change and it was silent on the extent of the power, the safeguards against its abuse and the process of review or reversal of their exercise. Those silences—especially with regard to the issues of investment and environment—were particularly critical in light of the opposition that emanated from Parliament to the Executive especially with respect to issues like the Bujagali Falls dam; the BidCo oil project in Kalangala, and the TriStar Apparels issue (under the AGOA scheme). Moreover, the implications of leaving it to legislative implementation rather than constitutional supervision implied that it would be easier for the Executive to achieve its goal with minimal hindrance or oversight. On the one hand this power could be viewed as a necessary tool to foster increased investment—considered an essential foundation for the eradication of poverty. On the other, such power could easily violate a host of personal and social rights, e.g. rights to property 11

See Paul Kawanga Ssemogerere, Zachary Olum & Juliet Rainer Kafire v. Attorney General (Constitutional Appeal No.1 of 2002).

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and to a clean and healthy environment. Given the abuse of executive power in relation to such matters in the past, the CRC recommendation made much more sense.

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Ministerial Office and Censorship The CRC Report recommended that all ministers from the Prime Minister down, be ex-officio (separating them from the mandatory holding of a parliamentary seat) (CRC 5:58). This would have the effect of professionalizing the operations of Cabinet, reducing the influence of patronage, and enhancing the separation of power (and independence) between the executive and the legislature. Moreover, it could be crucial in a situation where the President (who is directly elected) does not enjoy a majority in Parliament. However, the manner in which the CRC proposed its implementation was based on a wrong premise, namely that any MP named to Cabinet should first resign their seat before taking up the post. It is not surprising that the government found it an easy proposal to reject on the grounds of the cost of implementation (WP 4:18). Why have a person elected MP only to force them to resign immediately upon being elevated to the Cabinet? The more logical recommendation required to effect the separation the CRC had in mind would have been to stipulate that any person appointed a Cabinet minister would not be selected from the pool of MPs or that only a small minority of the Cabinet could be drawn from among MPs. This would have dealt with the cost issues raised in the WP, albeit such a proposal would have to be combined with the recommendation on the strict fixing of the upper limit on ministerial positions. Coupled with the rejection of the ceiling on the maximum number of ministerial appointments, the WP position on this issue (giving the President “flexibility” in Cabinet appointments) reflected the fact that such offices were to be used as a prime means of political reward and patronage. This is not a practice peculiar to Uganda. However, the implications of a bloated Cabinet was heavier expenditure on the perks of office and also the continued use of Cabinet posts as a means of silencing political opponents. It further meant that Cabinet would continue to carry considerable weight as a voting bloc within Parliament and thereby unduly tilt the balance in favour of the Executive. 210

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Unsurprisingly, the positions of the CRC and that of the WP differed considerably on the issue of the censorship power of Parliament over members of Cabinet. The CRC attempted to expand the grounds of censure from the existing five by an additional four, viz., corruption, embezzlement, fraud and causing financial loss in respect of public funds (CRC 5:59). In contrast, the WP asserted that the status quo was preferable (WP 4:21). However, the reasons given for resisting the proposal were unconvincing. First, the WP asserted that the four new proposed grounds were criminal offences and should be handled by the Courts of Law. Even if that were the case, the WP did not allow for a situation in which a Minister once found guilty of any of these transgressions would face parliamentary censorship, and consequent removal from office. Secondly, the objection to the inclusion of bankruptcy as a ground ostensibly because it was covered by Articles 80(2) and 116(b)(ii) clearly did not recognize that these provisions dealt with a person who was an undischarged bankrupt at the time of their proposed appointment and not after. What if a minister were to be adjudged bankrupt while in office? Should that not be a ground for censorship? The WP was on stronger ground when it pointed out that the existing procedural dimensions of the process of ministerial censorship did not cater for the principles of natural justice. Indeed, whatever the substantive merits of previous parliamentary censorships of ministerial appointees, there were clear limits in the process applied. 12 Thus, the WP proposal on process was a positive one and could serve to reduce somewhat the tensions invariably generated by a censorship motion (WP 4:21). The same cannot be said of the government response to the CRC proposal that a censored Minister not be re-appointed during the term of Parliament that passed the motion against him/her or in the subsequent Parliament. The WP instead proposed that only a period of five years should bar such a re-appointment. In this instance, the rationale of both recommendations were unclear, 12

Only one minister challenged the process of censorship in the courts of law. Unfortunately, the case was dismissed on technical grounds without a consideration of its merits. See Jim Muhwezi Katugugu v. Attorney General (Constitutional Cause No.4 of 1998).

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especially if grounds such as corruption, embezzlement, fraud and causing financial loss were the initial reason for the censorship. Such offences clearly run against the goals of ensuring enhanced governmental accountability and transparency and sent the wrong signal to those who have suffered decreased service delivery as a result of the commission of these offences (primarily the poor and dispossessed).

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Executive and Parliamentary Deadlock Both reports referred to a situation where a deadlock has arisen between the Executive and Parliament, and made recommendations on what should be done in such an event (CRC 5:59; WP 4:23). The CRC proposed that the issue be referred to the people to decide in a referendum. Depending on the results, the President should resign or Parliament stand dissolved paving the way for fresh elections. On its part, the WP rejected this formula arguing that it was indirect and expensive. Instead, the WP proposed that it be resolved by the President dissolving Parliament, the office of the President becomes vacant and elections be held for both. In many respects this concern was reflective of the continuing dominance of the Movement ideology or hangover and of a failure on the part of both the CRC and the WP to fully appreciate and countenance the consequences of actually transiting to a multiparty political system. In the first instance, the CRC was silent on what precisely constituted a “matter of fundamental executive or legislative importance” constituting a deadlock and warranting reference to a referendum (CRC 5:59). It compounded this omission by failing to make reference to the provisions of the Constitution with regard to the resolution of disputes. It did not state who determined whether a matter was of “fundamental importance” or how the processes of determination would progress in those circumstances. Indeed, the proposal did not even cater for the frequency of such an occurrence. For example, would a referendum be held if such disagreements were to occur every six months or over a shorter period? Secondly, in a multiparty system, presumably the President’s own party would enjoy a majority in the legislature. If there was a disagreement with that majority it essentially amounted to a vote of no confidence in the President, 212

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who should then resign, or be subjected to the process of impeachment. 13 However, if you have a situation where the reverse was true and the President did not belong to the majority party, it is quite strange why, when there is a disagreement, the matter should be referred to referendum. It may be true that ultimate power belongs to the people. However, they do not have to exercise that power directly and can do so through their duly elected representatives. Furthermore, why should the matter be immediately referred to referendum? Can all issues of fundamental importance be reduced to a single question? Are there no intermediary means of resolving the conflict? The WP proposal made matters even worse, with a proposed new Article 96A that would deal with a situation of deadlock between the two organs (WP 4:23-24). In the first instance the WP di not define the phrase “an issue of confidence” which would result in a deadlock. Secondly, why should it be the President to solely determine that such an issue has arisen? After all, s/he is a single individual versus the several hundred in Parliament. Indeed, this principle is reflected, for example, in the fact that if a President refuses to sign a bill as required, ultimately it will become law if Parliament so determines. 14 Thirdly, and perhaps most importantly, the proposal also shared a fundamental flaw with the initial CRC proposal in that it totally eliminates the Judiciary from the determination of disputes over the constitutional exercise of power by any arm of government. 15 Finally, it placed considerable stress on the Electoral Commission, apart from being a drain on resources. All in all, the proposal adopted an antagonistic rather than a cooperative approach to the resolution of intergovernmental conflicts, which did not augur well for the development of a harmonious relationship between these bodies. 16 It made more 13

Article 107, 1995 Constitution. See Article 91, 1995 Constitution. 15 cf. Articles 1, 2, 126 and 137. 16 A leaf can be borrowed from the South African system whereby under Chapter Three of the Constitution, all organs of government are compelled to work towards a “harmonious relationship.” It also provides for an Act of parliament to create structures and institutions to promote and facilitate smooth intergovernmental relations. Reasonable effort must be made to settle the dispute, and there is an obligation to exhaust all other remedies before applying 14

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sense to adopt a graduated response to the deadlock and to exhaust all the dispute settlement mechanisms including the Judiciary.

Separation of Powers and the Judiciary The CRC Report proposed that the Judicial Service Commission (JSC) receive the comments of the general public on persons designated to become judges (CRC 5:59). It is unclear why the WP rejected this proposal (WP 4:25). Such a provision would have enhanced transparency; it was not costly and did not require a constitutional amendment. Finally, the CRC proposal for a special vetting machinery in the IG’s office could be married to the WP assertion that the JSC was sufficient to deal with the issue. This could have been done by enhancing the powers of the latter, or creating a special investigative unit within the JSC tasked with the function of examining the backgrounds of all judicial nominees. Parliamentary Composition And Operations

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Size, Special Representation and Qualifications The CRC Report made several recommendations regarding the operation of Parliament, including a reduction in its size (to 120 elected MPs), suggestions on the population quota for a constituency (200,000) and on the special representation of women, workers, persons with disabilities, youth and the Army (CRC 6:75). The WP outrightly rejected all these proposals (WP 4:18). On the question of size, the WP argued that this factor was instrumental in forging national consensus and adopting fundamental and difficult policies, while the retention of special representatives was argued to “…give maximum representation to the population.” These WP proposals had several implications. First, that Parliament would continue to be a rather bloated and unwieldy division of government, and that considerations of political expedience would continue to assume prominence over efficiency and effectiveness, not to mention budgetary outlays.

to court, which also has the power to refer the matter back to the parties. See the Constitution of the Republic of South Africa, Act 108 of 1996.

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Secondly, while it was acceptable to retain the representation of special interests, the one group that did not fit in was the Army, because in contrast to the Movement system where the principle of individual merit held sway, in a multiparty arrangement, who did the Army represent? If the institution was supposed to be professional and non-partisan, how could Army MPs be expected to take a principled stand that could contradict that of the government or the majority party of the day? The WP’s only rationale for the retention of Army representatives was “security reasons” without providing a persuasive foundation for such a claim. Obviously, the WP had either not internalized the distinctions between a system in which representation is based on organizational affiliation to an openly political grouping, or it saw the military as a continuing critical and direct actor on the Ugandan political scene. Indeed, the effect of their continued presence in Parliament could lead to their further politicization thereby impeding the institution’s increased professionalism. In the words of the CRC: “The army must be nonpartisan and subject to civilian authority. The army should not participate in partisan debates and, therefore, it should not be represented in a partisan parliament.” (CRC 6:69). TSeparating the Army from partisan politics could only be achieved by removing it from Parliament. On the issue of MP qualifications, the CRC proposal was modified by the WP to shift vetting responsibility from the Uganda National Examinations Board (UNEB) to the National Council for Higher Education (NCHE) (CRC 6:75; WP 5:27). Unfortunately, the WP response omitted reference to the key element in the CRC recommendation—the issue of facilitation (WP 5:30). In the past, the issue of candidate’s qualifications had proven fairly contentious and time-consuming, with obvious resource implications. It was thus necessary to ensure that such function did not detract from the basic operations of the Council. Finally, although in principle the idea of establishing a body to oversee public service remuneration was a positive one, the proposed body was too large and potentially duplicative of the work of the Public Service Commission. The implications of establishing a wholly new body of Constitutional standing needed to be given much more serious consideration. 215

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P arliamentary Quorum In light of the notorious absenteeism of MPs, the CRC recommended an increase in the quorum for meetings to 50% from one-third (CRC 6:76). The WP rejected the proposal, on grounds that were fairly sound; it would virtually paralyze the business of Parliament. However, the WP added that the issue of quorum be determined by the parliamentary rules of procedure. Although the WP does not state this, the revised proposal is clearly in response to the judicial intervention on the issue that led to the repealed first amendment to the 1995 Constitution. Transferring the issue of quorum to the rules would not only defeat the underlying objective of the principle, i.e. to get MPs to attend parliamentary sessions, but it also meant that its weight would be considerably watered down as the rules could easily be amended. And yet, the business of Parliament is of such importance that a minimum threshold of MPs should be present for the conduct of its business. It was also necessary to maintain judicial oversight of this mechanism in order to enhance parliamentary accountability to the electorate.

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Voting The CRC proposed the adoption of a convenient and/or confidential voting system on all questions, plus implementation of an electronic voting system (CRC 6:76). The WP noted the recommendation and observed that the process of installation of such a system was underway. It also added the more controversial suggestion that “open voting be adopted in all matters except for elections” and that this provision be regulated by the rules of procedure (WP 5:31). For an issue that previously caused so much contention, it was notable that the government did not even provide the rationale for its proposal. Needless to say, the open voting system (particularly on issues of a constitutional nature) was open to considerable abuse, and indeed was not warranted in Uganda’s circumstances. Several reasons can be given for the retention of secret balloting as was demonstrated in the process of passing the first amendment to the Constitution. In a multiparty system with party Whips in place the reasons for secrecy are even more compelling. Secret balloting should remain the main system of 216

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voting in Parliament, especially on constitutional matters. A change of the system was certain to generate considerable tension. The Electoral Process Although the issue of elections had been the source of considerable contention throughout Uganda’s political history, neither the CRC nor the WP devoted enough attention to how elections would be different under a multiparty system of governance. Both reports were silent, for example, on the following key questions: What should be the influence of political parties over the composition of the Electoral Commission? Should parties not have a role in the nomination process for the chair and members of the EC rather than leaving it exclusively to the President? What kinds of principles of fairness in operation should the Electoral Commission adopt? Neither report provided satisfactory answers.

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The Timing of Electoral Laws The CRC recommended that election legislation be passed at least six months before the polling date, reflecting a widespread dissatisfaction among the public with the timing of electoral laws (CRC 7:96). The WP rejected the suggestion arguing that it was not practical and that it could give rise to “doubts as to the applicability of particular laws relating to elections” (WP 6:32). However, the problem is larger than simply the timing of elections. It was also related to the continuous review/repeal of election legislation, which happened before every election held since 1995. Thus, one of the most important elements of the transition was the conduct of a comprehensive review of election legislation in order to bring it into line with the holding of a multiparty polling exercise. This was not done. Secondly, the issue of timing needed to be given further consideration because there was really no justification for the lax manner in which the issue had hitherto been handled. Indeed, the problem of timing and the rushed manner in which the Commission was then forced to conduct the electoral process was a major contributing factor to tensions and conflicts over the process. Therefore, all steps should be taken to avoid such a scenario. It is 217

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essential for the Electoral Commission to get into the habit of timetabling its events, with the various points along the road to an election clearly laid out well in advance for politicians and the public to know. A strict deadline may not be feasible, but certainly much more could be done to promote electoral efficiency before the ballot.

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F unctions of the Electoral Commission Among the many suggestions made by the CRC were for the Electoral Commission to review laws and any proposed legislation and make (direct) recommendations on this to Parliament, as well as registering and supervising the functioning of political parties and promoting harmony among them (CRC 7:97). The WP rejected these recommendations, instead preferring that any suggestions be transmitted through the line ministry and that registration remain with the Registrar General (WP 6:34). Both the CRC proposals linked up to the issue of the independence of the Commission and its standing vis á vis Parliament. It could also be argued that the WP suggestion was intended to ensure that the process of legislative drafting and transmission be confined to the government and not to a multiplicity of organs, lending itself to confusion. Many countries however use Electoral Commissions to review the laws because they are on the ground and (perhaps) are less directly motivated by partisan political considerations than the government. Secondly, there are serious limitations in vesting the control of the registration process in the Registrar General because it was not an autonomous body being under the direct supervision and control of a Cabinet minister, which is less so with respect to the Electoral Commission. Moreover, the Registrar General had several additional portfolios to cover, ranging from business to bankruptcy and from births to deaths. A possible alternative would have been to establish the office of Registrar of Political Parties devoted exclusively to this function and with its independence, mandate and financing guaranteed.

Same-day Polling and the Secret Ballot The WP largely accepted the CRC recommendations on this issue, i.e. that all polls be held on the same day (CRC 7:97). 218

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However, it noted that on account of the prohibitive cost of elections, those at Local Council I and II could possibly be held under an open (non-secret) ballot (WP 6:36). Again, this proposal reflected the failure on the part of the government to conceptually differentiate between the Movement (so-called ‘individual merit’) system, and a multiparty arrangement in which parties can openly canvass for support and field their candidates at all levels of the local government structure. The government also appears to have forgotten the experience with queue voting (mlongolongo) that was the norm immediately after the NRM came to power in 1986. We need to ask why the system was changed, moreover in a context where individual merit held sway. Opening the ballot in a multiparty arrangement was a sure recipe for increased tension and even violent political confrontation. Instead, it would have made more sense to reduce the number of electoral tiers existing under the local government system in order to address concerns over cost.

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The Role of the Army The proposals of the two bodies parted company with respect to the issue of the use of the Army to keep peace during elections. The CRC recommended their exclusion (CRC 7:97), while the WP argued that they could be included provided the Electoral Commission made a request for their involvement (WP 6:37). Again, the proposal reflected an un-professional view of the role of the Army and a reluctance to equip the necessary arms of the state with the power to keep the peace during elections. Indeed, the contradiction in the WP recommendation was demonstrated by its later argument rejecting the involvement of a “parallel body” in providing internal security on grounds that the capacity of the Police should be built up (WP 6:38).

Proportional Representation (PR) The WP dismissed in summary fashion the CRC proposal that a serious study of the phenomenon be undertaken (CRC 7:97), retorting that it was “well known” that PR creates instability and results in the establishment of unstable governments (WP 6:38). This was a patently incorrect statement because not only did several stable governments around the world use the system, but a number 219

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of them were on the African continent, including Mozambique, Namibia and South Africa. It is also a well-known fact that a number of pure multiparty systems are fraught with problems. Needless to say, the reluctance on the part of the government to consider the merits of the proposal demonstrates a fixed mind-set with regard to the transition and its aftermath. Rather than representing an opening for further debate and consideration of the best alternatives for Uganda, the transition was in fact shaping up as a closure. Had the government been genuinely concerned with ensuring an effective transition, much more serious consideration should have been given to the merits (e.g. the increased representation of marginal groups) of the PR system as a mechanism for handling some of the historic problems associated with a multiparty system, such as the principles of first-past-thepost and of winner-take-all. It should also be noted that neither the CRC nor the WP gave any consideration to the idea of a government of national unity (GNU).

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Lifting Presidential Term Limits Reflecting the considerable controversy that accompanied the issue of lifting presidential term limits—including a minority report by the CRC chairperson—the CRC recommended that the issue be put to a referendum (CRC 7:97). In responding to this proposal, the WP recommendation shifting the issue to Parliament reflects a number of things (WP 6:40). First, it illustrates a desire not to be seen to be losing face (given that the government very strongly supported the idea of a referendum on term limits). This explains the rather confused nature of the WP response to the issue, which accepts the recommendation of a referendum in principle while proposing that it be handled by Parliament—a contradiction in terms. It is also a capitulation to the many pressures that have arisen since the suggestion of removing term limits was first made at Kyankwanzi in 2003. Although the WP recommendation reflected the correct constitutional position, there were still several negative implications to the pursuit of this change in the Constitution that warranted further critical consideration. The process of debate and amendment of the provision would be crucial, because in all likelihood an attempt would be made to change the voting system 220

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provided in the rules of procedure from a secret ballot to an open one, not to mention attempts to intimidate, cajole and pressure MPs into voting for the amendment. What will also be critical is whether the government proceeds with its stated intention of using an omnibus (all-inclusive) bill to effect the amendments, a proposal mired in controversy. Of all the proposals in the WP, by far this one was the most controversial and the one with the potential to cause most political strife and turmoil, both through the transition period and thereafter. Even if the vote is secured in Parliament—as is likely to be the case—it will set the stage for an additional presidential term in which the government will have to be more oppressive and less tolerant. It also carried the potential of a downward spiral of continued incumbency on the part of President Museveni, stretching well beyond 2011. There are consequently very serious reasons as to why this proposal needed to be resisted as its political and related implications are quite dire for the country.

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Local Government, The Spirit Of Decentralization And ‘FEDERO’ In reviewing the CRC and WP recommendations on the issue of decentralization it is essential to recall the original principles by which the system introduced by the Movement government was fired. Stemming back to the initial commission of inquiry into the local government system instituted in 1987, the primary objective of the reform was to achieve a devolution of political, economic and financial power from the centre to local government. 17 This was in recognition of the fact that there had been an over-concentration of such power virtually since the time that Uganda came into existence. Indeed, devolution was the first principle enshrined in that part of the 1995 Constitution dealing with local government. 18 The CRC largely attempted to retain the spirit of this principle even if it was not as successful in proposing an adequate reform of the letter. In contrast, most of the WP proposals on local government 17

See, Government of Uganda (Chair: M. Mamdani), Report of the Commission of Inquiry into the Local Government System, Entebbe, Government Printer, 1987. 18 See Article 176(2)(a).

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effectively amounted to an attempted re-centralization of what was once devolved power, demonstrated through the various proposals on the appointment and control of the Chief Administrative Officer (CAO), the status and function of the Resident District Commissioner (RDC) and the establishment of a regional tier.

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Powers of Appointment The attempt to re-centralize power emerged clearly with the WP’s rejection of the CRC proposal that Chief Administrative Officers (CAOs) be appointed by District Service Commissions in consultation with the Public Service Commission (PSC) (CRC 9:131; WP 8:43-44). It is also reflected in the additional proposal that the Secretary to the Treasury could appoint the CAO or any other senior officer as accounting officer (WP 30:116). The CRC proposal recognized that there had been several problems in the supervision, accountability and control of CAOs and sought to provide a link to the overall governmental machinery of personnel/human resource supervision. However, the WP proposal suggested that the CAO be appointed and disciplined exclusively by the PSC, on the grounds that this would enhance his/her independence, check the embezzlement of funds and prevent collusion between the CAO and the District Council. The main rationale for the adoption of this position was that the level of embezzlement and corruption at the districts was alarming. While the diagnosis may have been correct, the proposed prescription is fundamentally flawed and fraught with political problems. There are several aspects to the proposal—both political and technical/bureaucratic—that require unpacking in order to appreciate both the conceptual and the practical implications of such a measure. From a technical point of view, the WP proposal failed to consider that the CAO was only at the top of a fairly elaborate regime of human resource personnel who operate at the districts and are appointed at that level. This includes those directly under him/her (such as the deputy CAO and the Chief Financial Officer) and those who work in related areas (such as in the district health, water, engineering and education divisions). Targeting the CAO for re-centralization would first of all create a dual system of human resource administration at the districts: what about his/her 222

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deputy, and the chief financial officer who are also appointed by the district commissions? Secondly, there were implications with regard to reporting and accountability that run against the basic principles of devolution. It would imply in practice that the CAO was superior to the district political machinery—a sure recipe for further conflict. The proposal that the Secretary to the Treasury could appoint someone other than the CAO as accounting officer, would portend havoc for district mechanisms of reportage and accountability. A further misconception informed the WP proposal. It is that the money at the districts belongs to the central government and it had thus been ‘gifted’ to the districts. This was a fallacy as all districts (regardless of how poor they are) generate resources that end up in the Consolidated Fund. Central government was thus merely the administrative agent for their disbursement and not their owner. Finally, the proposal run counter to the essential goal of transferring real power to the districts, reducing the workload of central government and strengthening the system of decentralization. A more reasonable proposal would have been to revert to the CRC proposal which sought to divide supervision and accountability between the districts and central government. Secondly, there was a need to consider the whole fabric of the mechanisms of corruption and failed oversight at the Local government level and to improve the latter, especially with regard to the capacities of District Councils, Tender Boards and Technical Committees. There was simply no way that imposing a centrallyappointed bureaucrat over locally-elected politicians was going to either diminish political conflict or improve service delivery.

The Case of the Resident District Commissioner (RDC) One of the main points of contention under the Movement system was the exact role and function of the office of the RDC and its relationship with district politicians. The CRC logically proposed that the functions of the RDC be limited to the monitoring of government services in the district (CRC 9:131). In response, the WP proposed the inclusion of a monitoring role over local government services and for the RDC to be chairperson of the district security committee (WP 8:45). The WP also disagreed with 223

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the existing description of the RDC as a “senior civil servant,”19 and reduced the qualifications to only those necessary for a person to be an MP. In other words, the suggested reform would completely change the RDC from a special kind of civil servant into a fullyfledged politician, with the added implication of elevating him/her above the chief district official (LC 5 chair). Once again, this proposal was reflective of a marked reversal in the original conception of decentralization. While it may have been justified for RDCs to oversee central government services (a debatable function), adding an oversight function over local government issues was a recipe for increased and unnecessary conflict. Indeed, one needed to question whether the original rationale for RDCs still existed.

Removal of District Chairpersons The CRC proposed that the procedure for the removal of the district chairperson be maintained (CRC 9:131). In contrast, the WP rejected this proposal and urged a simplification in the procedure (WP 8:45). However, its recommendations were manifestly contradictory, in the first instance recommending an increase in the number of councillors required to initiate proceedings of removal, while on the other, shifting supervision of the impeachment tribunal from a judge to a magistrate (WP 8:46).

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Regional Governments and the issue of ‘Federo’ Contention over the issue of federalism had been simmering since the promulgation of the 1995 Constitution. It came to the fore with the increase in pressure by the Buganda government in a specific memorandum on the issue submitted to the CRC. On its part, the Commission essentially agreed that those regions that wanted to should be allowed to establish a tier of governance above the districts and made several recommendations in this regard (CRC 9:131). On its part, the WP agreed to the principle of the creation of Regional governments, and made a host of detailed comments on the issue, some in tandem with those of the CRC, others different from them (WP 8:48-58). Of course the backdrop to these 19

Article 203(1).

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proposals was the closed-door negotiations conducted between Mengo and the President. The talks were eventually called off on account of a failure to agree on the number of councils that would be permissible; the status of Kampala, and the 9,000 square miles of land that was initially designated as Crown land claimed by Buganda. Few other issues had the potential to cause as much political tension and even conflict than that of ‘federo.’ There were several reasons for this. The first was the asymmetrical character of the arrangements proposed both in the CRC report and in the WP given that the regional tier was basically a voluntary arrangement with very loose structures. The fact of the matter was that only Buganda would benefit from the proposals of a regional tier, leading back to the situation that prevailed between 1962 and the abolition of the kingdoms in 1966. Secondly, the government found itself in a bind having initially granted the restoration of the kingdoms but without fleshing out the parameters of operation and legal control to which they should be held. Hence, the proposal that traditional leaders be disciplined (whether by Parliament or the Courts) was bound to cause more problems than solutions. Finally, the proposal for a regional tier in both reports simply created another bureaucratic level of governance, immediately raising several questions about financing, possible tensions with both the Central government and the governments of other levels over issues of function and jurisdiction, as well as of accountability and reportage. Unfortunately, given the emotions that accompanied the debate over the issue, it was unlikely that a satisfactory and wellconceptualized formulation would result, thereby posing a considerable threat to the political transition and thereafter.

Human Rights Of the several proposals on human rights and the Uganda Human Rights Commission, it is interesting to note the WP rejection of the CRC proposal to improve the conditions of detention (CRC 10:152; WP 9:59). 20 Government noted that 20

The proposed amendment would give a detained person, “… a right to conditions of detention, which are consistent with human dignity including adequate accommodation, food and recreational facilities.”

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“…suitable conditions can be maintained…” without a constitutional amendment, essentially trying to avoid a binding legal and actionable obligation to improve prison conditions. The proposed downgrading of the Equal Opportunities Commission (EOC)—the only original constitutional body not to have been set up—clearly reflected an implicit minimization of the rights of women and other disadvantaged minorities by both the CRC and the WP (CRC 10:152; WP 9:62). This is because the UHRC was under serious resource constraints and would thus not be able to effectively devote attention to an issue as involved and intricate as the protection of this category of individuals. A Critical Consideration Of The New Issues There were several issues in the WP that had not been given consideration by the CRC, and that had numerous implications for the future of politics in the country. The following analysis considers those which were problematic.

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Sovereignty of the People The WP proposed to give binding force to referenda, and to amend Article 255 in order to provide that the government would instigate the holding of a referendum on “any contentious matter” (WP 21:91). The proclaimed rationale for this proposal was to “return power to the people.” However, the background to both proposals lay in the extensive debate over whether or not it was constitutional to refer the issue of removing presidential term limits—under Article 105(2)—to a referendum. The proposed amendment would have been a rather blatant subversion of the explicit provisions dealing with amendment of the Constitution contained in Chapter Eighteen. 21 Despite its seeming innocuousness, quite clearly there was still a problem here of several dimensions. In the first instance, what was a “contentious issue” and who determined that it was so? Secondly, why should a referendum be the first point of reference for the 21

The argument was sparked by Wapa’s letter to the President and subsequently taken up by Cabinet Minister Ssemakula Kiwanuka (in favour of a referendum) and myself against.

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resolution of such a contention rather than the last? Finally, if a referendum effectively violated fundamental human rights or other provisions of the Constitution, certainly its binding character would have been called into question. The proposal would have the effect of using a backdoor to oust the jurisdiction of Courts to review any such process irrespective of how much it violated basic rights. For example, the referendum of 2000 was considered by many to be a violation of the right to free association and assembly. International obligations into which the government had entered prohibited the ousting of judicial oversight and stipulated that any actions that violated human rights could be the subject of international review. In sum, the proposal was fraught with problems.

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Right to Form Political Organizations The issue of registration of political parties continued to be a controversial one, both with respect to the old parties (UPC and DP) and to newer ones such as the Forum for Democratic Change (FDC). The WP proposed to amend the Constitution in order to separate the right to form parties from the issue of registration (WP 24:98). On the face of it, this could be taken as a simple streamlining of the system. However, given the problems in registration faced by both old parties and new, quite clearly there was more to the proposal than met the eye. In other words, registration in the circumstances existing at a time when the Political Parties and Organizations Act (PPOA) was so draconian would in effect have crippled the opposition parties. At the same time, the difficulties the new parties—especially FDC—were experiencing with the process of registration, demonstrated that the very process of registration could be a constraint to the freedom of association, assembly and lawful opposition. Unless the government reduced the legal and other restrictions on the operation of parties, the opposition would remain hamstrung and unable to effectively compete in the political arena.

Independent Candidates The WP proposal on the issue referred to the need to “regulate the conduct of independent candidates” (WP 3:15). In this regard, the proposal to give political parties the power to expel a member 227

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needed to be married to the principles of natural justice that must accompany such action (WP 3:15). There was also a need for further clarification on the issue in order not to impede the full and equal participation of independents in the political system (WP 24:99).

The Legislature While the WP proposed the official recognition of the office of Leader of the Opposition, it preferred that the details be confined to legislation or to the rules of procedure (WP 25:100). Such a suggestion implied a degree of ambiguity over the position that could have been subjected to partisan bickering within the assembly. The precise status and functions of this office needed to be enshrined within the Constitution in order to avoid a situation where an attempt could be made to water down its power by the majority party. 22

Presidential Elections The specific proposal of the WP was to provide for the declaration of sole candidates unopposed (WP 26:102). Although the proposal was stating the obvious, and thus quite logical, it would have been unwise to apply the principle in the Ugandan situation because such a declaration was likely to be a source of contention and controversy. It was thus better that the discretion be left to the Electoral Commission after a consideration of the situation existing at the time of the closure of nominations.

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The Judiciary Unsurprisingly, the most extensive recommendations made by the WP that were not covered by the CRC related to the Judiciary (WP 27: 105-111), and were reflective of the uncomfortable relationship the government had experienced with courts of law since the enactment of the 1995 Constitution. 23 In particular, there

22

Cf. Article 130 of the draft of the Constitution of Kenya, 2004. This is reflected in the National Political Commissar’s complaint that, there is “… no clear and direct mechanism … to ensure that judges are constantly reminded of the people’s aspirations and desires.” See Crispus 23

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were serious implications in the proposed amendments to Article 137, intended first, to deal with the issue of expired/repealed statutes and secondly to constitutionalize the doctrine of prospective overruling. The WP suggested that the Constitutional Court be prevented from finding an expired Act of Parliament as inconsistent or in contravention of the Constitution (WP 27:106). The proposal was not only an unjustified fetter on the discretionary powers of the Judiciary, but it also did not countenance the full effect that legislation which had been repealed, spent or expired could have had on the protection of basic rights. In other words, a law can have implications that extend well beyond its expiry date. To thus impose a blanket bar on a court’s consideration of the effects of the specific statute in question could lead to a violation of fundamental human rights. Indeed, it could encourage impunity on the part of state officials who well know that there can be no redress for their actions under the cover of such an overriding constitutional protection. The same considerations applied to the second proposal in the WP regarding the doctrine of prospective overruling. The WP asserted that the intention of the proposed amendment was to meet “…society’s expectations that whatever is done under the authority of an Act of Parliament shall be regarded as legally valid at all times notwithstanding that the Statute may be declared null and void by the Court” (WP 27: 107). However, there were several problems with the attempt to constitutionalize this doctrine. In the first instance, if an Act of Parliament took away fundamental human rights, then no subsequent action can change this fact: it is a bad idea for Parliament to knowingly sanction bad law. Secondly, doctrines are different from principles, with the latter being firmly embedded in a constitutional regime, while the former evolves over time and is subject to modification. 24

Kiyonga, “Debate will Strengthen White Paper,” New Vision, October 10, 2004 at 25. 24 For example, Article 3 of the 1995 Constitution overturned the doctrine— applied in the famous 1966 case of Uganda v. ex. parte Matovu—that once a government has been overthrown in a coup d’etat, and a new regime of government been effectively established, this amounts to a legal revolution.

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Although the WP correctly traced the doctrine to American jurisprudence, a number of qualifications need to be taken into account before the wholesale application of the doctrine to the situation in Uganda. First of all application of the doctrine was not a firm constitutional principle, but rested in the discretionary power of the Court dealing with the specific issue. In other words, it was a doctrine of interpretation to which the Court could seek recourse if the facts of the particular case warranted such action. It was certainly not part of the written American Constitution. According to a recent Indian Supreme Court decision where the doctrine was applied: “It is for the Supreme Court to indicate as to whether the decision in question will operate prospectively. In other words there shall be no prospective overruling unless it is so indicated in the particular decision.” 25 The court takes into account the implications of its decision on developments that have taken place since the statute was enforced. Removing the discretion to do so could occasion a situation in which there was damage without redress, and where those affected by negative state actions were barred from the outset from seeking relief.

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Special Terrorism Courts Tucked away near the end of the document, the WP proposed that special courts be established for the trial of the offence of terrorism in order to “… effectively combat terrorism and related offences which now threaten law and order and create a climate of insecurity throughout the world” (WP 31:119). There was an obvious danger in the creation of special courts or tribunals for the trial of specified offences. Uganda had some experience with this during the Amin period and its effect was to erode the independence of the Judiciary. Regular courts should retain jurisdiction over such offences, especially in light of the experience of the system of military justice that operates in Uganda today. Furthermore, given the vague nature of the offence of terrorism, such institutionalization of courts for the specific prosecution of the offence could lead to significant miscarriages of justice, not to mention the possible effects this could have on political stability. 25

See the case of M.A. Murthy v. State of Karnataka [2003] 264 ITR 1 (SC).

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Conclusion

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Viewed in its totality, the White Paper represented a serious attempt on the part of the government to iron out many of the impediments and contradictions that had dogged the implementation of the 1995 Constitution since its promulgation nearly ten years earlier. At the same time, it was fraught with considerable ill faith regarding several of the guiding principles on which the instrument was originally built and which were recounted in the Preamble to the instrument. In particular, the document did not appear to have internalized the fact that fundamentally different considerations applied within a competitive political environment as opposed to a situation—as was the case under the Movement arrangement—in which there was a veritable monopoly of political power. Furthermore, the WP reflected a high degree of contempt for the instruments of governance that the 1995 Constitution established to check Executive power such as Parliament and the Courts. Many of the proposals in the paper such as those on the censorship of Cabinet members and on the appropriate course of action in the event of a deadlock between the Executive and Parliament reflected the chagrin of an institution that had been called to account by these bodies. The proposals sought to “tame” them and subordinate them to Executive superiority. Although many of the proposals invoked the name of the people as their motivation, it is quite clear that the benefits were for somebody else.

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11 Multiplying The ‘Jiggers’ In The Feet Of Officialdom: Reflections On The Challenges Facing Civil Society In A Multiparty Dispensation 1

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I have been requested to comment on a number of specific issues among which are the following: x Where are the civil society voices in contemporary Uganda? x What opportunities does the ‘transition’ to multiparty politics that we are undergoing present? x Will civil society change its traditional mode of engagement with the State? x How can civil society avoid the charge of partisanship in such a context? I will also quote the last question that I was asked to respond to in full because it raises many issues that are of critical relevance to the topic under discussion today: In recent times across Africa (e.g. Kenya) civil society played a key role in the political transition and now there are grumblings that civil society was co-opted. Civil Society in Uganda has not been as active; is it already co-opted or will it be co-opted or does civil society in Uganda not matter enough to be co-opted anyway? I will return to these questions later in this chapter, but would like to begin with some more broad observations of my own. What Are The Roots Of Contemporary Civil Society In Uganda? It is necessary to begin our discussion by asking what the roots of the animal we call ‘civil society’ in today’s Uganda are, and then move on to the challenges that this animal faces before directly confronting the questions I have been asked to address this 1

Keynote Presentation at the Reflection Dinner for the Programme Civil Society Steering Committee; January 20, 2006.

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evening. To appreciate the roots of civil society one needs to have an historical perspective, because civil society is not a new thing. By drawing on comparisons with the past we will be able to consider how much things have changed and indeed, what has remained the same. In the struggle against colonialism, a host of civil society actors arose within the frameworks of organization, association and expression that were permitted at the time. For example, one recalls the early trade unions that organized protests and boycotts over the racist economic and labour policies of the time. There were also the local newspapers that were the main conduit and mouthpieces for anti-colonial political activity. Cooperative unions and societies brought together thousands of peasant farmers united around issues of an economic nature, but also addressing the main social and political questions of the day. The most prominent characteristics of these civil society actors (or social movements) were the following: (a) They were closely and organically linked to the pulse of the people (what we call the ‘grassroots’ today); (b) They operated shoe-string budgets, which were essentially raised internally (there were no ‘donors’ and certainly they got nothing from the government of the day); (c) They addressed issues which were not simply of a socioeconomic nature, but also directly political. In other words, they were not afraid of politics—partisan or otherwise, and (d) They were extremely effective in achieving their goals. After independence, a lot of the civil society actors were either transformed into state agencies (such as the cooperatives); they were nationalized (as with the trade unions) or they were outrightly banned (as with the newspapers). By the time Idi Amin came onto the scene, Ugandan civil society had been severely crippled. Amin completed the task by exterminating what little was left of it through executive decrees and orders. Since 1986, Uganda has witnessed a revival of civil society activity, in part a reaction against the repression of the past, but also the product of a regime that was more ‘benevolent’ than its predecessors. It must be said that the NRM government also realized that allowing the operation of civil society (within limits) was strategically important and useful, not only in terms of allowing 234

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middle class frustrations to find a non-violent outlet, but also to appease the international community and the ‘donors’ who are a very influential part of it. Besides, given the state of collapse of the State at the time, it became very quickly obvious that government would not be able to do all the things it previously could, particularly provide social services. Ugandan civil society is thus a product of the social, economic and political conditions existing in 1986, and the developments we have witnessed thereafter.

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What Is The Dominant Character Of Contemporary Civil Society In Uganda? Although generalizations in response to such a question does not take into account the many differences across the sector that exist—for example the women’s movement is not facing the same issues as workers— it is still possible to make some broad observations about them. The first observation that can be made is that the vast majority of civil society actors in Uganda are into service provision, or some kind of ‘developmental’ activity, and the most prominent of these actors are donor-supported. Many are retrenchees or escapees from the civil service, universities or from privatized parastatals. Unlike civil society in the pre-independence era, contemporary civil society actors are quite distanced from local communities, even as we profess to be closely connected to them. In part because of our immediate history, but also on account of the concrete conditions existing in the early years of the NRM government, civil society adopted a ‘softly-softly’ approach to the government. As a result, we claim to be non-political but have ended up being highly apolitical. Finally, And as a consequence of all the above, I would say that civil society has been only minimally effective in the goals of achieving transformative modes of governance in Uganda. I think the most serious criticism of civil society in Uganda today is that we have somehow managed to remove the element of ‘activism’ from our function as activists and to pretend that the work we are doing is the furthest thing from politics imaginable. This has therefore led to what could be described as ‘inactive activists’ or a civilocracy in the same way as one would describe a 235

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bureaucracy. The main challenge we have is thus to change this situation and to critically engage with ‘officialdom,’ which in my view is not only the State, but with all other institutions of power and authority with which we are familiar, whether it is the family, the community, the school, the local authority, the corporation, the opposition political party, or the government of the day. Quite clearly, civil society is not doing enough.

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Assessing the Role of Civil Society in the Political ‘Transition’ I would now like to turn to a consideration of the place of civil society within the so-called ‘transition’ and to present some thoughts on what I think needs to be done. First of all, I need to say something about two terms that are common in this discussion: ‘transition’ and ‘multiparty politics.’ In the first instance, it is important that we not be deceived by the term ‘transition.’ Although the opposition (particularly the FDC) is optimistic about causing a run-off in the upcoming election, or even outrightly winning it, I highly doubt that President Museveni will lose the election next month, and I am ready to eat my shoes if proved wrong on this point. What is happening in Uganda today is simply a transition from Museveni IV to Museveni V. This is because no election is determined by the events on ballot day; all elections (everywhere in the world) are determined by what takes place well before. And in Uganda since 2001, many things have happened to seal this election in President Museveni’s favour. It is also a fallacy to imagine that we shall move into a situation of fully-fledged multipartism in the same way as it was foolhardy to have thought that because we enacted a new constitution in 1995, we would begin to enjoy the fruits of constitutionalism. Just as we have not quite escaped the fate of a constitution without constitutionalism, we should prepare for multiple parties without multipartism. To that extent, very little is going to change in the transition to a multiparty political arrangement unless we actively change it. Otherwise it will be business as usual. At the same time, civil society should also prepare for the most unlikely of events too; an opposition victory. This is because there is no guarantee that if the current opposition comes to power things will change 236

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fundamentally; after all, politicians on all sides of the political divide suckle from the same breast. At all times, civil society must act to defend those without power against those who hold it and can abuse it. Let me now turn to the direct questions I was asked to address:

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Where are the Civil Society Voices? Unfortunately, civil society in Uganda today is still largely silent about issues of a political nature. It sporadically speaks up, however, its voice is neither strong or consistent. Nor is it compelling. In this respect, civil society is like boiling milk; it froths and it fumes, but it settles down as soon as you turn off the heat. Perhaps the lone voice assessing the political arena has been that of the media, but since its main function is to produce profit, the extent to which the media can be described as the ‘voice’ of civil society or of the people is debatable. Needless to say, there is a lot that civil society actors can learn from the media, including investigation (or research) publicity (or dissemination), and focus (or determination). Of all the groups that are out there, the DemGroup (a loose coalition of civil society election monitors) deserves some commendation because it has been consistently speaking out on the political problems that the country is faced by. However, (and I mean this with all due respect and admiration for the work they are doing) they need to be more forceful; more pro-active and to bring more civil society actors on board in order to create a critical mass of non-state actors interested in the deeds of those who control (or want to control) the state, and with the necessary vision and determination to do something about it. Let me say that I am particularly disappointed in both the women’s and the human rights movements in Uganda today. I have always argued with my friends in the women’s and human rights movements that they need to forge closer alliances. For example, how many mainstream human rights groups spoke out on the Domestic Relations Bill? Conversely, how many times has a women’s group spoken up about a directly political issue? If there is any group that has been silent about the political transition, it is women. It was only in the debate over the Vagina Monologues that several women’s rights activists came to appreciate that the lack of 237

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democracy within the state could have direct implications for the autonomy and free operation of their own movement. Despite that experience, women’s groups have been silent about the vulgarization of the women’s cause—particularly the claim that the state is interested in dealing with domestic and sexual violence— represented by the bizarre charges of rape currently unfolding in the Besigye trial. On their part, virtually no human rights group has made an input on critical issues affecting the political status of women such as the debate on affirmative action or on the Domestic Relations Bill.

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What Opportunities Does the ‘Transition’ to Multiparty Politics Present? In the first instance, this question presupposes the reverse of what I have been saying that civil society needs to do. Rather than waiting for the transition to create opportunities for us, we need to create the opportunities for ourselves and for those who we lay claim to represent. Rather than waiting to be presented with a fait accompli we need to create the space for more activism. In short, we need to revive the spirit of the 1995 Constitution and to challenge the negative and retrogressive forces represented by the enactment of the 2005 amendment to the Constitution; we need to force government to change its repressive legislation through protest, verbal assault, public interest litigation (PIL) and other frontal tactics and measures of constructive opposition. At the same time, it is true that government will offer more opportunities for us to become more active because Museveni V will be even more repressive than any of its previous incarnations. As more diminishing returns begin to set in; the government will have to resort more and more to overt force and direct coercion. In the process it will create even more strident conditions for antiofficialdom operations. Thus, civil society needs to prepare to be more vigilant and critical of state action. Secondly, it needs to be wary of ceding the political ground only to political actors whether in government or the opposition. The problem with politics in Uganda is that it has been over-monopolized by politicians. It is time for us to break that monopoly and ensure that everybody becomes a politician, in the sense that people are empowered not to 238

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fear to talk about politics and to challenge and hold our politicians accountable.

Will Civil Society Change its Mode of Engagement with the State? This is a highly subjective question, because it goes back to the issues I raised in the introduction to this chapter: what are the motives that drive those of us who control civil society in today’s Uganda? Why should we change our modus operandi unless we can clearly see a positive gain that can be made? What will a change of ‘engagement’ really mean? These are all questions that we need to ask ourselves as civil society leaders. Certainly the service-delivery element in civil society is likely to continue and perhaps to remain the dominant one. However, even here, inroads can be made in the exposure of how politicized the area of service delivery and ‘development’ activity is. I therefore think it is necessary for us who are in the more political arena of civil society action to demonstrate that bonna bagaggawale (prosperity for all) is not a question only of service delivery or development, but ultimately a question of politics. How can you kugaggawala (prosper) when somebody is sitting on your back like akakookolo (cancer)?

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How can Civil Society Avoid the Charge of Partisanship? In order to answer this question, it is necessary to first ask for what reasons should civil society try to avoid the charge of partisanship? In my view, if civil society is to be at all active on the political scene in a multiparty context, then it must know that it cannot avoid such a charge. Indeed, the higher the degree of activism by civil society, the greater the likelihood of being branded partisan. During the American civil rights struggle, civil society actors were called ‘communists’ and many of them suffered jail, torture and death for their words and their actions. Anti-apartheid activists in South Africa and proponents of Irish Republicanism were described as ‘terrorists.’ Nelson Mandela was placed on a list of acknowledged harbingers of terror and barred from visiting the USA. The fact is that if you are not with the government, then you will be regarded as against them and on the side of whoever is in opposition to them. The partisan label will inevitably follow. This is 239

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because even keeping silent is a partisan act in favour of the person or institution who is violating your rights or the rights of others. For us in civil society to have kept quiet about the patently illegal detention of Kizza Besigye was quite clearly partisan—in support of the wrongful actions of the government. Thus, the better question to ask is whether what you are doing or saying is in the interests of expanding democratic space, or by keeping quiet and acquiescing, are you reducing it? Having argued that there is no way of avoiding the charge of partisanship, I think there are some obvious things that civil society needs to do in order not to be knocked out in the first round with such an accusation. First, is to avoid direct identification, endorsement and support with any one particular or specific political organization. There is a big difference between saying “I support the FDC,” and saying “What the government is doing to FDC is wrong and unsupportable.” Next, there is a need to be equally critical of both the party in government as well as of the opposition; this is why I used the term ‘officialdom’ and not ‘government.’. Thirdly, civil society needs to develop its own agenda on politics and the political situation well in advance of the political actors and not to be simply reactive to their excesses. There are a host of issues that we need to be taking on that will demonstrate that civil society is thinking pro-actively and ahead, rather than simply waiting to respond to the situation that government creates for it. Let me finally turn to the last question which I have partially answered already: “In recent times across Africa (e.g. Kenya) civil society played a key role in the political transition and now there are grumblings that civil society was co-opted. Civil Society in Uganda has not been as active; is it already co-opted or will it be co-opted or does civil society in Uganda not matter enough to be co-opted anyway?”

The example of Kenya is a very telling one. I lost a number of friends when on December 27, 2002 I called the leaders of a number of prominent civil society actors in Kenya and told them they were wrong to openly endorse the NARC opposition and Mwai Kibaki. Fortunately, most of those ‘friends’ are now in the 240

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Kibaki government, demonstrating that they really did not have the interests of civil society or the people they were claiming to represent at heart, and were merely ‘5th columnists’ waiting for their turn at the cake. Those who remained behind realized their folly and took measures to re-assert the independence and autonomy of the movement, and indeed Kenyan civil society is now re-asserting its autonomy and freedom of action.

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Is Ugandan Civil Society Co-opted; Will it be Co-opted or Does it not Matter? There is no doubt that the issue of possible co-optation is a serious one. However, given the diversity of the movement (even as reflected around this conference room), it is too simplistic to say that civil society as a whole has been co-opted. There are several civil society actors in this country who have remained independent, critical and objective in their approach to the political situation in the country. However, these are few and far between, and the tactics of divide and rule, intimidation and other forms of coercion are abundant. The more accurate way to describe Ugandan civil society is intimidated, threatened, silenced and ultimately disenfranchised. Consequently, there is a need for the mobilization of likeminded civil society actors in the cause of defending the fundamental rights to political organization, expression and (most importantly) the right to democratically oppose the ruling party and government of the day. Secondly, there is always the danger of cooption; we have seen many of our colleagues in civil society yesterday, entering the political arena today and completely changing their language tomorrow. Thus, we need to strategize on how best we can avoid co-option (which is an ever-present threat) and how to develop minimum principles for collaboration and action in the political arena. Ultimately, it does matter if civil society is co-opted. But to be co-opted you must in the first instance be perceived to be a threat. If there are no attempts at co-option then clearly civil society is not doing its job.

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Some Tentative Conclusions First of all, I have argued that civil society needs to move away from the false stance of ‘political neutrality’ and to actively enter the fray of concerted ‘political action.’ It is my considered opinion that the time has come for us to debunk the image that CSOs are everything ‘non’ i.e. non-partisan; non-political and thus—in the words of Issa Shivji—non-involved. In actively engaging with the fray of political action, we can still be as effective from the sidelines without necessarily having to invade the pitch. Secondly, there is a need for increased dialogue and critical strategizing on the different issues of concern in the political arena and the methods to approach them. We need to engage in more of what can be described as Preventive Advocacy, which essentially means that we should be assessing and forecasting on the direction that politics is likely to follow and taking the necessary measures to prevent the more negative scenarios from evolving. But we should also improve our fire-fighting methods. Every day, there is an issue in the Press that cries out for civil society intervention, but the silences from our side of the ring are deafening. Just over the last couple of days I have seen stories on the following: Police brutality; Army intervention in governance issues; Executive Excess; Parliamentary inaction or negative action; Wrong/undemocratic Judicial decisions, and Domestic Political Violence. It is important to emphasize that in our struggle we must be brave and bold enough to tread where others fear to go. We should not be intimidated about attracting ‘controversy,’ or to have our work discredited or delegitimized. After all, ultimately history will be the judge of whether President Museveni was right to amend the constitution for a 5th term or we (the ‘jiggers’) were wrong to oppose it. But if we are to stop President Museveni from becoming an even worse dictator, the number of jiggers in this country needs to multiply.

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12 The Rights Of Elderly Persons 1 At the age of 90 years, Phoebe Auma’s hands are rough and her hand shake is weak. Her memory is poor and she is partially blind. She cannot stand by herself and walks with the support of a walking stick and a caretaker. She is hard of hearing and one has to shout to be heard. Auma is probably the oldest person in Acero sub-county in Lira where she lives. She is a mother of 12 children, 34 grandchildren and 200 great-grandchildren. 2

Although life-expectancy in Uganda stands at an average of less than 50 years for both sexes, 3 a significant percentage of the population live well beyond this time. This is the group of the aged or the elderly, otherwise known as older persons. 4 However, prospects for the situation of this group of persons receiving serious attention are quite slim. This is because unlike women and the youth, they do not represent a significant vocal (or vital) political constituency. Most are in the evening of their lives; the vast majority (having been peasants or employed in the informal sector) do not qualify for social security. Finally, the groups advocating for their rights are few and far between. Moreover, those groups addressing the issues of elderly persons largely tend to adopt a 1

Excerpted from HURIPEC Working Paper No.21 (November, 2008). ‘The Burden of Living a Full Life in Uganda,’ New Vision, March 14, 2007. 3 See the statistics in the 2007 Human Development Report. Life expectancy at birth for females in 2005 stood at 50.2, while that for males was 49.1. Accessed at:http://hdrstats.undp.org/countries/data_sheets/cty_ds_UGA.html 4 There is some conceptual confusion about exactly who older persons are. According to the Human Rights Education Association, there are three categories of Older persons, namely the older (individuals 65 years or older); older persons and the Oldest Old (individuals above 80 years of age). See Human Rights Education Association, accessed at: http://www.hrea.org/index.php?base_id=162. The United Nations defines ‘older persons’ as those persons who are60 years and above, while the World Health Organization, defines ‘older women’ as those 50 and older. WHO also speaks of ‘ageing women’ in order to emphasize that ageing is a process that “… occurs at very different rates among various individuals and groups.” (See WHO, 2007 at 2).

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2

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welfarist approach to the issue, rather than strategies which centre the issue of human rights at the core of their activities. All in all, there are serious questions of human rights that are implicated in any significant discussion of the situation of older persons. For the more vulnerable groups among the Older persons—particularly older women, older persons with disabilities and older people caught up in humanitarian emergencies, such as armed conflict, internal displacement or natural disasters—the situation is even worse (WHO Press, Geneva, 2008). These constitute the most marginal within the group of the marginalized. The passage of the Equal Opportunities Commission Act (EOCA) into law in 2007 has raised hopes that serious attention will henceforth be given to the rights of marginalized groups including to the rights of older persons. 5 Comprehensive treatment of the situation of these groups is necessary via a mechanism of enforcement that will buttress the constitutional provisions and specific legislation designed to address their plight. 6 At the same time, it is important not to relegate the older persons to a category of helplessness. It is incorrect to imagine that older persons are incapable of fending for themselves, articulating their rights and contributing in a positive fashion to national socioeconomic and political development. In other words, we need to avoid adopting a paternalistic approach. Hence, older persons

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5

It is nevertheless important to point out that the EOCA took a considerable length of time to come into force. Indeed, it was not until the amendment to the Constitution in 2005 that the provision became mandatory. See Art.32.4, 1995 Constitution. Furthermore, the policy on equal opportunities makes scant reference to the situation of older persons (See MGL&SD, 2006). Finally, although an act is now in place, the Commission is yet to be constituted. For further details on the law, see the Equal Opportunities Commission Act, 2007 (hereafter ‘EOCA’). 6 The definition of ‘marginalized persons’ is open-ended, but includes, “…groups marginalized on the basis of gender, age, disability or any other reason created by history, tradition or custom, for the purpose of redressing imbalances which exist against them.” See Art.32.1, 1995 Constitution of the Republic of Uganda. Interestingly, while the definition of “equal opportunities” includes reference to ‘age,’ in the immediately preceding definition of “discrimination,” the term is completely excluded. See Section 1, EOCA. Whether or not the omission was deliberate or an honest omission, it may have significant implications for the conceptual framework within which the issue of the older has been conceptualized.

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should not be treated as if they are without agency and entirely dependent on younger relatives and wards for assistance and mobility. Despite increasing frailty and ill health, most older people are quite capable of adapting to the situation they are confronted with and of dealing with the many adversities of life that they face. Furthermore, they are abundant sources of history, of health and of culture. With respect to the storage, application and transmission of traditional knowledge - an important source of information for medicine, conflict resolution and traditional justice mechanisms older persons are a great, if neglected resource. Given the HIV/AIDS pandemic and the fact that it has in the main targeted the youth and the middle-aged, older persons have played a significant role in ensuring the protection of so-called AIDS orphans. They have done this through providing basic care to the sick, in guaranteeing that the needs of the children are catered for, and in providing a traditional familial context within which those both infected and affected by the pandemic can live proper and fulfilling lives. 7 Indeed, older persons have been described as the ‘unsung heroes’ of the HIV/AIDS pandemic in South Africa— the country with the highest rates of infection in the world. 8 Finally, it is incumbent on every youthful person to realize that they will eventually also age. Thus, while recognizing the serious problems that older persons face, it is important to ensure a comprehensive and empowering approach to the solution of those problems. As much as possible solutions designed to address the situation of the older should give them full control and autonomy over the manner in which their rights and interests are given attention. Against the above background, this chapter provides a critical assessment of the issue of age discrimination in Uganda, against the backdrop of the struggle for equal opportunities and to ensure full respect for the human rights for all persons. While Uganda has paid considerable attention to the situation of marginalized groups, including women, youth, children and persons with disabilities, 7

See Patrick Mathangani, ‘The Older Groaning Under the Burden of AIDS,’ East African Standard, December 28, 2004; accessed at: www.globalaging.org/health/world/2005/burden.htm 8 Report in afrol news, December 1, 2007, accessed at: http://www.afrol.com/articles/14902.

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there is still a gap in addressing the plight of older persons. While each of these groups has a national state-funded and supported council to oversee and ensure that they are adequately protected, older persons are the only group that does not. 9 Indeed, it is only of recent that government has considered the issue of older persons to be of such importance as to merit the design of a policy framework appropriate for them (See Ministry of Gender, Labour & Social Development, 2007). Given that the Equal Opportunities Commission is soon to come into existence, the general objective of this chapter is to provide a critical rights-based analysis of the situation of older persons, commencing with a broad examination of the policy and legal framework that is relevant to this issue. In the first instance the analysis provided here is concerned with exploring the main government policy documents in a bid to give a sense of the general policy framework within which the rights of the Older in Uganda are currently situated. Then it surfaces the key rights-related questions presently faced by older persons in contemporary Uganda, with a particular focus on the vulnerable groups among them. In so doing, the study critiques the largely welfarist approach of the state and non-governmental actors who are involved in the protection of the rights of this category of individuals. Finally, the chapter provides an alternative framework rooted in a rights based approach that sketches out an improved and restructured context for addressing the situation of older persons. In order to achieve the above goals, the chapter is divided into 5 parts. Following this introduction, I move on to make a critical discussion of the conceptual framework within which the issue of older persons should be placed. In the same section, I consider how the issue of aging has been handled in both industrialized and comparable African contexts, in order to provide a comparative backdrop for a more detailed consideration of the case of Uganda. The next section of the chapter looks at the concrete situation in Uganda, beginning with an historical background that explains the evolution of policy discourse on the topic under discussion. It 9

Interview with Justus Kizza Wamala, CEO, the Uganda Reach the Aged Association; August 21, 2008.

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then moves on to consider the manner in which existing policy frameworks ranging from the Poverty Eradication Action Plan (PEAP) to the Millennium Development Goals (MDGs) to the Social Development Sector Strategic Plan (SDIP)—address the situation of older people in general. This part ends with a review of the draft policy chapter on older persons designed by the Ministry of Gender, Labour and Social Development (MGL&SD), a policy which has been under consideration for a considerable period of time. This part of the chapter also takes up the question of Social Protection for older persons. In the final section, I explore a new paradigm in which the rights of older persons should be considered with a particular focus on the rights to protection; participation and (positive) image. I also examine the question of gender and aging and conclude with an assessment of the institutional and non-state mechanisms that are handling the situation of older persons in Uganda. Addressing Age-Based Discrimination

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Towards a Progressive Conceptual Framework Despite changing demographic and social conditions taking place around the world, and specifically in Uganda, the rights of older persons have been given scant attention. Those changing conditions include the fact that improvements in health care and nutrition have led to lower rates of death worldwide, increasing the percentage of older persons as a portion of the overall populations of most countries (Human Rights Education Association, at 1). In Uganda, the numbers of older persons have doubled from a figure of 686,260 in 1991, to nearly 1,200,000 in the 2005/2006 household survey (MGL&SD, supra., at 1). Thus, while older persons constitute a minority, they nevertheless form a significant percentage of the demographic profile in Uganda. Furthermore, the total number of older persons as well as the percentile proportion of the group vis á vis the overall total is also rising. According to one study, Africa “… is expected to experience one of the world’s largest increases in this age group: current projections suggest that by 2025 older person population will be 4.4 times as great as it is now.” (Mulindwa, n.d. at 1). This implies a great need for serious 247

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policy and other forms of intervention designed to address the myriad issues that will arise with respect to this category of individuals. Indeed, it is particularly important when linked to issues of development because of the connection between the situation of older persons, and the poverty profile in the country. Secondly, and specific to the case of Uganda, the breakdown in the mechanisms of the extended family—mainly on account of the HIV/AIDS crisis, rural dislocation and the pressures of contemporary economic demands—have led to older persons being abandoned by their children and grandchildren, and left to their own devices. Indeed, in many instances and largely because of the problem of ‘AIDS-orphans,’ older people are increasingly being forced to take care of their grandchildren, rather than the reverse as was hitherto the case. 10 It is therefore clear that while a new kind of African family is emerging, the mechanisms in place for ensuring that this structure is fully accommodated within existing socioeconomic and other frameworks of organization are still lacking. Against the preceding background, the key issue then becomes, what kind of conceptual framework should the rights of older persons be placed in? From the outset, two contending visions present themselves. One is based on a market, or laissez faire orientation in which pride of place is given to non-state and market forces to lay out the context for the realization of economic, social and cultural rights in general. Under this framework—derived from a long lineage retraceable to the structural adjustment programs and the Washington Consensus of the 1980s and 1990s, followed by the fixation with the policies of privatization and liberalization in the present time—an emphasis is placed on individual agency, with a minimal role for public actors. State intervention is frowned upon as misplaced and arcane. Economic, social and cultural rights are regarded as ‘benefits’ and not entitlements. Social groups— including older persons—are left largely to their own devices. A second vision takes economic, social and cultural rights as enforceable entitlements and emphasizes state obligations as both binding and actionable. In other words, it becomes necessary to 10

According to one estimate, close to one out of five children in Uganda live with the older.

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ensure that all categories of persons—especially the most vulnerable such as the older persons—are protected against discrimination and abuse; that they have equal access to social services and facilities, and that they live their lives in dignity and security. The globalization of the market and the impact of neo-liberal economic policies, coupled with the demise of the welfare model, make a human rights approach to the issue of aging imperative (Townsend, 2006 at 162). The Human Rights Education Association (HREA) argues that because there is a prevalent belief that older persons are “…worthless in today’s fast-paced, globalized and increasingly industrialized world,” there is an increased urgency to address the rights and roles of older persons in the world (HREA). In particular we need to ask ourselves a number of questions: to what extent are the needs and concerns of older persons integrated into the state’s overall economic and social programs? What mechanisms of measurement are in place to ensure that the various economic, social and cultural rights—the rights to health, to adequate shelter and the right to food—are being progressively realized? Have we put in place appropriate measures to ensure that older people are not discriminated against, that they live in dignity and respect and that they are not subjected to abuse and marginalization? Finally, in the event that there is a manifest failure to ensure that the rights of older persons are fully respected, do we have in place systems in order to ensure that there is appropriate accountability? In light of growing concerns around the above and other related questions, a number of international organizations and institutions have pushed for charters and declarations that comprehensively cover the rights of older persons. 11 Nineteen Ninety-one saw the adoption of the United Nations Principles for Older Persons. 12 That instrument outlines five main principles which it urges governments to incorporate into their national programs with respect to the situation of older persons. These are independence, participation, care, self-fulfilment and dignity. ILO Convention 102

11

See, for example the Charter of the Rights and Freedoms of the Older and Dependent Person, accessed at: http://www.chu-montpellier.fr/gb/ch-age.html 12 General Assembly Resolution 46/91.

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of June 2001 sets out the minimum standards of social security benefits for old age. 13 The most important international document is the Madrid International Plan of Action on Ageing (MIPAA), adopted by the United Nations in 2002. 14 The Madrid Plan comprises of two parts, i.e. a non-binding document (Political Declaration) and the Plan of Action. In combination the two components of the MIPAA both celebrate the rise in life expectancy, and caution against the implications this development has in terms of the demographic challenges presented, particularly in developing countries. It lays out a fairly comprehensive arena of action on the part of states, extending from health, to work, to inter-generational solidarity. The Plan gives particular attention to issues of gender, social and economic disadvantage, and situations of emergency. It argues for the extension of the right to development to older people, halving old-age poverty by 2025, and ending age-based discrimination. The MIPAA is a progressive and comprehensive framework within which the rights of older persons can be properly situated. Taken together, the above referenced international instruments—together with the traditional civil and political and economic, social and cultural rights covenants—provide a firm conceptual framework within which the rights of older persons can be grounded. However, the situation in the domestic context is most important. In other words, to what extent have the principles in the MIPAA and Convention 102 been translated into the local context? 15 What policy frameworks, legislative enactments, and institutional mechanisms have been created in order to give expression to the broad objectives of these international instruments? Drawing from the concerns outlined above, it is clear that not enough attention has been paid to the rights of older persons in Uganda, with particular respect to the human rights-related dimensions of the matter. Central to the conceptualization of this study is the rights-based approach, which seeks to foreground the 13

See also, ‘Older Are Not Well Cared For,’ New Vision, November 8, 2007. Accessed at: http://www.un.org/esa/socdev/ageing/madrid_intplan. UN Doc. A/CONF.197/9. 15 Uganda has not yet ratified this Convention. 14

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issue of human rights in the analysis of the key areas of concern, i.e. protection, participation and image (HREA, at 2). Doing so also requires that we acknowledge that the problems encountered by older persons are as deep as the form of discrimination against women and other marginalized social groups. In other words, we need to confront the issue of institutionalized ageism as the central problem affecting the realization of the rights of this category of individuals. The justification for the study also lies in providing a different perspective—distinct from both the statist and the welfarist ones that are dominant—to a subject that is gaining in relevance with each passing day. Before considering the case of Uganda in more detail, it would be helpful to briefly examine the situation elsewhere around the world for a comparison. The comparison will provide a useful backdrop to the more detailed examination of the situation in Uganda, and will look at the situation in both developed (industrialized countries) and at those on the African continent.

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Ageing and Human Rights in Developed Economies The issue of aging has been of considerable concern in other societies—particularly developed ones—for a long time (Hennessy, 1995). Unsurprisingly, the vast majority of articles in the journal Aging & Society, the most prominent periodical on the subject, have been devoted to issues of the developed world. 16 Increasingly, later issues have carried pieces on more diverse countries, including Brazil, Singapore, China and India. The major focus of study in the fairly abundant literature on older persons in these contexts has been health, social security (especially pensions, and similar schemes) and institutional protection (old person’s homes and welfare). These concerns have come about mainly because of the rapid changes introduced by industrialization, improving livelihoods and the demographic shifts in population profiles. In countries like Japan and Italy, there have been negative rates of population growth, coupled with aging populations, all of which have led to

16

Published in the United Kingdom by Cambridge University Press since

1980.

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serious questions regarding productivity, social security support and the provision of the necessary services entailed by these processes. Some of the studies reviewed for this chapter adopt an apocalyptic posture on the issue of aging. For example, Peter Peterson has predicted dire results from the “…graying of the developed world’s population,” arguing that: Unlike with global warming, there can be little doubt over whether or when global aging will manifest itself. And unlike other challenges, even the struggle to preserve and strengthen unsteady new democracies, the costs of global aging will be far beyond the means of even the world’s wealthiest nations—unless retirement benefit systems are radically reformed. Failure to do so, to prepare early and boldly enough, will spark economic crises that will dwarf the recent meltdowns in Asia and Russia (Peterson, 1999). Peterson’s Malthusian take on the aging ‘explosion’ is not shared across the board, although quite clearly there are serious implications for many developed countries, such as Japan, Italy and Denmark which are experiencing a growth in the population of older persons. Correspondingly, the population of youth in these countries is generally reducing on account of population control policies, improved health services and a decrease in the retirement age. All of these developments have placed a significant strain on social security frameworks. Against this background, the rights perspective has only of recent found its way into the discussion about aging in developed countries. Following an outcry about the state of nursing homes which house a considerable percentage of older persons in the United States, Congress pushed through a Nursing Home Quality Reform Act in 1988, which expanded the authority of the Department of Health & Human Services and of states to discipline nursing homes. The law made it clear that such homes should not be equated to a loss of autonomy. It also contained a patient’s bill of rights which provided for the rights to privacy and the ability to voice grievances and to have them promptly addressed, as well as guaranteeing a right to freedom from physical and mental abuse. 17 17

See ‘Rights for the Older, Long Overdue,’ (editorial) New York Times, January 19, 1988, accessed at: http://query.nytimes.com/gst/fullpage.html

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These concerns reflect on the fact that a significant percentage of older people in the United States are housed in nursing homes. In the United Kingdom, it was not until 2007 that a body was established which for the first time will be “…responsible for promoting age equality and tackling age discrimination and ageist attitudes….” (Help the Aged, (2008). In general, this reflects the rather slow progress make in the UK towards pursuing rights-based approaches to issues, reflected in part by the Parliamentary system, the absence of a written constitution and (until 1998), an enforceable bill of rights. The above examples provide some indication of the need for broad and comprehensive strategies to address the protection and promotion of the rights of older persons in our own context. Thus, for example, while the idea of nursing and old age homes for older persons has not received wide-spread acceptance or use in Uganda, there is no doubt given the demographic trends which we are witnessing that the need to draw from the experience of developed countries cannot be gainsaid. First, of course, is the need to actively discourage the institutionalization of older persons, given that the almost uniform experience around the world has been largely negative. But second is to recognize that where such institutionalization does occur, keen attention should be paid to making sure that the rights of older persons are fully secured. This is not to say that such institutions do not already exist in Uganda. 18 Rather they are few, primarily private and with only a handful of inmates. Needless to say, it is important to ensure that standards of non-abuse and personal safety and security are put in place in order to ensure that human rights questions are given adequate attention before the situation reaches crisis point. Policy makers and activists need to be asking themselves a number of questions: who run the homes for older persons? What mechanisms are in place to ensure that they do not degenerate into sites of abuse and further dispossession? How involved are the community local government, welfare institutions and social activists in their operation? 18

The best known are the Mapeera Bakateyamba Home in Nalukolongo (western Kampala), and St. Pauls in Mbarara.

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The potential for an institutional mechanism such as the recently-established Equal Opportunities Commission (EOC) to focus on issue of the older persons cannot be over-emphasized. While the British experience is also still in its formative stages with little to offer, the United States Equal Opportunities Commission has very well-developed standards and systems for addressing the situation of minority and vulnerable groups, particularly with respect to employment, education and other social services. Special attention has been given to the situation of the elderly. Given that the Ugandan Commission is still at an earlier stage of development, with its commissioners and personnel yet to be appointed, there is considerable room for the design of appropriate mechanisms to address the situation of older persons within the specific context of Uganda. It is especially important to ensure that the EOC is fully sensitized from the outset, to the concerns and interests of Older persons. In other words, issues relating to the elderly should not be regarded as marginal to the goal of ensuring equal opportunity for all.

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Surveying the African Context Despite a generally positive perception of the elderly in Africa, and a long-standing tradition of older persons enjoying both prestige and respect, there is a discernible growth of different kinds of attitudes emerging around the continent. The Committee on Population conducted a 2006 study on aging in the continent (Cohen & Menken, 2006). It decried the manner in which older persons are no longer viewed in the traditional positive light, and offered several recommendations on future areas for further research on the topic. In parts of both Zambia and Tanzania elderly persons have been ostracized and even condemned as ‘witches.’ 19 Moreover, two distinct household types seem to be emerging at considerable speed on the African landscape, i.e. the (single, usually female) older persons living with children, and older-headed households. To crown it all, the policy and legal framework relating to older persons around the continent is quite mixed. Countries like 19

Potipher Tembo, ‘Suspected Witches Find Refuge in Kaleni Hills,’ The Times of Zambia, July 7, 2005, accessed at: www.globalaging.org/olderrights/world/2005/witches.htm

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Ghana and Kenya do not have a solid framework for addressing the situation of older persons. There is a good deal of useful statistical information on adult health and aging in Africa, which is regarded as one of the most important issues facing this category of individuals. 20 While noting that the absolute numbers of older persons in Africa will increase dramatically by the year 2020, a majority of these will be women (Udvardy & Cattell, 2005). This means that there is a need for policy makers not only to take on board the issue of gender which has over the last several years become a major focus of reform and planning but also to take into account the question of age. In this respect, a particular issue of concern around Africa is the fact that older women invariably take care of those who are ill with HIV/AIDS and then of their orphaned children. This places them at serious risk of infection, stigmatization for doing so, and abuse. Health workers are also notorious for their negative attitudes to older persons (Help Age International, 2001). Ultimately, this implies a problem in terms of the involvement of older women in program planning and in the training of healthcare workers. In response to this issue, Zimbabwe has incorporated older women in midwifery, combining traditional and modern medicine (Hampson, n.d.). However, it is not only with respect to healthcare that older persons have a role to play. Many older people remain active in farming, business and trade, while also performing basic domestic chores. Furthermore, older people have played a notable role as mediators of conflicts and disputes at various levels. This idea has been projected to the continental level with the formation of the Eminent Persons Panel by the African Union. Retired prominent African public personalities have often been called upon to act as mediators in a variety of the armed conflicts that have wracked the continent. Obviously, the issue of aging is implicated in the many discussions on pension and social security reform (Rutaagi, 2008). An emerging issue of concern is the question of universal pensions 20

See WHO http://www.who.int/healthinfo/survey/ageing/en/print.html

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and cash transfers. Like Uganda, most countries in Africa have large rural populations, and small sectors of formal employment. This means that the majority of the population are not covered by any kind of retirement scheme and are consequently left to their own devices. In some countries around the continent, universal pensions have been introduced even where the levels of development are lower than the situation in Uganda. Of all African countries, South Africa has perhaps the most developed framework for addressing the rights of older persons. South Africa recognizes that the past discriminatory practices of apartheid largely excluded the majority black population from formal employment (and thus social security and pension entitlements). To deal with this a non-contributory old age grant is paid to assist vulnerable older persons who have no or little income. Thus, over 2,000,000 individuals receive a monthly grant of SA Rand 820 (equivalent of US$135) (Wachipa, 2006, at 7). While the amount is not very significant, it is recognized as forming part of the constitutional right of access to social assistance. The rights of older persons in South Africa have been fortified by the passage of legislation. Strongly influenced by the Madrid Political Declaration and Plan of Action, the South African parliament adopted the Older Persons Bill in late 2006. The Act aims, inter alia, to maintain and protect the status, well-being, safety and security of older persons, and to ensure the recognition of their rights. 21 Given that institutional care was of some prominence in South Africa, it also sought to shift the emphasis to communitybased care, and to ensure that an older person remains in his or her home within the community for as long as is possible. Taken as a whole, the Act is an important example of a serious attempt to address the situation of aging in contemporary Africa. Aging and Older Persons Rights in Uganda Before 1995, it is very difficult to find any reference to the situation of older persons, whether in policy documents or within the constitutional and legal framework in existence from 21

See Older Persons Act, No.13 of 2006 (Republic of South Africa, Government Gazette, Vol.497, 2 November, 2006 No.29346).

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independence onwards. That omission is explicable by reference to several factors. In the first instance, the systems of family, clan and community oversight were sufficiently strong to ensure appropriate oversight and care for older persons. Secondly, Gerontology the study of the social, psychological and biological aspects of ageing was not a major field of study or intellectual concern. Indeed, it is still a highly underdeveloped field in Uganda, despite the emergence of the discipline in a serious manner in other parts of the world. 22 Finally, given the wide-scale social and political upheavals that plagued the country during the formative years of independence, the situation of older persons was not regarded as an issue requiring serious attention. What the above meant was that older persons (unlike women, youthful persons and children) not only lacked a significant presence and profile within the wider scheme of the country’s population demographics, they also did not have a solid grounding in intellectual life and discourse in the country. Consequently, it is not of much surprise that neither the policy nor the legal framework in Uganda adequately addressed the issue of age-based discrimination and the rights of older people. The possible exception to this general posture is the issue of social security, about which some commentary will be made subsequently.

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The Legal and Policy Framework Against the above background, what is the legal and policy framework within which the rights of older persons are situated and how effective is that framework in promoting and protecting their rights? Generally speaking, the legal and policy framework relating to the situation of older people in Uganda can be described as mixed. The 1995 Constitution made some attempt at addressing the issue of older persons through paragraph VII of the National Objectives and Directive Principles of State Policy (NODPSP), which explicitly states, “The State shall make reasonable provision for the welfare and maintenance of older persons.” Article 32 which refers to the issue of affirmative action in favour of marginalized

22

See Wikipedia, http://en.wikipedia.org/wiki/Gerontology.

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groups includes the term ‘age’ among those groups to which special attention should be paid. Article 180.2 (c) stipulates that the affirmative action principles in favour of marginalized groups in Article 32, shall be applied to the system of local government. Consequently, Section 10 of the Local Governments Act, provides for the participation of older persons in decision making processes at all levels. 23 The NRM government has also been more proactive than its predecessors in giving the issue of the rights of the older persons a more prominent profile, commencing with a sub-Cabinet position for older persons, as well as the establishment of a department within the Ministry of Gender. Uganda also played host to the first conference of regional experts of the-then Organization for African Unity (OAU) to draw up an action plan and regional policy on aging. 24 Some attention to the issue of older persons can be found in the Poverty Eradication Action Plan (PEAP), with their inclusion among the vulnerable groups likely to be poor and requiring special attention in terms of poverty eradication interventions (GoU, PEAP at 20 and 29). The PEAP also takes note of the greater burden imposed on older persons on account of the HIV/AIDS pandemic (Id., at 151). Older persons are identified as a potential target group for social protection, while also underscoring their role in economic growth (Id., at 177). Needless to say, older persons are generally grouped with other so-called vulnerable groups, without a specific focus on their distinct positioning and on their special needs. Under the main sectoral program instrument the Social Development Sector Strategic Investment Plan (the SDIP) (Republic of Uganda, n.d.) older persons are considered among that category of individuals who lack security and are more susceptible to risk and/or are exploited with no means of support (Id., at v). The SDIP also points out that households headed by older persons are more likely to be poor, and consequently, the interventions in the sector need to take special note of this situation (Id., at 4-5). The more recent Peace, Recovery and Development Plan for Northern 23

Cap. 243, 2000 Laws of Uganda. Elizabeth Kameo, ‘Museveni Hails Senior Citizens,’ New Vision, November 29, 2000 at 6. 24

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Uganda (PRDP), outlines the special needs of older persons in terms of being given assistance to move to new locations (GoU, PRDP, at 64). They are also targeted in the livelihood support programme, which is a central platform of the recovery process in the post-conflict situation (Id., at 129-131). The absence of significant attention to the situation of older persons is reflected in the most recent progress report on Uganda’s performance on the Millennium Development Goals (MDGs). Since their adoption in 2002 MDGs have become an important policy framework within which the government’s social interventions are situated. For example, the section concerned with the eradication of extreme poverty and hunger does not draw attention to the specific plight of older persons (UNDP, 2007, at 11-14). The section on promoting gender equality and women empowerment specifically refers to the ‘burden of care’ which is disproportionately borne by women, but fails to note the role of older persons (both women and men) in providing that care (Id., at 30-31). In a nutshell, while progress is generally being noted on the steps being made towards achievement of the MDGs, older persons do not feature prominently in the advances which have been touted. A similar absence of data on older persons can be discerned from the most recent Human Development Report the most important indicator of progress made with respect to social and economic welfare. 25 However, the most important document which provides an indication of the state perspective on the issue of older persons is the (draft) National Policy for Older Persons (GoU, op.cit., at 1-2.). Sub-titled “Ageing with Security and Dignity,” the draft is designed to ensure that for the first time the rights of older persons find a place within the overall policy framework of the government. While there are obviously many issues which affect the situation of older persons, the draft national policy has prioritized the questions of poverty, social security, food security and nutrition, and health.

25

See UNDP, 2007/2008, accessed http://hdrstats.undp.org/countries/data_sheets/cty_ds_UGA.html.

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The draft policy provides a useful critique of the limitations of existing policy in particular relation to social security, healthcare, gender inequality, conflicts and emergencies and shelter, to mention a handful of the areas of attention. Overall, the policy promises to provide a framework for: (i) Enhancing the recognition of the roles, contributions and potentials of older persons in the development process; (ii) Strengthening the informal and formal community based support systems and actions for older persons dignity; (iii) Promoting actions that encourage older persons to pass knowledge to the younger generation; (iv) Guiding, coordinating and harmonizing interventions for older persons by stakeholders, and (v) Promoting research on issues of older persons (Id., at 8). Among the guiding principles of the draft Policy are the promotion of the Rights Based Approach, Participation and Respect for Older Persons (Id. at 9). In terms of analysis, scale and strategy, the draft policy is a fairly comprehensive and wellconceptualized document. It prioritizes the issue of economic empowerment (particularly through savings, SACCOs and market participation), the strengthening of formal and community support institutions and enhancing access to social services (Id., at 10-13). Although as at the time of writing this study the draft had not yet been adopted by Cabinet, 26 all in all, it represents an important first step taken in the direction of ensuring that the issue of the rights of older persons is given higher priority within the policy framework of the government. In other words, it ensures that the issue of the rights of older persons is mainstreamed both in the structures of conception as well as in the plans of action of the state. At the same time, there are a number of limitations which are immediately apparent in the draft. In the first instance, it reflects a general bias towards economic, social and cultural rights, in contrast to civil and political rights. The concentration on this category of 26

Interview with Mr. Herbert Baryayebwa, Commissioner, Disability & Older Persons, Ministry of Gender, Labour and Social Development, August 19, 2008.

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rights is certainly welcome given the general tendency not to regard such rights as enforceable. Furthermore, there is no doubt that for older persons, economic, social and cultural rights are particularly important. At the same time it is important to point out that there are serious concerns relating to older persons civil and political rights that also need to be surfaced within a policy framework. In other words, there is a need for a holistic approach which emphasizes the interconnectedness of both categories of rights. Otherwise, the solutions arrived at will be lop-sided. Secondly, the draft states that it will promote “… rights based programming by seeking to realize the rights of older persons who are often vulnerable.” (Id., at 9). However, the rights based approach (RBA) is still a concept that has not been fully internalized within the various organs and institutions of the state. Moreover, as is already clear from the preceding analysis, the issues affecting older persons are multi-sectoral extending from the health sector, to education, to those government departments concerned with infrastructure and physical services. This leaves the question begging of what actually needs to be done in order to improve the rights based approach across all public sectors in order to effectively address the plight of older persons. To be successful, the policy on older persons needs to be situated within a context which addresses the more fundamental issues of human rights protection, while also focusing on the question of institutionalized ageism. One way in which the government has begun to directly implement its overall new thinking on the issue of the rights of older persons is through the framework of social protection, an issue that is taken up in the following section of the study.

Social Protection as a New Model of Empowerment for Older Persons: Imposing Assistance? Recent global attention has been drawn to the issue of designing appropriate frameworks for ensuring that issues of poverty and marginalization are effectively addressed by both national governments as well as by international agencies, alongside the development arms of industrialized countries, such as the Department for International Development (DFID) of the British 261

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government. Former British Premier Tony Blair’s Commission for Africa 27 as well as many of the discussions in G-8 circles drew attention to the issue of improving aid and addressing the persistent poverty and disempowerment that afflicts the marginal populations in underdeveloped countries. Article 4 of the Additional Protocol to the European Social Charter provides that States Parties must ensure the effective exercise of the right of older persons to social protection. 28 Social protection describes all initiatives whether public or private that provide income or consumption transfers to the poor, protect the vulnerable against livelihood risks, and enhance the social status and rights of the excluded and the marginalized. Consequently the focus is not only on older persons, although for the purposes of this study, there is no doubt about the importance of social protection to this group of people (Sebates-Wheeler & Devereux, 2008). A wide panoply of measures is necessitated in order to ensure that social protection becomes institutionalized, ranging from legislation on economic, social and cultural rights, to minimum wage laws, to improving the regime of worker’s rights. Most prominent among the measures of social protection adopted in Africa has been the issue of cash transfers (Kakwani & Subbarao, 2005). African governments and regional institutions (like the African Union - AU) have pointed to the importance of social protection for their older and younger vulnerable citizens and the potential role of cash transfers within an integrated social protection framework (Beales, 2005). General experience has shown that there is no doubt that regular cash transfers offer some potential to address the plight of older people. The most well-known of the schemes on the African continent is that funded by the German GTZ in Kalomo, Zambia, but schemes also exist in Namibia, Lesotho and Mozambique. In the case of Uganda, recent studies have begun to review the feasibility of a cash transfer scheme for older persons. A cash transfer scheme is being piloted in the Ministry of Gender in 6 districts (GoU, PRDP, at 7). One study has already concluded that a 27 28

See, “Our Common Interest,” accessed at: www.commissionforafrica.org. http://conventions.coe.int/treaty/ed/Treaties/Html/128.htm.

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“… non-contributory pension would effectively reduce poverty among the elder population….” 29 According to the Cabinet memorandum of the Minister on the issue, the lack of cash among the chronically poor categories of the population prevents mitigation of the drivers of chronic poverty: A household that has no cash will neither be able to pay for transport fare to a health facility, nor buy scholastic materials for their children in school. Social cash transfers therefore provide the alternative intervention for such households to enhance their access to education, health care and other social services (Minister of Gender, Labour & Social Development, No.2 n.d., at 2). 30 Despite what may be regarded as the laudable motives behind the moves towards social protection (and in particular concerning the cash transfer scheme), a number of questions arise with respect to their long-run sustainability, and also about the extent to which they fundamentally address the rights-based issues that we are concerned with in this study. The first is of course the method of intervention. While Social Protection as a concept is fairly wide, the main focus of the proposed interventions is cash transfers. This leads to the second question, the issue of financing. This must be coupled with the question of targeting, and the differences in the manner in which social protection is defined (particularly by donors). Some focus on extreme vulnerability while others state the need should be the centring of people in development. Finally, as with any scheme involving money disbursements and discretionary targeting of groups and individuals in society, there are also serious dangers of graft and corruption. Ultimately, there is a danger that these measures could in fact undermine the very element that they are supposed to promote, i.e. the autonomy and empowerment of older persons. This is the case for several reasons. The first is that the source of the funding is largely external (DFID being the most prominent actor in this regard) and in this respect the proposed scheme resembles the MDG-village idea developed by Columbia University professor 29

Uganda Cash Transfer Pilot Scheme: The Non-contributory old age pension (unpublished paper on file with the author). 30 Minister of Gender, Labour & Social Development, ‘Implementing a Cash Transfer Programme for Uganda.’ [Cabinet Memorandum].

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Jeffrey Sachs. 31 Indeed the current model of cash transfers have been equated to ‘globalized charity’ perpetuating aid dependency, in the absence of an obvious exit strategy. In other words, absent external support, what is the potential for such schemes to be sustainable? This calls into question the very basis on which the Social Protection schemes in Africa have been designed. In the first instance, have the intended beneficiaries been actively involved in the design and implementation of the scheme, or are they viewed merely as passive recipients of the largess of the donor or the government. If there has been consultation and involvement, what shape has it assumed: who was consulted and how was the process executed? In order to be comprehensive, social protection needs to go well beyond safety nets and emergency relief and address ‘social risk’ and ‘social exclusion.’ This entails a much more comprehensive package of social reform than has hitherto been pursued in Uganda to date. Invariably, this means a departure from the dominant laissez faire approach which emphasizes the place of foreign investment and international capital, and minimizes the role of creating supportive infrastructural frameworks in which economic, social and cultural rights can be comprehensively realized. Take for example, the issue of worker’s rights, with particular attention to the question of the minimum wage. The current government has generally been hostile to the rights and interests of workers, whether in formal employment or not (Barya, 2006). The minimum wage has remained stagnant since 1984. Employees are under-paid, badly treated and have very weak bargaining power. There is consequently a need for more awareness campaigns, legislative change to protect the rights of workers, those involved in informal employment and other minorities. Finally, there is a need for the integration of such social protection into a wider package of interventions.

31

UNDP has established model MDG villages in which an effort is made to provide assistance to the improvement of health, education and shelter, with significant transformations taking place. Questions nevertheless remain how sustainable such efforts in the absence of external funding.

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The Social Protection model also has a number of precedents specific to the Ugandan experience, not all of which have been positive. The first is the Entandikwa (‘Kick-start’) scheme, which has since been replaced by the Bonna Bagaggawale (‘Prosperity-for-All’) program that is ostensibly at the heart of the President’s continuing country wide tours. Both were political programs in inception and execution. Indeed, on a recent tour of the East President Museveni has himself stated that the population at large thought that Entandikwa was a political reward, and consequently rates of repayment were very low. Despite assertions to the contrary, Bonna Bagaggawale appears to be suffering from similar problems. 32 Designing a New Rights Paradigm for Older Persons

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The preceding analysis allows us to delve deeper into an examination of the human rights issues that affect older persons. Central to such an exploration is the idea—enshrined in the UN Principles for Older Persons that there is a need for fair, nondiscriminatory treatment coupled with full respect for the dignity, beliefs, needs and the privacy of older persons. It also underscores the fact that they have the right to make decisions about their own care and about the quality of their lives. In the course of this research it was evident that even though Uganda has largely avoided the institutionalization of old people preferring to ensure that they live in their own homes there are still numerous problems of a human rights nature that they are confronted with. The analysis which follows groups the rights issues under three heads, viz., Protection, Participation and Image.

Protection, Participation and Image It is quite possible to take the whole range of human rights— civil and political and economic, social and cultural and assess these in relation to the situation of older persons. Not only is that not feasible within a study of this kind, but it would also be unwieldy and unwarranted. In reviewing the key human rights issues of concern to Uganda’s older population, this research applied the 32

See Chris Ocowun, ‘SACCO Saboteurs Warned,’ New Vision, August 25, 2008, at 5.

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protection, participation and image conceptualization referred to earlier. Grouped together they traverse all categories of rights economic, social and cultural, as well as rights of a civil and political nature. Protection refers to securing the physical, psychological and emotional safety of older persons with regard to their unique vulnerability to abuse and ill treatment. Aside from the issue of social security, the major concern of older persons in Uganda with respect to protection has been with issues of health (specifically HIV/AIDS), poverty, and nutritional status. Older people in general suffer from impaired mobility caused by chiropractic problems of the bones (legs, back and upper limbs). They are also afflicted by hypertension, cancer, cataracts, diabetes, dementia, Parkinsonism and other motor- and mental-related ailments. Inadequate and poor feeding is also a problem. Kikafunda and Lukwago examined the link between nutritional status and functional ability among individuals aged between 60 and 90 years and concluded that it is important to ensure that nutritional standards are upheld (Kikafunda & Lukwago, 2003, at 59-66). Flowing from the above, there are also questions relating to the treatment of older persons. Despite the claim that older persons are held in high esteem by the general public, there have been reported instances of their harassment, torture and even of their extrajudicial execution. A recent New Vision article details how the older people of Kavumba village in Wakiso district have been the subject of a systematic process of elimination. 33 In public institutions such as hospitals and health centres, older persons are also subject to abuse, mistreatment and neglect. These practices range from the absence of attention to diseases which affect them, to the failure to adequately train healthcare personnel about the needs and sensitivities of older persons. While Psychiatric services in Uganda are generally rudimentary, they are even more so for older persons. The list of essential drugs does not include any which are necessary for the treatment of the ailments of the aged. To crown it all, no exemptions are made for 33

Joshua Kato, ‘In Kavumba Village, the Old Have Become an Endangered Species,’ New Vision, August 27, 2008 at 28.

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older persons with respect to the payment for medical services or for the procurement of the drugs they need to address their ailments. The latter are particularly expensive in the Ugandan context. Moreover, while drugs for the aged may be available in urban centres, the same cannot be said to be the case in the rural health centres. It is also apparent that older persons are not a uniform or homogenous category by any definition. There are older persons with disabilities, widowed older men and women looking after orphans; there are urban house renting older people; older persons in remote rural areas, and older persons who live alone (Mugambe, 2003, at 1-2). This implies that the protection needs of each of these categories is different, and that the strategies to address their plight need to be multifarious. For example, one of the issues raised in the research was the question of access to physical infrastructures for older persons, whether we are speaking about roads and buildings, or we are concerned with toilets or latrines and bathing facilities. Standing a close second to the issue of healthcare are questions related to income and poverty levels. Najjumba-Mulindwa conducted an extensive study on the perceptions, experiences and policy issues that influence chronic poverty among older persons. Several policy reports also address the issue, either in relation to Uganda’s response to international platforms such as the Madrid International Plan of Action on Aging (Republic of Uganda, n.d), or in exemplifying the government’s policy position on the issue (Mukasa, 2003). In general, the older persons usually do not benefit from programs like Entandikwa, and the issue is whether Bonna Bagaggawale will be of benefit to them. The problem is compounded by the resistance of financial institutions to lend money to older persons. For example, the housing mortgage bodies generally place a cap of 65 years of age on access to their facilities. Both from the perspective of the individual, as well as with respect to the family and the community at large, the issue of health care looms prominently in Older persons views about their wellbeing and protection. A number of questions arise as a consequence: to what extent has the government met its obligations in order to ensure that older persons are able to enjoy the highest attainable standard of health? How has the state addressed the 267

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numerous issues of protection—ranging from the abuse of older persons, to the lack of a firm institutional mechanism that addresses their rights—that arise in a discussion of the issue. What have communities themselves done in order to ensure the creation of an environment which is friendly to the needs of older persons? Participation refers to the need to establish a greater and more active role for older persons in society. In its most broad categorization participation refers in the first instance to voice, and to the ability to be able to articulate the needs and concerns which are most pressing. Voice is a central issue in ensuring that economic and social rights are realized. Without effective voice—as exemplified by the struggles of other marginalized groups such as women and persons with disabilities—the plight of the older persons will not receive similar attention. However, there are clear limitations on the extent to which older people are heard (or not) in contemporary Ugandan society. There is no national council(s) for older persons, in contrast to those which exist for the youth, women, people with disabilities and for children. The provision for the representation of older persons at the local council level has been plagued by problems to the extent that in the last election many of these seats were not filled. Of all the groups and associations of civil society that operate in Uganda, those of older persons receive the least support. Very little use is made of older persons such as retirees, with pressure coming from below by youthful persons eager to fill the positions. Image refers to the need to define a more positive, less degrading and discriminatory idea of who older persons are and what they are capable of doing. The draft national policy for older persons lays out the rationale for addressing this issue, recognizing “… that as people reach old age, they should enjoy dignified life and active participation in economic, social, cultural and political life in their communities.” (Forward to MGL&SD, 2007, op.cit., at i). The policy reiterates government’s determination to enhance the recognition of the contribution of older persons and to eliminate all forms of neglect, abuse and violence. On the question of image, there is still a long way to go. For example, there is a prevailing assumption that the right to education for older people is a luxury. Moses Ali’s quest for a law degree 268

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when he was already in his late 60s was a puzzle to many: ‘he has enough money,’ or ‘why is he wasting his time?’ or ‘what will he use the degree for?’ were among the many commentaries one heard. For Ali, the quest was related to any number of ambitions that a younger person would have; he simply had always wanted to be a lawyer. The New Vision recently reported about how a 57 year old painter who had rejoined primary school was the subjected of teasing. 34 There are also many assumptions about older person’s sexuality. In some respects older persons are considered to be ‘beyond’ sexual activity. Existing programs on HIV/AIDS largely target adolescents, the youth and the middle-aged, ignoring the fact that many older people remain sexually active while at the same time they are not necessarily well-informed about the dangers of unprotected sex. Without a doubt, there is a need to alter these perceptions of the needs and interests of older people. Issues such as menopause, impotence and other issues that may affect older people are still not given much attention. Finally, one of the most serious image issues concerning the older people is ensuring that they remain active and engaged. The issue of gender further complicates the situation.

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Gender and Ageing Udvardy and Cattell argue that there is little knowledge about the informal and formal roles of older women in contemporary African society (op.cit.). Needless to say, such knowledge is crucial in order to comprehend issues such as power and personhood, and their impact on the extent to which the rights of older women are secured. There is no doubt that there are significant issues that arise with respect to the question of gender and ageing (Aboderin, 2006). In this respect, it is important to focus on both the issue of men and women and on their social and economic relationships as they grow older. Ageing men have health concerns based on gender. The WHO has for example, pointed out that the gender-related concept

34

Nicholas Kajoba, ‘57-year-old painter goes back to school,’ New Vision, August 19, 2008.

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of ‘masculinity’ can exacerbate men’s risk-taking and health problems and could also limit men’s access to health care. The National Policy points out the truism that age affects women and men differently. However, aging “… impacts more on older women than men due to the different roles.” (op. cit., at 3). Cultural practices on property inheritance and ownership affects the livelihoods of older women more adversely than older men. 35 As a basic matter, the general household and community division of labour between the two genders leads to a distinct manner in which their livelihoods are invested. One study has pointed out that, women:

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… spend most of their income on household necessities and education of grandchildren; 9 percent are caring for sick young adults living in the household; 22 percent are staying with grandchildren whose own parents are either dead, or away in the cities on a longterm basis; 20 percent take care of children six years or younger, and 46 percent take care of children between the ages of six and 18. 36

The above quotation presupposes that older women actually earn a livelihood. Most of them don’t. To the extent that they do, it is an extremely precarious one. In the first instance, the majority of formal employees are men. Leaving aside the well-known problems in terms of timely payments, existing pension schemes—the NSSF and the Public Service—are heavily gendered. In other words, employment-based social security not only focuses on a very small percentage of the total population, but it also effectively excludes the majority of women from its ambit. There is an additional issue that arises for older women. While it may be true that women predominate in the informal sector, this does not necessarily imply that they have more control over their resources. It is also clear that a good majority of women are engaged in unpaid labour, catering to the household and the community, without monetary reward or even recognition. Again, women also predominate in the subsistence sector, but the benefits of their labour are often siphoned off by the men. What this means 35

Baryayebwa interview. See, Report in afrol news, December http://www.afrol.com/articles/14902 36

1,

2007,

accessed

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at:

is that when aging sets in, despite having engaged in several incomegenerating activities while still young, when they age, the problems set in: Older women generally suffer most from chronic poverty and lack of resources. They are often in need of care themselves, but face, sometimes unaided, the costs and emotional stress of nursing terminally ill relatives, paying for burials and the financial and practical difficulties of bringing up orphans—including payment of school fees (Fouad, 2004).

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What the above means is that there is very little systematic focus on the situation of older women. This situation is compounded by the lack of attention to the issue by mainstream women’s rights groups as well as by women representatives in parliament and other state bodies, not to mention within the workplace and within institutions representing organized labour. A final point on the issue of gender and aging needs to be made with respect to the situation of older persons in conditions of displacement, specifically the recent experience of the people of Northern Uganda. A great deal of attention has focused on the question of Gender and Sexual Based Violence, and on its impact particularly on young girls and middle-aged women. Unfortunately, older women and men are left out of much of the analysis. And yet, they face numerous problems in terms of accessing land, dealing with discriminatory customary practices and facing threats and pressures from male relatives. Special attention thus needs to be focused on the situation of older women in the post-displacement context. Assessing the Institutional and Non-State Mechanisms for Older Persons Having surveyed both the legal and policy framework and the most important general concerns facing older persons, it is necessary to turn to an examination of the main actors and their role in influencing and implementing that framework. Who are they and how successful have they been? Secondly, to what extent do these actors adopt a rights-based approach to their interventions 271

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and how much do they specifically focus on the issues affecting vulnerable categories among older people, particularly women, persons with disabilities and those in emergency and humanitarian situations such as internal displacement?

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State Mechanisms The central state body concerned with social welfare matters in general is the Ministry of Gender, Labour & Social Development (MGL&SD). A Department of Disability and Elderly Persons was established in 1998, and it reports to the Minister of State in charge of Disability and the Elderly. The Department has been the main driving force behind the various government interventions on behalf of older persons, and particularly in the formulation of policy and attempting to mainstream attention to the issue throughout the various state mechanisms. The main approach of the Department is to bring on board the key stakeholders within government, including actors from the ministries of Education, Public Service, Health and Finance as the most prominent sectors in which issues affecting the situation of older persons are located. 37 A twelve person cross-ministerial working group raised awareness of how issues of aging impact in every sector of policy (Heslop, 2005 at 9). Aside from policy formation and liaison with other government bodies, the Department has attempted to address the lack of awareness and the overall apathy towards the rights of older persons. A number of departmental staff have been trained in the discipline of Gerontology at the University of Malta. 38 The Nsamizi Institute of Social Development in Entebbe has recently introduced a six week certificate training course in the area, targeting government institutions and NGOs involved in implementing programs for older persons in Uganda. 39 However, not a single university in the whole country offers the course, or even aspects of it, despite efforts being directed towards this goal. 40 Efforts to persuade the Medical School at Makerere University to teach Geriatrics have so far not proven very successful. Obviously, in 37

Baryayebwa interview. Id. 39 Id. 40 Id. 38

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order for health professionals to be able to effectively address the needs of older persons, they require a minimum level of training on those diseases which affect older persons most, and also on the whole process of ageing and its implications for health. There is nevertheless a need to look beyond central state structures and to consider the situation at the grassroots level. Under the system of local government that has been in operation in Uganda for the past several years, many services of relevance to older persons—such as healthcare, education and access to water— have been decentralized. Local councils thus play a significant role in ensuring access to these services, a central concern within the human rights paradigm. The question is whether these bodies are appropriately equipped with the tools and the knowledge in order to ensure that they are effectively addressing the situation of older persons, taking into account issues of non-discrimination, equality and effective participation. As has been pointed out with respect to the issue of neglected diseases, vehicles for community participation (particularly Village Health Teams) can play a vital role in acting as key institutions in improving community interventions in general, and specifically in relation to the situation of older persons (Hunt, 2006, at 13).

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Non-governmental Actors There are a number of non-governmental actors who focus on the situation of older persons, ranging from secular to religiouslybacked institutions. The most prominent of them is the Uganda Reach the Aged Association (URTAA), established in 1991 and currently affiliated to the largest international non-governmental group concerned with older persons, HelpAge International. 41 Its mission is to work and advocate for the improved quality of life and the preservation of the dignity of older persons in Uganda. URAA has five main themes under which its work is organized, namely capacity building (including training and education); livelihood support (particularly for income-generating activities); health and care; HIV/AIDS and Advocacy. The organization has affiliates in 53 districts, mainly outside the northern conflict zone, but plans are 41

Interview with Justus Kizza Wamala on August 21, 2008.

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underway for beginning work in the Acholi sub-region of the country. 42 Other NGOs include The Aged Family Uganda (TAFU), Matunda ya Wazei and Reach One, Touch One Ministries (ROTOM). TAFU began work as a community based organization in 1999, transforming into a non-governmental organization two years later.43 It presently operates in the five districts of Kampala, Wakiso, Luwero, Masaka and Mukono, and is a founding member of a National Network of Older Persons Organizations in Uganda (NNOPU). TAFU operates a hospital home care service and it recruits and trains nursing aides in older person care. 44 It oversees a number of income generating projects for the support of older women (including poultry, goat and cattle rearing, piggeries and mushroom growing). The organization also recently undertook a case study of the situation of older persons, which it used as the basis for a one day meeting of six groups to build consensus on future priorities for action in response to the survey findings (Nyanzi, 2008). Taken together, it is quite clear that non-governmental work on the situation of the older persons has brought some attention to bear on the issue. However, it lacks the same vigour that is applied to human rights violations such as torture, illegal detention or the violation of the right to free speech. One hardly hears of campaigns or demonstrations of the rights of older persons; public interest litigation (albeit undeveloped with respect to human rights in general) is not adopted as a strategy for the assertion of the rights of retirees or pensioners, and very little public knowledge exists about the situation of older persons. Very few people even know that October 1 of every year is the International Day for Older Persons. In a nutshell, the rights of older persons remain marginal, contested and lacking in resources. But the problem is not simply that those groups that specifically address the situation of older people are poorly equipped to do so. None of the mainstream human rights organizations—whether 42

Id. Interview with Prisca Kabuga, personal assistant/secretary TAFU on August 23, 2008. 44 Id. 43

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those dealing with general issues or those who look at specific questions such as the rights of women—address the plight of older people in any consistent fashion. A review of the annual reports of organizations such as Foundation for Human Rights Initiative (FHRI), FIDA-U or the Uganda Law Society (ULS) reflect scant attention to this category of individuals. To the extent that they do, they lump them together with the other ‘vulnerable groups’ who are the subject of concern. What this means is that even for those who are supposedly at the vanguard of ensuring that human rights are fully observed by the state, there is a discriminatory approach to the rights of older people. Ultimately, action in relation to improving the human rights of a particular category of people is also dependent on the amount of knowledge that exists with respect to that group. The present investigation found that there is a general dearth of research on the issue of aging in Uganda, in comparison to work on any other category of vulnerable group. Furthermore, most of the literature focuses on the question of poverty and aging, and even then it does not adopt a rights-based framework of analysis to the issue (Mugambe, 2006, op.cit.). As already pointed out with respect to the discipline of Gerontology, there is a need for much more concerted research on the human rights issues affecting aging. That research must be undertaken by non-governmental human rights, academic and research institutions.

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The Role of Parliament and other Constitutional Bodies It is important to note that the principle of representation for all vulnerable groups/minorities has become firmly enshrined within Uganda’s body politic. Thus, special representation exists for women, the youth, and for workers, as well as for people with disabilities. Each of these groups also has special state representation either through national councils or through elected representation at local government levels. Of the groups recognized as vulnerable in Parliament, it is only older persons who do not have special representation, although they are represented in local councils (Najjemba, op.cit., at 23). What does this mean? In the first instance, while there are indeed older persons represented in the House, they are there on their individual merit. 275

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In other words, their primary alliances are to their parties and to their individual constituents, whether geographical or otherwise. Secondly, given that so much of the business of parliament is organized around caucusing, there is no Older Persons’ caucus. As such, there is no institutionalized and corporately organized approach to issues that affect older persons. As a consequence, institutionalized ageism remains intact. Thus, for example, in the recent outcry over the dubious transactions at the National Social Security Fund (NSSF), no direct strategic linkage has been made with the plight of older persons. Needless to say, NSSF pensioners—whose rights are trampled on as a matter of routine— are one of the most important members of the older community. The absence of an organized force representing the interests of older persons in Parliament obviously has many other implications. First of all, parliamentary bills are not systematically scrutinized in order to establish whether they address age-discrimination. In other words, there is no ‘ageism-audit,’ as is done with respect to issues of sexism, disability or discrimination against the youth and children. Secondly, there is no process of strategic planning which would methodically highlight the concerns of older persons, whether within the budgeting process or in committee work or in respect of strategically ensuring that these issues are given more attention. Finally, there is no doubt that political representation has greatly raised the profile and image of those marginalized groups that have been able to secure it. As already argued, since older people need to be active participants in the development process, and they face a particular problem around the issue of image, improving their representation in parliament would be a positive step towards addressing this matter. Concerted attention to the situation of older persons is absent from the major activities of the main constitutional body designated with the oversight and implementation of human rights in the country—the Uganda Human Rights Commission (UHRC). None of its annual reports has thematically taken up the issue and there is no programmatic or strategic indication that there will be any serious effort to address the rights of older persons specifically. Instead, the issue of older persons is lumped together with that of other ‘vulnerable’ groups. The result is that the focus of the 276

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Commission is much more on the others, as opposed to being on older persons. All in all, the institutions of the state are yet to internalize the struggle against institutionalized ageism in any serious fashion. This means not only that the EOC becomes all the more important in terms of strategic thinking on how to ensure that the rights of older persons are given full attention, but also that the various other public agencies concerned with the enforcement of human rights are duly sensitized on the issue.

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Concluding Remarks The analysis above allows us to make several concluding observations about the human rights situation with respect to older people. While there has been some progress on the issue, a great deal remains to be done, especially in the areas of Participation, Protection and Image outlined in this chapter. The issues and causes underlying the disadvantages of older persons remain ill-defined. Consequently, the solutions which are arrived at lack comprehensive grounding in their lived conditions. Thus, a principle point of action is with respect to the adoption of the draft national policy. There is no doubt that the policy will provide a more solid foundation on which the rights of older persons can be based. This would establish the basis for more concerted and directed action on the part of the state in meeting its human rights obligations with respect to this category of persons. Following from this, would be the enactment of specific legislation following the South African model which would ensure a firm basis on which the protection of the rights and autonomy of older persons is secured. The government should give more serious attention to the formation of a national council for older persons, as well as to the issue of representation in Parliament. This would go some distance in addressing the issue of effective participation on the part of older persons. Non-governmental actors also need to begin strategically thinking about targeting the up-coming EOC and making sure that the issue of age-based discrimination is firmly placed on its agenda. Attention should also be drawn to the proscription in the law against the Commission investigating, “… any matter involving 277

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behaviour which is considered to be (i) immoral and socially harmful, or (ii) unacceptable, by the majority of the cultural and social communities in Uganda.” As we have pointed out, such limitations may have an adverse impact on the investigation of matters concerning age-based discrimination, particularly where older persons are accused of practices such as witchcraft. There is a general and crying need for the overall reform of the Pensions sector—both that run by the NSSF as well as the Public Service system. In the process of reforming the social security sector an issue which has recently been comprehensively addressed by the Minister of Finance (Suruma, 2008) serious consideration should be given to the establishment of a Retirement Benefits Authority to regulate both the public and the private elements of the sector, and to ensure that pensioner’s life-long savings are not committed to questionable schemes, e.g. the new NSSF Twin Towers, and the dubious purchase of Cabinet Minister Amama Mbabazi’s land at Temangalo at inflated prices. This authority would ensure that investment schemes are managed by professionals; that there is sufficient oversight and accountability (of a non-political nature); that administrative costs are kept to the necessary minimum, and that management is entrusted to autonomous trustees and not political appointees. Serious consideration should be given to ratification of Convention 102, in order to provide a legal foundation for social policy in the country. Even in the absence of parliamentary representation, there is no doubt that the legislative process is a fundamentally important site for the struggle to ensure that the human rights of older persons are given full respect and attention. This entails periodic and comprehensive review of parliamentary bills in order to consider and ensure that issues of non-discrimination on the basis of age are covered. Such action which necessarily entails more engagement by the non-governmental community concerned with the situation of older persons needs to be accompanied by more comprehensive advocacy on the part of organizations that have specifically taken up the brief of advocacy on the rights of older persons. There is also a need to improve the linkages with mainstream human rights organizations in a bid to compel them to take up the issue in a more comprehensive fashion. Mainstream human rights 278

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and women’s rights organizations should begin to incorporate analyses and activities relevant to the situation of older persons into all their activities. Likewise, groups specifically working on older persons should make sure that mainstream human rights organizations get involved in activities such as the International Day for older persons which is celebrated on October 1 of every year. Turning to the area of protection and image, there are actions which are both pro-active and those which are remedial. Among the former, it is necessary for the state to give appropriate attention to and support initiatives in the field of Gerontology and devote more resources to the application of gerontological research and study to both macroscopic (government policy and planning) and microscopic (e.g. health, shelter and institutional) mechanisms. Geriatric care needs to be mainstreamed into the teaching of Medical School subjects. Finally, in this respect, there is a need to introduce a free medical scheme for older people of 65 years and older, covering both consultation and drugs. While the financial outlay may not be significant, there is no doubt that such an initiative would have a serious impact on the livelihoods of older persons. Ultimately, it would also send a positive message to all Ugandans; older persons are a great resource; they have made an important contribution to socioeconomic development in the country, and we all have an obligation to ensure that they live out the remaining period of their lives in dignity and respect. After all, we are all going to grow old.

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Uganda Today: What Needs Undoing? 1 It is rather difficult to write a speech to such a gathering of distinguished men and women of the cloth. For in your hands lies the power of faith; you are the conduit between the spiritual world and the temporal; you are the link that connects us to the higher ideals to which we all aspire; you are the fountains of honesty, of peace, of justice and in many cases of liberation and freedom. Through prayer and beseechment you hold in check the most egregious excesses of humankind; you preach humility, brother and sisterhood, and you let us know of the benefits of good neighbourliness. Your province is in the arena of prayer, and today my first message to you is: Pray for Uganda! But as you pray, I urge you not only to think of matters spiritual. Rather, I ask that you think of religion today as a means through which we can correct the many ailments that afflict us, and for you to go back to the manner in which the founders of the World’s great religions used their power; not as a means to guarantee privileged status in society, but as a mechanism for ensuring that the society in which they preached changed positively. In other words, as you pray, please keep one eye open! What exactly do I mean? I have been asked to examine the key governance challenges we face in Uganda today. Rather than providing a prescription for change—which is a feat that I am not equipped to do—I want to focus on what needs to be undone. In other words, what things do we need to rid ourselves of in order to improve the state of governance as we approach the swearing-in ceremony of a new/old government and move into the next five years of NRM rule? Hence my speech is entitled What Needs Undoing? In order to answer that question it is necessary for us to take a small step back in history. 1

Presentation at the Inter-Religious Council of Uganda (IRCU) PostElection 2011 Conference; Kampala, April 27, 2011, also reproduced in Uganda Elections: ‘An Exercise in shame-faced Endorsement,’ in Firoze Manji & Sokari Ekine (eds.), AFRICAN AWAKENING: THE EMERGING REVOLUTIONS, Pambazuka Press, Oxford, 2012.

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From Where Have We Come? When 42 year old guerrilla leader Yoweri Kaguta Museveni (‘M7’ or ‘Ssevo’ to his supporters) emerged from the five year ‘bush’ war to claim the presidency of Uganda in 1986, he was proclaimed as a great redeemer. Although there were many questions as to whether President Museveni had the credentials to lead such a fractious, decimated and demoralized population out of the doldrums, there can be little doubt that Uganda has done fairly well under his steerage. It is not for me to sing the praises of the government, but there is no doubt that Uganda is no longer ‘the Sick Man of Africa’ that it used to be in the 1980s. Twenty five years later, Museveni remains at the helm of Ugandan politics, and on February 18, 2011, he received yet another endorsement in an election that extends his term in power until 2016. By that time, Museveni will be 72 years old, and at 30 years in power will have long since entered the record books as East Africa’s longest-serving leader, outstripping both the late Julius Kambarage Nyerere of Tanzania and Kenyan ex-President Daniel arap Moi. Indeed, he will join the ranks of Africa’s longest, among them, Paul Biya of Cameroon, Angolan president Eduardo Dos Santos and beleaguered Libya’s Muammar Abu Minyar el Gaddafi. But it will also be the time to ask whether Museveni’s legacy will be that of the former Tanzanian president who left office still revered and loved, or will he be a figure of tragedy and hatred like Moi? Indeed, as North Africa witnesses the nine-pin like collapse of long-term dictatorships starting with Tunisia and spreading like wildfire, it is necessary to inquire how it is that Museveni won the February 18 election, and what lessons this has for political struggle and freedom in Uganda. I think that drawing on Libya for comparison is particularly apt since Museveni has long been an ally of President Gaddafi. On one of many trips to Kampala, the eccentric leader of the Great Socialist People’s Libyan Arab Jamahiriya urged Museveni to stay in office for life, arguing that revolutionaries are not like company Managing Directors. The former do not retire from office! It is a lesson Museveni took to heart, removing presidential term limits from the Constitution in 2005, and setting himself well on the way to a de facto life presidency.

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.

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Before we look to the future, we need to return to the past, especially to understand the recent election. What explains Museveni’s February victory, especially given that while largely predicted, the margin by which he won—68% of the presidential vote and 75% for his National Resistance Movement (NRM) in the parliamentary poll—stunned many. We need to compare this margin with the three previous elections in 1996 (when he won with 75%), in 2001 (69%) and in 2006 (59%). According to the pundits who filled the radio airwaves before the poll, while still popular and dominant and thus likely to win, the downward trend would continue. Some even predicted that there would be a run-off because the 50.1% margin would not be scaled in the first round. The other issue of surprise was the relative calm and lack of violence that attended the election. Most foreign observers from the European Union to the US government—described the vote as generally peaceful, free of bloodshed and (in the usual parlance of those who have emerged as the guardians of African electoral politics) largely a ‘free and genuine’ expression of the wishes of the Ugandan people. It was only the African Union (AU) that declined outright to describe the poll as ‘free and fair.’ The local Media described it as the most boring poll in recent Ugandan history, lacking as it did much of the drama, intrigue and confrontation that Ugandans had become accustomed to. It is thus not surprising that Museveni’s rap ditty—’Give Me My Stick/You Want Another Rap?’ garnered more attention than the substantive issues at stake. To fully comprehend the outcome of Uganda’s recent poll, it is necessary to understand a number of basic facts. The first is that Uganda is yet to become a functioning multiparty democracy. For the first nineteen years of Museveni rule, we operated under a ‘noparty’ or ‘movement’ system of government, which was little better than a single-party state. Under that system, government and party institutions overlapped right from the lowest level of government (resistance or local councils) through to Parliament. Indeed, in many respects Museveni took a leaf from Gaddafi’s popular councils, creating these ‘LCs’ as supposedly representative of ‘grassroots’ democracy, but essentially a cover for single-party or prebendal dominance. 283

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Today, many of the no-party structures remain intact and operative. They function as the basic conduits of political mobilization in the country and for the channelling of state resources, buttressed by a massive local bureaucracy of government agents and spies. Indeed, that system remains intact until the present time, and only yesterday we were advised by the Electoral Commission that elections for the lower levels of local government would be postponed, yet again. Of course we also need to recall that in most countries it is very difficult to remove incumbent governments through an electoral process. In the history of African electoral democracy, only a handful of ruling parties have lost a poll. In Uganda, the fact of incumbency guaranteed President Museveni unfettered access to state coffers, such that the NRM reportedly spent US$350 million in the campaign. Whether or not this is in fact true, we have not yet received a proper accounting of how much the NRM (or indeed any other party) actually spent and from where they received this money. Already this means that we are being held hostage to the lack of transparency and the underhand nature of politics that we thought we had long left behind. Indeed, the enduring image of the past several months has been that of the President handing out brown envelopes stashed with cash for various women, youth and other types of civic groupings. I don’t know if religious leaders were also beneficiaries of this largesse. The other reason for Museveni’s victory lies in the highlymilitarized context within which politics and governance in Uganda is executed. We know that after five years of civil war (1981 to 1986), and twenty-plus years of insurgency in the north of the country, Uganda has virtually never been free from conflict. Unsurprisingly, the idea of peace and security occupy a very significant position within the national psyche. For older Ugandans there is some fear of a reversion to earlier more chaotic times, while for the younger generation who have only experienced Museveni, the claim that he has restored peace has a particular resonance. Ironically, both groups also fear that if Museveni lost an election, he would never accept the result, and instead would either return to the bush or cause such a great deal of instability that it is not worth it to even think about an alternative candidate. This explains what 284

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to many is the most surprising outcome of the election: Museveni’s victory in Northern Uganda despite facing two ‘sons-of-the-soil,’ ex-diplomat Olara Otunnu and the youthful Norbert Mao. I believe that the looming presence of the military also explains why the turnout for the election at 59% was much lower than any of the previous three polls, where figures were closer to 70%. Many people simply stayed at home, partly out of apathy, but more on account of the fact that the streets of Kampala and other parts of the country were swamped with military personnel. Any visitor to Uganda over the election period would not be wrong to question whether the country was not a military dictatorship. Moreover, and very unfortunately the Uganda Peoples’ Defence Forces (UPDF) is more akin to the army in Libya than that it is to that in Egypt. UPDF is not well known for exercising restraint when dealing with civilian insurrection or politically-motivated opposition. Indeed, when the red berets and the green uniforms come out on the streets you know that there will be correspondingly higher casualties. Museveni’s performance in the North reflects the other side to the story, and that is the fact that Museveni is only as good as the opposition he faces. The dismal performance of the opposition is attributable to a host of factors, not least of which is the fact that there are really no opposition parties in Uganda. Rather, there are only opposition personalities epitomized by three-time presidential contender, Col. (rtd.) Kizza Besigye of the Forum for Democratic Change (FDC) who have constructed around themselves weak or non-existent party structures that only come to life in the run up to the election. Uganda’s Opposition is also bereft of firm ideological positions, and while the death of ideology is an ailment affecting the ruling NRM too, its absence among the opposition has proven particularly harmful as there is a lack of a central organizing message around which the opposition can translate obvious disgust and support against Museveni into electoral victory. Thus, at the start of the election season, the opposition wavered between a united front against Museveni or a boycott, citing the bias of the Electoral Commission and the unlevel playing field. Of course as we are all aware, neither option was adopted, and at the end of the day all major opposition parties decided to field candidates in both the 285

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presidential and parliamentary elections, while decrying the inequality in the contest. It is important to note that the Opposition may have found a more united voice after the election, and the fact that the government has failed to find a suitable response to this opposition unity speaks volumes of the foundations on which the February 18 victory rest. At the end of the day, while President Museveni’s victory is not much of a surprise, and in the short run ensures the continued charade of economic and political stability that has characterized the last two decades, I would like to suggest that it portends considerable apprehension for the future of the country. While the President has dismissed comparisons with the fallen dictators of North Africa, there are indeed many parallels. What are the parallels between Uganda and those countries which are now facing the wrath of the people? First of all, the state in Uganda has assumed what can only be described as a ‘Musevenist’ character, such that an election such as the recent one can only be an exercise in endorsement of the incumbent. This is because the leadership of the state was afflicted with the disease I have described as ‘stayism’ for which the antidote has never been an election. Secondly, the Ugandan state has also devolved to a situation in which there is little to distinguish between the personal and the political, and where it is increasingly being marked by the growth of what can only be described as family or personal rule. While Museveni has only one son (in comparison to Gaddafi’s seven), Muhoozi Kainerugaba is clearly being groomed for greater things. Thus, he has taken charge of the Special Presidential Brigade, the elite force designed to guarantee his father’s personal security, and he recently wrote a book about the bush war, to burnish his credentials as an intellectual-cum-soldier able to fit into his father’s rather large shoes. This is clearly the same path that Ben Ali, Mubarak and Gaddafi pursued, only to find themselves thwarted by the movement of the people. While it may be true that revolutionaries don’t retire, if there is no other lesson of the recent Northern African upheavals, it is that revolutionaries can be forced to resign. It is all simply a matter of time.

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So What Needs to be Undone? Given the preceding analysis it seems to me quite clear that there are several issues that require ‘undoing’ in contemporary Uganda. The first of these is the tendency to create Political Monopoly, which essentially means the desire to absolutely dominate the political arena to the exclusion of any contending force, and particularly to eliminate all forms of opposition to the existing system of governance. This has been true regardless of the kind of political system we have had in operation. Secondly, we need to fight against Legal Manipulation and the misuse and abuse of law and of Constitutions in order to achieve sectarian political objectives. In particular, shifting the goalposts when the existing ones do not suit the achievement of a particular political objective, e.g. the overthrow of the independence constitution in 1966, or more recently, the removal of secret balloting on constitutional matters in Parliament, and their re-imposition barely a month later when the NRM was electing its officials. It is also clear that we need to speak out against the use of coercive (particularly militaristic) methods to achieve political objectives, of which we have seen numerous examples, starting with the 1964 Nakulabye Massacre and most recently manifested in the Bulange Slaughter last week. There is no other country in the world that lays claim to being a democracy which so extensively relies on the military. So many examples suffice to show this; the notoriety of institutions such as the Chieftaincy of Military Intelligence (CMI) and of para-military shadow militias like the Black Mamba; the prominence of the Presidential Guard Brigade (PGB) and our ‘Generals,’ in political life and the reluctance to remove the UPDF directly from politics as should normally be the case in a functioning multiparty system. Added to the above, I believe we need to undo the Hypocrisy that claims the high moral ground when we are mired in corruption; when a 1st Lady calls on us to Close our Eyes and Praise the Lord, and then proceeds to build a corrupt cabal of relatives, friends and in-laws which feeds off the state. We need to undo the links between the State and the ruling (NRM) party, first by undertaking a full audit of where and how it raised resources to finance the last election. In relation to the above, we need to undo the existing Electoral Commission and to 287

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dismantle the infrastructure of intolerance and exclusion that is manifest in laws such as the Institution of Cultural and Traditional Leaders Bill and the anti-homosexuality bill (AHB). Tackling all of the above implies that we need to undo the monopoly of political power that is exercised only by political actors; all of us have to become politicians. While the president’s call for talks with the Opposition is welcome, he needs to undo the detention-without-trial of Kizza Besigye, Norbert Mao and of all the other political activists who have been detained as a result of the Walk-to-Work (W2W) strikes. We need to undo unlimited presidential terms and end the phenomenon of longevity in office, and also to stop ignoring the youth and treating them like they are the ‘Leaders of Tomorrow’ or else they will take up arms against us today. We need to undo the refusal to hold a national convention of all and to undo the lack of transparency that accompanies all government business from the allocation of State House scholarships to the appointment of presidential advisors who do not give the president any useful advice. I would like to end my presentation with a quotation from a speech entitled ‘Cast off the Yoke of Bondage’ by a man called John Bull. It is chosen because I thought its message would be most appropriate for an audience of men and women of God. I believe that its references to the Supreme Being would be found especially apposite: From the beginning all men by nature were created alike, and our bondage or servitude came in by the unjust oppression of naughty men. For if God would have had any bondsmen from the beginning, he would have appointed who would have had any bond and who free. And therefore I exhort you to consider that now the time is come, appointed to us by God, in which ye may, if ye will, cast off the yoke of bondage, and recover liberty. I counsel you therefore well to bethink yourselves, and to take good hearts unto you, that after the manner of a good husband that tilleth his ground, and riddeth out thereof such evil weeds as choke and destroy the good corn, you may destroy first the great lords of the realm, and after, the judges and lawyers, and questmongers, and all other who have undertaken to be against the commons. For so shall you procure peace and surety to yourselves in time to come; and by dispatching out of the way the great men, there shall be an equality in liberty, and no difference in

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degrees of nobility; but like dignity and equal authority in all things brought in among you.

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Although Bull was speaking in 1381 and his words were addressed to peasants who were rising up against King Richard III, the message he conveyed is still supremely relevant for our purposes today.

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Police Powers, Politics and Democratic Governance In Post-Movement Uganda1 A full understanding of the nature and impact of police powers on society in Uganda can only be achieved if placed against the backdrop of the overall situation of human rights and democratic governance in the country. Hence, it is necessary to begin this analysis with a number of general points about human rights and democratic governance in present-day Uganda. The first is that the realization of good governance together with the promotion and protection of human rights has always been problematic, precarious and contentious, irrespective of the political system in place. Thus, Uganda has witnessed peaks of human rights violation and bad governance, and also great advances in respect of their protection. If nothing else, that experience has taught that a positive human rights context cannot be taken for granted. In other words, the realization of better systems of governance and improved human rights respect is always a work in progress. It is therefore essential to be consistently vigilant against possible reversal and retreat. Given that the Police are an integral actor in both the promotion and the protection of human rights as well as their violation, such vigilance is essential. Secondly, the human rights situation in Uganda today is often compared to that of the past which was largely influenced by individual regime and presidential histories and pathologies, all of which have been shaped by increased militarization. We are continuously assured that under Idi Amin, Tito Okello and Milton Obote particularly his second reign which run from 1980 to 1985 things were much worse: disappearances were rampant, statesponsored terror was the norm, and the most basic right that to life itself was not guaranteed. While recognizing the negative historical legacy that Ugandans have had to deal with, there is nevertheless a 1

Public Lecture at Makerere University, School of Law; a Dialogue on the Police, and excerpted from HURIPEC Working Paper No.31 (December, 2011).

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need for a different perspective. Things today are not necessarily better than they were yesterday. Rather, things are different. Indeed, there are periods in present-day Uganda when human rights violations reach a peak as was the case in the run-up to elections in 2001, or in 2006 when it would have been very difficult to tell the difference between past regimes and the current one. While the runup and actual balloting in the 2011 election was relatively peaceful, its aftermath has witnessed among the most serious spate of continuous political unrest since perhaps 1986. The Walk-to-Work (W2W) protests, led by Forum for Democratic Change (FDC) presidential election flag-bearer, Kizza Besigye, have produced over a month of dramatic confrontations between the Police and other armed forces and the public. Correspondingly, the scale of human rights violations has risen proportionately. Thus, the challenge of ensuring that human rights and good governance are upheld and protected is a continuous one; it is a work-in-progress. Hence, the need is to be much more forward looking, rather than always congratulating ourselves on the dire and disastrous time we have left behind. History is an important teacher, but only if its lessons are learnt and not repeated. The more important issue is whether Uganda has been successful in introducing a culture of respect for the promotion and protection of fundamental human rights, and whether we have created the necessary institutional mechanisms to ensure that human rights will not be wantonly violated. Unfortunately, in relation to both the issue of the creation of a human rights culture and that of institutional mechanisms, Uganda is still lacking. This is very clear from a critical examination of the status of Police powers and their exercise in the country. To better appreciate the above points, the present study is divided into four parts including this introduction. It begins with a background historical analysis of the phenomenon of police powers, with a particular examination of the colonial roots as well as the constitutional and legal context within which those powers are designed to operate. Part III provides an assessment of the accountability and institutional mechanisms that have been created to oversee the Police, before considering the manner in which the force protects civil and political rights and freedoms, among them, 292

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the freedoms of assembly, association and lawful protest. Needless to say, although the Police carry out several other functions, the main premise of the study is that the best gauge of Police probity is when the institution is under stress. The final part of the study offers a number of pointers on what needs to be done in order to ‘democratize’ the Uganda Police Force. Such democratization basically focuses on the issues of accountability, professionalization and civilian oversight. While recognizing that the battle against crime is an essential function of the Police, this study does not deal extensively with this issue, apart from some remarks on the antiterrorism actions of the Police, particularly in the aftermath of the Al-Shabaab twin bomb attacks of July 11, 2009.

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The Phenomenon of Police Powers As Daniel Ntanda Nsereko tells us, “Etymologically, the English word police derives from the Greek words polis (the city) and politeria (a comprehensive term describing the safety and welfare of the inhabitants). From the term police Anglo-American law developed the concept of police power, defined as the power to promote the health, safety, morals, and general welfare of the population.” (Nsereko, 1993 at 465). Although police forces exist throughout the world, their evolution and contemporary development differs markedly in terms of context, time of formation and political system in which they operate. Hence, policing in the United States is highly decentralized, following the federal nature of the state and the very different socioeconomic and historical circumstances in which each part of the country has developed. Distinctions in policing between federal and state jurisdictions partly depend on the nature, gravity and scope of the crime in question. At the same time, in line with the historical legacy of slavery and racial discrimination, policing in the US has been highly marked by race relations (Bell, 1980 at 207-278). While policing in the United Kingdom is much more intimate and communityoriented contrast the unarmed ‘bobby’ on the London high street, to the bullet-proof vested and gun-toting New York patrolman some of the same issues of class, race and culture have also 293

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bedevilled its operation and evolution. Those tensions were most recently reflected in the summer disturbances in London and in other major cities around the country. Policing in socialist countries, best represented by the former Soviet Union and present day China, was much more directly linked to the ideological foundations on which those states were built. No pretence was made between those ideological foundations, i.e. Marxism-Leninism and Maoism, and orientations of the governing party and all of its instrumentalities, including the Police. Also, under Stalin and Chairman Mao, the Police formed an intricate pillar of the instruments of repression and state terror that were developed to ensure regime dominance and continuity. Thus, although there may be distinctions in terms of how the police actually operate, it is an institution essentially devoted to the battling of crime, which at core is a technical function. However, the manner in which it approaches this task is at base determined by the political context in which it operates. It is also determined by the way in which crime is defined and the different priorities of the Criminal Justice system, including the Police. What thus emerges about the nature of police power is that it essentially serves to buttress the status quo, whether in capitalist societies devoted to the protection of private property, or in communist countries that give paramount concern to the interests of the ruling party, or to poor and developing countries riven by stark economic and political differentials. As one of the most important institutional mechanisms in ensuring a stable and improving human rights context, it is important to understand both the formal functions of the Police, as well as their broader role within the political economy of the country. Those formal functions as pointed out in an early study by Potholm remain the maintenance of law and order, paramilitary operations, regulatory actives and regime representation (Potholm, 1969 at 142-150, and Hills, op. cit., at 8). However, the role of the Police (what it actually does), ‘...depends on how a government defines national security, how fragile public order is, and how secure the governing elite feels.’ (Hills, Id.) This is very clear from a critical examination of the status of Police powers and their exercise. Hence, to fully understand the nature of the operation of 294

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police powers in Uganda, it is necessary to link their operation to the socioeconomic and political context that exists.

Policing in History: From the British Isles to the African Colony What do we understand as ‘police powers?’ A typical definition is provided by Sir Richard Mayne—the very first Commissioner of the famous London Metropolitan Police—who gives the following analysis:

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The primary object of an efficient police is the prevention of crime: the next that of detection and punishment of offenders if crime is committed. To these ends all the efforts of police must be directed. The protection of life and property, the preservation of public tranquillity, and the absence of crime, will alone prove whether those efforts have been successful and whether the objects for which the police were appointed have been attained (Mayne, 1829).

While on the face of it such a definition may appear universal, it is quite clearly limited in both time and context. For one, the creation of the Police in the United Kingdom involved both the authorities as well as those who were to be governed. This partly explains why the Police force in the United Kingdom is local in character, highly decentralized, strictly insulated from the Armed (Defence) Forces, and generally designed to ensure the protection of the greater public good. Ugandans were much surprised that despite the ferocity of the summer disturbances earlier this year, there was no intervention by the armed forces, a phenomenon which is a common feature of riot-control in similar situations in Uganda. 2 The second point to appreciate is that the LMP on which most policing in the UK is based was essentially a civilian force, dedicated primarily to the tackling of crime. Hence, the evolution of the Police (as a domestic force) in England was divorced from the other major instrument of armed force and coercion, the Military, which was instead created as a mechanism of national (foreign) defence. Thirdly, the mechanisms and structures of accountability designed for the Police in Britain 2

For an amusing take on the London riots, see Jenkins Kiwanuka, ‘Lessons Uganda Should Learn from Global Riots,’ Daily Monitor, August 15, 2011 at 12.

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were intended to ensure that as much as possible, civilian authority was paramount. This is reflected in the concept of ‘policing by consent,’ first developed in the early days of the establishment of the London Police and which have evolved as a central aspect of ‘good policing’ in the UK today. As Charles Reith has pointed out, the Police in Britain is, ...unique in history and throughout the world because it derived not from fear but almost exclusively from public co-operation with the police, induced by them designedly by behaviour which secures and maintains for them the approval, respect and affection of the public (Reith, 1956, at 140).

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Although chauvinistic in tone, the above quote provides a useful insight into the operation of the police in Britain. That is not to say that the Police in the UK does not have its own problems, extending from the ‘institutionalized racism’ first identified in the Macpherson Report of 1999 concerning the death of Stephen Lawrence, to deaths due to the negligent usage of firearms to deaths in police custody. There are still a number of problems in relations between the police and the public in Britain, particularly in the aftermath of the War on Terror. Many of the principles of policing in Britain are captured in the following blurb which although first written in 1956, reveals the essence of the operation of the force in that country:

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Table 14.1: The Nine Principles of Policing 3 1. To prevent crime and disorder, as an alternative to their repression by military force and severity of legal punishment. 2. To recognise always that the power of the police to fulfil their functions and duties is dependent on public approval of their existence, actions and behaviour and on their ability to secure and maintain public respect. 3. To recognise always that to secure and maintain the respect and approval of the public means also the securing of the willing co-operation of the public in the task of securing observance of laws. 4. To recognise always that the extent to which the co-operation of the public can be secured diminishes proportionately the necessity of the use of physical force and compulsion for achieving police objectives. 5. To seek and preserve public favour, not by pandering to public opinion; but by constantly demonstrating absolutely impartial service to law, in complete independence of policy, and without regard to the justice or injustice of the substance of individual laws, by ready offering of individual service and friendship to all members of the public without regard to their wealth or social standing, by ready exercise of courtesy and friendly good humour; and by ready offering of individual sacrifice in protecting and preserving life. 6. To use physical force only when the exercise of persuasion, advice and warning is found to be insufficient to obtain public co-operation to an extent necessary to secure observance of law or to restore order, and to use only the minimum degree of physical force which is necessary on any particular occasion for achieving a police objective. 7. To maintain at all times a relationship with the public that gives reality to the historic tradition that the police are the public and that the public are the police, the police being only members of the public who are paid to give full time attention to duties which are incumbent on

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every citizen in the interests of community welfare and existence. 8. To recognise always the need for strict adherence to police-executive functions, and to refrain from even seeming to usurp the powers of the judiciary of avenging individuals or the State, and of authoritatively judging guilt and punishing the guilty. 9. To recognise always that the test of police efficiency is the absence of crime and disorder, and not the visible evidence of police action in dealing with them.

Despite the fairly civil roots of the Police in Britain, in the case of colonies and protectorates such as Uganda, the considerations in place with regard to policing were starkly different. Nowhere was 3

http://www.civitas.org.uk/pubs/policeNine.php.

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this more apparent that in the case of Northern Ireland, where the Police served the broader role of the suppression of local discontent, an overtly political function. With the later insurgency of the 1970s through to the 1990s, the British Police forces were viewed as a treacherous arm of a dominant and alien state. In essence therefore, policing was advanced to protect the interests of the government rather than protecting the community. As such, it was a coercive and antagonist force from the start, reflected in its characterization as a ‘force’ and not as a ‘service.’ Given this background, it is thus not surprising that when British governance was transplanted to Africa via the mechanism of imperialism, many of the attributes of statehood that were in place at the time of colonialism, such as Law, lacked numerous of the features which were in place back home in the Metropolis. Among these were some of the basic principles of Natural Justice applied in England such as the right to be heard, trial-by-jury and the equality of all persons. It is thus of little surprise that the early cases decided by colonial courts in countries like Uganda paid scant attention to the rights of locals, placing an emphasis instead on the overall stability and enhanced governance of the colonial state. Of course this fitted into the overall context of colonial despotism where human rights were not recognized in any legal instruments and where the colonial subject was hostage to the whim and caprice of the autocratic bureaucracy, right from the local chief to the highest government official.

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The Ugandan Scenario Rather than playing the role of neutral arbiter over actions of a criminal nature, the Police under colonialism was a central element in the struggle over resources, power and authority. As such, the Police came to play a critical role in the overall scheme for the control and exploitation of the protectorate. In this respect, the role of the Police in Uganda (as in the broader East African context) has evolved over time, from initially being a colonial para-military force linked to the King’s African Rifles (KAR), which was often called in to assist in suppressing the early anti-colonial rebellions. This explains why when the Uganda Police Force was initially established 298

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in 1897, 4 its primary responsibility was the preservation of peace (essentially a military function), while its supplementary function was the prevention of crime. The importance attached to the Police (alongside prisons and defence) during the colonial era was of such a nature that in 1951, the budgeted expenditure on these three heads of the security services was more than double that on agriculture, nearly twice that on education, more than one-half that on medical services and almost thirty-five times that on labour. The impression conveyed by these statistics is of a society that required a considerable amount of coercion in order to remain placid and under control. If the Police played an essentially coercive role under colonialism, after independence it became even more overtly politicized. In other words, the Police became an instrument of direct political repression. This witnessed the proliferation of subbranches of the Police, such as the Special Force in Obote 1, or the Public Safety Unit and State Research Bureau under Idi Amin. The basic role of these agencies was to use police resources to terrorize political opposition, to carry out covert intelligence operations that could barely be sanctioned by the law, and to spread and maintain a high level of terror and intimidation among the general public. The story of these parallel ‘police’ forces is yet to be fully documented, but it is clear that they wreaked considerable damage on the local population, not to mention their impact on the regular police. While the regular Police force remained intact and dedicated to its basic functions of investigating crime and prosecuting offenders, each regime had its specialized agency within the Police to carry out the necessary ‘dirty tricks.’ This was augmented by the removal of the independence of the Director of Public Prosecutions, a crucial office in the execution of police functions.5 In sum, postindependence Uganda has been characterized by a duality in the 4

There is some dispute as to the precise date of the establishment of the force, with some observers claiming that it was formed in 1899, while others assert that it was 1908 (See, CHRI, 2006). 5 Article 82.6, 1962 Constitution of Uganda specified that the DPP would not be “…subject to the direction or control of any other person or authority,” while Article 73.5 of the 1967 Constitution removed this autonomy and subjected the office to the ‘direction and control’ of the Attorney General, who was of course a Cabinet Minister.

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police function, with the political element in the operation of the force assuming much greater significance than that dedicated to the investigation and prevention of ordinary crime. This dichotomy has reached a peak in the current ‘age of terror,’ which became a globally-recognized problem only in the aftermath of the September 11, 2001 Al-Quaida attacks on the USA. Ironically, Uganda had long kept a ‘terror alert’ on account of the war in Northern Uganda. To understand how this process has evolved, it is necessary to go back to an examination of the evolution of the Police since the National Resistance Army/Movement (NRA/M) assumed power in January 1986.

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Policing under the Museveni Government, 1986-2011 Under Uganda’s current legal and constitutional framework, the functions of the Police are outlined in Article 212 of the 1995 Constitution, which stipulates that the force shall, inter alia, protect life and property, preserve law and order, detect and prevent crime, and cooperate with the civilian authority and other security organs established under the Constitution and with the population generally. The Police can also perform the services of a military force when called upon to do so as an added function in the Police Act. 6 However, the challenge that remains in regards to cooperation between the Police and other security organs such as the Army is the lack of clear guidelines on the criteria and manner in which the military and the Police can exercise a complementary role. Furthermore, the Police and the Army undergo different kinds of training and it is therefore problematic to subject the police to the military functions of the Army and vice versa. 7 And yet this happens on a regular basis. During the W-2-W protests, members of the regular Army, the Military Police and Special Forces were deployed on the streets at various times. Structures of command were not very clear, neither was it clear exactly why the Army had to be called in to confront civil disobedience. Certainly, once the Army

6

In the case of Karamoja disarmament as well as in the war in Northern Uganda. 7 Interview with Mr. John Kamya, on 18 April, 2011.

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and Military Police appear on the scene, the consequences for human rights are invariably dire. The 1995 Constitution also attempted to improve the structures of accountability governing the institution, although it is rather scanty on detail. 8 This was mainly done through subjecting the appointment of the chief of Police (the Inspector General) to parliamentary vetting, but more detailed provisions were delegated to the Act. Clause 3 of Article 211 stipulated that the force would be, “...nationalistic, patriotic, professional, disciplined, competent and productive....” The functions of the force were to: protect life and property, preserve law and order, prevent and detect crime, and cooperate with the civilian authority. While on the face of it, these reforms seemed to represent an advance on the pre-existing situation in reality the vetting of the IGP has proved to be a pro forma function in a Movementcontrolled legislature. Oversight functions which were put in the more detailed law governing the force—such as the Police Authority and the Police Council—do not add much to the overall accountability and enhanced governance of the force. One of the main recommendations of the 1999 Justice Julia Sebutinde Commission of Inquiry to investigate corruption and mismanagement in the Police was reform of both the manner in which the Police leadership was appointed as well as in the systems of oversight in the Force (See Republic of Uganda, 2000). The Sebutinde Commission was of the view that the Police Authority is composed of persons who were too close to the senior Police leadership, on the one hand, and also directly accountable to the executive on the other (Id., at 240-241). Although the report of the Commission recommended the creation by Parliament of a Police Service Commission composed predominantly of prominent citizens, this has never been done. To its credit, the Museveni government has long recognized that there are problems with the Police. However, it is the characterization of the nature of the problems and the consequent measures taken by the Government to respond to them that raises many concerns. Efforts to improve the Police Force included the 8

See Chapter 12, especially Articles 211 to 214.

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Sebutinde Commission. The Report of the Commission makes for an interesting excavation of the extent of petty graft, grand corruption, collusion and outright theft in which the Force was engaged over the years. In fact, the Commission stated that the Force was riddled with ‘institutionalized corruption,’ coupled with ‘widespread and flagrant indiscipline’ among Police officers and a ‘culture of impunity whereby officers get away with flagrant violations of human rights under their superiors’ noses (Id., at 255256). The Justice Law and Order Sector (JLOS) set up a programme which sought to improve justice by bringing together all the planning and budgeting of all the groups working in the sector including the Police. However, the focus here has mainly been on bureaucratic and financial efficiency, rather than on structural reform. The system of decentralization also introduced the Local Administration Police (LAPs) who have recently been merged with the mainstream police force, although there are several problems affecting this force too. Finally, 2010 saw the first ever National Police Review Process. 9

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How Do We Assess the Police? What then, is wrong with the Police? The public experience with the Uganda Police has generally been marked by a poor human rights record, corruption and political partiality. Several media reports point to cases of illegal arrest and detention, torture and the use of excessive force. In the 2008 National Integrity Survey (NIS), the IGG ranked the Police as the most corrupt public institution, with a score of 80%, only slightly ahead of the Judiciary. The public has largely supported this assessment and in fact, many have said that the IGG was rather lenient in her evaluation. Moreover, this judgment of the institution is being given more than seven years after the investigation into corruption in the Police by Justice Julia Ssebutinde and the successive appointment of two Army generals to head the force. It is also worth noting that the constitution under Article 211(3) provides standards that are critical in assessing the 9

At the time of writing of this chapter, while the process of review had been completed the report was not yet publically available.

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police. Thus, in the performance of its functions, the police should be nationalistic, patriotic, professional, disciplined, competent, and productive and citizens of good character. A look at the critical role played by the police as well as the difficult conditions that are endured during performance of its functions would reveal that the police is regarded as the most nationalistic force in the country, if only on account of the dire conditions and poor pay they are subjected to. Although several criticisms pertain to levels of professionalism and discipline, particularly due to the associated legacy of corruption and other inefficiencies in responding to public complaints, 10 the community perception and relationship between the police and public has certainly improved as indicated in the 2010 National Police review consultations, where the public revealed that the police were more friendly and approachable.11 This is largely attributable to the recent adoption of a policy on community policing. 12 It should come as no surprise that the Police both ranks very high among those institutions deemed to be most ineffective, while at the same time, it is among the most inefficient. Absent the highly politicized context in which it operates, the Police in general is friendly and approachable. But the fact is that the Uganda Police Force is the most under-staffed, under-funded, and underprofessionalized of all of the institutions of the State. This is despite the fact that the Uganda Police is now headed by an Army man General Kale Kayihura who is believed to have the ear of the President. This demonstrates that the problem is a much larger one. 10

The Police is even failing in the prevention of petty crime, such as stopping the recent spree of mutayimbwa (iron-bar) violence, or even successfully investigating the cause of the many school fires that razed through the country earlier in the year. 11 Shiela Naturinda, “Public Hails the Police Force,” Daily Monitor, August 14, 2010 at 9. 12 Community policing is the coming together of the police and citizens to work collaboratively on identifying crime related problems so as to maintain law and order within the community. Community policing focuses on crime and social disorder through the delivery of police services that include aspects of traditional law enforcement, preventive measures, problem solving, community engagement, and partnerships.

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Consequently, examining and reforming the internal structures and functions of the Police will not solve the problem irrespective of how many commissions of inquiry that may be set up. Even when funding is improved, serious questions arise as to what the resources advanced to the institution are spent on. Quite clearly it is not crime prevention. Indeed, the most phenomenal growth witnessed in the Police in recent years has been i the arena of crowd-control or coercion. The part of the Police which has suffered most is that concerned with criminal investigation. That is why General Kayihura can be heard to declare that his biggest headache is the Criminal Investigations Department (CID). But without directing increased resources towards such vital police functions, it is obvious that there can be no fundamental change in its functioning. The issue of skewed priorities in the Police is related to a more fundamental question: the positioning of the Police vis á vis other agencies of security. Despite its central role in the security of the citizenry, the Police Force has always been accorded a subsidiary role to the Military, just as it is less well funded than its security counterpart. Again, this is a reflection of the colonial heritage of institution-building where the focus of the Army was essentially internal security. Thus, while it is rare that the Police is called upon to assist in what are essentially military operations—such as war or measures of counter-insurgency—the Military has been notorious in usurping and taking over functions that are most properly carried out by the Police, such as arrests, the investigation of crimes and ordinary crowd and riot control. Moreover, in carrying out these functions, the Military is largely beyond scrutiny, denying the Uganda Human Rights Commission access to its detention facilities, while also attempting to exclude the civilian judiciary from exercising any manner of oversight function in relation to the personal liberty rights of those who may be held in Military custody. At the same time, the Police Force has itself undergone increased militarization and politicization especially since the rise of President Museveni and the introduction of the Movement system of government. Especially during election periods, the lines between the police and the military become particularly blurred. During the run-up to the 2011 elections, there were claims by a 304

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cross section of opposition Members of Parliament that military officers were being trained together with the Police Force at Kabamba Police Training School solely for the purpose of harassing members of the opposition. 13 Worse still, the introduction of a new police uniform in 2010 similar in print to that of the Army further eroded the force’s civilian image. Standard issue to the Police in Uganda is the AK-47, a military assault weapon. While this is explicable in terms of both Uganda’s history of violent conflict as well as the simple factor of cost, the ubiquitous presence of the weapon in every street and path gives the impression of a country at perpetual war. The AK-47 is the same instrument given to Local Defence Units (LDUs, now rechristened Special Police Constables, or ‘SPCs’) despite their minimal training and obvious lack of simple tact; it is not surprising that every other day, an LDU is accused of having shot an innocent bystander, or used his gun to settle a domestic dispute or a personal grudge. Police duties (such as crowd control) are treated like military operations: shoot first, investigate later. To crown it all, the governance of the Police by two successive Military men (Kayihura and General Katumba Wamala before him) effectively eliminated the remaining vestiges of an attempt at the separation of the Police from the Army. All in all, the mutual infection of the worst elements of each institution has led to an overall deterioration in the police function. But it is a mistake to blame the faults of the Police on internal or relational factors alone. Today, the problems manifested in the operation and effective functioning of the Police relate much more to the overall phenomenon of bad governance and the attempt to maintain the Police as an instrument of the ruling political elite, while paying the cheapest cost. In other words, instead of looking in, we should turn our gaze out. The colonial state was interested in self-preservation and was willing to pay for it (which explains why the colonial Police was largely corruption free and efficient). In contrast, the contemporary neo-colonial Ugandan ruling elite seek self-preservation but want it on the cheap. This is in spite of the

13

NTV, News edition, September 18, 2010.

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attempt to mainstream human rights training and respect for the rule of law throughout the service. 14 The Police in Uganda suffer from an even more fundamental problem than the lack of the necessary resources to carry out its essential function as a bastion against crime and the preserver of law and order, or even than the problem of its overt militarization. The fact is that the few resources that it does have are directed towards functions that have very little to do with either combating crime or the maintenance of an orderly and law-abiding citizenry. The resources are either directed into corrupt practices, targeting soft targets, or they are used to abuse fundamental human rights. If one looks at the resources diverted to combating the W2W protests, to cite a recent example, it becomes clear that the problem with the Police in Uganda is essentially a political problem. The resources expended on Chinese Armoured Personnel Carriers (APC), tear gas, pepper spray and water cannon, are not small. That the problem is a political one becomes clear if we were just to look at the main forms of human rights violations committed by the Police, the issue of institutional accountability (or its absence) and the politicization of an institution that is supposed to be essentially technocratic.

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Police Accountability and Institutional Control Accountability is commonly understood as offering an explanation for any actions and omissions and taking responsibility for the commission or omission of actions. 15 Thus, accountability is enforced through internal and external mechanisms. Internal accountability mechanisms include; the Professional Standards Unit and the Police Disciplinary Unit at the headquarters, regional and district level, while external accountability is exercised through the offices of Public Relations, Community Liaison, and the Inspectorate of Government and the Uganda Human Rights

14

See Justice Law and Order Sector (JLOS), 13th Joint Government of Uganda/Development Partner Review: December 1-2, 2008, in New Vision, December 1, 2008 at 24-25. 15 Examples of accountability are; providing reports on fulfillment of its mandate, responding to public and media complaints as well as disciplinary action for errant officers.

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Commission. 16 An analysis of recent media reports demonstrates an improvement in external accountability especially through the actions of Judith Nabakoba, the Public Relations Officer of Kampala and Major General Kale Kayihura, the Inspector General of Police (IGP). The two are well-known personalities in the media, often offering bizarre explanations pertaining to omissions and commissions on the part of the Force. The Uganda Human Rights Commission has also been instrumental in demanding police accountability through its annual reports as well as through Media statements issued during incidents of serious human rights abuse. Despite these recent gains, a cursory inspection of the legal instruments that provide the framework for police accountability will immediately reveal a serious disconnect. The 1995 Constitution provides for the establishment of the force, its functions, command structure, oversight and regulation. 17 Paradoxically, the Police Act is a 1994 enactment, which means that it does not reflect many of the principles of accountability and transparency found in the Constitution. 18 A closer inspection will also reveal that the Act adopted many of the attributes of the earlier legislation, which was essentially a colonial enactment. In other words, complete liberation is yet to come to the police (HURINET, 2008). As was the case with Section 32(2) which was repealed by the Court in the Muwanga Kivumbi case, the whole law is in need of comprehensive review. Thus for example, the Police Council is primarily composed of Police officers, absent a public component. 19 The Constitution too, did not go far enough, because while providing that the IGP will be appointed by the President and vetted by Parliament, the President alone exercises the power of dismissal. 20 Accountability thus runs upwards, rather than down to the Public. It does not even run horizontally to a hybrid body that combines government, the Police itself and civil society. 16

The IGG and UHRC investigate civilian complaints against the Police. See generally, Chapter 12, 1995 Constitution of the Republic of Uganda. 18 See, for example, Principle XXVI (on accountability) of the National Objectives and Directive Principles of State Policy. 19 See Section 8, Police Act, Cap.303, 2000 Laws of Uganda. The President appoints three members, but there is no specification—as is the case with other public appointees who these should be. 20 See Article 213(5), 1995 Constitution of the Republic of Uganda. 17

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The institutional control of the force is made even more complicated by the proliferation of quasi-military bodies exercising police powers, ranging from the secret services (ISO and ESO), to new police organs that sprout every other day—Operation Wembley a.k.a Violent Crimes Crack Unit, a.k.a the Rapid Response Unit; the Joint Anti-Terrorist Team (JATT) or Black Mamba (the group behind the invasion of the High Court) and the more clandestine Kiboko Squad, about which nobody has a clue. The President once pledged to establish a Mutayimbwa Squad to fight steel-bar bearing thugs who were terrorizing the Kampala and Mukono suburbs. During the 2001 and 2006 elections, para-military agencies such as Kakooza Mutale’s Kalangala Action Plan (KAP) were given free reign. Finally, there are a host of bodies of no particular abode or legal status, such as the shadowy outfit under the leadership of Major General David Tinyefuza—the coordinator of national security—who oscillates between the UPDF and the ordinary Police. During the recent “walk to work” riots, there was heightened debate on the membership and mandate of the “infamous plain clothed men” 21 amid confusion that they neither belonged to the Police nor the Army. 22 But such shadowy figures and operations followed by government denial of knowledge or complicity is not uncommon. In June 2010, the Kiboko Squad assaulted FDC Leader, Dr. Kizza Besigye, and other opposition leaders at a rally in Kampala. Although the police denied the allegations that these groups were linked to them they nevertheless failed to arrest any of the squad members. 23 All in all, the presence of illegitimate security agencies and several paramilitary organisations weakens institutional and individual accountability, since in most cases the perpetrators cannot be easily identified. Or when they are identified as in the case of the alleged chief of the Kiboko Squad, they are quickly released ostensibly because there was no complainant in the case!

21

One Plain Clothed man, wearing a yellow jacket threw a hammer at Dr. Besigye’s car and fled while others perpetrated violence against unarmed civilians and were later driven away in police vehicles. 22 NTV, News Edition, 12th April, 2011. 23 Human Rights Watch, Press Release, January, 2011.

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Some attempt at exercising constraint on police excesses is manifest in the creation of the Professional Standards Unit, although this has focused primarily on bribery, abuse of office and corruption. On the other hand, the Human Rights Desk has investigated complaints of misconduct, torture and harassment, although it is not clear precisely what sanctions are applied. Moreover, the desk is confined to Kampala, which means that the extent to which human rights concerns are integrated into the policing process in the outlying regions is questionable. This lacklustre response to police brutality and human rights abuse creates fertile ground for the entrenchment of a culture of impunity.

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Protecting Civil and Political Rights and Freedoms We have already taken note of some of the significant advances made with the 1995 Constitution. In spite of such change, Uganda still faces considerable challenges with respect to the observation and protection of civil and political rights. An analysis of recent events clearly reflects the use of excessive force by the Police during arrest and detention. This problem is compounded by increasing violence, furthered by irregularities surrounding the run-up to and aftermath of the 2011 presidential and parliamentary elections. Prominent examples are drawn from the June 2010 Inter Party Coalition (IPC) demonstration against the Electoral Commission and the April and May 2011 W2W uprisings. The response to the disturbances has been beatings, water canon spliced with pink and blue dye, as well as pepper spray and the deliberate use of lethal weapons. Such incidents are attributed to a number of factors including; inadequate training, negligence on the part of law enforcement officers, as well as a failure to operationalize guidelines on the use of reasonable force during arrest and detention. Although the Ministry of Justice has issued guidelines on procedures and standards for arrest, these have been shelved since 2008 and very little is known about their existence. 24

24

Workshop Report of the National Round Table on Individual Responsibility and Institutional Response to Torture, ( unpublished), Organised by Avocats Sans Frontieres, held on , 3rd -4th December, 2009, at Rida Hotel Mukono.

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Torture—practiced in the main by state institutions such as the Police—remains a serious problem. While (according to the Uganda Human Rights Commission) the numbers may be lower in 2010 than they were the year before, the fact that the numbers are still high remains an issue of concern. But the problem is compounded by the complete lack of effective accountability and respect for the dignity and justice of tortured persons. In the first instance, the government does not treat the compensation of torture victims as a priority, despite the rather modest awards made by the Uganda Human Rights Commission (UHRC). Secondly, there has been an abject failure by the government to do anything about the torturers. Every year, the UHRC’s annual report makes the request to government to enact a specific law on torture. The 2009 Prohibition of Torture Bill is yet to be passed into law. Furthermore, even when the Commission has found persons in government institutions guilty of torturing individuals, nothing is done in order to bring the torturers to account; business continues as usual. In addition, judicial officers have been reluctant in reporting cases of torture. The Evidence Act requires judicial officers to inquire into the circumstances of making a confession. As such, they are supposed to rely on this mandate to make an administrative note against perpetrators of torture and further advise victims to seek redress. This has not been the case, at least not in practice. In addition, the lack of a comprehensive law on witness and victim protection increases the vulnerability of suspects during arrest and investigations. Also, the lack of a specialized desk that handles cases of torture within the offices of the Directorate of Public Prosecutions (DPP) and Police creates loopholes during the investigation of torture complaints. 25 Despite pressure from both within and outside Uganda, impunity for human rights abuse persists. This is evident in the failure on the part of the government to investigate the deaths of at least 40 people killed during the September 2009 riots as well as the numerous cases of brutality perpetrated during the 2011 April “ Walk to Work” riots. Instead, the Police took out a full page advertisement full of photographs of those who were alleged to 25

Interview with Nicholas Opiyo, Advocate on 11th April, 2011.

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have perpetrated the violence, requesting for information as to their whereabouts. On the part of the Police and Army officers who wantonly opened fire on innocent civilians and lobbed tear gas canisters in schools and health clinics, sanctions have been minimal if non-existence. The height of government inaction came with the State denial of some of those agents who were caught on camera committing violent acts. Within this context a culture has developed for high government officials—from the Inspector General of Police to the President—to dismiss claims and denigrate those institutions (such as the courts) which are at the vanguard of protecting the victims of state abuse. The President and senior government’s officials such as Minister of Internal Affairs Kirunda Kivejinja and State Minister for Defence Amama Mbabazi have simply increased the level of tolerance for police violence meted on unarmed civilians. Instead of apologizing for the violations President Museveni has now proposed new legislation to ensure that the ‘indiscipline ends and that the media is brought back in line: Weaknesses in the existing laws, too much laxity by elements of the Judiciary and Police allow all the indiscipline and criminality to persist.... We apologise to our guests who were inconvenienced by this hooliganism and irresponsibility. However, those that were responsible will be held accountable for their crimes. Besides, the NRM has already started the process of strengthening the law by amending the Constitution and the Penal Code to ensure that this type of indiscipline ends. 7KH PHGLD KRXVHVȥERWK ORFDO DQG international such as Al-Jazeera, BBC, NTV, The Daily Monitor, etc. that cheer on these irresponsible people are enemies of Uganda’s recovery and they will have to be treated as such. 26

Although the President did apologize for some of the violations committed by the Armed Forces, it was a lukewarm acknowledgement of fault, and even then it was a backhanded slap at the Police for not using more force against the Besigye procession:

26

Yoweri Kaguta Museveni, ‘We Shall Know Them By Their Fruits,’ New Vision, May 18, 2011 at 14-15.

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Yes the Police have made their own mistakes, including their reluctance to eject Besigye from Entebbe Road when they failed to meet the one-hour deadline as had been agreed upon. There was also the criminal killing of a baby in Masaka and I have condemned the act of caning civilians. Wrong-doers should be arrested and handcuffed, not beaten. 27

Backhanded apologies of this kind are not new, but simply reflect a government that really does not have the best interests of its citizenry at heart. There has never been a Commission of Inquiry into any excessive Police action, whether in relation to the many times they have disrupted opposition rallies and procession, or even in relation to suspicious deaths in Police custody. All this amounts to the development of a high culture of impunity. It is a culture which says we will ‘talk the talk,’ of human rights, but not ‘walk the walk.’ But the Police appear to reserve their most serious violations for the Media. Indeed, even a casual glance back over recent years will reveal that the Ugandan Police has a serious problem with respect to the issue of freedom of expression. It seems like every other day one journalist or another is hauled to the Serious Crimes division of the CID or in front of court to face charges of an essentially criminal nature. What is most alarming is that those charges relate almost exclusively to political commentary. Thus, Andrew Mwenda had a total of 21 criminal charges including sedition and ‘promoting sectarianism’ levelled against him, not to mention the many other charges which have simply been dropped. On the day he received the International Press Freedom Award in New York on November 20, 2009, plainclothes officers from the CID delivered criminal summons to his office, making the charges 22. 28 Ssemujju Nganda formerly of the Weekly Observer and several journalists of the Monitor are not far behind in their tally of visits to the CID to face trumped-up charges. Moreover, the record of successful prosecutions is abysmal, indicating that the objective of pursuing such ‘crimes’ has nothing to do with improving the overall 27

Id. Committee to Protect Journalists, ‘Honoured in Washington, Editor Wanted by Police Back Home,’ AllAfrica.com, accessed at: http://allafrica.com/stories/200811201078.html. 28

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conditions of law and order in the country. It is thus not surprising that on August 25, 2010, the Constitutional Court, responding to a petition filed by Andrew Mwenda and the East African Media Institute, ruled that the crime of Sedition was unconstitutional. 29 Most recently, the police and military have intensified their fight against media journalism by confiscating media equipment and harassing journalists covering protests and other civil disturbances. The Broadcasting Council went so far as prohibiting Media houses from airing live coverage of the protests. The straw which broke the camel’s back came when General Kayihura proposed that journalists covering protests and similar events be accredited. In response journalists vowed not to cover Police press briefings and conferences or government owned media houses like such as the Media Centre, until their grievances were resolved, and punitive proposals against the Media shelved. 30 The political colour of the offences brought against Media persons is made clear by the persons who are mainly targeted by them. Thus, in early 2008, despite a court order allowing two live political talk shows on Life FM in Fort Portal to resume broadcasting, the Police issued warnings about the station’s future programming. Interestingly enough, when the five panellists on the talk show were initially arrested by the Police and detained for two days, two NRM supporters who also appeared on the show were neither questioned nor arrested. To compound matters even more, when the five complained about the delay by the Police in probing an acid attack on the radio station, they were again arrested. Freedom of expression has never been in a more precarious state than it is in the country today. And the Police has done more than its fair share in ensuring that this state of affairs prevails in the country at the present time. Of course the most spectacular recent Police action in defying the law would have to be the recent arrest and detention of three 29

Andrew Mujuni Mwenda and East African Media Institute (U) Ltd v. Attorney General, [Consolidated Constitutional Petitions Nos. 12 of 2005 and 3 of 2006]. Unfortunately, the Court upheld the constitutionality of the crime of promoting sectarianism which deals with any act promoting “feelings, of ill will or hostility” on account of religion tribe, ethnicity or regional origin. 30 NTV News Edition, 14th May, 2011.

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ministers from Buganda, including Peter Mayega, Medard Lubega and Betty Bakireke Nambooze. In the first instance, the manner of arrests violated every principle in the book. 31Secondly, they were held incommunicado, effectively ‘disappeared’ and denied contact with family, medical care and legal counsel. 32 Thirdly, and despite the elaborate charade that accompanied the arrests, the eventual charges issued against them were laughable. Given the acute embarrassment that surrounded the whole incident, it is not of any surprise that the whole affair was allowed to quietly recede into the background. Such arrests hark back to Milton Obote’s detention of Grace Ibingira and several other government ministers, clearly reflecting the precarious situation in which we are now in. During the more recent ‘walk to work’ riots, Democratic Party president Norbert Mao and Kizza Besigye were both arrested and detained in Nakasongola, an ungazetted military detach. Concerns have also been raised with regard to the manner in which suspects are treated and interrogated. Suspects are often labelled as” hard core criminals” and paraded before the media by police authorities, a clear violation of the right to the presumption of innocence since it creates bias amongst members of the public including law enforcement officials and further minimizes the effective dispensation of justice (Foundation for Human Rights Initiative, 2009, at 56). But what of the right to freedom of assembly, a right closely linked to the right to expression and by necessary implication the right to democratically oppose the government of the day. How have the Police performed in respect to this right? In the first place, legislation that contravenes the freedoms of assembly and association still exists and this further retards the process of democratizing the police Force. A case in point is Statutory Instrument No. 53 of the Police Act which came into effect in September 2007 and allows the Police to break up gatherings of 31

In January, 2010, 33 women from the Inter-Party Coalition (IPC) were charged with illegal assembly and in June, they were severely beaten. Four of them were hospitalized as they exited a court appearance. 32 During the Rukiga by-election in March, 2010, police detained six opposition members and beat others who attempted to bring food for the detainees, leaving one victim of the assault in a coma.

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more than 25 people in certain gazetted areas and thus requiring anyone intending to hold a demonstration to seek permission from the Police Force. Even more contentious is the proposed Public Order Management Bill, which gives the IGP and Minister for Internal Affairs wide discretion over the management of public assemblies. These proposals curtail the freedoms of assembly and seek to re-introduce provisions of the Police Act Cap 303, which were nullified by the Constitutional Court in the case of Muwanga Kivumbi v. Attorney General of Uganda.33 However, during the aftermath of the September 2009 riots, and the 2006 and 2011 elections, security agencies including the Police have instituted “preventive deployment” to warn potential demonstrators and effectively discourage any attempts to hold public assemblies. This has been heightened by the increased arrest of opposition political actors. The numbers of political actors who have been bounded off into police cells is alarming. This manner of imposing limitations on the exercise of basic freedoms does not lend confidence to the legitimacy of the Police as measured by the yardsticks set forth. In addition, despite the claim by Minister Kahinda Otafire that the harassment and arrest of opposition MPs are carried out by, “… those junior police officers whose ranks I even don’t know….,” 34 the fact is that given the chain of command that is in place in the Police, it is highly unlikely that a junior officer could execute an arrest without first making reference to his or her superior officials. But there is also immense confusion in the orders which are given and on the sanctions which are issued. Hence, ASP was first congratulated by General Kayihura for escorting opposition MP Nandala Mafabi to Parliament (rather than stopping him) and thereby averting any of the usual chaos that had come to characterize the W2W protests. The next day, the news was that the officer had been reprimanded and interdicted, with General Kayihura offering a rather ludicrous explanation for the action.

33

Constitutional Petition No 9/05. See Risdel Kasasira & Sheila Naturinda, ‘No Need for Police Permission— Otafiire,’ Daily Monitor, November 14, 2008 at 6 and Madinah Tebajjukira, ‘Otafiire Raps Sempala Arrest,’ New Vision, November 14, 2008 at 5. 34

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Indeed, the refrain “…these are orders from above...” issued by hapless Police officers like Edward Ochom and Assan Kasingye, is always present whenever such operations of arrest or the prevention of assemblies are being carried out. If indeed junior officers are acting in violation of their powers, why hasn’t any disciplinary action been taken against them? Furthermore, if the arrest might be legitimate, the manner of its execution may nevertheless raise serious questions regarding police conduct. The saga over freedom of assembly represents the height of the abuse of police powers, captured in the issue of whether or not Police permission is a pre-requisite to the holding of an assembly or public demonstration. The Police insist that such permission is a mandatory requirement. 35 Indeed, in November 2007, the Minister of Internal Affairs issued regulations compelling gatherings of 25 people or more to assemble in only specifically-gazetted areas and to secure a permit for the holding of “…an assembly, demonstration or procession” within such area from the IGP. 36 However, in the landmark Constitutional court decision of Muwanga Kivumbi v. Attorney General, 37 it was clearly stated that Section 32(2) of the Police Act gives the IGP excessive powers which can be used indiscriminately to curtail people’s rights and freedoms of conscience, speech, association and assembly. In sum, the Police do not have the power to prevent the convening of an assembly or procession. 38 Finding that the powers given to the IGP to prohibit the convening of an assembly or procession were an unjustified limitation on the enjoyment of a fundamental right, Justice Byamugisha stated, The right to peaceful protest is not absolute. The police have a wide range of powers to control and restrict the actions of protestors. These powers should not be exercised by the police in an unaccountable and discriminatory manner … In the matter now 35

Cf., The Uganda Human Rights Commission has issued guidelines on this issue (UHRC, 2007). 36 See Regulations 2, 3, 4 and 5 of the Police (Declaration of Gazetted Areas) Instrument, Statutory Instrument No.53 of 2007. 37 Constitutional Petition No.9/95. 38 Interestingly, this point has been reiterated by Local Government Minister, Kahinda Otafiire.

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before us, there is no doubt that the power given to the Inspector General of Police is prohibitive rather than regulatory. It is open ended since it has no duration. This means that the rights available to those who wish to assemble and therefore protest would be violated.

Rather than accepting the decision, the government decided to appeal it to the Supreme Court. In the meantime, and in a clear display of contempt of court, General Kayihura declared that the Police would ignore the judgment. 39 Once again, political (rather than technocratic) considerations were mainly at play in the chief policeman’s reaction. In effect, the above provisions contravene Article 92 of the 1995 Constitution which prohibits enactment of legislation designed to defeat or overturn a judicial ruling. Although there have been several misinterpretations of this ruling, the ruling did not nullify Section 32 (1) (b) which provides for the powers of the police to regulate assemblies. 40 As a partial response to the difficulty in balancing police powers and freedoms of expression and assembly, the Uganda Human Rights Commission developed the Guidelines on Public Demonstrations which emphasize that in limiting the freedom of assembly, the notion of breaching the peace is a paramount consideration. In addition, in order to provide a fair balance between exercise of freedoms and limitations there under, due consideration should be given to Article 43(2) which provides that any limitation should not be beyond what is justifiable and acceptable in a free and democratic society. The Supreme Court of Zimbabwe formulated the criteria for imposing limitations on guaranteed rights. These include: (i) The legislative objective which the limitation is designed to promote must be sufficiently important to warrant overriding a fundamental right; (ii) The measures designed to meet the objective must be rationally connected to it and not arbitrary, unfair or based on irrational considerations; and (iii) The means used to impair the right or freedom must be more than necessary to accomplish the objective. 41 39

See J. Oloka-Onyango, ‘Maj. Gen. Kayihura Should Be Arrested,’ New Vision, June 18, 2008 at 34. 40 Interview with Assistant IGP, Julius Sharita, on 11th April, 2011. 41 Mark Gova & Anor v. Minister of Home Affairs & Anor [S.C. 36/200: Civil Application No. 156/99].

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Of critical concern is the failure to recognise and uphold the rights of police officers who are also victims of the violence perpetrated during demonstrations. Often times, when an officer is injured during a riot, very little attention is drawn to that incident. As such, in order to encourage a culture of human rights, the police officers need re-assurance from the wider public and government that their rights will also be upheld. 42

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From Politicization to Impunity With overt politicization and the lack of democratic accountability comes impunity, demonstrated most graphically by the words and actions of the IGP in ignoring the Muwanga-Kivumbi court decision. As justification, the IGP argues that the case was appealed by the Attorney General. While an appeal against the Constitutional Court decision has indeed been lodged with the Supreme Court, this does not mean that the orders made by the former are in abeyance. Those orders remain the law until the Supreme Court decides otherwise. Hence, the Inspector General has an obligation to ensure that the law as interpreted by the Constitutional Court is enforced. Impunity finds expression in other ways too. Thus, the disciplinary process in place within the Police is highly partisan and dependant on the whim of the Inspector General. Provided the action taken is directed against the political opposition, few sanctions will follow. To date, there is no indication of any action having been taken for example against Arinaitwe of the Kizza Besigye debacle during the Walk-to-Work protests. Promised inquiries (such as those over the Police killings at the Kasubi Tombs fire) have yielded no known results, and the pressure to produce any official response has now died away. Penalties for torture, other human rights violations or the abuse of office by Police officers are few and far between. The act of taking responsibility for the numerous mishaps and omissions committed by the police is a rarity. All this is a reflection of the fact that the Police is ultimately accountable to the President. To borrow the words of Alice Hills, “…policing is shaped by the politics of 42

Interview with Assistant Commissioner of Police, Mr. John Kamya, op.cit.

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political order and accumulation in ways that are at variance with the requirements of accountability.” (Hills, 2007, op. cit., at 404). Indeed, the refrain “…these are orders from above...” issued by hapless Police officers such as Edward Ochom and Assan Kasingye, is always the first excuse whenever opposition politicians are arrested or assemblies and protests prevented. If indeed junior officers are acting in violation of their powers, why hasn’t any disciplinary action been taken against them? Furthermore, if the arrest might be legitimate, the manner of their execution may nevertheless raise serious questions regarding police conduct. Against the reluctance to sanction any of its officers for excesses committed in the field of action, the Police has also failed to effectively carry out its basic function, the prevention and sanction of ordinary crime. Thus, not a single one of the nearly 30 plus suspected arsons and in some cases fire-related deaths that ravaged schools all over the country in 2009—with the largest being at Budo Junior School—have been satisfactorily solved. The CID remains under-equipped, poorly staffed and handicapped by methods of investigation that belong in the 19th century. At the end of the day the Police has become top-heavy with a focus on the sanction of opposition politicians and imagined enemies of the government of the day. With most of its resources devoted to ensuring regime stability, there are few prospects that the struggle against impunity and human rights disrespect can be won.

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Towards a More Democratized Police Force: What Needs to be Done From the preceding account it is quite clear that central to the problem with the exercise of police powers in Uganda is that it is essentially undemocratic, directed in the main to protect the ruling political power, and ideologically and structurally committed to the elimination of all manifestations of opposition—legitimate or otherwise. Consequently, there is a compelling need to make the Police more responsive to the needs and expectations of the public, and to use their authority in the interests of the people, rather than against them. In the words of one observer: “Progress towards democratic policing is made when there is a shift “from a control319

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oriented approach to a more service-oriented approach,” where the primary concern of law enforcement remains focused on proactive crime prevention.” OSCE, 2006). That shift is long overdue within the context of the exercise of police powers in Uganda. Some steps have been taken through the initiation of a reform process that has been underway since 2007 (HURINET, supra). However, there are additional problems that still need to be urgently addressed.

The Question of Resources It goes without saying that the Police needs to be adequately resourced in order to effectively carry out its basic functions, a point repeated by virtually all studies and inquiries into the operation of the force (GoU, Mushemeza, n.d.). However, this is not the case with the Police in Uganda today. Thus, in a recent review of the Police force’s budget, it was observed that,

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Funding to the UPF is way below the levels necessary for it to carry out effective policing. Furthermore, its growth has progressively lagged behind that of reported crime. This is particularly the case with the Force’s development budget whose size as a share of the Force’s overall budget has reduced by more than half over the review period (CHRI, 2006 at 38).

Although the above analysis considered the situation in the Police more than five years ago, little has changed since. Detective work in the force is moribund. Sophisticated crimes of fraud and contraband are beyond detection or sanction. 43 There is only one finger-printing expert in the entire force, while modern techniques of criminal investigation—such as the use of DNA evidence—are outsourced (if resources are made available for such action) or privatized. The living conditions and circumstances of the vast majority of the Force defy description. Mushemeza highlights this problem with regard to the situation of policing in the post-conflict context of Northern Uganda:

43

In a candid interview with the Daily Monitor after retiring, former Deputy IGP Julius Odwe stated that the Police were simply too inexperienced and lacking in knowledge to conduct serious investigations. See Odwe interview, supra.

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The most common complaint by the police continues to be a lack of logistics in terms of transport, communication equipment and acceptable detention cells. The capacity and numbers of police personnel remains a problem particularly in the Karamoja area... In addition to this remuneration of the police remains a problem.... Without a comprehensive effort to regulate and maintain adequate police remuneration, the police are likely to remain inefficient and ineffective of course open to bribery and corruption (Mushemeza, 2008 at 9). This situation is especially paradoxical since Northern Uganda was targeted as a priority area under the Peace, Recovery and Development Plan (PRDP) a program that was designed to focus heightened attention on the area in the aftermath of the devastation wreaked by the 20-year insurgency. Ironically, in those parts of the country which have not experienced insurgency, the situation is little better: The size of the Force’s development budget is very small for it to make any meaningful investment in the kind of assets required to tackle crime. Not only is the level of actual resources allocated under its development budget far below what is required, the release of these allocations is also persistently below their approved levels … the small size of the UPF budget and the declining trend of its development budget are gradually crippling the capacity of UPF to effectively curb crime and contribute to citizen safety (CHRI, 2006 at 31 and 32-33). While the fact of under-funding may be true, there is nevertheless a need to ensure that the meagre resources which do reach the institution are not squandered either in petty graft, or in increasing the levels of harassment on opposition political actors: what are available resources used for? Thus, an analysis of the amount of time, energy and human power expended on dead-end persecutions of journalists and opposition politicians will clearly demonstrate that these are resources used both inefficiently and ineffectively. The height of such abuse was witnessed in the Kizza Besigye rape prosecution in 2001, which even involved the hiring of private legal

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counsel (at state expense), and the bribery of state witnesses. 44 Indeed, the conclusion of the court in that case was a devastating indictment of the levels of interference to which the Police in Uganda has today been subjected. Describing the whole prosecution as ‘crude and amateurish,’ Justice Katutsi went on to state (paraphrasing Lord Brougham): The evidence before this court is inadequate even to prove a debt; impotent to deprive of a civil right; ridiculous for convicting of the pettiest offence; scandalous if brought forward to support a charge of any grave character; monstrous if to ruin the honour of a man who offered himself as a candidate for the highest office of this country (Id., at 12-13).

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The fact is that interference in the operations of the Police has reached a peak. Appearing before the Commission of Inquiry into the September 2009 fire at the Kasubi Tombs, then Deputy Inspector General of Police Odwee made the startling observation that ‘the system’ did not allow the Police to work in accordance with the designed policies, structures, laws and standing orders. 45 He also stated that the force lacked independence in the identification of staff, the assignment of duties to staff, supervision and accountability; even though there were polices and standing orders in place, in most instances, these were simply honoured in the breach (Id.). Even when funding is improved, serious questions arise as to what the resources advanced to the institution are spent on. Quite clearly it is not crime prevention. There can be no doubt that the most phenomenal growth witnessed in the Police in recent years 44

Aisha Nakiguli the main prosecution witness was given a house and a poultry business in Nalya. According to Justice Katutsi, ‘… while I do not go to the full length of imputing fraud on the part of the police, I am with respect forced to observe that the circumstances of this case seem to me to suggest a course of conduct by the police to secure evidence using methods that seem to amount to an abuse of process.’ The judge concluded by stating that such evidence was ‘tainted,’ ‘disgraceful and unworthy of credit.’ See judgment of Justice John Bosco Katusti in Dr. Kizza Besigye v. Uganda (H.C.C.S. No. 148/2005; unreported), at 10. 45 Madinah Tebajjukira, ‘I Learnt of Kasubi Fire From the President,’ New Vision, January 18, 2011 at 4.

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has been in the arena of crowd-control, anti-terrorism measures and the prosecution of what can only be described as political offenses. At the same time, the part of the Police which has suffered most is that concerned with ordinary criminal investigation. But it is obvious that without directing increased resources towards such vital police functions, there can be no fundamental change in its functioning. Alice Hills points out that, ‘[B]ut resources in themselves are insufficient because nothing changes policing in the absence of appropriate political direction or sanction.’ (Hills, 2001, at 4). The resources of the Uganda Police are either directed into corrupt practices, the targeting of soft targets, or they are used to abuse fundamental human rights. As the February 2011 elections approached, the issue of prioritization was highlighted by the increased investment in the more coercive instruments of state repression such as tear gas vehicles, armed personnel carriers, water cannon and pepper spray. 46 Moreover, the investment in such equipment was obviously designed to enhance regime control and domination and not to improve the capacities of the Police to actually carry out its main statutory function of combating crime. What then emerges is the fact that the Police is used as a low-cost tool to guarantee that the regime remains in power. It is thus clear that the problem is a political one, a point that becomes even more apparent if we were just to look at the issue of institutional accountability (or its absence), the main forms of human rights violations committed by the Police, and the politicization of an institution that is supposed to be essentially technocratic.

Enhanced Policing

Public

Accountability

and

Democratized

Reform of the Constitution in order to improve police accountability would be ideal. However, such a goal may be a difficult thing to accomplish given the context of political reality in the country today. Thus more attention should focus on minimizing the degree to which the current lines of accountability which run 46

See, ‘Police Force Should Attend to Basics,’ (Editorial), Daily Monitor, January 18, 2011 at 10.

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from the Police Force to the President can be redirected. There are possibilities in this regard if one focuses in the first instance on the Police Act, and the various regulations that have been enacted under it. A comprehensive overhaul of this instrument is long overdue, wherein the colonial-oriented, control-obsessed method of policing which runs through it can be expunged. The role, composition and function of both the Police Council and the Police Authority need to be re-examined in order to reduce on their incestuous character, and to open them up to public participation. The opportunities provided by the enactment of the Police Act in 1994, the Sebutinde Commission in 2000 and the amendment of the law in 2006 have not led to fundamental reform. It is also essential that the dual control (and thus the doublebind) over the head of the Police the Inspector General is reformed. Thus, the President’s unfettered powers of appointment and dismissal of the IGP need reform. Although we have now moved to a contractual situation in terms of appointment and tenure, it is clear that the methods of appointment of the IGP require reform. In the first instance, there is no transparency in the process. There are no interviews and the President makes the selection based on criteria that are unknown to anybody other than himself. There is no competition for the post, by way of advertisement neither does the vetting process in Parliament subject the nominee to anything more than a perfunctory assessment, moreover in the absence of public input or scrutiny. The second aspect of the bind is that the IGP still serves at the total mercy of the President. This is clear if one looks at the different tenures of the IGPs that Uganda has had since the NRM came to power in 1986, ranging from 7 years at the highest (John Cossy Odomel) and less than 1 year at the lowest (Psomgen). It is only with the current IGP that a contractual situation has been introduced to the post, stabilizing somewhat, the issue of tenure. 47 This point is captured in tabular form below:

47

Indeed, the contract of Police chief Kale Kaihura, was only recently renewed for a three year period. See Stanley Ndawula, ‘In Things: Sevo Gives IGP Kayihura 3rd Term,’ Red Pepper, October 17, 2011 at 6, and Andrew Bagala, ‘IGP Kayihura’s Contract Ends Today,’ Daily Monitor, October 25, 2011 at 8.

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Table 14.2: Inspectors-General and Commissioners of Police of Uganda (1959 to 2011) NO. 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16.

NAME Michael J. Macoun Erinayo Wilson Oryema Benjamin Othieno Luke Ofungi Kasim Musa Obura David Nsubuga Barlow William Musoke Luke Ofungi (re-appointed) Boniface Aaron Okoth-Ogola Luke Ofungi (re-appointed) David Psomgen Apollo Byekwaso John Cossey Odomel John Kisembo Lieutenant-General Katumba Wamala Major-General Edward Kale Kayihura

PERIOD SERVED 1959 – 1964 1964 – 1971 1971 – 1974 1974 – 1975 1975 – 1977 1979 1979 –1980 May 1980 – Dec 1980 Dec 1980 – May 1985 May 1985 –1990 1990 1990 – 1992 1992 – 1999 1999 – 2000 2000 – 2005

YEARS 6 8 4 2 3 1 2 8 months 4.5 5.5 1 3 8 2 6

2005 –PRESENT

7+

Source: The Uganda Record (http://www.ugandarecord.co.ug), Nov. 11, 2010, Vol. 1, Issue No. 71

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Nevertheless, there is no doubt that the incumbent will only keep the position while useful, and discarded if President Museveni is offended by his actions (Hills, op. cit., at 411). This means that the IGP cannot disobey the President, and does so at his (or her) own peril; although technocratic on the face of it, the position of IGP is quintessentially political. Indeed, this reflects the broader pattern of policing in post-colonial Africa. As Alice Hills points out: Despite significant shifts over the last two decades, policing remains an expression of presidential preference, and the key variable in police governance is a president’s political calculations. Similarly, the main constraints on an IG’s power are political. This is not to argue that police reform and a relatively democratic political environment cannot make a difference, or should not be attempted even where police establishments remain politicised and subject to presidential control. Rather it is to suggest that similar patterns of manipulation and response are identifiable across Sub-Saharan Africa (Id., at 420).

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Below the IGP and the higher officers in the force, the focus then needs to move to the middle and lower-ranking cadres in the forces. Section 44 outlines the general obligations with regard to discipline, while the Police Standing Orders provide the more specific obligations and prohibitions that attach to policing. They also provide for sanctions in the event of police misconduct (HURINET, 2009 at 8). The Professional Standards Unit of the Police Force was established by General Kayihura in 2007. Since inception, the PSU claims that many officers have been prosecuted in the Police disciplinary courts of Law, although there are no figures to support this. PSU revealed that all cases that are reported to them are investigated, and usually the action that is taken ranges from being taken to criminal courts if the evidence can sustain a case, being sued in civil courts, or facing disciplinary action under the Police Disciplinary Courts (HURINET, 2009, at 28-29). For others, administrative action is taken in accordance with the Police Code of Conduct such as dismissal from the force, demotion, the payment of fines or severe reprimand. Concerning the abuse of human rights particularly the right to be free from torture there are still many outstanding questions about the accountability of the Police. For example, how many suspects have been able to invoke the provisions of the Act in order to ensure that their torturers are brought to book? Moreover, the Police Disciplinary Code of Conduct protects an officer who takes away the liberty or rights of any person without reasonable cause. 48 What is the bench mark of unreasonableness in the police force? It is also notable that the penalties imposed on a guilty officer are not comparable to the pain that a torture victim undergoes since the worst an officer can face is dismissal from the force. To compound it all, the mechanism for accountability is wholly internal; there is no independent Police complaints commission as exists in many countries around the world. There is a larger issue involved in terms of accountability, which relates to the role of the head of the Police with respect to the commission of serious human rights violations. Thus, although the incidents of police abuse and brutality are numerous, the accounts 48

Police Act, Schedule, s. 2(a).

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of prosecution or other sanction of offenders within the force are few and far between, and often occur only after protests from Parliament, the Media or civil society.49 Such actions are done much more as a public relations exercise than as part of any serious commitment to ensuring police accountability.50 Furthermore, even where there are reports of inquiries being undertaken, no indication as to punitive sanctions against violators is provided. 51 To date, no disciplinary proceedings have been taken against Gilbert Arinaitwe the plainclothes officer who smashed Kizza Besigye’s car window and sprayed pepper spray directly into his face.52 There is a general perception that the Police is not up to the job, translating into the need for the building of public confidence in the force (HURINET, 2010 at 44). It is thus clear that neither the internal nor the external mechanisms of accountability over the Police are sufficient. With regard to the former, there is a great need for enhanced transparency about the internal mechanisms for complaint against police abuse that are actually available. Secondly, there is a need for the actions which those mechanisms take (especially the various disciplinary courts) to be publicized. A third problem relates to complaints by Police officers themselves, especially where there is an issue of superiority involved: in effect, these courts act as judges in their own causes when complaints are filed by junior officers against their seniors. Finally, there are no mechanisms of appeal above the internal institutions of discipline and complaint. It is also necessary that the Police periodically conduct internal independent inquiries focusing on some of the key general issues of complaint that the public makes about the force. At the level of external accountability, it is quite clear that those institutions such as the courts, the UHRC and the IGG which play 49

Michael Mubangizi, ‘Police Launch Probe into Their Excesses,’ The Observer, April 21-24, 2011 at 2. 50 See for example, Steven Candia, ‘Two Cops Held Over Brutal Arrest,’ New Vision, March 1, 2011 at 4. 51 See Andrew Bagala, ‘Police Officers in Trouble Over Kiboko Squad,’ New Vision, March 4, 2011 at 6. 52 See the front-page picture captioned ‘Oh Uganda!’ Daily Monitor, April 29, 2011 at 1, and Emmanuel Mulondo, ‘Tears as Police Soak Besigye in Teargas,’ Daily Monitor, April 29, 2011 at 3.

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the role of outside evaluator of Police conduct are simply too distant from the force. Moreover, they deal with a host of other issues, both public and private, meaning that they already have enough on their respective plates, and they are easily ignored or simply dismissed by the Police leadership. The two Commissions of Inquiry into the Police served a very useful purpose, however there are questions about the degree of follow-up and implementation of their recommendations. Given all this, it is time that an Independent Police Conduct or Oversight Authority or Commission be established. Such an authority would receive and evaluate complaints against the police from both the public and from police officers themselves, hear and determine such complaints and monitor and review the internal handling of complaints against the Police. The Authority/Commission would be headed by a High Court judge (or the equivalent) assisted by a select number of commissioners drawn from civil society, academia, the religious community, the general public and the Police itself. The Authority would: (i) monitor police performance; (ii) initiate and investigate allegations of police misconduct; (iii) receive and investigate complaints from serving officers, and (iv) oversee the internal police complaints mechanisms.

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Decentralization, tolerance’

Community

Policing

and

‘Zero-

It has always been a strange phenomenon that with all the benefits touted about the system of decentralization and its deployment in Uganda, the Police Force remains one of the most highly-centralized agencies of government. Contrast this to the United Kingdom where there is no national police service and there are a total of 43 police services, mainly accountable to local communities (Warburton, op. cit., at 16). Centralization of the police in Uganda has had a largely negative effect on the operation of the force and on its effective functioning. This is because the police officers who operate at the local level ultimately take their orders from above. The ‘above’ in this instance is Police headquarters in Kampala, irrespective of the distance in terms of knowledge and appreciation about local conditions. Thus, the response of the 328

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Police to protests and other expressions of political dissent is remarkably uniform, wherever they occur. 53 The problem with a uniform response to policing is that single size solutions cannot be used to deal with the great diversity of issues that may arise at the local level. Furthermore, the one-sizefits-all approach shifts the lines of accountability from the police in the area to the local community in which they are operating, and moves it to Police headquarters. This is especially the case when the Police has to deal with issues relating to political association and assembly. In this way, the Police come to be regarded as a partisan collaborator with operators of the ruling party at best, or as part of the apparatus of political repression at worst. Secondly, when directed from the centre, policing becomes a matter of balancing the small budgets that have been received from the central government and determining how allocations should be made in accordance with formulae that often have nothing to do with local realities and challenges. Decentralization of policing is thus an issue which needs more attention. As an attempt to address this issue of recent years, the phenomenon of community policing appears to have occupied a much more prominent position in the lexicon of police reformers, both local and international (di Puppo, 2010). Community policing is supposed to be the coming together of the police and citizens to work collaboratively on identifying crime related problems so as to maintain law and order within the community. Community policing focuses on crime and social disorder through the delivery of police services that include aspects of traditional law enforcement, preventive measures, problem solving, community engagement, and partnerships. The main argument of the proponents of this methodology of policing current IGP Kayihura being one of the most vocal is that community policing has played the role of bringing the police into closer interaction with the people they are 53

See, for example David Mafabi, ‘Police Block Sironko walk-to-work,’ Daily Monitor, April 28, 2011 at 6. A recent publication by Activists for Change (A4C) highlights the country-wide nature of the crackdown against protest that has taken place since early in the year. See Ann Mugisha, ‘Crackdown on Ugandan Activists: When Walking to Work Became a Crime of Treason,’ A4C, Kampala, October 24, 2011.

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supposed to be serving, and to somewhat demystify the institution. As a result, recent years have witnessed stepped-up efforts by the Uganda Police to reconnect with the community through increased foot and vehicular patrols, the employment of ordinary civilians in policing roles, and an emphasis on problem-solving rather than incarceration and punitive action, i.e. working with, rather than targeting the community in a proactive manner (Mushemeza, 2008 at 13). While the theory of community policing would appear to be a positive reform, there are many reasons why there is a need to be cautious in appraising this latest import (Ruteere & Pommerolle, 2003). In the first instance, it is not a home-grown response to local issues, but part of the broader framework of donor-designed schemes to address Security Sector Reform (SSR) in post-colonial and transition societies. In the words of Mike Brogden, ‘Community policing, whatever it actually means in practice, is the central thrust of a drive to export policing techniques, whether to the former Soviet bloc countries, to the Indian sub-continent, or to English-speaking societies in Africa.’ (Brogden 2004, at 637.) More importantly, although touted as a new concept particularly by current IGP Kayihura as a matter of fact it was introduced in Uganda as far back as 1989, initially as a pilot, and latterly incorporated into British assistance to the Force (Biddle et al, (2000)). This marked the first pitfall to the policy, the top-down and non-consultative manner in which what was an essentially foreign design was sought to be introduced in a context different to that where it was first developed. It is thus not very surprising that the first attempt at community policing faltered after a few months. Subsequent attempts at revival have remained on the books, or as Mushemeza has pointed out, confined to the Department of Community Affairs (Mushemeza, 2008, op. cit., at 13). It is thus something of a surprise that Kayihura touts the idea of community policing as if it is a central and critical element in the approach of the Uganda Police towards the problems of crime facing the country. What becomes clear is that it is used much more as a tool of public relations and propaganda, than it is an instrument of police reform and outreach to the community. 330

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In contrast to the theoretical commitment to community policing, the actual practice of the Police in Uganda leans much more towards a ‘zero-tolerance’ policy. In effect, this policy undermines any measures of community policing, lukewarm though they may be. Zero tolerance especially comes into play when the issue at hand concerns respect for the rights to freedom of association, expression and assembly. There are several reasons for this. Most prominent is the fact that these rights are most clearly related to dissatisfaction with the prevailing economic, political and social conditions. In other words, expression of these rights implies the manifestation of actions of displeasure directed against the government of the day. Unfortunately, the template which has been developed by the Police with respect to such expressions of discontent is that they are illegal. This explains the Police strongarm approach when responding to riots and protests. Secondly, the posture of the Police—from the weapons in use to the uniforms they wear—militates against any real closeness with the community. But most importantly, the Police make no friends when in dispersing rallies and protests it uses indiscriminate force, attacks innocent by-standers, and violates schools and churches. The image which remains is one of a coercive instrument of extreme brutality rather than a community-friendly and tolerant body devoted to the eradication of crime. In sum, the practical application of a policy of zero tolerance completely undermines any rhetorical adherence to a policy of community policing. Zero tolerance is also used by the Police with respect to the issue of violent crime, hence the evolution of the RRU, which started off life initially as Operation Wembley that was directed against car robberies. In this, the community largely supported the police because it was viewed as ridding society of a vice that affected everybody, especially the middle classes, who are the most articulate especially in situations where their interests are under threat. Not much was heard by way of protest of the strong-arm tactics used against notorious professed ‘criminals.’ However, the anti-robbery element in these para-military units has long since evolved to become an integral element in the actions taken against opposition political operatives, Media practitioners and other centres of dissent. Kireka—which is also an ungazetted ‘safe 331

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house’—hosts alleged terrorists, alongside car robbers, as well as civic protesters and opposition activists. Hence the problem with a zero-tolerance policy is that it will eventually sweep everybody in its wake. This problem is compounded by the levels of professionalization and lack of autonomy enjoyed by the Police.

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Professionalization and Non-political Civilian Control The most serious reform that needs to be carried out with respect to the internal operation of the Police lies in the manner in which its serving officers are recruited and trained, coupled with the dismantling of the overtly political structures of control which currently determine how it functions. The introduction of democratic policing requires that political activities and processes, especially the freedoms of speech, assembly, peaceful protest and legitimate opposition are not arbitrarily interfered with. Instead of becoming more embroiled in the tug-of-war between government and the opposition, the Police in fact needs to take a step back and stand outside of politics. In this way it will be seen to be fully impartial in the political process. Since the early-1990s, members of the Police Force have undergone several different training programs. To cite only one example, a total of 430 police staff were trained in human rights during financial year 2007/2008. Such programs continue mainly with the aid of donor funding. Different human rights groups have also trained Police officers on a whole range of issues, extending from violence against women, to the rights of refugees. Most prominently, the Uganda Human Rights Commission—the main government body mandated with the protection and enforcement of human rights—has engaged in several trainings of the force. In its 2008 report, the Commission reported that it had carried out Human Rights Education Programs for the Police, with a focus on Special Police Constables (SPCs), and over the period in question, had covered a total of 847 across the country (UHRC, 2008 at 2-4). The Commission has also produced a Police Human Rights Training manual (now in a 2nd edition), 54 designed training-of54

At its launch, Assistant Commissioner of Police John Kamya stated that human rights would become an examinable module and pre-qualification for all

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trainers courses and held consultative meetings and sensitization workshops, especially with the Police Force leadership. To date, the Commission has trained a total of 3,901 SPCs. 55 The Commission claims that this training—which covers all security agencies contributed to a 12% decrease in the number of torture complaints registered from 314 in 2009 to 276 in 2010 (UHRC, 2010 at 14). Human rights committees in the Police force have been revitalized in 50% of the stations to strengthen internal accountability for human rights abuse among staff. Weekly morning staff parades are used to conduct human rights awareness programs in all prison units for both offenders and staff. A 35% reduction in human rights complaints has been recorded. A 60% increase in the number of inmates aware of their human rights and systems for seeking redress has also been recorded (Id., at 24). Why then has there not been a noticeable change in the manner in which the Police operates, despite the deluge of trainings and other capacity building programs? According to Otwin Marenin, any Police training process, must be ‘... seen as extending throughout the organization the career life of officers, and is contextualized.’ (Marenin, 2004, op. cit., at 118.) It must also be ‘realistic and integrated.’ Training is thus key, implying that there is a need for the Police not only to recruit the most outstanding ethical citizenry, but there is also need for continuing ethical, democracy and human rights training. It is fundamentally important that the training and education of police officers continue throughout their careers, and be spread through all ranks of the Force (Id., at 107-123). However, the more important quality with respect to policing is impartiality. Unfortunately, impartiality is not an attribute that comes without constant practice and emulation, irrespective of the levels of education or training that one has received. There is also the need for a degree of stability and predictability in the force, a factor which under General Kayihura has been problematic. Thus, one reads of frequent re-shuffles of top officers, contradictory commands, a lack of coordination in the officer corps, and even a applicants to the force. See ‘Police to teach Human Rights,’ New Vision, October 25, 2011 at 6. 55 Arthur Baguma, ‘Commission Trains Police,’ New Vision, October 18, 2011 at: http://www.enteruganda.com/brochures/police.html

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degree of victimization. 56 Key among such recent incidences are those of Alphonse Mutabazi—initially congratulated, subsequently reprimanded and eventually suspended during the W2W protests— and Francis Rwego who was given a 3 month suspension in relation to the chaotic return of Kizza Besigye along Entebbe Road. 57 Inspector Collins Mukite faced the same treatment over his failure to prevent Besigye from launching the ‘ride-and-hoot’ segment of the Walk-to-Work protests. 58 These last incidents reflect a critical concern over the failure to recognise and uphold the rights of police officers who have both the technical expertise and the ethical standing to take decisions that are not influenced by political expedience and the demands of the political system of the time. It is also important to recognize that police officers may be the victims of the violence perpetrated during demonstrations and in the course of daily work. Often, when an officer is injured during a riot, very little attention is drawn to that incident. As such, in order to encourage a culture of human rights, police officers also need re-assurance from the wider public and from government that their rights will be upheld. 59 In this way, there is a reinforcement of the idea that Police officers are in their position in order to serve and not to exploit the public or to mete out wanton violence against them. The brutalization of the public may in part be a reflection of the experiences of abuse, ridicule and outright discrimination to which the officers of the Police may themselves be subjected to by their superiors, whether in training or on the job. There is a need for the humane treatment of police officers themselves.

Law Reform and the Decriminalization of Political ‘Offenses’ Leading on from the issue of community policing versus zero tolerance and the professionalization of the Police is the manner in 56

See Mubatsi Asinja Habati, ‘Kayihura Sacks Top Police Officers: Is it Punishment or a Purge?’ The Independent, June 17-23, 2011 at 10-12. 57 Id., at 12. 58 See Tabu Butagira & Andrew Bagala, ‘Another Police Officer fired Over Besigye Demo,’ Daily Monitor, May 26, 2011 at 3. 59 Id.

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which political and civic action in Uganda has been criminalized. Despite the promise of the 1995 Constitution, the government has been very successful in undermining both the spirit and the letter of that instrument. Thus, constitutionally-defective (old and mainly colonial) laws and regulations remain on the statute books. As if that is not enough, laws that clearly violate human rights continue to be enacted by the state up to the present time. Among the new flawed laws one can mention the Media Act, the NGO Act and the Electronic Surveillance Act, all of which have recently been brought into operation by the NRM government. Still on the drawing board are the proposed Public Order Management Bill, 2011, 60 and the Press and Journalist Amendment Bill, 2010. 61 The former in particular would have the effect of expanding police powers to refuse or permit public meetings, and to regulate aspects of their conduct on the basis of broadly worded and undefined criteria. 62 This would have the effect of overturning the decision in the Muwanga-Kivumbi case which basically declared that such power was overly broad and unconstitutional because it was prohibitive rather than regulatory. In other words, the government is guilty of enacting legislation that compounds the violation of human rights and thus further alienates the police from its primary constituency, the Public. This forces the Police to become complicit in the violation of human rights by carrying out arrests that are essentially political rather than criminal, because the legislation has effectively criminalized actions that are intrinsically political. It is against such a background that the government needs to take a different posture towards the enactment of laws that may have human rights implications. Thus in the first instance, new laws that reinforce human rights such as the Prohibition of Torture Bill should be enacted. Secondly, 60

First designed in 2009, this Bill has recently been introduced in Parliament. See Mercy Nalugo, ‘Govt Tables Law to Control Gatherings,’ Daily Monitor, October 26, 2011 at 6. 61 The Government uses the media and penal laws to prosecute journalists, restrict who can lawfully work as a journalist and revoke broadcasting licenses without due process. 62 See Amnesty International, (2010), ‘Uganda: Proposed Law on The Regulation of Public Meetings by the Police Threatens Human Rights,’ London, AI.

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guidelines like the 2009 Uganda Human Rights Guidelines on Public Demonstrations should be integrated into the Police Statutory Instruments because they attempt to expound on a different mode of policing. Finally, a mechanism should be put in place to assist with the conduct of human rights impact assessments. All these actions would ensure that at a minimum, legislators are made cognizant of the implications of the laws which they pass.

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Militarization There are two dimensions to the issue of militarization that are of concern to the present study. The first relates to the militarization of the Police. One of the most serious impediments to the effective functioning of the Police force in Uganda is its overtly military posture. This explains a number of features of the police, including its weapon of choice, the AK-47 as well as the adoption of the recent police uniform that is synonymous to the army uniform. The combat-like garb is much more reflective of a martial posture than of a civilian outfit. What is supposed at core to be a civilian institution cannot operate as if it is on a permanent war alert. The institutional cultures and mandates of military and police bodies are not the same. The second aspect of militarization is the parallel development of quasi-military agencies that are ostensibly devoted to crime control deemed beyond the sanction of traditional policing measures, such as drug smuggling, violent crime and terrorism (Baker, 2006 op. cit., at 64-65). While the necessity for such agencies may be apparent, both their institutional linkages to the traditional police and their methods of work raise a number of serious questions. Indeed, with regard to the latter, they tend to use much more militaristic methods, as well as to have a preponderance of officers with a military background. Thus, the government response to the rise of armed robbery was to create Operation Wembley, which has since morphed into the Violent Crime Crack Unit (VCCU) and is most recently reincarnated (or reinforced) by the Rapid Response Unit (RRU). Also prominent in the policing process is the Chieftaincy of Military Intelligence (CMI), an organization that has risen in parallel to the Internal Security 336

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Organization (ISO), which is both the civilian agency designed to address intelligence issues domestically, and is recognized by law. CMI is not only not designated anywhere by law, but it also largely escapes parliamentary scrutiny and control. Organizations such as CMI contravene Article 218 of the Constitution which stipulates parliamentary sanction for the creation of any intelligence agency. All these bodies use methods that are militaristic in content, although they are ostensibly arms of the Police. This second dimension of militarization is accompanied by the usurpation by these motley forces of what have traditionally been police or civil functions, such as the detention, trial and custody of civilians who have allegedly committed criminal offences (Human Rights Watch, 2011b). While this may have been done in order to address the high levels of crime and violence, the impact was not only to increase the levels of illegal detention, torture and other forms of abuse, it also serves to undermine the role and function of the police as the primary agency of law enforcement in the country. The extent to which these bodies have become a major feature of the scene of human rights violations is reflected in the following comparative break-down of complaints made to the Uganda Human Rights Commission between 2008 and the latest report of 2010: Table 14.3: Comparative Breakdown Of Uhrc Complaints (2008-2010) AGENCY

Status 008

009

010

37

85

05

48

06

4

6

5

3

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Uganda Police Force (UPF)

Increasing

Uganda Peoples Defence Forces (UPDF)

Decreasing

Rapid Response Unit (RRU)

Small positive change

Internal Security Organization (ISO)

Decreasing 1

Chieftaincy of Military Intelligence (CMI) Joint Anti-Terrorism Task Force (JATT) Uganda Prisons Service (UPS)

Large positive change Small negative change Uniform 3

9

0

55

99

88

TOTALS

Sources: Annual Reports of the Uganda Human Rights Commission 337

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A number of observations can be made about the data in the table above, while noting that the figures for 2011 expected to be significantly higher on account of the elections and their W2W aftermath are not yet available. The first is that the complaints against the Police are increasing, while those against the UPDF, ISO and CMI are decreasing. The Commission says that this could be attributed to ‘…regular meetings between Members of the Commission and heads of security agencies.’ (UHRC, 2010 at 18). At the same time, following a doubling in complaints between 2008 and 2009, those against the RRU have remained virtually the same. While there has been a drop in the total number of complaints against UPDF, ISO and CMI, this should not of itself be a cause for celebration, given that many of these agencies are also accused of causing disappearances, in that there are even no complainants available in some cases. Indeed, while the Commission received only 6 complaints about the JATT in 2009, Human Rights Watch documented more than 100 illegal detentions, 25 claims of torture and 4 deaths (HRW, 2009). The more important fact is that the data show that there has been a proliferation of the agencies that deal with internal security, over and beyond the Police. That proliferation cannot be seen as a reflection of improvement in the policing function, but rather of its deterioration. This means, to borrow from Morris Nsamba, that when we think of police brutality we need to ‘...think through the sea of orders, officers and private (sic!) agencies involved in dealing with demonstrators. Let us remind ourselves that the police are just one of many bad mangoes in the sea of security agencies.’63 Furthermore, the Police and the Army undergo different kinds of training and it is therefore problematic to subject the police to the military functions of the Army and vice versa. 64 Especially during election periods, the lines between the police and the military become particularly blurred. Hence, in the run-up to the 2011 elections, there were claims by a cross section of opposition Members of Parliament that military officers were being 63

Morris Nsamba, ‘Time to Overhaul Uganda’s Entire Security Sector,’ Daily Monitor, May 20, 2011 at 12. 64 Interview with Mr. John Kamya, Assistant Commissioner of Police, held on 18 April, 2011, at Main Headquarters of the Police, Kampala.

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trained together with the Police Force at Kabamba Police Training School solely for the purpose of harassing members of the opposition. 65 Whether or not the claim was true, the evidence of the militarization of the Police is fairly abundant. Human Rights Watch has said the following about the Rapid Response Unit (RRU)—the arm of the Police currently designed to address violent crime: Ugandan police claim RRU is mandated to investigate “violent crime,” usually offenses affiliated with the use of firearms. However since the unit was established, RRU officers and affiliated personnel have carried out arrests for a wide range of crimes, from petty theft to terrorism. Known for practices that flout basic legal safeguards in Ugandan and international law—such as ignoring laws regulating the right to arrest and detain persons, and extracting confessions by coercion RRU appears to be the preferred unit of authorities seeking arrests and confessions by any means. RRU also continues Operation Wembley’s practice of handing over civilian suspects to the military courts for prosecution, even though Uganda’s Supreme Court and its international obligations prohibit the trial of civilians before military courts (Human Rights Watch, 2011 at 3). The introduction of a new police uniform in 2010 similar in print to that of the Army further consolidated the image of a force undergoing metamorphosis in the direction of increased militarization, leading to expressions of concern by the parliamentary committee on Defence and Internal Affairs. 66 Standard issue to the Police in Uganda is the AK-47, a military assault weapon. While this is explicable in terms of both Uganda’s history of violent conflict as well as the simple factor of cost, the ubiquitous presence of the weapon in every street and path gives the impression of a country at perpetual war. The AK-47 is the same instrument of enforcement distributed to Local Defence Units (‘LDUs,’ rechristened Special Police 65

HURINET, Uganda Decides: The 2011 Elections. See also, ‘Security Arrangements for the Elections: Role of Crime Preventers,’ New Vision, February 15, 2011 at 4, and Dicta Asiimwe, ‘Kayihura’s Plan for ‘Devil’s Night,’ The Independent, February 04-10, 2011 at 10-12.. 66 See Cyprian Musoke & Joyce Namutebi, ‘MPs Query Police Uniforms,’ New Vision, January 26, 2010 at 5, and Sheila Naturinda, ‘Police Boss Apologises Over New Uniforms,’ Daily Monitor, July 30, 2010 at 3.

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Constables, or ‘SPCs’) despite their minimal training and obvious lack of simple tact. It is therefore not surprising that every other day an LDU or SPC is accused of having shot an innocent bystander, or of using his gun to settle a domestic dispute or a personal grudge. Police duties (such as crowd control) are treated like military operations: shoot first, investigate later. During the W2W protests, members of the regular Army, the Military Police and other Special Forces are deployed on the streets at various times. Structures of command are not very clear, neither is it clear exactly why the Army has to be called in to confront what is basically a situation of civil disobedience. Certainly, once the Army and the Military Police appear on the scene, the consequences for human rights are invariably dire. To crown it all, the governance of the Police by two successive Military men effectively eliminated the remaining vestiges of an attempt at the separation of the Police from the Army.67 All in all, the mutual infection of the worst elements of each institution has led to an overall deterioration in the police function.

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Policing a nd the L oca l ‘Wa r-on-T error’ The issue of terrorism has always been one of critical concern to the Museveni government in the wake of the Lord’s Resistance Army (LRA) and Allied Democratic Forces (ADF) actions of insurgency respectively in the Northern and Rwenzori regions of the country. However, anti-terrorism measures assumed a new urgency in the aftermath of Uganda’s entry into the conflict in Somalia. While there had been a few incidents of terrorist (mainly grenade) attacks and raids on schools, terrorism had never hit with as much force as it did with the Al-Shabaab World Cup-related bombings of July 11, 2010. Unsurprisingly, the Museveni government used the bombings as an excuse to clamp down on opposition and to introduce more draconian measures of control:

67

“Although under police command, RRU has sometimes used soldiers and untrained informants to carry out law enforcement operations. RRU personnel typically operate in unmarked cars, wear civilian clothes with no identifying insignia, and carry a range of guns—from pistols to larger assault rifles. The unit’s members have on occasion transported suspects in the trunks of unmarked cars.” (HRW, 2011, at 3).

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Three days after the bombings, parliament passed a bill enabling phone-tapping. Weeks later, nationwide demonstrations demanding an independent election commission were violently suppressed on grounds that they could be exploited by terrorists. And the media have since been banned from commenting on the twin bombings. 68

A number of suspects in the bombings were apprehended, detained and placed on trial. Confessions were extracted, and alleged terrorist cells were broken up by security operatives. Given the nature of the attack, there was also an international dimension to the issue, with a number of the suspects apprehended coming from Kenya and Tanzania. While on the face of it, the quick apprehension and detention of the main suspects in the bombings represented a positive reflection on the capacities of the Uganda Police, there were other less wellpublicized and disturbing aspects to the way in which the security services dealt with the Al-Shabaab threat. First, was the manner in which four of the suspects who came from Kenya were brought to Uganda to face trial. What should have been an extradition process resembled much more an illegal rendition of the kind in which the American Central Intelligence Agency (CIA) has been engaged in its own war on terror. 69 Secondly, the suspects were held incommunicado and did not appear in court until several months after their detention. To compound matters, they were held on a restricted regime of movement (solitary confinement), they did not have access to legal counsel and were refused visits by family or medical personnel. Interrogations were particularly harsh and threatening. In fact, the issue of legal representation saw the most bizarre aspect of the case unfold. Two Kenyan lawyers—Al-Amin Kimathi and Mbugua Mureithi who travelled to Uganda in order to represent several of the suspects unlawfully extradited from Kenya—were themselves detained. According to Amrit Singh of the Open Society, ‘They were hooded and threatened with 68

Ioannis Gastiounis, ‘Balancing Counterterrorism and Democracy in TIME, accessed at: Uganda,’ http://www.ti,e.com/time/printout/0,8816,2016175,00.html. 69 BBC News, ‘Kenya Aaccused of Illegal World Cup Bomb Extraditions,’ accessed at: http://www.bbc.co.uk/news/world-africa-11029767

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execution, driven around and terrorized, and subjected to taunts and threats of death or disappearance before being unlawfully detained and interrogated by Uganda’s increasingly notorious Rapid Response Unit.’ 70 While Mureithi was soon released, deported back to Kenya and told never to return, the Police detained Kimathi for a year, after charging him with terrorism and alleging that he had also been involved in the bombings. 71 The remaining Kenyan suspects in the terrorism case were denied access to their lawyer, Mureithi. An international trial observer who attempted to attend Kimathi’s bail hearing was detained at the border and deported after being threatened and denied consular access for a prolonged period of time. 72 The Al Shabaab detentions represented the disturbing emergence of an aspect of policing that had hitherto been overlooked, namely the illicit cooperation of security forces across the East African borders. Some commentators have called for more regional cooperation among the police forces of the five member countries of the East African Community (EAC) to the extent of designing common standards of policing (Duffy, 2010 at 6). On the face of it, such overtures are welcome. However, there is a need to be cautious that cooperation of this kind doesn’t lead to the development of lowest common denominators in policing, where instead of standards rising to the best in the region, they follow those of the worst. It is particularly important that the transfer of suspects of criminal offences across jurisdictions is only done after complying with the basic legal requirements that govern such matters. Next to terrorism, the government has recently resurrected use of the offence of treason as a mechanism to silence political opposition. 73 While this practice is not new, its reappearance at this 70

Amrit Singh, ‘Uganda Must Release Al Amin Kimathi,’ accessed at: http://blog.soros.org/2011/04/uganda-must-release-al-amin-kimathi/ 71 See, Malkhadir Muhumed, ‘Al Amin Kimathi, Kenya Activist, May Sue FBI Over Year In Prison,’ accessed at: http://www.huffingtonpost.com/2011/09/13/al-amin-kimathifbi_n_959747.html 72 Id. 73 See, Andrew Bagala, ‘Walk to Work: 15 A4C Members Facing Treason Charges,’ The Daily Monitor, October 19, 2011 at 1, ‘Walk Rioters Face Treason,

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point in time is quite disturbing. It is quite clear that the charge of treason is being deployed as a means of achieving the goal of detention-without-trial that is not only outlawed by the Constitution, but which the NRM government has always stated it would never resort to. The aim of these charges is to effectively remove the opposition organizers of the protests from circulation. 74 In substance, this represents a return to some of the most repressive features of those regimes which the NRM supposedly supplanted with its clarion call to fundamental change in the system of governance.

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Conclusion It is quite clear from the preceding analysis that the nature and impact of police powers on society in Uganda can only be fully appreciated if placed against the backdrop of the overall situation of human rights and democratic governance in the country, as well as of the regime type in place. A number of general points about human rights and democratic governance in present-day Uganda should thus be emphasized by way of conclusion. The first is that the realization of good governance together with the promotion and protection of human rights in Uganda has always been problematic, precarious and contentious, irrespective of the political system or regime in place at any one point in time. Thus, Uganda has witnessed peaks of human rights violation and bad governance. The country has also realized great advances in respect of their protection. If nothing else, that experience has taught that a positive human rights context cannot be taken for granted. The realization of better systems of governance and improved human rights observance is always a work in progress. It is therefore essential to be consistently vigilant against possible reversal and retreat. Given that the Police are an integral actor in the promotion and the

New Vision, October 19, 2011, and Andande Okanya, ‘Three More Imprisoned Over Concealing Treason, New Vision, October 24, 2011 at 2. 74 Edris Kiggundu & Edward Ssekika, ‘Walk-to-Work: Treason or Political Persecution?’ The Observer, October 24-26, 2011 at 5, and Stanley Ndawula & Rogers Atukunda, ‘Ingrid Arrested,’ Red Pepper, October 25, 2011 at 3.

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protection of human rights as well as their violation, such vigilance is essential. Secondly, the human rights situation in Uganda today is often compared to that of the past which was largely influenced by individual regime and presidential histories and pathologies. The majority of those regimes were shaped by increased militarization and the establishment of parallel authorities of oversight of the police function. Such authorities seriously undermined civilian control of these coercive forces. We are continuously reminded that under these regimes things were much worse: disappearances were rampant, state-sponsored terror was the norm, and the most basic right that to life itself was not guaranteed. While recognizing the negative historical legacy that Ugandans have had to deal with, today there is a need for a different perspective. Things today are not necessarily better than they were yesterday. Things are different, in both the positive and negative sense. Indeed, there are periods in present-day Uganda when human rights violations reach a peak as they did in the run-up to elections in 2001 and 2006, as well as in the aftermath of the February 2011 election. 75 At such points, it would be very difficult to tell the difference between past regimes and the current one. Needless to say, although the Police carry out several other functions, the main premise of the current study is that the best gauge of Police probity to human rights is when the institution is under stress. Another point of importance is that it is not possible to predict the issues or the circumstances which can trigger a spate of human rights violations, or to be able to gauge what the response of the Police will be until faced by a crisis. While the run-up to and actual balloting in the 2011 election was relatively peaceful, its aftermath witnessed the most serious and sustained political unrest the country has experienced since 1986. The Walk-to-Work protests 75

In the words of Rodney Muhumuza, ‘Museveni has staked his political legacy on the idea that he is not Idi Amin, and some facts back him up. But three decades after the dictator’s exit, things still happen in Uganda that have a whiff of the dead tyrant, that question the so-called progress from the wild days of Amin, that mock the very idea of a civilized society in which disputes are solved according to the law.’ Rodney Muhumuza, ‘Despite Regular Elections, Uganda’s Army Remains in Control,’ The East African, August 1-7, 2011 at 26.

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produced over a month of dramatic confrontations between the Police and other armed forces and the public. 76 Some observers have stated that it was the reaction of the Police which projected the protests to the level they reached. It would otherwise have fizzled out. Correspondingly, the scale of human rights violations rose proportionately. 77 Just as the election observers ticked off the election as a ‘free, fair and calm’ reflection of the will of the people of Uganda, the country dipped into a crisis of serious proportions. If nothing else, the experience of Uganda tells us that there is a need to be much more nuanced and forward looking, rather than always congratulating ourselves on the dire and disastrous time we have left behind. History is an important teacher, but only if its lessons are learnt and not repeated. The more crucial issue is to establish whether Uganda has been successful in introducing a culture of respect for the promotion and protection of fundamental human rights, and whether we have created the necessary institutional mechanisms to ensure that human rights will not be wantonly violated. In relation to both the issue of the creation of a human rights culture and that of establishing the necessary institutional mechanisms, including the Police, Uganda still has considerable distance to go. Ultimately, however, the crisis of governance within the Police as an institution is a reflection of the larger governance crisis outside it. Provided President Museveni remains intent on holding on to power at whatever cost, he will have to increasingly rely on institutions such as the Police to retain that hold over power. Unfortunately, this will come at increasing cost to the respect of human rights. It is thus a mistake to blame the faults of the Police entirely on internal or relational factors. Today, the problems manifested in the 76

According to Anne Mugisha, “They (i.e. the W2W protesters) remained peaceful until the Police intervened to stop their advance in town. There was no provocation on the part of the walkers. In all cases it was the Police which caused commotion in their effort to disrupt the walkers.” See Anne Mugisha, ‘How Police Popularised Walk-to-Work Campaign,’ Daily Monitor, April 21, 2011 at 13. See also Mamdani, 2011. 77 In the second, more recent phase of Walk-to-Work protests, the Police used the same tactics of brutal suppression. See ‘Police Smash Walk to Word Demos, arrest 30,’ Daily Monitor, October 18, 2011 at 1, and ‘70 Arrested over Walking to Work,’ The New Vision, October 18, 2011 at 1.

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operation and effective functioning of the Police relate much more to the overall phenomenon of bad governance and the attempt to maintain the Police as an instrument of the ruling political elite, while paying the cheapest cost. In other words, instead of looking in, we should turn our gaze out. The colonial state was interested in self-preservation and was willing to pay for it, which explains the considerable amount of resources expended on the Force. It also explains why the colonial Police was largely corruption free and efficient in its operations. In contrast, the contemporary neocolonial Ugandan ruling elite seek self-preservation but want it on the cheap. This is in spite of the attempt to mainstream human rights training and respect for the rule of law throughout the service. 78 Such training cannot produce a fundamental reorientation of the way in which the Police operates. Aside from internal reform, it is necessary to reinvigorate and bring closer the mechanisms of external oversight and sanction. While some of the limitations in achieving these standards relate to the over-politicization of the force, there is a more basic question related to the manner in which Police people are treated by the State. The Police operate in difficult conditions with little room to question or challenge orders that are illegal or blatantly unconstitutional. They live a hand to mouth existence and are supposed to protect those with full bellies and abundant reserves. To compound matters policing is a dangerous and fraught profession, especially for the lower cadres in the force who are the ones who face the brunt of civil discontent, violence and anger. Indeed, given these conditions, it is not surprising that the Police is regarded as the most nationalistic force in the country, if only on account of the dire conditions and poor pay they are subjected to.

78

See Justice Law and Order Sector (JLOS), 13th Joint Government of Uganda/Development Partner Review: December 1-2, 2008, in New Vision, December 1, 2008 at 24-25.

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15

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We Are More Than Just Our Bodies’: Notes On The Case Of Young Women Who Have Sex With Women In An Age Of HIV/Aids And Homophobia 1 Recent debate about sexuality, human rights and morality in Uganda has reached a crescendo. In the wake of the furore generated by the Anti-Homosexuality Bill (the ‘Bahati Bill’), the launch of a media campaign outing individuals that are or were perceived to be lesbian and gay, coupled with continuing attempts to further penalize sex work, Uganda is in the grip of what can only be described as a ‘sex’ or ‘moral’ panic (Reddy, 2001: 83, Herdt, 2009, Tamale, 2011c). That panic has raised the sexual bogeyman as the source of all our problems, and set as its main agenda the goal of re-criminalizing or abolishing supposedly ‘abnormal’ sexual activity and punishing those allegedly involved in its propagation. It is a panic that is increasingly expressed in the vocabulary of Law, whether with respect to the 2005 constitutional bar to same-sex marriage (Mujuzi, 2009a), or with its most recent target, pornography. 2 The panic obviously has far-reaching consequences for public policy, law reform and struggles for gender reconceptualization and freedom from violence (Bennett, 2010a). It particularly has implications for the enhanced promotion and protection of the human rights of the socially-vulnerable and marginalized such as young women-whohave-sex–with-women (WSW) living with or affected by HIV/AIDS, 3 the main focus of the analysis in this chapter. 1

Excerpt from HURIPEC Working Paper No. 36 (March 2012). An Anti-Pornography Bill proposes the establishment of a committee to ‘…take all necessary measures to ensure early detection and prohibition of pornography.’ See Moses Mulondo, ‘Exposing Breasts Might Get You 10 Years in Jail,’ New Vision, November 6, 2011 at 2. The Minister of Ethics, the Rev. Fr. Simon Lokodo was quoted as saying, ‘There is moral decay in the country. The importation of European culture has increased moral degeneration. We shall not allow that to continue as if we are a Godless nation.’ 3 I use the term WSW as opposed to ‘lesbian,’ for a variety of conceptual and practical reasons that will be made clear in later sections of the study (See also Matebeni, 2009a, at 107-108, 2009b, at 352, and 2008, at 90, as well as Epprecht, 2

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From a human rights perspective, a major issue of concern is that the approach of health practitioners and policy makers to HIV/AIDS has largely been dominated by considerations of Public Health, namely viral transmission and how to control the disease spread. 4 Witness for example, the early campaigns on ‘Abstinence, Be Faithful and Condom-use’ (‘ABC,’ with an emphasis on the ‘A’) (Twesiime-Kirya, 2008, Kippax, 2010). More recently, we have been bombarded with advertisements counseling against eating a ‘Side Dish’ and strident warnings (targeted mainly at married couples) to get off the so-called Sexual Network. All these emphasize prevention tied to sexual fidelity within a context of heteronormative (and polygynous) relations (Esacove, 2010). 5 It is a strategy best described as one of ‘fright-or-flight,’ or ‘fearmongering and misinformation (Silberschmidt, 2011: 122),’ 6 privileging the act of sex over identities and feelings. At the same time the sub-text of this drive is overshadowed by moral constructs of what constitutes ‘good sex (Rubin, 1984: 267).’ 7 When the attention of law and policy is reluctantly turned to marginalized populations (so-called Most-at-Risk Populations or ‘MARPs’), such as sex workers, substance users and men-who-havesex-with-men (MSM) the strategy once again emphasizes the aspects of control and containment. But this is also done in a punitive and discriminatory manner, overlooking considerations of 2008, at 4 and Kendall (a.k.a. Limakatso), 2001, at 223. The age group covered in this study is from 18 to 35 years. 4 For a short history of the medical response to HIV, see Cácere and Race, 2010. 5 ‘Heteronormativity’ refers to the sociocultural system that assumes the existence of only two sexes/genders and views human sexual relations between a man and a woman as being natural and normal, with no other possibilities (Tamale, 2011, at 641.). 6 For example, a recent edition of Straight Talk—Uganda’s most prominent magazine tackling the HIV pandemic and addressed to adolescents—gave three responses to the question: ‘It is 28 years of HIV and it is still spreading? Why?’ Dr. Stephen Watiti, working with Mildmay Centre says it is because of three reasons. 1. Sex. 2. Sex. 3. Sex.’ See ‘What is Good Sex?’ Straight Talk, Vol.16. No.2 (March 2010) at 1. 7 Gayle Rubin argues that the dominant ideology presents good sex to be, “… heterosexual, married, monogamous, procreative, non-commercial, in pairs, in a relationship, same generation, in private, bodies only and vanilla.”

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human rights and with serious implications for addressing the HIV/AIDS pandemic (Muyunga n.d.1). Like Janus, government policy in the face of demands by sexual minorities for more inclusion in programs addressing the pandemic is two-faced. It simultaneously mainstreams and demonizes. On the one hand, there is some recognition of the significance of such groups in dealing with the pandemic after years of denying their very existence (Uganda AIDS Commission 2009: 15-17). 8 But on the other, the State steadfastly refuses to legalize, or at a minimum decriminalize the actions, relations and status of sexual minorities. This is blatantly opportunistic, to say the least. Citing the high incidence of infection among them, sexual minorities are targeted as significant ‘drivers’ of HIV. 9 Such an approach ignores the structural and attitudinal factors such as homophobia, criminalization, discrimination and inequality which are the real problems at issue. Indeed such an approach may even reinforce existing social prejudices about these communities. It also undermines the diversity of the sexual rights issues at stake and minimizes the vast range of other concerns—from sexual wellbeing to bodily autonomy to simple pleasure—implicated in this debate (Global Rights, 2008). In the words of one young WSW, ‘We are more than just our bodies.’ 10 Most studies and analyses of the HIV/AIDS pandemic rank WSW in a low risk category (Semugoma, 2005: 26 and Johnson, 2007: 39-41). While this may be correct from a purely epidemiological point of view, it is certainly questionable for a perspective of human rights. There are several reasons why. In the first instance, it is impossible to ignore the gendered dimensions of such a classification in a context where women’s sexuality is excessively regulated, scrutinized and forced to remain within the 8

The Uganda AIDS Commission (UAC) reports that MSM contribute less than 1% to HIV transmission in Uganda, but observes that the rate of infection within the group is much higher than the average. 9 The assertion that gays and lesbians were ‘drivers’ of the disease was made by UAC Director General, Dr. Kihumuro Apuuli at a May 2, 2008 press conference. See, The Advocate, ‘Gays Not Part of Uganda’s HIV Treatment Plan,’ accessed at: http://www.advocate.com/article.aspx?id=42761 (on December 28, 2011). 10 Interview with CN, on October 17, 2010.

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confines of heterosexual control. Activist Val Kalende states that this is because of the ‘…common knowledge that issues concerning women work within cultural, political and religious frameworks where a woman is a lesser citizen.’11 It also conceals the many intersecting dimensions through which young WSW interact and express themselves (Matebeni, 2009a: 106). For various reasons, many young WSW have, on multiple occasions, had sex with men. 12 Others were born with the HIV virus. And although rare, transmission can take place between women. 13 Moreover, the homophobic attacks, legal regimes and social practices directed against sexual minorities do not exclude WSW from their operation (Altman, 1998).

11

Interview with Val Kalende, lesbian queer activist on December 28, 2011. Although there are no statistics in the case of Uganda or even elsewhere, a 1996 study published by the American Journal of Public Health found that 81% of lesbians and bisexual women in San Francisco reported sex with men over a three year period. In the case of Britain, the figure was 85%. See Mercer et al (2007) and Kathy Belge, “Can Lesbians Get HIV/AIDS?” accessed at: http://lesbianlife.about.com/od/lesbianhealth/a/LesbianAIDS_2.htm?p=1 (on December 28, 2011). See also, The Pink Elephant, 2010), which confirms that there are no confirmed cases of female-to-female sexual transmission, but states, ‘However case reports of female-to-female transmission of HIV and the welldocumented risk of female-to-male transmission indicate that vaginal secretions and menstrual blood are potentially infectious and that mucous membrane (for example, oral, vaginal) exposure to these secretions has the potential to lead to HIV infection.’ It is also generally recognized that younger WSW often experiment sexually with men, either on account of social pressure or because of the stigma of being non-heterosexual. Many of the respondents in this study revealed that they had had sexual contact with men for various reasons. 13 Risks of transmission extend from rough sex (including fisting and certain sadomasochism (S&M) activities; hand play with long fingernails or cuts; cunnilingus (oral sex) during menses or with cuts and sores; sharing sex toys that have vaginal fluids, blood or faeces on them; drug injection; donor sperm insemination (without an HIV test), and condom-less penetrative anal or vaginal sex with a man (Johnson, 2007, at 39-41). The key issue is the existence of an entry point for the virus in the form of cuts, broken skin, or tears in the mucous membrane (Tallis, 1992, at 69-72). The US Centre for Disease Control & Prevention states, ‘Despite the absence of confirmed cases of female-to-female transmission of HIV, the findings do not negate the possibility,’ in ‘HIV/AIDS Among Women Who Have Sex with Women,’ CDC HIV/AIDS Fact Sheet, June 2006. Also see, ‘Health Needs of Women Who Have Sex with Women,’ British Medical Journal, Vol.327, October 25, 2003.

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12

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Sexual and Gender Based Violence, which inordinately focuses on women much more than it does on men, is an additional factor. It is also important to underscore the point that sexual minority communities are themselves not immune to patriarchal and misogynistic inclinations where gay men, transgender men, and butch women silence the voices of lesbian women. The discourse sidelines WSW because of the running assumption that since ‘lesbians do not have (real) sex’ 14 they are not at risk. It is a discourse that also permeates the community. This was the gist of a discussion I had with ZM—a 25 year old lesbian activist working with a mainly homosexual rights organization in Kampala:

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Yes, there is an attitude like of not thinking that HIV is a problem for lesbians… Also me before (I was the same) … because there is a group of people who came and asked me about HIV testing they were like… “do you go for HIV testing before you sleep with your girlfriend?” We were like … what!!? We had never really thought about it because the danger is apparently very small. But our attitude has changed a bit lately … therefore such information is generally … is just not there.

The above facts have wider implications for the design of appropriate solutions in addressing the broader issues around fighting the pandemic. They also raise serious concerns about the whole project of human rights (Matebeni, 2009). It is thus a myth to believe that WSW are at low risk (Johnson, 2007: 7). Even if such a premise were to be accepted, low risk does not mean no risk. And that is the crux of human rights protection, i.e. focusing on the minority and the vulnerable, whether social, political or cultural. Patience ‘Pepe’ Julian Onziema of Sexual Minorities Uganda (SMUG) responded in the following way when asked about the risks young WSW face: PO: There are issues involved (which some people do not look at). We are all at risk of course. There is a saying ‘the most at risk.’ But let’s take it from the risk point, we are all at risk. Why lesbians or women who have sex with women are at risk is because in Uganda

14

Kalende interview, op.cit. In this perspective ‘real sex’ is penile-vaginal or penile-anal sex.

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you cannot be exclusively a woman who has sex with a woman … it is hard, the social pressure you get to conform makes its hard. JOO: Even for someone like you? PO: For me no, I am sexually assertive and clear, but I know there are very few of us really, but most people are actually bisexual not by choice but due to society or by circumstances. Society is the one that pushes them to be like that. But I know that condom use is not as universal as it should be … so if I am dating this woman and this woman is sleeping with a man because this man does not know this is my girlfriend, there is no way you are going to deny him access without a condom. We are in a very promiscuous country (and) there is no way that you can guarantee that this girl is actually faithful. Of course the woman is already not faithful because she is sleeping with me. I can’t be with her because I cannot just call her up or live with her because she has a husband. So, I will definitely have someone else … but this someone else also has someone else that exposes me also; we are all at risk. 15

Pepe’s responses underscore the many dimensions and levels of risk involved in understanding the impact of HIV/AIDS beyond a purely medical or healthcare perspective. First, there is the individual level (condom use, multiple sexual partners and exposure to disease). Next, there are the social and sexual networks and finally, there is the community and national levels, all of which have been identified as significant actors in recent studies of the effects of the pandemic in the African context (Poteat, et al 2011). We may also add another level, namely the global/international which has come to play an increasingly prominent role in the manner in which the pandemic is tackled, whether positively or otherwise (Seckinelgin, 2009). In light of these different levels of analysis, this chapter adopts a human rights framework and approach with particular emphasis on sexual and reproductive health rights (SRHRs). It queries whether the dominant approach of policy makers, health workers and even of human rights activists sufficiently acknowledges, demarginalizes and empowers young WSW caught up in the pandemic. While recognizing the wide range of SRHRs, extending from family planning to obstetric healthcare, 16 we are mainly concerned with the 15

Interview with Patience ‘Pepe’ Julian Onziema on October 26, 2010. SRHRs are more comprehensively outlined in the Programme of Action of the International Conference on Population and Development (ICPD), 16

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right to Autonomy (over one’s own body, reproductive health and sexuality); the right to services or Access for the prevention and treatment of STIs, particularly HIV/AIDS, and the right to freedom from Sexual and Gender Based Violence, or Protection. When grouped together, the above broad categorizations are important because they traverse all categories of human rights, i.e. civil and political as well as economic, social and cultural, and they also surface the most crucial aspects implicated by the HIV/AIDS pandemic. Underpinning all of them is the right to Voice (encompassing the notions of expression, participation and association). These are central organizing or due process principles in ensuring the full realization of all categories of human rights (Yamin, 2009). Without effective voice, as exemplified by the struggles of other marginalized groups such as heterosexual women and persons with disabilities (PWDs) living with or affected by HIV/AIDS, the plight of young WSW will not receive similar notice and enforcement. In other words, WSW will remain invisible. For young WSW living with or affected by HIV the discrimination implicit in the absence of voice is multiplied. But the story is not so straight forward; WSW are not located in the same physical or conceptual space as heterosexual women, disabled or not, simply because they are denied the most basic of rights, that of social presence and legal personality. Such denial greatly complicates the framework within which the struggle for their rights must be located. Although there has been a plethora of studies about the impact of HIV/AIDS on heterosexual women of all ages and social status, such focus has not extended to the situation of young women who have sex with women. The legal prohibitions, myths, erroneous assumptions and societal prejudices facing young WSW inordinately focus on sexual activity and the body, ignoring the multiple October 18, 1994, accessible at: http://www.un.org/popin/icpd/conference/offeng/poa.html (on December 28, 2011). More recently, the International Planned Parenthood Federation (IPPF) has developed a declaration on Sexual Rights. See Sexual Rights: An IPPF Declaration, 2008, accessed at: http://www.ippfwhr.org/sites/default/files/files/SexualRightsIPPFdeclarati on.pdf (on December 28, 2011).

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dimensions and interlocking impacts of the HIV/AIDS pandemic. They particularly overlook the intersections associated with sexual orientation, gender identity, sexual ambiguity, social invisibility, economic status, violence, religious belief and age. 17 Human rights concerns relating to autonomy, access and protection are given short shrift. The sexuality and reproduction capacities and interests of WSW are often minimized, missed and invisibilized. Ignoring such populations has implications for the country’s comprehensive HIV/AIDS response program, not to mention for the well-being and human rights of young WSW as a minority within the larger group of sexual minorities. Hence there is a need to factor WSW into the complex equation of HIV/AIDS in Uganda.

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Law and Sexual Politics: The Theoretical Framework What explains the recent upsurge in concern about sexuality in general and on same-sex erotics in particular? Against such a development, how best should a study of young WSW living with or affected by HIV be theorized? And given that this study is mainly addressed to human rights complexities, what is the place of the law within such a framework? As a starting point, it is necessary to understand the central place of the body to any understandings of Sexuality. Kirk and Okazawa-Rey (2010: 149) point out that the body ‘… is where biological sex, socially constructed gender, and sexuality come together.’ They argue further that in fact four distinct sexual categorizations are identifiable, namely inclination, behavior, identity and politics. Thus, ‘One may have sexual inclinations but may decide not to act on them. One may engage in certain sexual behaviours but not adopt LGBTQQI identity. 18 One may identify as a lesbian or transgendered woman but not act on that identity in a political way (Id. 159).’ In understanding the ‘bodies’ of young WSW in Uganda, it is thus necessary to mediate our understandings and interpretations of them not only through their sexual categorizations, but also through the socio-cultural and 17

See Joseph Waninda, ‘New Strategies Needed in Fight Against HIV Among Adolescents,’ Daily Monitor, February 9, 2010, at 10, and Steven Katula, ‘Adolescent Sexuality Policy Overdue,’ New Vision, February 25, 2010 at 15. 18 The two ‘Qs’ in this formulation refer to ‘queer’ and ‘questioning,’ the latter denoting people who are uncertain about their sexual orientation.

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political frameworks and other influences in which they live. We also need to take into account the fact that the body can be ‘… manipulated mechanically, genetically, mentally and physiologically (Winker & Degele, 2011: 55).’ The main focus of concern in this study is the manner in which the body is also subject to different types of legal control, license and sanction, especially in the sense deployed by Michel Foucault, who related sexuality to politics and the deployment of power, describing it as ‘governmentality’ (Foucault, 1998, Nyanzi, 2011a: 481-482). The theoretical framework of this study is thus rooted in an understanding of the politics of sexuality and particularly in the notion that certain sexual practices are ‘good,’ while others are ‘bad’ and that the law either sanctions, licenses or punishes them depending on the constellation of political and other forces (such as religion, culture and gender) which influence law’s promulgation (Tamale, 2003: 43). Sharon Preves makes this connection in relation to the discourse on and legal framing of the institution of marriage: The legal motivation for making precise sex distinctions was, and is, grounded in a morally based attempt to preserve heterosexuality and the institution of marriage, which are both predicated on the existence of two and only two sexes... Although our legal discourse surrounding the validity of marital unions concentrates on sex (as in genitals, gonads and chromosomes), the underlying motive for the insistence upon “opposite” sex wedlock appears to be social insurance against sodomy (Preves, 2003: 37-38). In other words, implicit in such an insistence is the idea that there is a sexual hierarchy ala Gayle Rubin (1984), which resonates quite well with the situation in Ugandan society. Rubin explains that dominant discourse creates a deeply entrenched and value-laden system that places sexual expression on a scale of acceptable/unacceptable, natural/unnatural, and good/bad. On this scale, same-sex erotics together with prostitution and other sex outside the heteronormative marital bond is considered morally reprehensible. Those engaged in these activities are ‘sex outlaws’ (Tamale, 2003: 43), while an equation is so easily made between eroticism and pornography (Lorde, 1984). It is this very conception of sexual hierarchies that justifies the criminalization of homosexuality and sex work or prostitution in Uganda. At the 355

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same, it is necessary to underscore the point that the hallmark of sexuality is its complexity (Nyanzi, 2011b: 48). While accepting the basic premise of the arguments about risk in the HIV/AIDS pandemic, this study argues that we in fact need to move beyond the risk and healthcare paradigms; beyond the epidemiological dimensions of the pandemic and to examine its psychosocial, cultural and conceptual dimensions. There is no doubt that the issue of HIV/AIDS provided the initial platform for LGBTI activism and engagement with the wider issues around same-sex erotics. 19 Indeed, the public health framework and the AIDS pandemic in particular represent a watershed for the struggle by LGBTI individuals to battle homophobia and address structural discrimination. But these can only be regarded as a first step. From a human rights perspective, the study of so-called ‘low-risk’ populations in the HIV/AIDS discourse such as WSW can tell us volumes about the larger questions, biases and assumptions which inform the approaches of those at the forefront of fighting the pandemic. In other words, what commences in a debate about health, ultimately needs to be transformed into a discussion about sexual politics. At the same time, we need to be mindful of Dworkin’s caution that, ‘Individuals do not have singular identities or experiences within social structures that expand or limit social practices, but rather, intersecting ones (Dworkin, 2005: 618).’ Those identities and experiences form part of what can be described as a complex system of multiple, simultaneous structures of oppression. Such oppression takes place within the broader context of social life, but it is also internal to the specific oppressed community. Thus, I was somewhat surprised to find that one of the major internal issues of concern among young WSW is sexual and gender based violence and abuse that takes place within the community. In other words, there are a complex interplay of rights and power issues at play both outside and within the community. Those complexities need to be surfaced and examined.

19

As Dennis Altman observes, ‘…AIDS has undoubtedly been one of the major factors leading to a rapid globalization of gay identities…’ (Altman, 1998, at 20).

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Going back to Foucault (1998), there is another dimension to his work on sexualities that this study invokes in its conceptual framework, namely the idea that through the increasing discourse on non-normative sexuality there is a productive and empowering consequence that permeates society as a whole. Although originally and historically bourgeois—according to Foucault—sex induces specific class effects that destabilize the status quo. Hence, we witness increased empowerment both through the increased visibility of LGBTI individuals and groups—even in the teeth of the increased oppression just as it becomes an issue of national and international prominence and attention. Talking about or organizing around LGBTI issues becomes a possibility notwithstanding the numerous obstacles that still stand in the way. Hence, the conception of young WSW must address both the specific and direct issues of marginalization and exclusion which they face, as well as the broader questions around social inequality and domination and its reverse, empowerment. At the same time, in reviewing these political processes there can be no assumption of ‘natural alliances’ or indeed of ‘natural enemies.’ Thus, although the religious community has in general been a major force of repression against the expression of non-normative sexuality, there are powerful voices that transmit a different message on the issue. Moreover, the study found that many young WSW invoke both ‘God’ and religion as major sources of solace and sustenance in facing the struggle. Insofar as allies are concerned, while the concerns of young WSW would seem to naturally fall into the broader framework of struggles by heterosexual women against discrimination and domination, the fact is that when it comes to the issue of sexuality, it is important to remember that feminists have differing views on the issue. According to Menon, ‘…feminists have learnt the lesson too well from patriarchy when it comes to sexuality. If not being actively homophobic, our movement’s best response tends to be along the lines of ‘not now, this is not the time (Menon, 2006: 34).’ Part of this response stems from the influence of the phallocentric culture which is structured to meet the needs of the masculine imperative, and thus is related to the ways in which we think and desire and how these are linked to the cultural meanings attributed 357

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to gender difference. Within phallocentric culture sexuality is always presumed to be hetero, and becomes the universal by which every other practice or ‘deviation’ is judged (Smart, 1999: 78-79). When considering the influence of law on these issues, Smart advises that we need to ‘… consider the ways in which law constructs and reconstructs masculinity and femininity, maleness and femaleness, and contributes routinely to a common-sense perception of difference which sustains the social and sexual practices which feminism is attempting to challenge (Smart, Id.).’ Also, it is important not to homogenize feminism; feminism is diverse and heterogeneous and needs to be problematized (Matebeni, 2009b: 352). Finally, this study takes the position that our understanding of the situation of young WSW living with or affected by HIV/AIDS in Uganda can only be complete if we have a full appreciation of the place of violence in the production of this gendered politics. But we need to look at violence beyond the binary manner which has been traditional. In an incisive review of the literature on gender and violence, Bennet urges that where we have reached in this debate, we can begin ‘re-imagining worlds in which becoming human … does not entail, as a primary politics, the process of becoming gendered. The politics of sexual and gender identity have moved questions of masculinity, agency, sexual choice and freedom from violence beyond dichotomizaton (perpetrator/victim; man/woman; white/black) towards ideas which destabilize predictability and insist on a politics of transformation far beyond notions of gender balance (Bennet, 2010a: 38).’

Health and Voice: Surfacing Rights across the Divide Given that much of the discussion about LGBTI issues has arisen within a context of concern with the HIV/AIDS issue, the link with the right to health is manifest. And yet, as much of the literature has pointed out, the rights-based approach to the pandemic has been rather slow in keeping pace with the many developments in the area, stretching from the issue of vaccine trials to that of access to medicine. While the human rights component to health has become more prominent, it is not immune to bias, especially with respect to what is regarded as ‘normal’ sexual 358

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behavior and ‘proper’ gender roles (ICHRP, 2009: 34). Indeed, as the International Council points out, ‘The rights-based components of programmes are often conditioned by their health focus, marginalized in government budgets or distorted by the attachment of inappropriate moral judgments (ICHRP, Id.).’ The regime of health policies as well as the larger body of human rights work has failed to address the health rights and needs of sexual minorities in a sense keeping issues of sexuality firmly ‘in the closet (Mahon, 2009, 239).’ In many different ways, Chinese Walls are erected to prevent scrutiny of the intersection between different levels of oppression and between a rights based approach to Health, versus a perspective routed simply in Public Health or epidemiology. Indeed, it is now a well-known fact that while HIV/AIDS is only one of a number of killer diseases (e.g. malaria, tuberculosis (TB) and cancer), it impacts not only the physical health of individuals, but also on their social identity and condition. Hence, when trying to respect the various components of the right to health, Claire Mahon argues that there is a need to see its linkages to other rights, including privacy, education, family life and even housing and employment (Id. 236). This leads to our first theoretical position on the right to health. Even though we are addressing HIV/AIDS which is obviously a health matter, we need to link it to broader rights that foster agency, autonomy and mobilization. More directly, the right to health has to be linked to sexual rights including and extending to individual issues of body, pleasure and desire (Correa, et al, 2008). Although changing—as witnessed with the growing discourse around issues to do with MSM—there is still a need for some caution about the kind of embrace which the dominant structures of power and economy have sought to exercise over sexual minorities. Indeed, it is also necessary to be careful about the specific framework of sexuality that is being pursued with official and non-governmental programs of prevention, treatment and physical welfare. This is because, as Miller and Vance (2004: 6) point out, there is no guarantee that the knowledge being deployed is not misleading, biased or inaccurate, ‘…sexuality has hidden and sometimes unexamined connections to hierarchies or structures of power that are inimical to equality, diversity and freedom. Most 359

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importantly, sexuality varies in complex ways across time and place (Id. 6).’ In other words, sexuality per se is not value-neutral, and consequently those who are in a vulnerable or minority position need to be fully aware of the different objectives to which a particular intervention can be put. Thus, recent interventions recognizing the place of MSM in the HIV/AIDS pandemic are welcome, but cannot be taken at face value. Turning specifically to the situation of young WSW, there is still a major silence on the issue. It is a silence which reflects both the nature of medical classifications and the discourse around them, as well as the issue of vulnerability itself. Thus, in asking what is ‘epidemiologically fathomable’ in the HIV/AIDS epidemic, Shari Dworkin asserts that it is important to reflect not only on what is inside the frame of the discourse on vulnerability to HIV, but also on ‘… what is excluded or silenced (Dworkin, 2005: 619).’ Surveying the major existing classification systems and critiquing them for their overly-heterosexual focus, she argues that such a focus ‘… erases a wide variety of risky sexual practices and identities other than heterosexual, but also leaves many women in a position to not be able to assess their risk accurately (Id.)’ Such classifications feed into popular misconceptions about the lack of risk surrounding woman to woman sex. It is these perceptions and conceptions about young WSW that this study sets out to challenge.

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Autonomy, Access and Protection: Issues From the Field Just like heterosexuals, most LGBTI people think sex is a very important part of their lives. Others think it is of relatively minor consequence; yet others think nothing at all of sex. Regardless of the difference in perspective, sexual rights (such as freedom from coercion, discrimination and violence, as well as pleasure) and Reproductive Health Rights are of crucial importance to all LGBTI individuals and to the community. As a central aspect of human development throughout life, Sexuality has been defined to encompass sex, gender identities and roles, sexual orientation, eroticism, pleasure, intimacy and reproduction. Sexuality is experienced and expressed in thoughts, fantasies, desires, beliefs, attitudes, values, behaviours, practices, roles and relationships. It is 360

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influenced by the interaction of biological, psychological, social, economic, political, cultural, ethical, legal, historical, religious and spiritual factors (WHO 2004). Moreover, ‘… people have sex not merely for reproductive, economic or socio-cultural reasons but very often engage in erotic activity for reasons that are inexplicable without a view of the internal logic of eroticism and sexual cultures (Groes-Green, 2011).’ One’s sexual orientation and gender identity should therefore have very little relation to one’s ability to access and exercise their human rights. Unfortunately, homophobia, patriarchy and the social and legal structures of violence, inequality and heterosexual discrimination ensure that they do. The reason such structures actively stand in the way of increasing the rights of sexual minorities are myriad, and they will be the subject of subsequent analysis. However, we need to go beyond asking why these structures have been created to exploring the specifics of their manifestation in the Ugandan context. Some of the reasons relate to the question of identity, which is the first issue that we tackle in this section of the Chapter. Drawing further from the fieldwork undertaken for this study, we then move on to asking a practical question: what does it actually mean to be an LGBTI person who is also HIV+ in contemporary Uganda? This is Stosh’s story, which is then followed with a broad analysis of the context within which homophobia and the overall negative reaction to non-normative sexuality in contemporary Uganda has arisen. What has been its impact on the situation of young WSW? Focusing particularly on the issue of autonomy, we underscore the way in which homophobia and heterosexism affect the sexual and reproductive health of young WSW. Autonomy and choice are of particular concern because they lay the foundation for a more detailed consideration of the question of healthcare and access. The section concludes with an examination of the issue of protection, with a particular focus on the place of sexual and gender based violence in this debate.

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T he Question Behaviour?

of

Identity:

Self-determination

or

There is still a great deal of conceptual confusion and even basic ignorance about the LGBTI community in Uganda, not only in the manner in which individuals within the community relate to the wider world, but also to the way in which they relate among themselves. 20 Thus, it became important for me to seek clarification of the understanding of what these terms actually mean within the specific Ugandan context. I found this necessary because the use of internationally recognized categorizations (such as LGBTI) can silence difference as well as articulate it (Seckinelgin, 2009). As Aeyal Gross points out, ‘… the notion of LGBT rights at a global level seems to assume universal sexual identities, when sexuality, in reality, takes many diverse forms (Gross, 2008, 249).’ These terms originated in the West and carry cultural-specific meanings that relate to their origins, as does the term ‘Queer’ which is abundantly used within the LGBTI community in the West, but finds only scant reference in Uganda. In addition, women or men who fall within one general category, e.g. ‘lesbian’ or ‘gay’ are not homogenous (Cabrera, 2010: 10), nor indeed do they necessarily fit within the ‘text-book’ definition of what these terms may imply (Matebeni, 2009). Finally, it is important to point out that most attention in the literature and public commentary has focused on the ‘L’ and the ‘G’ representing ‘lesbian’ and ‘gay’ individuals respectively, without much focus on the ‘B’ (Bisexual), the ‘T’ (Transgendered) and the ‘I’ (Intersexed). Considerable focus in the West relates to questions of identity politics, i.e. a distinct lifestyle choice around which a sociopolitical movement touting Gay and Lesbian liberation was built. While identity is an important factor in the Ugandan situation, it is necessary to underscore the point that attention also needs to focus on the question of behaviours or practices, as well as on culture and 20

Of course, the LGBTI acronym is itself not unproblematic. In the words of Jane Bennett, ‘…the LGBTI acronym is unsatisfactory in its symbolic homogenization of very diverse oppressions and experiences; it is nonetheless accepted as a temporary (or not) ‘gloss’ in many African activist circles for counter-heteronormative struggles for identities, rights, safety, and resources (Bennett, 2010a at 6).’

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the wider socioeconomic, political and legal environment, particularly within the context of the discussion about HIV/AIDS (Parker, 2001: 168). Hence, not all WSW identify themselves as ‘lesbian.’ 21 Furthermore, while many Ugandans may not identify as ‘bisexual,’ there is no doubt that such behavior is a feature of the sexual landscape in the country, raising numerous issues of concern which would arise with people who have sex with both men and women in terms of the dilemmas and paradoxes presented by the HIV/AIDS pandemic, and the manner in which both the construction of messages to do with viral transmission, and the targets of intervention are designed. Are labels important? When I asked KJS about how she identified herself, she replied:

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I do not know how to describe myself, because I do not like labels anyway, yeah I am simply someone … I am simply a woman who is interested in women. I can be someone … you know labels are given to you as they see you. Some will say you’re ‘lesbian,’ others will say you’re ‘transgender,’ others will say you’re ‘butch,’ others will say you are ‘kuchu’ … you know … I am simply a woman who loves other women. 22

The responses I got in addition to the one above cover both the issue of sexual orientation and that of gender identity, albeit not in as clear-cut distinction as the two terms may imply. The former covers sexual desires, feelings and practices and can be directed towards people of the same or of different sexes. Gender identity on the other hand is about the complex relationship between sex and gender. It seeks to capture an individual’s experience of selfexpression in relation to the social constructions of masculinity and femininity that exist in a particular society. The issue of gender identity raises a host of different questions. Misunderstanding abounds about what being transgender, i.e. ‘transman’ or ‘transwoman’ means, and indeed over whether they belong with the other sexual minorities whose focus is mainly 21

As Bennett points out, the term ‘lesbian’ is an ‘imposition’ over most (African) linguistic descriptors for sexual and reproductive identities (Bennett, 2010b, at 37). 22 Interview with KJS on October 11, 2010.

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sexual orientation (Mbugua, 2011). Thus, when I asked one respondent whether she was lesbian, s/he appeared to be greatly offended by the inference. Although s/he physically looked like a woman to me and was involved in a relationship with a woman (who s/he referred to as ‘wife’), s/he quite clearly identified her/himself as a man, to the extent of adopting a title which reflected her/his identification as a man, rather than her/his sex as a woman. In his/her own words, ‘I would stare at the sun as it sets … hoping that my genitals would change; I always wanted to be a boy or to have a dick.’ 23 Such identification as being something other than what on the face of it you appear to be to society at large goes to the core of the issue of gender identity. It also challenges the binary distinctions between male/female, homo/hetero and masculine/feminine which currently dominates this debate, and raises several legal complexities which remain unresolved. Unfortunately, it also results in a host of human rights violations which are treated with impunity (Global Rights, 2008 at 89). As Audrey Mbugua (2011, at 1) points out:

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Transgender persons have to deal with issues of changes of names and sex markers on identification documents and academic certificates… Transgender persons need to access medical services such as hormone therapy, castration, mastectomy and oophorectomy… Is discrimination in employment and access to public service the same for homosexuals as it is for transgender (people)?

Although the above quotation does not specifically mention the issue of HIV/AIDs, it nevertheless throws some light on the complexity of the transgender issue within the broader healthcare context, as well as in relation to the question of identity. The above reflections lead to the first broad conclusion of this study; we need to think of gender and sexuality more fluidly than the current rigid and binary categories enshrined in the law, or as understood by society at large. Most misunderstood of all is the category of intersex. Better described as ‘sexual ambiguity,’ intersexed individuals are persons who ‘… inhabit bodies whose very anatomy does not afford them an easy choice between the gender lines (Preves, 2003: 2).’ Because 23

Interview with YR on April 12, 2011.

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of the ambiguity intrinsic to this category of individual it poses a serious challenge to the efforts by the patriarchal state to adhere to a binary understanding of sex and gender. Indeed for reasons that are not very clear, even the United Nations classification of sexual minorities excludes the ‘I’ from its ambit. 24 Nongovernmental society does not appear to fare much better, leading to Julius Kaggwa’s description of them as the ‘forgotten constituency (Kaggwa, 2011).’ Thus, Intersex activists have complained that they were completely overlooked in the ground-breaking Yogyakarta Principles on Sexual Orientation and Gender Identity. 25 In other words, despite their widespread celebration and endorsement, the Principles suffer from a degree of exclusion and homogenization. More importantly for the purposes of this study, the category of intersexed raises numerous questions for handling the HIV/AIDS pandemic that have not even been placed on the table for discussion. At the end of the day, the question of identity is a fundamental one in understanding both the context and the strategic possibilities that are available. As Kapano Ratele points out:

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… how we identify ourselves and others is very important. The act of naming … is soaked in politics. One has to be careful about one’s words then, for at times, the terms of engagement can be more rather than less confusing of what we wish to relate. Words can be an act of submission or resistance, supportive of the status quo or defy prevailing structures. Naming, as part of discourse, is then a central element of the process of making ourselves as sexual beings and the world in which we express that sexuality (Ratele, 2011: 411).

The politics of naming is abundantly clear also in the way in which society at large names sexual minorities. The Luganda word ‘Abasiyaga’ which is the dominant descriptor of LGBTI persons in the Media and in popular parlance in Uganda today makes no 24

This is the case throughout the organization’s attention to the issue of sexual orientation and gender identity, and even in its most recent, groundbreaking report (See United Nations, 2011). 25 Adopted in 2006, the Yogyakarta Principles (YP) are regarded as the most comprehensive set of international principles relating to sexual orientation and gender identity. Accessed at: http://www.yogyakartaprinciples.org/ (on December 28, 2011).

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distinction between the sexes. 26 It is also employed as a term of abuse. 27 ‘Kuchu’— the word adopted by the community itself—does not appear to have any entomological relation to any local language, 28 but as a political statement represents the attempt by the LGBTI community to assert its own handprint on how it wants to be viewed and characterized (Tamale 2003). Against this background we can begin to tease out some of the theoretical issues involved in examining the situation of young WSW living with and affected by HIV/AIDS. But first of all, what does it actually mean to be an HIV+WSW?

Being ‘LGBTI’ and HIV+ in Uganda: Stosh’s Story Although the number of LGBTI organizations in the country is on the rise, only a handful of them declare themselves exclusively devoted to addressing the issue of HIV/AIDS. Frank n Candy, Icebreakers, Sexual Minorities of Uganda (SMUG), Queer Youth and Freedom and Roam Uganda (FARUG) are the best known, and all of them have aspects of healthcare and physical and emotional well-being that they address in their programs. 29 Kuchus Living with HIV/AIDS (KULHAS or ‘Cool House’) was explicitly established to address the place of LGBTI persons (with an emphasis on WSW) within the pandemic, hence the direct reference to the same in the name of the organization. And Sheila ‘Stosh’

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26

The full expression is ‘Abalyi b’ebisiyaga,’ which literally means ‘those who eat ‘gasiya’ or rubbish. 27 Bennet asserts that ‘… there is no widely accepted, positive, non-colonial term for a celebrated and chosen, non-conventional sexual identity (Bennet, 2010b supra., at 37),’ but see Murray & Roscoe, 2001. 28 One writer claims that it is a word of Swahili origin. See Mark Canavera, ‘The Kuchu Beehive,: How Activists Are Using Coalitions to Promote LGBTI Rights in Uganda,’ accessed at: http://www.huffingtonpost.com/markcanavera/the-kuchu-beehive_b_666033.html (on December 28, 2011). 29 Queer Youth, for example states its vision to be ‘… a well-organized LGBTI Youth Community which is aware and capable of Advocating, Defending and Fighting to (sic!) their Fundamental Human Rights and Protecting themselves from STIs including HIV/AIDS.’ Unlike Kuchus Living with HIV/AIDS, though, Queer Youth is largely made up of young men. (Interview with Sam ‘Laeticia’ Opio, Queer Youth Executive Director, November 21, 2011). The term ‘kuchu’ is the local term in common use to refer to people who have sex with others of the same gender.

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Mugisha was the main face behind KULHAS.30 Thirty-three year old Stosh is out both as a lesbian as well as being HIV positive and public about her status. In the course of responding to a question about whether her neighbours, friends or colleagues knew about either or both, she SM: The people around asked ‘are you fine?’ because that’s when the (Bahati) bill was like at its peak … that is last year, 17th December 2009 … so the bill… I do not like the bill, I even hate thinking about it but I have to think about it, especially now that it affects people with HIV and Aids … mba ndabiladala nga (Tr: I just see that) … they are going to kill me! JOO: So it’s a real problem? SM: Yeah.

The account above demonstrates that being an HIV+WSW is no easy matter. But the situation is not made any easier by the social, cultural and especially the legal context within which such an individual is supposed to manoeuvre on a daily basis. We examine that context before coming back to consider the more personal dimensions of Stosh’s experience as a lesbian living with HIV.

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Battling Homophobia and Heterosexism: From the Bahati Bill to the Death of David Kato Homophobia or the irrational fear or hatred of homosexuals is a global socio-historical phenomenon, but it is only in the mid to late 19th century that it found legal expression, particularly within the framework of English penal systems that were exported to all its colonies, starting with Section 377 of the Indian Penal Code, the infamous provision outlawing sex ‘against the order of nature.’ 31 As a form of discrimination, homophobia therefore has both social and legal dimensions. The former is played out overtly by way of hate speech, every-day prejudices such as harassment and intimidation, and culminating in physical violence against LGBTI individuals. More subtle forms of discrimination against LGBTI individuals— 30

The other was a medical doctor. This 150-year old provision was overturned in the 2009 High Court case Naz Foundation (India) Trust v. Government of NCT Delhi, 160 DELHI LAW TIMES 277 (DHCt, 2009). 31

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what can be described as heterosexism—extend from social pressures, media reportage and advertising as well as other forms of communication which seek to reinforce what is regarded as the ‘natural’ heterosexual order of society, and the continuous construction and reconstruction of socially-accepted notions of masculinity and femininity (Epprecht, 2008: 17). 32 Kiragu and Nyong’o (2005: 12) provide a useful summary of the different forms of discrimination LGBTI people face:

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Discrimination of sexual minorities can be in the form of criminalization of homosexuality, institutionalized homophobia, abuse in state institutions, pathologizing, forced medication and cruel treatments, neglect of the existence and needs of LGBTI people with disabilities, young and elderly LGBTI persons, diminished access to health care, work place discrimination and violence and harassment from official state representatives including execution. Social repression with or without state tolerance can be manifested in the form of verbal abuse, silence, ridicule, hate crimes, “corrective rape” of lesbians, honour related violence and forced marriage.

Homophobic discrimination is also a form of gender-based violence given that it is directed against individuals largely on account of their gender identity, sexual orientation, or location within the hierarchy of the various male-dominated social systems that humankind has constructed and takes for granted such as the family (Reddy, at 83). One WSW participant likened homophobia to a vicious dog being let out of its kennel and the owner putting it back at their convenience. 33 The legal dimension of homophobia seeks to transform the social forms of homophobia into the black letter of the law, and in so doing perpetuate forms of injustice as well as prejudice and stigmas inherent in the sexual hierarchy (Miller & Vance, 2004). Best known of those forms are the penal sanctions covering sex ‘against the order of nature’ 34 and ‘acts of gross indecency.’ 35 Within 32

According to Epprecht, ‘… heterosexism means naively assuming that the social ideals and norms of heterosexual reproduction, marriage, sexual attraction, and so on are not predominantly natural phenomenon, intrinsic to the human race and consequently not historical.’ 33 Interview with ZM, on December 19, 2011. 34 Section 145 of the Uganda Penal Code Act, 2000.

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the context of Uganda, scholarly accounts of sexuality—hetero or otherwise—in the pre-colonial period are not in abundance. While recognizing that such societies were not sexual nirvanas, what is very clear is that either there were no sanctions for same-sex behavior, or if they indeed existed, they were not severe, as we have no accounts linking homo-erotic behavior to exceptionally harsh penal punishments (Murray & Roscoe, 2001). Colonial homophobia codified and criminalized same-sex activity with the ultimate goal of institutionalizing heterosexuality as the dominant mode of social intercourse. Commenting on section 377 of the Indian Penal Code, Sumit Baudh (2005: 4) points out:

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The underlying and unquestioned assumption (behind s.377) being that heterosexuality is ‘normal’ or ‘natural’. Conversely, all that is outside of this heterosexuality is abnormal or unnatural. By proscribing what is unnatural, namely non heterosexual sex, the law makes it compulsory that sexual activity be sought exclusively within the boundaries of heterosexuality–between a man and woman. S. 377 in effect imposes compulsory heterosexuality. It takes away the erotic and sexual self-determination of every person.

The Ugandan equivalent of India’s S.377 is S.145 of the Penal Code. What is striking about this provision is that despite being on the statute books for so many years, there is only a single recorded conviction for the offence in the Ugandan courts of law. This is not to suggest that same-sex activity in the colonial and post-colonial eras did not draw scorn and sanction, but rather to say that there was a much higher level of tolerance (or a simple lack of official concern) about the issue.36 At the same time, it is also important to emphasize that while prosecutions may not have been commonplace, there is no doubt that LGBTI persons suffered harassment, intimidation and other forms of discrimination and stigma.

35

Section 148. It is a tendency that continues until the present time. Hence, available Police Crime statistics over the last three years (2008, 2009 and 2010) have no records of ‘unnatural offences,’ leading anti-gay protagonists to allege a cover-up by the Inspector General of Police. See, Michael Mubangizi, ‘Police Report Omits Gay Sex Crime Again,’ The Observer, May 5-8, 2011 at 31. 36

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In specific relation to the subject matter of this study, there is a general conception that S.145 does not cover WSW. Hence in a 2004 asylum case decided in the United Kingdom about whether a lesbian woman would face persecution on account of her sexual orientation if returned to Uganda, the judge made the following statement: “Under the Ugandan Penal Code homosexuality is illegal for men, and the maximum penalty is imprisonment. Homosexual acts between women are not mentioned.” 37 The judge went on to conclude that “Homosexuality amongst women is not illegal in Uganda,” as his main ground for denying the application. In a more recent case, although the judge was more sympathetic to the plight of the lesbian applicant, he stated, “It is uncertain whether, as a matter of law, this (Section 145) criminalises intimacy between women.” 38 Even if the statement of the two judges represents a general perception about the legality of same-sex activity among women in Uganda, it is a wrong interpretation of the law. Indeed, it is questionable whether the judges actually read the penal provision in question or they instead simply relied on the opinion of some ‘expert.’ 39 What exactly does Section 145 say? Entitled ‘Unnatural Offences,’ S.145 states as follows: “Any person who: (a) has carnal knowledge of any person against the order of nature; (b) has carnal knowledge of an animal; or

37

See Ms. Juliet Zawedde (Appellant) and The Secretary of State for the Home Department (Respondent), Appeal No. HX/63909/2003, dated February 26, 2004, at 4. 38 SB (Uganda) v. SOSHD [2010] EWHC 338 (Admin), available at: http://www.scribd.com/doc/27412243/SB-Uganda-approved-judgement-andcase-note-LGBT-in-Uganda (accessed on December 28, 2011. The same view is repeated in a recent survey of the situation of LGBT persons in East Africa UHAI-EASHRI, 2010 at p. 25. 39 It is also possible that the judges were using outdated versions of the Penal Code, as the amendment which made no distinction between men and women offenders was introduced in 2000. Given that the first case was decided in 2004, and the second in 2010, this would have been rather surprising.

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(c) permits a male person to have carnal knowledge of him or her against the order of nature, commits an offence and is liable to imprisonment for life (emphasis added).” As Elnathan John points out, the word used in the penal legislation of all former British colonies is ‘person,’ not ‘male’ or ‘man,’ 40 engaging in sex ‘against the order of nature,’ meaning that the offence is gender-neutral. 41 Although not directly addressed to the criminal aspects of this debate, recent Ugandan court decisions challenging acts of harassment and discrimination against LGBTI individuals make it clear that the claimed distinction is non-existent. In the cases of Victor Juliet Mukasa v. Uganda 42 and that of Kasha Jacqueline, David Kato Kisuule & Onziema Patience v. Rolling Stone Ltd. & Giles Muhame 43 although the judges in both instances were at pains to emphasize that the cases were not about ‘homosexuality’ or sexual orientation no distinction was made in the rulings between the situation of (gay) men or (lesbian) women. While there has been only one conviction under S.145, it is a seriously flawed piece of legislation, because as Gayati Singh points out, it ‘... does not make any distinction between consensual and coercive sex, heterosexual or homosexual affiliations, or bestiality. It does not discriminate on the basis of identities, but certain acts, including oral sex and anal sex, whether between opposite sex or same sex partners (Singh, 2008).’ In sum, it is a highly subjective and overly-broad penal sanction. Moreover, the simple message that

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40

Available at http://elnathanjohn.blogspot.com/2011/05/legal-opinion-islesbianism-crime-under.html (accessed on December 28, 2011). 41 For a typical judicial decision on this provision—none have been decided in Uganda—see the Nigerian case of Major Bello M. Magaji v. The Nigerian Army (2008) 8 NWLR (Pt. 1089) 338: ‘While carnal knowledge is an old legal euphemism for sexual intercourse with a woman, it acquires a different meaning in section 81. The section 81 meaning comes to light when taken along with the proximate words “against the order of nature”. The order of nature is carnal knowledge with the female sex. Carnal knowledge with the male sex is against the order of nature and here, nature should mean God and not just the generic universe that exists independently of mankind or people.’ Of course, if ‘carnal knowledge’ is defined as penile-vaginal penetration, then it could be argued that the provision excludes women from its ambit, but that would be a very androcentric interpretation of the phrase. 42 Miscellaneous Cause No.247 of 2006, unreported. 43 Miscellaneous Cause No.163 of 2010, unreported.

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the provision transmits is that persons indulging in this kind of activity are in some ways ‘unhuman’ because they are doing something ‘unnatural.’ However, there are other dimensions to the legal apartheid of which S.145 is only the most bold expression that affect LGBTI people which are largely overlooked. And yet, these penal and civil provisions have an enormous impact on the lives of members of the LGBTI community. In some cases, this may even result in the reversal of basic principles of the law, such as the burden of proof and the presumption of innocence. The simple message being sent is the following: if you do not fall within the accepted gender prescriptions of identity and orientation, you are less deserving of the legal protections that should be available to us all. Thus, the Global Commission on HIV and the Law has pointed out that while the penal proscriptions are quite overt and exercise a severe constraint on same-sex conduct, there is an additional problem with laws described as more ‘subtle’ which,

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…may be laws of general application, on adultery for example, that are applicable to people engaged in same-sex sexual conduct while married to a person of the opposite sex. Laws may be selectively applied to same-sex couples, such as laws on age of consent. Public order laws addressing lewd public behavior or disorderly conduct have been regularly enforced in gay venues, even where same-sex sexual behavior is not per se illegal. Laws and police may target people who are dressed in a way that is perceived to be inconsistent with their physical gender (Burris, et al, 2010).

When combined, the social and legal forms of homophobia lead to an overall situation of sexual apartheid. Likening it to racism, Australian judge Michael Kirby has stated ‘It (homophobia) divides people into strict categories. It ignores their basic natures (sexual or racial). It imposes harsh legal restrictions. It makes them secondclass citizens. It denies them full entitlement in matters such as love, sex and identity (Kirby, 2011: 9).’ Homophobia forces LGBTI people to ‘…cover their faces with a kind of metaphorical whitener and pretend, all their lives, to be heterosexual (Id., at 10).’ Homophobia also means that LGBTI individuals are routinely omitted in official data and statistics. 372

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Both forms of homophobia—the social and the legal—have largely negative co-extensive implications for a variety of human rights and freedoms including freedom of expression, the rights to equality and dignity and the right to be free from all forms of discrimination. People who come from the privileged and dominant segments of society tend to take freedom from discrimination for granted. As a person who experienced discrimination first hand, Nelson Mandela made it one of his number one priorities when he took office as president of South Africa in 1994, declaring, “Our single most important challenge is therefore to help establish a social order in which the freedom of the individual will truly mean the freedom of the individual.”44 Several young WSW in this study expressed a desperate desire to experience complete freedom just as other Ugandan citizens do—freedom from homophobia and freedom to be themselves. Stosh captured this feeling best:

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I want to be free but I feel I am bound. Me being open to you Joe, I am telling you my status, my experience but in some other communities I am closeted. Binding my breasts is just something I do because I do not like them …

Against the backdrop of the HIV/AIDS pandemic, homophobia presents a range of problems including stigma, psycho-social afflictions, violence and extensive personal misery (Kirby, op.cit. at 8). In a highly moralistic and homophobic atmosphere such as that which exists in contemporary Uganda, it is extremely difficult for WSW to exercise their right to autonomy. For example, those who are interested in parenting confront several obstacles. When Pepe and his partner sought to have a child through artificial fertilization, they approached the most popular fertility clinic in Kampala. He recounted his experience in the following way: They are so religious I was in shock… you know that they have prayer hour or something at that place… I started by writing an email to Doctor X, I was just trying to find out if there’d be a reply. Then I’m like, “I am making this inquiry about same-sex people, do you do 44

Speech at the opening of the South African parliament, Cape Town, May 25, 1994.

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it (fertilize)?” I resent the email but got no reply. And then I called. They told me ‘Call again.’ Then they said they’d call back. So I called again and they asked, “Is this Julian?” and I was like, “Yes, I’m following up on my inquiry.” They said, “Do you believe in God?” So, I wondered how that was connected (to my request).

Homophobia descends on Uganda in periodic waves (Tamale 2003), the latest being triggered by the Bahati Bill introduced in 2009. Preceding these developments was the 2005 constitutional amendment 45 which explicitly outlawed marriage outside a heterosexual relationship, an amendment which added to the growing homophobia in the country. Nevertheless it was the Bahati Bill that projected the existing homophobia to an entirely different level insofar as the security and well-being of LGBTI people was concerned. The Bill led to a heightened situation of homophobia, not simply by attempting to translate the existing fear into legallysanctioned forms of targeting the LGBTI community, but by increasing the penalties against same-sex behavior, extending the sanctions for the alleged ‘promotion’ of such conduct to counsellors, lawyers and even academics, and providing for the Ugandan government to opt out of any international treaties that went against the spirit of the Bill. If S.145 could be accused of some ambiguity, the Anti-Homosexuality Bill leaves no doubt; it indiscriminately and explicitly targets all LGBTI persons and even goes beyond them. While the greater percentage of the clauses in the Bill were not in fact new (Tamale, 2009: 516), the overall impact of the proposal was to send a severe chill down the spines of LGBTI individuals. From the verbatim accounts of LGBTI individuals, the many negative impacts of the Bahati Bill—even if it has not yet been enacted into law—can be summarized in just a few words, among them increased scrutiny and stigma, coupled with increased fear and hiding. All of these have a significant bearing on the manner in which young WSW living with or affected by HIV/AIDS respond to their varied situations. It does not help that to the general public, there is little difference between a Bill and a fully-fledged law. In the words of Dr. Muyunga, ‘… there is no difference (in popular 45

Article 31(2a) 1995 Constitution of Uganda.

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perception) between ebaggo (the Bill) and etteka (the Act).’46 Given the heavy print and radio media exposure that the Bill received, it is clear that many people acted on the Bill as if it had in fact become law: If before the Bill LGBTI persons were reluctant to expose themselves to a healthcare system which was hostile and unwelcoming, how much more so when the Bill explicitly targeted providers, counsellors and other kinds of professionals? If before the Bill they knew that the most they faced from their actions was harassment and intimidation, after the Bill the message transmitted was that homosexual activity could earn you life in prison or death. But many of the respondents pointed to another dimension of the Bill, or what could be described as its ‘silver lining.’ ZM stated that immediately after the Bill, LGBTI people simply ‘vanished,’ as the issue flooded the Print media and the radio airwaves. However, eventually they returned and found that the debate had in fact generated a certain level of protection for them, even if the homophobia is still as intense as before Bahati introduced the Bill in Parliament. In a perverse way, the Bahati Bill projected the issue of sexual minorities and their rights to the centre of political debate in the country. And this, according to Sylvia Tamale (2011c) was not necessarily a bad thing because: … it forced the issue of non-conforming sexualities ‘out of the closet’ and into the mainstream of political discourse and debate; even as it stirred homophobic expressions to an unprecedented level, it also provided the space within which the issue could be aired and where LGBTI groups came to the fore in articulating not only their fears, but also their claims to equal citizenship. At the same time, it compelled mainstream organizations to re-examine their own (largely conservative) positions vis a vis non-conforming sexualities.

In the cold light of historical hindsight the Bahati bill may actually be assessed to have contributed to an opening up of the space for LGBTI individuals to come out of their closets and make their voices heard. The activism that followed the bill was also boosted by hitherto closeted individuals seeking solidarity in the newly discovered space of sexual politics.

46

Interview with Dr. Thomas Muyunga on September 9, 2010.

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Unfortunately, just as the furore over the Bahati Bill appeared to be dying out, the LGBTI and human rights community was hit by the death of David Kato, the charismatic gay rights activist who had recently been one of the litigants in the court case against the Rolling Stone newschapter. Kato’s death and subsequent funeral— which I personally attended—needs to be regarded as a pivotal landmark in the struggle against homophobia in contemporary Uganda, aside from raising numerous additional questions that need to be the subject of further critical scholarly analysis. In the first instance, it was perhaps the first high-profile event concerning an LGBTI activist in the country. Secondly, the community effectively took over the ceremony and turned it into a celebration of resistance and resolve, condemning the main celebrant at the service for his homophobic remarks, boldly confronting the latent violence that pervaded the funeral atmosphere and chastising the government for its nonchalant response to the murder. Finally, Kato’s funeral sent out a national and international message—given its global coverage and attendance by diplomats from several Western embassies—that the LGBTI movement in Uganda had finally come of age. Soon after Kato’s death, however, the LGBTI community was hit by a deep sense of foreboding and loss. 47 Events scheduled for the following months were postponed. Many of the most prominent activists went underground, while those with international connections took ‘sabbaticals’ and stayed off the scene for several months. A number of them—including Stosh—simply disappeared and are yet to return to the activism they were engaged in before the dastardly murder. In sum, while Kato’s death brought the LGBTI movement together in a show of solidarity, it also underscored how fragile and tenuous the roots of the movement were, and how homophobia continues to be a major social force in Uganda. That fragility and tension is also apparent in the manner in which young WSW confront the system of healthcare.

47

John K. Abimanyi, ‘Closet Homosexuals Sink Further under the Radar after Kato’s Death,’ Daily Monitor, February 7, 2011 at 22.

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H ealthcare and Access Issues Uganda’s healthcare system is wholly built on the assumption that everybody is heterosexual. Furthermore, the system is also affected by the broader societal homophobia and heterosexism we have unpacked in the preceding section of this study. Hence for non-heterosexuals, there is both a feeling of alienation and denial in dealing with the system. While heterosexuals do not have to think twice about entering a medical facility, for WSW several considerations have to be taken into account. Nurse PLW explained to me why:

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You find that it is difficult for a woman to walk into a clinic with her girlfriend and say, “We want to take an HIV test … maybe, before they go further they will be asking questions: “how and why?” “where is your boyfriend?,” … things like that. In most cases even if somebody thought about the risk of HIV, even if somebody wanted to get the partner, even if they are in love or something that they want to have a stable relationship, they will not go and have that test unless they go on individual levels by themselves. But then, also that one raises the issue of trust. How can you trust this person that he or she is telling me the truth?

For HIV+WSW, criminalizing homosexual activity and targeting sexual minorities exacerbates the already existing anxiety and stigmatization associated with LGBTI people living with HIV. What is it like to confront the healthcare system for a sexual minority? A ground-breaking study of MSM in Nairobi listed several problems they faced including stigma and discrimination, fear of humiliation when accessing health care services, concerns about the involuntary disclosure of sexual behavior, power differentials between partners in negotiating condom use, fundamental misconceptions about HIV risk, self-medication for sexually transmitted diseases, and low uptake of HIV testing (Sharma, 2008; van Griensven, 2008). These studies and many others since (e.g. Poteat, et al, 2011), demonstrate that at a general level people whose sexual orientation is different from the mainstream feel like double misfits and are acutely aware of their stigmatized difference. Is there any distinction between MSM and WSW in this regard? Before answering this question, there is a need to consider the overall policy framework within which healthcare 377

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structures in Uganda are situated. Given its early action on the issue of HIV/AIDS, Uganda has long been the epicentre of numerous policies and of different actors—local and global—who have influenced the context and the framework of implementation that has grown around the pandemic. But who are the people who make this policy? We thought it would be important to hear them in their own voices.

Perspectives Implementors

from

H ealthcare

Policy-Designers

and

A look at Uganda’s major policy documents will reveal a loud silence over the issue of sexual minorities, with the recent exception of the discourse about the MARPs. This point was graphically illustrated through an interview with World Health Organization (WHO) official Dr. Innocent Nuwagira, who stated that the debate on sexual orientation with respect to the issue of access to health services was ‘irrelevant.’ Arguing that governments should not legislate consensual sexual behavior he stated:

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Sexual orientation should not be a factor to deny or even advantage someone in regards to access to health services. The aspect of sexual and gender orientation is a glaring reality, extremely confusing and strange, especially for the earlier generations who only knew of two genders. It is more of a cultural shock. I also do sympathize with people who are not yet open to these realities. Minorities have to be protected but government need not recognize them, (or) legislate for or against them. 48

The same official was somewhat dismissive about concerns raised about sexuality and its relationship to the right to health and argued that: Why would someone wear a big placard with the word ‘MSM’? If one cannot wear a placard indicating that she or he is female or male, then it is unnecessary and irrelevant for one to wear a similar placard indicating that he or she is MSM or WSW. Such approaches create a lot of doubt and controversy in respect of their actual motive. 49

48 49

Interview with Dr. Innocent Nuwagira on August 28, 2010. Id.

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Given this policy context, what are the similarities and differences between the way in which WSW are treated in comparison to their MSM counterparts, especially given the different levels of risk-assessment attached to the two?

Experiences of Young WSW In light of the similarity of spatial occupation as LGBTI persons, young WSW face many of the same problems as those listed above confronted by MSM. Like MSM, young WSW find that they are either denied service or given inferior service on account of their sexual orientation. That level of service may be on account of bias and homophobia or from a general lack of knowledge about the sexual orientation of the individual being treated. Stosh described one experience of visiting a clinic:

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SM: Like I told you, that clinic … sometimes I just boycott it because I know I have medicine to take for the next two months. When I feel I do not want to go I do not go. Now sincerely speaking there is one thing that hurts me so much about what I feel which is supposed to be part of the treatment were emotional, physical, I just have to tell a doctor. I had a chest pain, then they checked me and asked, “What have you been doing?” Then you say “I have been smoking” then they asked me, “Why don’t you reduce smoking?” … I think there are things I really would like to share with a doctor. I shared with one doctor and she cried … she told me she would call me but she did not call me again.

In many respects this experience could also have been the same for an MSM. Where there are major differences in the experiences of young WSW in comparison to MSM is with respect to issues such as reproductive healthcare and advice. Most MSM do not list issues of reproduction as a high priority. Thus, one MSM respondent told me: ‘…Out of the 365 days in the year, people spend less than 2 days making babies … all the time we are looking for intimacy, pleasure, fantasy … these are enshrined in national policy … So these are part of (our) sexuality. Reproduction is just one-tenth of sexuality … it really doesn’t matter.’ 50 The reverse is true for WSW. Many of the respondents interviewed for this study 50

Interview with JQ on November 3, 2010.

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were very clear about wanting to have children, either themselves or from their partners, although one participant told me, ‘I just cannot wake up and see myself pregnant … that is not part of me.’ 51 The right to have children (or indeed not to) is an essential reproductive health right. However, heterosexual values and homophobic prejudices assume even higher prominence with respect to reproductive health issues, with WSW routinely facing subtle marginalization or outright discrimination, reinforcing the idea that it is only heterosexuals who are entitled to such services. At the same time, there are WSW who get pregnant and need to procure an abortion for a variety of reasons. Further healthcare issues for young WSW arise in relation to the phenomenon of violence. With respect to young WSW who face violence—whether from their own-sex partners or within a context of heterosexual coercive intercourse, rape or abuse—numerous issues arise around treatment and support. Such WSW face multiple stigmas: they may be hesitant to report abuse fearing exposure of their sexuality, or they may find that available resources cater primarily to those in heterosexual relationships. They may also face discrimination from those who are supposed to be providing them services and solace (Global Rights, 2008: 30). In other words, whereas heterosexual individuals can walk into any clinic and receive treatment, it is not as straight forward for WSW. In most cases healthcare workers are simply at a loss as to how to deal with what they perceive as ‘freaks’ when they are confronted with a case of MSM or WSW. The reverse of this situation is where you have a healthcare worker who is sympathetic to WSW and actually carries out her assigned tasks without discrimination. The system is hostile to those who try to reach out and not discriminate. Another dimension to the healthcare perspective is the issue of mental and psychosocial health. Public health workers have long recognized that the shock of an HIV+ diagnosis can have many different psychosocial impacts. While the shock itself affects both men and women, with some studies noting higher rates among women than men (Lennon & Wilcock, 2011 at 26), the manner in which they respond to it will vary according to gender, social 51

Interview with BA.

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placement and personal circumstances. A positive diagnosis may have complicated implications for the relationship with one’s lovers, sex partners, family and friends. Indeed, the shock can result in delaying the commencement of treatment, which may affect a positive person’s health if needed immediately (Id.). For young WSW living with HIV, this is compounded by both the very low level of mental health services in the country, as well as by the absence of any attention to the mental health situation of LGBTI individuals in particular. Thus mental health problems such as depression, bipolar disorder and panic attacks are not uncommon. Furthermore, there is a high level of substance use and abuse within the community, apparent from even casual interaction, but confirmed by many of the respondents and by mental health experts (Muyunga, n.d.2). 52 For those who contract HIV, there are even more psychological problems. First of all is the general belief that HIV/AIDS is a heterosexual disease; if you are a real lesbian, how then did you get ‘it’? I was shocked by the several participants who responded to my initial query about whether there is a need for WSW to access HIV/AIDS services by saying that WSW do not need those services because they are not ‘at risk.’ ‘Lesbians,’ they told me, ‘do not get HIV … it is a heterosexual disease.’ Such an attitude may seem rational if the respondent has sex exclusively with women, in light of the dominant messages about transmission between women or because of the lack of them, and also given the existing evidence on the matter. But as earlier pointed out, it is often not the case, which further complicates the matter. In other words, many WSW believe that because they identify as lesbian they are immune from the virus because it is a disease which is caught only by those who identify as heterosexuals and practice heterosexual sex! It is similar to the response of Ugandan gay men who had long believed that HIV could only be transmitted through heterosexual contact, and were convinced that anal sex was safe.53 The second problem 52

Id. See Kaj Hasselriis, ‘Uganda’s Anti-gay Bill Would Lead to ‘SuperCriminalization’ of HIV,’ available at: http://www.xtra.ca/public/printStory.aspx?AFF_TYPE=1&STORY_ID=8324 (accessed on December 28, 2011). 53

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concerns the ‘invisible’ existence young WSW are living. Hiding is the norm. Because of the predominantly heterosexual context within which health services are distributed, for a person who is homosexual, there is a much higher likelihood that they will not participate in the programs of education, receiving treatment information and counseling or participate in other programs aimed at building better levels of social inclusion. That feeling of exclusion and isolation is compounded for WSW and MSM individuals. For young WSW particular importance is attached to sexuality education, clinical counseling and the availability of contraceptives. It is especially important that young WSW who are merely exercising their right to sexual pleasure are not penalized for this. Nevertheless, education and information by themselves are insufficient to address the sexual rights concerns of young WSW. It is clear that there is a glaring dearth of the equipment, such as dental dams, finger condoms, rubber gloves etc. which are some of the basic tools for safe sex between women. In the words of Dr. Thomas Muyunga, “… all the messages which are passed on are targeting heterosexuals. Basic supplies like dental dams, oils for gay men that are necessary cannot be found at public health facilities. We think that it’s a violation of LGBTI rights.” WSW try to partially fill the gap by looking to gay-friendly development partners for donations of female condoms, dental dams and other protective gear. But even if available, at least one respondent expressed the view that some of these instruments were not ‘user-friendly’ and interfered with the pleasure of having sex.54 What all the experiences above demonstrate is that there is a clear need in the first instance for an overall empowerment of young WSW. But just as importantly, there is need to raise the awareness of healthcare providers about different sexualities. Such awareness raising must begin with a more general and comprehensive approach to human rights within the healthcare system. It should also cover the basic education of doctors. Ironically, it was the Anti-Homosexuality bill that opened the door for mainstream health policies and practices to seriously consider 54

Interview with BA.

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LGBTI individuals. Prior to that they did not even feature in the discussions of the Ministry of Health, health rights NGOs or the National AIDS Commission. A couple of other developments in health policy need to be noted. First is the Ministry of Health’s 2006 National Policy Guidelines and Service Standards for Sexual and Reproductive Health and Rights. While they do not mention sexual orientation, they do underscore the issue of non-discrimination. The Guidelines even go so far as providing Comprehensive Abortion Care Services, ‘… to a woman or a couple seeking advice and services either for terminating a pregnancy or managing complications arising from an abortion.’ 55 This is an important provision for WSW victims of corrective rape, an issue we deal with in the next section of the study. The question of actual implementation is of course an entirely different matter. A further step in making health policy and practice more sensitive has been made with the 2009 issuance by the Ministry of Health of the Patient’s Charter. Although it is a general charter and not specifically directed to HIV/AIDs, it reaffirms the right to medical care by providing: ‘Every person in need of medical care is entitled to impartial access to treatment in accordance with regulations, conditions and arrangements obtaining at any given time in the government health care system.’ 56 Article 2 confirms the prohibition against discrimination, which in addition to outlawing discrimination on grounds of religion, political affiliation, disability, race, sex, age, social status, ethnicity, nationality, country of birth or other such grounds, also includes ‘disease,’ which can be interpreted to mean HIV-status. The Charter does not mention ‘gender,’ but International Law has interpreted ‘sex’ to include ‘gender.’ Is it possible to argue that the phrase ‘other such grounds’ includes sexual orientation? We will return to this issue after exploring the issue of sexual and gender based violence in the following section of the chapter.

55 56

See Guideline 4.13. See Article 1.

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WSW and Sexual & Gender Based Violence The goal of violence in general is to maintain the social status quo and to prevent transgressions against it. This is particularly the case with sexual and gender based violence where the overriding goal of such action is to ensure that the dominance of those who are socially stronger is retained (Garcia-Moreno, 2010). 57 Transgressions to that order are historically met with severe punishments, ranging from mob justice (lynching) to the stateimposed death penalty. Rather than viewing violence as the isolated and/or sporadic acts of individuals operating within a context of private freedom, violence needs to be viewed as part of the structural framework within which the subordination of marginal and vulnerable individuals and groups takes place. In other words, it is an expression of sexual and gender-based oppression on a social scale (Charlesworth & Chinkin, 2000: 10-14). At the same time, we need to retain a nuanced view to such action. As Jane Bennett has argued: ‘How do we rethink relationships between gender and violence so that we are neither deaf to what it is that is experienced … nor reified into caricatures of agency, hollow at the core with grief, brittle and full of projective rage at the skin? (Bennett, 2010b: 2).’ In a sense, the Bahati Bill by taking recourse to punitive sanctions (including the death penalty as the ultimate punishment) 58 is a deep reflection of the prevalence and social acceptance of sexual and gender based violence in Ugandan society. Put another way, violence directed against women is acceptable. Thus, all women in Uganda (and some men) are vulnerable to violence. But sexual minorities are even more vulnerable to such violence, hence MSM, WSW, and sex workers stand at particular risk of assault, extending from sexual harassment and abuse, humiliation, illtreatment and torture in places of custody, right through to death. 57

According to Garcia-Moreno (2010 at 282), ‘Sexual violence is used as a form of punishment; a tactic of control; to assert masculinity and men’s right to sexual pleasure….’ 58 The Bill proposes the death penalty for ‘aggravated homosexuality’ (Clause 3) by an offender who is: (a) a person living with HIV; (b) a parent or guardian of the victim; (c) a person in authority over the victim; (d) a serial offender. See also Amnesty International (2008).

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In that sense it is not really surprising about the number of people who publically expressed support for the death penalty prescription in the Bill without batting an eyelid. In sum, the violence directed against LGBTI persons has become ritualized and normalized. This is why homosexuality forms the main focus of attack from religious pulpits just as it does from politicians soap boxes. And in such a context, even religious leaders do not feel any compunction about being violent. Why is there so much institutionalized violence directed against sexual minorities? There are several explanations, the main one being that they transgress and subvert the dominant heteronormative sex/gender dichotomies. But that reason alone is insufficient. The real need to seek recourse in violence against others, particularly ‘non-conforming’ women, is linked to the power, resources and privileges that flow from such dichotomies; a loss of that power is a loss that is both personal and political. In such a context, the law plays an all-important role in maintaining the sexual status quo through recourse to penalties such as being idle and disorderly, living off the earnings of prostitution and having sex against the order of nature. All these form part of the pantheon of legally-sanctioned violent measures which the State can take against sexual ‘deviants’ in order to ensure that the heterosexual status quo is not disturbed. Hence, violence (both legal and socio-cultural) becomes a tool used to force LGBTI people back into the fold of heterosexuality. In the words of Jane Bennett this is ‘the violence of heteronormativities (Bennett, 2010a at 32).’ It is within this context that violence against LGBTI persons in general and against young WSW in particular should be understood. For young WSW, that violence takes various forms including sexual harassment on the street and in other public spaces, threats of violence and actual beatings, extortionate behavior on the part of State functionaries, especially Local Government, Police and Prisons officials, and a general lacklustre response to requests for intervention from the authorities. Victor Mukasa’s case exemplified the kind of state-sanctioned violence that LGBTI persons

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frequently experience.59 Commenting on the treatment that Victor’s companion Yvonne Oyo underwent at the hands of the Local Council chairman, Justice Arach-Amoko remarked:

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The 2nd applicant was arrested by the Local Council (LC)1 chairman while she was in the 1st applicant’s house resting. He took her to the police post forcibly via his office where he denied her the use of the toilet. From there he took her to the police under escort of Local Defence Units (LDUs) from where she was forcibly undressed and “examined” and her breast fondled by the Police Officer-inCharge (O.C) to establish her sex. 60

In many respects Victor’s case is both unique and unremarkable. It is unremarkable in that many persons of same-sex orientation face the kind of harassment and violence to which Yvonne (Victor’s partner and co-petitioner) was subjected to by the government officials on a daily basis. In that sense, the treatment received by the two was not unusual. The difference is that they decided to sue the government on account of that treatment. And despite the assertion by the judge that the case was ‘… not about homosexuality,’ 61 there is no doubt that the issue of sexual orientation was the ‘… large elephant in the room…’ in the words of Busingye Kabumba (2009: 221). Although the Victor Mukasa case was successfully prosecuted and won in the Ugandan courts, it underscored the structural nature of the violence that LGBTI individuals face, as well as the general position of the State and the public at large as one of acceptance of such violence. This point surfaced in bold relief in the later case of Kasha & Others. Repeating the same mantra that the case was ‘…not about homosexuality per se,’ the judge nevertheless was firm in asserting that the call to violence against sexual minorities, particularly LGBTI persons was not acceptable: Clearly the call to hang gays in dozens tends to tremendously threaten their right to human dignity. Death is the ultimate end of all that is known worldly to be good. If a person is only worthy of death, 59

See judgment of Justice M.S. Arach-Amoko in the case of Victor Juliet Mukasa & Yvonne Oyo v. Attorney General. 60 Id., at 16. 61 Id., at 18.

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and arbitrarily (sic!), then that person’s human dignity is placed at the lowest ebb. It is threatened to be abused or infringed.62

But, there is also intra-community (or domestic) violence and discrimination between same-sex partners, a phenomenon which has also been noted within the wider community (Staunton, 2009). Finally, WSW face the additional risk of what is known as “corrective” rape whereby men forcibly have sex with WSW individuals as a way of curing them of “lesbianism” or turning them “straight” (Mubangizi & Twinomugisha, 2011: 338-339). But more importantly, it is also a mode of punishment against those who deviate from hetero-normativity. Such rape is perpetuated by strangers and relatives alike. Aside from the sheer trauma of the experience, there are a number of additional issues involved with the question of WSW rape. The first is the most obvious link between such ‘corrective rape’ and the spread of HIV. The second point that flows from this is that the majority of survivors of such incidents do not have access to post-exposure prophylaxis, enhancing their risk levels of contracting HIV. The third point relates to the psychosocial dimensions of the issue. While there are only a handful of post-rape trauma specialists and centres in the country, it is doubtful whether they are equipped to deal with the phenomenon of corrective rape against WSW, given that the support mechanisms for heterosexual victims of rape in the country are themselves clearly inadequate. So being a woman and one who is sexually attracted to fellow women creates a double-jeopardy within the context of sexual and gender-based violence. Although largely considered to be an issue in South Africa (Mkhize et al, 2010), corrective rape happens in Uganda too. Dealing with violence in a patriarchal heterosexual society is bad enough. When homosexuality is added into the mix, it becomes much more complicated. It is as if the hetero-patriarchal society is secretly complicit in strategies to ‘straighten’ queer individuals.

62

Judgment of Justice Kibuka Musoke, Kasha & Others, op.cit., at 9.

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R epositioning WSW Struggles within the HIV/AIDS Pandemic The story of WSW and HIV/AIDS is a story of numerous double and multiple forms of discrimination and marginalization. The fact that LGBTI issues are publicly debated in Uganda at all today cannot be taken for granted. This is a far cry from where Uganda was on the issue of same-sex erotics and HIV/AIDS even eight short years ago. In 2004 when the country representative of UNAIDS tried to broach the subject of MSM with Ugandan Ministry of Health officials, he found himself in the centre of a major diplomatic row, eventually being forced to leave the country. Although homophobia is still pervasive in the country today, the degree of intolerance to LGBTI issues in public health has gone down and the discussion has started (albeit grudgingly under the framework of the MARPS initiative). 63 That we have made this progress is to a large extent thanks to the activism of WSW and MSM organizations and individuals in strategically repositioning themselves within the HIV/AIDS pandemic. But why is there a need for a more concise positioning of LGBTI groups within the effort to address the pandemic? Secondly, given the general dominance of the MSM issue in the discussion about LGBTI questions within the pandemic, what should the approach of groups addressing the situation of young WSW be? First of all, what are the current demographics of the pandemic? HIV prevalence is still relatively high and has ‘plateaued’ or ‘stagnated’ in other words, while infection rates do not appear to be getting worse, they are not coming down. Also, although antiretroviral therapy has greatly eased the burden of the pandemic, there are still many individuals who remain outside this care circuit. Finally, it is important to point out that the first generation of Ugandan children born with HIV is entering adulthood, i.e., youths aged between 18 and 25. This has serious implications for the prevention messages that are sent out for the youth, regardless of their sexual orientation. Thus, far from the issue being the need to address adult actors on the scene, we need to start much earlier. But this is no easy task. This is exactly what UNICEF tried to do in its 63

Interview with Dr. Thomas Muyunga.

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controversial booklet entitled ‘A Teenagers Toolkit.’ One of the key messages in the book was that it was quite normal for one to be sexually-attracted to peers of the same sex. In response, the Minister of Integrity informed Parliament that the UN agency was promoting homosexuality in Uganda and the booklets were withdrawn from schools. 64 And this incident happened before the tabling of the Bahati Bill. In light of the practical demographics of the pandemic today, there is a particular need to target the human rights and sexuality groups that handle issues affecting adolescent girls and boys in order to make the right to sexuality education for persons of that age group a reality (Paiva, et al (2010). As it is, not a very good job is being done of this. It is trite to point out that the right to education includes the right to receive comprehensive, accurate and ageappropriate information regarding human sexuality in order to ensure young people have access to the information needed to lead healthy lives, make informed decisions and protect themselves and others from sexually-transmitted infections, including HIV (United Nations High Commissioner for Human Rights (2011: 19). If young people are raising questions around same-sex erotics, and sexuality, an organization like Straight Talk should find the means of addressing those concerns (cf. Tolman & Costa, 2010: 390-391). As already noted, there are only a handful of groups addressing the question of HIV/AIDS within the LGBTI community. Stosh and a few MSM colleagues started KULHAS to offer counseling services to the LGBTI community on issues of HIV/AIDS. But the organization finds itself in a double bind of confronting two stigmatized disclosures. This impedes the progress of their work in many ways. Moreover, the sensitization work faces hitches when it comes to printing literature relevant to the community. As Dr. MD put it, LGBTI people are an “invisible minority” that is they are off the radar of Uganda’s health system. The packaging of HIV/AIDS prevention messages is extremely important, however the core message in Uganda focuses on heterosexual sexual relations. This leads many individuals who 64

See Susan Muyiyi, ‘UNICEF Books Supports Teen Homosexuality,’ New Vision, April 5, 2009 and Michael Mubangizi, ‘UNICEF Promotes Homosexuality in Ugandan Schools,’ The Observer, June 8, 2009.

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engage in same-sex erotics to believe that they are not at risk. Many WSW individuals do not see themselves as MARPs. They have bought into the popular stereotype that there is no risk for HIV transmission among WSW: “Others are like, ‘I am just having sex with a fellow woman… why should I protect myself?’ 65 Because LGBTI individuals were routinely written out of the country’s response to the HIV/AIDS pandemic, activists have had to re-write the whole script in the sensitization literature. WSW organizations work closely with a number of local mainstream human rights NGOs e.g., Global Rights Alert, the Uganda Health and Science Press Association (UHSPA) and Action Group for Health, Human Rights & HIV/AIDS (AGHA)—the leading network of health professionals—to lobby the Ministry of Health to include LGBTI individuals among the MARPs within the Ugandan national health policy plan. Even though mainstream groups may face internal resistance, they need to be reminded of their social obligations and human rights commitments. Strategic alliances have also been forged with their allies in the MSM community in empowering themselves and reducing their vulnerability to HIV/AIDS. For example, they seek out the services of medical professionals within the MSM community to educate them. Unfortunately, the stigmatization that people that live with HIV suffer from in the general population spills over into the LGBTI community. This explains why I came across only one WSW who was open about their sero-status. Organisations like KULHAS and Frank n Candy therefore have the task of dealing with the double stigma even within their own community. Dr. MD described it as a “double-edged sword.” 66 Aside from the belief in their invincibility, it was also clear that very few WSW either have basic information about healthcare, or know about their HIV status. As Chi-Chi Undie points out, it is essential for any struggle to succeed for there to be genuine knowledge and choice about what options are available (Undie, 2011). This applies particularly to LGBTI individuals who are

65 66

Interview with BA. Id.

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forced to live double lives and as a result fuel rather than stem the pandemic. It is a matter of choice. The question of choice can even be a problem within the community, let alone for services which are provided mainly within a heterosexual context. Thus, Icebreakers, a mainly MSM organization, recently recruited a young WSW to address issues relating to the health status of WSW. 67 So far, very few women have participated in the Voluntary Counseling and Testing (VCT) sessions that are regularly held at their headquarters, while the reverse is true for the sessions held for men. ZM who runs the program suggested that the low turn-out of WSW could be due to the location of the service within a predominantly gay organization. However, it might have broader links to the overall perception of WSW towards the question of illness. WSW individuals realize that homophobia in Uganda stems primarily from ignorance, misinformation and fear. Therefore one way that they deal with it is by trying to raise the awareness of the public through advocacy. For some it begins with their own families. Like all other oppressed people, LGBTI individuals in Uganda devise some coping mechanisms that help them survive the hostile, homophobic environment. These range from peer support to social gatherings to self-empowerment. Finally, there is still a phenomenal struggle that has to be waged within the institutions of Medical learning and training—the Medical Schools and Nursing tertiary institutions. As Dr. MD stated, ‘Sexuality per se is not taught (in our universities) … which is a very bad thing (and) which is one of those subjects which needs to be tackled now … LGBTI issues should be part of the curriculum, but it’s not … So it happens that it’s kind of shunted aside … people just continue with the assumptions they get from society.’ 68 Thus, while WSW and MSM groups have done quite a lot to change the terms of the debate about HIV/AIDS specifically and the issue of Sexuality more broadly, there is still a lot to be done.

67 68

Interview with ZM on December 19, 2011. Interview with PS on September 22, 2010.

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Linking the Local and the Global There is no doubt that the local context of discussion about LGBTI issues in Uganda has been greatly influenced by international concern and attention to the Bahati bill and by other related developments on the Ugandan domestic scene connected to the sex panic. In fact, few human rights issues concerning the country including the massive Walk-to-Work (W2W) protests in mid-year have drawn as much attention from international human rights activists and Western governments. The subsequent global media description of the country as one of ‘the most dangerous countries in the world for gay people’ 69 has heightened that scrutiny. Just one indicator of the increased international interest in the situation concerning LGBTI individuals in Uganda is in the area of Asylum Law. Whereas up to the latter part of the last decade courts in the UK routinely rejected the applications of lesbian asylumseekers on the grounds that Ugandan law only affected gay men, things changed dramatically after the arrival of the Bahati Bill. Thus, on October 10, 2010, a UK court noted that, ‘… the situation for homosexuals (in Uganda) has materially deteriorated.’ 70 The court cited evidence of pronouncements by Ugandan government leaders on the ‘criminalization of lesbians,’ as well as arrests and violent treatment (including rape) in detention. 71 So what exactly is the link between the local and the global which should concern our study? In the first instance, there have been significant developments on the international scene moving

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69

The phrase comes from the BBC documentary which looked at the situation of LGBTI people in Uganda. See, http://www.bbc.co.uk/programmes/b00yrt1c (accessed on December 28, 2011). See also, ‘Is Uganda Really the Worst Place to be Gay?, The Observer, June 6-8, 2011 ‘Britain to Deport Ugandan Lesbian,’ The Observer, June 6-8, 2011 at 7, and Geoffrey York, ‘Uganda’s anti-gay bill causes Commonwealth uproar,’ Globe & Mail, Nov 29, 2009 accessed at: http://www.theglobeandmail.com/news/world/ugandas-anti-gay-bill-causescommonwealth-uproar/article1376503/ (accessed on December 28, 2011). The Ugandan press took up the story. See Raymond Mpubani & Philippa Croome, ‘Beyond the International Outcry: Is Uganda as Homophobic As They Say?, Daily Monitor, November 28, 2011, 22-23. 70 See SB (Uganda) v. SOSHD, op.cit. 71 Id. at para. 46.

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towards the recognition of sexual orientation as a human right. Whether one looks at the Human Rights Committee, the European Court of Human Rights or at courts in the domestic arena, there is a great deal more acceptance of the idea than there was just a short decade ago (Mutua, 2011: 457-458). Indeed some countries are moving beyond Sexual Rights to the implementation of what have been referred to as ‘Love Rights,’ i.e. those concerning same-sex partnership and marriage (Wintemute, 2002: 187-191). The crowning achievement of the struggle for the recognition of LGBTI individuals and relevant subjects of concern has been the recent report by the United Nations High Commissioner on Human Rights (2011) on Discriminatory Laws and Practices and Acts of Violence against LGBTI individuals. That report will most certainly pave the way for more engagement on the issue within the Human Rights Council. Furthermore, international agencies such as UNAIDS 72 and the Global Fund have adopted a more pro-active although still cautious—stance on the question of sexual orientation and the need to reach out to MSM in particular (Seale, et al, 2010). Regardless of the amount of pressure brought to bear on them and irrespective of the amounts of money involved, Government officials often express exasperation at the insistence on the inclusion of sexual minorities in country programs. Thus, for example, Dr. Zainab Akol, the AIDS Control Manager at the Ministry of Health was reported to have stated, “It is as if the global agenda is to use HIV to propagate sexual minority groups. Let them use the proper channels to deal with such issues.” 73

72

Interview with Meredith Lwanga and Jotham Mubangizi, UNAIDS on July 18, 2010. The approach of UN agencies is not uniform. For example, the United Nations Fund for Population Activities (UNFPA) was at pains to stress that they operate within the framework of the National Strategic Plan for HIV/AIDS (NSP), which excludes LGBTI individuals (Interview with Rosemary Kiryomunda on October 18, 2010). They also argued that the percentage of infections among MSM was too small to support any meaningful interventions, and that there was a lack of data with regard to behavioural and sexual patterns among sexual minorities. Criminalization adds to the difficulties of accessing the community. 73 ‘UN Global Fund Cuts US$270M to in AID to Uganda, Blames Homophobic Policies,’ accessed at: http://www.mask.org.za/un-global-fundcuts-270m-in-aid-to-uganda-blames-homophobic-policies/

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For Local WSW and MSM activists in Uganda, there is no doubt that international action has moved the discussion about improved government response to LGBTI issues along. And indeed many groups have liaised with global actors in this sector as is this case with myriad other human rights struggles. For example, they link up with international NGOs such as Health Gap and multilateral organizations such as UNAIDS. They also make sure that when Ugandan processes of health policy formulation are concluded, they are reviewed at the international level to ensure that these processes meet international human rights standards. At the time of concluding this study the process of preparing the third Health Sector Strategic Plan (HSSP3) was reaching its final stages and there was some optimism that LGBTI issues would be incorporated in it. But there is a more challenging aspect to the international dimension of the discussion about LGBTI issues and their expression within the domestic context brought forth both by the problematic imperial relations between countries such as Uganda and the West, as well as by the issue under discussion, i.e. sexual orientation and gender identity. That dimension came sharply to the surface when British Prime Minister David Cameron recently announced that future aid to developing countries would be conditioned on their policies and laws on homosexuality. 74 Asked by BBC reporter Andrew Marr whether the Commonwealth Summit was prepared to take a ‘hard line’ on those countries which impose criminal penalties on LGBTI individuals, he responded as follows: Well this is something we raise continually, and the fact is you know different Commonwealth countries are at different positions on this issue and we want them to move. We’re not just talking about it. We’re also saying that British aid should have more strings attached in terms of do you persecute people for their faith or their Christianity,

74

The US government followed suit but declined to tie aid to legal and policy changes on the issue of sexual orientation. See Kevin Kelley, ‘Obama and United Nations Join Push for Gay Rights in Africa,’ The EastAfrican, January 9-15, 2012 at 9.

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or do you persecute people for their sexuality? We don’t think that’s acceptable. 75

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Although not specifically mentioned, there is little doubt that the countries in target would include Uganda. As would have been expected, the statement caused a furore in government and other circles. Presidential Advisor John Nagenda accused Cameron of displaying an ‘ex-colonial’ mentality, and of treating Ugandans like children: “Uganda is, if you remember, a sovereign state and we are tired of being given these lectures by people,” he told the BBC’s Newshour programme. “If they must take their money, so be it.” 76 We are yet to see the specifics of the proposed aid-conditionality. Nevertheless, Cameron’s suggestion surfaces the international and post-colonial reach of the HIV/AIDS pandemic in bold relief: to what extent is such a measure a step in the way of the domestic empowerment of the LGBTI community in Uganda? Also, what does it tell us of the contemporary global political economy? In the same way it affects other vulnerable communities, international politics is especially important in relation to the place of LGBTI individuals in the HIV/AIDS pandemic. As Seckinelgin points out, HIV/AIDS is a complex disease both in its causes and in its consequences. The disease tends to highlight existing social, economic and cultural exclusion patterns in society. It also creates new patterns of inequalities and injustices. In this, the lack of political voice and participation of those who are impacted by the disease within the policy processes has been instrumental. … In this context the disease and the way international actors have been responding to it have highlighted enduring colonial attitudes within the international policy environment towards the knowledge claims and the agency of people in their own socio-economic and cultural contexts. The lack of political voice and participation of people in the international politics

75

Transcript of the Andrew Marr show on the BBC, October 30, 2011, at: available http://news.bbc.co.uk/2/hi/programmes/andrew_marr_show/9627898.stm (accessed on December 28, 2011). 76 BBC, ‘Uganda Fury at Aid Threat over Gay Rights,’ available at: http://www.bbc.co.uk/news/world-africa-15524013 (accessed on December 28, 2011).

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of HIV/AIDS is producing a new layer of inequality and injustice at a global level (Seckinelgin, 2008: 146).

The Cameron statement implicates the wider issue of aidconditionality, which has long been an item of major concern within the framework of the contemporary global political economy. That it emerges once again within the context of the discussion about LGBTI issues is not a surprise, and we need not delve into the obvious problems that aid-conditionality in general entails. However, for the subject under discussion there are a number of problems that the statement implicated. Hence, several African social justice activists (including the present author) signed and issued a statement in response to the threat. Among other things, it said,

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Donor sanctions are by their nature coercive and reinforce the disproportionate power dynamics between donor countries and recipients. They are often based on assumptions about African sexualities and the needs of African LGBTI people. They disregard the agency of African civil society movements and political leadership. They also tend, as has been evidenced in Malawi, to exacerbate the environment of intolerance in which political leadership scapegoat LGBTI people for donor sanctions in an attempt to retain and reinforce national state sovereignty. 77

But the Cameron Doctrine is also a reflection of a deeper problem. If in Uganda we are caught up in a sex panic, the ‘international community’ is enmeshed in a ‘culture panic.’ It is a panic that sees all the developments around sexuality through the prism of a thinly-veiled racial lens. As Sylvia Tamale pointed out in assessing the international response to the Bahati Bill: ‘Most reports and commentaries on the bill penned by Western pundits and scholars are told in an ahistorical and paternalistic manner, and in the process, simply reinforce the racist juxtaposition of modern 77

See Statement on British ‘aid cut’ Threats to African Countries That Violate LGBTI Rights,’ in Pambazuka News Issue 554 of October 27, 2011, available at: http://pambazuka.org/en/category/advocacy/77470 (accessed on December 28, 2011); reproduced in Uganda as: Val Kalende, ‘Cutting Aid to Repressive Countries Will Not Help Fight For Human Rights,’ Daily Monitor, November 3, 2011 at 11.

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‘civilized’ Western sexuality and backward ‘uncivilized’ Africa (Tamale, 2011 at 4-5).’ In other words, LGBTI issues have provided an ideal fulcrum for the reintroduction of the colonial discourse and for a reinforcement of the process of ‘othering.’ Implicit in the threat of sanctions is the racialization of homophobia, i.e. presenting homophobia as if it is somehow a uniquely African thing. And yet we well know that even in the UK, problems still remain with the phenomenon. Secondly, such racialization delinks the current homophobia on the continent from the international influences, especially of the global evangelical Christian movements, which by all accounts were fairly influential in driving the Bahati Bill (Kaoma, 2009, Ekine, op.cit.). 78 Indeed, it is easy to forget from such posturing by government officials like Cameron how virulently homophobic countries like the United States were until a few years back, joining hands with Islamic countries at the United Nations to oppose the inclusion of MSM in various declarations over the years (Altman, 2010: 196). Finally, aid-conditionality also raises the question of lip-service responses, as has been experienced for example in the case of phenomena such as gender, where there is an add-in-and-stir element to many of the internationally-assisted donor programs that do little to change social relations on the ground. Ultimately, therefore, the struggle for an improvement in the lives of LGBTI individuals has to be a Ugandan one. By way of conclusion, we now turn to an elaboration of the shape that struggle should preferably assume. On What Still Needs to be (Un)Done? A Sociolegal Perspective This study has basically sought to answer a single broad question: To what extent can legal or human rights remedies provide a useful 78

Interestingly, claims have been made that US Evangelical Christian missionaries inspired the Bill. See Zoe Alsop, Uganda’s Anti-Gay Bill: Inspired by the U.S., available at: http://www.time.com/time/world/article/0,8599,1946645,00.html (accessed on December 28, 2011), and Jeffrey Gettleman, ‘Americans Role Seen in Anti-Gay Push,’ The New York Times, January 3, 2010, accessed at: http://www.nytimes.com/2010/01/04/world/africa/04uganda.html

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framework of recourse in the struggle for more inclusion and empowerment of young WSW living with or affected by the HIV/AIDS pandemic? A number of basic principles need to be restated before we return to provide an answer to this question. In the first instance all States have an International Law obligation to uphold the principle of non-discrimination, an obligation which finds local expression in constitutional instruments, parliamentary legislation and executive regulations (United Nations High Commissioner for Human Rights (2011: 4-5). Although only a handful of countries explicitly prohibit discrimination on the basis of sexual orientation, we need to interrogate whether it is still permissible in the 21st century to discriminate solely on that basis or indeed on any other. The explicit criminalization of consensual homo-erotic activities would also violate other rights such as those to privacy and to freedom of expression (Murray & Viljoen, 2007 at 88). It is thus our contention that laws which impose restrictions on homosexual behavior or identity are impermissible, unless also applied to all persons regardless of sexual orientation and gender identity. Indeed, one could argue that even when applied equally across the board irrespective of gender identity or sexual orientation, laws which violate individual sexual autonomy, e.g. criminal adultery, abortion or the many proscriptions against sex of any kind between consenting adults violate fundamental principles of human rights. The same argument is applicable to the attempted criminalization of HIV-transmission, which has also been a recent subject of debate in Uganda. Secondly, it goes without saying that respect for human dignity and effective responses to HIV/AIDS are inextricably linked. Obviously, HIV/AIDS per se does not violate the dignity of those who are forced to live with or are affected by the disease. 79 Rather it is the institutions, laws, policies and structures that are created to respond to the disease which either promote human dignity or violate it. In this respect the HIV/AIDS pandemic provides both a crisis and an opportunity. As Frans Viljoen points out, the opportunity emerges because HIV/AIDS lays bare the negative 79

In the words of Daniel Tarantola, ‘If HIV is the root cause of AIDS, stigmatization and discrimination are the root causes of the AIDS pandemic (Tarantola, 2009 at 9).

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consequences of patriarchy (Viljoen, 2004 at 50). We can add to this the argument that it also exposes the clear limitations of heterosexism, which we have defined as the belief in the natural order of a heterosexual human existence, shutting out any other form of sexual contact. The crisis will continue if the focus of our strategies is on the pandemic and not on the wider structural conditions that make HIV a mechanism to entrench violence, discrimination, homophobia and patriarchy: ‘Failure to legislate (on HIV/AIDS) is a failure to acknowledge that factors such as inequality, polygamy, early marriage and violence against women fuel the spread of HIV (Id.).’ In other words, the problem is not sex per se; rather it is the social conditions in which sex is conducted. Failure to tackle homophobia and heterosexism will compound the many problems implicated by HIV/AIDS. By focusing on the legal and human rights contexts and complexities which influence the impact of HIV/AIDS on a particular sexual minority, viz., young WSW, the study has surfaced the major autonomy, access and protection rights issues faced by such individuals. It has also reviewed the presence or absence of laws and law enforcement practices. We sought to assess the extent to which such a minority benefits from human rights protections and is able to access justice in a real and not merely a theoretical sense. It is quite clear from such an analysis that a positive legal environment goes some distance in ensuring that those most vulnerable to stigma are fully protected. This is clear in the recent turn-around by the Ministry of Health, which accepted to have MSM participation in the formulation of the HSSP-3. 80 Hence, the headway made by the Uganda Aids Commission (UAC) and the Ministry of Health to include the situation of MSM in their programming needs to be supported. More importantly, the establishment of MARPS is a positive measure. MARPS is nevertheless limited in terms of its ambit and purview. It is still married to the harm-reduction idea, not to the wider goal of dealing with the structural conditions that ensure that MARPS remain second-class citizens insofar as the approach to the pandemic is concerned. First, is the fact that the inclusion of MSM 80

Interview with Kikonyogo Kivumbi.

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or sex workers in their target groups is directly related to their impact on heterosexuals, much less than it is concerned about the impact of HIV/AIDS on MSM or sex workers per se. In other words is ‘at risk’ directed to the specific MARPS community, or to the wider (heterosexual) public? But secondly, in the absence of a decriminalization of same-sex practices and identities, the focus on MSM actually reinforces the penalization of the kind of homoerotic sexual practices in which MSM are engaged. If this was not the implicit message behind the inclusion of MSM in these programs, then why don’t the advocates for their inclusion proceed to the next stage, i.e. challenging the laws penalizing same-sex behaviour? As it is, even the present inclusion of MSM is shrouded in secrecy, double-speak (‘MARPs’) and indignity as they fall in the ‘other’ category. And moving beyond the MARPS framework, the same approach of officialdom confirming the illegality of same-sex activities and identities is manifest in many other diverse spaces, ranging from the limitations imposed on access to the recentlyestablished Equal Opportunities Commission (EOC), 81 to the attempts to criminalize the transmission of HIV in the Bill which has been in play in Parliament for the past several years. The short point is that the struggle involves more than just a focus on risk reduction and extends to the wider process of social transformation which will tackle the questions of inequality and injustice that underpin the structures of control and governance in the HIV/AIDS arena. Some idea could be taken from the changes that have recently been underway in Kenya. There the government has established special, round the clock clinics for the gay community, facilitated the importation of protective gear (such as condoms and lubricants), trained health workers on how to handle those seeking healthcare and rolled out a vigorous sex education campaign among

81

See S.15 (d) of the Equal Opportunities Act, No. of 2007, which sought to prevent the Commission from cases involving sexual and other controversial minorities. The provision has been challenged in the Constitutional Court in the case of Adrian Jjuuko v. Attorney General, Constitutional Petition No.1 of 2009.

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the youth. 82 While these initiatives represent a bare minimum because they still do not confront the root causes of the situation of those who are most-at-risk, adopting similar strategies in Uganda would help us move away from the dominant paradigm of risk/harm reduction and presents the potential for addressing the situation of sexual minorities in a different way. Finally, there is also a need to address the packaging of the media and other messages which are sent out about HIV/AIDS, which are often ‘…unpleasant, incomprehensible to the lay audience, unnecessarily explicit, highly suggestive and culturally insensitive (Afolabi, 2010: 37).’ But none of these measures directly address the situation of the main subjects of attention in this study, i.e. young WSW living with and affected by HIV/AIDS. First, is the need for much more research in the area. As Cary Johnson (op.cit. 105) states:

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No group has been more abandoned within HIV programming that same-sex practicing women. Governments and NGOs must recognize than women who have sex with women are at risk for HIV and should not be neglected. This must begin with a more complete understanding of the complexities of the lives of same-sex practicing women and the nature of their HIV-related risk.

Second, there is a need to recognize the distinct human rights questions that affect WSW, and which may be different from those that affect MSM and other sexual minorities. What would the extension of the full panoply of sexual and reproductive health rights to WSW and other same-sex individuals—including the right to marry—actually mean? Here we must return to the area of Human Rights and to the question we posed at the start of this section. As the title to this section of the study indicates (What is to be Done, or rather undone?), the arena of human rights work is primarily an arena of struggle. It is both a struggle against the wider structural conditions in which individuals find themselves enmeshed, as well as an internal battle of values. It is clear that the range of obstacles facing young WSW living with or affected by HIV/AIDS are numerous. Together with other 82

See Cosmas Butunyi, ‘New Drive to Fight AIDS among Gays,’ The EastAfrican, May 31-June 6, 2010 at 32.

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sexual minorities they remain largely invisible in both the policy and legislative frameworks that address issues of health, discrimination and equality. Thus, for example, Uganda’s initial report to the Committee on Economic, Social and Cultural Rights (incidentally drafted 24 years after Uganda ratified the instrument) makes no mention of the varied issues that LGBTI persons confront in accessing these rights. When mention is made or action taken on the issue of LGBTI person, it is largely punitive or discriminatory. Related to this is the dearth of materials and equipment addressed to WSW. There is an absence of accessible public health information about HIV which is specifically addressed to WSW. Hence there is a package of rights that should be unlocked for young WSW. Knowledge and information for young WSW living with or affected by HIV/AIDS is key. 83 This would include knowledge about safe sex, transmission and prevention. However, information alone is insufficient and needs to be accompanied with the necessary materials to ensure that young WSW can have safe sex in practice. This is a point reiterated in the LGBT Abuja Declaration addressed to African health ministers: We are frustrated by the huge absence of appropriate STI and HIV transmission and prevention materials specifically geared toward us in our countries. We want to engage in respectful and loving safer sex practices and therefore demand adequate provision of appropriate prevention materials. We want target-specific pamphlets, dental dams, water-based lubricants, appropriate condoms and gloves. We demand access to STI and HIV treatment. 84 Improved access needs to come with improved messages about HIV and AIDS. There is still a shock (‘Grim Reaper’) element to the advertisements and other means of communication about the disease, which also reinforce heteronormative relations. There is an urgent need to send messages to young WSW that they are not immune from the disease, and that there are mechanisms available 83

See Paragraph 6 of the International Guidelines on HIV/AIDS, 2006, available at: http://data.unaids.org/Publications/IRC-pub07/jc1252internguidelines_en.pdf (accessed on December 28, 2011). 84 Available at: http://eforums.healthdev.org/read/messages?id=9504 (accessed on December 28, 2011).

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which they can access for advice and support. Stigma and discrimination are further obstacles to securing medication and support services for HIV+WSW. As we have already argued, this negatively impacts on mental health, increases violence and ultimately leads to the further transmission of HIV and the progression of the disease. It also runs counter to the nondiscrimination principle in several treaties to which Uganda is party. 85 Although a non-binding instrument, Principle 3 of the 2008 International Planned Parenthood Foundation (IPPF) Sexual Rights Declaration offers a comprehensive framework for how the issue of non-discrimination should be addressed: Individuals experience different barriers to the fulfilment of their sexual rights. Substantive equality requires these barriers to be removed in order for diverse individuals to enjoy fundamental rights and freedoms on an equal basis with others. This may require that particular attention be paid to marginalized and under-served groups. We can address our observations and recommendations about human rights to various categories of individuals involved in ensuring that the rights of WSW living with or affected by HIV/AIDS are fully realized. First, it is necessary to underscore the point that the Ugandan government bears primary responsibility for guaranteeing human rights. The obligations herein follow the wellknown respect, protect and fulfil typology, which covers non-coercion in healthcare, protection against human rights violations particularly for individuals and groups described as ‘vulnerable’ and the adoption of necessary measures to ensure that the right to health is realized for young WSW. In meeting the obligation to fulfil, states undertake a further level of obligation including those of Availability, Accessibility, Acceptability and Quality. Principle 17 of the Yogyakarta Principles reiterates the principle of non-discrimination and goes on 85

The most important being the Universal Declaration, the two international covenants, the African Charter on Human & Peoples’ Rights (and the 2003 Women’s Protocol) as well as the many declarations and proclamations to which Uganda has subscribed, such as the 2001 Abuja Declaration on HIV/AIDS, Tuberculosis and Other Infectious Diseases, available at: http://www.uneca.org/adf2000/abuja%20declaration.htm (accessed on December 28, 2011).

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to detail nine aspects of state obligations that underpin this right. 86 Taken together, these obligations imply that states must ensure the same level of enforcement with respect to HIV+WSW as they do to HIV+ heterosexual women. It implies the ability of WSW regardless of sexual orientation or HIV status to health supplies including condoms, medicines and other materials necessary to prevent and treat sexually transmitted infections and HIV/AIDS. 87 It may also extend to the provision (or at a minimum the nonprevention) of access to sexual tools of pleasure such as sex toys, vibrator and dildos. However, it is important to remember that it is not the State or the Government alone, which actually implements these obligations. Healthcare professionals may become complicit in human rights violations by carrying our activities on behalf of the state or on their own behalf that violate fundamental rights or by adhering to healthcare policies and programs which discriminate on the basis of sexual orientation or other prohibited grounds. It is therefore necessary for healthcare providers to familiarize themselves with human rights standards and learn to identify situations of competing loyalties in a bid to ensure that the rights of patients are prioritized over competing and conflicting interests (Centre for Reproductive Rights, 2011, at 11-12). Sexuality in all its diversity defies norms and uses human rights standards to help in resisting regressive standards (Miller & Vance, 2004, at 13). We need to develop policies that foster the ability to experience chosen sexualities, without coercion, and allow more diverse public

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86

Among the nine obligations are: (i) the duty to take legislative and other measures to ensure the right to health and access to healthcare; (ii) the treatment of medical records with confidentiality; (iii) the design and development of healthcare resources and programs to improve the health status of LGBTI people and address discrimination and prejudice; (iv) the need for informed and empowered decisions regarding medical treatment and care; (v) nondiscrimination and respect for the diversity of sexual orientations and gender identities in sexual health, education, prevention, care and treatment, including recognition of next of kin, and (vi) facilitating access to gender reassignment treatments; and adopting policy-making and education and training programs for healthcare workers to improve treatment for LGBTI people (Corréa & Muntarborn, 2010, at 59-62). 87 See also General Comment No.3 (2003) by the Committee on the Rights of the Child.

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conversations about what can be desired and done, without inadvertently reinforcing a single normative standard of sexuality or pleasure (Id., at 14). Hence, there is clearly a need for the revamping of the Sexual and Reproductive Health and Rights courses in our systems of Public Health education (Allotey, et al, 2011, at 56-68). There is nevertheless some need for a word of caution. A human rights approach can be unduly restrictive because it is grounded in legalisms, and may fail to produce the required results (Mertus, 2007, 1036-1064). In other words, at what point do you adopt an assimilation-oriented strategy which seeks inclusion into existing institutions and structures, versus oppositional strategies which ‘…advance new priorities and advocate for alternative discourses within new or significantly revised institutions’ (Id., at 1051). This is an ongoing issue of tactical concern. A human rights strategy can also fix individuals and communities within a particular ‘identity’ category, ignoring the internal tensions and even conflicts within that category and privileging those with access, power and resources within it. Such categorization can result in victimhood and ghettoization, problems from which the broader struggle for women’s human rights has often suffered. Strategically therefore, much thought needs to be given to an approach grounded in human rights. While stigma and discrimination are a problem that still surrounds the situation of people who live with or are affected by HIV/AIDS, there is no doubt that for young WSW the plight is multiplied. Although the Bahati Bill makes only scant mention of HIV/AIDS, it is quite clear that its general homophobic slant made the situation of sexual minorities living with or affected by the disease all the more precarious. Although not yet passed into law, one could say that it affected both ‘law on the street,’ as well as access to justice potentials for young WSW. This is because, especially in the initial aftermath of the Bill’s introduction, it further invisibalized WSW, and reduced the extent to which they sought to access services. Hence, the struggle for law reform or more appropriately for ensuring that any reform of the law is sensitive and all-embracing, must be fought on several fronts. Simultaneous to the introduction of the Bahati Bill has been the debate around the HIV/AIDS bill, which among other things, has sought to criminalize HIV 405

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transmission, exposure and non-disclosure. There is little doubt that if such a law were to be enacted, it would exacerbate the conditions of stigma for those living with or affected by HIV/AIDS. For WSW who are even more marginalized, the inequalities and stigmas will be emphasized. Activists must thus fight tooth and nail in order to ensure that the Bill doesn’t see the light of day in its present form. Looking to the courts of law or pursuing judicial strategies as the main mechanism through which the rights can be enforced is another typical tactic. While some success has been made in Uganda in terms of protecting the rights of LGBTI individuals through recourse to the judiciary in cases like Victor Mukasa and Kasha et al, the limitations in such a strategy need to be noted (Mubangizi & Twinomugisha, 2011, 349-350 and Kabumba, 2009, 220-224). Neither of these two cases—important though they are in the struggle for the recognition of the rights of LGBTI persons— turned on sexual orientation or directly dealt with the myriad issues surrounding the structural problems sexual minorities face. Indeed, the dangers of a judicial strategy were manifest in the case of Uganda Association of Women Lawyers & 5 Others v. The Attorney General, 88 (the ‘FIDA case’) in which women’s rights activists sought a declaration from the Constitutional Court that the Divorce Act was unconstitutional because it provided for the disparate treatment of men and women in terms of the grounds of divorce. 89 While the court found that the Act was indeed discriminatory, instead of declaring the fault principle on which it was based unconstitutional, it declared that the Act should be applied equally to both women and men! In effect, this compounded the structural problems affecting divorce and reinforced the hierarchy of norms within this particular sector of the Law. The same problem happened in the case of Mifumi v. The Attorney General, which failed to overturn the practice of bride wealth. 90 It is important to note that all these cases turn on the 88

Constitutional Petition No.2 of 2003 [2004] UGCC 1 (3/10/2004). While men only had to prove one ground (fault) to secure divorce (Adultery), women had to prove two, i.e. Adultery coupled with desertion, apostasy or violence. 90 Constitutional Petition No.12 of 2007) [2010] UGCC 2 (26 March 2010. 89

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question of women’s human rights, taking us back to Val Kalende’s trite observations about the issue of citizenship. In other words, when it comes to the case of women’s rights—the pen-ultimate frontier to genuine and full liberation for the human race—we are clearly confronted by a one-step-forward, two-steps-back syndrome. Thus, there is no guarantee, for example in a petition on the decriminalization of the sodomy law that a court in Uganda today would follow the best-case example of South Africa where the offence was declared unconstitutional, 91 or the worst-case scenario of Zimbabwe, where the court held that it did not contravene the non-discrimination clause of the constitution, and that it was, in any event, reasonably justifiable given the prevailing conservative social norms in that country. 92 On its part, the global jurisprudence on decriminalization is decidedly mixed, and thus not particularly helpful (Baudh, 2008). Does this mean we should abandon the idea? Our answer is a firm ‘No.’ However, taking the route of litigation must be done with a degree of care and critical introspection, with a particular view to timing, context and the quality and composition of the Bench to which such a petition would be addressed. As Carol Smart cautions, ‘In the field of law feminist work has to be especially careful in that in identifying problematic or even harmful practices, invoking the law may merely introduce a new set of problems rather than solutions (Smart, 1999 at 121).’ This study argues—in line with the Yogyakarta Principles—that as a matter of fact, the legal regime is sufficient to address the situation of sexual minorities, including that of young WSW irrespective of the situation in which they find themselves. We are not looking for law reform. At the same time, it is particularly important to subject legal regimes to human rights impact assessment exercises in order to gauge the extent to which legislation impacts negatively on the protection and enforcement of human rights. Hence, some caution is in order. In the words of Miller and Vance:

91

National Coalition for Gay and Lesbian Equality & Another v. Minister of Justice & Others (Constitutional Court Case No.CCT 11/98; [1999] (1) SA 6-70. 92 Banana v. State (Zimbabwe Supreme Court, [2000] (4) LRC 621.

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Advocates working on the sexual rights of a stigmatized group often work to ‘promote’ their group, that is, move them up a rung or two in the sexual hierarchy, from a more to a less penalized level. But all advocates should be critically interrogating the sexual hierarchy as a whole: Are its underlying principles defensible from a rights-based perspective? Do the standards of sexual legitimacy promote a rightsenhancing culture? If the answer is no, advocacy must encompass the larger project of transforming the sexual hierarchy, or at the very least of not validating and strengthening it, when they advance the interests of their constituency (Miller & Vance, 2004 at 8).

Central to effecting full legal rights is the right of access to legal services. Obviously, this must be linked to the reasons for which such access is routinely (and even institutionally denied), i.e. the criminalization of same-sex activity and identity. The issue of decriminalization thus has to be at the forefront of any struggle to achieve improved rights of access for LGBTI persons in general and for young WSW in particular. Criminalization implies that the very existence of such individuals is subjected to the whims of law enforcement officials, healthcare providers or any other person in a position of power and authority. Even if the Bahati Bill were to remain a dead-letter, the Sword of Damocles that it introduced still hangs over the heads of LGBTI individuals. With specific regard to the issue of HIV/AIDS and the pandemic, the approach adopted thus far goes some way, but it is premised on the wrong assumptions. In the words of Kenyan Gay Rights activist David Kuria, ‘Decriminalization is a necessary condition for addressing both human rights violations and securing access to health services for our community.’ 93 This is the position adopted in the African LGBTI Declaration of April 18, 2010 (Tamale, 2011a: 182). Decriminalization must therefore be the first order of business in seeking to ensure that there is a transformation of the current politics of sexuality in Uganda (Hollander, 2009). Finally in this struggle, there is the danger of the ‘foreign’ tag and the claim that the recognition of a right to sexual orientation offends cultural values. How do you address the issue of culture in a serious and critical manner? Ssebagala warns that whatever one 93

Interview with David Kuria, Chairman of the Gay and Lesbian Coalition of Kenya (GALCK), in Equal Rights Review, Vol. 5, 2010, at 89.

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may think of the need for the human rights of same-sex individuals to be respected, there are obvious cultural constraints that have to be tackled: Ugandans do know that homosexuals exist in their midst and are having sex with each other in the privacy of their homes, but they really don’t want to hear talk about it. When they hear talk about it, it drives them to think that those who are calling for homosexuals to be jailed have a point because, for Ugandans, the sex they don’t hear talked about gay or straight doesn’t happen. In other words, to push people to talk openly about sex between men and men, when they don’t even talk about sex between men and women, is to them morally unconscionable. Like it or not, changing traditional mindsets takes time, even when people are willing and armed with the tools to change (Ssebagala, op.cit, at B-50). Ssebagala’s caution needs to be read much more as one of form rather than substance, i.e. a question of strategic retreat rather than one of surrender. There is no doubt of the importance of being sensitive to the cultural context within which one is waging a struggle for human rights. But there is no single, static uncompromising ‘culture’ in Africa. Indeed, many aspects of African culture in general and Ugandan culture in particular are built on ideas of inclusion (ubuntu) and engagement (palaver) not discrimination and hegemonic discourses. Culture is not static and constantly changes in a bid to stay relevant to world-views that are likewise always in flux (Tamale, 2008c, 53). The legal forms by which sexuality was controlled in most pre-colonial African societies did not pay much attention to sexual orientation. Indeed, the many varied forms which same-sex relations assumed is testimony to a much higher degree of tolerance and accommodation than those which are being paraded in the name of African culture on the continent today. Moreover, the really foreign influences are homophobia and sexual intolerance, which were mediated through external religious (Islamic and Christian) influences; Ugandan societies were and are basically pluralistic and polyetheist. It is those qualities that we need to harness, revisit and reintroduce into the contemporary structures of the forces governing sexual politics in the country, and into our strategies for addressing homophobia and heterosexism. 409

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It is necessary to end this chapter by returning to Val Kalende’s original observation about citizenship, in which women are, in general, accorded a lower status than men. While recognizing some of the many limitations that a human rights approach brings to the study of sexualities, it is essential in one regard, namely that it seeks to equalize all persons, irrespective of the social and other inequalities from which they suffer. In other words, it strives to reify the notion of citizenship and in this instance, the idea of a sexual citizenship. Such citizenship entails ‘… upholding the rights and responsibilities of all people to have (full) control over their sexual and reproductive health (Lepani, 2010: 23).’ Within the African context such citizenship needs to be tied to the struggles against poverty and gender inequalities (Nyanzi, 2011a: 486-489. It would also cover the ability to ‘… express sexual identity, desire and pleasure in healthy and safe ways, free of fear, harm, and force…’ (Lepani, 2010: 23). Legal, social, cultural and religious arguments for the failure to accord sexual minorities equal protection ultimately amount to a deprivation of the right to citizenship.

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Every Child Has A Right To Succeed … But Do We Let Them?1 I have to confess that I was rather surprised to have been asked to give the inaugural Gladys Wambuzi Memorial Lecture. I am not really an educationist, although being at the Law School the education of young and aspiring lawyers is my daily bread and butter; so maybe I’m an educationist by default or by accident, certainly not by design. Nor am I a child psychologist in order to provide you with some deeper insights into the complex workings of the human mind, which dictate how one ends up in life. Moreover, I am more used to giving lectures on Law and Politics, and on the face of it, the topic of today’s talk appears to be quite far from either. Finally, I cannot say that Mrs. Wambuzi was a contemporary of mine for me to have been given such a weighty honour. At best, I can only claim to have known ‘Auntie Gladys’ by osmosis and by history. Let me start with the osmosis: most official accounts of her life in education state that Mrs. Wambuzi began her teaching career at Ndejje Teachers College after leaving school at King’s College Budo and Buloba. However, when I began the research for this chapter I discovered that in the early-1950s Mrs. Wambuzi did teaching practice at a once famous school called Nyondo near Mbale in the-then Bukedi District. I am reliably informed that her arrival at the school was a memorable event. Indeed, her appearance was anxiously awaited by both students and staff. Why? In the first instance, Nyondo was a Catholic School run by Catholic nuns. Secondly, all the nuns at the Nyondo of the time were White Irish missionaries. Mrs. Wambuzi—then known as Gladys Nsibirwa—was neither a nun nor Catholic. She was certainly not Irish; indeed, the anticipation of her arrival was heightened by the fact that she was the first African teacher to come to the School. In 1

Inaugural Gladys Wambuzi Keynote Lecture, presented at the Sheraton Hotel, Kampala; September 14, 2012.

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addition, Mrs. Wambuzi was a Muganda coming to a school made up predominantly of girls from the then Eastern region of the country. But Gladys was no ordinary Muganda; she was the daughter of a two-time Katikkiro (Prime Minister) of Buganda, which at the time basically made her Royalty. How would she take to this environment? The task of looking after this new teacher and helping her feel comfortable at Nyondo was considered to be of such great importance, that it was assigned to the young School head-girl. That girl was called Lucy Kahambo Abbo, later to become Lucy Onyango when she married my father, Bernard. My mother tells me that she still remembers the Mathematics classes the young Gladys taught at the time. She also remembers that far from the haughty and aloof individual who was expected to join the school, she was friendly, approachable and extremely conscientious. Although Gladys Nsibirwa was the quintessential omwana wani? (daughter of privilege) of those times, she never discriminated between the bakopi (peasants), the bawejjere (serfs) or the baddu (slaves) who were her students. But I can claim closer historical association to Mrs. Wambuzi through one of her sisters (Auntie Rhoda Kalema) and through the next generation of her family; her two sons Samson and Philip and her daughters Miriam and Hansa, as well as her many nieces and nephews: the Kalema’s, the Munyagwa’s, the Nsibirwa’s, the Kironde’s and the Kiwana’s, to mention only a handful of those with whom I studied at King’s College Budo or interacted with at various points in my life. Many of my historical contemporaries— those to whom I will refer as the 1960s Generation’—studied in what was called Mrs. Wambuzi’s ‘Garage School.’ Finally, as a lawyer, I would be remiss not to speak about Mrs. Wambuzi’s husband—the venerable Hon. Mr. Justice Samson William Wako Wambuzi, thrice-over Chief Justice of Uganda. For any law student of my time and until today, the judgments of His Lordship throughout his exemplary career were a stellar illustration of Solomonian wisdom and of course many of them form the staple diet of our Law School curricula. I also had the honour of sharing a ‘Bench’ with Justice Wambuzi in a People’s Tribunal that reviewed the infamous Goldenberg Scandal that rocked Kenya several years 412

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ago. Working with Justice Wambuzi brought to mind the old Chinese proverb: A single conversation across a table with a wise man (or woman) is worth a month’s study of books. May I also say that it is obvious as to why Auntie Gladys chose to marry him (in preference to all the other eligible bachelors who must have been available at the time). And now on to the topic of the day. Gladys Nsibirwa Wambuzi believed that any child could succeed and excel, and the organizers of today’s event have aptly entitled the talk in the same way. The essence of this view is that there is no such thing as a stupid child; only stupid teachers and stupid (or negligent) parents. In other words, all children have the raw material required to succeed and even to excel. My considered opinion is that there are at least two dimensions to the issue. On the one hand there is the personal or individual attributes of the child. But on the other there is the question of context or circumstance. Hence, I have added a rider to the main theme of our lecture today: Any child can indeed succeed … But are we letting them? In short, while it may be true as Mrs. Wambuzi believed that any child can eventually ‘make it’ in life, we also need to examine the wider socioeconomic, cultural and political environment within which they set out on life’s journey and to consider whether those factors are conducive to success and excellence. Let me begin with the individual or personal dimension, and to help me in this respect, I sought out the services of two experts who are in the middle of their educational journey my sons, Samora, aged 14 and Kwame who is 16. I asked them what they thought it takes for a child to succeed and excel. Without hesitation, Samora told me: ‘food, sleep and a lot of TV!’ Kwame’s view was: ‘It takes failure.’ Both these perspectives focus on issues such as motivation, facilitation, support and challenge as crucial elements in shaping a child’s global outlook and helping them succeed and excel in life. Two outstanding individuals who failed their O-level examinations were famous British war-time Prime Minister Winston Churchill and former Makerere University Political Science professor Ali Mazrui, demonstrating that setbacks and failure, as my son Kwame 413

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observed, can indeed be stimulants to success and excellence. The great Russian novelist Leo Tolstoy was described by his teachers as both unable and unwilling to learn. He thus left school and started writing. The result was War and Peace and Anna Karenina, two of the greatest literary works of modern times: when one door closes, another is usually standing open for you to pass through. Needless to say, you need to be both alert and looking in order to translate failure into opportunity. Another view forcefully prescribed in the recent book Battle Hymn of the Tiger Mother by Yale Law School Professor Amy Chua— is that we have become too soft with our 21st Century (‘dot-com’ or ‘twitter-fed’) children. Chua argues that children should never be allowed to score less than an ‘A’ in class. In addition, they must be first in every subject at school! To crown it all, they need long hours of after-school study, accompanied by music practice every day (even on holiday). Unlike Samora, Chua also argues for no television; no computer games, and no playing with friends outside school hours. She particularly condemns ‘sleep-overs’! Chua claims that this kind of discipline is what has made Chinese children in the United States out-perform their White American counterparts in all standard assessment scores, especially Mathematics and Science. We also need to ask ourselves exactly what we mean by ‘success’ in today’s Uganda, particularly in light of the pleasures and perils of globalization; the media fixation with ‘celebrity,’ our praise for local investors like ‘Bad Black’ and the adulation we give to public servants who have ‘kazindad’ their way to obscene wealth. 2 Indeed, we must question the view elucidated in the 1992 Education White Paper and recently reiterated by the new UNEB chairperson Fagil Mandy that we must produce children who are able to ‘generate wealth.’3 Finally, we also need to question whether one’s goal in life should be to toil away in a 9 to 5 white-collar job, guaranteed to increase stress-loads and which places a premium on the ‘1-2-3’ formula that has been idealized as the epitome of Middle Class life, i.e. one wife; two children and three cars!

2

See Daniel Kalinaki, ‘Why Angels Fail While Dodgy Accountants and Bad Blacks Thrive in Our Dear Uganda,’ Daily Monitor, July 26, 2012 at 11. 3 New Vision, August 8, 2012 at 19.

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While I believe that all children should be able to attain a reasonable standard of living and also make a positive contribution to national GDP, I am very much against cultivating our children to simply become commodities in the rat-race of capitalist marketing and consumption (Katz, 2012, 21). Unlike President Museveni, I don’t believe that there is anything like ‘useless’ courses at university, simply because they cannot be translated into dollars and cents. 4 Today we find ourselves trapping our children into thinking mechanically and short-sightedly only about the earning-power of their education. Hence subjects like History, Literature, and the Liberal Arts in general are all being discouraged as students are told: concentrate on the Sciences! If you must do Arts, do the ‘lucrative’ courses like Law, Journalism or Commerce. But who has excelled more than Okot p’Bitek, Byron Kawadwa, Robert Serumaga, Henry Barlow or Erisa Kironde, all of them Ugandan poets, novelists, dramatists and literary giants of international repute in the 1960s and 1970s? Who/Where are our literary giants today? And why has Uganda fallen from being regarded as the intellectual powerhouse of the region, to being just another African country referred to in terms of its past glory rather than its contemporary accomplishments? It is my strong belief that instead of harping on the need to concentrate on ‘Science and Technology,’ when we are not providing the infrastructure necessary to do so, we need to give more room for our children to succeed and excel in those areas for which they have shown an aptitude. Let us not shun the Arts and Humanities; rather we need a more holistic approach in our methods of teaching that encourages talent and endeavour wherever we see it. Much as we should encourage more of our children to take on the Sciences, I believe we should also help them excel in Language, in Literature, in Music and in Sport. Students should not only be told to concentrate on the Sciences as if it is the road to Nirvana.

4

This is a message that President Museveni has devoted considerable effort in delivering, most recently to leaders of the Church of Uganda. See Taddeo Bwambale & Henry Nsubuga, ‘Support Sciences, Church told,’ New Vision, August 23, 2012 at 3.

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The Human Rights Dimension My perspective on today’s topic is primarily that of a human rights lawyer. For me, the key issue is the extent to which the Right to Education has been realized for our children in the bid to help them succeed and excel. I focus on the right to education because children spend an inordinate degree of their decisive years in formal school, on average eight or nine hours each day, five (or in some cases even six or seven) days per week. But schooling by itself is not the only issue we should focus on; indeed we should not commit the offence of emphasizing schooling while forgetting about Education in the much wider sense. To paraphrase Mark Twain, schooling should never be allowed to interfere with education. In the same way, it is important to make the point that the right to education is only a small part of the puzzle that we are exploring today, even though education operates as a multiplier. For children to succeed and excel they must be able to enjoy the full panoply of human rights—from the freedom of thought and expression, to the right to adequate health care and medication. In other words, human rights are indivisible and interrelated, and in speaking about Education, we must always be conscious of those links. What this means is that if you have a crisis in the other categories of human rights, it will most certainly impact on the Right to Education, and vice versa. And it is my central point today that we are at crisispoint with respect to the general state of human rights in the country and that this crisis is having an increasingly adverse impact on the realization and promotion of the right to education. Invariably this situation will impact on the ability of our children to succeed and excel. Within this framework of analysis, Human Rights Law matches individual rights to specific and well-defined government obligations, and helps us move towards ensuring that education is Available, Accessible, Acceptable and Adaptable to the specific situation of the individual who is the target of that education. In this light Human Rights scholars speak of the ‘4 As.’ Underpinning all these is the ‘Q,’ which stands for Quality, and which will form a major issue of concern in this lecture. 416

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Having laid out the basic framework for our discussion today, let us move on to consider two broad, but fundamental questions: First of all, how are the key components of the Right to Education, i.e. the 4As and the Q expressed within the present-day context of Uganda, and secondly, how has the country fared in delivering on each of these components in the struggle to help our children succeed and excel? Some Reflections On The Question Of Availability Any discussion on the state of education in present-day Uganda must start with the issue of availability. This is reflected in the first instance in the following table: Table 16.1: Number of Primary Schools (2002-2011) Year

Government-aided

Private

Community

TOTALS

2002

6,271

1,125

562

7,958

2004

10,876

1,521

937

13,334

2006

12,876

1,800

998

15,674

2008

15,728

1,998

1,002

18,728

2009

12,305

3,922

900

17,127

2010

12,576

5,289

N/A

17,865

2011

12,075

6,925

N/A

19,000

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Source: Ministry of Education & Sports The table above demonstrates that over a ten-year period, the number of government-aided primary schools has nearly doubled, from 6,271 in 2002 to 12,075 last year. Even more phenomenally, the number of private schools has risen from 1,125 (or 15.2% of the total) in 2002 to 6,925 last year, representing 36.4% of the total number of schools in the country. Although a much smaller number, community schools have also been on the rise. Taken together, the number of schools in the country has risen from 7,958 in 2002 to 19,000 in 2011, an extraordinary rise by any categorization. 417

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What is the importance of these figures? In the first instance, they demonstrate that the overall stock of schools in the country has increased phenomenally; in other words, schools have been made much more widely available. This implies on the face of it that more children are being taken out of ‘educational poverty,’ largely on the backs of what has been regarded as the successful introduction in 1997 of the Universal Primary Education (UPE) program. Secondly, the government has significantly increased the stock or the number of schools to which it provides support. But it is in the rise of private schools that we have seen the most striking development over this period of time. Although government-aided schools still predominate, as a percentage of the total that number is falling. What the figures do not show is that even within so-called government-aided schools, the amount of private support (or the subsidizing of government obligations by private citizens) is on the rise. While the exact figures of such private contribution are hard to come by, they demonstrate an unmistakable trend of government retreat. In sum, the figures show that as a matter of focus, the State has retreated from being the main provider of the commodity called primary education, and ceded much more of this obligation to private actors. This is despite the fact illustrated in the Minister of Finances’ last budget speech in June that the education sector gets the largest share of the national budget. 5 While education was primarily a public good and dependent on state support and patronage in the past, today the real heroes and heroines of our education system are non-state actors such as Mrs. Wambuzi, who founded not one but two private schools of prominence. The statistics on school numbers indicate that today Education is fast becoming a private commodity, run by private business enterprises and entrepreneurs. 6 We can describe this as the ‘privatization’ of education and it is a phenomenon having a 5

According to the Minister, the total provision for Education increased from UGX.1, 418 billion in the financial year 2011/2012 to UGX.1, 669 billion in the next, amounting to 17% of the total budget. See, Priorities for Renewed Economic Growth and Development: Budget Speech Financial Year 2012/2013, at 21. 6 The figures also give no indication of the quality of the schools, a point that shall be considered later in the paper.

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widespread impact on the state of education in the country, and thus on which children can succeed in Ugandan society. It is also the reason why government-aided schools that used to shine in terms of performance such as Budo, Namilyango and Gayaza are quickly giving way to private actors such as St. Mary’s Kitende, Kawempe Muslim and Seeta High, graphically demonstrated by the recent listing of the best A-level schools per course at Makerere. 7 At the primary school level, what were regarded as top-rate government-supported schools such as Nakasero, Buganda Road/Norman Godhino or Kitante, have been eclipsed by the Greenhills, Kampala Parents and the Agha Khans. Of course, the question of the performance of UPE schools and of schools outside the Kampala-Jinja-Entebbe triangle is an entirely different story. While I have no problem with private schools as such, I think we need to seriously address some of the more adverse effects of privatization. The first point to note is that the shift to privatization is reflective of the growing mediocrity of government-provided education, as well as of a structural inability on the part of the government to sustain a quality of education for the broad public that it used to from independence until the late 1980s (Ferguson, 2012). This means that there is a decreased likelihood of students in government schools—and these are still the majority of our children—succeeding and excelling. Coupled with this observation, it needs to be pointed out that a review of all those countries which have achieved take-off and where students not only succeed but excel, demonstrates that fulsome government support and financing to primary-level education at the minimum is crucial. In Uganda, we have reneged on this obligation. But the second point about the growth of schools over the last 10 or twenty years is more disturbing. It is that when education is primarily addressed as a matter of whether or not a school has a healthy balance sheet and makes a fair return on the investment by its shareholders, there is a serious problem. Here the social goals of education are minimized, or completely disappear, to be replaced by a bottom-line perspective concentrated on profitability. Hence, a 7

Sunday Vision, August 05, 2012 at 48.

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recent full-page spread about one of the most prominent owners of a range of private schools in the country focused much more on the amount of money he was making, and less on whether the quality of education at his schools was appropriate. 8 Indeed, the title to the interview was ‘Money Bags!’ Boasting about oneself is not a crime (especially if nobody else will do it for you). The problem is that this ‘balance-sheet’ approach to education is reflected in a number of negative practices, such as the ranking of schools by academic performance (and the obligatory Media coverage of jubilating candidates and swooning parents when the results are released) as a not-so-subtle form of advertising. It is compounded by the farming-off of weaker students to different examination centres in order not to prejudice rankings, and it is also reflected in the rise in the bribery of officials at UNEB and in the commission of numerous other examination-related malpractices. In this scenario, students have become commodities for capture. The larger the number, the higher the returns; it has truly become much more about schooling and much less about education! This is not to say that such practices were not in existence before, but we all recognize that they have today reached epidemic levels. Indeed, the fixation with academic performance is directly reflected in what I would describe as the ‘Grades addiction’ or what others have called ‘Grades Inflation.’ I hope I’m not the only one who thinks that there is something seriously wrong with all these ‘4s’ at PLE; straight ‘8 distinctions’ at O-level and 3 or 4 ‘As’ in Alevel. A PLE score of 270 out of a possible 300 (90%) in the 1970s and 1980s was a rare feat indeed. Today, the equivalent score of a 4 is commonplace. Those who got three As at A-level were rightly regarded as geniuses, and in my freshman Law class at university we had only one student out of sixty with such a score. Maybe today’s students are brighter than we were. But speaking as a consumer of the very many students who now score 4As today I can certainly say that there is a directly inverse relationship between the grade-standing of students, and their ability to deliver and to cope with a university education. More disturbingly, I doubt 8

See Katongole Kiwanuka, ‘Money bags! Filthy Rich Mulindwa,’ Red Pepper, August 25, 2012 at 18.

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whether we have translated what on the face of it appears like improving scholastic product reflected by the improvement in grades into socioeconomic transformation. Speaking again from the perspective of Law, many of these 4A students are the same ones who have given the Law Development Centre (LDC) a bad name by performing so dismally. Privatization has also witnessed a massive growth in the industry of extra classes. Despite the ritualized directives issued by the Ministry of Education condemning holiday coaching and the threats of death and damnation against offenders, schools are becoming more and more creative in circumventing official sanctions. Indeed, the more strident the threats, the more ingenious become those who offer coaching. During holidays, bars, hair salons and even churches are converted into classrooms in order to evade the long arm of the Inspector! Whereas coaching used to be a remedial mechanism designed to aid students who were lagging behind in specific subjects, today it has become the more dominant method of knowledge delivery especially education-to-pass-exams! And now the reverse is true: much more is taught in coaching classes than it is in regular school, with teachers even holding back information in regular class promising to ‘reveal all’ if you come for my coaching! The practice of coaching is however symptomatic of a broader problem concealed by the figures tracking the growth of primary schools: even though the number of schools has risen phenomenally, what is the content of the education being delivered in them? In conclusion, while the availability of education has increased tremendously in Uganda over the last two decades, serious questions remain as to whether this education is of the right kind. Furthermore, is it a type of education that we should continue to support and promote as the best education to help our children succeed and excel? I will return to both these questions after saying something about the question of accessibility and equity. Access and Equity How accessible are the structures of education that we have erected in present-day Uganda? What are the dominant patterns of 421

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such accessibility? And how has that accessibility aided in improving the prospects of success for our children? In discussing these questions, it is necessary to begin by underscoring the point made by several observers that UPE represented a massive increase in accessibility to school and education for the vast majority of children in Uganda (Morgan et al 2012). Early statistics showed that enrolment rose exponentially from about 2.5 million in 1996, to about 5.5 million in 1998, and 6.5 million in 1999 (Tomasevski, 1999 at para.60). In this regard, Uganda adopted what has been described as the ‘Big Bang’ approach, whereby the change in policy over the payment of fees literally happened overnight. The consequences in terms of school enrolment were dramatic, with a quantitative study finding that ‘… the elimination of school fees increased the probability that an individual attended school before age 8 by about 10 percent, with similar findings for both boys and girls.’ (Morgan, at 520 quoting Grogan, 2006). Other vulnerable groups such as orphans, refugees and immigrants also benefitted. UPE had a particularly dramatic effect in the rural areas of the country, which as a matter of demography represent the places where the bulk of our children reside. Just as the privatization of schooling I described previously has largely been of benefit to the urban middle and upper classes in the country, UPE marked a veritable revolution for the peasantry and the lower classes. For anybody concerned about our children succeeding and excelling, on the face of it UPE should be regarded as a massive boost in that direction. However, as with all revolutions, we need to focus much less on the mere fact of the occurrence of the revolution and much more on its content and aftermath. And in undertaking a critical assessment of accessibility and UPE, it is necessary to note the three overlapping elements to this aspect of the right to education, namely the question of non-discrimination, the dimension of physical accessibility and finally, the issue of economic accessibility. Starting with the last of these, on the face of it, UPE went a long way in the direction of addressing the obstacles affecting economic accessibility and preventing the full realization of the right to education for all. This was amply demonstrated by the massive rise in school enrolment occasioned by the initial 422

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elimination of school fees. Over time, however, we have witnessed two contradictory developments with regard to the issue of fees. On the one hand, the new educational regime prohibited voluntary pre-UPE self-help activities such as building classrooms and toilets that used to be undertaken by parents. Secondly, since all fees in UPE schools are outlawed, lunch at school is also proscribed, with President Museveni being one of the most vehement opponents to the introduction of any levy for lunch, arguing that parents should pack lunch for their children. Parents on the other hand argue that UPE means that the State should cover everything to do with schooling. With neither side meeting the obligation, the result is that some 80% of children in UPE schools don’t eat lunch. The same is true with the issue of scholastic materials, classrooms and toilet facilities. 9 But the most serious problem with UPE is that the system has been bedevilled by that age-old Ugandan ogre corruption as the hearings of the commission of inquiry have unearthed even before it has issued a report. Corruption has reversed many of the initial gains of what was clearly a well-intentioned (albeit poorly-executed) policy measure. UPE-related corruption has reduced accessibility by denying children classroom blocks and toilets, not to mention chalk and books. These developments particularly affect the attendance of girls and other children who face special vulnerabilities in conditions of physical lack. Current records put the girl completion rate at only 25%, but even general PLE graduation numbers are not encouraging in comparison to initial projections. 10 Virtually all recent studies of UPE conclude that (at best) it has only partially delivered on its initial promise, or (at worse) it has been a miserable failure. From a human rights perspective, physical accessibility has two main dimensions, the first relating to the physical infrastructure of schooling, while the second concerns both our attitudinal as well as the pedagogical methods we employ in the act of teaching. There is 9

See interview with Executive Secretary of the Uganda Joint Christian Council (UJCC), ‘Church: Govt Has Failed to Manage Our Schools,’ The Observer, July 25-26, 2012 at 28. 10 See interview with the outgoing Ambassador of Netherlands to Uganda, ‘Ugandans Are Not Doing Enough,’ The Daily Monitor, July 16, 2012 at 34.

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no need to belabour the point that the physical makeup of our UPE schools is in horrible shape, and indeed mango-trees continue to be a major source of classrooms in the country. The likelihood of success emerging from under a mango tree is highly unlikely. But physical accessibility is of particular concern to persons with disabilities (PWDs), or more appropriately people with different abilities (PDAs) and other similarly situated individuals. In the wake of the spectacular performances we’ve just witnessed at the Paralympics, how well is Uganda doing in ensuring the necessary physical accessibility in our schools? Not very well, according to a recent report by the National Council for Disability. Despite the introduction of UPE 15 years ago, only three out of every 10 children with a disability study up to P7. A list produced by UNAPD catalogues the following as major impediments to improving physical access: the lack of disability-friendly ramps; stairs; barrier-free entrances; doors; corridors and handles. In sum, our schools are obviously not disability-friendly. The Uganda National Action on Physical Disability (UNAPD) has stated, ‘…non-accessibility to services enjoyed by others contributes a lot towards unemployment, injustice, discrimination, low levels of literacy, exclusion, isolation, (and) inadequate involvement in community activities, etc.’ (UNAPD, 2010).11 Faced with such obstacles, the possibilities to succeed and excel for children with disabilities are drastically reduced. Numerous additional obstacles stand in the way of the progress of children with disabilities, ranging from the lack of appropriate scholastic materials to the shortage of adequately trained teachers. 12 There are also traditional prejudices both from the teaching staff and from other students, not to mention from the community at large. The obvious implication of these impediments is that children with disabilities are less likely on the whole to succeed or excel than their counterparts. And that is only to mention physical disabilities, without considering the numerous other types of disability, such as

11

Accessibility Standards: A Practical Guide to Create a Barrier Free Physical Environment in Uganda. 12 Idd M. Musimani, ‘Learners with Disabilities Require Patience,’ New Vision, September 06, 2012 at 11.

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those relating to learning, sight, cognition and hearing, in which the schooling situation is much worse. Lastly but by no means least, the question of discrimination in education remains a major problem. While UPE represented a revolution in thought with respect to the implementation of gender equity by mandating the 2-2 gender balance between the four children who were to benefit from free schooling in education, fifteen years down the road, the gender revolution heralded by its introduction appears to have all but disappeared. Stereotypes about the abilities of girls, sexual harassment and outright defilement continue to plague our schools. While girls are generally doing better overall, the gap between them and boys is still large, and especially so in the Science and technology-based professions. But there is also a problem in terms of both the ethnic and the geographical dimensions of discrimination. Schools in former conflict areas such as Gulu and Kitgum or in variously-marginalized regions such as Karamoja and Bundibugyo have been particularly affected by what can be described as structural discrimination, whether in terms of infrastructure and related facilities, or in terms of teachers and scholastic materials. What this development represents is an educational apartheid, with children in the marginal parts of the country increasingly confined to 3rd class prospects in life: how indeed can we expect them to excel, let alone to succeed in conditions of schooling which fall well below the standard?

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Acceptability and Adaptability Questions relating to the acceptability and adaptability of our education are more appropriately answered by our educationists, but I have a few observations to make on these two issues. Acceptability is concerned with the content of education, its relevance, cultural appropriateness and the absence of violence (abuse, sexual harassment, and archaic forms of punishment, such as caning), while adaptability focuses on the degree to which our education equips students with skills that prepare one to cope with changes in society, particularly those of a technological and socioeconomic nature. How acceptable and adaptable is our education, especially in light of regional and global changes that are 425

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taking place in the 21st century? Are we offering an education that our children can use wherever they may find themselves whether posted as a District Veterinary Officer in Kaabong or as a candidate in a global competition for the world’s best innovator? Is our education culturally relevant? What is clear from the perspective of an end-user of the product of our schools such as myself is that our education is clearly deficient. Many of the standard (international) ratios for students are below par, whether it is in relation to desks, teachers, toilet facilities, play-grounds or staff houses. The result is that levels of numeracy and literacy are below average, particularly for children in UPE schools. 13 The reverse side of this problem is that the levels of teacher absenteeism are outrageously high, and the sanctions imposed are either too weak or simply non-existent. The inspectorate function of the Ministry of Education has either lowered its standards or simply performs a per forma function. However, in many respects, the more critical point relates to the kind of curriculum which is in place. Current education policy on Science and Technology is not only marked by a high degree of ad hocism, but the claim that we are giving support to such education over the Arts and Humanities is simply unrealistic without the necessary investment in the teachers and equipment necessary to actually produce a change in the way in which society as a whole deals with science. If our teacher training schools do not have sufficient equipment, how can those who are supposed to disseminate education on science and technology themselves claim to be adequately equipped to pass on the necessary skills to their students? We have an additional problem. The fact is that our education still concentrates on producing the users of technology from elsewhere, rather than on the creation of its builders. Even from a structural perspective our methods and curricula are arcane. The Olevel/A-level system of education was introduced to Uganda over 60 years ago, and it largely remains the same, with its emphasis on specialization and compartmentalization. In other countries, they 13

Abdu Kiyaga, ‘Ugandan Pupils ‘Slowest’ in the Region—Report,’ Daily Monitor, August 15, 2012.

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are experimenting with different models of education that give a broad-based education and allows for a student to excel in both Mathematics and English, and not to view them in the antagonistic fashion that our schools do today. Uganda’s current education system does not produce thinkers. I once tried to introduce a degree of innovation into the type of coursework that I gave; instead of setting a specific question to be answered, I asked the students to design their own question and to answer it. Nearly 80% of the students asked themselves the same question! Innovation and initiative have gone. So too have we lost the motivation to do more than the basic minimum necessary for one to get the paper confirming that one has got a university degree.

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And How Good is Our Education … Really? The question of quality in Education is determined mainly by two things; the state of our schools and the kind of facilities which they have on offer (or what we can describe as the infrastructural framework of education) and the state of those who deliver the education (the teachers, like Mrs. Wambuzi). Most of my talk so far has drawn from the situation in the earlier stages of our education system. But I now want to shift the lens a little by considering two small examples drawn from the university. In recent times, for one to be admitted to the Law course at Makerere, one needed a minimum of 3As and a B. As Law School teachers we began to get more and more concerned about the content of these ‘stellar’ students, whether in terms of comprehension or in terms of communication. The conclusion we arrived at was that these grades were not reflective of either aptitude or ability. Instead, they demonstrated cram-work and rote-learning. To shift the focus of assessment, the Law School thus introduced a pre-entry examination for the first time this year. The exam gave prominence to aptitude, logic and general knowledge; not Law. The results were dramatic. In the first instance a number of the students who had scored very highly in the UNEB examinations failed to make the 50% pass-mark in the pre-entry. We also saw a shift in the representation of schools. For a long 427

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time, admissions at Makerere Law School have been dominated by a small coterie of (mainly private) schools drawn from within the Kampala-Jinja-Entebbe enclave. The pre-entry examination dented (but did not break) this monopoly, and for the first time, we admitted students drawn from schools that had long disappeared from the list. What has the Law School’s experience with the pre-entry examination meant? Let us start with the perspective of the student. I asked one of those who sat the exam what they thought of it. Her response was telling: ‘It was OK,’ she replied, ‘but it required one to think!’ In other words our schooling systems do not teach our students to think. Indeed, in a system where teacher’s pamphlets (abridged subject notes) have become the order of the day, and where rote learning takes precedence over critical thought, how can we expect our students to ever really succeed? 14 The parroting of material that is drawn from handouts, the poor grasp of language and the failure to apply simply logic were all features of those who failed the pre-entry exam, demonstrating that our education needs to be more innovative, well-rounded, and creative. It needs to focus less on examinations, and encourage sports and extra-curricular activities that promote the evolution of more holistic individuals better equipped to face the vagaries of life. But let me not be misunderstood to be implying that it is only the lower levels of education which are in serious trouble. Tertiary and University education in Uganda is in terminal decline and headed for intensive care, despite the growing numbers of students we are passing out, and irrespective of the boost in the number of institutions offering a university education. In the first instance, the majority of those institutions we call ‘universities’ do not deserve the title. Even at Makerere which is the best-endowed of our universities, the methods in use are both arcane and more reflective of primary and secondary school. Teaching content belongs in the 20th century, if not the 19th! Computer-based teaching and research skills are mainly confined to the School of ICT. 14

John Vianney Ahumuza, ‘Pamphlets ‘killing’ Secondary School Students’ Writing Skills,’ Daily Monitor, September 01, 2012 at 9; see also Simeo Kayiwa, ‘Pamphlets Encourage Rote Learning as Opposed to Deep Understanding,’ Daily Monitor, September 03, 2012 at 12.

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There is no doubt that the issue of funding underscores the ability to deliver quality in education, and yet our per capita expenditure in this sector is dismal. While we may have dreams of returning Makerere to its historical place as the ‘Harvard’ of Africa, this is a near-impossibility if we continue with current rates of funding. Harvard, for example, has an endowment of US$32 billion, on which it earns an investment return of 21.4%. Makerere is yet to establish an endowment, and its total earnings from the government, from school fees and from donors put together amounts to a paltry. Just last week, a report demonstrated that Makerere was not only unable to attract high-quality lecturers it was unable to retain them!15 What is the status of the bedrock of the system of education— our teachers? In the tradition of the great teachers of yesteryear, Auntie Gladys taught in schools all over the country. As Josephine Ahikire points out the pleas of teachers, ‘… have not only fallen on deaf ears, they have also been met with threats and ridicule.’ 16 In this respect Auntie Gladys was built in the mould of the great teachers of yesteryear: the Mugoyas and Onyangos in Bukedi; the Katitis and Bataringayas in Ankole, the Adimolas and Okot p’Bitek in Acholi, the Bikangagas and Lwamafas in Kigezi, and Senteza Kajubi and Ernest Ssempebwa in Buganda. Auntie Gladys thus provided education for all in all regions of the country. The other great teachers all went back to develop schools like Nyakasura, Bukedi College and Mbarara High. Today, the best teachers remain behind in Kampala, leading to a skewed development in the category of 1st world and 3rd world schools. The problem is compounded by the very shabby manner in which we treat our teachers and to the phenomenal devaluing of the services offered by teachers. Unable to make a living wage during school time, the only available option is to make it through private coaching classes. How can you expect success and excellence to come out of a group of demoralized, under-valued and continuously disenfranchised individuals? 15

Abdu Kiyaga, ‘Makerere Has More Than 50% Positions Still Vacant,’ Daily Monitor, September 3, 2012 at 5. 16 Josephine Ahikire, ‘Why Do the Elite Shun ‘good’ Public Education?’ The Observer, August 10-12, 2012 at 10.

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Conclusion I would like to end my talk by returning from the contextual to the personal which I began with at the start of my lecture. I believe that Gladys Wambuzi came to the conclusion that every child could succeed and excel from her vast experience of teaching them. But it is also apparent that Mrs. Wambuzi herself exuded some of the personal qualities that are key to the struggle to ensure that one succeeds and excels. What I learnt of Mrs. Wambuzi’s life through the research I did for this lecture demonstrates that she was an individual of dignity, honesty and humility. But most importantly she had character. She also had lots of its subset, courage. She had both the character and the courage to set out on a path of change and discovery, whether in her short stint at teaching practice in Nyondo or in helping to set up Kampala Parents and in founding Greenhill. Although Greenhill is both a profitable and successful enterprise today, if one flashes back to 1993 when it was set up and recalls the poor state of the site on which the school now stands, one can really appreciate how far-sighted and courageous she was. Mrs. Wambuzi’s life demonstrates that to really succeed and excel one requires tenacity, patience and perseverance. Today we have lost many of these attributes. We allocate billions of shillings to teaching patriotism and mchaka mchaka, and are too fearful to tell the government not to spend public money on meaningless districts; we give lip-service condemnation to corruption, graft and embezzlement, but are too afraid to condemn the nepotism of the President’s appointment of his son as the de facto Commander of the Army. And we look on in silence when the Minister of Education condemns teachers for being unpatriotic when she is ferried around in a chauffeur-driven 4-wheel drive vehicle and earns a salary over 100 times the highest paid teacher in a Public school. But most importantly, we seem least concerned about the messages we are sending out to our children about the best way to succeed in life. The dominant message being conveyed is that Education is an end in and of itself, rather than a means to expand one’s horizons. That the most honourable profession to which one can aspire is politics, and that priority should be given to what one earns in life not to what one gives to society. Politics has been 430

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transformed from a service into a well-paying profession. Conversely, teaching has shifted from being a profession to being a poorly-paid service. In such a context, those who like Auntie Gladys were motivated by the desire to teach are increasingly being laughed at and minimized; denounced for being unpatriotic whenever they ask for a slight increase in the meagre earnings which they make, when politicians don’t even bat an eyelid at the colossal amounts they rake in for no work done. In such a context of gross, and unpatriotic and conspicuous consumption, I’m afraid that our children will never, ever succeed.

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Constitucide: Or The Birth And Death Of Democratic Constitutionalism In Uganda1 On October 8th this year (2013), it will be eighteen (18) years since the adoption of the 1995 Constitution of Uganda. Since that time, Uganda has witnessed several important constitutional developments that represent a serious attempt to come to grips with the new dispensation introduced (Oloka-Onyango, 1996). They also reflect the protracted struggle to mark a distinction from the highly disputatious and conflict-ridden period between independence and the mid-1980s. But in discussing the issue of constitution-making and enforcement in Uganda it is necessary to appreciate that there are certain distinctions from both Kenya and Tanzania, distinctions which (to a certain extent) more closely resemble the examples of Rwanda and Burundi. Among them, it is important to point out the following: 1. Uganda has experienced several years of political strife and outright civil and military conflict; 2. From 1995 to 2005, i.e. for the greater part of its operation, the 1995 Constitution was dominated by the Movement, cum single-party system of governance; 3. Despite the 2005 transition to a multi-party democracy, many of the features of a single-party state remain intact (i.e. Uganda suffers from a massive ‘Movement hangover’) (Mbazira, 2013, at 307) and 4. Enforcement of the Constitution has been marred by opportunism, presidentialism and militarism, all of which have damaged the letter and killed the spirit of constitutionalism in the country. This background is crucial to a full understanding of the great range and complexity of the challenges that the issues of 1

Presented at the East African Law Society (EALS) stakeholder regional conference, Emerging Electoral and Constitutional Trends in East Africa, on August 8, 2013. Published in the Zanzibar Yearbook of Law, Vol. 3 (2013): 199-215.

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constitutional reform, development and enforcement present to the country. Indeed, it is my suggestion that Uganda has suffered a form of ‘Constitucide,’ 2 and to demonstrate this, I want to focus on issues relating to the enforcement (or otherwise of the Constitution). In particular, this chapter examines the state of human rights and electoral democracy in the country, before moving on to a consideration to the challenges that prevent the full realization of democratic constitutionalism in Uganda despite the adoption of a constitution that was met with much praise at the time.

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Background To The 1995 Constitution Promulgation of the 1995 Constitution was initially greeted with considerable hope, against the historical background recounted above. In many respects, the 1995 Constitution represented a radically different vision for the place of human rights, democratic governance and political accountability than any of its predecessors. Neither the 1962 nor 1967 constitutions placed much premium on human rights. Each devoted a mere 13 sections to the protection of substantive rights such as the freedoms of conscience and movement. While the 1962 Constitution is notable for mentioning the term ‘sex’ in the general category of protections covered, neither document could be referred to as being either overly sensitive or unduly concerned about the rights of women or other minorities. Indeed, the 1967 Constitution even introduced additional restrictions to the exercise of human rights, further minimizing the protections afforded by the earlier (1962) instrument. Both instruments were terse and modest in their reference to human rights. To crown it all, the institutional mechanisms created by our earlier constitutions were minimalist and ultimately proved ineffective in the face of the massive and persistent violations that afflicted the country throughout the period in which they were in force. By way of contrast, the 1995 Constitution has been described as a human rights document in that it is suffused with human rights 2

The term ‘Constitucide’ is borrowed from a think-piece authored by Andrew Karamagi (on file with the author).

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principles at every turn (Odoki, 2005, at 292-293). Starting with the Preamble, followed by the National Objectives and Directive Principles of State Policy, through to the chapter on representation (Chapter Five) and in the provisions on the various organs and instrumentalities of government, the 1995 Constitution takes care to make reference to fundamental human rights and freedoms at every opportunity. Chapter Four—the Bill of Rights of the Constitution—covers over 20 substantive human rights and freedoms, and a host of procedural protections designed to improve their efficacy, such as articles 43 (on general limitations), 47 (detention under emergency laws) and 50 (on enforcement of rights by the courts). Several new rights—such as the right to education (Article 30), the right to a clean and healthy environment (Article 39) and the right of access to information (Article 41)—represented the inclusion of new rights that received only scant attention in previous instruments and which were also of fairly recent vintage even on the international scene. In this respect, the 1995 Constitution was well in touch with the developments in human rights that were afoot in the world at the time, as well as providing a glimpse into the future. Given the history of human rights violations that had plagued Uganda up to the time of its promulgation, the 1995 Constitution paid special attention to ensuring fairness in administrative decisions (Article 42), the issue of limitations on rights, and the right to vote (Article 59). Indeed, scholars from around the world praised the instrument as path-breaking. The above should not to be taken to say that the 1995 Constitution was free of any problems. Despite the long concern among Ugandans about issues of welfare, the instrument was ambivalent on economic, social and cultural rights. Thus, only one article (40) is devoted to the rights of workers, and even then, in only a very general manner. Tensions were apparent between articles such as that on affirmative action (32) and the rights of women (33) on the one hand, and the right to culture (37) on the other. Most problematically, the 1995 Constitution continued the ban on effective political activity by opposition parties by placing several restrictions on their operation through the infamous Article 269, while at the same time retaining the monolithic and dictatorial 435

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movement political system via a host of articles (69 to 74) which purported to clothe the new system in legitimacy. Perhaps what can be described as the low-point in the history of the instrument came in 2005 with the amendment to Article 105(2) that had provided for a two-term limit on the tenure of the President. By this self-serving act, virtually all the gains made in governance, constitutionalism and the respect for human rights since 1986 were unceremoniously obliterated. Against this background, serious questions have been raised as to whether the existing human rights provisions in the 1995 Constitution are adequate to fully protect the citizens of Uganda. Let me turn to the issue of enforcement. Enforcing the Bill of Rights and the Right to Vote under the 1995 Constitution Since coming into force, the general experience of enforcing the human rights provisions of the 1995 Constitution has been a mixed one. It has been much worse with respect to the Right to Vote. Let me begin with the former.

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Challenges to Human Rights Enforcement in Uganda Initial attempts to challenge human rights violations were often met by a Judiciary that appeared either too reluctant or too steeped in the old and outdated methods of adjudication to seriously consider the substantive rights that were brought to it for protection (Gloppen, et al, 2006 at 14-15). This was despite the introduction of Article 126(2), which decreed that substantive justice needed to be executed without ‘…undue regard to technicalities.’ Instead, technicalities such as defective affidavits, late document filings and unsigned petitions were regarded as sufficient to dismiss a petition on preliminary grounds, even when the issue at stake concerned threats to fundamental human rights and freedoms. 3 The most significant turning point in this regard came

3

Thus, in Dr. James Rwanyarare & Anor. v. Attorney General, Const. Pet. No.11/97, the court declared the petition time barred, stating that Article 126(2) had not done away with the requirement for compliance with the rules of

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with the Constitutional Court decision in the case of Major General David Tinyefuza v. Attorney General, 4 which relied on the famous case of Uganda v. Commissioner of Prisons, ex parte Matovu 5 to assert that preliminary or technical matters should not be the basis on which courts make a decision on matters that involve a substantive constitutional or human rights claim (Mbabazi, 2001 at 101-135). Tinyefuza’s case opened the way for a much more robust engagement with the human rights provisions of the Constitution, with the Supreme and Constitutional courts both making a significant contribution to the jurisprudence in this area. Indeed, since that time, several landmark decisions on a wide variety of rights and freedoms have been given by courts of varying stature in the hierarchy of the Judiciary. Mention should be made of the cases of Charles Onyango Obbo & Anor. (on press freedom); Brig. Henry Tumukunde (on the rights of Members of Parliament), FIDA (U) (on discrimination against women in divorce petitions), and MuwangaKivumbi (concerning the powers of the Police). However, the culmination of the re-emergence of judicial authority came with the Constitutional Court decision in Ssewogerere & Olum v. AG, 6 which declared the 2000 referendum on political systems null and void. In response, President Museveni lashed out at the Judiciary, accusing it of being ‘absurd’ and of usurping the powers of the people and sympathizing with the opposition (Twesiime-Kirya, at 40-41). The government went to the extent of organizing an anti-judiciary demonstration. Having set the precedent of using extra-legal and coercive means to intimidate the Judiciary, the government was not ashamed to later send in armed military troops into the High Court premises to re-arrest suspects charged with treason who had been granted bail (McHenry, Jr., 2006). What came to be known as the ‘Rape of the Temple of

procedure in litigations of a constitutional nature. Also see Charles Onyango Obbo & Andrew Mujuni Mwenda v. Attorney General, Const. Pet. No.15 of 1997. 4 See judgment of Justice Manyindo in Constitutional Petition No. 1 of 1996 at 13. 5 [1966] EA 514. 6 Constitutional Appeal No.1 of 2000.

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Justice’ by the Black Mamba was strongly protested by the Bench and a wide cross-section of civil society. 7 The other institutional mechanisms that are in place to ensure that human rights are respected—commissions and inspectorates or auditing bodies of different kinds—have also been important elements in the struggle to ensure that human rights are given the full respect and enforcement that is necessary. Each of these would require separate comprehensive treatment, not possible in a chapter of this size. Suffice it to note that with the exception of the office of the Auditor General, other oversight institutions such as the Inspectorate of Government and the Uganda Human Rights Commission (UHRC) have had a mixed history, rarely posing serious challenge to government excess, administrative abuse or the abundant human rights violations that continue to occur in Uganda (See Oloka-Onyango, 2013).

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On the Right to Vote Turning to the right to vote it is necessary to point out that given the historical experience with elections and the issue of political representation, it is of no surprise that the 1995 Constitution—unlike its predecessors—devotes a whole chapter to the question of representation. Indeed, neither the 1962 or 1967 instruments expressly speak about the right to vote. Article 59 is thus quite revolutionary, although fairly straight-forward in guaranteeing the right to vote and also describing it as a duty of every citizen of above eighteen years to register as a voter. 8 The actual exercise of the right to vote has nevertheless been dogged by the delegation of the power to make laws over the process to Parliament via Article 59(4). The laws which a Parliament dominated by the ruling party make are manifestly partisan, lopsided and discriminatory. These laws are compounded by manipulation of the process of balloting, which has involved a variety of electoral malpractices and outright criminal offences. As a consequence, the courts have been filled with election petitions in the aftermath of a national presidential and parliamentary vote. The 7

See Justice James Ogoola, “The Rape of the Temple,” New Vision, October 6, 2006, at: http://www.newvision.co.ug/PA/8/13/525279. 8 Article 59(2).

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number of successful petitions exposing the serious irregularities and deficiencies in the polls clearly demonstrates that there is a huge problem with this issue. With respect to the disputes over the parliamentary poll, the courts have in general acquitted themselves fairly well, although some decisions have come up for serious criticism. 9 Concerning the two petitions that Uganda has had over disputed presidential elections, in both instances the Supreme Court has ruled in favour of the incumbent, President Museveni, although with serious criticisms of the process and its management by the EC. 10 For example, in the 2006 election, the Court ruled as follows: Table 17.1: Supreme Court Decision in the 2006 Presidential Election Petition ISSUE

DECISION

Did the EC comply with the

YES

NO

No

0

7

No

0

7

Yes

4

3

Yes

5

2

No

3

4

law? Was the election Free and Fair? Did malpractices affect the results? Is candidate Museveni innocent? Should the elections be annulled?

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SOURCE: Besigye v. Museveni 11 Controversy has arisen as to the degree of malpractice and irregularity permissible in a presidential election. The problem is 9

See, for example the case of Masiko Winfred Komuhangi v. Babihuga J. Winnie, Election Petition Appeal No. 9 of 2002 (Court of Appeal), and Kibalama, 2002, at 19-29. 10 See Rtd. Col. Dr. Warren Kizza Besigye v. Kaguta Yoweri Museveni and the Electoral Commission, Election Petition No.1 of 2001. 11 Also see McHenry, op.cit., at 17-18, citing Solomon Muyita, Emmanuel Mulondo, Hussein Bogere, Siraje K. Lubwama and Lydia Mukisa, “Besigye Rejects Verdict,” Monitor Online, March 7, 2006, accessed at: http://www.monitor.co.ug/news/news04071.php

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that the majority interpretation of the Presidential Elections Act has favoured a pedantically quantitative test which raises the burden of proof exceptionally high and correspondingly limits the exercise of the courts accountability function. 12 Of particular concern is whether the irregularities and malpractices in such an election affected the result in ‘a substantial manner’ so as to justify nullification (Twesiime, 2002, Kampala, at 86-87). Article 104 also sets impossibly short periods within which a petition must be lodged and correspondingly within which the court must dispose of the same. This places the party with fewer resources usually the losing petitioner at a disadvantage, especially vis á vis an incumbent President. There are also queries as to the method of the delivery of a ruling in such a petition as provided by Article 104(3). The problem of adopting a pedantically quantitative standard can be discerned even from a literal perspective. Hence, the definition of the word ‘substantial’ can be divided into two parts, reflecting a qualitative and a quantitative dimension. Such a division demonstrates hat with respect to the enhancement of constitutionalism—which is essentially a qualitative and not a quantitative value—it is obviously erroneous to adopt the latter interpretation over the former. This becomes manifest from the different interpretations of the word ‘substantial’ outlined in the Table17.2. Table 17.2 speaks for itself with respect to the distinctions between a qualitative and a quantitative interpretation of the word ‘substantial,’ even if there could be overlaps with respect to some words. At a minimum, this comparative tabulation confirms that a purely statistical interpretation of a phenomenon which is highly value-laden is inadequate to address the problem. It implies that in the absence of massive, comprehensively-document and extensive irregularities, no presidential vote is ever likely to be overturned by a court of law.

12

See Gloppen et al, op.cit. Not all the judges agreed that the test was a quantitative one. See judgment of Justice Arthur Oder.

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Table 17.2: Qualitative Versus Quantitative Definitions Of The Word ‘Substantial’ QUANTITATIVE

QUALITATIVE

Abundant

Concrete

Ample

Consequential

Considerable

Established

Firmus

Existent

Great

Existing

Large

Flush

Real

Genuine

Sizable

Gravis

Strong

Important

Substantive

Significant

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Valid

It is trite to also point out that the right to vote critically depends both on the manner in which the voting process is organized and on who organizes it. And in the case of the 1995 Constitution, the provisions on the Electoral Commission (EC) raise serious questions as to whether the present formulation can actually deliver a free, fair and genuine representation of the will of the people as to who should be their elected representatives in parliament and the presidency. Certainly, there is a strong need for constitutional reform in this regard. Articles 60 through 67 govern the functioning of the EC and raise serious concerns as to their impact on the right to vote. In the first instance, all the members of the EC are appointed by the President. 13 Secondly, the formulation used in the 1995 Constitution reflects the situation under the monolithic Movement system of government and is not reflective of the transition to a multi-party political dispensation. Thirdly, unlike the Uganda Human Rights Commission, the Inspectorate of Government and the many other public bodies of a fiduciary nature created by the Constitution, the chair of the EC does not have any special qualifications. Furthermore, the limitations on who can hold office covered in Article 60(5) are too 13

Article 60(1).

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lax to fully insulate the body from the many pressures of political life involved in the supervision of an issue as fraught with political tension as an election. Finally, it is the President who has the power to remove any member of the Commission without recourse to any countervailing force as is the case with several other constitutional bodies and with the Judiciary. Thus, unlike justices of the courts of the Judiciary, or a commissioner on the Human Rights Commission, a member of the EC can be removed at the mere whim of the President. This is what happened when the President replaced Mr. Aziz Kasujja with Engineer Badru Kiggundu at the end of 2002 (Kibalama, supra.). Combined, the above factors affect the most critical element in the functioning of an electoral body, i.e. its independence, and thus undermine the full realization of the right to vote. Although Article 62 decrees that the EC will not be subject to the direction or control of any person or authority, the mode of appointment, the lack of serious public participation in the vetting of members and the ease with which they can be removed all bode ill for the effective functioning of the body and by implication, for the full realization of the right to vote in contemporary Uganda. The question of campaign finance and expenditure has become a prime factor in the abuse of the electoral process and existing regulations are insufficient to prevent the vice (Ghai & Ghai, 2012, at 158). In current circumstances, the poll belongs to the highest bidder. Invariably, it is the party with access to State resources which has the upper hand, as was aptly demonstrated in a recent scandal involving the diversion of funds intended for market vendors to operatives in the ruling NRM political party. In light of the limitations I have listed above, it becomes fairly clear that there is a need for a radical reformulation of the constitutional provision on the manner in which the Electoral Commission is established, its operation and its disbandment. Suffice it to say that in the present circumstances of the law and the institutional make-up governing the right to vote in Uganda it is impossible to have a free and fair election in that country. The Ugandan situation on electoral processes is well below the standard, and this is only with regard to Commissions within the EAC or those in the wider SADC area. 442

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Impediments to Constitutional Enforcement By way of conclusion, I want to summarily say something about some of the major impediments to constitutional enforcement in Uganda today. I will begin by looking at the issue of Deinstitutionalization and Paralysis, move on to the related question of Case backload and Selectivity, and finally consider the issue of Technical (in)competence. Moving on to the more political elements of the issue, I will also consider the issue of Impunity, nonchalance and public apathy and end with some remarks about the influence of the related phenomena of Presidentialism and ‘Constitucide.’

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De-institutionalization and Paralysis in the Courts of Law Enforcement of constitutional rights is quite straight-forward under the regime of law in Uganda, however, the issue of interpretation, which has an implication on enforcement is not. In this respect the 1995 Constitution introduced a rather unfortunate dichotomy between the question of enforcement of constitutional rights and that of interpretation of the Constitution. The power of constitutional interpretation—given to the Constitutional Court via Article 137—has often been misconstrued with the question of the enforcement of rights. As the Court stated in Re Sheik Abdul Sekimpi, 14 there is an important difference between the two: “However much a party may request, he cannot have referred (to the Constitutional Court) a matter that does not involve interpretation of the Constitution.” 15 Secondly, the Court has been flooded with cases invoking its interpretation mandate—especially in matters of a criminal nature and particularly on the issue of corruption—in order to delay the turning of the wheels of justice. The Court has been fairly steadfast in deflecting such attempts. However, devoting time to consider such cases clearly diverts attention from the critical business of interpretation for which it was expressly established. 14

Constitutional Reference No. 7 of 1998. See the cases of Osotraco Ltd., v. The Attorney General, in the High Court of Uganda, Civil Suit No.1380 of 1986 and Simon Kyamanywa v. The Attorney General, in the Constitutional Court of Uganda, (Const. Ref No.10 of 2000). 15

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Both these issues relate to a wider problem, i.e. the very slow manner in which the President fills judicial offices despite receiving recommendations from the Judicial Service Commission (McHenry, supra.). The result is that several crucial vacancies remain at various levels of the Judiciary, but especially affect the Constitutional and Supreme courts because there are certain statutory quorums which must be met, particularly for matters relating to the interpretation of the constitution and to constitutional appeals. 16 Although the issue was recently canvassed in a challenge to the court’s jurisdiction to listen to a case involving members of parliament expelled from the ruling NRM, 17 the Constitutional Court made the following observation: Our appreciation of the import of Article 137 (1) and (2) of the Constitution and Section 12 of the Judicature Act is that the coram (sic!) of five Justices of the Court of Appeal applies when the Court of Appeal is sitting as a Constitutional Court to determine to finality any question as to the interpretation of the Constitution. However, in respect of interlocutory matters and causes that are by nature interim or temporary and not constituting a final resolution of the whole controversy, matters that are in the nature of equitable or legal relief sought before a final decision, then there is no mandatory requirement, constitutional or otherwise, that the coram of the justices of the Court has to be five Justices. 18

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16

President Museveni is notoriously slow in filling oversight constitutional offices, with the effect that they are effectively prevented from working. Thus, because there was no Deputy to the Inspector General of Government, the Constitutional Court ruled that the office had not been properly constituted in order to effect its prosecutory function (See Jim Muhwezi & 3 Others v. The Attorney General, CA of Uganda, Const. Pet No.8 of 2010). Despite this anomaly, President Museveni failed to appoint a new deputy for more than 3 years after the judgment (see Oloka-Onyango, 2013 at 73-76). The same is true with the now vacant office of the DPP (see Uganda Law Society, Press Statement on the Leadership Vacuum in the Judiciary and the Directorate of Public Prosecutions, July 2, 2013. 17 For an analysis of the legalities of the decision and its wider implications, see J. Oloka-Onyango, ‘NRM Wrong on Speaker,’ New Vision, May 8, 2013 at 12. 18 Hon. Lt. (Rtd.) Saleh M.W. Kamba & 2 Others v. The Attorney General & Four Others, (Constitutional Application Nos. 14 and 23 of 2013.) This has come to be known as the so-called ‘NRM Rebels’ case.

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With due respect, the decision glossed over the serious implications of this anomaly, given that in petitions of a constitutional nature, even interlocutory matters can have serious implications. In the instance case, the petitioners seek to have the expelled members of parliament prevented from attending the House until final disposal of the main application, a process which can take forever (especially in the absence of a full coram to hear substantive constitutional issues). What has happened with this decision is an instance in which the learned judges of the Constitutional Court have acted more executive-minded than the executive. As did Lord Justice Atkin in his famous dictum in the English case of Liversidge v. Anderson, 19 one can only shudder in fear at this slide of the Judiciary into complete incompetence.

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Case backload and Selectivity As a result of the manner in which the appointment process has become so politicized, the lack of judicial personnel in Uganda has led to a serious case backload, which ultimately has the effect of not only delaying justice, but also of discouraging future litigants from pursuing matters relating to the enforcement of their rights through the courts of law. Although the Constitution provides that matters of interpretation must be given priority, many such cases have been caught up within the politics of selective inertia, i.e. fast-tracking some cases, while going slow on others, amounting to selective hearing and decision-making of the courts. Hence, while cases such as that concerning the jurisdiction of the Equal Opportunities Commission (EOC) have stalled awaiting judgment for 4 years, the courts heard and disposed of a case filed much later involving the legality of a censorship motion against the Prime Minister in record time. Insult was compounded by injury for the respondents (among whom was a reluctant Attorney General) when the taxing officer awarded a whopping UGX.13 billion shillings (US$5 million) as costs to the lawyers of the successful litigants. 20 Ironically, among

19

[1942] AC 206. The Attorney General was from the beginning opposed to the position which Parliament took on the matter. See ‘AG Nyombi: I’m No Museveni Puppet,’ The Observer, August 7-8, 2013 at 28. 20

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the respondents in the case was the Attorney General, which means that the monies are going to come from State coffers.

Technical (In)competence In all my Constitutional Law classes, the first words I say are: ‘The Constitution is the mother of all laws … and NEVER forget that!’ Unfortunately, too many of our legal practitioners simply forget this edict. Most prominent among them are the lawyers in Public Service (Police, Prisons, Parliament, the Executive and even on the Courts). Particularly upsetting is the state of legal advice given by the chief law officer, the Attorney General. One former Attorney General who also happened to have been a law professor gave the opinion that a person facing treason charges but not yet convicted by a court of law could be considered ‘half-guilty’ and therefore ineligible to stand for president! Recent opinions on the appointment of an Army General to Cabinet without his retiring from the Army, and on the eligibility of an acting Supreme Court justice to become Chief Justice 21 reflect a similar leaning of the learned office towards decisions that are more political rather than upholding the constitutional. Although Constitutional Law has come a considerable distance from when the document was not worth the chapter on which it was written, there is still a degree of lack of internalization concerning its supremacy over other laws, and of the ideas of democratic constitutionalism.

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Impunity, Nonchalance and Public Apathy The enforcement of constitutional rights has been met with a high degree of public apathy and nonchalance, which is itself a byproduct of a larger problem, the question of impunity. State agencies and the government itself routinely ignore the decisions of the courts of law, or simply repeat the actions that have been condemned. Thus, for example the Constitutional Court in the Muwanga Kivumbi case declared several provisions of the Police Act unconstitutional, particularly the requirement of permission to convene an assembly or hold a demonstration. However, in 21

See letter from the Hon. Attorney General (Peter Nyombi) to HE President Yoweri Museveni, Ref. No.ADM/52/02, dated June 21, 2013.

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complete disregard of the ruling, the Police continued to prevent assemblies and disband public meetings. The height of that impunity is manifest in the recent passing of the Public Order and Management Bill which effectively overturns the ruling of the court on the matter. 22 A more serious problem is the manifest tendency for public offices in Uganda especially those of a security or military nature to undermine the independence of constitutional bodies. While the President typically ignores the independence of these bodies, the trend is moving down the scale. A recent example of this came with a case involving an alleged murder of a husband by his wife. Ordinarily such a case would not be expected to raise any issues of a constitutional nature, except that the accused wife happened to be the sister-in-law to the Inspector General of Police. While the Police claim they found no evidence of pre-meditation, on receiving the file the Director of Public Prosecutions (DPP) recommended that the widow be charged with murder. Instead of complying with the DPP’s recommendation, the Police referred the matter to the Attorney General for review, suggesting the latter’s office overrode the former in terms of constitutional power. And yet Art.120 (6) is clear in providing that in the exercise of his or her functions the DPP ‘… shall not be subject to the direction or control of any person or authority.’ A blatant and nepotistic abuse of office has segued into a flagrant violation of the Constitution. As Kasango points out, the dispute is indicative of ‘…a manifestation of the weak and sometimes absent state institutions and the structural alternative are the influential and stronger informal networks at play.’ 23 The latest development in the saga is that the Police file has gone mysteriously ‘missing.’ 24 22

The Bill was passed by Parliament in a hectic session on August 6, 2013. For a critical review of the Bill see, International Humanist and Ethics Union, Challenges of the Uganda Public Order Management Bill, September 13, 2010, accessed at: http://iheu.org/content/challenges-uganda-public-ordermanagement-bill 23 Bob Kasango, ‘DPP, Police Row: A Legal Perspective,’ The Independent, May 17-23, 2013 at 16. 24 Badru Afunadula, ‘Nsenga Murder: Police File Missing,’ http://chimpreports.com/index.php/special-reports/crime-investigation/11953nsenga-murder-police-file-missing.html

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P residentialism and ‘Constitucide’ When all things are considered, the biggest impediment to the enforcement of constitutional powers and rights in Uganda starts at the top of the system, broadly within the Executive Branch of government, and specifically with the office of the President. Uganda is in the grip of a serious case of presidentialism, brought about by the violation of both the letter and the spirit of the 1995 Constitution, and placing an opaque shroud over the possibilities of achieving democratic constitutionalism. This development has come about because the country has witnessed the gradual enhancement of executive power at the expense of all the checks and balances inserted in the instrument. Thus, all efforts aimed at achieving the holistic enforcement of the Constitution fall by the wayside. To borrow from Busingye Kabumba:

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If one asked the Ugandan citizen on the Kampala street where the power lies, I believe the answer would be that ‘all power belongs to the President, who exercises his sovereignty through the army’. This is both the over-arching and omnipresent truth of our constitutional age, and also the source of the big lie that underlies the 1995 ‘Constitution’. For it is the gun and the capacity for, and ever present threat of, the use of military force by the executive that currently overshadows the parliament and the judiciary and creates the façade of democracy within which raw and unmitigated political power is exercised by an increasingly narrow group of people. 25

The problem of presidentialism in Uganda is compounded by the phenomenon of ‘constitucide.’ Constitutions around the world usually claim some parentage, as for example, the US Constitution, whose ‘founding-fathers’ are recognized to be George Washington and John Adams, among others. In the case of Uganda, the ‘founding-parents’ of the Constitution are President Museveni who initiated the process while even still in the bush, 26 (former) Chief Justice Benjamin Odoki (who chaired the Constitutional Commission that produced the draft) and the late James 25

Busingye Kabumba, ‘The Illusion of the Ugandan Constitution,’ 27 September, 2012, accessed at: http://africlaw.com/2012/09/27/the-illusion-ofthe-ugandan-constitution/ 26 See, National Resistance Army/Movement, The Ten Point Program (1981).

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Wapakhabulo who steered the Constituent Assembly that debated and eventually adopted the instrument. Taking the case of President Museveni, his recent letter to the chairperson of the Judicial Service Commission (JSC) captures the essence of the single-minded assault on constitutionalism on which he has embarked. Referring to the decision by the JSC to appoint recently-retired Odoki as an acting justice of the Supreme Court, the president stated: ‘… it is my decision that for those two years, His Lordship, Justice Benjamin Odoki should continue to be the Chief Justice so that we maximize the services of our human resource.’ 27 The letter concludes with a command in typical military style: ‘Therefore, send the appropriate instruments of appointment for my signature.’ Of course such a command is manifestly illegal, not simply because it attempts to reverse the role of President and JSC (it is the latter which recommends to the former not vice versa), but also in the blatant flouting of the provisions of the Constitution regarding the appointment of a Chief Justice. While there is no problem in appointing Justice Odoki as an acting judge of the Supreme Court given that this is clearly provided for under Article 142(2)(c), the attempt to reinstate him in the office of Chief Justice is riddled with irregularity, offends the independence of the Judiciary and undermines the pledge in the Preamble to the Constitution to work against political and constitutional instability. 28 For most founding-parents, the fruits of the new instrument are passed on to the next generation; it is rare that the founders partake of the fruits. The case of Uganda is that rare exception, but instead of nurturing the tree to produce more fruit, the founding parents are involved in its desecration, whether through the amendment of 27

Letter dated July 17, 2013, Ref No. PO/17.15. Although the proposal to extend the term of office of the outgoing Chief Justice appears to have originated in the President’s Office, an April 26, 2013 memorandum from the-then Chief Justice entitled ‘Tenure of Office of Judges in Uganda,’ basically makes the case for an extension. A parallel move had been underway via a purported private member’s bill introduced by MP Eddie Kwizera, but the effort appears to have been abandoned in favour of the more direct (coercive route). See J. OlokaOnyango, ‘Kwizera Bill on Judicial Age Limits is Simply Unconstitutional,’ Daily Monitor, July 12, 2013 at 10. But also see, Joan Akello, ‘Odoki Speaks Out on ReAppointment,’ The Independent, July 26 - August 01, 2013 at 14-15. 28 See Preamble to the 1995 Constitution of Uganda.

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term limits, the lifting of age limits, or in the appointment of Army generals to the civilian Cabinet in blatant violation of the Constitution. 29 This is the essence of constitucide—where the founding parents of the Constitution are systematically involved in killing the child to which they gave birth. Writing just before the amendment of Article 105(2) on presidential term limits in 2005, Benson Tusasiirwe observed: The 1995 Constitution was supposed to be different. It was supposed to derive its strength from the system of checks and balances. In addition, it was supposed to stand the test of time. In 2000, it was amended merely to override the ramifications of a court decision. Now we are proposed (sic!) to amend the Constitution yet again, to cater for what are clearly the narrow interests of (a) limited group of persons. In this one blow, the founders of the NRM “revolution” or what remains of them, will have wiped out an edifice that took nine years (from 1986 to 1995) to build. Worse still, they will have buried, perhaps forever, the hopes of a desperate nation (Tusasiirwe, 2006).

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Perhaps our present apprehensions are misplaced: It may well be that with the most recent developments in constitutional law and practice in Uganda we are just sealing the tomb on a carcass.

29

Sadab Kitatta Kaaya, ‘Protests as MPs Approve Aronda,’ The Observer, July 18, 2013.

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18

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The Asian Question And Lessons Of Law, Policy And Politics In The Post-Repossession Era: The Larger Picture1 It is believed that Afro- as opposed to Asian-Ugandans or ‘Ugandasians’ fall between two extremes—either we are very welcoming and hospitable, or we are very hostile, cruel and xenophobic. As with all stereotypes, I think that we fall somewhere between the two, although we are much better known for the bad things we have done (the execution of the Uganda Martyrs, Idi Amin, and the Anti-homosexuality Bill, for example) than for the good (Uganda Waragi, the Bwola dance, and Jose Chameleon). The crucial question is what brings out these extremes? Are these inherent traits that mark out the Ugandan psyche and character or are they aberrant historical accidents? The way in which a society responds to contentious or complicated issues lies as much in the place of the law and the policies adopted as it does in the manner in which politics influences both. In other words, bad consequences result from the bad choices that governments make, some of which like the Ugandan Asian expulsion—have been disastrous. However, the laws and policies embraced by the post-Amin governments especially the NRM have done little to resolve the so-called ‘Asian Question.’ As a matter of fact they have added calamity to disaster. Let me start this Chapter on the operation of law, politics and policy within the context of what has been called the ‘Asian Question’ with a little story I recently came across in one of the local dailies. Entitled, ‘Lawyers Question CMI’s Detention of Top Executive,’ 2 the article read as follows: ‘Lawyers representing the jailed executive secretary of the Departed Asians’ Properties Custodian Board (DAPCB) have written to the Minister of Finance, 1

Commentary at the Asian African Association (AAA) of Uganda Panel Discussion held at Open House - Kampala on August 6, 2013. 2 See Benon Herbert Oluka, Daily Monitor, March 21, 2011.

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Syda Bbumba, and other government agencies, asking for his release. The three-page letter by Lt. Bernard Tumwesigire’s lawyers dated March 11, claims the murder allegations against him represent “absolute witch-hunting at its best.” What did the newspaper item have to do with the Asian Question? First, was the fact that the DAPCB was making news for the first time in a long hiatus. Secondly, it seemed rather odd that a charge of murder could be mixed in with the operation of a government institution, and finally, it was also interesting that In light of the fact that the country had just been recently hit by a massive financial scandal in the Office of the Prime Minister, it struck me as a particularly lucrative area of academic inquiry. This was especially the case because very little of recent academic scholarship on Uganda had reviewed the ‘Asian Question’ in contrast to the focus in the 1970s and 1980s. Although focused on the Asian Question, the main concerns of this chapter are with the broad issues of law, policy and politics, with particular attention paid to the issues of government accountability and transparency, which have been at the core of the Asian Question in Uganda since 1972.

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The Asian Question and the Origins of the DAPCB What happened to the DAPCB? Life in the aftermath of the 1972 expulsion was dominated by the Custodian Board. Established by Idi Amin, the organization was labelled something of a misnomer. For whom indeed, was the Board a ‘custodian?’ Certainly not for the Asians who had been expelled and were not expected to return. Neither as it turned out was the property really for the benefit of the majority of the indigenous Ugandan citizenry. Instead, the Board was used as the ultimate pork-barrel for the disbursement of patronage, not only under the Amin regime, but even for those which followed. Today, we hear nothing of the Board, even though it is still the largest owner of property in the country. Under the 1972 law through which it was created, the DAPCB was designated as a trustee/caretaker over the expropriated Asian property, but never really performed that role. The 1982 452

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Expropriated Properties Act (now Cap.87) sought to manage those properties in accordance with sound principles of transparent management and democratic governance. The DAPCB trusteeship was in respect of two broad categories of people, i.e. the expelled Asians (citizen and non-citizen), and the Afro-Ugandan population. Under the law, a trustee has the obligation to both report and to account for its activities: has this ever been done?

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The DAPCB in Post-Amin Uganda My findings illustrate that the DAPCB has been riddled by problems of gross mismanagement, legal shenanigans, and even outright fraud and embezzlement: who is responsible for this state of affairs? Evidence of the corruption and waste at the Board is extensive, but goes back to the time the Board was first established. Of course, given the prevailing situation, it was impossible to conduct any kind of sober investigation of the same. When the NRM came to power, it pursued a policy of total privatization, and of course the Board properties featured prominently in this scheme. It was not until the 1990s that attempts were first made to investigate what exactly the Board was all about, not simply in terms of the property that it held, but also in relation to its primary role as trustee. Hence, in November, 1991, a Select Committee of the National Resistance Council (NRC) chaired by Hon. NkaluboWasswa made the following observations: (a) The Ministry of Finance had contributed to the very slow process of taking of decisions with regard to the Management of the Custodian Board and to the disposal of the properties; and (b) The Ministry of Finance had helped to cloud accountability by not demanding and ensuring that efficiency and transparency was maintained by the staff of the Custodian Board. In view of the above observations, the Committee recommended that the responsibility to supervise, direct and guide the DAPCB, ‘…be removed from the MOF and transferred to the Ministry of Lands, Housing and Urban Development.’ (p.v. Report of the Select Committee).

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More than eighteen years later, on May 15, 2009, reporting on a Special Audit he conducted, Auditor General John Muwanga highlighted the following major problems with the DAPCB: (i) Irregular meetings of the Board (in fact for a period of ten years, i.e. 1997 to December, 2008) the Board did not meet at all; (ii) Throughout this period there has not been any systematic handover of Board documents, property, etc.; (iii) Although provided by S.2 of the Assets of Departed Asians Act, 1973, the DAPCB does not have an Assets Register: “As a consequence, I was unable to verify the properties repossessed (4,063), sold (1,676) and unsold (3,266)”; (iv) Since 1999 no financial statements have been prepared, preventing the AG from carrying out a statutory audit; (v) Illegal disposal of properties under the influence of ‘high ranking government officials;’ (vi) Lack of verification of payments by GoU to several Indian nationals, stateless Indians and Indians of British nationality; and (vii) Improper property valuations and insider purchases. Neither the earlier recommendations, nor any of the later ones have ever been implemented. In light of this, and given our concern with the larger picture, the following are additional pertinent questions to be asked.

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Some Outstanding Questions Given the obscurity which surrounds the operations of the Board, a number of pertinent questions need to be asked about its current standing. In particular, the following six issues need to be responded to: 1. What documentation exists on: a. The initial number of properties that were the subject of Amin’s decrees of 1972 and 1973? b. What is the different categorization of that property between those which were REPOSSESSED; those which were SOLD, those which were COMPENSATED, and finally (and perhaps most importantly for our discussion today), those which were UNCLAIMED or UNSOLD, as per Section 9 of the EPA. 454

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2. What are the outstanding claims for compensation, i.e. where government sold these properties and former owners returned to claim compensation? With regard to the latter: a. How much money has been paid out in compensation? b. To whom was it paid and for what?, and c. What are the outstanding claims remaining? 3. What is the envisaged place of the sitting Custodian Board tenants (who are in the main black Ugandans), who have an equitable interest in these properties and who are usually tossed around and ignored by the different government interventions, which focus much more on the owners of the property and not those who may be in possession of it? 4. Why have there been moves to privatize DAPCB without either carrying out a comprehensive accounting, archiving and databasing of its extensive property portfolio or without consideration of the different possible alternatives that could be pursued to resolve the issue once and for all and especially given the dismal record of privatization that Uganda has experienced? In this connection, how come DAPCB properties have been transferred in contravention of an injunction against any sales imposed by the Inspector General of Government (IGG) only a few years ago? 5. In light of the recent process of computerization of the original documentation on registered land and properties by the Ministry of Lands, is there a process in place to especially mark the DAPCB properties? 6. What roadmap or policy has government put in place with regard to the future of the DAPCB (which was set up by law and has quite clearly failed in its primary role as trustee of both the indigenous Ugandans as well as the Ugandan-Asian expellees, especially those who have thus far seen neither compensation nor property return? Understanding the Plural Character of the Asian Question The Asian Question has always been a plural one. In other words, there is more than one class or category of Asian Ugandans. However, the main focus and concern of all governments (right from the colonial period to Obote 1, to Amin, through to Obote 2 455

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and now under Museveni) has always been on those who were privileged—either to dispossess or disenfranchise them, or to further enrich or privilege them. That policy completely ignored those Asian-Ugandans who are not privileged. Many moved to the Diaspora and may still have a legal interest in these properties but have been denied information about or access to them to date. This category of Uganda-Asians have been the victim of both local Asian Ugandans who have monopolized the process as well as its benefits, together with those government officials who have an interest in retaining obscurity in the matter. It is important to ask these questions because the postrepossession Asian Question can be summed up as one of an abject lack of transparency and accountability to those to whom the DAPCB was created as trustee, i.e. both Afro and Asio-Ugandans. As we speak, the situation at the Custodian Board is one in which there is an existing contract for an Executive Secretary who’s services have not been terminated, but who has been prevented (since his March, 2011 trumped-up arrest) from accessing the offices of the Board. In other words, there has been an Egyptianstyle coup d’etat at the DAPCB, but the ‘Morsi’ has not been legally removed from office.

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Conclusion The issue of the DAPCB has never been given the appropriate discussion and resolution it deserves and yet it has massive implications for the issue of accountable governance, democratic citizenship and social inclusion in Uganda. Although a trustee, the operations of the Board have excluded those who are supposed to be the primary beneficiaries of its operations, i.e. the Ugandan citizenry—of all races—as well as those others who suffered on account of the implementation of a policy that was manifestly discriminatory. As a matter of urgency there is a need to: (i) Immediately harmonize and implement the outstanding recommendations of the various investigations that have been conducted over the years to review the issue, but particularly the 2009 report of the Auditor General; 456

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(ii) Reconcile the various conflicting legal and policy decisions that have been adopted which have prevented a democratic resolution of the Asian Question and which offend the basic principles governing the supremacy of the 1995 Constitution (Art. 2), the national interest (Art. 8A), the rights of minorities (Art. 36), and the right to property (Art. 26). (iii) Provide immediate and transparent accountability for all the relevant affairs of the DAPCB since inception to date, especially concerning the status of UNSOLD properties which remain in the hands of the Board under a cloud of fraud and misappropriation; (iv) Bring to account the various technical and political officers who were responsible for the mess that the DAPCB has become, and (v) Give final resolution to the issue by passing a law which brings the matter to closure. Of course, while these are issues specific to the DAPCB, they reflect a much wider crisis confronting Uganda. It is the crisis of institutional collapse and decay; it is the crisis of unbridled corruption and administrative vice by which the current State in Uganda is captured. Finally, it is the crisis of governance that is the hallmark of a failed state. And that is the larger picture.

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Towards A New Kind Of Politics And Constitutionalism In (B) Uganda: Reflections On The Next Two Decades1 The topic I have been asked to speak on today is a very large one. It requires what management consultants call a SWOT analysis that would examine the strengths or positives, the weaknesses or fragilities, the opportunities and the threats we are likely to encounter in Uganda’s and Buganda’s futures. However, my focus this morning is mainly on the last of these, i.e. the threats we collectively face over the coming 20 years. I choose to focus mainly on the threats in part because of the short time available to me but also because I believe in the old English adage: ‘forewarned is forearmed.’ We need to directly confront the threats to political stability that the country faces if the next two decades are going to be productive and stable. One can divide the threats facing Uganda into three broad categories, namely the socio-economic, the cultural-ethnic and finally the politico-constitutional. I have added the ‘constitutional’ to the political threats because it is my view that the question of constitutionalism and the threats it faces in the future is going to be crucial to the status of both Uganda and Buganda. Indeed in my view it is the central political question that needs to be addressed if we want to look forward to a positive future. First, let me start with some historical reflections: On October th 8 , this year, Uganda marked eighteen (18) years since the adoption of the 1995 Uganda Constitution. Since that time, Uganda has witnessed several important political developments that represent a serious attempt to introduce a new form of governance different from the anarchy and conflict-ridden period between independence and the mid-1980s. Nevertheless, the experience of the 1995 Constitution has been a mixed one; on the one hand it expanded 1

Keynote Address delivered at the Annual Conference (Ttabamiruka) of Buganda, December 18, 2013.

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many of the freedoms that earlier instruments had removed; it improved the operation of the three arms of government; it tightened the checks and balances in the system, and finally with respect to the issue that we are most concerned with today it recognized traditional and cultural institutions. This last action represented a significant step towards reconciling the two entities that had historically co-existed in a tense environment, culminating in the 1966 abolition of monarchies and the subsequent transformation of the Ugandan political scene into one characterized by military dictatorship, civil violence and ethnic marginalization. However, far from removing or resolving the tensions between the two entities, the 1995 Constitution merely transformed them. This explains the many strains and stresses we have witnessed between these institutions Buganda paramount among them and the central government since the Constitution came into force. One can highlight the disputes over land; the establishment of subkingdoms (Buruli and Bunyala); the refusal of the Kabaka to travel freely through Buganda and the September, 2011 riots as the most striking. But beyond Buganda we can see that Bunyoro is unhappy with the central government over the issue of oil; Ankole remains in a state of political limbo; many of the other traditional and cultural institutions (Busoga, Lango and others) are involved in protracted struggles over succession, governance and internal management. Despite the great fanfare which greeted its promulgation, the 1995 Constitution did not solve our political problems. In short, everybody wants Ebyaffe (their things). It is my argument that in the next two decades we will witness even more mutations of the basic tensions between Buganda and Uganda unless we take serious steps to address some of the basic reasons that have led to them. We need to do this because the futures of Uganda and Buganda just as was the case with their pasts are intricately linked. Secondly, the interests of the peoples of both entities are basically the same, namely peace, development, democracy and the equal treatment of all their citizens. However history tells us to be cautious for two basic reasons. In the first instance, the interests of the peoples and the states of both entities have sometimes diverged, with Uganda betraying its people 460

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on numerous occasions, and Buganda doing likewise, for example, in the marriage between UPC and KY. There is hence a need to make both entities more accountable and people-centred in order to ensure that future relations between the two are more transparent, geared towards improving democracy rather than destroying it, and dedicated to enhancing the protection of fundamental human rights rather than dedicated to their violation. Secondly, in the relationship between Buganda and Uganda there have been both considerable Trust and a simultaneous violation of that trust. Why is that so? In my view, the trust of the past has been accompanied with too little verification of that trust, partly because personal short-term interests have over-shadowed the longer term concern with the greater good of the country. Trust alone is thus insufficient: Ronald Reagan with whom I disagreed on most things said of the-then Soviet Union ‘Trust, but verify.’ On that point Reagan was right. We need to ensure that the trust that exists between Buganda and Uganda is verified by concrete and measureable confidence-building steps. Any reversals which undermine that trust must be vigorously resisted. I make this final observation because today relations between the two entities appear to be at their most placid and stable since 1993. The recent gesture by the central government via the Memorandum of Understanding represents an important step in improving the degree of trust between the two entities. At the same time, caution is necessary because even if we believe that a leopard can truly lose its spots that act does not change its DNA. Secondly, as we saw with the July celebration of Kabaka Mutebi’s coronation, many in Buganda are not happy with the existing relationship between the two. This is particularly the case for the youth of Buganda; we ignore the youth at our peril because they will be central to the developments of the next two decades. At the broader level there are also several issues that would counsel caution on the part of both Buganda as well as the wider Uganda which we need to look out for. Among them I will just highlight three. The first of these is the increasing collapse, malfunctioning and even paralysis of the institutions of central government and of broader political society, while the second is the growth of impunity, and a startling disregard for the observation of 461

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the Rule of Law and the protection of fundamental human rights. Finally, there are the related problems of ‘presidentialism’ and ‘Constitucide.’ I will discuss each of the above in turn.

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De-Institutionalization and Paralysis of the Institutions of Government It is a basic principle of democratic governance that the three arms of government are like a three-legged stool. In other words, they sit together in balance. If that balance is upset, the stool will inevitably collapse. Since the promulgation of the 1995 Constitution and particularly in the last several years we have witnessed the progressive collapse of some of the key institutions of government. Institutional collapse comprises in the first instance of the replacement of established and well-known procedures for the operation of institutions, with ad hoc, temporary measures designed to address a specific issue, and particularly dependent on the whims of the particular officer or on political expedience, e.g. the creation of unviable districts, the attempted regulation and reconstitution of Kampala City, the debacle over land and evictions (the Nantaba Committee and its conflicts with Police IGP Kayihura), the establishment of illegal universities, the collapse of the public health service and the chronic problem of unpaid civil servants, to mention only a few. All of this is compounded by the excessive levels of corruption in the institutions of the State which has now been institutionalized. Secondly, such collapse is accompanied by the overpoliticization of the Public Service which is compelled to follow political dictates that have undermined its effectiveness, coupled with a duplication of its work through the creation of presidential advisors and secretaries. To make matters worse, the new units and bureaus that have been created operate in an opaque and contradictory manner and do not appear to be bound by any transparent rules of operation. This process is married to a systematic attempt to undermine, marginalize and dominate the institution of Parliament and to use the power of numbers in order to achieve political goals in complete disregard of the wider good, basic human rights and fundamental freedoms. A clear case of such 462

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subversion was witnessed in the debate and final vote on the regulation of the Oil sector. All of this leads to the deliberate crippling of crucial institutions of the State (such as the Judiciary, the IGG’s office and the DPP’s Chambers) by a manipulation of the powers of appointment. Thus, both the Constitutional and Supreme courts have been crippled over the last several years simply because of the refusal and/or the failure to make the necessary appointments to these benches. The effect of this de-institutionalization has been profound although little appreciated. Thus, because there was no Deputy to the Inspector General of Government, the Constitutional Court ruled that the office had not been properly constituted in order to carry out criminal prosecutions. The result was that cases against several high-profile individuals involved in corruption had to be dropped because the court said the office was improperly constituted. Despite this anomaly, it took more than 3 years after the judgment to appoint a new deputy IGG in order to have the office properly constituted. The same was true with the inordinate delay in the appointment of a new DPP to replace (now) Justice Richard Buteera. Although Parliament under Speaker Rebecca Kadaga has at times tried to fight back and re-assert its independence, this has been a tricky, if not perilous task at the best of times, as we saw in the case of the Cerina Nebanda stand-off and we continue to see in many other instances. While democratic theory asserts that the majority must have their way, it is also very clear that majority will cannot suppress minority rights or core constitutional values. However, under the pressure of Executive influence we have witnessed Parliament systematically violate both of these, commencing with the first constitutional amendment to change the rules of procedure, followed by the second constitutional amendment which removed presidential term limits. In other words, Parliament under the NRM has become not simply a rubberstamp but an extension of executive power, rather than a check against it. Quite clearly, if the next two decades are characterized by the same features, we will end up as a fully-fledged dictatorship. 463

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The problem of institutional collapse is compounded by the dire situation of those institutions of alternative political governance, namely our political parties, which are in various stages of malfunction. Uganda’s political parties—right from the NRM to the smallest party that has been registered—are in a dire state of institutional failure. For our political future to be secure, our political parties need to shape up and demonstrate that they are not one-man or one-woman vehicles confined to Kampala and dedicated to personal megalomania.

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Impunity and Abrogation of the Rule of Law The enforcement of constitutional rights in recent years has been dogged by the phenomenon of impunity. State agencies and the government itself routinely ignore the decisions of the courts of law, or simply repeat actions that have been condemned and outlawed. Thus, for example the Constitutional Court in the Muwanga Kivumbi case declared several provisions of the Police Act unconstitutional, particularly the requirement of permission to convene an assembly or hold a demonstration. However, in complete disregard of the ruling, the Police continue to prevent assemblies and disband public meetings. The height of that impunity is manifest in the recent passing of the Public Order and Management Bill which effectively overturned the ruling of the court on the matter. 2 We have witnessed the effect of this impunity at two levels. First of all we have seen it with the reintroduction of the phenomenon of detention-without-trial. Euphemistically called ‘preventive arrest’ the provision of the law used by the Police in their general treatment of Mayor Lukwago and opposition leader Kizza Besigye is a relic of the colonial era, which was automatically rendered illegal by the 1995 Constitution. Furthermore, the actions of the Police violate Article 43, which expressly prohibits detention 2

The Bill was passed by Parliament in a hectic session on August 6, 2013. For a critical review of the bill see, International Humanist and Ethics Union, Challenges of the Uganda Public Order Management Bill, September 13, 2010, accessed at: http://iheu.org/content/challenges-uganda-public-ordermanagement-bill

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without trial, not to mention the provisions which limit the length of detention without bringing a person to face a court of law. A more serious problem is the manifest tendency for public offices in Uganda especially those of a security or military nature to undermine the independence of constitutional bodies. While the President typically ignores the independence of these bodies, the trend is moving down the scale. Ministers of government and the Inspector General of Police routinely ignore court decisions and orders, with the example of Kampala being only the latest in a long and sustained process of treating court judgments and strictures as worth much less than the chapter on which they are written. Thus a junior minister in the Office of the President can unilaterally decide to ignore a court order; what does that reflect about respect for constitutionalism?

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Presidentialism and ‘Constitucide’ When all things are considered, the biggest impediment to the enforcement of constitutional powers and rights in Uganda starts at the top of the system, broadly within the Executive Branch of government, and specifically with the office of the President. Uganda is in the grip of a serious case of presidentialism, brought about by the violation of both the letter and the spirit of the 1995 Constitution, and placing an opaque shroud over the possibilities of achieving democratic constitutionalism. This development has come about because the country has witnessed the gradual enhancement of executive power at the expense of all the checks and balances inserted in the instrument. Thus, all efforts aimed at achieving the holistic enforcement of the Constitution fall by the wayside.3 The problem of presidentialism in Uganda is compounded by the phenomenon of ‘Constitucide.’ Constitutions around the world usually claim some parentage, as for example, the US Constitution, whose ‘founding-fathers’ are recognized to be George Washington and John Adams, among others. In the case of Uganda, the 3

Busingye Kabumba, ‘The Illusion of the Ugandan Constitution,’ 27 September, 2012, accessed at: http://africlaw.com/2012/09/27/the-illusion-ofthe-ugandan-constitution/

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‘founding-parents’ of the Constitution are President Museveni who initiated the process while even still in the bush, 4 (former) Chief Justice Benjamin Odoki (who chaired the Constitutional Commission that produced the draft) and the late James Wapakhabulo who steered the Constituent Assembly that debated and eventually adopted the instrument. Of the three, only two still remain with us, but their actions on the issue of constitutionalism have been suspect. Let us take the case of President Museveni’s recent letter to the chairperson of the Judicial Service Commission (JSC) which captures the essence of the single-minded assault on constitutionalism on which he has embarked. Referring to the decision by the JSC to appoint recently-retired Odoki as an acting justice of the Supreme Court, the president stated: ‘… it is my decision that for those two years, His Lordship, Justice Benjamin Odoki should continue to be the Chief Justice so that we maximize the services of our human resource.’ 5 The letter concludes with a command in typical military style: ‘Therefore, send the appropriate instruments of appointment for my signature.’ Of course such a command is manifestly illegal, not simply because it attempts to reverse the role of President and JSC (it is the latter which recommends to the former not vice versa), but also in the blatant flouting of the provisions of the Constitution regarding the appointment of a Chief Justice. I will make no further comment on the case in order not to violate the rule of sub judice, but one can clearly see that there is larger problem involved. 6

4

See, National Resistance Army/Movement, The Ten Point Program (1981). Letter dated July 17, 2013, Ref No. PO/17.15. Although the proposal to extend the term of office of the outgoing Chief Justice appears to have originated in the President’s Office, an April 26, 2013 memorandum from the-then Chief Justice entitled ‘Tenure of Office of Judges in Uganda,’ basically makes the case for an extension. A parallel move had been underway via a purported private member’s bill introduced by MP Eddie Kwizera, but the effort appears to have been abandoned in favour of the more direct (coercive route). See J. OlokaOnyango, ‘Kwizera Bill on Judicial Age Limits is Simply Unconstitutional,’ Daily Monitor, July 12, 2013 at 10. But also see, Joan Akello, ‘Odoki Speaks Out on ReAppointment,’ The Independent, July 26—August 01, 2013 at 14-15. 6 See Preamble to the 1995 Constitution of Uganda. 5

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For most founding-parents, the fruits of the new instrument are passed on to the next generation; it is rare that the founders partake of the fruits. The case of Uganda is that rare exception where the founders were able to enjoy the fruits of their labour. But instead of nurturing the tree to produce more fruit, the founding parents are involved in its desecration, whether through the amendment of term limits, the lifting of age limits, or in the appointment of Army generals to the civilian Cabinet in blatant violation of the Constitution. 7 This is the essence of Constitucide where the founding parents of the Constitution are systematically involved in killing the child to which they gave birth. 8 I have selectively chosen recent political events in Uganda to demonstrate a wider problem: Uganda is not in a good place, and if we continue down this road in future, we will end up back where we started. In short, should we continue with the existing pattern of governance and politics in two decades time we will be facing major questions of state failure and mega-institutional collapse. What Needs to be Done? In addressing this question, it is necessary to separate those things that need to be done by the country as a whole, from those that particularly affect Buganda as a distinct entity, both in terms of its administrative apparatus at Mengo, but in the also in the wider sense of the Baganda as a peoples.

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The Case of Uganda All Ugandans must act to bring to an end the ‘imperial presidency’ that we have been shackled with for the last two-plus decades. In particular this must include a grand review of the 1995 Constitution and to consider the extent to which it has delivered on its original promise. The review must include a frank discussion of 7

Sadab Kitatta Kaaya, ‘Protests as MPs Approve Aronda,’ The Observer, July 18, 2013. 8 Benson Tusasiirwe, ‘Political Succession in Uganda: Threats and Opportunities,’ in Chris Maina Peter & Fritz Kopsieker (eds.), POLITICAL SUCCESSION IN EAST AFRICA: IN SEARCH FOR A LIMITED LEADERSHIP, Kituo cha Katiba & Friedrich Ebert Stiftung, Nairobi, 2006.

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the issue of succession and of the necessary steps that must be taken in order to ensure Uganda’s first peaceful transition of power in its post-independence history. Central to this discussion is an examination of the place of the military in Uganda’s current system of governance and the problem of military stress, represented most acutely by the emergence of the Special Forces Group controlled by the President’s son. What conclusions can we make about the Muhoozi Project of which we have heard so much over the past year? I personally do not believe in the project as part of a plan of succession. Dictators do not (as a rule) plan for their successions. This is because they cannot envision themselves out of office, and explains why President Museveni adamantly refuses to discuss the issue of succession. The Muhoozi phenomenon has emerged as a protection for the Museveni Project, which is in effect a life presidency; you need to be protected by somebody whom you trust 110%. But while I don’t believe in the Muhoozi Project in the manner in which it has been articulated by the likes of General Sejjusa a.k.a Tinyefuza, I nevertheless contend that Muhoozi presents a very dangerous scenario for Uganda’s future. That is primarily because the Special Forces Group (SFG) which he heads is effectively an army within the army. It is better equipped, more mobile and more determined to protect the incumbent than any other unit of the UPDF. We should also not forget that there is a Reserve Force (still headed by General Salim Saleh). The UPDF is currently headed by General Katumba Wamala. If President Museveni were to unexpectedly depart the scene—either by natural or other causes not related to the Constitution—the key question is whether our military institution as presently constituted will be able to withstand the resultant stresses; as presently constituted, I highly doubt it. Away from the issue of broad constitutional review, Ugandans need to increase their resistance to impunity by State officials such as the Inspector General of Police and individual ministers who act above the law (like the Minister of the Presidency). Ugandans also need to decry and reverse the persistent and unending decline of its state institutions, and their substitution by personal rule.

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And for Buganda? Buganda needs to assert itself much more clearly on the side of democracy and transparent governance. In this respect the remarks of the Katikiro (Prime Minister) on the treatment of the Mayor were a welcome statement from an institution which previously steered clear of discussing democracy and the rule of law, however egregious the transgressions that were committed by central government. Ssabasajja’s government also needs to be congratulated for finally fully engaging with the issue of politics as demonstrated by the topic we are now discussing. Let me confess that I was one of those who was a bit cautious about the restoration of kingdoms in 1993. That was not because I thought the restoration was a bad thing in and of itself. Rather, it was but because I was of the view that once again, we were trusting without verifying. I disagreed, and continue to disagree that you can divorce politics from culture: Buganda has never been and will never be simply a cultural entity. Buganda is a complex mix of the cultural, the social, the anthropological and of all other aspects of human society. Let me just give one example. Supposing you got a new president: let us call him ‘President Oloka-Onyango’ or President ‘OO’ who persuades his majority members of parliament to pass a law entitled: ‘The abolition of kwanjula (bride wealth), okufukamira (deferent kneeling) and other related traditional practices.’ If a traditional leader speaks out to oppose this law, is he engaging in politics, or is he defending his culture? What about if the central government of the day embarks on a process of deliberately discriminating against or marginalizing a particular ethnic community? Should the traditional leader of that community simply keep silent in order not to find himself on the wrong side of the law? The absurdity of the law we now have in place is that the government selectively decides which traditional leaders practice ‘good’ politics, and which ones practice the ‘bad.’ I have never heard the government caution a traditional leader who praises President Museveni and urges his/her people to vote for the NRM. However, all Hell breaks loose when a traditional leader even whispers that the government is mistreating the opposition, or that 469

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there is corruption in the management of the Oil sector. What is therefore crucial in this debate is to discuss exactly what kind of politics cultural institutions should be permitted to engage in, bearing in mind that Article 3, Clause 4 of the Constitution stipulates that “All citizens of Uganda shall have the right and duty at all times (a) to defend this Constitution and, in particular, to resist any person or group of persons seeking to overthrow the established constitutional order.” In this connection, Buganda itself needs to discuss the issue of internal democracy; what is Buganda’s constitution? Throughout Uganda’s colonial and post-colonial history, constitutions have been imposed on Buganda, starting with the 1900 Agreement. But as of the present time, I am not aware about the framework of governance which governs Buganda: what is Buganda’s constitution today? Is it the 1955 Constitution that was imposed by the colonial authorities in the aftermath of the return from exile of the Kabaka? Is it the constitution of 1961 that was appended to the 1962 Constitution? Or is it the Traditional and Cultural Leaders Act of more recent years, which the government asserts is the law that governs all such institutions? Whatever the case, we need to ask: What are the powers of the Katikiro and of his ministers; how far does the power of the Lukiiko extend? What is the power of the Bataka (Clan leaders), and finally, how can the Bakopi (peasantry) and the Bazzukulu ba Kintu (youth pressure group) be heard? I am of course aware that many of these questions have well-established answers, but those need to be codified in a comprehensive document to which everybody—Muganda and non-Muganda alike—can refer. But I am arguing for a Constitution of Buganda for even broader reasons. In my humble opinion Buganda has been at its strongest when it has embraced democratic and transparent methods of governance; Buganda has been at its weakest (and thus open to exploitation and abuse) when it has tried to subvert democracy. The message is very clear: Buganda needs a firm foundation of democracy if it is to effectively contribute to the wider struggle for democratic change and consolidation in Uganda at large. A democratic Buganda will force the wider Uganda to look again at its undemocratic practices. 470

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While making internal changes, Buganda also needs to remember that it is not alone in this country. Hence, Buganda needs to forge closer links with the other cultural and traditional leaders; while there are some contradictions that are still outstanding, e.g. with the ‘old’ kingdoms such as Bunyoro, and some of the newer ones such as Buruli and Bunyala, the larger goals of collaboration, mutual respect and concerted action outweigh the divide and rule approach which plays directly into the hands of the central government. Buganda’s outreach to other communities is especially important if it is to achieve the cherished goal of a federal system of governance. One does not need to say much about the merits of the case of federalism: I have no doubt that the concentration of central power is a bad thing. In addition, the regional tier which was supposed to be a compromise was rejected. This means that we are in a kind of a limbo with regard to this issue. Consequently, there is a need for a serious re-thinking of Buganda’s strategy so far in trying to achieve the goal of a federal Uganda. As a lawyer, I know that it is not always the best argument that wins the case. At the recent school’s debate (Budo and Ntare) the side against federalism won the argument. So far, Buganda has not done enough to articulate and package the federalism it wants in a manner that wins the argument. Moreover, there are different messages coming from Buganda on the issue. There is a need for a further internal discussion and a harmonization of the views of Mengo with those who have articulated a different vision for the federal system which should be in place such as Betty Kamya’s Uganda Federal Alliance. Although the legal/constitutional challenge to the Traditional & Cultural Leaders Act of 2011 appears to have been put on the backburner, as a matter of principle, Buganda needs to test this instrument for its constitutionality. Indeed, many of us have argued that the Act is manifestly unconstitutional and needs to be repealed. A number of you here were involved in petitioning the Constitutional Court, and some of us gave our technical support to the initiative: what has happened to the case and why has Buganda gone silent over it? Buganda must demonstrate that it is as keenly aware of the future as it is of the past, and part of doing this entails 471

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a critical review of the laws and policies that currently govern its operation. Conclusion

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Today, Buganda and Uganda at large stand at a crossroads. We have a choice between building on this new-found trust or of reverting to the chaos and disorder of the past which we have tried so hard to distance ourselves from. Thus, both Buganda and Uganda need to have a discussion or a grand ttabamiruka (assembly) (would the more appropriate term be ‘Ssabamiruka?’), which comprehensively engages with the crucial questions of governance and democratization facing the country. This national conference must comprehensively discuss the state of our Constitution and its violation. It also needs to revisit the phenomenon of executive power which we have still failed to tame. It must critically devote itself to thinking about ideas on how to reinforce the powers of the judiciary and of the legislature. Finally, there is also the outstanding question of truth, reconciliation and justice, which we keep sweeping under the carpet. Unless Buganda and Uganda come to terms with their pasts, both of them will inevitably face a bleak future.

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Of Mice And Farmer’s Wives: Unveiling The Broader Picture Behind Recent Legislation In Uganda 1 Today I would like to talk about the recent legislation that has been passed by the Parliament in Uganda, namely the Public Order and Management Act (POMA), the Anti-pornography Act (APA), and the Anti-homosexuality Act (AHA). But let me start my presentation with a short story; it is about the mouse, the chicken, the goat, and the cow on the one hand and the farmer and his wife on the other. One day the mouse found a trap hidden in a corner of the house. It went to the chicken for some help with what to do. ‘Did you say a mouse-trap? What has that got to do with me?’ the chicken asked? All I can tell you is ‘pray hard; your day has come.’ The same retort came from the goat and the cow: ‘how can a mouse-trap be of any threat to us? You deal with it.’ That very night, the farmhouse was woken up by a mighty ruckus of screaming and shouting. A snake had been caught in the trap, and when the farmer’s wife entered the room to find out what was causing the noise she was bitten by the writhing reptile. The farmer rushed his wife to hospital, where the doctor ordered that she return home and be fed on some nice, hot soup. Knowing that chicken soup is the best of all soups, the farmer ordered that the chicken be slaughtered and a broth made for his dear wife. However, her condition worsened overnight and neighbours and friends came round to the house to sympathize with the couple. To feed the visitors, the farmer killed the goat. Finally, the wife died and the farmer slaughtered the cow to cater for all the mourners who came for the funeral. Drawing from this fable, my talk today is entitled Of Mice and Farmer’s Wives: Unveiling the Broader Picture Behind Recent Legislation in Uganda.

1

Public Lecture at a HURIPEC Dialogue held on March 25, 2014 at Makerere University, School of Law, and published in Pambazuka News, Issue 676; May 01, 2014.

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On the face of it, each of the laws under discussion today applies to different categories of people. The Public Order and Management Act (POMA) ostensibly applies to dissidents, protestors and ‘hooligans’; the Anti-pornography Act (APA) to porn-dealers, newschapters like the Red Pepper and people who like to publicly expose their belly-buttons, thighs and other ‘private bodily parts.’ On its part, the Anti-homosexuality Act (AHA) appears to focus on homosexuals who Ugandan society prefers to view as ‘deviants’ and ‘perverts.’ Two out of three of these laws refer to issues of morality and social order, which, we are told by Ethics Minister, Simon Lokodo, have reached a stage of complete disintegration. Ironically, Lokodo is much less vigorous in carrying out his proper mandate of fighting graft and corruption, as well as promoting transparency and accountability in Government. The POMA is more directly political, but in my view it is intricately linked to the other two. My argument today is that each of these laws affects all of us, regardless of our political opinion or status; sexual preference or position; they affect us whether we wear shorts or trousers, burkas or saris, or busutis or mushanana. They apply to us whether or not we have ever watched a pornographic movie, and they should concern us whether or not we believe in human rights. Let me begin my analysis with the POMA.

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The Public Order and Management Act The short title to this Act stipulates that it is a law designed to ‘… provide for the regulation of public meetings; to provide for the duties and responsibilities of police, organizers and participants in relation to public meetings; [and] to prescribe measures for safeguarding public order.’ It is important to recall that the POMA was designed in the heat of the Walk-to-Work (W2W) protests led by opposition leader Kizza Besigye. In a broad sense, the law can therefore be referred to as the anti-Besigye Act or the ‘ABA’ as it was clearly designed to tighten the grip of the Police and security forces in the wake of the W2W and For God and My Country (4GC) protests which rocked the country in the aftermath of the 2011 election. In its earlier manifestation—with provisions that barred three people from holding a meeting without Police 474

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permission—it reflected a government in an extreme state of panic as the winds from the Arab Spring blew further South. Despite its professed noble intensions with regard to the maintenance of law and order, the ABA/POMA is fatally flawed for several reasons. In the first instance, the Act reverses the basic premise on which the right to freedom of peaceful assembly is based. In other words, the ABA/POMA forces those who oppose the government of the day and want to translate such opposition into protest to justify why they should not be stopped from protesting. The Act should instead be compelling the Police to give sound reasons for refusing a protest to take place. Secondly, the ABA/POMA places an inordinate degree of discretionary power in the Police, and specifically in the Inspector General of Police. This is obviously problematic because it makes the IGP prosecutor and judge in his own cause, violating basic principles of natural justice. Thirdly, the law gives lower-ranking Police officers the perfect excuse for not taking action which supports human rights rather than curtails them. The first words out of the mouths of officers like Sam Omalla and Andrew Kaweesi are: ‘I’m (simply) acting on orders from above.’ Aside from the contents of the Act, there is another dimension that is often lost in the discussion. The case of Muwanga Kivumbi v. AG challenged the excessive powers of the Police especially those in Section 32 of the Police Act which allowed the Inspector General of Police to prohibit the convening of an assembly allegedly “on reasonable grounds.” Agreeing that this provision was unconstitutional, Justice Mpagi Bahegeine stated: where individuals assemble, if the police entertain a “reasonable belief” that some disturbances might occur during the assembly, all that can be done is to provide security and supervision in anticipation of disturbances. It is the paramount duty of the police to-maintain law and order but not to curtail people’s enshrined freedoms and liberties on mere anticipatory grounds which might turn out to be false. Lawful assemblies should not be dispersed under any circumstances. Most importantly in such cases the conveners of the assemblies can

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be required to give an undertaking for good behavior and in default face the law. 2

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But Section 3 of the ABA/POMA gives the IGP (or an authorized officer) the power to regulate the conduct of all public meetings in accordance with the law, effectively reintroducing S.32. The reintroduction of this provision of the law is in direct violation of Article 92 of the Constitution, which provides that ‘Parliament shall not pass any law to alter the decision or judgment of any court…’ To make matters worse, the definitions of places of assembly and the types of prohibited meetings are so broad as to cover any kind of gathering and to subject them wholly to the subjective belief of the Police and not to any objective standard of oversight. That is why the government can claim to be against corruption, but whenever Bishop Zac’s Black Monday Movement (BMM) simply distributes flyers about the vice, they arrest him! In Burundi over the weekend, the Police stopped a group of opposition politicians from jogging around Bujumbura, detaining several and sentencing a number of them to prison terms extending up to a life sentence. 3 Now the Police there has introduced new regulations as to where people can jog in the city! On Sunday, Police in Soroti blocked opposition leaders from gathering for lunch! 4 While this may seem like the epitome of ridiculousness, it demonstrates that the only direction in which a State can go once it begins to restrict freedoms is downwards. The ABA/POMA thus introduces a slippery slope of growing infractions, and is a perfect representation of that downward slide. The Anti-Pornography Act Of all the three laws under consideration, the APA has produced the most immediate and vocal reaction from the public,

2Constitutional

Petition No.9 of 2005, accessed at: http://www.ulii.org/ug/judgment/constitutional-court/2008/4 3See BBC News Africa, ‘Burundi Opposition MSD ‘joggers’ get life sentence,’ http://www.bbc.com/news/world-africa-26681586. 4 Simon Peter Emwamu, ‘Police Block Opposition Rally on Electoral Reforms ,’ Daily Monitor, March 24, 2014 at 4.

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particularly from women human rights activists. 5 The provisions in the Act most responsible for this development are the definition of the term ‘pornography’ and section 13 of the same which outlines the penalty for the offence. But the more problematic issue has been that the passing of the Act was met by vigilante acts of undressing women by street mobs, of Police officers stopping women in the street and ordering them to return home and change their clothes, and with an upsurge in sexual harassment and the imposition of a de facto dress code. Although the government—represented on this issue by Ministers Karooro and Lokodo—have been at pains to claim that the law neither imposes a dress code nor is it addressed to women the above actions point to the opposite. Indeed, the language of the Act opens it up to ‘unrestrained interpretation,’ 6 such that not only is such interpretation available to anybody regardless of whether or not they are a government official, but also to all kinds of actions that such a person deems fit in the circumstances. Although Karooro and Lokodo have been at pains to claim that the Act is gender neutral and has only been ‘misunderstood’ by the public, one needs to query why it is only women who have been targeted by the mobs and not men. Secondly, why is it only the APA which has caused such confusion in terms of interpretation and enforcement? Thirdly, how come the Police are also part of this confusion? Finally, how did such a discriminatory law escape the attention of not only the Attorney General, but also of the many women representatives in the House? Quite clearly, if a law needs so much additional explanation and clarification, then there is something fundamentally wrong with it. There can be little doubt that the law is in fact inherently discriminatory and amounts to an attack on women’s personal autonomy and expression. But worse, according to Stella Mukasa:

5

See Stella Mukasa, ‘Anti-Pornography Act a setback for gains made in women’s rights,’ http://www.monitor.co.ug/OpEd/Commentary/AntiPornography-Act-a-setback/-/689364/2249082/-/aywph5/-/index.html. 6 Jimmy Senteza, ‘Language in the Law Against Pornography is Vague, Biased,’ New Vision, March 4, 2014 at 12.

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The Anti-Pornography Act clearly set the stage for a rollback of women’s personhood and autonomy as upheld by our constitutional guarantees on equality before and under the law, including laws that protect women from sexual and gender-based violence, intimate partner violence, and Female Genital Mutilation, to mention a few.

It is nevertheless naïve to view the passing of the APA in isolation. Rather, its enactment must be married to the broader attack on the rights of women and the failure of the State to effectively ensure that issues concerning women’s security, autonomy and well-being are better protected. Hence, the NRM government has still failed to enact a progressive law on Marriage and Divorce and has instead reverted to passing laws which undermine, marginalize and directly discriminate against women. The Karoro/Lokodo condemnation of the reported unlawful acts by the public based on this law is too little, too late and only a smokescreen to protect a regime that has abandoned the cause of the protection of women’s rights. Ironically—and to underscore the interconnectedness between the laws under discussion—the Police invoked the ABA/POMA in order to prevent women human rights activists from protesting the APA! 7

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The Anti-Homosexuality Act I do not want to focus too much on the constitutionality of the AHA, save to say that it is an Act that quite clearly contravenes several articles of the Constitution, specifically Articles 2(1) & (2) on the supremacy of the Constitution; 21 (1) & (2) on equality and freedom from discrimination, and 27 on the right to privacy. To make matters worse, the criminalizing of touching by a person of the same sex creates an offence that is overly broad and inconsistent with Articles 28 (1), (3) (b), 28 (12), 42 and 44 (c). Questions are also raised about the criminalization of consensual same sex/gender sexual activity among adults in which one is a 7

Kashmira Gander, ‘Uganda Mini-Skirt Ban: Protests after Women are Assaulted and Forced to Undress in Public,’ accessed at http://www.independent.co.uk/news/world/africa/uganda-miniskirt-banprotests-after-women-are-assaulted-and-forced-to-undress-in-public9155773.html

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person living with HIV or in which one is a person with disability (Art. 35) as is the compulsory HIV test. Finally, by criminalizing socalled aiding, abetting, counselling, procuring and promotion of homosexuality, the AHA creates offences that are overly wide. It also penalizes legitimate debate and professional counsel in direct contravention of the principle of legality, the freedoms of expression, thought, assembly and association, academic freedom and the right to civic participation. The Act goes over the top in classifying houses or rooms as brothels merely on the basis of occupation by homosexuals. But the AHA is more problematic at a broader level in that it institutionalizes homophobia and thereby promotes a culture of hatred and clearly violates the right to human dignity. Like the ABA/POMA and the APA, the AHA is motivated by hatred, discriminatory impulses and by the over-arching desire to suppress and dominate political and civil society. In this respect, we have to turn from only looking at the law to a critical examination of the politics that led to the passing of the Act. In the first instance, I think it is important to acknowledge and support President Museveni’s recourse to Science over emotion in trying to resolve the matter. For this reason I believe it was correct to appoint a scientific panel to give advice on a matter that was not only controversial, but also highly technical. What did the scientists commissioned by the President say? The following is the summary of the recommendations they made: a) There is no definitive gene responsible for homosexuality; b) Homosexuality is not a disease; c) Homosexuality is not an abnormality; d) In every society, there is a small number of people with homosexual tendencies; e) Homosexuality can be influenced by environmental factors (e.g. culture, religion, information, peer pressure); f) The practice needs regulation like any other human behaviour, especially to protect the vulnerable, and g) There is a need for studies to address sexualities in the African context. And yet, the Presidential statement in relaying his decision to sign the bill stated: “Homosexuality is not a disease but merely an 479

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abnormal behavior which may be learned through experiences in life.” What did this mean? First of all, the President deliberately distorted the message which the scientists had given him (Balter, 2014, at 956). Secondly, the President clearly abandoned the key message being sent by the scientists and substituted it with a political one, i.e. a message that would earn him political points against his two main rivals for the presidency, i.e. House Speaker Rebecca Kadaga who he had previously lambasted for passing the Bill without quorum, and who going in to Kyankwanzi was riding high in political ratings. More importantly, it was necessary to trump the ambitions of Prime Minister Amama Mbabazi was supported in the early days of Kyankwanzi, and which continues to trouble the President until today. Thus, although the debate about the APA and the AHA has been mainly about sex, in my view that is not the real issue at stake. Rather, the focus on sex serves the single purpose of justifying discrimination against LGBTI people and against women. 8 It also serves as a major point of distraction from more important issues of governance and democracy. After all, how much time do we spend having sex, even for those who do it on a daily basis? But by focusing on sex—especially when it is represented as ‘deviant’ or ‘abnormal’ as the President has done—helps us to find a scapegoat for the larger problems of governance and democratic failing that we are faced with in contemporary Uganda. As Sylvia Tamale points out: intensive scrutiny, regulation and control of non-conforming sexualities and gender identities reflect both a deep historical connection to colonial structures of governance and marginalization, and to more contemporary attempts to control the body. In this way, sexuality is deployed as a tool for perpetuating patriarchy, inequality, and injustice and to consolidate the process of othering (Tamale, 2011, at 1-2).

Focusing on sex also provides an escape route for a President who after 28 years in power is finding himself increasingly backed 8

Godwin Murunga, ‘The Issue is Not Sex but the Social Consequences of Homosexual Acts,’ Saturday Nation, March 1, 2014 at 14.

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into a corner by rivals within his own party who are asking the question: Why not me? Finally, the AHA fits precisely into what has been described as the ‘Anwar Ibrahim Syndrome,’ 9 i.e. the use of sexual-oriented legislation to penalize legitimate forms of political opposition. 10 It is only a short step away for those who oppose President Museveni—male or female—from being charged with aggravated homosexual rape.

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Conclusion We live in a time of legal gymnastics, a time when the law is being openly used as a mechanism to consolidate and perpetuate dictatorship and autocracy and where there is a need for lawyers, activists and intellectuals of all shades of political opinion to come together and speak out against this legal autocracy. We are witnessing the legalization of mob justice; the granting of a license to do anything to people who have done nothing but express their dissenting opinions and their different sexuality. The acts I have discussed today represent the very essence of the problem we are confronted with in Uganda today, namely growing impunity, autocracy and neglect of the Rule of Law accompanied by increasing nonchalance on the part of the Public. Although the preceding analysis has largely looked at the individual aspects of each of these laws, there is a larger picture. In other words, by focusing in on the individuals Acts we could fail to see the forest for the trees. Taken together the enactment of these laws reveals a definite and clear pattern. It is not surprising that such desperation has culminated in the proposals for a Patriotism Bill which will simply add to the arsenal against political opponents. Nor is it surprising that the NRM is making 50 proposals for constitutional amendment, while seriously resisting any serious discussion on reforming the Electoral Commission, or why it wants 9

Ibrahim was Deputy Prime Minister to Malaysian dictator Mahatir bin Mohamed and was charged with sodomy when he criticized the latter over his dictatorial methods of governance. 10 State Minister for Lands Mariam Najjemba questioned how Amama could have had the audacity to question the passing of the AHB, ‘as if he had a different agenda from the President.’

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to change the rules on the election of a speaker and her/his deputy or why it fought so hard to get the rebel MPs expelled from the House. In the final analysis, the spate of legislative action by the NRM government is not accidental; it simply represents the final stage of total dictatorship. So the next time you hear of legislation being passed that does not appear to affect or concern you; do not act like the cow, the goat and the pig. Remember that when the least of us is threatened, we are all at risk.

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Bibliography 1. Books and Book Chapters Alston, Philip, (1998), “The Universal Declaration in an Era of Globalization,” in Barend van der Heijden & Bahia Tahzib-Lie, (eds.), REFLECTIONS ON THE UNIVERSAL DECLARATION OF HUMAN RIGHTS: A FIFTIETH ANNIVERSARY ANTHOLOGY,. Altman, Dennis, (2010), ‘Exporting Moralities,’ in Peter Aggleton & Richard Parker (eds.), ROUTLEDGE HANDBOOK OF SEXUALITY, HEALTH AND RIGHTS, Routledge, London/New York. Amin, Samir, (1998), CAPITALISM IN THE AGE OF GLOBALIZATION. Arac de Nyeko, Monica (2007), ‘Jambula Tree,’ in Ama Ata Aidoo (ed.), AFRICAN LOVE STORIES, Ayebia Clarke Publishing Ltd., Berkshire. Arnfred, Signe, (ed.) (2004), RE-THINKING SEXUALITIES IN AFRICA, Nordic Africa Institute, Oslo. Baxi, Upendra, (1994), INHUMAN WRONGS AND HUMAN RIGHTS. Beasley, Chris (2005), ‘Queer Theory: Jagose, Seidman,’ in Chris Beasley (ed.) GENDER & SEXUALITY: CRITICAL THEORIES, CRITICAL THINKERS, Sage Publications, London. Bell, Derrick, A., (1980), RACE, RACISM AND AMERICAN LAW, Boston/Toronto, Little, Brown & Co. Brecher, Jeremy and Tim Costello, (1995), GLOBAL VILLAGE OR GLOBAL PILLAGE: ECONOMIC RECONSTRUCTION FROM THE BOTTOM UP. Brewer, John, (1991), INSIDE THE RUC: ROUTINE POLICING IN A DIVIDED SOCIETY, Oxford, Clarendon Press. Cácere, Carlos F., & Kane Race, (2010), ‘Knowledge, Power and HIV/AIDS: Research and the Global Response,’ in Peter Aggleton & Richard Parker (eds.), ROUTLEDGE HANDBOOK OF SEXUALITY, HEALTH AND RIGHTS, Routledge, London/New York. Chandler, David (2010c) ‘Where Is the Human in Human-Centred Approaches to Development? A Critique of Amartya Sen’s ‘Development as Freedom,’ (mimeo), subsequently published in the European Journal of International Relations and in Sandro Mezzadra, Julian Reid & Ranabir Samaddar (eds.), THE BIOPOLITICS OF DEVELOPMENT: READING MICHEL FOUCAULT IN THE POSTCOLONIAL PRESENT, Springer (India), New Delhi, 2013. 483

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Chanock, Martin (2003), ‘Human Rights and Cultural Branding: Who Speaks and How,’ in Abdullahi An-Na‫ޏ‬im (ed.), CULTURAL TRANSFORMATION AND HUMAN RIGHTS IN AFRICA, Zed Books, London. Charlesworth, Hillary & Christine Chinkin (2000), THE BOUNDARIES OF INTERNATIONAL LAW: A FEMINIST ANALYSIS, Juris Publishing/Manchester University Press, Manchester. Cohen, Barney & Jane Menken, (2006), (eds.), AGING IN SUBSAHARAN AFRICA: RECOMMENDATIONS FOR FURTHERING RESEARCH, National Academies Press, Washington DC. CORREA, SONIA, ROSALIND PETCHESKY & RICHARD PARKER (2008), Sexuality, Health and Human Rights, ROUTLEDGE, NEW YORK. Epprecht, Mark, (2008), HETEROSEXUAL AFRICA? THE HISTORY OF AN IDEA FROM THE AGE OF EXPLORATION TO THE AGE OF AIDS, Ohio University Press/University of KwaZulu-Natal, Athens/Scottsville. Ferguson, Niall, (2012) (Reith Lectures), CIVIL AND UNCIVIL SOCIETIES. Foucault, Michel (1998), THE HISTORY OF SEXUALITY VOL. 1: THE WILL TO KNOWLEDGE, Penguin, London. Garcia-Moreno, Claudia (2010), ‘Sexual and Intimate Partner Violence,’ in Peter Aggleton & Richard Parker (eds.), ROUTLEDGE HANDBOOK OF SEXUALITY, HEALTH AND RIGHTS, Routledge, London/New York. Ghai, Yash Pal & Jill Cottrell Ghai, (2012), KENYA’S CONSTITUTION: AN INSTRUMENT FOR CHANGE, Katiba Institute, Nairobi. Ginyera-Pinycwa, A.G.G. (1993), ‘Conflicting Fingers within the Iron Fist of National Unity: Uganda,’ in P. Anyang’ Nyong’o (ed.), ARMS AND DAGGERS IN THE HEART OF AFRICA: STUDIES ON INTERNAL CONFLICTS, Academy Science Publishers, Nairobi. Groes-Green, Christian (2011), ‘Intimate Ethnography: Trustbuilding, Transgression and Sexual Cultures Among Mozambican Youth,’ in Barbara Ann Barrett & Christian Groes-Green, STUDYING INTIMATE MATTERS: ENGAGING METHODOLOGICAL CHALLENGES IN STUDIES ON GENDER, SEXUALITY AND REPRODUCTIVE HEALTH IN SUB-SAHARAN AFRICA, Fountain, Kampala.

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07%252Fs10691-007-90786.pdf?auth66=1413579074_d956e43bf137b7dfc5873ba15dce09 a3&ext=.pdf. The Advocate, ‘Gays Not Part of Uganda’s HIV Treatment Plan,’ accessed at: http://www.advocate.com/article.aspx?id=42761 (on December 28, 2011). The International Planned Parenthood Federation (IPPF), Sexual Rights: An IPPF Declaration, 2008, accessed at: http://www.ippfwhr.org/sites/default/files/files/SexualRightsI PPFdeclaration.pdf. The Pink Elephant, ‘Lesbians and HIV/AIDS,’ available at: http://thepinkelephant.ca/archives/3862 UNAIDS, (2011), International Guidelines on HIV/AIDS, 2006, available at: http://data.unaids.org/Publications/IRCpub07/jc1252-internguidelines_en.pdf (accessed on December 28. UNDP, 2007/2008, accessed at: http://hdrstats.undp.org/countries/data_sheets/cty_ds_UGA. html _______, HUMAN DEVELOPMENT REPORT: GLOBALIZATION WITH A HUMAN FACE, (1999). World Health Organization (WHO) (2004), Progress in Reproductive Health Research, No. 67. Geneva; WHO. Available at http://www.who.int/reproductivehealth/hrp/progress/67.pdf (accessed on December 28, 2011). Yogyakarta Principles (YP) at: http://www.yogyakartaprinciples.org/.

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PROVIDING CRITICAL INSIGHTS INTO NUMEROUS CONTEMPORARY ISSUES THAT ARE OF MAJOR CONCERN IN

LAW, POLITICS AND GOVERNANCE. WHILE OFFERING BROAD NEW THEORETICAL INSIGHTS ON THE

PLACE OF HUMAN RIGHTS AT THE INTERNATIONAL AND REGIONAL LEVELS, ITS GREATEST STRENGTH IS TO DEMONSTRATE HOW THE ULTIMATE POINT AT WHICH SUCH RIGHTS SHOULD RESONATE IS THE LOCAL.”

DR. WILLY MUTUNGA, CHIEF JUSTICE AND PRESIDENT OF THE SUPREME COURT OF KENYA “MANY IN ACADEMICS EXCEL BECAUSE OF NARROWING DOWN THEIR AREAS OF SPECIALISATION. THIS IS NOT THE CASE WITH BATTLING OVER HUMAN RIGHTS. THE TWENTY ESSAYS IN THE BOOK MOVE FROM THE GENERAL TO THE PARTICULAR ADDRESSING A WIDE RANGE OF CURRENT HUMAN RIGHTS ISSUES AND STRUGGLES.

UNDERPINNED BY THOROUGH RESEARCH, OLOKA-ONYANGO HAS DONE AMPLE THIS BOOK IS ESSENTIAL READING FOR THE POLITICIAN, AS WELL AS FOR ACADEMICS AND STUDENTS OF LAW, POLITICAL SCIENCE, PUBLIC ADMINISTRATION AND DEVELOPMENT STUDIES. IT IS ALSO A MUST READ FOR THE COMMON MWANANCHI!” CHRIS MAINA PETER, PROFESSOR OF LAW UNIVERSITY OF DAR ES SALAAM AND MEMBER, UNITED NATIONS INTERNATIONAL LAW COMMISSION (ILC) JUSTICE TO THE ISSUES HE SET OUT TO WRITE ON OVER THE YEARS.

“IN THIS BOOK, OLOKA-ONYANGO DEALS WITH WHAT CAN MEANINGFULLY BE DEFINED AS THE POLITICIZATION OF HUMAN RIGHTS AT VARIOUS LEVELS, NAMELY, THE INTERNATIONAL, THE REGIONAL AND THE DOMESTIC.

WHO IS KEY IN FOSTERING HUMAN RIGHTS TRANSFORMATION, THE PEOPLES THE ESSAYS DEMONSTRATE THAT IT IS NOT ONLY INDIVIDUAL PERSONS WHO CAN BE OPPRESSED BUT ALSO NATION STATES AND EVEN REGIONAL BODIES, DEPENDING ON WHERE THEY ARE PLACED WITHIN THE INTERNATIONAL GEO-POLITICAL ORDER. ALTHOUGH THE ISSUES HANDLED IN EACH ESSAY ARE DIFFERENT, THEY ARE ALL BOUND BY THE SAME CRITICAL QUESTION: ARE HUMAN RIGHTS CONCEPTS UNIVERSALLY UNDERSTOOD AND APPLIED?” PROFESSOR LILLIAN TIBATEMWA-EKIRIKUBINZA, JUSTICE OF THE COURT OF APPEAL, UGANDA This book brings together twenty think-pieces on contemporary Human Rights issues at the international, regional and national level by one of Africa’s foremost scholars of International Human Rights and Constitutional Law, J. Oloka-Onyango. Ranging from the ‘Arab Spring’ to the Right to Education, the collection is both an in-depth analysis of discrete topics as well as a critical reflection on the state of human rights around the world today. Taking up issues such as the African reaction to the International Criminal Court (ICC), the question of truth and reconciliation before the outbreak of post-election violence in Kenya and the links between globalization and racism, the book is a tour de force of issues that are both unique as well as pertinent to human rights struggles around the world. J. OLOKA-ONYANGO is a Professor of International Human Rights and Constitutional Law based at the School of Law, Makerere University, Uganda. For several years he directed the Human Rights & Peace Centre (HURIPEC) and served as Dean of Law. Langaa Research & Publishing Common Initiative Group P.O. Box 902 Mankon Bamenda North West Region Cameroon

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J. Oloka-Onyango

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AFFECTED OR OUTSIDERS?

BATTLING OVER HUMAN RIGHTS Twenty Essays on Law, Politics and Governance

“BATTLING OVER HUMAN RIGHTS BY ONE OF AFRICA’S MOST DISTINGUISHED SCHOLARS IS AN

INTELLECTUAL MASTERWORK THAT TRAVERSES THE WHOLE ARENA OF RIGHTS DISCOURSE AND PRAXIS,

BATTLING OVER HUMAN RIGHTS Twenty Essays on Law, Politics and Governance J. Oloka-Onyango