I have often reflected on the idea of the ‘right to bad governance’ - the right of people to mismanage themselves – as an important element of the right to self-determination.
It relates to autonomy, dignity and self-determination. Freedom does not mean anything unless it includes the right to make bad choices. To live in Uganda is to fully understand what it means to live in a most poorly governed country – from the state of various social services (health, education etc) to roads and a range of basic amenities.
Every journey along the roads (where they exist) is a reminder of how very badly we are governed. And yet, this is part of the essence of independence – this was the dream of those who both resisted the establishment of colonial rule, and those who fought against that system throughout its existence.
It was to achieve self-governance, including the possibility of self-mismanagement. On the other hand, one of the most basic justifications for colonialism was the perceived inferiority of those persons targeted for subjugation - who were ‘sullen peoples’, ‘half devil and half child’ to borrow from Rudyard Kipling’s 1899 poem, ‘The White Man’s burden’.
Echoes of these notions, of course remain, although in some cases the crude imperial language of ‘civilization’ is sometimes substituted with such terms as ‘development’. This history makes independence and self-determination, even if it includes mismanagement of the self, a critical and precious thing.
Thus, the news which came out a few days ago – of a UGX 3.5 trillion supplementary budget submitted for parliamentary approval, in which State House will be allocated UGX 100 billion as ‘classified expenditure’ – must be accepted as
part of the reality of independent governance.
As might be expected, the ‘plan’ for supporting this expenditure – apparently unforeseen when the initial budget for the 2023/2024 financial year was presented and approved five months ago – is based on additional borrowing. This new debt is to be added to the UGX 80.7 trillion already owed to domestic and international lenders.
Moreover, while as of December 2022 Uganda’s debt to GDP ratio was at about 46%, we are on a steady march towards the dangerous zone: where the 50% mark is reached, and perhaps even breached. For lack of a better word, as a country we are headed towards a situation when our debts exceed our income.
This reckless approach to public finance is matched by an equally reckless approach to public expenditure. Just a few weeks after it emerged that Uganda sent two parallel delegations to the 78th United Nations General Assembly (a total of 71 persons, many of them basically tourists), it now appears that we sent 600 delegates to the 28th Conference of Parties taking place in Dubai, UAE (no doubt again mostly non-essential persons).
There are, of course, several other sites of financial haemorrhage – not least of all a bloated Parliament with over 500 members. It must be obvious to any rational observer that this cannot continue for much longer. Something has got to give. But what, and when?
There was an attempt, under the 1995 Constitution, to seek to constrain such a reckless and cavalier approach to management of the public purse. The Constitution has an entire Chapter – Chapter Nine – on public finance. Among other things, that part of the Constitution requires that the President causes to be prepared and laid before Parliament, at least 15 days before the start of the financial year, estimates of revenues and expenditure of government for the next financial year (Article 155 (1)).
Unfortunately, as with many other parts of that broken consensus, a strange practice has emerged where the budget presented at the start of the financial year is more or less a provisional one – merely one of a series of other budgets to be presented in the course of the year. Everyone appears to now have come to expect the presentation of ‘supplementary’ budgets.
Put differently, poor or haphazard financial planning is no longer an aberration – it is the ‘normal’ approach to public finance management in Uganda. We have normalized bad financial governance. Incidentally, another aberration which seems to have been ‘normalized’ is
the absence of a substantive Bank of Uganda (BOU) Governor.
Chapter Nine of the Constitution also stipulates that the authority of the central bank ‘shall vest in a Board which shall consist of a Governor, a Deputy Governor and not more than five other members’ (Article 161 (2)). The language of the provision is couched in the mandatory ‘shall’ language which, as all lawyers know, does not provide for discretion. For all intents and purposes, as it is, the BOU Board is not fully constituted – and, to that extent, the central bank is operating illegally and unconstitutionally.
The simple question that arises is as to why such an important office, in such an essential institution – critical to the financial health of the State – is not being filled. Is there an absence of qualified economists in the country? Certainly not. It can only be that there is ‘order in the chaos’ – the disorder, uncertainly and vagueness thereby created must work for some, just as does the strange mechanism of the habitual ‘supplementary budget’.
All this notwithstanding, these are our leaders. Insofar as we chose them, we have the duty to suffer them. It is our fundamental right – as free people and members of the community of nations – to manage ourselves, which includes the right, through our elected representatives, to thoroughly mismanage our affairs.
There are, however, at least two possible qualifications to this otherwise broad ‘right to bad governance’. In the first place, this right is limited by certain core fundamental human rights of individuals and groups. The international community has the right, and indeed the duty, to intervene to, for instance protect a group faced with grave human rights violations.
A classic example is the 1994 genocide in Rwanda – the United Nations and should have intervened, and failing this, other actors had the responsibility to protect (R2P) persons who faced the threat of extermination. The Court of Appeal in Botswana in the 1992 case of Unity Dow v Attorney General similarly understood that membership of the international community placed certain constraints – and expectations of behaviour – on the State at the national and international level.
In that case, this approach led the court to conclude that while the 1966 Constitution of Botswana did not expressly prohibit discrimination on the basis of sex, this ground had to be read into that document, based among other things on the international obligations entered into by that country.
To its credit, the Supreme Court of Uganda and, subsequently, the Constitutional Court, came to a similar conclusion in the litigation in Center for Health, Human Rights and Development (CEHURD) v Attorney General with respect to the issue of maternal mortality. The State has certain inescapable duties when it comes to respecting and protecting the rights of individuals and groups. The right to bad governance does not include a licence to harm.
The second, and equally critical, inroad into the broad ‘right to bad governance’ is logically the notion that such governance must indeed be self governance. In Uganda’s case, the nature of the 2021 elections (and many of the previous ones) – and in particular the role played by the military and security forces – calls into serious question the legitimacy of the government that is so flagrantly mismanaging our national resources.
Indeed, it is arguably this fundamental illegitimacy which is partly fueling some of the crises emerging recently. For instance, the claim by some ‘Balaalo’ to have bought land in Northern Uganda through arms-length transactions is undercut by a perception that certain ethnic groups in Uganda have inordinately benefited from what should have been national resources.
These perceptions have been lent credence by no less a body than the Equal Opportunities Commission, whose report for the 2022/2023 period revealed that the region of Western Uganda accounts for 40% of the top positions in government agencies – with the Central region at 26%, Eastern at 20% and Northern at 12%.
In the same vein, the President’s direct order, in March this year, to the Inspector General of Government (IGG) - Beti Olive Namisango Kamya-Turomwe – not to compel soldiers to publicly declare their wealth (a requirement under the law) also suggests an awareness on his part of what such scrutiny might reveal.
Taken together, it is difficult to make the case that Ugandans are (mis)managing themselves – rather, it seems to be that an ever-smaller circle of relatives, friends and in-laws, with the complicity of some elites coopted into some governance structures, have taken us all hostage, and are thoroughly mismanaging our collective funds.
Unfortunately, this mismanagement includes saddling our children, and our children’s children, with debt which they will spend decades paying down. In next week’s column, we shall explore this last point – the issue of unconscionable ‘national’ debt – and possible implications of this not just for international lenders but also those complicit in the current malfeasance.
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.