This simple sentence carries both a declaration of principle – the inherent nature of the right to liberty – and a description of the factual reality of many peoples. A study of world history, and a survey of contemporary global affairs, reveals Rousseau’s statement to be as true today as it was in the Eighteenth Century. The value of liberty, and the reality of its habitual deprivation, seems to a constant contradiction present in the human condition.
In the important moment represented by the 1776 American Declaration of Independence, liberty had pride of place. In that document, those who pronounced their revolt against the oppression of the English King George the Third, asserted their belief in certain ‘self-evident’ truths, which included the notion that all persons were created equal and that they enjoyed certain innate and inalienable rights which included ‘life, liberty and the pursuit of happiness’.
The value of liberty would continue to be one held dear in the United States. Indeed, the final lines of the American anthem declare that country to be ‘the land of the free’ and ‘the home of the brave’.
Liberty would also be a critical feature of the French revolution of 1789-1799. Liberty (alongside equality and fraternity) was a central rallying cry around which the people mobilized to rid themselves of the tyranny of absolute monarchism. To this day, this phrase ‘Liberté, Egalité, Fraternité’ remains the national motto of France.
Since then, these powerful ideas have continued to inspire not only these nations and societies, but many others around the world. Haiti, for instance, shares France’s motto (‘Liberté, Egalité, Fraternité’). Liberia too stands out as a country – founded by freed slaves – whose very name speaks of Liberty; who flag depicts the ships that delivered the free persons back to Africa; and whose motto commemorates the circumstances of its birth: ‘The love of liberty brought us here’.
These ideas are evident in our own Constitution of 1995. In that document, liberty is foregrounded in the Bill of Rights (Article 23), coming just after the guarantees of equality and non-discrimination (Articles 20 and 21), and the recognition of the right to life (Article 22). The ideal of liberty is also deeply embedded in our anthem, in which we are proclaimed to be united, free and always ready to stand together for liberty; and in which Uganda is described as ‘the land of freedom’.
LIBERTY’S FRAILTY
As Rousseau presciently observed, however, the promise of liberty is not always reflected in reality. The two beacons of liberty discussed above – the United States and France – provide useful case studies in this respect. Thus, while the US Declaration was issued, America kept black people in slavery, a situation which would legally persist until the adoption of the Thirteenth Amendment to the Constitution on 18 December 1865.
Even then, black people in the United States remained essentially second-class citizens, suffering under the strain of Jim Crow laws until the mid 1950s, and subsequently under various modes of legal and factual subjugation – including through the instrumentalization of police and prisons. To quote Tupac in his ‘Changes’ song:
Cops give a damn about a negro
Pull the trigger, kill a nigga, he’s a hero
It ain’t a secret, don’t conceal the fact
The penitentiary’s packed and it’s filled with blacks It’s war on the streets and the war in the Middle
East (Ooh, yeah)
Instead of war on poverty
They got a war on drugs so the police can bother me
Unfortunately, these words continue to ring true today. According to recent studies, African Americans are jailed in state prisons at five times the rate of white Americans; and in at least 12 states, more than half of the prison population is made up of African Americans.
And who can forget one of the most shocking demonstrations of the nature of policing in that country – the white officer Derek Chauvin who on 25 May 2020 nonchalantly kept his knee on George Floyd’s neck, impervious to his pleas for mercy, until he died.
For its part, while France broke its own chains in the revolution, the practice of slavery would be maintained in its colonies – including that called Saint-Domingues (present day Haiti). Haitian independence would only be won in late 1803 after many years of fighting – which left more than 200,000 Haitians dead. Even then, this debt of blood was apparently insufficient
to ensure Haitian liberty. Infamously, the French in 1825 saddled its former colony with the obligation to pay 150 million gold francs in reparations to Frenchmen who had formerly owned Haitian slaves. This was the condition for France’s reluctant recognition of Haitian statehood and sovereignty. Although in 1838 this debt was reduced to 90 million gold francs, it would take more than 100 years for Haiti to finish paying it off, with the last payment being effected in 1947.
It is perhaps not surprising that both France and the United States were participants at the infamous Berlin Conference of 1884-1885 (alongside Belgium, Denmark, Germany, the United Kingdom, Austria-Hungary, Italy, the Netherlands, Portugal, Russia, Spain, Turkey and Sweden-Norway). Those who preached liberty seemed content to be handmaidens of subjugation and domination. The promise of liberty on parchments was certainly not fulfilled in practice.
In the colonial moment, France and other European powers created large essentially open-air prisons they called colonies (or, more euphemistically, ‘Protectorates’), primarily for economic extraction. The Uganda Protectorate was one of those openair prisons. Inevitably, they could only be maintained by force, although law was also an important mechanism of the time.
Importantly, the law in those colonies was shorn even of the promise of liberty. In its place, was the language of oppression: ‘deportation’, ‘banishment’, ‘prisons’, ‘tax’, ‘King’s Rifles’, ‘police force’, ‘detention’ and others. And then, in the wake of rushed decolonization following the Second Great War in Europe, these open- air prisons were suddenly left to their own devices – inorganic polities with mainly a shared history of domination holding them together.
The legal principle – uti possidetis – was found by the leaders of those entities to be a useful mechanism of avoiding territorial wars. So, the prison walls were kept in order to keep the peace. Each open-air prison would be left with an essentially imposed constitution (Uganda was left with one in 1962 by virtue of an Order of the Queen), drafted in uncannily similar language.
As with Haiti in 1838, following the ‘decolonization process’ new forms of domination would be found, variously in bullets or bullion. In effect, in what we have in Uganda and similarly situated polities are ‘prisons within prisons’. As Asa reminds us in ‘Jailer’:
I’m in chains, you’re in chains too
I wear uniforms and you wear uniforms too I’m a prisoner
You’re a prisoner too, Mr. Jailer
I have fears, you have fears too
I will die, but yourself will die too
I’m talking to you jailer!
Stop calling me a prisoner
You suppress all my strategies
You oppress whoa whoa every part of me What you don’t know
You’re a victim too, Mr. Jailer
Oh!
You don’t care about my point of view
If I die another will work for you
So you treat me like a modern slave, Mr. Jailer I’m talking to you jailer!
Stop calling me a prisoner
Unfortunately, as is perhaps the nature of prisons, there is at times an air of desperation within their walls which invite the baser forms of human nature to the fore. The head inmate, often, is harsher to his fellows than the jailer. Quite often, indeed, the ‘head inmates’ of the open-air prisons proved harsher to their fellow ‘prisoners’ than the ‘proprietors’ of those prisons.
It bears noting, for instance, that while Patrice Lumumba’s tooth (the single remnant of his physical body) was for a long time kept in Belgium, it was Mobutu who oversaw his capture and essentially ensured his extermination. It has been no different, historically, in the open-air prison that has been the political reality of Uganda since the colonial encounter: from Obote to Amin, to Binaisa, Lule, back to Obote, then to Tito Okello and finally to Museveni.
It is then, perhaps little wonder that the promises of liberty inscribed in the 1962, 1966, 1967 and now 1995 texts have remained hollow. Can there be liberty in a prison?
In this regard, it is perhaps telling – and in fact appropriate – that Uganda’s Independence Monument, designed by Gregory Maloba, depicts a figure whose legs and torso are evidently bound. The figure’s hands and head are, however, free – and a child is being lifted up in the air. The child appears to be completely free. It might be asked, however, whether one can ever be quite free if one is held up and sustained by a prisoner.
LIBERTY’S HOME
In 2022, the open-air prison that is Uganda constrains its nearly 50 million inmates in a variety of significant ways – ‘lawful’ and ‘unlawful’.
We must certainly address the issue of ‘unlawful’ detentions – the subject of today’s symposium. These are both public (in form of unduly prolonged remand periods, imprisonment in ungazetted places, arrest by unidentified persons, unreasonable denial of bail and others) and public (detention of patients in hospitals for non-payment of fees – sometimes including new mothers and their babies, and holding onto corpses).
However, and equally importantly, we should also be conscious of various forms of ‘lawful’ detention. The latter are all around us – reflected in the law – ground in political, social and economic injustices. We have a range of ‘offences’ mainly targeting poor persons or political opponents, which are used to ‘clean the streets’ of ‘undesirables’. These include such notions as being ‘idle and disorderly’ (Section 167 of the Penal Code Act); ‘rogues and vagabonds’ (Section 168 of the Penal Code Act) and others.
They also include provisions in the Civil Procedure Code Act (Sections 38 and 40 to 43) and other laws which make it possible for creditors to have debtors imprisoned for up to 6 months – as guests of the state, paid for byprivate persons.
In addition, they include provisions in even laws like family relations, which deny adult persons the right to consensually dissolve bonds entered into with consent. Unfortunately, even Article 23 itself contains certain design defects, being curiously replete with various problematic exceptions to the right to liberty (including with respect to drug users, persons addicted to alcohol, and persons with intellectual or psychosocial disabilities).
Then there is that twilight zone – between the lawful and the unlawful – in which even more detainees are created. The judicial discretion relating to bail, for instance, can be exercised in ways (including the stipulation of excessive bail fees) which deny poor persons the means of obtaining the liberty promised under the Constitution. In this way, a message is also sent to others who might have been minded to experiment with their liberty to keep away from its exercise.
More recently, stringent jail terms for persons using admittedly colourful language – under the authority of the contempt of court stipulation under the Constitution – also send a message of the frailty of liberty’s guarantee. This situation is further exacerbated by a now creeping trend of the appointment of ‘acting’ Judges – the doubtfulness of whose own tenure can only create the conditions for decisions made under fear, or in expectation of favour.
It must be stressed, however, that in the above instances we are only speaking about those persons in the ‘maximum’ prison. The remainder of the 50 million remain shackled in other ways – no less real – through various forms of economic and other deprivations. This can perhaps best be demonstrated by the hundreds of young Ugandans who leave the country every day, in search for basic necessities of life elsewhere. Unfortunately, too often, they find that they have jumped from the frying pan into the fire. Nonetheless, as Warsan Shire reminds us in her ‘Home’ poem:
no one leaves home unless
home is the mouth of a shark
you only run for the border
when you see the whole city running as well
In these circumstances, is it surprising that many young Ugandans are driven to the very point of desperation – choosing in some cases to end their lives rather than live under sub-human conditions at home or abroad?
In these suicides, and attempted suicides, are echoed the words of Patrick Henry from 23 March 1775: ‘Give me liberty, or give me death’! Perhaps to make the harsh point, in Uganda, those who survive the attempt do not escape the legal punishment envisaged under Section 210 of the Penal Code Act, on attempted suicide.
What is to be done in these forlorn circumstances? We must find a way, like the child held up in our independence monument, to doggedly pursue real liberation. This must include work towards a new jurisprudence of liberty – which gives full meaning to the promise of Article 23. However, it must also include a more radical project of legal and other re-imagination. As Justice Learned Hand noted in 1944:
I often wonder whether we do not rest our hopes too much upon constitutions, upon laws and upon courts.
These are false hopes; believe me,
these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can even do much to help it.
While it lies there it needs no constitution, no law, no court to save it.
Dr Kabumba delivered a speech at Makerere School of Law Symposium on unlawful detentions
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