It was not one which attracted significant media attention, and has almost gone without notice, even within legal circles. Nonetheless, it bears foregrounding in terms of the path-breaking nature of some of its findings and conclusions, and the implications these have for future litigation.
The case in question is United Organization for Batwa Development in Uganda (UOBU) and 11 Others v Attorney General, Uganda Wildlife Authority and National Forestry Authority, which was filed as Constitutional Petition No 3 of 2011.
Aside from the lead petitioner, the eleven other petitioners were persons from the Batwa community. The petitioners asserted that the ancestors of the Batwa had historically owned and inhabited a large part or all of forested land in South Western Uganda, on which the present-day Echuya Forest Reserve, Mgahinga Gorilla National Park and Bwindi Impenetrable Forest National Park are situated.
They claimed that the Batwa had inhabited this land until they were evicted from it from around 1991 to 1996 with little or no compensation. Importantly, the petitioners claimed that this eviction was only the climax of a number of policies instituted by successive governments in Uganda, going back to the 1920s, aimed at converting their ancestral lands into protected areas for wildlife conservation.
The crux of the petitioners’ case was founded on their status as ‘indigenous persons’ within the meaning of international law, their claim being that the failure of the state to render them this recognition had resulted in the violation of a host of attendant rights, including the rights to property (Article 26), life (Article 22), equality and non-discrimination (Articles 20 and 21).
Although the court (composed of Justices Frederick Egonda-Ntende, Elizabeth Musoke, Cheborion Barishaki, Muzamiru Mutangula Kibeedi and Irene Mulyagonja) was minded to decline jurisdiction (on the technical point that the petition referred to violation of rights, a matter for any competent court to determine under Article 50, rather than the Constitutional court), nonetheless, it proceeded to determine the case, on the basis that it ‘implicitly’ concerned the meaning and scope of the concept of affirmative action, as provided under Article 32 (1) of the Constitution.
That provision requires the state to ‘take affirmative action in favour of groups marginalised on the basis of gender, age, disability or any other reason created by history, tradition or custom, for the purpose of redressing imbalances which exist against them’.
One of the first tasks that faced the court in this regard was as to the meaning of ‘affirmative action’. Drawing upon the Merriam-Webster Dictionary (2021) and the Black’s Law Dictionary (8th Edition), the court took the view that affirmative action could be defined as ‘remedial action’ which was ‘required to be done in order to rectify effects of past discrimination or historic injustice’.
To the court, the applicable affirmative action required to be taken in any instance depended on the facts of each unique case. It was on that basis that the court proceeded to consider whether the case before them implicated this powerful idea.
In articulating the view of a unanimous court, Musoke JCC (as she then was) noted that for a successful claim under Article 32 (1), a petitioner or claimant had to show: (i) that the group in question had in fact been marginalized on the basis of gender, age, disability or any other reason created by history, tradition or custom; and ii) that the affirmative action sought was for the specific purpose of redressing the imbalances suffered by that marginalized group.
As to the first condition, the court found, on the basis of the evidence before them, that the Batwa were in fact a marginalized group within the meaning of Article 32 (1). To the court, this marginalization had resulted from their eviction from lands they had historically and traditionally occupied, with little or no compensation being paid to them.
The result was that they were ‘now relegated to a lesser class of citizens, inherently landless and fated to be encroachers on other people’s land’. The court also accepted, based on the petitioners’ evidence, that this marginalization had been caused by ‘[another] reason created by history’ as envisaged under Article 32 (1) – insofar as they had been evicted from ‘land where their ancestors had lived for years, centuries or even millennia’ by government, without their consent, and with inadequate or no compensation.
The court also felt that the second condition was met, that is to say that the circumstances of the Batwa were such as required ‘the taking of all the necessary steps in the interest of affirmative action in their favour’.
Importantly, the court articulated a philosophical foundation for affirmative action, one linked to full citizenship and belonging, observing that: ‘Article 32 (1) requires the state to take measures aimed at ensuring that the marginalized groups, who are citizens like the rest, feel secure and confident in the knowledge that they are recognized in society as human beings equally deserving of concern, respect and consideration.’
This theme – of the nexus between affirmative action, identity and inclusion – is one which the court reasserted a little later in its judgment, noting that the historical injustices faced by the Batwa had rendered them landless and had not only affected their livelihood but also ‘destroyed their identity, dignity and self-worth as a people and as equal citizens with other Ugandans’.
In the event, however, the court did not feel there was sufficient evidence before it to provide the basis for a proper stipulation of the affirmative action measures the state had to take to put in place to repair the historical injustices suffered by the Batwa.
As such, exercising its power under Article 137 (4) (b) of the Constitution, the court opted to refer this particular issue to the High court to investigate and exhaustively determine the most appropriate affirmative action measures required by the Batwa. In so doing, the court urged the High court to ensure that any such measures were ‘practically effective and [we]re-enjoyed by all the Batwa people’ and that, importantly, ‘they [did] not expose the Batwa people to further exploitation’.
The court’s decision in the Batwa case is a critical first step in the full exploration of the meaning, scope and, indeed, promise of Article 32 (1). This provision is unique as it recognizes the need to be mindful of the continuing effects of historical wrongs as the basis for building a cohesive Ugandan society. As the novelist William Faulkner recognized in his Requiem for a Nun (1951): ‘The past is never dead. It’s not even past.’
The Batwa case is even more significant given recent erosions of this important concept in certain previously trailblazing jurisdictions. For instance, about two months ago, on June 29, 2023 to be exact, the United States Supreme court handed down a decision in two cases – Students for Fair Admissions, Inc. v President and Fellows of Harvard College (No.20-1199) and Students for Fair Admissions, Inc. v. University of North Carolina et al (No.21-707) – basically finding race-conscious admissions processes to be a violation of the Equal Protection Clause of the Fourteenth Amendment to the US Constitution.
In a very strongly worded dissent, Justice Sonia Sotomayor excoriated the majority of the court for failing to be alive to the deeply problematic national history of the United States, whose painful legacy measures such as affirmative action had been tailored to ameliorate: ‘… the Court cements a superficial rule of colorblindness as a constitutional principle in an endemically segregated society where race has always mattered and continues to matter …
That interpretation of the Fourteenth Amendment is … grounded in the illusion that racial inequality was a problem of a different generation. Entrenched racial inequality remains a reality today … Ignoring race will not equalize a society that is racially unequal. What was true in the 1860s, and again in 1954, is true today: Equality requires acknowledgment of inequality.’
On this point, I think the Ugandan Constitutional court powerfully understood what the majority of the United States Supreme court did not. That history matters. And that, in many instances, it is wrong – perhaps even hypocritical – to pretend to be able to move forward without acknowledging, and taking due account of, historical injustices (especially where such wrongs have real and continuing effects in the present day).
The Batwa case opens the way for a deeper national discourse into which other groups can be said to have suffered marginalization in the terms envisaged under Article 32 (1) – for whom affirmative action must be taken for the purpose of redressing historical wounds.
To be sure, some important policy measures have already been adopted in this regard, such as the famous 1.5 additional points for female candidates as well as District Quota Systems and the Disabled Students’ Scheme (in the context of university admissions); representation for women, youths, persons with disabilities and older persons in parliament, among others. Nonetheless, these do not even begin to scratch the surface of Article 32 (1).
Would Article 32 (1), for instance, cover the several peasants in Buganda who were rendered landless under the terms of the 1900 Buganda Agreement; or the several Ugandans of Asian descent who were expelled in 1972; or Muslims who have consistently suffered legal and factual ostracism; or the Bairu in Ankole; or the people of Karamoja (about 40% of whose land, by some accounts, has been gazetted by government for conservation); or Banyarwanda whose very citizenship rights continue to be challenged informally, and in some cases even officially; or the Banyoro who were the target of a near-genocidal campaign by the colonial government?
The Batwa decision is an important first serious judicial step into understanding the core of Article 32 (1). It should not be the last. This provision does invite uncomfortable conversations for us as a country, but they are conversations which must be had, as a basis for genuine and sustainable national peace and cohesion.
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.
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