The politics of human rights

Last week, in an opinion published in The New Vision of Thursday 26th October 2023, the chairperson of the Uganda Human Rights Commission (UHRC) Ms. Mariam Wangadya called for the ‘depoliticization’ of human rights.

In it, she variously referred to the ‘manipulation’, ‘exploitation’ and ‘misuse’ of human rights for ‘political advantage’ and ‘cheap popularity’. She also warned darkly of possible ‘severe consequences’ and a ‘heavy price’ that might arise from the ‘political misuse’ of human rights.

Reading the opinion, I could not help but notice that it looked very much like the kind of statement one would expect from a Minister of Internal Affairs or other such office. I was reminded of a powerful dissenting judgment by Lord Atkin in the famous case of Liversidge v Anderson and Another [1942] AC 207, in which he observed: ‘I view with apprehension the attitude of judges who … when face to face with claims involving the liberty of the subject, show themselves more executive-minded than the executive … It has always been one of the pillars of freedom, one of the principles of liberty for which, on recent authority, we are now fighting, that the judges are no respecters of persons, and stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law.’

The 1995 Constitution established the UHRC as an important mechanism for respecting and promoting human rights in Uganda. In terms of Article 51 (3), the Chairperson of the Commission is required to be a Judge of the High Court, or a person qualified to hold that office. In the same vein, under Article 51 (4) of the Constitution, the Chairperson and members of the Commission are required to be persons of high moral character and proven integrity.

It seems that the framers conceived of a Commission which would operate much a like a court – with all the power of such a body, but without the limitations thereof.

To this end, Article 52 of the Constitution empowers – and indeed requires – the Commission, among other things, to: investigate, at its own initiative or on a complaint made by any person or group of persons against the violation of any human right (Article 52 (1)(a)); establish a continuing programme of research, education and information to enhance respect of human rights (Article 52 (1) (c)); create and sustain within society the awareness of the provisions of the Constitution as the fundamental law of the people of Uganda (Article 52 (1) (e)) and to educate and encourage the public to defend the Constitution at all times against all forms of abuse and violation (Article 52 (1)(f )).

The UHRC is supposed to play both offence and defence where human rights are concerned – to receive complaints and determine them judiciously one the one hand, but to also proactively investigate alleged violations of human rights and spread the ‘gospel’ of human rights around the country.

Importantly, aside from a quasi-judicial role, clauses 52 (1)(e) and (f ) of the Constitution appear to give the Commission a quasi-political role insofar as they require the Commission to promote awareness of all provisions of the Constitution (not just the bill of rights) and encourage defence, by the public, of the entire Constitution ‘at all times’, against ‘all forms of abuse and violation’.

In light of these provisions, and given the difficult history of Uganda – and the tense socio-political environment in which we find ourselves today, one would expect the UHRC to be more sensitive in the exercise of its constitutional mandate – and actually more robust in asserting itself as an honest broker, standing between the State and the citizen to defend the latter from the former.

This is precisely because given the difference in power between the State and the citizen, it is the citizen who has much to fear from the State, not the other way round. Human rights in their conception are designed to safeguard the individual from the misuse of, especially State power.

Indeed, this is evident in the framing of the very first Article of the Bill of Rights (Chapter Four of our Constitution) – Article 20. After reminding us that the fundamental rights and freedoms of the individual are inherent and not granted by the State (Article 20 (1)), that provision goes on to assert that those rights must be ‘respected, upheld and promoted by all organs and agencies of Government and by all persons’ (Article 20 (2)).

This design reflects the historical and contemporary importance of the concept of human rights – as an important defence for the citizen against excesses of the State. It is the citizen who has much to fear from the abuse of State power, not the State which stands in peril from the citizen. In this way, human rights are very political – as important normative safeguards for shielding citizens from the tyranny of unchecked power.

However, they are also political because their very conception arose from histories of struggle by oppressed persons against autocracy. For instance, the famous Magna Carta of 1215 in which King John of England accepted limitations of his power emerged from a political struggle by the Barons against his excesses.

Similarly, the English Bill of Rights of 1688 was achieved by a struggle by Parliamentarians against the oppression of King James II, resulting is his overthrow and replacement by William III and Mary II, monarchs more willing to respect the rights and liberties spelt out in that charter.

The American Declaration of Independence of 1776 likewise was in effect the announcement of a political struggle which ended in victory for the rebel colonies, who thereafter adopted for themselves the United States Constitution of 1787. In the same vein, the French Declaration of the Rights of Man and of the Citizen of 1789 emerged in the ferment of the revolution against the despotism of King Louis XVI. The more recent human rights system similarly reflects the outcome of political contestation.

The Universal Declaration of Human Rights (UDHR) of 1948 was informed by the harrowing experiences of the Second World War, in which the forces of fascism almost won the day – as were the International Covenants on Civil and Political Rights (ICCPR) and Economic, Social and Cultural Rights (ICESCR), both of 1966.

At the same time, as products of political struggle, these instruments inevitably reflected the interests of those who had fought for them. For instance, the significant attention paid in the 1215 Magna Carta to economic concerns (taxation, payment of debt, forest resources and so on) was a direct result of the concerns of its main beneficiaries – the wealthy rebel Barons, just as the emphasis on protection of protestant rights in the 1688 Bill of Rights emerged from its history in part as a revolt against King James II’s Catholic leanings.

Similarly, the American Declaration of Independence and the Constitution were imperfect documents written by propertied white men for propertied white men – at once providing freedoms for themselves while in practice denying it to others (including native Americans, women and African Americans).

There is, similarly, no avoiding the reality that the 1995 Constitution reflects the political struggle of the National Resistance Movement/Army (NRM/A) – the culmination of the 1981-1986 bush war, and the various machinations of the 1986-1995 period. As several scholars have noted, the NRM ‘managed’ the entire process of constitution-making with the result that the final document inevitably reflected the main views and aspirations of that group.

Events since then, notably the 2005 and 2017 amendments, reflect the NRM’s continuing dominance over that Constitution and the institutions created thereunder (including the Uganda Human Rights Commission).

History teaches us that human rights emerge from, and are perfected by, continuous effort. Excluded, marginalized and oppressed communities have the right, and indeed the duty, to struggle to write themselves into the constitutional stories of their nations. This was the reality for colonized people, women, African Americans and many others.

In Uganda, it remains the reality for all Ugandans today who are excluded, marginalized and oppressed, whether these are women; persons with disabilities; religious, racial, ethnic and other minorities of all kinds; youth and older persons – and yes, even politically excluded persons or ‘opposition activists’. When these and other persons exercise their right of self-advocacy, of struggle as a means of achieving what are their inherent entitlements, the Uganda Human Rights Commission should be a partner in those struggles – and, at the very least, not an obstacle thereto.

As the late South African Professor of human rights law, Christof Heyns, noted in a 2001 book chapter entitled ‘A “struggle approach” to human rights’: ‘Whether one considers human rights “inalienable”, “fundamental” or “basic”, or refers to it as “trumps” or “natural entitlements”, the concept of human rights represents a countervailing force to the awesome power of the state and society at large.

If rights are “inalienable”, this implies that should they be alienated they may be “taken back”, either by those whose rights have been violated, or by others on their behalf. Human rights are not about asking favours and they are not merely moral or rhetorical concepts; they are guides to action and triggers of resistance against what is perceived as the illegitimate use of power, in particular state power.

As such, human rights is a potentially revolutionary concept, as is evidenced by the clampdown worldwide by authoritarian regimes on human rights organisations.’ All considered, to suggest that human rights can be depoliticized is to challenge the very essence, and potency – and history of – human rights. The UHRC, of all institutions, should not be seen to do this.

The writer is senior lecturer and acting director of the Human Rights and Peace Centre (HURIPEC) at the School of Law, Makerere University, where he teaches Constitutional Law and Legal Philosophy.