UGANDA’S JUDICIARY SPOTLIGHT (5.31.2016)

Judicial branches are crucial supports to well-functioning democracies. Courts reign in the power of the legislative branch by holding it accountable to the constitution, and they act as watchdogs to elected members of the executive branch (presidents, governors, etc. ) whose actions exceed their constitutional authority. An equally important role for judiciaries is that they raise the cost of action by other political actors who act imprudently: deciding to act against the recommendations and decisions by judges ‘outs’ political actors as authoritarians or it contributes to illigitimacy of the political system in which both belong. Attenuating the judicial system in any democracy reduces the checks against the legislature and the executive, but it does so at the expense not only of the judicial branch but of the system as a whole. While judges come from elite groups - graduating as an attorney and then succeeding as an attorney within this subset of college-educated peers - they have also played important roles as bulwarks against authoritarian rule and expansionary executives.

Judicial Caseload

While attacks against judges directly are rare, emaciating a judicial branch of government comes amid ‘austerity’ measures as much as it occurs as a result of culling political opponents. Among the courts struggling to manage their caseload are the Courts of Appeals, which have lost ground year after year in terms of hearing cases. Since 2010, the number of Appeals Justices has increased from 7 to 12 and they have tried more cases, from 386 to 972 respectively (Kavuma 2015: 12). Not only are there more justices, but the justices are becoming more efficient with the cases per justice increasing from ~55 to 81 per year. However, while there are more justices who are hearing more cases per justice, the number of pending cases has effectively doubled since 2010. In 2010, 2634 cases were brought before the Court of Appeal, 846 were filed and 2634 were left pending. In 2015, 4400 were brought before the Court of Appeal, 1706 were filed and 5844 were left pending (Kavuma 2015: 12).    

Works Cited

Kavuma, Steven. Judicial Uganda. 2015. Court of Appeal, Constitutional Court Report. 18th Judges Annual Conference. Kampala, Uganda.

UGANDA’S ELECTIONS (4.3.2016)

      President Museveni will continue his tenure as President of Uganda. His recent electoral success continues a trend of success in a government whose constitution has experienced no other president. While the international community is rightly concerned with this trend, Ugandans themselves hold the president in moderately positive esteem. Research World International conducted a poll between December 10, 2015 and Janurary 17, 2016, surveying over 2,600 registered voters from 89 of Uganda’s 112 districts (http://researchworldint.net/images/downloads/Opinion-Poll-Report-Dec-2015-Jan-2016.pdf). In Research World’s poll, Museveni accrued 51% of the popular vote while FDC candidate Kizza Besigye won 32% and independent candidate Patrick Amama Mbabazi won 12% (http://researchworldint.net/images/downloads/Opinion-Poll-Report-Dec-2015-Jan-2016.pdf).

       In the election itself, Uganda’s Electoral Commission awarded President Museveni the electoral victory with 60.6% of the vote, which is 5,971,872 of the 9,851,812 valid votes cast (http://www.ec.or.ug/?q=2016-general-elections-summary). In total 10,329,131 people cast votes or approximately 67% of registered voters. Museveni’s ~60% vote is an improvement over his 2006 victory but less than his victory in 2011 (59.26% and 68,38% respectively).

      The 2016 election was pocked with systemic electoral failures. Demonstrators took to the streets throughout Kampala in response to polling stations that lacked presidential ballots and in response to the arrest of the Forum for Democratic Change’s presidential candidate Kizza Besigye’s house arrest. One district in Kibuli, an opposition stronghold, did not receive Presidential aspirant Kizza Besigye was placed under house arrest since February 17th (http://www.monitor.co.ug/News/National/Besigye-house-arrest-case-resumes-today/-/688334/3121742/-/hqvuui/-/index.html), and has since released a video describing his detainment. The NRM also hired approximately 100,000 ‘Crime Preventers’ prior to the elections (http://www.nytimes.com/2016/02/19/world/africa/top-opposition-candidate-in-uganda-is-arrested-on-election-day.html ), causing observers to worry that the NRM enlisted teams of vigilantees to intimidate and subvert the opposition. US Secretary of State John Kerry responded begrudgingly to the elections in his telephone call to President Museveni. Kerry noted problems at the voting locations, arrest of candidates, and the Uganda government’s move to block social media (http://www.state.gov/r/pa/prs/ps/2016/02/253069.htm) .

      The Supreme Court continues to hear appeals from political opponents challenging the outcome of the election, but it is unlikely that they will overturn February’s results. Instead, if the Supreme Court decides to acknowledge the election irregularities, it will likely report a similar outcome as it reported in 2012. In the previous presidential election, Uganda’s Supreme Court found that though there were sporadic irregularities the results adequately reflected the will of the people and would stand.

UGANDA LAND POLICY (3.22.2016)

Land policy reform remains fundamental to rural economic development. Getting policies ‘right’ to encourage development and investment remains one of the cornerstones of economic development in sub-saharan africa (Deininger and Binswager 1999, Onoma 2010). Where formal land rights provide a protocol for transparency and economic stability, laws do not execute themselves. Indeed, land rights scholars rightly aver that ‘rules are not enough: execution matters’ (Ostrom and Nagenda 2007, Gibb 2013). Inasmuch as legislation and land policy in Uganda is becoming more sophisticated, inclusive, and accessible, the recent presidential elections have shown that there remains strong public outcry against Uganda’s land failures.

2016 Elections Pledges

In the recent presidential elections, each candidate acknowledged the popular demand for land reform. Incumbent President and NRM chairman Yoweri Museveni promised institutional reform and strengthening local-level adjudication mechanisms (http://www.reuters.com/article/uganda-politics-landrights-idUSL8N15E03O).  FDC challenger Kizza Besigye understood Uganda’s land conflict as a struggle for peasant farmers against titled owners and ‘land-grabbers’, at once appealing to landless farmers and rural populists concerned about the status of their tenure (http://www.elections.co.ug/new-vision/election/1415187/besigye-heads-wakiso).  A third presidential contender, independent presidential candidate Joseph Elton Mabirizi, contended that his administration would guarantee land rights and defeat the current elite coalitions which fuel contemporary reforms (http://www.monitor.co.ug/SpecialReports/Elections/Mabirizi-to-promote-talents--promises-land-reforms/-/859108/3000426/-/p489q1z/-/index.html). Both Besigye and Mabirizi seek greater clarity to the titling process, advocating independent councils and audits http://www.reuters.com/article/uganda-politics-landrights-idUSL8N15E03O) .

Budgeting

Recent national budgets allocate new money to land projects, including funds to digitize land titles. The National Land Registration System, launched in 2014, continues to define Uganda’s titling program via the Ministry of Land, Housing and Urban Development. The program registered over 5,000 mailo claims and over 1,000 freehold claims, and it also surveyed over 4,600 properties (BTTB 2016: 77). Uganda’s 2015/16 allocates nearly 26 billion (UGX) for the Land and Urban Housing sector in accordance with Uganda’s new National Land Policy (2013), down from the 29 billion UGX approved in the 2013/14 budget (BTTB 2014/15: 121). Uganda’s recent investment in land tenure security signals modest amounts of national political priority as well as a significant uptick in bureaucratic competency and organization.

Works Cited

Deiniger, Klaus, and Binswanger Hans. “The Evolution of the World Bank’s Land Policy:

Principles, Experience, and Future Challenges.” The World Bank Research Observer 14, no. 2 (1999): 247–276.

Background to the Budget. 2016. Government of Uganda.

Background to the Budget. 2014. Government of Uganda.

Gibb, Ryan. 2013. “The Politics of Land Reform in Uganda”. Lawrence, USA: University of

Kansas.

National Land Policy. 2013. Government of Uganda.

Onoma, Ato Kwamena. The Politics of Property Rights Institutions in Africa. New York:

Cambridge University Press, 2010.

Ostrom, Elinor, and Harini Nagenda. “Tenure Alone Is Not Sufficient: Monitoring Is 
Essential.”  Environmental Economics and Policy Studies 8 (2007): 175–199.

State-church cleavages and morality: teaching sexual diversity in Brazilian public schools.

In the now-classic piece, Party Systems & Voter Alignment, Lipset and Rokkan (1967) contend modern party systems emerged from four types of cleavages that have historically structured society: center-periphery, state-church, land-industry, and owner-worker. While the state-church conflict may no longer be as immediately apparent – and indeed, scholars (Jakobsen and Pellegrini 1999) suggest that state-church may often be more in cooperation than conflict - the cleavage continues to surface in democratic societies. What is perhaps most surprising is that, just as Lipset and Rokkan theorized some four decades ago, the control of education remains a principle point of social contention.

The salience of this divide is evident when we consider the issues of sexuality and education policy. We first consider the question of sexuality and the expressive function of public policy. Since sexuality draws heavily from religious didacticism, education policy in regards to LGBTs decenters this relationship by publicly endorsing sexuality alternative to the traditional model. Thus, the state-church cleavage originally identified by Lipset and Rokkan (1967) returns to the forefront of political conflict for many of the same reasons.

Sexuality, and childhood sexuality in particular, is the source of considerable anxiety in the Western world (Butler 2001; Rubin 1984; Weeks 1985). It therefore becomes the object of regulation and control which delineate the parameters of acceptable sexual behavior. To fall within these parameters is to be part of the charmed circle, which reflects a specific conception of sexuality that is “‘good, normal’, and ‘natural’ [and] should ideally be heterosexual, marital monogamous, reproductive, and non-commercial” among other standards (Rubin 1984, 153). These definitions often find basis in moral and religious doctrine. Following this logic, non-normative sexualities (among them, LGBT sexualities) fall outside of the bounds of the charmed circle and raise the specter of sexual peril, moral panic, anxiety, and judgment. One way to avoid these threats to sexuality is by institutionalizing the values espoused by the charmed circle into public policy.

Public policy serves an expressive function, by which society codifies dominant values into a legal framework (Gusfield 1963; Vergari 2001). Specifically, education policy indoctrinates children and adolescents with culturally specific norms, beliefs, and values through explicitly and implicitly morally didactic material. Thus, these policies must take particularly firm stances in regards to issuing prescriptive dictates that will form the next generation of society. In Western democracies, struggle for control over expressive values regresses into what scholars of public policy term morality politics (Haider-Markel 1999; Mooney 2000; Mooney and Schuldt 2008; Vergari 2001). Morality politics entails conflict over first principles whereby issues of moral quality and technical simplicity are prone to high levels of conflict, low information costs, issue salience and, consequently, higher levels of citizen participation. Debates feature the presence of religious fundamentalists and cultural conservatives who claim to protect traditional values from outside threats (Doan and Wiliams 2008; Egan and Hawkes 2008; Gibson 2004; Moran 2001; Patton 2007; Robinson 2012).

The inclusion of sexual diversity in education policy problematizes this relationship, principally through the intersection of (non-normative) sexuality and children. As a recent example of this conflict, we take the case of the so called “kit gay” introduced in 2011 by the Brazilian Ministry of Education, with financial support from the National Foundation for Educational Development and the NGO Communication and Sexuality. The “kit gay” refers to a policy proposal intended to combat the prevalence of homophobia in public schools. The kit included a series of pamphlets, handouts, and videos designed to sensitize students to questions of sexual diversity, dealing with the themes of coming out, same-sex attraction, gender-identity, prejudice, and peer pressure.

The project was cancelled by then recently elected President Rousseff before implementation, with the Secretary General of Republic reporting that Rousseff found the project to be “inadequate” and “improper for its objective” (Flor 2011). Media sources linked the abrupt cancellation to pressure from the Evangelical Bloc in the Congressional House of Deputies, and a concomitant scandal involving Rousseff’s then Chief of Staff, Antonio Palocci. The government publicly denied that pressure from the evangelical bloc influenced the decision. Instead, the official proclamation claimed that future projects dealing directly with customs and mores would include more scrutiny from the executive cabinet as well as input from civil society (Passarinho 2011). Even so, a cursory look at the rhetoric vis à vis the project confirms the media interpretation of events.

Leading evangelical representative Anthony Garotinho (PR-RJ) demanded that the Minister of Education resign and claimed that the 74 member strong bloc would oppose any project introduced until the government removed the videos. Threats were also made to open an investigation regarding the terms of the contract between the Ministry of Education and the NGO Communication and Sexuality, which was responsible for the production of at least one of the videos (Passarinho 2011). Finally, Garotinho’s claim that the videos function as “a stimulus to homosexualism” illustrate three points: first, the suggestion that exposure to material on sexual diversity will directly affect one’s gender or sexual orientation is patently false; second, and closely linked, public discussions of marginalized sexualities continue to induce moral panic as described by Gayle Rubin; and third, the deliberative use of the term homosexualism, rather than homosexuality, retrogresses to the medical era prior to 1985, when homosexuality was still defined as a mental illness in Brazil.

Following the earlier discussion, the “Kit gay” exemplifies the difficulty of incorporating sexuality into education policy. The inclusion of content on sexual diversity in public schools threatens to decenter the dominant conception of sexuality. Public policy would confer expressive legitimacy to LGBT sexualities, directly challenging the hegemony of the charmed circle that encompasses so called sexually acceptable behavior. This debate degenerated into morality politics, meeting with predictable defiance by religious interests and ultimately exposing the durability of the state-church cleavage predicated upon the control of education.

References

Butler, Judith. 2001. Doing Justice to Someone: Sex Reassignment and Allegories of Transsexuality. GLQ: A Journal of Lesbian and Gay Studies 7(4):621-636.

Doan, Alesha E., and Jean C. Williams. 2008. The Politics of Virginity: Abstinence in Sex Education. Santa Barbara, CA: Praeger Press.

Egan, Danielle R., and Gail L. Hawkes. 2008. “Imperiled and Perilous: Exploring the History of Childhood Sexuality.” Journal of Historical Sociology 21(4):355-367.

Flor, Ana. 2011. “Dilma suspende ‘kit gay’ após protesto da bancada evangélica.” May 25. http://www1.folha.uol.com.br/poder/920652-dilma-suspende-kit-gay-apos-protesto-da-bancada-evangelica.shtml

Gibson, M. Troy. 2004. “Culture Wars in State Education Policy: A Look at the Relative Treatment of Evolutionary Theory in State Science Standards.” Social Science Quarterly 85: 1129–49.

Gusfeld, Joseph R. 1963. Symbolic Crusade: Status Politics and the American Temperance Movement. Urbana: University of Illinois Press.

Haider-Markel, Donald P. 1999. “Morality Policy and Individual-Level Political Behavior: The Case of Legislative Voting on Gay and Lesbian Issues. Policy Studies Journal 27: 735–49.

Lipset, Seymour M., and Stein Rokkan. 1967. Party Systems and Voter Alignments: Cross-National Perspectives. New York: Free Press.

Jakobsen, Janet R., and Ann Pellegrini. 2003. Love the Sin: Sexual Regulation and the Limits of Religious Tolerance. New York, NY: New York University Press.

Mooney, C. Z. and Schuldt, R. G. 2008. “Does Morality Policy Exist? Testing a Basic Assumption.” Policy Studies Journal, 36:199–218.

Mooney, Christopher Z. 2000. “The Decline of Federalism and the Rise of Morality-Policy Conflict in the United States.” Publius (Wntr-Spring): 171-188.

Moran, Joe. 2001. “Childhood Sexuality and Education: The Case of Section 28.” Sexualities (4)1:73-89.

Passarinho, Nathalia. 2011. “Dilma Rousseff manda suspender kit anti-homofobia, diz ministro.” Globo, May 25. http://g1.globo.com/educacao/noticia/2011/05/dilma-rousseff-manda-suspender-kit-anti-homofobia-diz-ministro.html

Patton, Dana. 2007. “The Supreme Court and Morality Policy Adoption in the American States.” Political Research Quarterly 60: 468–88.

Robinson, Kerry H. 2012. “‘Difficult Citizenship’: The Precarious Relationships Between Childhood, Sexuality, and Access to Knowledge.” Sexualities 15(3-4):257-276.

Rubin, Gayle S. 1984. “Thinking Sex: Notes for a Radical Theory of the Politics of Sexuality.” In Pleasure and Danger: Exploring Female Sexuality, ed. Carol Vance. New York: Routledge.

Weeks, Jeffrey. 1985. Sexuality and Its Discontents: Meanings, Myths & Modern Sexualities. New York: Routledge.

Show me your papers! The flawed internal logic of attrition through enforcement

The Secretary of State of Kansas, Republican Kris Kobach is the mastermind behind the Republican-favoured policy of attrition through enforcement: a policy to deal with migrants without papers in the United States.  Attrition through enforcement functions on the logic that if conditions are difficult for people living in the U.S. without immigration authorization then they will leave – something the proponents of the policy call “self-deportation.”

The policy proposes to make life difficult for migrants without documents using six different strategies: prevent employment with electronic surveillance in the workplace, curb the use of Individual Tax Identification Numbers (ITINs), permit state police to make immigration arrests, record who is leaving the country by requiring exit visas, remove more people who do not have any criminal conviction following regular routine immigration checks, and allow states to pass laws intended to “discourage illegal settlement”.

While the policy requires increased surveillance, which will inevitably lead to either racial and ethnic profiling or tendencies towards a police state for all people resident in the U.S. (for example, routine checks of immigration status to meet the objective of removing people who have never been convicted of any crime or misdemeanor); and while it includes flaws in economic logic (such as reducing ITINs because these allow undocumented migrants to claim tax breaks.  As in breaks.  As in paying fewer taxes that what they are already paying despite the fact that they can make no claim to social security services, the proponents admitting that this will encourage more cash-in-hand work and tax evasion); the main problem with the policy I want to pinpoint is the flawed internal logic of it.

The premise of attrition through enforcement is that if you change the circumstances in which people live those people will be compelled to migrate.  If survival becomes too difficult people will be compelled to move.  The problem with this logic is simple: the rhetoric of “illegal” immigration, the notion that all people who do not have papers in the U.S. are in some way committing a crime, suggests that the act of evading immigration law is always active and agency based.  That is to say people consciously and deliberately evade immigration law.  This tends to discount both passive evasion (such as overstaying a visa) and structural reasons for migration (being compelled to move despite associated difficulties because survival at home is too difficult).  The rhetoric of “illegal” immigration that is used to justify attrition through enforcement suggests that people have deliberately broken the law in the U.S. so that they can access goods and services that they do not have the right to access.  This discounts poverty as a structural motivation, it discounts lack of knowledge of the law, it discounts lack of choice such as being brought to the U.S. as a child.  Neoliberal and libertarian ideologies discount structural forces as compelling individual behavior.  They focus on agency, individual choice.  The logic of these ideologies says that because individuals who migrate deliberately evade immigration law, they engage in “illegal activity” and they consciously make a choice to do so.

The flawed internal logic of attrition through enforcement becomes clear: the policy uses structural motivations, such as changes in the quality of life in the U.S., to bring about “self-deportation.”  If structure is a motivating factor to compel migration then there are a myriad of reasons based on civil, political, social, and economic rights to explain why migration might happen from Mexico and other countries towards the U.S.  If structure is not a motivating factor then attrition through enforcement can never work because it relies on structural motivation to effect the removal of migrants.  The policy assumes that migration is an individual choice when it is towards the U.S., but then relies on structural deterrents to compel people to leave the U.S.  So what we have to conclude is that the proponents of attrition through enforcement recognize that structural forces can compel the movement of people, yet they disregard these forces when migration is towards the US.  Hence, they actively disregard the claim to civil, political, social and economic rights made by people through the action of migration.  Proponents of the policy are not interested in the international circumstances or structures that mean undergoing the difficulties and dangers of migrating without inspection are worth it. They simply want to make life worse for migrants in the U.S. than what it was in the circumstances that compelled them to move to the U.S. in the first place.  This creates a deficit, whereby a population has no access to rights either at home or abroad.  The policy ignores international (and domestic) human rights understood as rights for all humans.  Rather, it prefers to think of rights as only for U.S. citizens.  And proponents of the policy are willing to forgo some of the rights of U.S. citizens (for example, in the form of random or profiled immigration checks) to make sure other humans cannot enjoy them.

The United Nations Committee on World Food Security has put forth guidelines to protect security of land tenure and governance and will be considered by the UN Food and Agriculture Organization at its October 4^th meeting in Rome. This white paper, called Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries, and Forests in the Context of National Food Security, is meant to protect the rural poor against the growing issue of international land-grabbing (http://www.fao.org/news/story/en/item/142587/icode/). 

Land-grabbing, as an international issue has gained traction among nongovernmental organizations and transnational advocacy networks (http://landportal.info/landmatrix/get-the-idea), especially following the 2008 financial collapse in Western Democracies (http://www.nytimes.com/2010/12/22/world/africa/22mali.html?pagewanted=all&_r=0 ).  Investors sought security in tangible assets, often in developing states. This wave of international investors encouraged local governments to displace local farmers who have little recourse for action.  Investors who have an incentive to develop their land can help to bring mechanization and modern farming techniques to improve a country’s agricultural output ( http://www.oaklandinstitute.org/bbc-africa-debate-%E2%80%98land-grabbing%E2%80%99-good-africa ),  but this empirical debate neglects farmers’ rights and community rights over parcels of land.

The Voluntary Guidelines on the Responsible Governance of Land, Fisheries, and Forests asks states to recognize and protect legitimate land tenure rights in formal and informal systems.  These guidelines do not provide sanctioning instruments for the United Nations. However, states that adopt these guidelines signal to other states that they take seriously the rights of their rural poor. Adopting the guidelines and neglecting its constituent parts will invite critiques from non-governmental organizations, transnational advocacy networks, land policy scholars, and (most importantly) local attorneys. States need a reason to adopt these guidelines, whether incentives come from those same transnational actors, local movements, or member states of the United Nations.  

In this debate there is set of international and domestic actors at play: developing states, international investors, the UN, local farmers, NGOs/TANs, and local advocates such as attorneys and cultural institutions.  The argument tends to boil down to economic claims (investment brings development and more food, and is thus good) and claims about rights (basic property rights and government’s authority).  Both sets of claims draw conflict: empirical claims about increased food production as a result of economic investment may be the result of international investment, but it is difficult to say that increased tenure security and access to agricultural loans would not improve local farmers’ productivity. Likewise, states debate the nature and basis of land ownership: community rights can clash with individual rights, and the rights of owners as citizens can conflict with a community’s rights to direct and determine ownership.

The Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries, and Forests makes a first step to protecting the rural poor in developing states.  Were the UN to adopt this white paper as a formal convention, NGOs/TANs, local advocates, and local farmers would receive a rhetorical tool for future debates and, perhaps, a common legal foundation to challenge future land-grabbing.