If the quality of a country’s laws could be judged by the size of its legislature then Uganda’s obese parliament, with close to 400 members, would probably snag a Guinness world record. The colorful House even boasts of the youngest lawmaker in the world. At the ripe old age of 19 years Usuk county MP Proscovia Oromait Alengot now shares the privilege of lawmaking, as if for contrast, with some of the greyest frontbenchers. She was born in 1993 a month after the visit of Pope John Paul II. That year Uganda issued new coinage and also passed the Petroleum (Exploration and Production) (Conduct of Exploration Operations) Regulations to allow for oil drilling in the west of the country. To wit Uganda may have 99 problems but good laws are certainly not one of them. At least this is the majority opinion of Uganda’s political and intellectual classes. It’s partly true.
Uganda does have one of the most progressive constitutions on the continent, a trendsetter at its promulgation in 1995 when Alengot was two years old. Its chapter on freedoms, for example, besides being the longest in print was the boldest in its provisions for rights of citizens. The constitution, which was co-written amongst others by Kigulu South Mp and Vice President of Uganda from 1994-2003, Specioza Kazibwe, set a new historical standard in legislating the equality between men and women. There is a rich legislative harvest in laws on freedom of information and statutes addressing every thing from technology to human rights. However the Uganda in the law books and statutes would probably accuse the “real” Uganda of identity theft.
One diplomat summed up the problem as being the difference between the “rule of law” and “rule by law”. The instinct of the government is very selective on which laws to give effect. Despite legal freedoms for example, political activists often find themselves in jail, victims of torture even when compensated remain unpaid for decades and within the criminal justice system over 60% of people imprisoned for breaking one law or another suffer extra-judicial punishment in the form of “detention without trial” or rather lengthy waits due to the country’s case back log. The performance of Uganda’s public institutions has been extremely underwhelming despite its record breaking legal sphere.
Corruption, which has disfigured public institutions like a bad case of scabies, is not for lack of good law. Besides providing for an ombudsman and an independent Auditor General in the constitution, Uganda has an Anti-Corruption Act, and a Leadership Code Act. The latter requires all public officials to declare their wealth. This would be the envy of Switzerland no doubt. But Uganda is not Switzerland.
Recent Ombudsmen have said the law on wealth declarations offends privacy (even if “public” servants should know better) and have relied on the opinion of the Ugandan Attorney General (and not the law) to prevent access to these declarations that would in theory discourage graft.
When most members of the coliseum on Parliament Avenue are challenged at the near schizophrenia of law as passed and the law in practice they often adlib this banal phrase “ our laws are good, but the implementation is the problem”. Ugandan optimists during this year’s Independence Jubilee celebrations will likely look to the expanse of good law as a down payment for the day the country’s institutions catch up.
A good theoretical problematizing of the issue of World Class laws versus actual legal rights is in the upcoming book by Ugandan Professor Mahmood Mamdani (Define and Rule. Native as Political Identity. Harvard University Press). He traces these contradictions to British policy of providing two legal regimes as part of their “technology” of governance. After rebellions in India he notes British rulers abandoned direct rule where all her subjects were treated equally. Instead they adopted indirect rule that created a two-tier legal system over time; one for natives upholding custom and another for settlers that prided in civilized norms. Respect for local customs was really a euphemism for the argument that modern laws should apply to the civilized and native customary laws to the less civilized. In fact a principle of British common law was that its more civilized version would take precedence where custom was offensive or repugnant.
Most lawmakers still look outside for more civilized versions of laws as with everything else. This can be the real reason for the pervasive influence of so-called “international best practice”; a colonial hangover perhaps where “Made in England” was always the better quality. In making a nation that has modern ambitions most Ugandan laws are copy editions of international standards and rules starting with the constitution itself. This is not helped in Uganda’s case that its period of reform in the 90’s was heavily dependant on foreign aid and aid institutions that sought to remake the country in their image. A majority of bills in the House are sponsored by civil society coalitions or championed by them and by extension the global coalitions to which they belong.
In reality however Ugandan institutions have not kept up with the “think global, act local” philosophy. Reality bleeds a lot in translation. As seen from the corruption story global quality statutes are only the beginning of weaving an effective technology for governance. Unless a law can learn from its environment and adapt the “best practice” paradigm is as unpredictable as an organ transplant that may be rejected by the body of the recipient its intended to save.
Lawmakers in the country’s 9th Parliament appear to have fallen into this trap. Rather than look to legislating for the behavior of institutions they are familiar with they have sought to court nearly wholesale international best practices into Uganda’s new laws for the oil and gas sector. To deal with the well known danger of avoiding the so-called “oil curse” they have instinctively turned to international best practice but a full reading of their proposals show that they have learned little from the track record of Ugandan institutions which aught to be the basis upon which expectations can be drawn on whether the country can avoid the so-called “resource curse”.
One aspect of the proposed law for managing revenues from oil, the “Public Finance Bill 2012”, gives controlling authority to a government Minister. A cursory glance at the management of cabinet, which orbits around a powerful executive, can attest to what this means in practice. The bill also makes Uganda’s Central Bank the principal manager of future oil revenues. Recent history has shown that despite its constitutionally mandated independence the Bank of Uganda is not independent at all from political interference. In 2011 its head, the governor Emmanuel Mutebile told the UK’s Financial Times he had accepted a massive withdrawal of funds from the Consolidated Fund, without parliamentary approval, for the purchase of military hardware. He never lost his job and was instead given political cover by the Executive that appointed him. There is no reason to expect that without reforming the Central Bank itself that the functions of the institutions envisioned in the new bill will improve. So far there is no indication either that members of parliament are looking to impose improvisations drawn from Ugandan experience. This blame however extends to Ugandan civil society groups who provide Mps with their “best practice” fixes and who seek standard editions on the current global experience of the negative impact of natural resources without injecting sufficient analysis of local conditions for reference. As Uganda turns a corner at 50 it should mature in self -knowledge as much as ambition. That is what independence really means. One wonders what a 19 -year old Mp has to say about all this coming of age.
Published in the East African October 7