Most of the attention paid to the perverse politics of Ugandan lawmaking in recent years has, understandably, been focused on the notorious ‘Anti-Homosexuality Act’. It has aptly been observed that there can be no simple explanation for the tortuous journey this piece of legislation took in the five years between its first draft in 2009 and its eventual passage in early 2014. Among the many factors impacting on the bill’s fortunes over time, however, its use as a political instrument by various actors at specific moments has been widely acknowledged.
Less commented on has been the degree to which this fits in a broader pattern of behaviour in Uganda since the mid-2000s, and the implications of this trend for Uganda’s fragile democracy. These issues are explored in a new research article on the politics of lawmaking in Uganda, which examines how the government uses the legislature to make political gestures aimed at outmanoeuvring particular opponents, often stimulating violent urban protest and even more violent government crackdowns in the process.
Regarding the Anti-Homosexuality Act itself, it seems that any temporary utility that passing the bill might have had in relation to populist, nationalistic anti-western sentiment is wearing thin. Museveni has gone from defiantly celebrating his ‘collision course with the West’ to issuing a statement – which is clearly a thinly-veiled plea to western donors in the wake of recent aid cuts – claiming that the law had been ‘misinterpreted’ and ‘no activities of individuals, groups, or organisations will be affected by the Act’. The politics of this odious law is further laid bare the more that it is trumpeted as evidence of independence at home while being dismissed as meaningless abroad.
Symbolism of the law
All law-making is political, of course, and one need look no further than western democracies to see populist pieces of legislation that are intended to signal to particular constituencies that the government is on its side. Usually, though, the actual implementation of the law is central to the politics of the law: politicians want their constituencies to feel the direct effect of a law, whether that be more money in their pockets or tangible changes to healthcare, for example. In Uganda, more often than not the politics is bound up in the drafting, debating, postponing, opposing and (sometimes) eventual passing of the law; essentially, the symbolism of the law, after which implementation commonly recedes into the background.
The fact that Uganda’s law-making processes are frequently protracted, contested and highly visible clearly relates to the fact that the country has undergone substantial democratization since Museveni took power in 1986. Often, if not always, parliament really does fight back and the media really does expose the details of political debate. The government cannot avoid new laws being scrutinised, and in this respect it is unsurprising that law-making processes should become difficult and politically charged.
Yet the relationship between democratization and law-making is not as straightforward as this might suggest. The lengthy legal debates of recent years cannot all be explained in terms of pushback from the legislature; the fact that a bill as controversial as 2012’s Petroleum Bill could be forced through parliament relatively quickly suggests that when the government means business, it deals with parliamentary opposition swiftly and ruthlessly.
Not really meaning business
Sometimes, however, the government doesn’t really mean business when it comes to legislation. Drafting and debating a law can serve purposes that are more politically important than actually implementing it, to the extent that some bills (including the Anti-Homosexuality law) are by turns discussed, shelved and reintroduced for debate repeatedly over many years. This is partly because as well as fostering a vigorous legislature and media – which are surely good things – there is another other side to the democratization coin: it has spurred the executive to develop a toolkit of strategy and tactics to manipulate these democratic institutions and exploit them for political gain.
Particularly since 2006, when a multiparty system was introduced in Uganda, laws have been drafted whose primary purpose seems to be to stimulate controversies that isolate or stigmatize particular opposition groups. Whether and how the laws might be implemented is given relatively short shrift, and such laws sometimes fade into irrelevance once passed. The tussle between the government and the Buganda Kingdom has been especially notable in this regard, with a series of bills limiting the power of cultural leaders and restructuring government widely considered to have been ‘cynical’ and ‘not serious’, more notable for their symbolism than any effective change.
It is perhaps a measure of the government’s tendency to view the legislature as a place for forging symbolic political gestures, rather than generating laws to bring about concrete changes to the country, that one of the bills being currently drawn up is a ‘Patriotism Bill’ which aims to legally obligate people to ‘love their country’.
Even the Public Order Management Act of 2013, which did usher in worrying new legal provisions, languished in and out of parliament for four years before passing, periodically surfacing in government discourses to threaten the opposition and primarily serving to stigmatize opposition leader Kizza Besigye. Alarming though this law has been to observers, the government didn’t really need it to arrest opposition leaders and journalists on a regular basis; it had been doing this for years anyway. Significantly, however, the controversy around the law – as with the homosexuality and anti-pornography or ‘miniskirt’ law – was useful in itself as a ‘distraction from more important issues of governance and democracy’.
To say this is not to trivialise what has been happening: some of these laws are certainly serious in the sense that they have very real actual and potential consequences. The discretion they allow ‘street level’ authorities such as policemen to selectively implement can result in shocking human rights abuses – not to mention members of the public taking the law into their own hands. Women, homosexuals and anyone wishing to take a political stand in public are now even more vulnerable than previously. Although the government may be more concerned with the political manoeuvring a bill facilitates than the effect of the law-as-implemented, the letter of the law is often taken very seriously by others, both internally and abroad.
Herein lies the recklessness of such legal manoeuvring. New laws, whether passed or merely proposed, are meaningful to those they are seen to ‘target’, and as the journal article argues, can be linked to many of the violent protests in Uganda in recent years. New laws are also something taken especially seriously by foreign donors; unlike many of the other shortcomings or crimes of the Ugandan government, when something egregious is codified into law it invites aid cuts that can make life even harder for many Ugandans.
Donor relations and legal gymnastics
It is precisely the attentiveness of international observers to the law that makes it an especially useful instrument for Museveni’s government when trying to manage the politics of its donor relations. Having soured many alliances through the Anti-Homosexuality Act, it would not be surprising if Museveni now used a new piece of draft legislation, which is essentially an ‘anti-NGO’ bill, to try and gain traction with donors again, agreeing to pull back on the new law if aid keeps flowing. In other words, now that the ‘Anti-Homosexuality’ legislation has passed, it cannot be used for political bargaining, so the government has drawn up a new bill with the potential to fulfil that role.
Ugandans today, in Professor Joe Oloka-Onyango’s apposite phrase, ‘live in a time of legal gymnastics’. This is not only a story of laws themselves ‘being openly used as a mechanism to consolidate and perpetuate dictatorship and autocracy’, but of legal manoeuvring to gain political traction even where the prospects of proper implementation are remote.
While many of the laws in question do pose substantial threats to civil liberties, I would differ from Oloka-Onyango on his point that the recent spate of legislative action ‘simply represents the final stage of total dictatorship’. Uganda has provided quite fertile ground for democratic inclinations and practices to flourish over the past few decades, particularly under the vigorous sixth and seventh parliaments from 1996-2006, and has a relatively open media. Although much of this is under threat, those democratic shoots are not easily squashed and complicate the exercise of total authority. Consequently the ‘legal gymnastics’ we see are a feature of entrenched semi-authoritarianism rather than full dictatorship.
In more ‘total’ dictatorships, oppressive laws can be passed quietly and swiftly, with no such ‘gymnastics’ necessary: Uganda only has to look over its southern border to Rwanda, or back to its own history, to see that. Moreover, in a more purely autocratic regime, many of these laws may not even be needed at all; it is doubtful, sadly, whether the whole ‘Anti-Homosexuality’ debate and bill would have come into being at all if not for the democratic elements in Uganda’s fractious institutional mix.
Unlike in situations of ‘total dictatorship’, Uganda’s democratic institutions are active enough to cause the government serious headaches. The country thus finds itself stuck in a cycle of semi-authoritarian democratic manipulation. Museveni finds ways to stoke political debates that drive his opponents to tie themselves in knots, and to prod and coax the legislature until the time seems ripe to steamroll through laws whose use as a bargaining chip has expired. In the process, other issues become inflamed and other actors influence the trajectory of bills, with the consequence that all this legal ‘gaming’ can spiral out of the control of any one individual – Museveni included. The effects on human life and freedom can be unforeseen and devastating.
These tactics of legislative manipulation, one might argue, are the stuff of politics in any parliamentary democracy. Yet when the desire to toy with law-making is coupled with the progressive removal of checks and balances, low levels of education among the public, pervasive impunity and the ultimate recourse to removing democratically-elected leaders by force, the combination is toxic.
There can be little room for optimism about the prospects for real democracy in Uganda when the development of democratic institutions has generated such troubling, violent and authoritarian counter-moves by the government.