Shortly before I left Uganda, there was a protest organised in Kampala. Inspired by the events in neighbouring Kenya, Ugandans organised a “March to Parliament” to protest against corruption and the misuse of taxpayer money.
The government responded rapidly: they banned the protest, arrested opposition MPs and peaceful protestors, and increased the military presence in Kampala.Watching the news that day, one clip stood out to me. A police official was explaining the government’s position, He said something like while he “respects the right to peacefully protest, this was not the time for it.” He cited “security” as the reason the government had banned the protest and insisted that it could not be allowed to take place.
This clip exemplified an issue that I had been seeing repeatedly in my time at the Centre for Health, Human Rights and Development (CEHURD). Of course, everyone respects your human rights in principle, but there is always a reason why this particular case is an exception.
One of the most jarring memories I have of my time in Uganda was when I accompanied a CEHURD lawyer and one of CEHURD’s legal aid clients to a medical clinic. Our client’s infant had experienced a serious and traumatic health violation at the hands of the health care system and we had come to collect the medical records to use as evidence in mediation and potentially in court.
Much like the police official, the health administrator began by explaining how he believes in the right to information and understood everyone had a right to access their medical records. He then proceeded to argue why he could not release them at this time. Like a many-headed hydra, it seemed every time we countered one of his excuses, he came up with two more. Initially he argued that he could not provide the information if lawyers were present, then he suggested that the legal guardian did not have a right to the information. After this, it was suggested that a court order was required to access information. Finally, he informed us that in any case, he could not access the database and we would need to make an appointment with the Executive Director – who seemingly could not be reached. And so it went round and round in circles. In the end we did not get the information.
Problematic justifications for infringing rights are not just limited to police officers or bureaucratic administrators. They reach all the way into the courts themselves. Working on sexual and reproductive health and rights (SRHR), there is a worrying trend of courts appealing to “culture” to justify rights infringements. In its judgement on the constitutionality of criminalising same-sex sexual activity, Uganda’s Constitutional Court explicitly balanced individual autonomy against what it referred to as the “socio-cultural realities of the Ugandan society.” Drawing on the US case Dobbs v Jackson Women’s Health Organization, the Court noted that a nation’s history and traditions should be considered when interpreting rights.
One of the first things I did when I began my internship was read Uganda’s constitution. I was impressed. It is a progressive, aspirational document that, among other things, guarantees rights for women, people with disabilities, and minorities, and a right to a clean and healthy environment. As in Canada, Article 43(c) of Uganda’s constitution declares that any limitation must be “demonstrably justifiable in a free and democratic society.” It paints a picture of rights as the norm, and limitations as exceptions. In a country that ranks in the bottom twenty-five percent for corruption, I was not expecting Uganda to match perfectly the rosy image its constitution projects. But I was surprised at how often it felt that rights, rather than being the norm, were the exception.
