The right to bad governance: Part II 

Last week’s column articulated the ‘right to bad governance’ as an important right – an aspect of independence, sovereignty and self-determination.

It was then intended, in the present column, to identify the implications, particularly for international lenders, of indefensible loans advanced to certain governments under certain conditions. However, it occurred to me, that some additional context to, and elaboration of, this right would be important, prior to a consideration of the issue of unconscionable sovereign debt.

As such, in this column, we shall: i) provide more historical background to the importance of this right, which admittedly appears counter-intuitive; and ii) identify a third caveat to the right (in addition to the two pointed out in the column last week).

In terms of historical context, it is critical that the right to bad governance be framed as such precisely because in the past colonial domination was in part justified by the claim that control by one people over others was necessitated by the welfare of the latter. Colonialism was founded upon the idea that it was necessary for the ‘good governance’ of the colonized.

This was the experience, in various iterations, throughout the colonial world – and the British domination of Uganda was no exception. The 1902 Order-in-Council, the major instrument for the exercise of British colonial rule following the declaration of the Protectorate in 1894, interestingly referred to ‘good government’.

Under Article 12 (1), the Commissioner of Uganda was empowered to make Ordinances ‘for the administration of justice, the raising of revenue, and generally for the peace, order and good government of all persons in Uganda’. Essentially, one man was being vested with the authority to make law which would bind all authorities and persons in Uganda.

A dictator had been created, ostensibly to achieve ‘peace, order and good government’. In addition, under Article 25 (1) of the same Order-in-Council, where it was shown, to the satisfaction of the Commissioner that any person was conducting themselves ‘so as to be dangerous to peace and good order in Uganda’ the Commissioner could order the deportation of that person from Uganda to any place of that official’s choosing.

Again, for the apparent objective of ‘good order’ a foreign dictator was granted the power to expel a person from the only home they had known, from relatives and friends, to an alien land and for an unascertained period. The same phrasing would be used in the 1920 Order-in-Council, in which Legislative Council (forerunner to the current Parliament) was established for the first time in the Protectorate.

In terms of Article 8 of the Order- in-Council, this body, which at its foundation was all-British (with the first Africans being ‘permitted’ to sit in it in 1945) was empowered ‘to establish such Ordinances, and to constitute such Courts and Officers, and to make such provisions and regulations for proceedings in such Courts, and for the administration of justice, as may be necessary for the peace, order and good government of the Protectorate’.

It would also appear in the 1955 Buganda Agreement – under which Kabaka Muteesa II was forced by Governor Andrew Cohen to be a constitutional monarch as one of the conditions for his return from exile in the United Kingdom. In terms of the ‘The Constitution of Buganda’, attached as First Schedule to that Agreement, the Kabaka would henceforth be required to swear an oath under which he pledged, among other things, to ‘uphold the peace, order and good government of the Uganda Protectorate’.

Evidently, under British colonial rule in Uganda, the term ‘good government’ was a euphemism for a system in which African freedoms, rights, welfare, interests, well-being and even life were quite dispensable. The true scale and cost – even in terms of human life – of that period of our history is yet to be adequately measured.

However, a few figures can suffice as a starting point. According to Jan Jelmert Jørgensen’s 1981 book Uganda: A modern History, Buganda’s population reduced from an excess of one million in 1888 to 650,000 in 1920; while Busoga’s reduced from around one million in 1890 to 220,000 in 1923.

This was in no small part to the British focus on resource extraction, through ‘cash crops’ like cotton and coffee, which forced Africans to prioritize the search for rupees (‘lupiya’) to pay tax, over their own food and livelihood. As Jørgensen noted at p.60 of his book: ‘although peasants could not eat cotton … cotton could devour peasants’.

This direct link – between death and domination – would be affirmed by Nobel prize-winning economist Amartya Sen in his 1999 book Development as Freedom – published in 1999 – in which he noted that ‘[n]o famine has ever taken place in the history of the world in a functioning democracy’.

If one takes into account the large numbers of persons killed in the ‘pacification’ of Bunyoro, Kigezi and other parts of Western, Northern and Eastern Uganda, the true scale of the cost, in terms of human life, of British ‘good governance’ in the Uganda Protectorate becomes clear.

As a student of legal history, therefore, there are several good reasons to be extremely suspicious about – and even a bit traumatized by – assertions of ‘good governance’ and its modern restatements such as ‘development’. I am glad, in this regard, that attention is being paid to the problematic history, and aspects, of these notions, especially in terms of their colonial foundations as represented by such work as Hakeem Yusuf’s 2013 book: Colonial and Post-Colonial Constitutionalism in the Commonwealth: Peace, Order and Good Government.

A lot more work needs to be done in this respect, if the continuities between the past and the present are to be properly identified, and the future better prepared for. It is for the above reasons that the ‘right to bad governance’ is, in fact, an extremely serious proposition.

It is firmly rooted in, and informed by, a real history of the denial of the dignity, sovereignty and autonomy of entire peoples – with disastrous consequences – under the rubric of, among other things, the notion of ‘good government’.

That said, we now turn to the suggestion of a third caveat to the ‘right to bad governance’. Last week, we identified the first two exceptions to this right as being: i) respect for fundamental and core human rights of all persons within the State; ii) that the governance in question be, in fact, self-government.

To these, we add the proposition that any such national level bad governance should not have consequences for a country’s neighbours or humanity at large. In the law of tort (that branch of the law which stands somewhere between criminal law and civil law) there is a doctrine derived from an old (1868) English case – Rylands v Fletcher – the effect of which is that a person who brings a dangerous thing onto their land, assumes special responsibility for harm which might result to their neighbours if that thing escapes and injures them.

Similarly, it seems to be the case that while States have the right to thoroughly mismanage themselves, this bad self-governance is necessarily limited by the interests and welfare of other countries especially their neighbours but, in some cases, also humanity as a whole.

A good example in this case relates to pollution. The results of national-level bad choices might have immediate harm to neighbouring countries, as in the case of a transboundary oil spill. However, especially in the long term and depending on the size of the country and the nature and scale of activities being undertaken, the harm may also be occasioned to humanity in general – as in the case of climate change induced by large scale industrial pollution.

Another example relates to war in a country which results in mass movement of refugees to neighbouring countries – placing a burden on those third countries’ own welfare systems In all these instances, the source of these troubles – pollution or forced migration – might invite legitimate external scrutiny, and perhaps even intervention, founded upon the consequences for third States of internal deficiencies and bad choices.

One of the most famous instances in this regard is the 1976 Entebbe incident. Uganda had its Idi Amin Dada, and had suffered him and his thugs since 25th January 1971. Amin then took the decidedly unwise decision of inviting the hijackers of a civilian passenger plane – Air France Flight 139 – to land at Entebbe airport, and further adopted the strange posture of becoming their de facto spokesperson.

In a raid on Entebbe airport conducted on the night of 3rd July 1976, Israeli special forces managed to rescue most of the hostages, who by that time were mainly Israelis (most hostages of other nationalities having been previously released). An embarrassed Amin would take out his shame on a 74-year-old Israeli woman – Dora Bloch – who was receiving medical treatment at Mulago hospital: an ignominious end to an altogether disreputable affair in the history of Uganda’s membership of the international community.

There are, evidently, clear and critical limits to the right to bad governance. In fact, the Idi Amin example demonstrates all three of the limits we have thus far identified. In the first place, having assumed power through military means, his government was not in fact an exercise of self-governance on the part of Ugandans.

Secondly, the gross human rights violations Ugandans suffered during his regime took his government outside the scope of permissible bad governance. Third, this bad governance had significant effects upon third states, as the Entebbe incident demonstrates. Indeed, it was this third point that eventually led to the fall of his government – his attack on Tanzania, in October 1978, gave Nyerere the justification he required (that ancient right of self-defence reflected under Article 51 of the UN Charter) to finally get rid of him.

So, yes – we as Ugandans have the strong right to mismanage our affairs. It is a right we always had, albeit one finally legally recognized and effected by the British on 9th October 1962. At the moment, this right to bad governance – including the right to make and implement very bad national policies (such as introducing an unfunded UGX 3.5 trillion supplementary budget) – is being realized and enjoyed under the NRM government.

The question is: is the current bad governance under President Yoweri Kaguta Museveni’s NRM caught by any one (or more) of the three exceptions identified above?

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.