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October 21 2017 Thesis New Changes Tracked The Status, Rights and Treatment of Persons with Disabilities within Customary Legal Frameworks in Uganda: A Study of Mukono District By David Brian Dennison BA (honours), MBA, JD (cum laude) (University of Georgia, USA) Thesis Presented for the Degree of Doctor of Philosophy in the Department of Private TownLaw Faculty of Law UNIVERSITY OF CAPE TOWN Cape of Date of submission: 31 October 2017 Supervisor: Professor Chuma Himonga University Department of Private Law University of Cape Town The copyright of this thesis vests in the author. No quotation from it or information derivedTown from it is to be published without full acknowledgement of the source. The thesis is to be used for private study or non- commercial research purposes Capeonly. of Published by the University of Cape Town (UCT) in terms of the non-exclusive license granted to UCT by the author. University The copyright for this thesis rests with the University of Cape Town. No quotation from it or information derived from it is to be published without full acknowledgment of the source. The thesis is to be used for private study or non-commercial research purposes only. "ii ABSTRACT Thesis Title: The Status, Rights and Treatment of Persons with Disabilities within Customary Legal Frameworks in Uganda: A Study of Mukono District Submitted by: David Brian Dennison on 31 October 2017 This thesis addresses the question: How do customary legal frameworks impact the status, rights and treatment of persons with disabilities? It is motivated by two underlying premises. First, customary legal frameworks are highly consequential in Sub-Saharan contexts. Second, human impairments are likely to impact status, rights and treatment in customary legal scenarios. In addition, the reality of deep legal pluralism and an anthropologically versed conception of customary law inform the research design. Customary legal content is rightly discerned by researching its substance and application within the lived environment. The researcher gathered input and stories of 63 persons with disabilities and conducted interviews of 23 community members with heightened knowledge of cultural matters in order to discern the experiences of persons with disabilities in non-formal legal contexts. In her semi-autonomous social field approach, Sally Falk Moore considers diverse and layered sources of law when determining the normative legal content in lived contexts. However, this research uncovered little in the way of normative principles specially pertaining to persons with disabilities within lived environments. Instead, legally consequential occurrences take place in customary scenarios that are largely autonomous from formal actors and institutions. The perceived normative substance of formal and customary law can influence the outcome of customary scenarios, but the decision makers’ working knowledge of this legal content as it pertains to people with impairments is limited and disparate. Decision-making family, clan and community members take various factors into consideration when determining rights, status and treatment in customary scenarios. Suppositions about the capacity and functionality of persons with disabilities are particularly influential. Thus, human impairments can be consequential factors in these decisions. This thesis demonstrates that customary scenarios are highly significant forums for establishing customary rights and status in the contexts of marital relations, clan leadership, customary guardianship, customary succession and land "iii rights. Moreover, it indicates that effectual social and legal influences in these scenarios are multi-sourced, multi-layered and dynamic. Finally, the thesis offers practical change strategies suggested by the research for those seeking to improve the status, rights and treatment of persons with disabilities in Mukono District and similar settings. "iv DECLARATION I, David Brian Dennison, hereby declare that the work on which this thesis is based in my original work (except where acknowledgements indicate otherwise) and that neither the whole work nor any part of it has been, is being, or is to be submitted for another degree in this or any other university. I authorize the university to reproduce for the purpose of research either the whole or any portion of the contents in any manner whatsoever, SIGNATURE s/ David Brian Dennison DATE 11 October 2017 "v Dedication To Zoë Reid and the Family of Joan Kagezi "vi ACKNOWLEDGEMENTS First I must acknowledge my wife Mary Jane and my children Charlotte, David, Robert and Carol. They demonstrated tremendous patience, support and understanding during this challenging task. I must also thank my supervisor Professor Chuma Himonga for her diligence, encouragement, expertise and insight. Those who have worked under her tutelage are thankful to call her “Ma.” The nickname is well earned! I owe additional gratitude to my former Dean at Uganda Christian University Dr. Pamela Tibihikirra Kalyegira who encouraged my to apply to the University of Cape Town and pursue graduate studies. I am thankful to the people of Mukono District who willingly took part in the fieldwork as well as Mr. Baab, David Nangosi and Paul Agaba who offered invaluable assistance in the interview process. I am also appreciative for the Luganda translation assistance provided by Dr. Richard Watuulo, Jonathan Mwesigye and Simon Peter Ddamba Anatoli. Special thanks should also go to Dr. Jeff McNair of Joni & Friends International and Calvary Baptist University for the provision of disability studies materials to Uganda Christian University. Finally, I am deeply appreciative of the institutional support I received from Uganda Christian University during this process under the leadership of the Rev. Dr. Canon John Senyonyi. To God be the Glory! -Brian Dennison "vii CONTENTS PAGE Title Page i Abstract ii Declaration iv Dedication v Acknowledgements vi Table of Contents viii "viii TABLE OF CONTENTS Chapter 1 Introduction 1 I INTRODUCTION 1 II THE RESEARCH PROBLEM 2 III JUSTIFICATION OF THE RESEARCH 3 IV OBJECTIVES OF THE STUDY 8 V SCOPE OF THE STUDY 9 1) Persons with Disabilities 9 2) Customary Legal Frameworks 11 3) Mukono District 11 4) The Buganda 12 VI RESEARCH QUESTION AND ARGUMENT OF THE THESIS 14 VII LITERATURE REVIEW 15 (1) Customary Law and Legal Pluralism 16 (a) Legal attributions and condition of customary law 17 (b) Theoretical justification for developmental engagement with customary law 17 (c) Customary law in Mukono District 18 (2) Disability 18 (3) Research Methodology 22 (4) Gaps in the Literature 23 VII RESEARCH METHODOLOGY 23 (1) Overview of the Research Methodology 23 (2) Demographic Breakdown of Interview Phases 29 (a) Persons with disabilities exploratory interviews 29 (b) Customary knowledge bearer interviews 31 (c) Validation interviews by persons with disabilities 33 VIII LIMITATION OF THE STUDY 34 IX STRUCTURE AND OUTLINE OF THE THESIS 36 Chapter 2: Disability: Movement, Theory and Cultural Context 38 I INTRODUCTION 38 II THE DISABILITY MOVEMENT 38 (1) Global Emergence 38 (2) Disability Movement in Africa 40 (3) Disabilities Movement in Uganda 41 III A PRIMER ON DISABILITY THEORY 42 (1) The Medical and the Welfare Models of Disability 42 (2) The Rise of ‘Integrationism’ and Functionalism 43 (3) The Social Model of Disability 43 (4) The Minority Group Model of Disability 46 (5) The Human Rights Based Approach to Disability 47 "ix (6) Ableist Approaches to Disability 50 (7) The Politics of Ideology: Purity v Pragmatism 51 IV CULTURE AND DISABILITY IN SUB-SAHARAN AFRICA 53 (1) Collective Beliefs about Sources and Causes of Disability 53 (2) Cultural Beliefs and Attitudes about Persons with Disabilities 55 (3) Ubuntu and Sub-Saharan Communitarianism 57 (4) Language and Disability in Africa 59 (5) African Customary Laws and Practices with Special Application and Relevance to Disability 61 V CONCLUSION 63 Chapter 3: Discerning a Theoretical Approach for the Customary Law and Process Relevant to Persons with Disabilities in Mukono District 65 I INTRODUCTION 65 II LEGAL PLURALISM 66 III CUSTOMARY LAW 69 (1) The British Colonial Approach to Indigenous Customary Law 71 (2) The Treatment, Persistence and Place of Customary Law in Contemporary Uganda 72 (3) Emerging Appreciations of Customary Law 77 (4) Practical and Strategic Challenges Posed by Customary Law 79 IV CONCLUSION 81 Chapter 4: A Critical Survey of Change Strategies for Improving the Status, Rights and Treatment of Persons with Disabilities in the Majority World Contexts 83 I INTRODUCTION 83 II TOP-DOWN CHANGE STRATEGIES 84 (1) Categories of Top-Down Change Strategies 84 (a) The creation, promulgation and implementation of human rights instruments 87 (b) Change through domestic law reform 88 (c) Change Through litigation 90 (d) Change through government policy 90 (e) Change through institutional and organisational engagement 91 (2) An Instructive Lesson in Top-Down Change Initiatives from Mukono District 93 III BOTTOM-UP APPROACHES TO CHANGE 95 (1) Categories of Bottom-up Legal Change Strategies 95 (a) Facilitative change strategies: Framing, "x the receptor approach and the soft approach 96 (b) Acculturation 98 (c) Strategies for directed engagement with customary laws and practices 100 (d) Actor-oriented and participatory change strategies 103 (e) Community care delivery models 105 (2) Research implications in light of the prevalence and viability of bottom-up rights reform 106 V FORMALISM AND CHANGE IN BAGANDA CUSTOMARY LAW 107 VI CONCLUSION 109 Chapter 5:
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