The Participation of Ethnic Minorities in Public Affairs: a Case Study of the Batwa in Uganda By

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How to cite this thesis Surname, Initial(s). (2012). Title of the thesis or dissertation (Doctoral Thesis / Master’s Dissertation). Johannesburg: University of Johannesburg. Available from: http://hdl.handle.net/102000/0002 (Accessed: 22 August 2017). THE PARTICIPATION OF ETHNIC MINORITIES IN PUBLIC AFFAIRS: A CASE STUDY OF THE BATWA IN UGANDA BY

PAUL MULINDWA

Thesis submitted in partial fulfillment of the requirements for the degree of

Doctor Litterarum et Philosphiae (D.Litt. et Phil) in Political Studies in

South African Research Chairs Initiative (SARChI): African Diplomacy and Foreign Policy Faculty of Humanities Department of Politics and International Relations University of Johannesburg, Johannesburg, South Africa

Supervisor: Professor Chris Landsberg Co-supervisor: Professor Mzukisi Qobo

ACKNOWLEDGMENTS The successful completion of this doctoral study required significant collaboration and assistance from people around me. I will take a moment to appreciate some of them here. From the onset, I praise God Almighty for His love and blessings as I wandered in the academic wilderness, arriving finally at this thesis.

I profoundly appreciate my supervisor Professor Chris Landsberg for the direction, encouragement, and financial support during my study. Thank you for understanding my challenges of balancing many lives including academic life, and to see that I am able to come to this level. I also thank Professor M Qobo for his supervisory support. I am also indebted to my colleagues at SARChI: African Diplomacy and Foreign Policy – Dr Eric Niriyitunga, and Nabila Noor for the comradeship we shared and for their help in accessing relevant offices, resources, and more so shaping this research study. I gratefully acknowledge the funding received towards my PhD from the National Research Fund (South Africa) which facilitated me to complete this study.

I also thank Dr Rukooko Byaruhanga at Makerere University who was the first person to guide and shape my disjointed ideas that are now part and parcel of this work, and for opening his doors at Makerere University for me to come in all the time for consultations and guidance. Thank you for being a great mentor and inspirator. I acknowledge my friends, both local and international, whose encouraging words and support kept me pushing on. These include Mr James Zotto, Ms Birungi Marion, and Mr Adolf Mbaine.

I would like to thank most warmly my “angels” – Paulyn Ankunda and Paulsen Andinda – for tolerating me in my moments of madness and making sure there was always a home to go to after days and nights of hard work. I am thankful to all my family for supporting me and thei reassurance that kept me moving even when things became very tough. Ms Marion Birungi proved to be a very reliable research assistant who maintained a keen interest in my research.

DEDICATION This study is devoted to my mother, Valeria Keminagano. She taught me to believe in myself and always to excel in everything I do. This work also goes out to my immediate friends and children: Paulyn Ankunda (Nkajikaji) and Paulsen Andinda (Chief), whose love and patience has enabled me to come to a completion. Lastly, my dedication is to my Jaja, Magdalene Byendimi. She is a fountain of wisdom and she taught me to be faithful to God, work hard, and to remain focused in all. Without her foundational and primary “touches” in my childhood and teenages, this achievement would not have been possible.

TABLE OF CONTENTS

Contents Acknowldegement …………………………………………………………………………………ii Dedication……………………………………………………………………………………...…..iii Abbreviation and Acronyms …………………………………………………………….….….…x Abstract…………………………………………………………………………………………………xiii

CHAPTER ONE...... 15 INTRODUCTION: BACKGROUND AND CONTEXT OF THE STUDY ...... 15 1. Introduction ...... 15 1.1. Background to the study ...... 16 1.2. Historical perspective of ethnic minority issues in Africa ...... 20 1.2.1. Pre-colonial ...... 20 1.2.2. Colonial time ...... 22 1.2.3. Post-colonial time ...... 25 1.3. General situation of ethnic minority in Uganda ...... 26 1.4. The Batwa of Uganda ...... 30 1.5. Research problem/statement of the problem ...... 34 1.6. Statement of purpose ...... 345 1.7. Objectives of the study ...... 35 1.8. Research questions ...... 36 1.9 Hypothesis ………………………………………………………………………………………37 1.10. Study limitation ...... 37 1.11. Significance of the study ...... 38 1.12. Justification for the study ...... 39 1.13. Outline of chapters ...... 42 CHAPTER TWO ...... 45 METHODOLOGY ...... 45 2. Introduction ...... 45 2.1. Research design ...... 45 2.2. Study population ...... 47 2.3. Determination of sample size ...... 48 2.4. Sampling procedure ...... 49 2.5. Data collection methods ...... 50 2.5.1 Document Analysis……….…………………………………………………….…….….52

2.5.2. Interview…………………………………………………………………………...……50 2.5.3. Observation……….…………………………………………………………………….53 2.6. Data collection tools ...... 54 2.7. Validity and reliability ...... 56 2.8. Data analysis ...... 57 2.9. Ethical considerations ...... 57 2.10. Conclusion ...... 58 CHAPTER THREE ...... 59 THEORETICAL AND CONCEPTUAL FRAMEWORKS ...... 59 3. Introduction ...... …..59 3.1. Theoretical framework ...... 60 3.2. Minority democracy theory ...... 65 3.3. Participatory democracy theory ...... 70 3.3.1. Relationship between the two theories ...... 74 3.4. Conceptual framework ...... 75 3.4.1. Era of convergence ...... 75 3.4.2. Era of divergence ...... 76 3.5. The concept of ethnic minority in International Law ...... 78 3.6. Ethnic minority - indigenous nexus ...... 81 3.7. Conclusion ...... 82 CHAPTER FOUR ...... 84 THE QUESTION OF ETHNIC MINORITIES AND ISSUES OF THEIR CONCERN ...... 84 4.0. Introduction ...... 84 4.1. Historical background to minority protection ...... 84 4.2. Understanding the concept “Ethnic Minorities” ...... 86 4.3. Criteria for identifying ethnic minorities ...... 94 4.4. Elements of the working definition ...... 96 4.4.1 Ethnic, religious or linguistic characteristics ...... 96 4.4.2. Race ...... 95 4.4.3. Numerical inferiority ...... 96 4.4.5. Non-dominance ...... 97 4.4.6. Nationality ...... 98 4.5. Minority rights and specific minority concerns ...... 100 4.6. Conclusion ...... 102

CHAPTER FIVE ...... 103 THE RIGHT TO EFFECTIVE PUBLIC PARTICIPATION OF ETHNIC MINORITIES ...... 103 5. Introduction ...... 103 5.1. Understanding the concept of effective public participation ...... 103 5.2. Normative content of right to effective participation ...... 109 5.3. Justification for effective participation of minorities in public affairs ...... 111 5.4. Challenges to participation of ethnic minorities in public affairs ...... 117 5.5. Participation and representation ...... 121 5.6. Dimensions of effective public participation ...... 122 5.6.1. Participation through elected representatives ...... 123 5.6.2. Participation through decentralised local governance structures ...... 124 5.6.3. Participation through the public service ...... 125 5.6.4. Participation through associational life ...... 126 5.7. Political participation of minorities ...... 126 5.8. Economic participation of minorities ...... 127 5.9. Cultural participation ...... 128 5.10. Principle of equality and non-discrimination ...... 129 5.11. Conclusion ...... 130 CHAPTER SIX ...... 133 POLICY AND LEGAL FRAMEWORK FOR EFFECTIVE PARTICIPATION OF MINORITY133 6. Introduction ...... 133 6.1. International legal and institutional frameworks ...... 134 6.1.1. The Universal Declaration of Human Rights ...... 134 6.1.2. International Covenant on Civil and Political Rights (1966) ...... 135 6.1.3. Convention on the Rights of the Child ...... 140 6.1.4. The International Covenant on the Elimination of Racial Discrimination - 1969 . 1 4 1 6.1.5. Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities ...... 1414 6.2. International mechanisms for the protection of minorities ...... 144 6.2.1. United Nations Human Rights Council ...... 144 6.2.2. United Nations Forum on Minority Issues ...... 145 6.3. Regional legal frameworks...... 146 6.3.1. African Human Rights system and minority rights ...... 146 6.3.2. African (Banjul) Charter on Human and Peoples rights ...... 146

6.3.3. The African Charter on the Rights and Welfare of the Child ...... 149 6.3.4. African Youth Charter ...... 149 6.4. National legal frameworks ...... 150 6.4.1. Uganda Constitution of 1995 ...... 150 6.4.2. Equal Opportunities Act 2007 ...... 152 6.4.3. The Equal Opportunities Commission ...... 153 6.5. Case laws ...... 154 6.5.1. The Principle of equality and non-discrimination ...... 154 6.5.2. Minority protection and effective participation ...... 155 6.6. Conclusion ...... 158 CHAPTER SEVEN ...... 160 BATWA OF SOUTH-WEST UGANDA: A HISTORY OF MARGINALISATION AND PARTICIPATION IN PUBLIC AFFAIRS ...... 160 7. Introduction ...... 160 7.1. Context of ethnic indigenous minorities and marginalisation and more from other countries 161 7.1.1. Khoisan community ...... 162 7.1.2. The Basarwa of Botswana ...... 164 7.1.3. San of Namibia ...... 165 7.1.4. Baka Pygmies of Cameroon ...... 166 7.2. Tracing a history of marginalisation of Batwa ...... 167 7.3. The role of World Bank and international actors in conservation processes of ethnic minority lands ...... 169 7.4. Factors affecting Batwa’s effective participation in public affairs ...... 171 7.4.1. Poverty ...... 172 7.4.2. Exploitation by dominant groups ...... 174 7.4.3. Landlessness ...... 175 7.4.4. Negative attitudes ...... 177 7.4.5. Stereotype and misconception about the Batwa ...... 178 7.4.6. Derogatory labels demeaning the Batwa ...... 179 7.4.7. Discrimination in health care services ...... 180 7.4.8. Diverse interventions with limited tangible deliverables to the Batwa ...... 181 7.4.9. Illiteracy ...... 182 7.4.10. Denial of rights ...... 184 7.4.11. Rights to the same standards of justice and treatment as others ...... 185 7

7.5. Systemic discrimination and participation in public affairs ...... 186 7.6. Conclusion ...... 187 CHAPTER EIGHT ...... 189 THE ROLE OF THE UGANDAN GOVERNMENT IN PROTECTING AND PROMOTING THE PARTICIPATION RIGHTS OF ETHNIC MINORITIES (BATWA) ...... 189 8. Introduction ...... 189 8.1. Uganda’s obligations under human rights instruments and bodies ...... 190 8.2. National mechanisms and frameworks to address the issue of ethnic minority ...... 193 8.2.1. The Uganda Human Rights Commission ...... 195 8.2.2. The Equal Opportunities Commission ...... 196 8.2.3. Development of National Social Protection Policy Framework 2013 ...... 198 8.2.4. Development of the National Land Policy, 2013 ...... 198 8.3. Uganda Government-World Bank actions and Batwa’s evictions ...... 200 8.4. Enactment of the Institution of Traditional or Cultural Leaders Act, 2011 ...... 203 8.5. Uganda’s commitment to implement recommendations by human rights bodies ..... 205 8.6. Conclusion ...... 208 8.6. Conclusion ...... 208 CHAPTER NINE ...... 209 MODELS TO FACILITATE THE PARTICIPATION OF BATWA IN PUBLIC AFFAIRS ...... 209 9. Introduction ...... 209 9.1. Mechanisms for promoting participation by Batwa in public affairs ...... 211 9.2. Effective community governance model ...... 212 9.2.1. Elections ...... 214 9.2.2. Consultation ...... 217 9.2.3. Establishing associations ...... 222 9.3. Techniques of public participation for ethnic minority ...... 225 9.4. Levels of public participation ...... 227 9.5. Public participation continuum ...... 229 9.6. Ladder of participation ...... 230 9.7. Conclusion ...... 232 CHAPTER TEN ...... 233 SUMMARY, RECOMMENDATIONS AND CONCLUSION ...... 233 10. Introduction ...... 233 10.1. The level of participation in public affairs of the Batwa in Uganda ...... 234 10.2. The attitude of the Batwa towards participation in public affairs ...... 237 8

10.3. The role of the government of Uganda in effective participation of the Batwa in public affairs…………………………………………………………………………………...... 240 10.4. Modalities for the Batwa’s effective participation in public aAffairs in Uganda ...... 245 10.5. Lessons learnt ...... 247 10.6. Generation of new knowledge ...... 249 10.6.1. Capacity-building ...... 252 10.6.2. Empowerment ...... 253 10.7. Public Participation Model for Batwa ...... 255 10.8. Generalisations ...... 257 10.9. Recommendations to the government of Uganda ...... 258 10.10. Recommendations for non-state actors ...... 261 10.11. Conclusion ...... 264 Bibliography ...... 266 Intrviews…………………………………………………………………………………………..301 List of Cases……………………………………………………………………………………...306 Human rights insruments………………………………………………………………………..306 Annex 1………………………………………………………………………………………….…308 Annex 2 ……………………………………………………………………………………...…….309 Annex 3………………………………………………………………………………………….…310

ABBREVIATIONS AND ACRONYMS

ACHPR African Commission on Human and Peoples Rights ACODE Advocates Coalition for Development and Environment ACFC Advisory Committee on the Framework Convention ACRWC African Charter on the Rights and Welfare of the Child ADRA Adventist Development and Relief Agency AICM African International Christian Ministry APRM African Peer Review Mechanism AU African Union AWF African Wildlife Foundation BDP Batwa Development Programme BMCT Bwindi Mgahinga Conservation Trust

CAURWA Communauté des Autochtones Rwandaises (Community of Indigenous Peoples of Rwanda) CERD Committee on the Elimination of all forms of Racial Discrimination CI Conservation International COPORWA Communauté des Potiers Rwandais (Community Organisation of Rwandan potters) CRC Convention on the Rights of the Child CSCE Conference on Security and Cooperation in Europe CSOs Civil Society Organisations

DCDO District Community Development Officers DRC Democratic Republic of the Congo EAC East African Community EALA East African Legislative Assembly ECHR European Court of Human Rights ECOSOC Economic and Social Council

ECMI European Centre for Minority Issues

EOC Equal Opportunities Commission FCNM Framework Convention for the Protection of National Minorities GDP Gross Domestic Product GEF Global Environment Facility HRC Human Rights Council IACHR Inter-American Commission of Human Rights ICCPR International Covenant on Civil and Political Rights ICERD International Covenant on the Elimination of Racial Discrimination ICESCR International Covenant on Economic, Social, and Cultural Rights ICFR Impenetrable Central Forest Crown Reserve ICG International Crisis Group IEMI Independent Expert on Minority Issues ILO International Labour Organisation KIDDP Karamoja Integrated Disarmament and Development Programme LC Local Council MBIFCT Mgahinga and Bwindi Impenetrable Forest Conservation Trust MDGs Millennium Development Goals MGLSD Ministry of Gender, Labour, and Social Development NAADS National Agricultural Advisory Services NDP National Development Plan NEPAD New Partnership for Development NGO Non-governmntal Organisation OAU Organisation of African Unity OBC Ortello Business Company OECD Organisation for Economic Cooperation and Development OSCE Organisation for Security and Cooperation in Europe PEAP Poverty Eradication Action Plan

PCIJ Permanent Court of International Justice PRSPs Poverty Reduction Strategy Papers TNC The Nature Conservancy UAE United Arab Emirates UDHR Universal Declaration of Human Rights UHRC Uganda Human Rights Commission ULA Uganda Land Alliance UN OHCHR United Nations Office of the High Commission for Human Rights UN United Nations

UNCRC UN Convention on the Rights of the Child UNDP United Nations Development Programme UNESCO United Nations Educational, Scientific and Cultural Organisation UNOHCHR United Nations Office of the High Commission for Human Rights UN-REDD United Nations Programme on Reducing Emissions from Deforestation and Forest Degradation UOBDU United Organisation for Batwa Development in Uganda UPR Universal Periodic Reviews US United States (of America) UWA Uganda Wildlife Authority WCS The Wildlife Conservation Society

WGM Working Group on Minorities WWF Worldwide Fund for Nature

ABSTRACT Uganda has plausible legal and policy mechanisms which enable its citizens to engage in public participation. However, ethnic minority communities, such as the Batwa of south-west Uganda, have consistently been left out and increasingly excluded and marginalised – socially, culturally, politically, and economically – from public participation at all levels of public engagements. This thesis, therefore, focuses on marginalisation of the Batwa from public participation in Uganda. Originally, the Batwa lived and got their sustance from the forest. However, their livelihoods intensely changed for the worst following their eviction, in 1991, from their traditional land by the Ugandan Government in favour of conservation projects to protect mountain gorillas and forest conservation. Today, the Batwa live as as a despised, excluded, and marginalised community. Their culture, identity and language have come under an increasing threat of extinction.

It is surprising that in the 21st century, with a plethora of human rights instruments, Batwa, for the last two decades, have experienced and continue to face human rights violations, including lack of effective participation in public affairs. In the contemporary society underlined by human rights and rule of law values, there are increasing demands to involve citizens, particularly ethnic minorities, in public affairs. Such demands have laergely dominated the governance discourse and become the litmus test for any democratic process at state level. This has given rise to theories such as minority democracy theory and participatory democracy theory that underpin this study. The common usage of representative democracy (minority democracy theory) largely practiced in Uganda in most governance structures, has tended to facilitate multiple marginalisation of Batwa. In this thesis, I look at the non-participation of the Batwa in public affairs and how it is associated with their current state of affairs that is characterised by poverty, eviction from their ancestral land, lack of social services, and the day-to-day gross human rights violations they are subjected to. These are juxtaposed with democratic theories and principles of effective participation, inclusion, and consultations.

The thesis also discusses factors responsible for the current situation of the Batwa, despite the fact that the Ugandan legal and policy framework enshrines provisions that aim to secure human rights of ethnic minorities, notwithstanding obligations derived from binding regional and international legal framework and instruments, which confer on Ugandans tripartite

13 responsibility to respect, protect, and fulfil the rights of the Batwa1. This work also discusses reasons why a various interventions, both from national and international, seeking to help Batwa, have not achieved their intended objectives , rather, in some instances such interventions have contributed to the further marginalisation of the Batwa.

To understand participation rights of the Batwa in public affairs in Uganda, the study utilised a qualitative research approach, using personal interviews, focused-group discussions, and participatory observation as research methods to collect data. The research shows that abscence of reliable opportunities to empower the Batwa in public participation, particularly, in decision-making structures at all levels of public engagements alienates Batwa and leads to their disengagement from available participatory processes. The study concludes that the government of Uganda has not done much in achieving its tripartite obligation of responsibility2 on Batwa issues.

The study provides a public participation model that should be adopted by the Ugandan government (the Ministry of Local Government structures) as an essential effective public participation strategy. The model encourages capacity-building of Batwa and thus empowering them to engage with government bureaucracies and structures and to negotiate new and effective “social contract” with authorities, based on their needs. Only when reliable opportunities that encourage and facilitate public participation are practised, will then Batwa be able to effectively participate in public affairs to effect, and “own” development and decision-making processes.

1See Office of the UN High Commissioner for Human Rights https://www.ohchr.org/EN/Issues/Pages/WhatareHumanRights.aspx; the same concepts are expounded in General Comment 21 of Committee on Economic, Social and Cultural Rights. 2 International human rights law lays down obligations which States are bound to respect. By becoming parties to international treaties, these are responsibility to respect, to protect a nd to fulfil human rights. 14

CHAPTER ONE

INTRODUCTION: BACKGROUND AND CONTEXT OF THE STUDY

1. Introduction

The Contemporary international system for treatment of ethnic minority groups has evolved over the last decade to give space to issues related to traditional injustice, especially those faced by ethnic minority groups (Kymlicka, 2008: 1). This thesis sheds light on these issues such as discrimination, exclusion, and equality, by focusing on the ethnic minorities in Ugnda, with specific attention devoted to how they engage in public affairs. There are diverse socio- historical origins of ethnic minority concerns in different parts of the world. It has been observed by the United Nations Office of the High Commission for Human Rights (UNOHCHR), nearly every United Nations member states have ethnic minorities in their territories that are characterised by their own ethnic, linguistic or religious identity that distinguishes them from other groups (UNOHCHR, 2009: 4). However, what is common to most countries in terms of promoting and protecting the rights of ethnic minorities is the lack of political will by the state actors to address the plights of such communities in their national border (Barten, 2016: 116). UNOHCHR further observes that treatment of these minorities varies from one country to another. It has been noted that harmonious relations between ethnic minorities and dominant groups with whom they live; respect, promotion and protection of each group’s identity and interests; are critical for effective participation of all citizens in public affairs (UNOHCHR, 2009: 4).

This study focuses on the Batwa found in South Western Uganda in the districts of Kabale, Kanungu, and Kisoro; and speciafically looks at the right to effective participation in public affairs. However, owing to the fact that Batwa issues (or ethnic minority situations) are not unique in Uganda, but grather a continental challenges, lessons, experiences, and best practices will be borrowed from other countries with similar situations to engance the understanding of the study problem. In light of this, chapter one offers the background, Batwa’s historical context, and perspectives of ethnic minority in Uganda. It also outlines the general introduction of the thesis: looking at the “problem” of the study, objectives of the study, limitation and delimitation, research methodology, and thesis synopsis.

1.1 Background to the study

Although human rights challenges are prevalent on all continents, the reality is that there are groups that are more vulnerable than others. For instance, in some African countries (as discussed in chapter five – sections 5.6 to 5.10), ethnic minority communities often are left out in national “development” models and and thus end up being victimis of mainstream development processes, policies, and principles. Derso (2010: 134) observed that in some countries, including Botswana, Burundi, Cameroon, Congo - Brazzaville, Uganda, and Rwanda,; where there have been attempts to “develop” ethnic minorityhas either been misguided and or destructive for the lives of the community; as well as excluding ethnic minority groups from development strategies that would enhance their economic improvement. In some of these countries, the settled agricultural schemes are taken as ideal forms of development, and consider traditional means of livelihood for the indigenous ethnic minority communities such as nomadism, fruit and hunter-gatherers as “backward” and “primitive” (Holton, 2016: 17). In Tanzania, the government introduced a policy aimed at banning traditional cattle raring in preference of “modern” livestock farming practises (Tanzania Ministry of Livestock and Fisheries 2018). In Nigeria, the Ogoni people have been denied access to rich oil resources found on their land and they have found themselves extremely vulnerable (Welch, 1995: 635).

Indigenous ethnic minority communities, particularly in Africa, often are unfavourably and negatively affected by prospective economic development projects. One examples related to Uganda’s Batwa is the World Bank and the European Fund project in 1967 in Rwanda and Uganda, which supported plans to replace Batwa’s ancenstral land in Gishwati Forest in Rwanda with cattle and potato farming (WRM, 2000: 4); and in Uganda the Batwa’s land with a national park (Kenrick, 2000: 9). In Rwanda for instance, in 1982, World Bank had estimated fewer acres of land, about 12000, but later discovered that more land was need and thus had to encroach on the land that belong to the Batwa by about 9500 acres. In the end, the last forest people in the equatorial forests of Africa, indigenous ethnic minority Batwa, had been removed from their dwelling Gishwati Forest (Griffiths & Colchester, 2000). This project – by two world bodies that supposedly should be promoting and guarding the rights of vulnerable communities – as per regulations guiding their granting procedures and project implementations (World Bank, 2001) including ethnic minorites – was unfairly 16 implemented, discriminatory, and did not consider the devastating effects of such displacements.

In Tanzania, since 2010 to date, the Masaai pastoralist community in Loliondo district are slowly being evicted from their ancestral land by the government to create space for United Arab Emirates (UAE) Ortello Business Company (OBC) whose interest is in hunting and trapping wildlife in the disrict. Equally so, for Burundi, Cameroon, the Democratic Republic of the Congo (DRC), Kenya, Namibia, and Uganda, the indigenous ethnic minorities had to be dispalced from their traditional lands to pave the way for development programmes ranging from hydroelectric dams, agricultural programmes, game reserves, and tourism industries. This development led to the dispossession of ethnic minorities’ natural resources, such as lands and forests, resulting in their impoverishment, threatening their cultures and survival as a community (Kabananukye, 1996: 34). According to Tapiwa and others (2017), argue that western oriented economic policies and development projects adopted and facilitated by African governments influence such patterns of land grabbing and evictions of indigenous people as well as their land holdership. In light of this, African governments need to protect indigenous against such projects that render their citzens vulnerable. Furthermore, borrowing a leaf from Namibia in a recent national land conferences3 that seems to be prioritising indigenous ethnic minority issues, govenments, particularly inAfrica, need to get back to the drawing table and rectify what went long in regard to issues of ethnic minorities in their respective countries.

In most African countries development initiatives that take place in the ancestral lands of the ethnic minority communities are imposed on them by their own governments and not planned with them, resulting in negative impacts on communities. According to Pitt (1976:7), development should come from below, involving the local people, if they are to benefit from the proceeds of development. He argues that the local community should be active participants in planning and execution processes of the development projects, seeking to benefit community. He further posits that such processes should take into consideration the

3 The just ended second land conference in Namibia has put the ancestral land discourse back on the national agenda after an initial reluctance to address the issue due to policy makers’ evident (and arguably legitimate) fears of destabilizing the constitutional objective of an inclusive economy (including unfettered property rights) and ensuring security of tenure for foreign investors who are largely beneficiaries of the land grabs in the aftermath of displacements of indigenous people. 17 culture of the ethnic minorities occupying the land to be used. In reality, sustainable development is a process and not an event and should not be imported; it thrives on people’s soci-economic and political fabric (UNECA, 2011: 1).

While considering the status of indigenous ethnic minorities in Africa, the African Commission on Human and Peoples’ Rights (ACHPR)4 (2006: 8) observed that exclusion of ethnic minorities from effective public participation in development proceses within their countries, among other reasons, is a key factor responsible for their miserable situations. Preliminary research indicates that there is evidence that the Batwa in Uganda are victims of such circumstances. According to studies condiucted by different institutions, such as, the Ministry of Gender, Labour and Social Development (2017: 15); Advocates Coalition for Development and Environment (ACODE) (2006:14); and Kabananukye (2011: 22) argues that the Batwa’s situation in Uganda is worrying; the Batwa endure lower quality of life than the dominant communities surrounding them. It is alleged that Batwa have not participated (if they have, it has not been effective) in the decisions leading to their evictions and the proposed plans for their development as suggested by the government of Uganda (Tindifa and Babuuzibwa, 2011: 29). So, there is lack of regard for the views of these communities in public policy processes affecting their lives.

The questions, therefore, that arise include: What are the explanatory factors behind the non-participation of the Batwa in public policy processes, and in discussions about their fate? If they are excluded from participation, what are the underlying reasons for exclusion, and for whose benefit? Where they choose not to participate, what are the reasons for their lack of participation? What is the precise nature of public policy engagement in Uganda, which could have led to a differentiated approach towards groups such as the Batwa, and how does this measure up against the Ugandan Constitution? This study found common factors such as negative stereotypes, poverty, derogatory labelling and name calling, illiteracy, exploitation, capability issues, marginalisation, and discrimination, among other things responsible for inadequate participation of the Batwa in public affairs. These, as well

4 The charter is commonly known as Banjul Charter of 1981 on the basis of the fact that it was adopted in Banjul, The Gambia. 18 as other factors and questions that have long gone unanswered at different levels by various actors will be discussed in detail in chapters seven and eight.

In Uganda, as in many countries, no official and clear meaning of ethnic minority, and no clear contextual criterion that can be used to identify ethnic minority communities. Nevertheless, it is possible to use general criteria as enshrined in regional and international mechanisms, including those given by the United Nations Statistics Division – Demographic and Social Statistics5, to identify such groups that could be described as ethnic minorities. The 1995 Constitution of Uganda (National Objectives and Directive Principles of State Policy, sections ii and iii) recognises the ethnic diversity of Ugandans. These provisions enshrine provisions that seek to ensure that all people are integrated, taking cognisance of their orgin, background, as well as socio-economic diversity. In respect of this, constitutional provision, specific strategies must be put in place in promoting a culture of tolerance and a cohesive society.

The Third Schedule of the Ugandan Constitution of 1995 recognises all tribes who were in existence at the end of colonisation as indigenous. Article 36 of the constitution provides for the protection of rights of ethnic minorities and makes it clear that their participation in decision-making structures should be adhered to. Further, article 32 provides for the adoption of affirmative action to facilitate processes seeking to address historical injustices and improve fair representation of marginalised groups on all public issues. This study will, among others, explore the extent of the application and enforcement of the Ugandan constitution in that regard.

The “National Objectives and Directives of State Policy” of the Ugandan constitution (sections ii and xiv) further mandate the state to implement its tripartite obligations based on democratic principles of equality, to enhance effective participation of citizens in public affairs. Fundamentally, equality principles, as envisaged by this state policy is of formal and substantive nature. The formal equality calls for the same treatment for everybody, whereas the substantive equality acknowledges differential treatment in order to attain effective equality (Henrard, 2007: 35). While this thesis will focus on equality in its broader sense,

5 See https://unstats.un.org/unsd/demographic/sconcerns/popchar/popcharmethods.htm#E 19 much attention will be placed on substantive equality for the Batwa. This is because substantive equality requires the efforts of the government to come up with mechanisms and frameworks to facilitate such approaches.6 The aforementioned provisions have direct relevance to the ethnic minority community in Uganda, and whether the government has used these frameworks, in particular the constitutional and legal provisions, to facilitate the inclusion of minorities in public affairs. In this regard, the thesis will explore more precisely the reasons for incongruence between constitutional provisions, the regional and international legal frameworks in relation to public participation practice in Uganda.

1.2 Historical perspective of ethnic minority issues in Africa

1.2.1 Pre-colonial Although ethnic minority groups are slowly getting recognition in Africa, minority rights issues have for long been ignored and some of the challenges are linked to Africa’s long history (Samia, 2003: 1). Therefore, to undertake such a study about the ethnic minority issues in Africa without looking at its historical contexts will be to barely scratch the surface of the problem. Until European colonisation of Africa in the 19th century, African societies were not largely demarcated by ethnic boundaries (Ndege, 2009: 3). States obviously existed, but their boundaries were often changing as a result of wars, conquest and migration (Mbanaso, 2010: 6). People inhabited smaller territories, and had mostly smaller population sizes. According to Makau; “the common feature to all pre-colonial African societies was their ethnic, cultural and linguistic homogeneity – a trait that gave them fundamental cohesion” (Makau, 1995: 340).

One of the features of a State in Africa is its deep ethnic diversity. Although the population figure of ethnic minorities in Africa is debatable, if the estimated number of languages and dialects spoken in Africa is anything to go by, the continent’s 54 countries are home to about 2 000 distinct ethnic groups (Lodhi, 1993: 1). 7 Legum (1985: 17) observes that nearly all African states have a semblance of rich linguistic, cultural and religious multiplicity. Comparatively speaking, African states are home to many ethnic minority groups in

6See Committee on Economic, Social and Cultural Rights, general comment No. 20 (2009) on non-discrimination in economic, social and cultural rights; also see A/HRC/EMRIP/2012/4, para. 87. 7 The estimated 6,200 languages and dialects in the world, 2,582 languages and 1,382 dialects are found in Africa. Some languages in Africa are spoken by more than 20 or 30 million people, e.g. Hausa-Fulani, Oromo/Galla and Swahili. 20 comparison to other states in most parts of the world (Lodhi, 1993: 2). With the exception of some countries such as Lesotho, Somalia, and Swaziland, which have close to homogeneous ethnic communities, some states are more diverse than others, for instance, Nigeria has over 100 ethnic groups; Sudan, Chad, and Cameroon each have more than over 50 ethnic groups8.

Africa’s pre-colonial communities exhibited diverse historical experiences, in terms of political and social structures, and these can be categorised into four patterns of socio- political arrangements. First, there were communities that formed around empires or kingdom; these included the Buganda of Uganda, Ashanti of Central Ghana, and the Zulu people ( abantu ethnic group of Southern Africa and the largest ethnic group in South Africa), amongst others. They had their own political structures involving administration, law making and enforcement, centred on a cultural head, emperor or King. People had a common sense of belonging and respected the system, even if they were from diverse ethno-cultural backgrounds (Chinedu, 2000: 23).

In the pre-colonial era, there were communities of smaller size and territorial jurisdiction, homogenous in nature with centralised and hierarchical socio-political structures and traditions. They had chiefdoms and kingdoms of various kinds, examples are Ankore, Toro, Hausa, Delta, Tswana, Ndebele, etc. The socio-political organisation was centralised and hierarchical, which provided their individual members with a shared sense of belonging (Cheikh, 1987: 89).

Another category is the community with decentralised social and political structures. These were segmentary in nature and more or less stateless societies but divided into small village units. Such communities were characterised by social formations, with essentially horizontal relationships paged around political structures that gave authority village heads some degree of control. The age factor was very central for the society. The village elder, therefore held centre stage of authority in political structures. Delegation of power to chiefs was limited or non-existent. Examples include Lou, Oromo, Igbo, Nuer, Kikuyu, and Akamba (Henry, 1994: 24).

8 See World Directory of Minorities (1997) 494. Also see R Cornwell ‘Somalia: Fourteenth Time Lucky?’ (April 2004) he argues that Somalis constitute one ethnic group, however, they are divided along clan lines. 21

The fourth group involved non-settled nomadic polities – hunters and fruit-gatherers or cattle herders – leading a pre-modern way of life with no identifiable political structure (Chinedu, 2000: 23). This group did not have a homogeneous ethnic character and they had no organised political structure and hence no sense of belonging to a distinct community. Chinedu further observes that the only arrangements that brought them together were social connects like livelihood and social gatherings. For instance, among the pygmy people of central Africa, the hierarchical power structures that often symbolise institutional representation is entirely new to the society.

1.2.2 Colonial time

When colonialists arrived in Africa, the dignity of Africans was never respected, and thus respecting their dignity, as well as rights of indigenous peoples was simply unlikely. It is no wonder that violations of human rights were widespread during the colonial era (Anghie, 2005: 21). In some countries, like Ghana, civil and political rights were certainly not practised under colonial rule. Bing (1968:13) observed that British colonial government refused the inclusion of human rights provisions whinin Ghana’s constitution of 1957 (commonly known as the Independence Constitution) as proposed by Kwame Nkrumah, the country’s first President. Later, the British initially opposed the UN adoption of the Universal Declaration of Human Rights (UDHR), sensing that such an instrument at international level would oblige the colonial masters to implement human rights in their colonies (Howard, 1987: 9).

Colonisation and its processes not only changed the map of Africa, but also unleashed unprecedented changes such as the hastily demarcated borders and the resulting clashes between religions and ethnicities, which have led to the underdevelopment of, and conflict, on the continent. One impact that cannot be forgotten from the brutal conquest of Africa by colonial masters was dividing the continent into small units (called States) during the scramble and partition conference of Berlin between 1884-1884. The Berlin conference established new borders within Africa. As Adebajo (2010: 17) argued, these borders were forced onto people on the basis of divide and rule, and are partly the causes of current conflicts on the continent. Adebajo (2010: 17) further argued that such conflicts on the continent are caused by “Bismarckian borders”, established by colonial masters with

22 intentions of enfolding communities with no sense of cultural belonging, but more so without shared systems of settling their own disputes. As Adebajo (2010: 17) further postulated that “the human chemistry between those groups has not necessarily had time to become congenial” This resulted in combining communities that were originally different socially, politically, economically and culturally, thus interrupting the autonomous arrangements of these societies, depriving them their freedoms and subjecting them to “foreign” political arrangements and structures (Brownlie, 1979: 6).

However, in order to advance their colonial ideologies and agenda, colonial masters needed support from the local authorities. As a result, in some communities, a few people were “raised” to a higher status in relation to others in terms of being treated and recognised as “more human” or to what Kwado (2012: 74) calls “more prone to adapting to European behaviour, lifestyle and mannerisms than others of their kind”. For instance, the famous case on the African continent that is always noted as unique for the 19th century is the manner in which Belgian colonial authorities treated the numerically-small Tutsis as genetically and physically superior over the numerically-superior Hutus who, as a result, became minorities – in the sense of marginalisation, discrimination, and access to national resources – under international law (Uvin, 1999: 253). They were therefore, taken as a “privileged group” over other “less human” groups. Thus, as Mamdani (2001: 21) noted, the policy of “pick and choose” and “divide and rule” became the order of the day.

In light of this, communities, which colonial masters considered not politically and socially organised, and did not live a formalised lifestyle, were seen as lesser human beings that still needed development. Such communities included hunters, fruit-gatherers and nomads, where pygmies (Batwa), the San in Southern Africa; the Hadzabe in Tanzania; and the Ogiek, Sengwer and Yakuu of Kenya (Kwadwo (2012: 74). As Chinendu (2000: 24) observes, these communities were sidelined because they were not taken as inferior and of less economic interest to colonialists. But also there could have been ulterior agenda to eliminate those communities seen as potential threat and retain docile ones who would not resist the colonial expansionist agenda. The “divide and rule” system encouraged unequal and horizontal patterns of relationship within different communities, between particular groups, as well as vertical releations with the State. This system ranked groups members

23 differently as “advantaged” or “disadvantaged”. These categories were based on their ethnicicit1y; minority and majority based on their access to resources like education, jobs, infrastructure provided by the colonialists (Jinadu, 2007: 15).

The advancement of economic prospects was the major goal of colonialists coming to Africa. As a result the governance of states resulted into an uneven share (unequal distribution) of economic advantages. The population that lived in or near centres of economic activity and administration had more opportunities including greater exposition to administrative power; access to economic activities;, and accessing social service delivery, including education; than people who were settled far from the centres of power or in rural areas (Welsh, 1994: 477). Surprisingly, whenever economic resources were found on these peripheral lands, colonialists used these highly recognised and politically structured communities, as indirect rule method, to evict and drive off the disadvantaged to relinquish control over their lands; this turned them into squatters in other areas (Barume, 2004: 363). Such groups include Masaai, Ogiek and Endorois of Kenya, San in Botswana, and Basongora of Uganda. In some instances, in the communities whose lands were unproductive, a colonial policy was given to turn them into land reserves. In either situation, if the colonialists got interested in the land, the inhabitants had to be evicted from their lands and begin a new life as “reserve residents” or “squatters”. This was done in order to give the identified lands to support colonial settlers. Some of these communities that experienced such evictions, today fall into the category of ethnic minorities. Okoth-Ogendo (1991: 58) quotes a colonial agent stating:

“I am afraid that we have got to hurt their (the natives) feelings, we have got to wound their susceptibilities and in some cases I am afraid we may even have to violate some of their most cherished and possibly even sacred traditions if we have to move natives from land on which, according to their own customary law, they have an inalienable right to live, and settle them on land from which the owner has, under that same customary law an indisputable right to eject them

Such a practice left communities more vulnerable and this became the starting point for the current situations of such ethnic groups’ suffering as can be seen with the Endorois community in Kenya and Batwa in all the countries they are found.

1.2.3 Post-colonial time Most African countries became independent in the 1960s on a surge of optimism and jubilation. The new governments set about “modernising” their societies without an effective way suitable for their societies at the time, but rather followed the colonialists’ model. This automatically affected indigenous communities and accounts for what ethnic indigenous minorities go through. This acculturation did not work as Kwadwo (2012: 495) postulates that these models were to help colonialists to achieve their ends, which was not suitable for African society since, for colonialists, the African state was essentially an agency for control and extraction. There was never any merging of state and society as common expressions of shared values. It has been argued by Kwado (2012: 76) that “modernisation theory” was formulated to ensure that colonial masters are not blamed of the negative effects that would later be felt by people as a result of the exploitation and plunder dispensed on natives”, as well as for colonial masters to act as the “new redeemers”. Before long, however, jubilation of the early 1960s turned sour as governments started to introduce policies that did not favour their citzens.

The Main historical mistakes committed by the colonial masters included some unpopular policies of capitalism that sought to “bundle” and “integrate” communities as homogenious groups to form independent states in Africa. As Chinedu (2000: 32) observes, “at the time of independence, African leadership pursued this policy by seeking to consolidate communities of people into the nation-state”. This argument is further held by Deng (1997) in his observation that “colonial legacy stripped Africa’s people of the dignity of building their nations on their own indigenous values, institutions, and heritage… making modern African state a product of Europe, not Africa”. But the question that has remained unanswered is how to form a nation-state and forge a sense of citizenship among people from disparate ethnic groups without violating human rights? And indeed this was not appropriate as it did not consider factors, such as inequalities (in terms of population strength) among communities, which often rendered inferior communities to be dominated by relatively stronger ethnic groups in the affairs of the state (devide and rule approach). As a result, it became, “internal colonialism” for most ethnic minority groups (that also were inferior) resulting into some groups being treated as “second-class citizens”. The same situation can be seen in the current situation in South Sudan and the state of civil unrests that are ethnic

25 oriented. In such situations, the ethnic minority communities continued to struggle for recognition, including of their human rights, such as land rights. While some of the communities have remained on land reserves cut out from their ancestral lands by the colonial authorities, such as Ogiek in Kenya, such communities continue to be considered “backward and inconvenient entities” – the Batwa in Uganda – that need to be forcefully integrated (assimilated) or stripped off the citzeniship because their presence pose a challenge to national development in the context of occupying some lands that would be utilised for national projects (Kwadwo 2012, 78). Kwadwo continues to observes that in some countries, such as DRC and Rwanda, “some have been killed, dispossessed and/or forced to assimilate in the process of nation-building and national economic growth.”

The legacy of ethnic division in current African states has been propelled by various factors including such historical marginalisation and mistreatment of a few ethnic groups by the state structures and minimal benefits from the developments (particularly in economic terms), that have left ethnic minority communities more vulnerable. Many African states, including Cameroon, Gabon, Ghana, Liberia, and Uganda, continue to hold the view that the minority “problem” is essentially a “European issue” and are reluctant to admit the fact that Africa’s context and situation does not favour ethnic minority concerns.9 Whereas African leaders put across such claims, many indigenous ethnic minorities across Africa continue to suffer from the lack of recognition from their states (as discussed in chapters seven, section 7.11 and ten, section 10.6 – the most pressing issue for ethnic minorities is recognition by their governments).

1.3 General situation of ethnic minority in Uganda

Uganda got independence in 1962 from British rule. Since independence, Uganda has been plagued with a series of conflicts, most rooted in ethnic and tribal tensions, resulting in coups and overthrowing of presidents. The bad tradition that was inherited from colonialism was

9 See the response of Ambassador of Ghana before the African Commission on Human and Peoples’ Rights, in response to the question as to whether there was domination of one people by another, ‘Well, I must say the obvious answer in the case of Ghana is no. There is no domination of one people, one ethnic group against the other. That is quite obvious’, (14th Session ACHPR Examination of State Report of Ghana December 1993). Similarly, Gabon reported to the UN Human Rights Committee that ‘there is no problem of minorities in Gabon [because] the population is fully integrated socially’, Committee on Civil and Political Rights (CCPR)/C/128/Add.1, 14 June 1999, para. 50. See CCPR commentary, Ghana, Liberia and Cameroon, denying minority issues but advocated for integration and assimilation of such groups. 26 taking ethnic sides, thus every president appears to use “winner takes it all” approach by making his ethnic group well positioned and privileged. This has accelerated tensions in Uganda and has led to mistreatment and expulsion of other minority groups like Rwandan refugees in 1982-3 and expulsion of the Indian minority community in 1972, by the then President Idi Amin (Kasozi, 1994: 119). The APRM Panel of Eminent Persons while reviewing Uganda’s progress towards managing diversity, noted that Uganda, like many states in Africa have had challenges of managing diverse ethnic groups. Their view is based on the fact that many communities were forced into and arbitrarily merged by colonisation to form a “hybrid” society. In the words of the Panel notes that:

“This forced integration “coupled with state authored systems of discrimination and inequality has led to a long history of agitation over the right to self-determination by dominated, oppressed and marginalized groups of which minorities constitute a special group” 10.

As a matter of fact, since independence, Uganda’s politics has been characterised by ethnic inclinattions, including regional (geographical) divisions, strongly and negatively affecting mainly northern and southern parts of the country (Nyombi and Kaddu, 2015: 1). This has been evident in all the previous political regimes, including the current National Resistance Movement government, which used the ethnic and cultural diversity as a means to further divide and rule the country. Such divisions have resulted in cycles of violence, such as Acholiland war from 1986 to 2006, West Nile Bank Front war from 1998 to 2001, Uganda National Rescue Front II war from 1996 to 2002 (Nyombi and Kaddu, 2015: 6). These wars, and many others, started based on discontents of some ethnic groups claiming that they subdued and marginalised while other ethnic groups were favoured and enjoying benefits of the then governments. The effects of these wars include general deterioration of livelihoods and deplorable socio-economi settings that have not been addressed effectively to date, despite numerous development programmes that have been seconded and implemented in these regions.

10 APRM Country Review Report No.7, January 2009 at p.x to xi 27

Uganda, with about 39 million people11 is populated by diverse ethnic groups (65 recognised indigenous communities) However, Uganda’s cultural multiplicity has presented more liabilities than assets to the nation. This has been, partly, because, the ethnic diversity is not well managed, thus posing inter-and intra-communal tensions, that have sometimes gone violent, among the population. According to the Uganda Human Rights Commission (2009: 137) and International Crisis Group (2012), different previous political regimes have largely manipulated ethnic differences in the country to achieve their personal political gains, thus creating regional disparities and inequality in power-sharing, particuraly, political positions, and scrambling for resources and social services.

Due to diverse and inadequate management of ethnic mistrust, tensions between groups, have resulted in violent conflicts. For instance, the 2009 conflict in Bunyoro region between Banyoro-Bakiga-Bafuruki over land and sharing of political power.; the Tororo 2005 conflicts between Itesot and Japhadola over district status; and the famous Kayunga riots of 2009 between Baganda and the central government; are examples of ethnic clashes that came in as a result of insufficient means to manage the ethnic diversity in Uganda. In terms of exercising their freedoms, marginalised and inferior communities that lack resources and power to exert their rights, are always left out as well as suffer discrimination in terms of accessing social services and participating in public affairs. However, in responding to this, the government of Uganda is always on defensive noting that the plight of such marginalised communities is on nationl priority, even though this cannot be seen in practical terms of having substantive programmes geared towards addressing the problem. The government is on record for stating “that the situation of these groups and others in remote areas, is a priority to the national programmes ... continues to pursue the delicate path of accommodative dialogue with them, with a view to minimising any disruptive approaches to the lifestyle and traditions of the concerned communities”. (UPR, 2011: 13).

In the Ugandan context, (as well as in most sub-Saharan African countries such as Nigeria with over 250 ethnic groupings), the meaning of “ethnic minority” and its corresponding conatations is contested, and especially from the point of as to whether there is any particular group separate from other community that forms an ethnic minority status.

11 As per the Mid-year, 2018 estimation by Uganda Bureau of Statistics. Available at https://www.ubos.org/explore- statistics/statistical-datasets/6133/ 28

Wairama (2001: 8) observes that defining ethnic minority communities as well as their rights, has met resistance from Ugandan governments. This continues to be the case to date.Chapter eight of this study discusses what role the government has played on issues of Batwa, considering the mechanisms and commitments, including towards giving substantive protection to ethnic minority communities in Uganda. However, what is most disturbing is that the Ugandan government has stubbornly refused to explicitly recognise the rights of Batwa as an indigenous minorities and as a distinct ethnic minority group, despite constitutional provisions of articles 32 and 36. In the state report, submitted to the UN Convention on the Rights of the Child (CRC) in 1995, the Ugandan government stated that: “None of the ethnic groupings in Uganda is regarded as minor or indigenous for the purposes of article 30 of the Convention on the Rights of the Child”.

Wairama further observes that without considering other factors that characterise ethnic minorities, such as religion or language, numerical strength, access to political power, cultural or economic resources; it is important to appreciate that many of the considered numerically inferior groups posses about 17 per cent of the population. In light of this, many small groups arguably regard themselves, (though may do it erroneously), as ethnic minorities, in a narrow way of exclusively considering their population inferiority, rather than taking the path of regarding themselves as “disadvantaged”. It has often been observed that Ugandan authorities are not kin to address the affairs concerning ethnic minorities. Wairama (2001: 7) noted that “there is a resulting inertia in decision-making, especially concerning a definition of minorities and the allocation of scarce resources, all of which have been central to Uganda’s cycle of crises”. While Wairama expounds more on the issues of minorities in Uganda, his literature runs short of substantiating the criteria on which the classification and recognition of Uganda minorities could be based. This research will seek to fill this gap by contributing to the development of clear criteria based on both international standards and local context of Batwa for a better definition of minorities in Uganda.

Despite a plethora of studies by experts, such as Capotorti and Deschenes, at regional or international levels – the UN Sub-Commission for the Prevention of Discrimination and Protection of Minorities – and extensive deliberations in various forums, where issues of protecting ethnic minorities took a centre-stage, the quest for wo qualifies to be included in

29 minority definition; who is responsible for defining a minority; who are the beneficiaries of minority rights, have have not been fully accepted by some Ugandan government leaders. Consequently, the task of defining minorities in a Ugandan context remains elusive. This is because on one hand, in some cases, tendencies such as cultural elements present a bias towards “pre-determined” facts, rather than objective definitions. In other cases, and particularly taking the route of objectivity, the definition of ethnic minority is given by people who are neither minority themselves nor closely connected to minorities’ issues, moreover do not consult or involve minority in such discussions seeking to expound on the discourse of ethnic minority concept. As Wairama (2001: 9) observes, such people lack an experiential knowledge of the situation of ethnic minorities. This is a serious gap that has resulted in lack of recognition of Batwa in particular, and minority communities in Uganda and Africa at large. This study seeks to fill the gap by contributing towards identification of minority communities based on the local context; this will in a broader sense contribute to the international undertakings towards a definition of minority, hence improving the recognition of people who belong to ethnic minorities.

1.4 The Batwa of Uganda

Batwa, who are about 6 00012, are living in south-western Uganda mainly in Bundibugyo, Kabale, Kisoro, Kanungu, and Rukungiri districts. In the general scope, Uganda Batwa are part of the forest people (a segment of pygmies) found in Great Lakes region and parts of Central Africa region, particularly in Burundi, Cameroon, Central African Republic, Congo, the DRC, and Rwanda.

In Uganda, Batwa lived in Bwindi and Mgahinga impenetrable forests before the forests were turned into protected areas (Nzita, 1992: 5; Kabananukye and Wily, 1996: 13; Kidd, 2008:104). As Nzita (1992: 6) recounted, Batwa are believed to be remaining generation of an early race believed to have given African population when most of the continent was covered with forest. Despite Batwa being the first inhabintats of Bwindi and Mgahinga forests, in 1930, Batwa were evicted by the colonialist in order to conserve these forests (Namara, 2006: 42). Without compasation, Batwa moved to the peripheries of the forests,

12 As per the Uganda Bureau of Statistics population mini-survey of 2010 30 though continued getting sustenance from the forest resources, includingfruits, game meat, and wild honey (Namara, Gray and McNeilage, 2000: 13).

Following their evictions, in 1991, the Parliament outlawed human activities in the two forests as it officially gazetted Bwindi and Mgahinga forests national parks. This rendered Batwa’s presence and sustenance on forests illegal, and Batwa lost access to the forest, including resources they had enjoyed for long that formed a backborn of their economic, social and cultural livelihood (Kamugisha, Ogutu and Stahl, 1997:8). In light of these changes, Batwa started a new page in their lives namely to depend on the patronage of their neighbours for a living mainly for food, shelter, and casual employment. Today, Batwa remain a marginalised community in Uganda, living in small settlements, either as squarters on the land belonging to neighbours, or land that is held in trust for them by non- governmental organisations (NGOs) (Namara 2006: 39; Kidd, 2008: 67). What is more challenging is the fact that dominant ethnic groups, where Batwa live, , , continue to despise Batwa as “uncivilized” and of low status in community based on the historical background – namely being hunter-gatherer and forest dwellers – which has led to discrimination and marginalisation of the Batwa. (Kidd, 2008: 62).

Map showing the study areas where Batwa arelocated in South Western Uganda

Extraction on the left shows the protected area-the Bwindi Impenetrable National Park, the Mgahinga Gorilla National Parks, the Echuya Forest Reserve and its neighbourhood (Source: Mukasa, 2014: 5—adapted).The circled area on the map are the three districts of Kabale, Kanungu, and Kisoro where Bwindi, Mgahinga, and Echuya forests are found).

Traditionally, Batwa are semi-nomadic fruit- and hunter-gatherers of the mountain forests and lived in association with agricultural villages. They carried out hunting and beekeeping as their major economic activities. The Batwa maintained spiritual attachement to the forests, which they continue to believe that it is their birth right to have these forest for their livelihood, since they were given by God and thus belong to them.While in the forests, Batwa lived in huts and caves as their houses (Kabananukye, 2009: 20). With all these changes, both in fact and in law, Batwa have witnessed changing life patterns, rendering Batwa to engage in subsistence farming, which is a new lifestyle in their lives and thus challenging, and such self-employment activities like making crafts to be sold in the informal market sector has helped some Batwa.

Politically, Batwa’s attitude towards other groups is characterised by cooperation and mutual dependency (Kabananukye, 2009: 22). From childhood, Batwa learn to undertake communal responsibilities, thus defining roles for adults in terms social systems. Among the Batwa community, decisions are made by consensus, where each adult member of the group has a voice in the affairs of the community, while the community ensures law and order as a communal gift., Batwa have strong cultural and traditional beliefs, revere the forests as their home and place of worship and special places in the Mgahinga and Bwindi forests were preserved for ritual purposes. As Kabananukye notes, batwa consider it a religious obligation to live in harmony with the environment for fear of offending their ancestors and gods that may bring cursesto destroy their livelihood.

Batwa are characterised by nuclear families, organised along clusters. These families are often related either by marriage or ancestral background. They are also organised along clan systems that are very important in the determination of where one has to marry of not to marry. In any one cluster, the Batwa identify leadership based on: i) clan systems, especially based on Bakuru b’emiryango (head of clans); ii) ability to articulate their concerns and confront the aggressors. This is how for example, in Mukungu village, Kisoro District, Sande Bernard is one of their leaders; iii) special gifts such as healers, trusted herbalist, or traditional birth attendant; and iv) ability to confront Batwa aggressors. For instance, in Mikingo village, Kisoro District, John Rwubaka [a physically very strong man] is

32 both an elder and one of the long serving Batwa leaders. He became a leader because of his ability to confront and challenge (either peacefully or forcefully) non-Batwa aggressors who were perpetrating inhuman and degrading practices on Batwa in Kisoro. Thus the Batwa leadership differs from one cluster to another and such leaders are known by the Batwa themselves. Through consultations, the Batwa leaders were identified.

The Batwa carried out economic activities within the forest, and this never interfered with the patterns of the ecosystem. It has been actually argued that their existence in the forest facilitated resilience of some species especially those that were herbal, since they replanted and multiplied them for their own benefits. As such, the activities of the Batwa were not hostile to the environment (Kabananukye, 2009: 21).

Following their removal from the forest, Batwa are facing serious challenges including being food insecure. The main source of food for the Batwa is crop cultivation, only for those who have lands or are able to get some arable lands from landlords to pitch a garden out there. Other sources of food include working for dominant groups in exchange of a plate of food, r, trade with other farms, or use cash earned from employment as manual labourers, porters, cleaners, cultivators, tea collectors, brick-makersto purchase food at the market.

Some Batwa engage in low-paying activities likecultural dancing or selling handcrafts to tourists in order to earn a living. Namara (2006: 17) presents Batwa’s annual income at US$ 97 (US$ 0ꞏ26 per day), which is far below the average income of many ordinary Ugandans placed at US$ 362 per annum (US$ 0ꞏ99 per day).Considerable inequalities concerning social services in particularwith access to education, are apparent, with literacy rate among Batwa living in Kanungu District put at leass than12 per cent (OUBDU, 2007) compared with more than 75 per centamong the neighbouring non-Batwa populations(UBS, 2012; and Berrang-Ford et al, 2012: 28). These factors, combined with ethnic intorelance and discrimination of Batwa; with unsuccessful adjustment to transform livelihoods of Batwa, contribute to theplight of Batwa considering that they have been “highlighted as one of the world’s most vulnerable populations” (Harper, 2012).

1.5 Research problem/statement of the problem

Minority rights have remained ignored both in developed countries (for example, Roma in France, Germany, Hungary; Sami in Finland, Russia; Red Indians in Canada), and developing countries (such as Botswana, Burundi, Cameroon, DRC, Egypt, Kenya, Namibia, Nigeria, Rwanda, South Africa, Tanzania, Uganda). Some of these are presented in chapters seven, section 7.11 and ten, section 10.6. The UNOHCHR has observed that ethnic minority groups all over, experience similar challenges, such as lack of explicit and deliberate recognition, discrimination, and lack of effective participation in public affairs. Management of these challenges varies from one country to another based on the structures, systems and the political will to address the minority communities’ needs. In Uganda, the Batwa have predominantly remained a primeval society, caught up in the complex net of modernity. This has resulted in numerous negative impacts on their lifestyle that remain under-investigated and deserve to be scholarly interrogated.

This research study seeks to explore right to participation of Batwa in public affairs in Uganda. The focus on Batwa is based on the fact that the World Directory of Minorities identifies Uganda’s Batwa as one of the most vulnerable population groups in the world, with limited access to decision-making structures and generally left out in public issues. Much is said about the despairing state of Batwa in Uganda (Lewis, 2000:21; Tindifa and Babuuzibwa, 2011: 29; Wairama, 2001: 23; Kabananukye, 2009:17; ACODE, 2006:4), but the missing link in the current literature is the participation of the Batwa in public affairs. Thus, the overarching question this research seeks to address is why are the Batwa not participating effectively in public affairs in Uganda? While the Ugandan Government has taken considerable steps, directly or indirectly, to fully address the plight of the indigenous ethnic minority communities, a lot more needs to be done. Major progress is noticeable in ratification of international instruments, standards, and codes of practice relevant to ethnic minority rights. However, little has been done to use such mechanisms to to fully address the predicaments tha ethnic communities experience routenly, particularly their participation in decision-making structures, national planning, and programme implementations (Tindifa and Babuuzibwa, 2011: 29). Most of these instruments have remained rubrics in the books and not translated into realities to benefit the vulnerable minority communities.

The narrow and ambiguous definition of ethnic minority groups in the 1995 Ugandan constitution and their invisibility in some of the major national policies, points to how the issues of Batwa are managed. While these gaps do exist, the government seems to be dragging its feet towards addressing and integrating ethnic minority communities in national affairs. Since 2000, Uganda has had various national processes and public exercises that have substantially left out the indigenous ethnic minority groups. These include Poverty Eradication Action Plan (PEAP), National Development Plan (NDP), Africa Peer Review Mechanism (APRM) exercises of NEPAD, and Universal Periodic Reviews (UPRs) of the UN. Uganda has had three national general elections where Batwa should have participated, but what is on the ground and the preliminary research suggest otherwise.

1.6 Statement of Purpose The study explores complexity surrounding effective public participation rights of ethnic minorities. Specifically, this study seeks to understand how structural marginalisation of Batwa contributes to their inability to participate in public affairs in Uganda. The study seeks to contribute to the body of knowledge about the participation rights of Batwa that is very scarce both at academic and at practical policy level. This study contributes to the development of new perspectives and models on effective participation of ethnic minority in public affairs, as well as contributing academic ideas and reflections in the area of ethnic minority, their participation in public affairs as the benchmark for good governance and democratisation in Africa.

1.7 Primary Objectives of the study 1. To explore the level of participation in public affairs of the Batwa in Uganda; 2. To investigate the attitude of the Batwa towards participation in public affairs; 3. To explore the role of the Government of Uganda in promoting effective participation of the Batwa in public affairs; and 4. To proffer the modalities for the Batwa’s effective participation in public affairs in Uganda.

1.8 Research questions

The overarching question that this research seeks to address is why are Batwa not participating effectively in the public affairs in Uganda? In addressing this question, the research will answer the following different but related questions: 1. To what extent are the Batwa participating in public affairs in Uganda? 2. What are the perceptions and attitudes of the Batwa regarding the right to effective participation in public affairs? 3. What mechanisms has the Government put in place to facilitate participation of the Batwa in public affairs? 4. What sort of mechanisms are actually needed to ensure Batwa effectively participate in public affairs?

Preliminary research indicates that there is evidence to believe that the participation rights of Batwa in Uganda is considered to be “tokenism” as argued by Arnstein (1969: 216), rather than ‘effective’ that would benefit them to influence policies and issues of their concern. In its report on the status of indigenous ethnic minorities in Africa, the ACHPR (2006: 8) observes that ethnic minorities are always excluded from public participation in their own development issues of their country. The study states that; Batwa, like other citizens, have rights and obligations to participate in the public affairs of their countries, either directly or indirectly. Article 36 of the 1995 Constitution of Uganda recognises “participation rights of minorities in decision-making processes and further asserts that their views and interests shall be taken into account in the making of national plans and programmes”.

The question this study seeks to investigate; is if the constitution recognises the participation rights of minorities, in addition to other international frameworks that Uganda is a party to, why are the Batwa not effectively participating in public affairs? In addressing this question, the study will answer the following different but related questions: 1) what are the factors responsible for lack of effective participation of the Batwa in public affairs in Uganda? 2) What is the approach of various levels of government regarding effective participation of the Batwa in public affairs? 3) How are the Batwa currently being represented at various levels in public affairs? 4) What is the impact of either participation or non-participation in public affairs of Batwa on their integral development? 6) What are the capabilities needed for Batwa to effectively participate in public affairs?

1.9. Hypothesis

The increased lack of attention and priority given to the Batwa by the Government of Uganda, facilitates non-effective participation in public affairs by the Batwa. The current state of suffering by the Batwa is as a result of lack of institutional and structural mechanisms that would enable them to participate effectively in public affairs, as well as inadequate capacity and skills necessary for effective participation. The proposition underlying this study is that if Ugandan Government prioritise Batwa issues, then Batwa will have greater prospects of being able to effectively participate in, and contribute in meaningfully in public affairs, because they will have been supported and their capacities and skills enhanced. In doing this, the Government of Uganda will not only be fulfilling it obligations, but also responding to injustices meted to Batwa by the evictions from their ancestral lands.

1.10. Study limitation

The first study limitation is geographical. While many Batwa ethnic groups are found in Burundi, the DRC, Cameroon, Congo Brazzaville, Rwanda and Uganda; and considering that these groups experience different treatments and situations in their respective localities, this study is limited to only the Batwa in Uganda. However, generic lessons and experiences will be borrowed from these countries since Batwa belong to one cluster of pygmies that has been divided recently. A study of such nature cannot afford to ignore experiences from the neighbouring countries but the central focus of the study is on Uganda.

The second limitation is related to the time frame which the study will focus on. The study will cover a period of 14 years, from 2000 to 2014. Fourteen years is long enough to give a clear picture on the policy-making involvement and public participation of Batwa communities. This is because within this period specific major public events which impact the participation of all the citizens, both at national and local level, have taken place in Uganda. For instance, Uganda has had three public general elections – 2001, 2006, 2011; participated in the APRM 2008-2009; shifted from PEAP – after 2000 review and 2004 revision – which focused on poverty eradication to NDP in 2010, which emphasises wealth creation and prosperity for all. In the same period, Uganda has also come up with policies

37 and programmes such as National Agricultural Advisory Services (NAADS) – in 2001 – to support farmers; wealth for all (Bona Bagagawale) – in 2007 – to re-establish cooperatives as a scheme to help local people with resources, including funds, to meet their development initiatives. All these are schemes developed in Uganda between 2000 and 2014, whose impacts should have enabled Batwa in terms of addressing their participation issues in public platforms, if Batwa had been consulted and involved in all these initiatives. Further still, Uganda has come up with Vision 2040 – which was launched in 2013 by the National Planning Authority – but left out vulnerable communities such as ethnic minority groups.

The third limitation relates to the description and categorisation of minorities. It is not possible to include all communities considered as ethnic minority in Uganda in a study of such nature but rather focus on Batwa who accurately fit the criteria of an ethnic indigenous minority group. This study is, therefore, limited to an exploration of the Batwa situation concerning effective public participation. The thesis will be an exploratory study that will lay the ground for further comparative researches that are both too complex and broad to deal with in this study.

The fourth limitation relates to the areas of development which the study will focus on. The study will only focus on and be limited to socio-political issues in general, but the central focus is effective participation in public affairs. Reference will be made to other cross-cutting issues such as education, health, and land, but they will not be discussedin detail within this study. This is because Batwa issues are multifaceted and hence can be looked at from many angles, but to set a stage for further interrogations, it is imperative to limit this study to effective participation perspectives.

The fifth limitation relates to the methodology to be used. The thesis will utilise Batwa as a case study in Uganda to generate information and recommendations about the ethnic minority communities in Uganda, as well as other ethnic minorities in African countries.

1.11. Significance of the study

The thesis is significant because it seeks to contribute to the debate on the Batwa, an ethnic minority among many minority communities, who are at the centre of contestations in most African states. This is because some African states (Ghana, Rwanda, Uganda, Gabon, and 38

Cameroon) have consistently refused to recognise the existence of indigenous ethnic minorities in their territories but rather argue that all people in these specific countries are the same and no ethnic group dominates the other. It is thus of great importance to undertake a study of such nature to ascertain and clarify such claims that have been raised by governments at high level international conferences and how such statements affect the indigenous ethnic minorities at the national levels.

Even though there has been considerable debate concerning ethnic minorities, much of this debate has been at regional and international levels, and less debate at the national level in Uganda. Considerable work has been done on the subject of ethnic minority, but this has been largely by NGOs and very little is available in the academic arena regarding ethnic minorities, and in particular Batwa in Uganda. Moreover, the available literature is focusing on the socio-economic issues and less on governance perspectives.

Another point to note is that most of the available work on the situation of the Batwa has been dominated by Western scholars, researchers and international NGOs, and mainly getting outdated; there is a scarcity of relevant, current, and unbiased literature. Thus, reservations have been expressed regarding their impartiality and interest in the whole process. The literature available is thus taken as partisan and biased and therefore a need to provide an insightful and balanced academic study.

In summary, the study seeks to contribute to the scholarship on the human rights protection of ethnic minorities, particularly participation rights in public affairs. Recommendations of the study will obviously be useful for policy-makers at national, regional and international levels; as well as civil society organisations and academics. The research will also enhance the important role of participation within the broader framework of good governance. The research study will serve to enhance the literature and discourse on participation of ethnic minorities in Africa, in the quest for good governance and democratic principles.

1.12. Justification for the study

Focusing on Batwa, as an ethnic minority group comes to play because of their numerical disadvantage, and their spirited self portrayal as an impoverished and vulnerable community. Conspicuously, Batwa are extremely vulnerable groups, whose plight came to 39 limelight in the early 1990s, when thei land, comprising Bwindi and Mgahinga forests were made “protected areas”, denying Batwa access to the forest and its resources that they enjoyed time immemorial (Kabananukye, 2009). This marked the beginning of the end of their rich traditions and livelihoods Batwa enjoyed that was based on hunt and fruit- gathering. Currently, Batwa live with the cultivators, nomadic and off-farm business community in a more one sided skewed relationship (Majamba, 2011: 123). In terms of political processes and participation, especially voting and being voted for, dominant communities continue to despise Batwa’s identity and their ability to make rational political decisions are questioned.

The participation of minority groups in public life and particularly in the processes of their economic development is a human right and essential in order to ensure social cohesion and the development of their community as provided for in international human rights insruments, such Universal Declalration of Human Rights and International Convenant on Civil and Political Rights. The reason for focusing on public participation in this research is based on the recognition that while public participation seems to be such an obvious priority for any state as an essential feature of good governance and for achieving sustainable development that it hardly needs any more discussion, there is still continuing criticism about the Ugandan government not doing enough to promote and enhance the right to public participation. According to Sen’s notion of capability, which focuses on what people are effectively able to do and to be, the Ugandan government should seek, utilising the available frameworks, to enable such groups as the Batwa to realise their capabilities. In the situation of Uganda, with the existence of such ethnic minority groups, Sen (1993: 30) argues that the “focus should be on what people are able to do and be, on the quality of their life, and on removing obstacles in their lives so that they have more freedom to live the kind of life which, upon reflection, they find valuable”. Indeed, most of the international agreements and conventions that have been adopted and passed by the international community in the past decade have at least some sort of provision on public participation in the decision-making process (Mwebaza, 2007: 21) seeking to assist people to achieve their capabilities in view of human rights realisation. But the implementation of these frameworks at the national level remain wanting and is a point for debate.

Given the high priority attached to promoting public participation at both international and national level in the ongoing discourse of development decision-making, what this research has set out to do is to establish the extent to which it is being implemented, whether it has any meaningful benefits for the participating public or it is mere rhetoric and what the real challenges and opportunities are for implementing public participation, especially of the Batwa minority community.

It will also examine the legal and institutional framework within which public participation is guaranteed, and determine whether they actually allow for the realisation of the public’s right to participate and how indigenous peoples in Uganda are protected from discrimination and exclusion.

1.13. Outline of chapters

The structure of this study is organised in three sections. The first section consists of chapters one, two and three: introduction, research methodology and study frameworks (theoretical and conceptual). Section two is the literature review consisting of chapters four, five and six. The third section is the conclusion, consisting of analysis of the findings and recommendations.

Section one consists of chapters one, two, and three. Chapter One: This chapter gave an introduction and context of the study, highlighting historical perspectives and the development of the ethnic minority issues in Africa and Uganda in particular. The chapter locates minority issues in pre-colonial, colonial and post- colonial eras, as well as the background of the Batwa as a group, identifying their political, social and religious perspectives.

Chapter Two: This chapter presents the road map in terms of methodology to be used in getting information for this study. It describes how the desired information about effective public participation and ethnic minorities, particularly Batwa of Uganda was obtained. It describes what was done, how and why, in the course of getting both primary and secondary data.

Chapter Three: Conceptual and theoretical framework: This examines the concepts and theories that have shaped the evolution of the minority issues and participation rights. The chapter lays down theoretical and conceptual foundations that guide this study, particularly in understanding the effective participation and ethnic minority discourse in the arena of human rights and good governance. Two theories, namely minority democracy and participatory democracy are reflected upon, while locating the relationship with different processes and terminologies advanced by other scholars including Jean-Jacques Rousseau, John Locke and John Stuart Mill. This section also includes extensive review of literature that is later integrated to reinforce discussions taken up in subsequent chapters derived from the findings of the field research.

The second section consists of chapters four and five. Chapter Four: The chapter reflects on the evolution of the ethnic minority concept and its common attributions and descriptions as expounded by both scholars and development practitioners. It reflects on the discussion that the concept of ethnic minority has been of concern over the years at different levels – national, regional, and international – through varying norms and strategies. In this way, it offers a rich context for subsequent chapters.

Chapter Five: Ethnic minorities and their participation in public affairs: The fourth chapter delves into the right to effective participation in public affairs, looking in detail at the substantive and core content of the right to participation and how it is linked to other rights in the perspectives of ethnic minorities, with Batwa at the centre of the study. The chapter details the importance of participation in the life of ethnic minorities and it suggests that specific arrangements should be put in place to assist Batwa, among other ethnic minorities in Uganda, to participate in public affairs.

Chapter Six: Ethnic minority rights: An inquiry from international legal frameworks: This chapter interrogates the legal frameworks at national, regional, and international levels, within which the ethnic minority issues and participation rights are underpinned and which Uganda is a party to, in view of investigating how Uganda has fulfilled its international obligations of upholding these instruments in light of ethnic minorities in Uganda.

Section three consists of chapters seven, eight, nine, and ten. 42

Chapter Seven: Ethnic minority in Uganda: Batwa in south-western Uganda: This chapter looks at issues of ethnic minorities in Uganda with a focus on the Batwa. The chapter further explores the chronological events, processes, and consequences of the Batwa’s eviction from their ancestral land in the early 1990s and how this has affected their current situation in relation to effective participation in public affairs. The argument here is that the evictions of Batwa were conducted in disregard of the international standards, without consulting Batwa and against their will, with no resettlement or compensation, and this has become the cornerstone of their current situations, and particularly in the context of participation in public affairs.

Chapter Eight: This chapter focuses on the role of government in promoting and protecting the rights of Batwa. It will analyse the contribution of the government in advancing the right to participation of ethnic minority communities in Uganda and Batwa in particular. This chapter will also present the role other actors such as civil society organisations (CSOs) and development partners have played in addressing the Batwa issue.The chapter argues that ethnicity in Uganda is a subject that has not featured much in national policy discussions even while debate rages on in the public through the media and informal discussions, despite the negativity that comes with such debates. The chapter further looks at how ethnic tensions have evolved from colonial to the current state and what different regimes have done to manage ethnic tensions. The chapter looks at these issues using the lens of its mandate to protect and defend all its citizens as stipulated in the constitution (leave alone the swearing-in of government leaders before assuming office).

Chapter Nine: This chapter explores and reflects on the various models of citizen- government interactions and makes recommendations for moving beyond conventional participation and provides models based on the context and situation in Uganda, in relation to public participation issues of Batwa. The chapter argues that the benefits of including citizens in all public affairs processes are enormous and citizen’s participation is not routinely and effectively sought in the decision-making process, especially for those marginalised communities. The chapter concludes by observing that even if favourable conditions in terms of legal frameworks are provided, as is the case in Uganda, if there are

43 no specific models and mechanisms, tailored to facilitate the participation of minorities in public affairs, marginalised people, such as Batwa will not enjoy their entitlement.

Chapter Ten: The conclusion summarises the thesis by answering the question: why are the Batwa not effectively participating in public affairs in Uganda? The chapter also presents recommendations, from the lessons learnt, to different actors involved in the Batwa’s issues and ethnic minorities in general, and emphasises the importance of ethnic minorities’ effective participation in public affairs. These recommendations are seen as guides to enable, mainly the government, to fulfil its mandate and obligations towards the protection and promotion of the Batwa’s rights and more specifically to ensure that they are effectively involved in governance. Having looked at the synopsis and the layout of the study, chapter two explains the research design and methodology of the study.

CHAPTER TWO

METHODOLOGY

2. Introduction The chapter presents step by step methods of how this study was conducted. It gives an account on the data collected by responding to questions of how, what, and why the data, concerning effective public participation of ethnic minorities, particularly the Batwa of Uganda was obtained. The chapter further defines the study parameters, concepts, tools, and approaches that were considered during the whole process of field visits and data collection sessions.

2.1 Research design

The design in a research focuses on the over-all plan and approach in getting the end-product of the study. It gives steps involved during the field works and how such steps influences the final outcome. In light of this, Churchill and Lacobucci, 2005: 410; Cooper & Schindler, 2011:138 -139, postulate that “research design is a functional plan in which certain research methods and procedures are linked together to acquire a reliable and valid body of data for empirically grounded analyses, conclusions and theory formulation”. Therefore, any research design lays down a clear framework that would be used in conducting research, as well as providing necessary methods, decisions, including, a set of techinques to interpret and analyse data obtained during the study. Bless, Higson-Smith and Kagee (2006:71) define research design as “operations to be performed, in order to test a specific hypothesis under a given condition”.

Furthermore, various scholars have postulated on the need for research design in social science researches. For instance, Welman et al. (2009:46) observes that research design, describes the overall plan, from which study respondents are selected, and the means of getting information from respondents, which is vital for any reliable and valid research. Meanwhile, Babbie and Mouton (2008:74) define research design as a p “blueprint” for conducting the study, which entails entails a comprehensive plan, from which research is undertaken. Mouton further describes the main function of a research design as “to enable the researcher to anticipate what the appropriate research decisions are likely to be, and to maximise the validity of the eventual results” (Mouton, 1996:107). Based on these 45 reflections, I argue that a design of any research study is a plan from which all procedures to be employed in that study are aligned together for reliable and valid sets of data. This is what Zikmund tags as “mixed-bag” approach that provides alternatives and options to researchers for keeping the purpose of study focused and cleared defined. (Zikmund, 2010: 66).

For purpose of this study, I combined two approaches – socio-political and legal – and two basic methods were used in conducting this study, library and field researches. Materials from secondary sources were accessed; these included journal articles, books, internet sources and relevant reports and supported the primary sources that included interviews to different relevant people, with the help of questionnaires and interview guides, and focus group discussions were used. Accordingly, these resources helped to examine the historical and socio-political processes that underpin the issue of minorities, and facilitated the establishment of the nature of minorities on the globe, in order to contextualise the Batwa ethnic minority community in Uganda. These resources were also important in helping to identify and understand the various political, social and cultural factors in different settings that affect the operation of the legal discourses and arrangements, which form part of this study, as the defining elements of an adequate constitutional design for effective participation of minorities in public affairs.

I used empirical study, involving interviews and observations, as a phenomenon to help me help me get deeper insights about the experiences of respondents so as to clearly understand issues of Batwa and the general situation around public participation. The term empirical denotes information derived by the process of “practical and scientific experience, experiments and inquiries” (Skager & Weinberg, 1971: 4). It thus involves a well scheduled and systematic process tocollect and analyse data – in a purposeful and accountable way (Isaac & Michael, 1997: 2). The purpose of this empirical inquiry was, to ensure reliability and validity of data on Batwa’s public participation in various processes at the community (local council one) as well as local council three, and national level, in accordance with the research problem in chapter one, section 1.5. Leedy and Ormrod (2010: 141) reveal that “a phenomenological study is one that attempts to understand people’s perceptions, perspectives and views of a particular situation”. By consideringdifferent perspectives of the

46 same situation (Batwa’s circumstances), it helped me to understand deeply the situation of Batwa. Phenomenological approach seeks to appreciate the coding and significance study respondents attache to their lifestyles. This view is also supported by Creswell (2007: 57), who opines that considers phenomenological studyas a description of the meanings of the lived experiences different individuals have on a similar phenomenon.

The research is a qualitative case study because qualitative research examines people’s perceptions and actions in narrative or descriptive ways more closely representing the situation that is being researched, as experienced by the participants. Burns and Grove (2003: 19) define a qualitative approach as “a systematic subjective approach used to describe life experiences and situations to give them meaning”. While Parahoo (1997:59) states that “qualitative research focuses on the experiences of people as well as stressing uniqueness of the individual”. For Holloway and Wheeler (2002: 30), qualitative research is “a form of social enquiry that focuses on the way people interpret and make sense of their experience and the world in which they live”. Considering the topic of this study, I employed the qualitative approach to gain a deeper understanding of the context –aboutbehaviour, perspectives, experiences and feelings – of both Batwa and non-Batwa in view of understanding the critical elements of public participation in relation to the whole notion of ethnic minority. Furthermore, qualitative research provides considerable descriptive details which help researchers to understand context and more so social behaviour. To achieve this, it was essential to focus on lived experiences of respondents.

2.2 Study population

This field study was conducted in the districts of Kabale, Kisoro, nd Kanungu (south-western Uganda). The population of study included Batwa; dominant communities of Bakiga, Bafumbira, Banyankore, and Bahororo where Batwa communes are found; government authorities (both national and local governance structures); and civil society organisations (NGOs, religious institutions, and media). According to Parahoo (1997: 218) population is “the total number of units from which data can be collected”. For Burns and Grove (2003: 213), “population is all the elements that meet the criteria for inclusion in a study”; and goes further to qualify eligibility standards as “a list of characteristics that are required for the membership in the target population”. In the same spirit as, there was a set criteria for

47 inclusion or selection of respondents in this study, which were to be: 1) a Mutwa or member of Batwa community in Kabale, Kisoro, and Kanungu districts; 2) a non-Batwa (Bafumbira, Bakiga, Banyankore, and Bahororo) in the three districts who has interacted with the Batwa directly; 3) leaders at local council governance structures in the three districts, where the Batwa are located; 4) leaders at the national level (central government); and 5) civil society actors (NGOs, media houses, religious institutions), who have worked with Batwa.

The rationale for selecting these units was based on the fact that dominant communities have lived with the Batwa and most of the current challenges, including participation issues, are meted by them on Batwa. The selection of government authorities was based on the fact that it is their mandate to ensure that all citizens enjoy their rights, access their public services, as well as participate in public affairs as mandated by the 2005 Constitution of Ugandan and the Local Government Act of 1997. Civil society organisations, though not obliged by any legal instrument, have their mandate to work on issues of governance and have, for a long time, worked on the issues of Batwa in this region. The selection of respondents from diverse sectors was to ensure that information received about Batwa’s context and situation in different communities is balanced, as well as any other factor that may influence or affect the Batwa’s issues in public participation is genuine.

2.3 Determination of sample size

Sampling denotes the selection of individuals from a larger group (population). Sample size is a sampling frame from main group, with the purpose of it being representative of the general group (Scott & Morrison, 2007: 219; Gall et al., 2007: 166; and Neuman, 2011: 246). In this study, sampling refers to processes I used to select a fraction of the bigger group of respondents in the three districts for research. While Zikmund (2010: 210) argues that sampling attempts to draw conclusions from the entire group of respondents. Holloway and Wheeler (2002:128) assert that “sample size does not influence the importance or quality of the study” and note that “there are no guidelines in determining sample size in qualitative research”. I disagree with this view simply because results from a well designed sampling process are closely related and be generalised for the bigger group. In light of this, for this study. I employed non-probable and purposive sampling. According to Parahoo (1997: 223), “in non-probability sampling researchers use their judgement to select the subjects to be

48 included in the study based on their knowledge of the phenomenon”. It was therefore against this point that I selected those respondents who are in positions of authority in the three districts, who live and interact with Batwa, who are Batwa themselves, and who work for Batwa or seek to provide services in addressing the challenges Batwa face.

The use of purposive sampling to select key informants was based on the fact that since the people and institutions working on and/or responsible for Batwa issues were known, as per the legal frameworks of Uganda and their location is definite, they provided the required information by virtue of their proximity to the Batwa as well as the issues of participation. Effective public participation of ethnic minorities in decision-making processes is a somewhat abstract concept. The study, therefore, was interested in hearing the views of those who are likely to have an Informed opinion – those who have directly worked on and or interacted with Batwa, especially on the side of non-Batwa and civil society actors – rather than opinions from the general public, many of whom may not have directly engaged with the issues of Batwa, ethnic minorities, and or policy-making arena in the context of this study. It seemed plausible that those with the obligation to ensure participation by all citizens; those working with and for Batwa; as well as those living with the Batwa are likely to have considered opinions concerning effective public participation of the Batwa. To ensure validity and reliability, a triangulation method was used, as well as looking into issues of credibility in order to deal with questions of congruence and factuality (trustworthiness) of the findings. These were achieved through using rigorous techniques and methods to select respondents as well as gather information.

2.4 Sampling procedure

The procedure for sampling of the participants followed steps based on the structures in the three districts. In the first instance, to interact with Batwa, the researcher sought the assistance of the United Organisation for Batwa Development in Uganda (UOBDU), who identified focal points in each district and the focal person identified relevant respondents. Regarding non-Batwa, assistance was sought from the local council leaders to access the villages where Batwa live and then families that have direct contact with Batwa were approached. Sampling of the local council leaders was done by approaching the office of community development in the three districts which assisted in identifying relevant offices

49 to interview, as well as Civil Society Organisations (CSOs) working in their areas, since they are registered. Respective respondents were selected after categorised respondents according to the criteria above (under the section, study population). The process of sampling was thus explained to the prospective study respondents on the short-list, and were asked their personal consent to participate in the research exercise. . This was followed with selection of who would form focus group discussion or one to one. In the event of a problem with identifying study respondents, each eligible participant was requested to refer to me their colleagues with similar experience that would give us relevant information.

A total of 105 people were purposively interviewed (74 are listed in the reference list). This number was distributed according to the categories listed above in the population as follows; Batwa 25, non-Batwa 20, local government leaders 10, central government leadership 15, policy-makers 10, and CSOs 20, and academia 5. These categories of respondents have directly worked, lived, and interacted with Batwa issues and thus representetative enough to help the researcher gather adequate adequate and suitable data for this study. This categorisation helped to gather reliable information on Batwa and their effective participation in public issues that I was able to further interrogate so as to understand the structural issues that are often overlooked as well as unpacking the challenges associated with public participation.

2.5 Data collection methods

The process of data collection was generally good. The research study was partly supported by SARChl Chair for African Diplomacy and Foreign Policy at University of Johannesburg. Data collection was preceded by getting permission and relevant authorisations from the University (as attached in the annex). I then proceded to review literature on Batwa and public participation. With the help of libraries, I was able to go through the relevant literature, though very scanty academic information is available about the Batwa. Neverthelsess, this helped shape the ideas about the topic, but also to understand more about the study. The researcher initially had smooth interactions with the population, and especially in Kabale and Kanungu districts. This is because the researcher speak the same dialect and, therefore, there was no language barrier. And because the Lutwa language in these communities is being assimilated, interacting with Batwa was as well effective. However,

50 some of the elderly Batwa, have found it difficult to learn the language of the majority community, while those in Kisoro speak a different language from. As such, the researcher utilised the services of an interpreter.

Different ways were used to collect data for this study. These include document analysis (literature review), interviews, and obserbvations.

2.5.1. Document Analysis According to Bowen (2009: 3), document analysis as a form of qualitative research enables the researcher to give voice and meaning of the topic under study. Document analysis support and strengthen research because the information is ready and available. Bowen (2009: 3) further argues that document analysis can be used as either a primary method of data collection or as a compliment to other methods, because documents can provide supplementary research data. This makes document analysis a useful and beneficial method for research. In light of this, literature reviewed by the researcher provided background information and broader understanding about the study. This specifically was vital in cotextualising the Batwa issues in relation to effective participation in public affairs of data, and are therefore helpful in contextualizing one’s research within its subject or field. In addition to this, as Bowen further observes, literature often contain information that people could have forgotten and or not willing to share and thus provide great insights to the study.

The author, therefore, utilised different sources of literature, including books, journals, newspapers, magazines, reports, and human rights instruments, among others, that shaped the general outlook of the study. As such document analysis became a point of reference to cross-check and validate during one to one interviews and during observation sessions. This was to ensure comprehensiveness of the data corrected.

2.5.2. Interviews An interview is a conversation for gathering information, and can be conducted face-to-face, over the phone (Easwaramoorthy, and Zarinpoush, 2006). Britten (1999: 11) argues that interviews are suitable when the researcher needs to collect in-depth information on people’s views, beliefs, motivations, thoughts, and feelings, as well as construct experiential story from

51 target communities. Britten further believes that interviews in qualitative research provide a “deeper” understanding of social phenomena than would be obtained from purely quantitative methods, such as questionnaires.

Due to different needs and goals of researchers, there are, as well different types of interviews, including structured, semi-structured interviews, and unstructured interviews. For this study the researcher utilised semi-structured interviews, using key questions that helped to define the areas to be explored, but also allowed the researcher to probe in order to pursue an idea or response in a more detailed way. The usage of semi-structured interviews allowed for the finding or clear explanation of information that is important to interviewees that may not have previously been thought of as pertinent by the researcher. The researcher used a set of predetermined questions (see annex) and the respondents answered in their own words with the help, where necessary (for clarifications and emphasis from the researcher).

Furthermore, because some respondents thought that the information needed was sensitive, particularly information from government officials, but also Batwa not willing to speak in public, the use of interviews were particularly appropriate for this situation, in view of the fact that some respondents did not want to talk about some issues in a group environment. However, after the interviews, respondents who thought I needed sensitive information realised that the information given was not sensitive and as such many of them accepted to be quoted (a part from a few that requested anonymity, which was respected – as in chapter 7 [7.4.5] and chapter 8 [8.2.1]). Interviews were conducted using the interview guide to explore Batwa issues in general, and specifically on their right to effective participation in public affairs. The same experience and interview guide was also used during focus group discussion.

During the interview sessions open-ended questions were used. This helped the researcher to get deep responses than expected before formulation of the questions. The use of interview guide and subsequent open-ended questions helped in adhering to the time allotted for each participant. The fact that interviews were conducted after the author had finalised reviewing literature, it helped to focus the interview and validate the information. As an ethical 52 procedure, before any interview, respondents were taken through the procedures of consent, and all options of accepting to be interviewed, withdrawing at any point during the session, as well as their views to be used only for this study were accepted and followed. The details of this is given below under ethical considerations (2.9).

2.5.3. Observation Marshall and Rossman (1989: 79) define observation as "the systematic description of events, behaviors, and artifacts in the social setting chosen for study". Observation in a qualitative study enables researchers to define experiences and situations using all the five senses, as may be necessitated by the situation under study (Erlandson, Harris, Skipper, and Allen, 1993). More so observation in research helps to collect primary information through the first-hand evidence as it happens. In light of this, observation during the village meetings in Kanungu, local council two meetings in Kabale, Omurubanda and local council meeting in Nyakabande in Kisoro (among others) provided the researcher with ways to check for non- verbal expression of feelings, how interactions between Batwa and Non-Batwa occurred and managed, how participants communicated with each other, and to check for how much time is spent on various activities especially those that touched on or concerned with Batwa issues in the communities.

According to Kumar (2011: 173) there are two types of observation techniques in qualitative research: participant and non-participant observation. For this study participant observation was employed, because with this strategy, the more time the researcher spends with the community, the more he gained much deeper, richer and more accurate information about the public conduct of Batwa, as well as how other people relate with the Batwa. In addition to the observation being conducted, more information was collected through informal interactions with leaders as well as the Batwa themselves. This is based on the argument by the author that use of various strategies and approaches enriches information collected by participant observation. However, as Kumar observes, one needs to be careful not to introduce own bias, as well as not being known as a researcher. In view of minimising these, the author attended these meetings as a representative from civil society organisations. In Nyakabande, Kisoro, it was a budget meeting where different stakeholders including civil society actors are invited. With this, I was able to observe the proceedings with ease. This

53 was the case with Omurubanda in Kabale, and Kishariro in Kanungu, which were community mobilisation meetings conducted by the Ministry of Gender, Labour, and Social Development in view of developing social development indices for vulnerable communities. This too helped the researcher to maximise the events to observe not only how Batwa participated, but also the way non-Batwa related with them.

While observation provides first-hand information, it is the author’s caution that during the process of observation, it is possible to see what people say, especially in public, rather than what they do in the real life, thus making conclusions that may not be very appropriate. This is because, in most cases, people may not feel comfortable to bring out their true selves, but do it in real life. In addition to have diverse approaches to probe this (triangulation), the research needs to study carefully each move, words, gestures, and expressions and give them appropriate interpretation for meaningful information; and if possible informally meet some selected people to probe further on some of the items observed. During this session, the researcher thus used the break times as well as at the end of the sessions to interact informally with some leaders for deep inquisition.

2.6 Data collection tools

Collecting data for a qualitative study, there is a need to use different instruments including interviews, with the help of standardised open-ended and semi-structured questions; observations of respondents’, and content analysis or review of related documents. Given the extent and purpose of this research, the main tools used to collect data for this study were observations, interviews, and focus group discussions. Interviews conducted for this study enabled smooth exchange of information with the respondents that the researcher reached. The purpose of qualitative research interview is “to see the research topic from the perspective of the interviewees, and to understand why they have a particular perspective” (King, 1994: 14). To help understand the perspectives of the respondents on the issues concerning Batwa, structured interviews were developed based on the four research objectives. The interview questions included the following topics on level of participation in public affairs of the Batwa in Uganda; attitude of the Batwa towards participation in public affairs, role of the government of Uganda in relation to participation of Batwa in public affairs, as well as mechanisms to enable the Batwa to participate effectively in public affairs. 54

Focus group discussions lasted 30-45 minutes, and the meeting places were agreed upon with the respondents, based on their locations. Timing of the meeting was crucial because for both the Batwa and non-Batwa, morning hours were not appropriate as they would be in their agricultural fields or at work earning a living. As such afternoon schedules were convenient. It was the reverse for the local council and government leaders. They preferred morning hours to afternoon. This helped me manage the schedule effectively. The author used guiding questions to get the information from the respondents. Questionnaires were also administered to different respondents as mentioned above, and collected later within a week after distribution. Interviews were also conducted with the same people that answered the questionnaire. In addition, books, documents and Internet data in the area of right to participation and the Batwa were reviewed to get important information regarding the study.

In both exercises, during interview and focus group discussion sessions, I took notes. These notes allowed me to capture facts that later helped me to recollect and reflect on the relevant questions during the interview sessions. The notes were later transcribed according to the themes developed based on the objectives. It should be noted that taking notes during the interview is very helpful for the researcher especially during analysis of the data.

In the process of gathering information from different respondents it became clear that some respondents, such as NGO workers, often responded well and precisely to specific questions provided through structured interviews. While this method seemed rather restrictive for some Batwa and semi-literate non-Batwa who often meandered around questions and gave far-fetched answers. It was mainly in focus group discussions that such were streamlined and clarified. While focus group discussions allowed respondents to bring out collective issues and fill in the gaps an individual could have missed, it was during my observation sessions that the researcher found that most enlightening information was obatainedduring those moments when respondents where at ease and going on with their planned activities. For instance, while attending the local council meeting at Rubanda LC 3, one political leader mentioned that we should start the meeting as everybody was in the room apart from “impunyu” (which means bush people – often a name given to wild pigs) who would not really influence our meeting, after all they would not speak during the whole

55 meeting. This was because Batwa have to walk long distances to come to the venue and because of poverty they cannot manage transport fares. The words of the leader were not only stereotypical but discriminative. This showed me the attitude leaders have towards Batwa.

2.7 Validity and reliability

In condiucting research, any procedure and tools selected for gathering data, need to be examined critically, and assess the extent to which the used tools are likely to be valid and reliable, as well as to produce reliable and valid data (Mbabazi, 2008: 21). Mbabazi further observes “instruments applied in collecting data should be valid, reliable and free from bias and error”. Mugenda and Mugenda (2003: 43) define reliability as “a measure of the degree to which a research instrument yields consistent results or data after repeated trials”; while “validity is the degree to which results obtained from the analysis of the data actually represents the phenomenon under study”. Salkind (2000: 106; 2006: 110; 2012: 115) uses concepts such as “dependable”, “consistent”, “stable”, “trustworthy”, “predictable”, and “faithful” as synonyms for reliability. Delport and Roestenburg (2011: 177) concur that reliability deals with what is being measured in as far as it can be depended on for the same result subjected to a different test.

To ensure validity and reliability of information received for this study, the researcher employed various steps including interviewing people (one-on-one) the same people appeared in some focus group discussions, as well as sending the questionnaires to them (triangulation method). During the interview process, the researcher used multilevel approach of getting data from respondents who have been involved in Batwa issues including public participation processes at different levels in their respective communities. Triangulation helped me to have a deeper understanding of Batwa issues, including their attitudes towards participation, the challenges as well as opportunities that can be used to promote Batwa and enhance their participation rights.

Furthermore, to ensure validity and reliability, the reseracher looked at the issues of credibility in order to deal with questions of congruence and factuality (trustworthiness) of the findings. These were well achieved with the help of using rigorous techniques and

56 methods to select respondents. As a matter of procedure, the researcher was also careful in sampling the targeted population. Although the sampling was purposive, the researcher also tried to balance the information by mixing in snowball sampling, by allowing the targeted respondents to suggest others they thought were knowledgeable or could articulate specific issues well.

2.8 Data analysis

Analysing data is to arrange obtained data systematically while providing meaning for the information at hand based on the themes and objectives of the study. Analysing data from a qualitative study is an interactive process (Polit et al 2001:383). Data analysis can be conducted when all the interviews are done or during the process, thus conducted simultaneously with data collection. For this study, analysis of the data commenced after conducting interviews. The collected data was cleaned and edited to safeguard consistency, completeness, and accuracy. Data analysis was carried out using qualitative methods, with mainly thematic analysis used. Presentation of the research findings was based on the developed themes guided by the objectives of the study, which formed the chapters of the research study. The findings were coded and analysed according to the following themes: understanding factors affecting the Batwa’s public participation, investigating the role of government in Batwa issues, exploring new ways to encourage and facilitate public participation by Batwa, and finally getting recommendations.

2.9 Ethical considerations

The word ethics is derived from a Greek word ethicos, or that which pertains to “ethos” (code). In scientific research, it thus connotes “a social code that conveys morality of human conduct or human acts” (Babor, 2006: 6). Ethics in research are standard norms that guide researchers to distinguish between right and wrong; determine the acceptable and unacceptable behaviours and practices in the course of data processing. Thus, ethical standards in research guard against the fabrication or forging of research findings; while seek the pursuit of knowledge and truth as the primary goal of research. Against this backdrop, researchers ought to seriously consider ethical standards during the course of research, if the public has to support and believe in the research products. This is based

57 on the premise that the public needs assurance from researchers about issues such as human rights, compliance with the law, conflicts of interest, and safety. Effective considerations of these ethical issues influences greatly the integrity of the research in entire discourse of body of knowledge.

In line with this requirement, before going into the field, I obtained ethical clearance certificate from the University of Johannesburg in line with the rules and regulations. Furthermore, additional clearance was sought and secured from relevant offices to access communities for interview sessions with selected respondents. Permission was also obtained to attend local council meetings for observation sessions and accessing officials including government and CSO actors. Before any interview, the researcher obtained an informed consent (written and signed by the respondent), including assuring anonymity of their responses, where they felt sensitive, and not to have their names mentioned, if they felt unconfortable with such. For those who were able to write and read, a statement of consent was presented to them which they signed. More so, in the introductory part of the questionnaire, the researcher stated the purpose of the research as purely for academic purposes. Sources of literature consulted in this study, have been acknowledged through citations and referencing.

2.10 Conclusion

The chapter has discussed the research design and methodology the researcher used in this study. As a case study and purely taking a qualitative approach, essential elements of the methodology have been highlighted, including the study population, sampling approach, collection of data, and its analysis. The chapter ends with ethical considerations, which articulates the importance and procedures of conducting research within the ethical lenses. Examples of some of these issues highlighted, include, voluntary participation and informed consent, protecting the confidentiality and anonymity of the respondents, as well as securing clearances from relevant offices at different structures. Linked to this is the next chapter, which reflects on the theoretical and conceptual underpinnings of the study. This section, among other uses, helps to broadly understand the development and “growth” of the concepts of the thesis (ethnic minority and effective participation).

CHAPTER THREE

THEORETICAL AND CONCEPTUAL FRAMEWORKS

3. Introduction

In recent decades, the idea of increasing citizens’ involvement in public affairs has dominated the governance discourses. This upsurge in demand for effective participation, raises a central question on the role of participation discourse in a modern theory of governance. This has given rise to various concepts and terminologies such as – social integration, inclusion, cohesion and participation – that are being used to explain the involvement of marginalised and vulnerable people in the management processes of public affairs. While the terminologies seem to appear similar and in fact overlap, they point to the same issue, namely, how best to actively and effectively involve people in public affairs that affect them? These concepts have shaped the evolution of effective public participation discourse in relation to minority issues. At the outset, it is important that this study highlights the evolution and development of concepts such as “participation” and “consultation” in governance and political discourse. With the end of colonialism, new democratic and inclusive principles emerged, and became the litmus test in determining government legitimacy. Participatory democracy became the fundamental core of democratic governance, while “consultation” evolved as a mechanism for people to interact and engage with state and its structures. As Fox (1992: 539) states, these democratic precepts and principles eschewed authoritarian forms of government, and favoured government “by the people and for the people”, and these principles articulate and establish a right to “political participation”.

The focus of this chapter is to lay theoretical and conceptual foundations that guide this research study in understanding effective participation and ethnic minority discourse in the arena of human rights and good governance. It also situates the study in a conceptual frame. Two broad theories – minority democracy and participatory democracy – are reflected upon, while locating the relationship with different processes and terminologies advanced in view of public participation that is all inclusive. The chapter further gives an understanding of public participation processes that forms an integral part of governance, as a practice and as a field of study. The chapter also highlights the conceptual foundations 59 of minority issues, how it has evolved at various levels and its development in governance and human rights discourse (international law).

3.1 Theoretical framework

The two theories – minority democracy and participatory democracy – underpinning this study build on governance discourses, with linkages to questions of human rights as foundational to the study. Accordingly, the study draws on Jean-Jacques Rousseau’s postulations on governance, and in particular participation and representation as cornerstone of a democratic and developmental society. Jean-Jacques Rousseau (1712- 1778) a Swiss philosopher, writer, and composer of the 18th century. His ideologies greatly influenced French Revolution, not leaving behind the development of modern political, sociological, and educational thinking and discourse. In regard to citizen’s participation in public affairs, Rousseau posited that citizens have an active role in governance, and this role is an important ideal in public affairs. He further observed that democracy, which involves citizens, keeps the whole life of society vital and public institutions are kept accountable. As Broome observes, citzen participation resolves conflict through “a participatory process of ongoing, proximate self-legislation and the creation of a community capable of transforming dependent private individuals into free citizens and partial and private interests into public goods” (Broome, 1963: 31).

In the same line of thought, Thomas Hobbes, in his concept of political freedom, supports Rousseau’s argument. He agrees with the idea that every citizen has liberty to exercise their political freedoms. Hobbes (1651: par 21) defines liberty as “lack of anything to hinder an agent’s action”. For instance obstruction by political authorities. For Hobbes, the less one is prevented from doing what he or she wants to do in a given situation, the more one can be said to be free. By contrast, the “positive” conception of freedom involves the question of who, or what, is in control of a person’s actions and whether the person is allowed to participate freely, without restrictions, in those affairs of his or her interest. According to Rousseau, “the more a person is in control of what they do the greater their freedom” (Jean- Jacques Rousseau, 1921: par 88).

Rousseau supported the participation of citizens in public affairs as an efficient and authentic way of governing people because it is based on the masses’ aspirations. For him, 60

“every man is born free and is his own master, no one, under any circumstances whatsoever, should make any man a subject without his consent (Rousseau, 1974: 3). He argues that public participation by an individual means personal capacity to form one’s future; to challenge powers that control the lives of citzens; and to bring thought and action together (Rousseau, 1974: 3). For this reason, Rousseau criticised representative approach in public affairs as slavery, because it denies citizens opportunities to exercise their own choice and full capabilities as human beings (Rousseau, 1974: 15).

However, Rousseau’s philosophical views did not highlight the institutional framework that would enable all the citizens to participate in public affairs. Rousseau heavily criticises governments that are discrete and hide public information, as well as guarding participation as a preserve of the few. He insisted that governments should be subjected to popular instruction and public scrutiny on all matters at all times by the citizens. He believed that the primary, and perhaps the sole function of citizen participation was to protect themselves: since it guarantees good governance in as far as is regarded as a tool to guard private interests of each citizen. Rousseau’s ideas will guide this research study in conceptualising the two theories and how they contribute deeper understanding of the subject of the study (public participation of ethnic minorities).

Rousseau can arguably be considered a great theorist of the participation concept, which he describes as vital for democracy and good governance. Rousseau's political thoughts and reflections revolve around individual citizen’s participation in decision-making processes. For him, individual participation in decision-making processes has protective and positive psychological effects on the participants as it ensures “a continuing interrelationship between the institutions and the individuals interacting within them” (Rousseau, 1974: 96). Rousseau argued that some specific economic conditions necessitate a participatory system to be effective, in relation to his strong arguments for a society of economic equality and independence. Although his theory does not require absolute equality, rather that the differences that do exist should not lead to political inequality, Rousseau argues that there should not be a situation where one citizen is so rich as to “buy another, and none so poor as to be forced to sell himself”, but rather each man should own some property as a basis for political equality and independence (Rousseau, 1974: 96). 61

For Rousseau, as long as each person is independent of the other and no one is compromised; then individual participation will be effective. Rousseau thought that the ideal situation for effective participation is one where every individual has equal opportunities as in an organised group; to get involved in the decision-making processes. For Rousseau effective participation is for decision-making, protecting private interests of citzens, and ensuring good and responsive government (Rousseau, 1974: 97). Rousseau also makes a close connection between participation and control as linked to his notion of freedom. According to Rousseau, “the individual's actual, as well as his sense of freedom, increases through participation in decision-making because it gives him a very real degree of control over the course of his life and the structure of his environment” (Rousseau, 1974: 96). Rousseau also argues that freedom requires that each citizen should exercise a fair measure of control over those that apply the laws and and practice representativesystem of inclusion if any, through a direct or indirect participation system (Rousseau, 1974: 96). For Rousseau participation increases the value of citizens’ freedom by enabling them to be (and remain) their own master.

Rousseau also suggests that effective public participation has an integrative function, which increases the sense of belongingamong individual citizens in their respective community (Pateman, 1970: 27). For example, basic economic equality means that there is no division between rich and poor, there are no men, like the one Rousseau disapprovingly mentions in Emile, who, when asked which his country was, replied “I am one of the rich” (Rousseau, 1921: 313). But more significantly is the experience and practice of participation in decision- making itself that brings individual’s gratification, as well as the complex totality of results to which it is seen to lead, linking individual citzens and the governance system. Participaton in public affairs provides an opportunity for linkages between individuals and their governance systems and structures thus gives the former mandate to constantly check and balances of the latter. This becomes instrumental in developing their community.

Furthermore, Rousseau advocates for direct citizen participation as he calls it developmental, educative, therapeutic, legitimating, and protective of freedom (Hart, 1972: 614). For Rousseau, participation of citizens in public affairs is fundamentally enriching because it “develops the highest human capacities and fosters an active, public-spirited

62 moral character” (Pateman, 1970). This is what Sen calls the “notion of capability”, which is discussed in chapters one, section 1.1 and five, section 5.1. Rousseau argues that the role of the state is to ensure favourable conditions are in place to allow every citizen to exercise and fulfil the duties and responsibilities of citizenship – which is the ultimate goal of the state (Stivers, 1990: 87). Therefore, through direct and effective participation, Rousseau agrees that people are able to realise their potential because “good processes produce good people” while obstacle that hinder participation inhibits self-development of the citizens (Cunningham, 1972: 590).

Rousseau further argues that direct citizen participation is educative in the sense that the more an individual participates, the more he or she develops the attitudes and skills of citizenship, the sense of belonging and togetherness, and the more others will be drawn into the process, making their governance system more democratic, legitimate, and integrative as opposed to alienation (Pateman, 1970; Salisbury, 1975). It thus follows that providing participation opportunities to citizens enhances their capability which in turn results in more effective participation.

Rousseau introduces the concept of “General Will” (Grofman and Feld, 988: 568). 1762) as a common good held by the people as citizens of a nation. Rousseau seems to suggest that participatory democracy is ideal and to be encouraged since it points towards the “Will” of the masses. He argued that participation in public affairs should not be limited to politics – to be confined to voting in elections at regular intervals only – but rather should be a continuous and routine activity to include all the citizens in governance issues (Grofman and Feld, 988: 569).. Rousseau castigates the bureaucratic nature of public institutions. He agrees with the argument that the role of making decision should be taken away from the bureaucratic state institutions and devolved to small communities that enable individuals and groups to contribute to making of laws and policies directly related to their needs (Southall, 2010: 10). In this way, the “General Will” would be realised because individuals are imbued with the public spirit of equality, which empowers people through the process of democratic consultation and interaction (Barry 1989: 283), but also qualifies them to be the citizens of a particular area. The same view about the qualification of citizenship is also held by other thinkers including John Dewey, in his idea of community; Ernest Baker and his concept of duty; and Walter Lippmann’s notion on civility of citizens (Dimock, 1990: 21). The 63 three thinkers look at citizenship as the priciple goal of life that is qualified by their direct involvement in issues that concern them.

The reflections of Rousseau on public participation pave the way for the human progress trajectory in which communities and their connectedness complement the notions of individual liberty, and in which the human soul transcends science (Damrosch, 2007). Rousseau further argues that participation goes far beyond decision-making processes; it is also a way through which individuals are linked to others and become aware of others’ views and learn to take account of the public issues in view of community interests. Participation therefore serves a significant educative function: through which individuals become aware of their roles as citzens and become community members, resulting in develop a sense of belonging (Pateman, 1970; Salisbury, 1975). Rousseau intimately links the notion of participation with the development of civic life – an idea that has had a profound influence on subsequent democratic and good governance discourse – and more specifically on the question of what is the relevant and appropriate type of governance for the vulnerable, less privileged, and marginalised communities.

Critics of Rousseau’s ideas, including Sheldon Wolin (1922-2015) and John Rawls (1921- 2001) argue that even if public participation is deemed to be a public good that needs to be maximised, it may still need to be well structured to avoid individuals dominating others, for instance majorities oppressing minorities. Also, it is argued that even if the people’s capacity is enhanced by the devolution by governments of powers to local communities in view of resolving bureaucratic tendencies, the issue of aggregating, assessing and realising public desires at the national level remains. Furthermore, the widening of opportunities for public participation will tend to favour those who enjoy, or who have a particular talent for, participating: hence, critics argue, elites will tend to emerge just as much as under any general participatory systems. It is therefore of importance that recourse to constitutionalism and rule of law for good governance is adhered to, alongside participatory democracy.

Having looked at Rousseau’s reflections on public participation and particularly his worldview benefits of this to the citizens, the next sections explore the two theories

64 underpinning this study. These are minority democracy theory and participatory democracy theory.

3.2 Minority democracy theory

Minority democracy theory holds that all persons are equal in some important ways and all deserve a voice in their public governance; and their participation is paramount (Kamal, 2000: 9). The theory holds that each member in the community carries elementary rational capacities that are sufficient to judge the conduct of government, and thus ought to be included and participate directly in making policies that directly affects them. Terchek, (2001: 17) observes that these sorts of freedoms are liberal rights and are valued as essential components of an open and democratic regime that is accountable to citizens. Kukathas (1998: 690) and Habermas (1996: 31) argue that the core of a legitimate minority democracy lies in the protection of individual rights and minority interests, as well as the entitlements of the minority group that cannot be characterised as individual issues. Kukathas makes a more modest claim that “while liberalism may not optimally protect minority interests, it provides the best ways for conflicting groups and individuals such as vulnerable minorities and dominant majorities to co-exist” (Kukathas, 1998: 691). He further holds the opinion that minority democracy does not promote any individual or group notion of the good but “upholds the framework of law within which individuals and groups can function peacefully”. This idea has been supported by traditional liberals, such as Adam Smith, John Locke, Plato, Jean-Baptiste Say, Thomas Malthus, David Ricardo, and John Stuart Mill.

According to John Locke, people are “by nature free and equal”, with none without subordination or subjection by the other (Locke, 1764: 222), and that government exists to promote public good; protect lives, liberty, and property of its people (Theriault, 2009). Locke further argues that, based on this fact, public leaders must be choosen by all adults of the society to represent them, and in turn the society must consult them since they hold the power to remove them from their leadership roles when necessary. However, this is still a challenge in Africa as many political actors often times manipulate democratic processes, including electoral laws, to suit their interests and thus fail their citzens in terms of effective

65 empowerment of citizenry. This has resulted to many actors on the continent to question the legitimacy of and the need for democratic processes.

John Stuart Mill recommends representative government to be the ideal best form of government (Stuart Mill: 1861). For Mill, tagovernment that satisfies demands of citzens is one in which all the people participate; even in the smallest public function; that the participation of its citzens is regarded everywhere and at all timesas great as the general degree of community development will allow; and that nothing less can be ultimately desirable than the admission of citzens to a share in the sovereign power of the state through effective participation (Brilhante, et al, 2013: 57). Mill’s position is informed by the assumption that e if citizens are capable of personally participating in public issues, then it follows that the ideal type of a perfect government should be representative;, where concerned citizens have a say in the exercise of that ultimate authority their leaders hold. Plato also supports the idea of representative government, when he suggests that representation should be entrusted to a few carefully educated guardians, whose minds are pure of distractions (Brown, 2017: 7).

While these thinkers supported democracy through representation, their thoughts seem to be contradicting general lines of contemporary democracy discourse. With an intetion to oppose the tyranny of the masses, for instance, Mill proposed that “votes should be valued according to the standards of education of citizens” (Brilhante, et al, 2013: 53). By suggesting ths, Mill failed to recognise a proposal of this nature will discourage many people in the context of current situation, and thus does not inspire the participation of most of the citizens in public life, especially in Africa, where illiteracy rate is high, coupled with voter and electoral process manipulation. This equates participation in public to political knowledge and expertise in governmental issues, which to a certain extent weakens his democratic arguments of representative government. As a matter of fact and reality, this does not favour most of the indigenous ethnic minorities in Africa, who are highly illiterate and ignorant (including Batwa) about political terrain of their societies. In this argument, Mill sought to create a balance of power that would allow citzens with higher levels of education to be more influential in the body-politic processes which, according to him would not occur if votes from citzens had the same weight. According to Brilhante and et al (2013: 55), Mill’s

66 preference for highly educated citizens to subdue and represent an unskilled population gives the impression of disrespecting the less educated and common voters, and arbitrarily creating an electoral aristocracy, a system that would be resisted in the modern democratic discourse.

Minority democracy theory tends to put much emphasis on the historical realities and authenticity of the citzen’s relation to the state as the basis for their legitimate claims, in terms of their involvement in affairs of the state, and as the standard measure to classify citzens (Lijphart, 1997: 4). Interestingly, thinkers who focus on questions of ethnic minority rights offer a range of views about the proper place and scope of those rights (historical and authentic). Thereare four focal points in the context minority democracy that represent important standards emerging democracies (such as the one most African countries enjoy), which will be expounded more in this study. These are: democratic elitism, traditional liberalism, liberal pluralism, and communitarianism. Advocates of the minority democracy theory argue that the approach of representative provides ethnic minorities with political and civil liberties, including the right to be free from discrimination, right to participation and providing specific protections to ethnic minorities when engaging and involved in public issues concerning them their lives (Horowitz, 1991: 22).

It is further argued by the proponents of this theory that because individuals tend to value their cultures, and can exercise freedom of choice, including participation, meaningfully in as far as such freedoms make sense in the context of their cultures, it thus becomes crucial that cultures and practises of ethnic minorities be preserved and protected. Accordingly, providing systematic protections for minority groups will not necessarily conflict with, and will in fact often promote, core liberal values of justice and individual autonomy that both facilitate an inclusive society (Lawrence, 1995: 820).

Those who oppose this theory find difficulty in identifying groups that should be accorded protections; what rights should be recognised, and what kind of protections should be given. Liberal pluralists, such as Will Kymlicka, have come up with a typology of groups, for example immigrants, national ethnic minorities and indigenous groups; and of the corresponding claims they might make such as non-discrimination, participation and consultation, respect for language, territorial autonomy, right to cultural heritages; and the

67 justifications for those claims including distinctiveness, consent, and authenticity. Kymlicka further postulates that minorities are also entitled to various degrees of nation-building and their claims must be supplemented, not substituted, by human rights (Kymlicka, 1995:18).

Communitarian theorists who support this theory, such as, Tully (2008: 461), argue that personal cultural values should only be one of many sets of values in a robust constitutional democracy. Tully argues that democracy should not put emphasis on individual rights or on participation that favours a certain set of rights only, rather all the communities within the state must be true constituents of the state, in the sense that their preferences on the governance of the state must be sought and they should be involved in all the processes (Baylis, 2014: 32). It has been observed that too much empahis placed on liberal rights on the expense of other rights and interests preferred by ethnic minority communities, undermines the whole legal basis on which minority democracy is hinged. Tully and similar thinkers that emphasizes the connection between individuals and their communities (communitarians) hold the view that incorporation and participation (o the level desired by respective community) is the ultimate goal not liberal values and authenticity that may not benefit the general citizenry. It is thus critical to note that for communitarian, as long as people belong to a specific community, certain rights have to be accorded to them by the state.

As a social system, minority democracy theory seeks to establish democracy based on individual participation; guided by two strands: first, that the individual actively shares in those social decisions determining the quality and direction of their life; and secondly, that society is organised to encourage independence in people and provide a forum for their common participation. This encourages participatory democracy as a suitable approach that enables people form all walks of life and at all levels, to contribute to decision-making processes in matters relating to their personal lives (Miller, 2005: 7). While recognising that modern society is full of complixities that restrict democracy in broader sense, minority democracy theory emphasises that everyone must get involved in their affairs because their participation creates common interests, will, and community action that give legitimacy to government that governs them (Barber, 1984: 11).

Minority democracy theory allows the active participation of every member of society. The theory does not emphasise representativity but rather seeks to involve everyone aiming at empowering the marginalised and vulnerable people in the community. However, the theory assumes and generalises that all minority groups are at the same levels of development and enlightenment and able to participate at the same level, forgetting that some do not have the capacity to participate fully and hence, representation becomes not only more meaningful but also appropriate. The theory can be effective and an appropriate means for marginalised ethnic minorities if the principle of capabilities can be given space in its processes. This is because the “capability” approach, as described in chapter one, section 1.1, is emphatic on the end-result of the equation – the quality of life that individual person is actually able to achieve – specifically on functionality and the capacity to achieve their goals. Otherwise, if the citizens are given the necessary capabilities, the theory remains inappropriate for the less privileged and marginalised communities.

Having seen the benefits of the theory of minority democracy, in the following section I subject the theory and its various presuppositions to academic scrutiny. There is at least one key normative assumption that is implicitly underlying in this supposedly "value-free" model of democratic involvement of people in their affairs. Supporter of this theory, including Stuart James Mill and Jeremy Bentham and by contemporary liberals such as Schumpeter and Dahl, even with the limited functions it offers for effective participation, assume a "one- dimensional input-output” view of personal well-being. They posit that the value of democracy should be measured by the degree to which the "outputs" of the democratic processes – social services, security, and material support – benefit ordinarycitizens. For both Mill and Bentham, citizen participation is protective tool in as far as it ensures protection of private interests of each citizen. the success of a democracy should be assessed on the degree to which the democratic system conforms to the basic principles that uphold the values of the people and puts citzens as main pricipals from which they draw their human dignity protection, including basic principles of socio-economic and political rights Whether the democratic system provides sufficient opportunities to citzens to effectively participate in decision-making processe, the question remains irrelevant if people’s interests, needs, and aspirations are not accommodated by the same democratic systems. The

69 contemporary liberal view of a citzen focused democratic system, assigns to the "ordinary citizen" apassive role in participation continum and only as a recipient of benefits.

3.3 Participatory democracy theory

Participatory democracy theory emphasises an all-inclusive and comprehensive participation of people in the direction and operation of public affairs that concern them, by involving the active participation of a well-informed citizenry; who lobby their representatives for their interests (Kaduuli, 2008: 4). This theory strives to ensure that members of the society get suitable opportunities to effectively participate in decision-making processes, as well as provide different but extensive options for people access such opportunities (Zittel, 2003: 7). This theory recognises public participation as a value that, in itself, is necessary for the growth and development of its citizens. It further argues that the provision of public conditions which allow for “maximum self-development” and the “opportunity to enlarge their vision and sense of themselves” is compulsory, hence ordinary citizens are both capable, and obligated, to strive to develop an awareness of their self-interest and to cultivate an empathy with, and a commitment to, the well-being of others (Houlihan, 2009: 31).

Participatory democracy emphasises the basic root principles, such as decision-making process, to be conducted by ordinary people themselves within their primary groupings. The spirit of the theory is that public participation ought to be seen as an approach for all citzens to come together and establish acceptable social relations. In doing so, the theory holds that, it is one of the ways of bringing people out of isolation, delivering them to a communal setting that is necessary for nurting human dignity, although in itself may not be a sufficient way of finding meaning in personal life (Masango, 2001: 40). The theory hypothesises that public participation should aim at resolving inclusivity problems in public affairs and thus provide outlets for the expression of personal grievance for people concerned to their authorities , as well as bringing to the table dissenting in view of providing best choices that facilitate the attainment of public goals (Miller, 2002: 8).

Barber (1984: 10) labels participatory democracy as a strong and viable choice because it produces popular control of issue formation, final decision-making, and policy implementation by the few people with expertise and knowledge. Proponents of this theory agree with Carole Pateman (1970: 25), who postulates that “participation develops and 70 fosters the very qualities necessary for it; the more individuals participate the better able they become to do so”. The mutually supportive relationship between participation and equality is one of the fundamental assumptions underpinning participatory democratic theory. They take issue with the liberal propensity to depoliticise participation by making economic equality a prerequisite for democratic participation. Supporters of this theory further argue that, ultimately, participation translates into power, generating greater equality between the classes, which functions as a catalyst for subordinate classes to continue the struggle for equality (Houlihan, 2009: 14).

However, critics of participatory democracy theory fear that increasing rates of participation might endanger the realisation of other values of democracy such as minority rights or the efficiency of decision-making. This is because there is no provision for mechanisms that ensure the quality of participation at ground level. A basic problem of participatory democracy lies in the fact that it is precisely the strategy that is the least politically enforceable and controllable (Zittel, 2003: 5). It only allows passive participation and is weak at representational participation, hence does not consider building the capacity of the weaker groups such as minority groups, but rather tends to increase opportunities and capacity of people who already have access to such previllages. John Dewey, a leading proponent of participatory democracy asserted that “genuine democracy involves far more than periodic voting for politicians—it requires intelligent, active participation in the formation of values that regulate the living of men and women together”. He maintains that “all those who are affected by social institutions must have a share in producing and managing them” (Ratner, 1939: 400).

Supporters of participatory democracy hold that public participation has an educative function. This educative function in public participation, particularly in decision-making processes, requires inclusion of all concerned people in the society. According to Almond, this demands substantial inclusivity of all people at all levels and in all sectors (education, industry, workplace, and in local government), so that “participation will be a significant part of the individual's everyday life” (Almond, 1965: 290). This educative role of participation relates to the notion of capability, in as far as education seeks to empower citizens to effectively get involved in public affairs and to influence policy-making processes. This is what Habermas calls deliberative democracy and communicative power. 71

By deliberative democracy, Habermas means a collective decision-making process which emphasises every person in the community, either affected or to be affected by a policy must access suitable opportunities and have necessary capacity, to participate in making decisions that are consequential on their lives. In consequential deliberation about that decision. For him “Consequential” means deliberation must have some influence. In a similar way, for him, communicative power is the ability for citizens to express their democratic issues, not as individuals but in community with others without hindrance (Flynn, 2004: 434; O’Mahony, 2010: 55). Both deliberative democracy and communicative power – as is participatory democracy – emphasise educative power, community-generated power, and fair procedures that allow the public to deliberate and come up with quality outcomes that are democratic in nature. Both notions raise the point of capability as held by Amartya Sen. Citizens will not be able to deliberate or influence decisions if they do not have capacity to do so. Thus, it is imperative to ensure that the educative role of participation is prioritised such that citizens have “power” and “capacity” to participate effectively.

However, the question is; why emphasise deliberation at the expense of efective participation – that has beneficial educative function to people concerned? Deliberative democracy is criticised, on the point that it only emphasises discussions by few as a representative approach and not having active participation by all. Modern theorists, such as, John Stuart Mill and Hannah Arendt, agree that “participation in public affairs is good in itself, as an instrument in bringing about, or implementing qualitatively better decisions” (Mill, 1972; Arendt, 1970). This means that, while deliberations are good, they should be based on all- inclusive participation models and not on a few individuals on behalf of the majority. in light of this therefore, the benefits that come with effective participation in public affairs principally remain personal, however, as Cooke holds, they improves “moral, practical, or intellectual qualities of those who participate; make them not just better citizens – though clearly this is crucial – but also better individuals” (Cooke, 2000: 948).

Supporters of of participatory democracy theory, including John Stuart Mill and Jean J. Rousseau, argue that the general character of a citizenry measure, a function of the socio- economic institutions of the society (Christiano, 2006). For instance, the behaviour exhibited while exercising political mandates does are not independent of pre-existing social relations. Attitudes to political authority, for example, are influenced by the authority patterns, which

72 prevail in social settings, such as, family, school, and the workplace, where people normally spend most of their lives. It should be noted that both social and political environments have a big role in shaping the nature of the person, and so the more the person participates in both social and political processes, the greater awareness and experience in determining their destiny.

A related opinion is held by Al'mond and Verba (1956: 294), as they observed positive correlation between public participation and the essence of public efficacy – citizens' faith and trust in public authority (government) and their belief that they can understand and influence affairs that affect their lives (Bandura, 1994: 71). For them, participation in non- public, such as religious and cultural processes may give one requiredskills and capacities to engage in public affairs. Socio-cultural processes, which are intrinsically private, are training grounds for participation in public affairs. It is thus of significant importance for the citizens to get involved in issues that are not public in nature, but concern their well-being.

Other supporters of this theory, such as, Karl Marx and Mikhail Alexandrovich Bakunin argue that if participatory democracy is to be more meaningful for people, necessary conditions must be in place, including, ensuring the majority of the population access information and are able to understand and analyse it; and there is decentralisation of decision-making structures that is transparent (Schafer, 1974: 500). For citizens’ participation to be significant in their lives, and for it to have educative efficacy as held by by Rousseau, it needs to be procedural and systematic and not a one off event. Otherwise, meaningful participation will not happen if the decision-making processes and structures are centralised with strict bureaucratic processes (Kweit, and Kweit, 1980: 650; Kaifeng, 1998; 4).

This theory argues against centralisation of public participation in a sense that it encourages hierarchically organised bureaucracies, which often brings a sense of alienation, with some degree of “hopelessness” among many citizens (Schafer, 1974: 500). In my opinion, it could be generally accepted that the development of large-scale bureaucratic organisational structures gradually affects individual rights and opportunities of the citizens to effectively participate in the decision-making process of their country at different levels of governance and administration. As such, as Schafer (1974: 500) further observes, “the more centralised

73 and bureaucratic the public institutions become, the more narrow and distorted becomes the view which citizens have of the process as a whole and they also feel challenged to participate effectively”.

3.3.1 Relationship between the two theories

Both theories aspire to reduce inequalities, in political, social, and economic spheres by ensuring that every citizen participates in matters that concern them, and seek both to strengthen democracy as a mode of governance, and empower citizens either directly or indirectly. Both theories value inclusive citizen participation and encourage all citizens to express their preferences, to develop an awareness of their self-interest as well as a commitment to the well-being of others. In doing this, both theories stress the community’s involvement in its own issues and further seek to enhance the quality of life, promote collaboration and partnership building and enhance cohesion in the community.

However, participatory democracy theory falls short of some critical elements needed for advancement and empowerment of ethnic minorities such as Batwa, which elements are given by minority democracy theory. Such elements include active and individual involvement in representational participation, protection of ethnic minorities’ culture, traditions, ideologies that are very critical in participation at different levels. Kamal (2000: 2) observes that “democracy implies the guarantee and protection of basic freedoms and rights of citizens; accountable and transparent governance and opportunities for citizens to participate in policy matters and decision-making”. This means that citizens have to be equipped with tools – education, good health – and well organised their own structures. In addition, citizens are supposed to ensure that their democratic values, principles and institutions are upheld, as well as use their energies to improve their welfare. Theoretically, ethnic minorities ought to have the similar opportunities (in relation to other citizens) to participate in public affairs and to influence decision-making processes. According to Olum, democratisation remains a key condition that allows participation for all, in as far as it provides vulnerable, in this case ethnic minorities, with the channels and opportunities to influence and develop policies that would be in their interest (Olum, 2014: 24).

3.4 Conceptual framework

3.4.1 Era of convergence Minority issues came to light during World War I and have evolved tobe part of the international legal framework and development perspectives in almost all UN member states agreed to uphold, respect and protect (Wippmann, 1997: 599). Ethnic minority rights were raised, for the first time, in 1814 in the Congress of Vienna, under the discussion of German Jews and especially the Poles who had once again been partitioned (Liebich, 2008: 245). After World War II, the international community was united to protect and promote the rights of ethnic minorities. Numerous human rights instruments, structures and systems were put in place, both at regional and international levels. State after state were signing and ratifying these instruments, such as Universal Declaration of Human Rights (UDHR), International Covenant on Civil and Political Rights, Convention on the Rights of the Child, Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, the African Charter on Human and Peoples’ rights as well as the Declaration on a Code of Conduct for Inter-African Relations.

During this era, there is a general consensus and will to establish at different levels and various regions mechanisms and processes to support the minority discourse. For instance, in 1992 the United Nations General Assembly adopted the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities by consensus (resolution 47/135). In Pilla’s views, “the declaration is a first step towards a more systematic strengthening of the international standards towards protection of minority groups” (OHCHR, 2012: 4). According to Stephen Allen, the success of minority issues at the UN is based on how states will embrace the declaration, which is a “foretaste” and a standard that other vulnerable and marginalised groups can expect to achieve “in a mature international society” (Allen and Xanthaki, 2012: 486). Some countries, such as Poland, described the declaration as a “sound document” achieving a balance between minority rights, state obligations, and state interests. As such no state objected to its adoption.

In view of domesticating these instruments, the Ugandan government, like many African countries, has tried to put in place legislations and institutions to work on the issues of minority. Based on this, one can rightly conclude that there has been a will to address

75 minority issues at various levels. While some of these initiatives have been lauded at various levels, their implementation has not met the required standards. The scholarly interrogation of this study, and in particular chapter four, is to understand the rationale behind some of these instruments, their implementation, and to what extent these instruments are helpful to safeguard and facilitate minority rights in respective UN member states.

3.4.2 Era of divergence

While various ways were being tested globally to ensure effective implementation of the established legal frameworks, as well as devising means and approaches to ensure protection of minority issues, including right to participation of people belonging to minority groups; on the African continent, on the other hand, indigenous ethnic minorities were facing resistance from their government, being discriminated and denied recognition; as a result their participation rights in public affairs and in issues of their specific concern, were seriously getting affected. Some scholars, such as Nowak, (2005: 488) have attributed this to some of the instruments that have been generally formulated without considering specific contexts in which minorities live. For instance, article 27 of the ICCPR has been interpreted differently. By using the phrase "in those States in which . . . minorities exist," article 27 gives states the option of not recognising minorities within their territories, thereby excluding its application in such states as is the case with Ghana, Gabon, Cameroon, and Uganda. For instance, the Ghana representative while appearing before the ACHPR, in response to the question domination of one people by another, he said: ”Well, I must say the obvious answer in the case of Ghana is no. There is no domination of one people, one ethnic group against the other. That is quite obvious”13. In a similar way, Gabon reported to the UN Human Rights Committee that “there is no problem of minorities in Gabon [because] the population is fully integrated socially”14. Ghana, Liberia, and Cameroon, denied existence of minority issues in their countries but advocated for integration and assimilation of such groups. In its first report, submitted to UN Commmittee on the Rights of Children in 1995, Ugandan government denied the existence of such groups as “minority” stating that “none

13 ACHPR Examination of State Report of Ghana, December 1993, 14th Session. 14 CCPR/C/128/Add.1, 14 June 1999, para. 50 76 of the ethnic groupings in Uganda is regarded as minor or even indigenous for the purposes of article 30 of the CRC”.15

The reasons for such denial can be linked to outright opposition or delaying tactics by many African governments. The major concern, often raised, was and still is the potential disruption or subversion recognising ethnic minorities may bring, which some government assume may result into national challenges if such groups are granted additional rights. In the general context, many government fear that once given recognition especially in social, economic, political, and culture issues that would bring secessionist discourse, which may threaten national unity and territorial cohesion. However, there is enough evidence to suggest that by upholding and recognising ethnic minorities rights, including group dignity and preserving their identities, is a mitigation to ethnic disputes as well as reduce other socio-economic and political problems, and increases “productivity of groups and other contributions of theirs to society, to enhance prosperity and cultural diversity at the national level” (Alfredsson, 2000: 294). An example here is the way the Burundi government has managed the issue of Batwa in public participation in political and social issues.

Another argument that has been held for slow progress on minority rights acceptance by many states continues to be the absence of an effective group to push forward the minority issues at different levels of policy and decision-making, and lack of consistent use of existing standards and monitoring procedures at different levels, such as the African human rights system. Once the governments showed their indifference and/ or lack of political will to recognise minorities, in Africa for instance the would be pursuers of minority issues lost morale in engaging with the stakeholders relevant to the promotion and protection of minority rights at all levels. This explains slow pace of formulation and adoption of minority rights in international legal regimes, compared to the indigenous peoples’ issues that are implemented and are binding in nature. When the UN General Assembly adopted the UDHR in 1948, minority-specific rights related to ethnic minorities did not feature into the text, but remained indifferent to the “fate of minorities”. As Janusz Symonides points out that the General Assembly noted “… it is difficult to adopt a uniform solution to this complex and delicate question, which has special aspects in each State in which it arises” (Glen and

15 Initial reports of States parties due in 1992: Uganda. 17/06/96.CRC/C/3/Add.40. (State Party Report) 77

Symonides, 1998: 60). It was, however, not until late 1980s and early 1990s, that the issues of ethnic minority were being discussed at international levels and thus coming up with the declaration on minority issues.

The research study will seek to find out why the same countries that established various legal frameworks, structures and systems at various levels have not implemented them to realise the intended goals (protecting and promoting the rights of minorities). What went wrong? The study research will further try to interrogate why, despite the progressive instruments, the issues of minorities, and as such their participation rights, seem to be ignored.

3.5 The concept of ethnic minority in international law

The first significant attempt in identifying and recognising minority rights was through a number of “minority treaties” adopted under the auspices of the League of Nations. With the creation of the UN attention shifted to what was then very critical at the international scene, namely, universal human rights and decolonisation (OHCHR, 2012: 4). However, UN has gradually adopted numerous fundamental legal regimes concerned with protection of minority issues.

In the eras of convergence and divergence, the concept of ethnic minority has progressively developed from local to international recognition, giving rise to regional and international mechanisms to protect and promote minority issues. Many states, including Uganda, Rwanda, Burundi, and the DRC, have accepted these standards, even though their implementation remains a challenge. The protection of ethnic minority protection is a continous evolving issue in terms of legal discourse and thus it is an issues that ought to be nurtured and enforced with sensitivity by all stakeholders and parties involved. . Under international and domestic law, ethnic minorities seek fair and equal treatment in protection and recognitionin proportion to the majority. As the years go by, Papouts observes, “minorities” protection issues have succeeded in gaining constant attention and progress – at least at theoretical level” (Papoutsi, 2014: 4).

UN Minorities Declaration (in article 1), describes minorities in reference to national or ethnic, cultural, religious and linguistic identity. Although the term minority has been

78 recognised in international legal regime and in some of the work done so far at various levels, there is no universal agreement about its definition. As Capotorti puts it; “the preparation of a definition capable of being universally accepted has always proved a task of such difficulty and complexity that neither the experts in this field nor the organs of the international agencies have been able to accomplish it today” (Capotorti, 1979: 5). Some of the initiatives that have been undertaken towards defining the concept of minorities include the attempts by Francesco Capotorti, Special Rapporteur of the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities. These attempts have come up with definitions that raised some contestations. In international law, it has been emphasised that the “existence of a minority is a question of fact and not law; and that any definition must include both objective factors – such as the existence of a shared ethnicity, language, or religion – and subjective factors – including that individuals must identify themselves as members of a minority” (OHCHR, 2012: 2) observes that the difficulty realised in agreeing to an acceptable definition of who ethnic minority is, has paused, to some extent, the various lifestyles and situations of minorities.

In international legal discourse and official documents, the most widely acknowledged definition is the one formulated by Special Rapporteur Francesco Capotorti. In his highly regarded study for the UN on the rights of persons belonging to minorities based on article 27 of the ICCPR, Capotorti defined a minority for purposes of article 27 of the ICCPR as: “A group numerically inferior to the rest of the population of a state, in a non-dominant position, whose members – being nationals of the state – possess ethnic, religious or linguistic characteristics differing from those of the rest of the population and show, if only implicitly, a sense of solidarity, directed towards preserving their culture, traditions, religion or language” (Capotorti, 1979: 5).

For the purpose of this study, a definition that is grounded to the situation and the context of the ethnic minority communities in Uganda, as well as in the neighbouring countries of Burundi; the DRC; and Rwanda; is formulated to guide this study towards clear and in-depth understanding of the ethnic minority issues in Africa:

the population in that location and they are all willing to claim, preserve, protect, and promote their culture, customs, traditions, or language.. For the purpose of this study, the most important elements of this definition are: the numerical inferiority of the group; the ‘non-dominant position that it has in the society’; the ‘ethnic, religious and linguistic characteristics’ distinguishing the group from those of the ‘rest of the population’ of the state; and the collective will to preserve its ‘culture, traditions, religion or language’. In terms of citizenship, it should be highlighted that this element is based on the situation in Europe at that time, and hence the idea of “new” vis-à-vis “old” minority emerged thereafter. The phrase “new minorities” has been generally used to refer to minority groups resulting from post-World War II immigration (Papoutsi, 2014: 4). Such descriptions of minority have contributed to the failure by most African states to effectively adhere to the international norms and rubrics regarding minority issues.

In the context of this study, the numerical factor raises some pertinent issues. The first relates to its importance in determining a group’s minority status in a country. The idea that a group constitutes a minority, if it is less than 50 per cent of the total population of the state, is very difficult to sustain in Africa, particularly in Uganda’s context where many ethnic groups do not constitute this percentage (Wairama, 2001: 8). But also in some African contexts, some numerically inferior groups have dominated social, economic, and political spheres of their respective societies. Examples include, in South Africa during the apartheid era; in Rwanda and Burundi, minority Tutsi have dominated majority Hutu. Dersso (2010: 8) argues that in countries composed only of numerical minorities characterised by some as countries of minorities, as is the case in the majority of African countries, the relative population size of groups says little, if anything, about the issue of minorities. Some scholars, such as Capotorti, (1979); Alfredsson, (2000); and Crawford, (1988), have suggested that in such cases each group in a state is a minority vis-à-vis the aggregate of all other members taken together. This approach of thinking, however, raises issues of comparing the particular ethnic group in perspective with the rest of the groups that form the general population. Minority groups should be seen in their perspectives within their specific contexts.

3.6 Ethnic Minority - Indigenous nexus

There are a number of ethnic minorities and indigenous peoples that exist on the globe, and one thing they have in common is the discrimination, marginalisation, and/or exclusion they often experience (Garten, 2013). While there seems to be distinctions between minority and indigenous peoples, it is sometimes difficult to determine the difference as well as the point of intersection. On several occasions, African governments have denied the existence of indigenous people by saying that all Africans are indigenous in Africa. It has to be noted that several indigenous groups – Batwa in Uganda; San in Namibia, South Africa, Botswana; Efe in the DRC; Bakoya in Gabon; Ogiek in Kenya – are ethnic minority groups in their countries as well as territorial regions (within the country). The continued denial of indigeneity subsequently affects the ethnic minority issues, such as right to effective participation in public affairs. This has been compounded by the lack of recognition and clear definition at various levels, particularly at state levels.

Indigenous peoples and ethnic minorities often have similar characteristics and there is a thin thread on the distinction between the two. Both groups are usually in “a non-dominant position; their cultures, languages, or religious beliefs often differ from that of the majority or dominant groups with whom they live; and they commonly wish to retain and promote their identity” (Barten, 2013: 8). In some cases, “minorities also have a strong and long- standing attachment to their lands” (OHCHR, 2010). In addition, indigenous peoples may not necessarily be numerically inferior, an example is in Bolivia, where indigenous groups account for over half of the population. The most fundamental differences between ethnic minority and indigenous peoples are in their rights, which are formulated as individual rights, in the case of ethnic minorities, whereas indigenous peoples’s rights are collective rights (Barten, 2013: 11). This is because indigenous peoples need each other as groups to survive as peoples, which enable them to exercise other fundamental collective rights such as: determining their own future destiny; continue and develop on their own terms their mode of production and way of life; and exercising their own culture (ACHPR, 2006: 13).

The human rights provisions listed in Universal Declaration of Human Rights and elaborated in other legal instruments, are individual human rights at the disposal of of everyone, including persons belonging to ethnic minorities and indigenous peoples. These provisions 81 ensure social integration in view of equal dignity, and as such are peculiar ethnic minority. On the other hand, indigenous peoples rights are intended to allow a certain degree of autonomy (rights to self-determination). This has been taken as the reason for some African states – Ghana, Rwanda, and Uganda – refusing to recognise some of the groups within their territories as indigenous for fear of secession.

It is important to note that ethnic minority and indigenous peoples discourses are “overlapping subject to common normative considerations”, and that “indigenous and minority rights issues intersect substantially” (Anaya 2009: 21) and a clear-cut distinction between the two remains a debate. Batwa are caught in this confusion of minority- indigenous debate, since Ugandan authorities, like many African states, have denied the indigeneity of Batwa, and rather prefer to call them a minority. However, Batwa qualify as indigenous communities, who have become an ethnic minority within Uganda, as well as in the communities where they are located.

Accordingly, the international recognition of the concepts of ethnic minority and their effective participation needs to be given particular attention at all respective levels especially in the implementation of the frameworks that states have voluntarily accepted. Given the situation of the ethnic minority’s recognition against the indigenous issues acceptance in the African context, it should be noted that self-determination rights, such as self- government or autonomy, apply only to those groups identified as indigenous peoples but not to minorities. As such a clear-cut distinction between indigenous peoples – marginalised and vulnerable groups living a pre-modern way of life – and ethnic minorities – groups having distinct culture and language suffering discrimination and marginalisation; seeking recognition, representation or participation – should be appreciated both by the practitioners and policymakers.

3.7 Conclusion

The concept of ethnic minorities can only be understood when we compare minority communities to the majorities. Also notable is the nexus between the ethnic minorities and indigenous people. It is evident that there are cases which satisfy both “ethnic minorities” and “indigenous peoples” and which protection each deserves. A community can be

82 indigenous as well as a minority in that specific location, and thus entitled not only some degree of self-determination, but also the right to integrate freely into national spheres for some purposes. The evolution of the concept of minority and the corresponding rights progressed at a slow pace. The reasons for this can be traced to resentments and neglect by governments to recognise ethnic minorities within their States. The main concern raised by the government against the recognition of ethnicity is the likely rebellions that would come up as a result of recognising ethnic minority, especially in AfricaGovernments initially thought that granting a recognisable status to ethnic minorities would encourage them to demand secession, which is against national unity.

Another objection and hesitations from governments, especially in Africa relate to the perceived equitable sharing of wealth and resources that would flow from the introduction of special measures to overcome negative discriminatory practises against ethnic minority communitoies. To this effect, ethnic minority issues were suffocated at various levels until convergence when the world realised that ignoring ethnic minorities amid a number of highly visible and violent ethnic conflicts all over was setting a bad precedent that would lead to more violence; that the international community acted on the minority issues. Having looked at theoretical and conceptual developments of the concepts of ethnic minority and participation, the next chapter continues to reflect on how the cecept of ethnic minority has been contextualised on the African continent. The chapter enables us th understand the the question of ethnic minority communities in Africa and their specific concerns.

CHAPTER FOUR

THE QUESTION OF ETHNIC MINORITIES AND ISSUES OF THEIR CONCERN Nothing can damage peace in the world, as can the position of minorities in certain circumstances - Woodrow Wilson

4.0 Introduction

The concept of minority rights is evolving. Although concern over minority issues is linked to the “birth” of human rights movements and discourse, it has been overtaken by various other events and concerns, among others being gender, homeseaxual and related concerns issues, and migration challenges. As such, there has been silence over the issue of the rights of the minorities. It has proven difficult to have a definition of who an ethnic minority is that is accepted in international law discourse. This chapter seeks to address two interrelated issues: first, the specific contextual – historical and political processes – that led to the genesis of ethnic minority rights issues in Africa; second, the nature and content of the problems of ethnic minorities. By addressing these interrelated issues, this chapter provides a background to the discussion on the rights of minorities as well as critical issues of concern particular to ethnic minority communities in Africa. The chapter further interrogates the common attributions and descriptions of ethnic minority as expounded by both scholars and development practitioners. In this way, it offers a rich context for subsequent chapters.

4.1 Historical background to minority protection

Since 1965, there has been a growing interest around questions of ethnicity and nationality, majority and minority, largely due to major events that have taken place. Some of these events include the inclusion of rights related to ethnic minority in core human rights instruments (regional and international), as well as the historical adoption of the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities in 1992. Although the major discussion and focus about minority rights at various levels took place during this period, minority protection goes beyond this period to a millenium in time. According to Vijapur (2006: 367), by 7th century the issues of minority had taken shape. He points out that around 7th, the Islamic rublics “Constitution of Medina,” which was written based on the Qur’an, included tolerance to people of other faiths, especially the “people of 84 the book,” or the Bible. The Medina Constitution ensured protections of minority groups, particularly Christians and Jews, who were allowed to exercise their religious and cultural rights16. This religious torelance eventually became the basis and reference for the signing of various treaties in 17th and 18th that sought to protect religious minorities in European countries (Vijapur, 2006: 368). According to French Duncan, it isthe Vienna Congress, of 1814-15that became the first to recognize and give minority group protection, specifically the Polish and United Netherland minority, on the grounds of ethnicity, rather than religion (French: 2013, 417).

This was followed by the League of Nations mechanism. After World War I, great powers came together to look at issues that were cross-cutting and cross-border in nature. On the list was the establishment of the League of Nations in 1919, which later gave birth to the current UN in 1945. Among the tasks the League of Nations had was to tackle protection of minority and creation of Permanent Court of International Justice (PCIJ), which has presided over cases involving minorities and providing protection of minorities17.

After World War II in 1945, the UN came into existence, ushering in the adoption of UN Charterin 1945 and the Universal Declaration of Human Rightsin (UDHR) in 1948. These two documents are significant to minority protection because of their emphasis on individual rights and the principles of equality and non-discrimination, but neither explicitly mention minorities (Jabareen, 2009: 14). Failure to include an article on minority issues in the UDHR for the minorities’ protection marked the historical background of article 2718 of the International Covenant on Civil and Political Rights (ICCPR). The general assembly, at the adoption of the UDHR, was concerned about the issues of minority. This was expressed in a resolution in 1948 that stated “… cannot remain indifferent to the fate of minorities”.19 Against this backdrop, at the request of the UN General Assembly the Human Rights Commission and its sub-Commission prepared a detailed study about minorities in relation

16 See articles. 20 Non-Muslim minorities (Jews) have the same right of life protection (like Muslims) also article 30. Guarantee of freedom of religion for both the Muslims and non-Muslim minorities (the Jews http://www.constitutionofmadina.com/articles-of-constitution-of-madina/ 17 See Advisory Opinion, 1935 P.C.I.J. (ser. A/B) No. 64 (Apr. 6), Advisory Opinion, 1930 P.C.I.J. (ser. B) No. 17 (July 31) 18 In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language 19 See para 1 of the UN General Assembly resolution 217 C (III), 1948 on "Fate of minorities" New York. 85 to their protection. This resulted in article 27 of ICCPR which is a cornerstone and foundation for subsequent legal framework for protection of minorities at different levels. Other mechanisms that have developed from article 27 of ICCPR include the European Framework Convention for the Protection of National Minorities (FCNM), UN Declaration on minorities and other special procedures at UN and regional human rights systems.

4.2 Understanding the concept “Ethnic Minorities”

The first gap in literature emanates from the absence of a shared definition of minorities. Equally disputed are the parameters that characterise a group to qualify a minority. The concept “minority” or “minority groups” was used in international and human rights discourse over half a century ago. Extensive work by scholars and practitioners has gone into elaborating the rights of ethnic minorities; focusing on issues such as representation, human and property rights, recognition, among others (UNOHCHR, 2012; Capotorti, 1979: 5). However, to date there is generally no acceptable definition of ethnic minority groups, in spite of the plethora of work in this area (Yash, 2003: 6). More work, for instance, has been done by the UN,20 regional mechanisms, including African and European human rights systems, civil society organisations, such as the European Centre for Minority Issues (ECMI).

At UN level, in 1992, the UN General Assembly adopted the minority declaration with special procedures mandate (Special Rapporteur on minority issues). Despite these, no concrete and generally agreed definition of who are ethnic minorities has been put in place. It has to be noted that terms, such as migrants, have been concretely defined and accepted in human rights rubrics at international21 levels. If, so then why not for ethnic minorities? It thus remains unclear how to define a minority community, but rather to describe them, which risks different interpretations and descriptions without a common or legally based understanding. For instance, one of the main sources of minority protections in international law is the ICCPR article 27 which is formulated “in an extremely cautious, vague manner”

20 See UN Office of the Commission for Human Rights. Available from www.ohchr.org/EN/Issues/Minorities/Pages/MinoritiesGuide.aspx20International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families of 1990, article 2

86 and “leaves many questions open, for which an answer must be found by way of interpretation and further studies” (Nowak, 2005: 644).

There have been debates on the need to have a universal definition of ethnic minorities. However, various efforts seem to be thwarted by the state actors – such as policy-makers and government technocrats – who deny the existence of such minority communities in their respective countries, particularly in Africa. It has been observed, especially in Africa, that there is reluctance on the side of governements when handling any question regarding definition of minorities. Ketley faults t states that they are avoiding their obligations under international law, which basically includes duty to respect, protect, and fulfil (tripartite obligation) in terms of ethnic minority rights (Ketley, 2001: 332). Second, some state actors fail to address adequately the issues of ethnic minority due to ignorance and intolerance in the mix of racism and discrimination, including stereotypes and prejudice according to Alfredsson (2005:163) and as discussed in detail in chapter five, section 5.10.

Unfortunately, this seems to be the trend in international organisations, such as the UN. In drafting of minority declaration, the UN Commission on Human Rights observed that “the question of definition was not a necessary prerequisite for drafting the declaration and that this question should not hinder the continuation of drafting work”22. Similarly, the working group that was established to draft the declaration stated that “the declaration could function perfectly well without precisely defining the term, as it was clear… to which groups the term referred to in concrete cases”.23 While drafting the minority declaration, , Max van der Stoel - High Commissioner for Organization for Security and Cooperation in Europe (OSCE) - stated: “given the dynamism and diversity in the nature and manifestation of the minority phenomenon, the possibility and necessity of a universally agreed upon definition of the term minorities may indeed be doubted” (Stoel, 1993: 4). It is still not clear whether minority groups should be understood in the light of their population numbers, physical or geographical location, commonality in language or culture, levels of vulnerability; or a combination of all of these. It is thus astonishing that institutions and mechanisms that should have propelled the definition of minority were instead deliberately ignoring it. Lack of

22 UN Doc. E/CN.4/1986/43 3. 23 UN Doc.E/CN.4/1991/53 para. 9. 87 a clear accepted definition, to some extent has facilitated the marginalisation of ethnic minorities especially in African contexts (ACHPR, 2009: 17).

While it may be seen as obvious and clear that a minority is a proportion of a nation’s population, the term minority brings more questions than answers, such as: Does “minority” equal to numerical weakness at a state level or the categorisation goes to lowere levels including regions and provinces of the nation? Another question to reflect on is whether “minority” can be deduced from economic and political strength or inferiority. This is based on the fact that in some instances, such as Rwanda, numerically inferior communities have dominated the majority in terms of political and economic powers. Against this back drops, are the rights enshrined in minority rights-focused legal regimes awarded to the group (as a collective entity), as individual rights holders, or perhaps to both? Does numerical percentage ofminority group influences it is become? Do minorities have to self-identify as such, for them to be protected, or is it enough to be identifiable by objective criteria24? Last but not lease is the question of qualification that define a minority (ie is it race, religion, language, ethnicity, national origin, or perhaps other socio-economic and political view)?

It is obvious that for the rights and protection of minorities to be recognised, it is essential to agree on parameters that delineate who falls within the term “minority”, either at national, regional, and international. The absence of such delineation at all levels has become a “thorn in the fresh” on advancing the protection of ethnic minorities. Both states and minorities have sometimes obstructed the process of defining the scope of the term. As noted in chapter three, section 3.4.2, Welhengama (2000: 13) further observes that states are in constant fear of scession, should ethnic minorities within their boarders get recognition. While ethnic minority often feel offended by some parameters used to identify them, such as “numerical inferiority”, a connotation they find difficulty agreeing to (either subjective or objective), but has to be accurately and legally included, if official definition has to see light of the day.

24 Objective criteria focus on the shared characteristics of the group such as ethnicity, national origin, culture, language or religion. Subjective criteria focus on two key points: the principle of self-identification and the desire to preserve the group identity. 88

Moreover, as Smith (2009: 3) puts it “a purely subjective test is problematic, since not all minorities may wish to be identified as such”. Feagin (1984: 10) gives five general characterists that describe ethnic minority group: first, Feagin observes that they often experience discrimination and exclusion; second, they are segregated based on the historical and cultural traits; third, they share a sense of collective identity and common burdens; fourth they share common socio-economic practices that keep them together. For the purpose of this thesis, and in the context of the ethnic minority communities in Uganda, based on different suggestions and ideas given by various scholars and activists, the researcher suggests the following terms to be used to refer to ethnic minorities (Batwa). This definition will be verified by the responses and information collected from the field:

A group of persons numerically smaller (non-dominant) than the rest of the population of a region or community in a state, who have a long-term presence in this region; whose members have ethnic characteristics different from those of the rest of the population in that region or community and they are all willing to claim, preserve, protect, and promote their culture, customs, traditions, or language.

Some debates have suggested that not every group that is statistically inferior in population automatically becomes minority and requires protection (Robinson, 1971: 61). The effect of this is that many countries have ended up refuting the existence of minorities within their jurisdiction, creating difficulties in advocating for minority rights. In African context, countries such as Ghana, Rwanda, and Uganda have categorically denied the fact that they have indigenous minorities within their populations, and have taken some sort of assimilation stances towards such communities25. In Rwanda, for instance, the 2003 Rwandan constitution outlawed the categorisation of ethnic identities; and as such, as Jeremie (2013: 418) noted, the government has strongly denied that there are ethnic minorities and thus offer to eradicate ethnic ideologies. Benjamin Ndahirwa, working for Rwanda Ministry of Local Affairs noted “don’t think of Rwanda like any other country. Every group in Rwanda has been marginalized at one point, and terminology has been used to highlight divisions.

25 See the response of Ambassador of Ghana before the African Commission on Human and Peoples’ Rights, in response to the question as to whether there was domination of one people by another, ‘Well, I must say the obvious answer in the case of Ghana is no. There is no domination of one people, one ethnic group against the other. That is quite obvious’, (14th Session ACHPR Examination of State Report of Ghana December 1993). Similarly, Gabon reported to the UN Human Rights Committee that ‘there is no problem of minorities in Gabon [because] the population is fully integrated socially’, Committee on Civil and Political Rights (CCPR)/C/128/Add.1, 14 June 1999, para. 50. See CCPR commentary, Ghana, Liberia and Cameroon, denying minority issues but advocated for integration and assimilation of such groups. 89

We can categorize people according to their socio-economic conditions and not in name of ethnicity, there is no population group to be regarded as ethnic minorities whose rights require special protection, every group is treated with full equality under the Rwandan constitution, and no group has a lesser status” (Cultural and Survival, 2006). Further still Rwandan government forced Batwa’s only legitimate organisation to change its name (to be able to renew its operational licence) from the “Community of Indigenous (minority) Peoples of Rwanda” (CAURWA), to the “Organization of Rwandan Potters” (COPORWA), (ACHPR, 2008: 31).

States as well as authorities, particularly in Africa, quite often consider ethnic minority groups as “marginalised” and/or “historically disadvantaged” communities. Often times, the term “minority” is contested. Scholars such as Jeremie (2013: 414) observe that a few national legislations are striving to put in place specific protection measures for communities such as “forest people,” or “marginalised communities” —that are often preferred to “ethnic minority.” Jeremie furthers agrees that the whole argument is more than the issue of terminology used, since the “marginalised” or “forest communities” in most African countries, are the minorities that are in need of specific protection measures due to their unique situation. The terminology debate (around ethnic minority concept) has also become central in in disputing arguments that the concept of minorities is a “Western” formulation that reflects the origins of the discourse – as both Salzborn (2009: 66; and Petričušić (2009: 2) seem to suggest), and fail to conceptualise modern realities in African post-colonial states.

In line with this, upon reflection, it is realised that this is an issue of terminology as the crux of the matter about minority rights is embedded in the whole continuum of providing protection for the most “marginalised” communities. Although, as Jeremie (2013: 434) holds that every one belongs to an ethnicity (the “ethnic jigsaw puzzle argument”), it may be erroneous to argue that everybody is in a marginalised situation and therefore belongs to a minority group. Keeping that in mind, until recently, the context of minority rights issues was framed in a simplistic fashion to “national minorities,”, which started as the western idea. It is from this context that critics, especially in the African context, argue that “adopting the terminology of marginalised minorities might well be a way to make the human rights

90 discourse on minority rights much more universal” (Jeremie, 2013: 436). As such, as the 2010 constitution of Kenya stipulate, marginalised gropus are those that have experienced hardship and discrimination because of historical contexts: “… that out of need or desire to preserve its unique culture and identity from assimilation, has remained outside the integrated social and economic life … community that has retained and maintained a traditional lifestyle and livelihood based on hunter or gatherer economy; … has experienced only marginal participation in the integrated social and economic…”26.

In both conceptual and practical terms, the difficulty in having an acceptable definition of who forms the minority concept, primarly lies in varying situations in which minorities exist. For instance, in the African context, some ethnic minority groups live as a community in a well-defined area, distinct from dominant population. Examples include Ik in Uganda. However, due to other external factors some minority groups are scattered throughout the country, a case of Batwa in Uganda, the DRC, and Burundi. While these variances could have worked against any efforts to come up with definition of what constitutes minority communities, this should not have failed atleast a generic but accepted criteria to define minority at regional or international levels. Nonetheless, wherever they are located, ethnic minorities have a strong sense of collective identity and traditions and tend to preserve their common culture and heritage. These include Batwa of Uganda, Burundi, and Rwanda; Barabaig of Tanzania; and San of Botswana, Namibia Endorois of Kenya. Yash (2003: 6) seems to suggest that because of their historical contexts and recent external factors affecting their lifestyles “some ethnic minority groups require greater protection than others, because they have resided for a longer period of time in a place, or they have a stronger will to maintain and develop their own characteristics”. Batwa fall into Yash’s categorisation because they only locate their ancestral lands within the tropical forests of Great Lakes region and feel strongly about maintaining their cultural identity.

While ethnic minority issues remain contested globally, ethnic minority rights remain largely underdeveloped and not given priority, particularly in Africa, where socio-political skepticism and juridical ambiguities on ethnic minorities continue to prevail more than in other parts of the world. Nevertheless, only a few African states have expressly acknowledged ethnic

26 See 2010 Kenyan Constitution. Article 260. 91 minority issues in their constitutions; these are Cameroon (preamble), the DRC (article 51), and Uganda (article 36). Even more disappointing is the fact that the question of protection of ethnic minorities in these constitutions is not explicit, but rather generalising minority issues to include those of groups such as women, disabled and children (as is case in Uganda).

Many African countries have constitutions and relevant legal frameworks with provisions that protect minority rights. Furthermore, these constitutions have a section on bill of rights, which intrinsically seeks to promote and protect the rights of all the citizens. However, it is only the issue of implementation and enforcement that often creates the impression that some groups are not being protected by the law whilst others are, as the case in Uganda. While this does not raise issue of a gap in the law, it highlights the weak enforcement and/or recognition of constitutional provisions in so far as ethnic minority groups are concerned. Ethnic minority is a subject that has received the least attention, if any, in the legal scholarship and development in Africa. As Ramcharan (2002: 99) observes protection of minorities in Africa has been ignored or deliberately or by default despite vauious challenges minority communities experience in their day to day lives.

4.3 Criteria for identifying minorities

Despite the absence ofethnic minority definition, common characteristics have been identified by Capotorti and Deschenes covering both objective and subjective factors and criteria (Capotorti, 1979: 5). However, there is not yet a general agreement and consensus about prepositions. Among contributions of this study is to understand these suggested factors and criteria and juxtapose them with Batwa, as well as other ethnic minorities in Uganda and neighbouring countries to come up with a working definition.

The definition that has so far been welcomed (though in theory), stems from Francesco Capotorti’s proposal of 1966, grounded in legal cases handled by Permanent Court of International Justice (PCIJ) and related UN Human Rights Commission discussions . However, the proposed definition is limited to the context of article 27 of the ICCPR: “A group numerically inferior to the rest of the population of a State, and in a non- dominant position, whose members – being nationals of the State – possess ethnic, religious or linguistic characteristics differing from those of the rest of the population

and show, if only implicitly, a sense of solidarity, directed towards preserving their culture, traditions, religions and language”.

A refined version of this definition was proposed in 1985 by Jules Deschênes: “A group of citizens of a State, constituting a numerical minority and in a non-dominant position in that State, endowed with ethnic, religious or linguistic characteristics which differ from those of the majority of the population, having a sense of solidarity with one another, motivated, if only implicitly, by a collective will to survive and whose aim is to achieve quality with the majority in fact and in law”.27

It should be noted that the nonexistence of a legally accepted ethnic minority definition has hindered efforts towards setting standards that would ensure protection and recognition of ethnic minorities, especially in Africa (UN OHCHR, 2009).

In the context of developing a viable definition, common descriptions have been used. These includenon-dominance of the group of individuals who share common national, ethnic, religious or linguistic characteristics distict from majority population. Furthermore, the use of self-definition identified as "a will on the part of the members of the groups in question to preserve their own characteristics" and to be accepted as part of that group by the other members, combined with certain specific objective requirements28, provide concrete grounds to explicitly describe the situation of ethnic minorities in Africa. What remains is to acknowledge and accept these criteria and generic elements that can be used contextually at national and regional levels. The lack of a universally accepted definition of minority has led to different scholars coming up with ideas to explain the characteristics of minority communities.

Different studies and suggestions around the definition of minority seem to agree on essential and objective elements of the minority description, which combine objective and subjective elements. For instance, not only should a minority be numerically inferior; has ethnic, religious or linguistic characteristics different from those of the rest of the population; it should also show a sense of solidarity and willing to preserve its identity (Verstichel, 2010: 11). This subjective element is vital so that minorities willing to exercise their right should

27 Proposal Concerning a Definition of the term ‘Minority’, UN Doc. E/CN.4/Sub.2/1985/31 28 See "Study on the Rights of Persons belonging to Ethnic, Religious and Linguistic Minorities", Studies Series No. 5, United Nations, 1991, p. 96. 93 not be stopped and the objective part helps in two perspectives. On the one hand, a group cannot identify as minority if actually the claim is not grounded in reality. This means that the subjective element, which for instance was the determining factor of membership in the League of Nations and judgements given by Permanent Court of International Justice (Deirdre, 1999: 232), remains key but not a sufficient condition for the recognition and protection of minority. But on the other hand government cannot arbitrarily ignore the presence of ethnic minorities in their states as it is a question of fact, as held also by the Human Right Committee in General Comment 23, that “the existence of an ethnic, religious or linguistic minority in a given state party does not depend upon a decision by that state party but requires to be established by objective criteria”.29

4.4 Elements of the working definitions 4.4.1 Ethnic, religious or linguistic characteristics

Communities belonging to ethnic, religious and linguistic minorities are recognised under international legal framework, such as ICCPR and CRC. Although there is a distinction (in international law) between language, ethnicity and religion, the discussion on ethnic, religious or linguistic minorities is essentially a discussion about groups with a unique culture, which is an important component in the identification of ethnic minorities. A debate on minorities, however, cannot ignore other categories like disabled, sexual minorities, who are also minority in a specific context, but not categorised under minority in the sense of legal protection (Lerner, 1991: 23). During the preliminary work around article 27 of ICCPR, there were suggestions of using the concept of national minorities instead of ethnic, religious or linguistic. This suggestion was refuted based on the fact that national minority would exclude those minorities that have not yet developed into “national minorities” or minorities in a foreign land (not necessarily being nationals of the state in question), such as religious minorities who may not have any political inclination, since national minorities “tend to have an extra dimension in political aspiration for a degree of autonomy or even independence” (Tomuschat, 1983: 17).

29 See Human Rights Committee General Comment No. 23 on the rights of minorities (Art. 27), Para 5.2. (Fiftieth session, 1994) 08/04/94. CCPR/C/21/Rev.1/Add.5.

4.4.2 Race

In its initiatives to protect and promote minority, the League of Nations used “race”, “language” and “religion” concepts to refer to minority groups (Helmer, 1923: 641). Later, in 1950, the UN Sub-Commission on Human Rights decided to replace the term “racial” with “ethnic” refering to minority groups. The reason for this change was that “the term racial would not be a scientifically justified criterion for distinction” and thus agreed that the term ethnic, seems more appropriate as it is broader and encompasses all biological, cultural and historical characteristics, whereas racial would only refer to innate physical features” Verstichel, 2010: 14).

This follows both academic and practical debates, including research, that suggest a clear distinction between the two concepts – race and ethnicity. The common issue here being association of ethnicity with cultural commonality – shared beliefs, values, and practises – while “race is seen as revolving around physical or biological commonality” (Henrard, 2000: 49). Max Weber (1978: 389) described ethnic groups as “those human groups that entertain a subjective belief in their common descent, because of similarities of physical type or of customs or both because memories of colonisation and migration...it does not matter whether or not an objective blood relationship exists”. Weber, as well as other scholars, such as Nagel (1994: 153) argue sthat “racial identity” stems from “common inherited and inheritable traits that actually derive from common descent” have defined ethnicity as a “social construct that changes with time, situations, and events of the day”. This Nagel’s argument is supported by Morning (2011: 193), who also argue that “ethnicity is a social invention that changes as political, economic, and historical contexts change”

Another line of thought that shaped the shift from “racial” to “ethnic” categorisation by the UN Human Rights Commission was the degree to which both concepts (racial and ethnic) revealed voluntary choices and significant consequences attached to them (Banton, 1983:10; Jenkins, 1997: 83). In the minds of the drafters of article 27 of ICCPR, racial identity was described as an imposition that cannot be removed or refuted irrespective of individual’s historical facts and behavioural choices. Meanwhile with ethnicity, there was a consensus that individuals are able to choose ethnic group(s) with which they feel

95 confortable, can identify and affiliateas long as that relationship is not detrimental to their general lifestyle.

4.4.3 Numerical inferiority

Almost every conceptualisation of minority is made on the basis of a presupposition that a minority is numerically inferior. Some scholars, such as Henrard and Gilbert argue that although the usage of the term “inferior” is key and closely describes circumstances of ethnic minority, a “neutral term with no undesirable and negative connotations would have been suitable” (Gilbert, 1992: 73). The requirement that a group be “numerically inferior to the rest of the population of the state” has given rise to what John Packer (1999: 260) calls “problems of numbers”. To be a “minority” implies to be in an inferior position (numerically) to the rest of the population. The concept of “minority” presupposes “majority” and as such minority exist in relation to other groups constituting a majority number, thus majority is superior (Nowak, 2005: 644), this may be in a particular region or in a state. However, this does not mean that numerically inferior group be discriminated or inhumanly treated compared to majority. For instance, in John Ballantyne et al vs. Canada where English- speaking residents of Quebec, argued that the Quebec law, which prohibited commercial shop signs in a language other than French, violated among others, their minority rights, as enshrined in article 27, as well as discriminated them on the grounds of language in violation of article 26 of ICCPR. However, the claims where refuted by UN Human Rights Committee by observing that English-speaking citizens represent the majority in Canada and thuas could not claim the rights of linguistic minorities in terrritoial Quebec only.

However, the problem with this approach is that it fails to take into account situations in which a large portion of political power is constitutionally or otherwise vested in provincial or regional government. In such situations, the issue of minorities will arise at various governance units, particularly where their boundaries coincide with the territorial concentration of particular groups, leading to the domination of those units by such groups. In terms of political governance, De Varennes (1996: 143) observes that it can be validly maintained that the drafters of article 27 simply overlooked that in a federal state, even a national majority may find itself subjected to serious mistreatment if it is a numerical minority in one of the federal units and outside the reach of federal (national) protection. For instance,

96 the Council of Europe recommended it be applied at the regional or provincial levels where there is a kind of autonomous structure of governance30. In the context of this study, the numerical factor raises some pertinent issues, especially in the African context. The first relates to its importance in determining a group’s minority status in a country; the idea that a group constitutes a minority if it is less than 50 per cent of the total population of the state. This is very difficult to sustain in Africa, particularly in the Ugandan context where many ethnic groups do not constitute this percentage (Wairama, 2001: 13). But also in some African contexts, some numerically inferior groups have socially, economically, and politically dominated spheres of their respective societies. Examples include, in South Africa during apartheid era; in Rwanda and Burundi, minority Tutsi have dominated majority Hutu. More to this, as Thio (2006: 11) argues, in countries composed only of numerical minorities, characterised by some as countries of minorities, as the case in the majority of African countries, the relative population size of such groups says little, if anything, about the issue of minorities. Some scholars, such as Capotorti, (1979); Alfredsson (2000); and Crawford, (1988), have suggested that in such cases each group in a state is a minority vis-à-vis the aggregate of all other members taken together. This approach, however, raises hypothetical questions of comparing particular ethnic groups in relation to the rest of the groups that form the general population. This calls for a need to consider minority issues to be seen in their specific perspectives and contexts.

4.4.5 Non-dominance

This element indicates that an ethnic minority group is most importantly a governance reality. This explains why the element of “non-dominance” finds itself in all the proposed definitions of minority (De Varennes, 1996: 144). In light of this, minority status is conceptualised in relationship to the group in question, primarily, to public affairs, such as power. Ramaga (1992: 109) remarks that “political power is the major instrument of dominance that negates possible influence of the majority by precluding the effect of all other elements of control over others”. Although, as Nowak (2005: 487) observes, economic, cultural, and social standings of the group may also be important indicators of

30 Parliamentary Assembly, Council of Europe, Recommendation 1201 (1993), ‘On an Additional Protocol on the Rights of National minorities to the European Convention on Human Rights’, 1993.

97 the weak position of the group to qualify it as a minority, lack of political and economic clout to influence the decision-making processes of a state or a community can cause non- dominance on the side of a minority community. Nowak agrees that it is thus such realities of powerlessness that make minorities vulnerable and constitute a chief defining element of a minority.

In support of this argument, Capotorti argues that the need to protect minorities in any situation is and should be based on the weakness of their position (Capotorti, 1979). However, the question is whether this non-dominance is in economic, social, political, cultural issues; or all of them. This is because a group can be strong in one area and weak in the other; does this make it a minority? However, it is important to stress the role of the “non-dominant” feature in Capotorti argument, because the current minority rights protection system seeks to redress positions of societal non-dominance and influence in order to ensure effective participation and empowerment of the people affected. The point to note here is that the group is dominated by the majority community and cannot be allowed to exercise its rights freely, which is done either explicitly or implicitly.

4.4.6 Nationality

Attempts that have been explored to define minorities, have rigidly maintained that “minorities are citizens of the state they live in” (Capotorti, 1991: 98). In the current context, for instance, this may unfortunately exclude refugees and migrant workers who may be regarded as “minorities” in particular contexts. Paradoxically, in his earlier submissions, Capotorti had suggested that the requirement of the minority ought to be nationals of the state (Capotorti, 1985: 385). This remains a challenge, not fulfilling and lacks some considerations. Subsequently, Human Rights Committee under the General Comment 23 on article 27 of the ICCPR recommended that “the individuals designed to be protected need not to be citizens of the State party”31. Nonetheless, what is not clear is the national status of the group that claims protection. Several of the recent legal regimes and instruments designed to protect ethnic minorities, such as UN Declaration Minorities (1992), and the Council of Europe’s Framework Convention for the Protection of National Minorities

31 See Human Rights Committee, General Comment 23, The Rights of Minorities (Article 27), U.N.Doc.HRI/GEN/1/Rev.1 at 52, 1994, para.5.1 98

(1994), make reference to the term “national”. According to Javaid (2000: 17), this option has posed challenges: “it provided some states with the opportunity to claim a limitation on the scope of minority status”. In terms of citizenship, it should be noted that this element in the proposed definition was developed based on the situation in Europe at that time, and hence the idea of “new” vis-à-vis “old” minority emerged thereafter. Such descriptions of minority have contributed to the failure and resentment by some African states to effectively adhere to the international norms and rubrics regarding minority issues (Papoutsi, 2014: 5).

In terms of nationality as a consideration for identifying ethnic minority, social contract theorists including Rousseau and Locke, as earlier discussed in chapter three, section 3.1, seem to suggest that the general will of the people in a state should be the basis for governance, since it is the people that make up the state. This assertion is supported by the concept of "imagined communities" as put across by Anderson (1983: 7), who believes that a nation is a community socially constructed, imagined by the people as citizens, who perceive themselves as part of that group. For him, a nation "is imagined as a community, because, regardless of the actual inequality and exploitation that may prevail in each, the nation is always conceived as a deep, horizontal comradeship” (Calhoun, 2017). Anderson (1991: 7) further asserts that communities are to be distinguished by the style in which they are imagined, not by the way they are presented (falsity or genuineness). This means that wherever ethnic minorities are, including across the border, they should be recognised and identified as minorities. The qualification and requirement of being a citizen to be identified as a minority should not be considered.

Gellner brings the element of culture in the discussion of nationalism, which raises an important point in identifying ethnic minorities, particularly in Africa. Gellner argues that nationalism is a sociological condition that is influenced by cultural values. For him culture is such an important element of society that it should be considered in branding the units of any state or nation (Gellner, 2006: 12). In line with Gellner therefore, culture, in as far as it supports issues of nationalism should be one of the elements to identify ethnic minority.

4.4.7 Collective will In addition to the above factors, using subjective criteria, such as members of ethnic group willing to preserve their own characteristics, and the wish of the individuals concerned to be 99 considered part of that group; combined with clear and specific objective requirements, should be given attention while considering a broader recognition of ethnic minorities. UN OHCR (2010: 3) recommended that “recognition of minority status is not solely for the state to decide, but should be based on both objective and subjective criteria” This is because, ethnic minority exist in fact – which has to be safeguarded by the state – not in law that can be changed by the same state. But more so, ethnic minority themselves have to maintain a sense of solidarity in preserving identity.

The collective and individual rights of ethnic minorities to maintain and develop their distinct identities is particularly emphasised by UN Declaration on the Rights of Minorities, articles 2 and 3. While this collective will is taken as an essential defining feature, it is a subjective criterion that may net need to be expressed by the group itself in order to be protected by laws, rather as Malcom (1992: 28) observes, “it emerges from the fact that a given group has preserved its distinctive characteristics over a period of time”. However, the formulation of “collective will” by Capotorti only covers minority by will and excludes minority by force, that is, a minority that desires assimilation with the majority but is barred. In this regard, the formulation of Deschenes appears broader to cover even the minorities by force since Deschenes narrowed down the collective will of the members of the group to achieving equality in fact and in law.

4.5 Minority rights and specific minority concerns

Human rights are universal and all human beings, including ethnic minority groups, are entitled to the same rights and related fundamental freedoms without discrimination of any kind. Ethnic minorities enjoy certain human rights that are specific to their situations, since often times, they have unique situations that describe their lifestyles. Furthermore, it has been internationally coded under the Universal Declaration of Human Rights that "all human beings are born free and equal in dignity and rights; Everyone is entitled to [...] human rights ... without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status [..] All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination [...] and against any incitement to [...]

100 discrimination [...] Eeveryone, without any discrimination, has the right to equal pay for equal work, []" UDHR Articles 1, 2, 7, and 23.

Ethnic minority entitlements are further explicitly set out in human rights treaties and declarations, such as International Covenant on Civil and Political Rights, Convention on the Elimination of All Forms of Racial Discrimination, Convention on the Rights of the Child, the Declaration on the Rights Minorities; among others. The rights inshrined in these, and more instruments are indivisible, interdependent and interrelated human rights and freedom from any distinction, exclusion, and restriction that hinder enjoyment of such human rights and fundamental freedoms.

Another guarantee that is accorded to minorities is special rights as known in legal discourse. “Special rights” are not privileges, rather opportunities provided to enable ethnic minorities to exercise and enjoy their rights, preserve their identity, characteristics and traditions. These are important in addressing inequality and marginalisation questions that deeply affect minority communities (Batwa in particular). It is only when minorities are able to use their own identity and status, benefit from services (socio-economic and political) dedicated to them, in which they have participated); can they begin to realise the status of being citizens in their own contry. UN Human Rights Council (E/CN.4/52, 2005) observes that “differences in the treatment of such groups or individuals are justified if it is exercised to promote effective equality and the welfare of the community as a whole”. This is the affirmative action that needs sustained interventions over a long period in order to enable minority groups to benefit from local and national services on an equal basis with the majority.

Among other rights accorded to ethnic minorities, is right to effective participation in shaping decisions and policies concerning their social, economic and political lives as well as fundamental freedoms that would enable them fully realise thie human dignity (Gudmundur, 2009: 4). While there is appreciation on the available information regarding the socio- economic rights of Batwa, much is lacking in their participation, not only in public affairs, but also in the socio-economic decision-making and implementing structures. The next chapter of this study will provide the discussion about the participation of Batwa in particular, as one

101 of the strategies to enhance the capacity of Batwa and also an avenue to development of other ethnic minority communities in similar situations in Africa.

The protection of the rights of minorities requires particular attention to be given spscific issues that are unique to the group, including recognition of their rights; guarantee their rights to non-discrimination and equality; advancing their participation in all aspects of public life; the inclusion of their concerns in development programmes and poverty-reduction processes; prioritising efforts to reduces disparities in social indicators such as employment, health and housing; empowerment of women and special response to the concerns of children belonging to ethnic minorities.

4.6 Conclusion

The preceding discussion reveals that the concept of ethnic minority has been of concern over the years at different levels – national, regional, and international – through different standards and strategies. However, there is an urgent need to prioritise establishment of a comprehensive legal regime for protection of ethnic minorities. Although the adoption of the UN Declaration on Minority in 2012 is considered a significant advancement in the protection and promotion of minority issues, a legally binding treaty or convention that would explicitly help to understand the concept of ethnic minority is overdue. Such a treaty would ensure, among others, specific criteria as well as universal guidelines of understanding the ethnic minorities and relevant issues of their concern. It has been observed that “any action for the protection of ethnic minorities should focus on recognising and ensuring the protection of the physical existence of persons belonging to ethnic minorities, promotion and protection of the identity of minorities and ensure equality and non-discrimination of such groups” (UNOHCHR, 2010: 10). Lack of respect, protection, and fulfilment of the rights and specific issues of concern to ethnic minorities continue to contribute to the current plights (including lack of effective participation in public affairs) of ethnic minority groups such as Batwa in Uganda. In light of this, the next chapter roots for the benefits of effective public participation in relation to ethnic minorities (with Batwa) at the centre of the discussion. As higlited by this chapter, ethnic minorities, particularly Batwa, have unique and specif challenges, that require specific attention, including understanding the role of participation by Batwa in public affairs.

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CHAPTER FIVE

THE RIGHT TO EFFECTIVE PUBLIC PARTICIPATION OF ETHNIC MINORITIES

5. Introduction

The right to effective public participation has developed and been integrated into the realm of democratic principles regarded as a core pillar for good governance and development of any society. The term "participation" has been used widely conceptually and empirically ranging from psychological characteristics of individuals to structural traits of organisations. One of the founding principles of the UDHR is the recognition that every individual is of equal value, and must participate in affairs of the state (articles 1, 21, and 27). This chapter seeks to examine the practical application of the right to effective public participation of ethnic minorities, in the context of Batwa of Uganda. The chapter highlights the modes and the rationale for effective participation of minorities and thus calls on specific strategies that facilitate effective public participation.

5.1. Understanding the concept of effective public participation

Effective participation in public affairs is key and a pre-condition for transparent and accountable governance (Tornos, 2013: 72). It helps authorities, especially within government, to ensure that all persons, including vulnerable, marginalised, as well as those from the poorest segments of society and rural communities, participate in decisions that have impact on their lives. The qualifier “effective” on public participation signifies meaningful involvement and all-inclusive process of citzens public affairs, focusing on stakeholder’s interests, resulting from a wide range of consultations. “Effective” implies that there is fair and equal treatment, meaningful involvement and social inclusion of all people, without recourse to any discrimination in public participation processes. Effective participation is when different interests of stakeholders who are beneficiaries of a programme are satisfied with the level at which they are involved (Wilcox, 2006). According to United States Environmental Protection Agency, public participation can therefore qualify to be “effective” if it conforms to the following: informs people to understand the issues, options, and solutions of the matters at hand; allows extensive consultations with people to obtain their feedback; involves people to ensure their aspirations and concerns are prioritised in all decision-making processes; enhances collaboration between people to 103 develop cohesive decision-making; and empowers people to ensure that final decision- making authority, as well as their implementation is placed in their mandates.32 In terms of Batwa, as well as ethnic minority communities that fall in such categories, they would need adequate support to ensure that: one, such processes and options are in place, and second Batwa benefit from such arrangements. This will be discussed in detail in chapters eight, nine, and ten.

Policy-making and policy implementation institutions at different levels are progressively embracing the notion of effective participation in public affairs, as one of the major tenets of democracy. Effective participation enables ethnic minorities to promote and protect their identity and to ensure respect for their dignity and that of their communities; and their voices are heard. Effective participation thus becomes crucial for development of truly inclusive societies; enables states to draw on wider experience, to make better informed laws, to enhance the legitimacy of various segments of society and to ensure sustainability by giving all people a sense of ownership.

Like many modern concepts, participation has generated numerous ideas and divergent scholarly views and definitions, which need scholarly interrogations. For example, Vroom & Jago (1988:30) contend that the concept “participation” is prone to be affected by ambiguous and diverse interpretations by different people depending on the angle of their general outlook. Such diverse elucidations include: 1) “participation as referring to the act of taking part with others in a particular activity” as hypothised by Boaden and othersr (1982:12); 2) “participation as an activity for people previously excluded from decision- making processes in collaboration with the people who excluded them from the same process” (Bekker (S.a):41); and 3) “participation as a process by which people contribute ideas towards the solution of problems affecting the organisation and their jobs” (Beach 1985:357).

Participation can be defined in “narrow” and “broad” terms. In a narrow sense, participation is defined as the “active engagement of citizens in public institutions through voting, election campaigning, and contacting or pressuring either individually or through group activity,

32 See, United States Environmental Protection Agency (EPA), https://www.epa.gov/international-cooperation/public- participation-guide-introduction-public-participation

104 including non-violent protests” (Verba, 1978: 23; Parry, 1992: 71). In its broad terms, participation is a “collective sustained activity for the purpose of achieving some common objectives, especially a more equitable distribution of the benefits of development” (UNESCO, 1979: 15).

Ramon (1996: 7) disagrees with Verba on defining participation in narrow sense. For him public participation is not merely a function of the electoral process. Ramon further observes that true (effective) public participation, calls for transparent and participatory decision- making of every individual in the society. The existence of a public space within which minority citizens learn from and debate with each other on the issues of their concern, and government is informed and held accountable about the public will of the citizens, is paramount. While there is a tendency to portray a very challenge in terms of economic pespectives (inadequate funds), participation rights of ethnic minorities to be enfornced by the government, for intstance in those countries with decentralisation system of governance, does not need special funds for such. Structures and systems for participation are already in place and thus what needs to be done is what Ramon(1996: 7) calls transparent practices and not tokenism participation as observed by Arnstein (1969: 216) discussed in chapter nine, section 9.6.

The qualifier “effective” in the participation rights of ethnic minorities in public affairs, refers to the fact that their “presence” (either in person or through their representatives) in decision-making processes, should be translated into “influence” on the outcome of the whole processes (DPLG, 2007:15),. With a few reserved seats in parliament, for example, minorities can still be out-voted (as in the case of Burundi Batwa senators and service delivery). Manheim (1981: 330) as well as Pateman, (1989: 36); Arnstein, (1969: 3); Fox and Miller, (1996: 17) argue that for participation to be effective, there must be full opportunity for timely and constructive involvement of affected people in the process. This is to ensure that every interest – individual or group – that may potentially be affected by the changes or issues being considered has access (fully and timely) to relevant information and has full opportunity to influence the process constructively (Manheim, 1981: 330). However, to be able to influence such processes, ethnic minorities need what Amartya Sen calls “capability”.

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Amartya Sen’s notion of capability (as discussed in chapters one and three) argues, that unless the weaker citizens have the capacity to express their choice of focus upon the kind of lives they value and live, all other means to facilitate their development and growth will be futile (Sen, 1985: 670). Amartya Sen’s idea is supported by Martha Nussbaum’s capability theory of justice, where she opines that a capabilities approach should aim to help citizens “fully express their human powers and not just provide (real) opportunities for people to perform certain functions” (Nussbaum, 1997: 4). In other words, Nussbaum supports argument advanced by Amartya Sen that a “capability is a real possibility or opportunity for an individual to perform certain actions” (Nussbaum, 1997: 4). Unlike Sen, Nussbaum adds on aspects of human powers, particularly unique to human beings that help to facilitate capabilities. The arguments of Sen and Nussbaum point to one issue; that mechanisms available or provided for participation of ethnic minorities in decision-making processes are sometimes not enough or adequate for the implementation of their participation rights in public affairs and they thus need additional support to facilitate their cause.

In relation to Nussbaum’s capability theory of justice, the right to effective participation of ethnic minorities is far-reaching and covers aspects of what makes a just society. In his work on justice in society, St Thomas Aquinas – a medieval theologian and philosopher – observes that justice is the highest virtue, and he describes it as “a habit whereby a man renders to each one his due by a constant and perpetual will,” (Aquinas: 1981, II-II, Q 58, A1). This has been supported by other philosophers, such as Karl Max, who posited that a just society is one in which all people have the means, will, and the motivation to participate in all the issues of their concern; a society where the rights of minorities are safeguarded from the whims of intolerant majorities; and its citizens are involved in the affairs of their country, where equal opportunities are available for each individual to fulfil themselves in the manner they judge best (Rawls, 1972: 7).

In relation to this notion of a just society, Henrard (2007: 31) affirms that the right to participation includes involvement of citizens in all decision-making processes at all levels; and that minorities as well as vulnerable and marginalised people are given meaningful,

106 effective, and favourable means to participate in all spheres of their societies. It should be underscored that the subject of minorities and their effective public participation do not involve separatist ideologies. Rather, the purpose of right to participation, is to ensure the inclusion of all ethnic minorities (including the vulnerable and marginalised) in a just and fair society. While Henrard states that ethnic minorities ought to get involved, he does not make it explicit, how they should participate in decision-making processes.

Taking a look at Ugandan experience and context, there are more mechanisms regarding political participation and few regarding the broader concept of participation in public affairs; there are more mechanisms related to the presence of minorities in public affairs and fewer related to influence of minorities on outcome of these processes. This can be traced also in international instruments (reviewed in chapter four of this thesis) that Uganda has ratified, and is championing the effective participation of minorities. Some of these instruments emphasise political participation in the narrow sense, and to a certain extent on consultations as well, but to a much lesser extent to representation on local council, executive, administration, law enforcement institutions, and advisory bodies. Most of the relevant bodies have considered participation of minorities in lower and less significant instituions in a country, instead of putting attention to the presence of minorities in key government institutions where they are able to influence decisions that would benefit ethnic minorities.

Apart from the Advisory Committee on the Framework Convention (ACFC) for the Protection of National Minorities – highlighting the importance of effectiveness of participation – states are encouraged to ensure that ethnic minorities have a substantial influence on decisions taken and not merely formally provided for their participation33. The inadequate attention and considerations (including opportunities) given to minorities to influence decision- making processes at UN, regional, and national mechanisms begs the question as to what extent the “effectiveness” of participation of minorities is implemented. The adjective

33 See Advisory Committee on the Framework Convention for the Protection of National Minorities’ Commentary On the Effective Participation of Persons Belonging to National Minorities in Cultural, Social and Economic Life and in Public Affairs 2008 paras 18-21

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“effective” is the most important qualifier of this right in the lives of minorities, which is the outstanding indicator for monitoring participation of minorities in public affairs.

There are several legal frameworks thatrequire states to secure participation rights of minorities. For example, public participation rights are enshrined in UDHR; in ICCPR; and emphasised by the UN Human Rights Committee General Comment 25 which stipulates that “the conduct of public affairs is a broad mandate that relates to the exercise of power by all the concerned people in the state”. While this General Comment is emphatic on the political processes by which ethnic minorities should participate in public affairs, right to effective participation of ethnic minority groups, should not be limited to political participation, but rather be an integral process in all issues that concern them. McDougall (2009: 5) observes that minorities ought to participate also in economic and social life; they have to be involved and consulted in development programmes so as to benefit from them effectively. This should entail serious and meaningful consultation, aiming to design appropriate and relevant programmes to manage the particular needs and critical situations of ethnic minorities; and their access to the necessary services. This is because different ethnic minorities have different challenges and needs, and thus require specific approaches. This is, often, a gap in most programmes that are brought to minorities’ communities and they end up not benefiting from such programmes.

Various propositions have been suggested through which ethnic minorities can be involved in public affairs. These include being represented in elective positions in public administration structures, instituting consultative mechanisms, as well as encouraging cultural autonomy arrangements that would allow ethnic minority communities to enjoy and develop their cultural identities. These and others will be discussed in detail in chapter eight. Tomaseli, (2009: 148) opines that such arrangements can be effective if only they are hinged and guaranteed by national law, for example a constitution. Lack of such legal mechanisms frustrates their implementation as they remain at the discretion of the authority to choose when to apply such mechanisms for the benefit of ethnic minorities.

The inadequacy to have a common understanding about effective participation, despite a number of policy instruments designed by states has resulted to states prescribing and

108 implementing participation rights in a way that is general and sometimes leaving behind the vulnerable and marginalised, including ethnic minorities. For instance, in Uganda, the 1997 Local Government Act guarantees participation of every individual in public affairs of the community; and goes on to list the structures through which people participate, including representation and/or participation in local councils, but fails to recognise that such structures can only help people that are already mainstreamed and empowered in the governance structures, not vulnerable and discriminated ethnic minorities such as Batwa.

In relation to this situation, a number of both local and national programmes have not benefited ethnic minorities in Uganda, either by default or design. For example during the processes to formulate Uganda’s Poverty Reduction Strategy Papers between 1997 and 2000, there were no consultations with Batwa and yet such a programme (aimed to reduce poverty) was basically meant to assist such a category of people. The Benet ethnic minority in Mt Elgon, Eastern Uganda, have not been consulted by the UWA on the management of the development fund coming from the land they were evicted from, despite the 2005 high court ruling in their favour as the rightful indigenous ethnic minority community to occupy this land with all the rights to receive the proceeds. In light of this, it is therefore important to have a strong and explicit foundational legal articulation of the right to effective participation, with clear delineation and with progressive normative content that enables such groups to enjoy their rights but also to claim such rights in a situation of violations or abuses.

5.2. Normative content of right to effective participation

In understanding issues of participation right of ethnic minorities, we need to unpack what constitutes the normative content of right to effective participation. The principle behind effective public participation is that all stakeholders affected by a public authority’s decisions or actions have a right to be consulted and should contribute to such decision. In article 25 of ICCPR, reference is made to the phrase “in conduct of public affairs”, the scope of participation provision seems to go beyond the corresponding formulations of many instruments, notably, the UDHR and African Charter on Human and Peoples’ Rights, which use the phrase “participation in the government of one’s country”. Also the use of the word “public” instead of “sectoral” – affairs, such as political, economic, and social – might indicate

109 that a broad approach to participation is preferred. This suggests that the all-inclusive participation must go beyond mere representation – as is the case in Uganda. To this effect therefore, other public services including health and education should aim to empower the individual to actively get involved in such issues that concern them. For instance, article 13 of the International Covenant on Economic, Social, and Cultural Rights (ICESCR) on education rights provides that: Education shall be directed to the full development of the human personality and the sense of its dignity…, and shall enable all persons to participate effectively in a free society, promote understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups…for the maintenance of peace.

In light of this, effective participation might refer to the need of educational resources or the need for effective decision-making structures, and as such cultural participation may be broadened to include such elements. Article 15 of ICESCR mandates states to provide opportunity for all sectors of society, particularly members of minority or disadvantaged groups, to participate in cultural policymaking at all levels, including participation in the analysis of issues to be addressed by policymakers and in designing and implementation of appropriate laws and policies.34

General Comment 25, paragraph 6 of the Committee on Civil and Political Rights, ensures citizens right to participate directly in conduct of public affairs that affect them. It also gives critical areas where citizens must participate directly, such as, in situations of changing constitution; deciding on public issues through a referendum; or other electoral processes conducted in popular assemblies that have power to make decisions about local issues or affairs of a particular community. In exercising their civic rights, all citzens ought to participate without distinction or discriminated against on any grounds and no unreasonable re strictions should be imposed on them. As such, states are encouraged design effective measures to ensure that citzens are able to exercise that civic right. Furthermore, states are encouraged to devise positive measures to overcome specific challenges, such as illiteracy, language barrier, poverty, or other impediments preventing people from exercising their

34 For an elaboration on the content of this right, see report of the European round table, 30 April to 2 May 1993, Helsinki under the theme “Human rights and cultural policies in a changing Europe: the right to participate in cultural life”, pg 56. 110 participation rights effectively. In doing so, states are providing opportunities to enable groups such as Batwa, to participate in the public affairs of their communities.

Public participation of ethnic minorities in decision-making processes, especially on the issues that concern them, is one of the “litmus tests” of democracy of any country (Irvin, 2004: 62). According to Yash (2003: 4), there is an increased awareness on protecting minority rights, which has resulted in a marked shift from the limited protection against discrimination (that characterised the original efforts of the UN regarding minorities) towards a more active engagement with states in view of developing progressive regimes that protect minority rights. Minority rights and their related issues have been subsumed under ethnicity, which is absurd, and some times also considered under general categories of vulnerable groups, thus linking minorities to other communities. As such, new legal frameworks have focused on ethnic or religious conflicts trying to encourage the coexistence of different ethnic groups, and provide security to cultures and minorities. In light of this, as Pettai (2002: 515) observes, some specifics regarding ethnic minorities in relation to public participation have not been effectively articulated particularly at national and local levels.

5.3 Justification for effective participation of minorities in public affairs

The main idea behind effective participation by all is to ensure that citizens gain meaningful roles in decisions (and their implementations) that affect them at all levels. Any popular contributions from the citizenry to the work of government, Blair (2000: 22) noted “is exercised with the aim of improving service delivery and accountability to the population”. Blair further argues that accountability enables citizens to hold their governments responsible for how government decisions affect them. This idea is supported by Everisto Benyera35. In an interview with Prof Benyera (March, 2018), he argued that citizen participation is a key democratic tenet and it authenticates all processes of governance, including holding their leaders accountable. An effective government where the vulnerable and marginalised groups not only participate, but are also protected by the institutions that support democratic practices (Chapter 9 institutions), is an ideal government that facilitates

35 Everisto Benyera is an Associate Professor of African Politics at the University of South Africa 111 participation of marginalised communities. However, most of these institutions are not legally binding, and even those that have judicial powers, such as Uganda Human Rights Commission, are not well facilitated and supported to effectively implement their mandates in relation to ethnic minority rights. In this way, views of the vulnerable and marginalised groups are therefore important in that they indicate the direction which equity related policies must take. If you want to address historical imbalances which resulted in the marginalisation and vulnerability, it is a matter of policy alignment to garner the views of the vulnerable and marginalised groups.

According to Renée and Stansbury (2004: 56), citizens’ participation in public affairs holds “a sacrosanct role in the lives of the people as well as enhancing a linear relationship between the authorities and the population, as well as within the population itself”. Arguments for enhancing and empower citizen to participate in public affairs rest on the merits of the process and the belief that an engaged citizenry is good to guide the state to the realm of good governance. With citizens’ participation, formulated policies and their implementation are more realistically based on citizen preferences, contexts, and needs.

Furthermore, participation of ethnic minorities in public affairs and in all aspects of their lives is in fact essential to preserving their identity and combating social exclusion (UN OHCHR, 2010: 12). In light of this, participation can play an important role in protecting minority rights, thus strengthening the rule of law and democracratisation, through all-inclusive processes. In order to have this effected, there is a need for specific mechanisms to be put in place to safeguard diversity and to ensure that persons belonging to ethnic minorities are adequately participating in all public affairs, particularly that their voices are heard in the processes leading to the making of decisions that affect them or their territories in which they live.

Participation, as a right, is important in the process of sustainable development, where better decisions arise from public involvement, where people’s views and thoughts are listened to and considered. This enhances ownership by the beneficiaries and thus becomes sustainable. According to Habermas (1996: 37), participation and involvement of ethnic minorities is crucial to achieve sustainable development goals and to realise their human dignity, as well as to enable them voice out their views on key government policies and laws concerning their particular contexts. For instance, in Uganda the inclusion of and 112 robust work about People With Disability (PWDs), including establishing national structures and policies specifically focusing on PWDs has enabled them to participate effectively in public affairs at all levels in Uganda (Abimanyi-Ochom and Mannan, 2014: 2). While Habermas highlights the importance of participation of ethnic minority groups in public affairs, he fails to suggest the modalities, which minorities, such as the Batwa, can use or exploit to effectively participate in public affairs. It is easy to suggest that minorities should participate in public affairs, but if no appropriate and relevant mechanisms are suggested and/or put in place, still they will be left out. Such mechanisms would be the standard measures for effective participation of ethnic minorities in public affairs.

Many of the general justifications to protect ethnic minority rides on the back of equality and non-discrimination notions, or are even more forcibly taken into participation rights. A major justification is the inherent fairness-seeking to protect ethnic minority. Members of ethnic minorities are entitled, like any other person, to human rights and freedoms, of which participation is an essential aspect. Ethnic minorities have the right to influence the formulation and implementation of public policy, and to be represented (if necessary) by people belonging to the same social, cultural and economic context as themselves. For economic development to be truly for all people, it has to allow ethnic minorities a voice of their own, to articulate their distinct concerns and seek redress, and lay the basis of deliberative economic advancement (Yash, 2003: 16). The role played by ones economic status, particularly Batwa, in public participation is discussed in chapter 7, section 7.4.1.

The ability of ethnic minorities to effectively participate in public affairs is crucial in a sense that participation in decision-making processes enables them to influence policies that impinge on matters that are crucial for their survival as communities different from broader national communities. For instance in Burundi, where Batwa have been included in the management of the National Commission for the Land and Other Assets, it has helped Batwa get land during the redistribution processes the Batwa also have a seat at the Inspectorate of the State, where Batwa issues are channeled directly to the planning authority of the state. This explains the progress so far taken about the issues of the Batwa ethnic group in Burundi (as will be discussed in chapter eight). It is only through such

113 participation that minorities can influence policies that would be sensitive to their specific circumstances and needs (Bieber, 2003: 13). More to this is the idea that participating in public spheres is vital for redeeming their self-esteem as a people, for breaking negative stereotypes, intolerance and perceptions about these groups. This is true of the Batwa of Uganda, where their status is accompanied by negative perceptions, stereotypes, structural inequalities and exclusions by dominant majority communities.

Public participation can help ethnic minorities to integrate and socially relate with majority communities in which they live. In view of having effective integration (not assimilation), it is better if ethnic minorities are directly involved in development processes of their country or the locality in which they live, where they meet and interact with the majority population. Yash (2003: 5) observes that often, “minorities are alienated from mainstream national processes because they see no role for themselves in these processes or believe that they cannot influence outcomes”. In some instances, people (from other ethnic groups) claim to speak for the minority groups, and pretenc to know better what is good for minorities (other than ethnic minorities themselves). This facilitates negative attitudes towards ethnic minorities, and does not empower them to determine their plight. For instance this has sustained the bad situation of Batwa in terms of economic and political aspects. For instance in an interview with Mr. Godfrey Kikoko, a Mutwa from Hakikome in Mpugu Kanungu, noted that being represented by people who are not Batwa has disempowered them: “why cant they let us go there (in decision-making meetings) by ourselves? How do they know our problems, when they even don’t come to ask us? How shall we learn to do it if we are not given a chance? We are not children, we want to represent ourselves”. It is highly believed, and experience shows that participation enhances skills and talent development of minorities for their respective needs and that of the society (Baldin, et al, 2007: 13). Lanna (2006: 31) argues that in some communities where participation and integration of ethnic minorities is respected and promoted; where they are consulted and get involved in public issues; such a community tends not only to be more stable, but also more prosperous. While this has been possible in Europe for instance, with the involvement of Romas in most public affairs, in Africa it still remains elusive and far from the reality. In relation to this, as discussed in chapter three, Rousseau supports this idea, when he suggests that participation has an integrative function (Pateman, 1970: 27), and increases

114 that feeling of “belonging” among citizens. But more pertinent and fulfilling is the experience of participation in making decisions, which attaches the individual to their society and helps in developing cohesive community.

Public participation – before and after decision-making – is fundamental in improving the quality of decisions made and compliance in their implementation. Kallas (2008: 6) argues that “it is important that authority is not only well-informed on technical issues before making decisions, but also on the needs of the citizens in relation to the decisions to be made and how those decisions are implemented”. Kallas further observes that participation of all the stakeholders before a decision is made, enables authorities to reflect better on the public opinion of the people they lead when making their decisions. This view is shared by Thelon (2005:129), and Michael (2005: 16), who agree that if all the stakeholders participate in one way or another in the decision-making, they will in turn participate effectively in controlling the means of enforcement of such a policy, and jointly manage the decision; but without their participation, the decision is likely to fail.

This is the same argument that Professor Khadiagala36 advances. While responding to questions for this study, Prof Khadiagala (March 2018) argues that participation is “only one of the key components of governance because it speaks to questions of voice”, which is critical and underscores the role of people’s input in decision-making processes and how they are implemented. He further supports this point by noting that participation enriches governance because the assumption is not just one voice but multiple voices. He further observes that participation has the additional value of expanding accountability and deepening transparency, in other words, the more voices brought to the table the more the system has to respond to demands; responsiveness then breeds transparency and hopefully accountability.

Another aspect on the role of participation by ethnic minorities in public affairs has been postulated by Jean-Jacques Rousseau. His thoughts are focused on the close link between participation and control in relation to the notion of freedom. Rousseau posited that a man might be “forced to be free” and he also defined freedom as “obedience” to law one

36Gilbert Khadiagala is a Jan Smuts Professor of International Relations at the University of Witwatersrand, South Africa. 115 prescribes to oneself ((Rousseau, 1974:: 96; Pateman, 1970: 27). This means that one has to be involved in making such law. Rousseau recommends that every person has to participate, (willingly or forced), for a community to have general will or the kind of just law that the individual prescribes to himself (The Social Contract: 96). This means that participation increases the sense of freedom and gives citizens a high degree of “control over” the course of their lives and governance structures of their society. Through participation, Rousseau also argues that citizens exercise a fair measure of control over those that execute the laws as well as those that represent them.

Effective participation of minorities in public affairs is also justified, both from a rights perspective and from a security perspective (Werner and Crutchfield, 2009:151). Peace and stability concerns led to serious discussions in the realm of human rights at the international level in 1990s. From the preambles and drafting history of the three major ethnic minority rights instruments (The Commission on Security and Cooperation in Europe “Copenhagen Document”, the UN Declaration on minorities, and the European Framework Convention for the Protection of National Minorities), it is clear that these instruments were written at a time when the world was at war and having conflicts in which ethnicity and majority-minority issues took centre-stage. In drafuting these instruments, it was then agreed among other things, that peace and stability is built on respect for human rights, including rights of ethnic minorities (Max, 1999: 5). In such a situation therefore, minorities’ participation in public affairs becomes important for a cohesive and peaceful society, while exclusion and discrimination of ethnic minorities from issues concerning them is a recipe and potential root cause for conflict.

Furthermore, from the rights perspective, the ultimate goal of minority representation is substantive equality, which acknowledges differential treatment in order to attain effective fairness on the side of the marginalised ethnic minorities. The goal of equality is aimed at reducing structural inequality and systemic discrimination hence, including ethnic minorities in decision-making processes breaks such circles of socio-economic inequality. This is based on the assumption that minorities should be able to take part in public life as an implementation of the general principle of participatory democracy – as discussed in chapter three – which can be done through positive affirmative action.

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Furthermore, the aim of equality is to enable minorities to protect and promote their identity. It should be highlighted that culture, language, religion are strong elements of one’s identity and therefore minorities ought to be preserved and promoted. This calls for involvement and inclusion of minorities during and after drafting, interpretation, implementation, evaluation of laws affecting them and their identity. As such, effective participation and representation of ethnic minorities is a precondition for ethnic minority protection and promotion and the right to effective participation of ethnic minorities can be seen as a procedural right. According to Bieber (2003: 44), Spiliopouou (1997: 31) and Eide (1993: 155) minority rights cannot be short-circuited by representations only (participatory democracy as discussed in chapter three), but should rather have a robust framework to safeguard their rights. This supports the argument of the minority democracy (discussed in chapter three) and its linked theorists, such as John Locke, Stuart Mill, and Jean-Jacques Rousseau, who suggest that participation should aim to facilitate and empower the public in realising their potential and realities, as well as ensuring that through the “social contract” people participate in all spheres; not merely by being represented but also having their personal influence and control.

5.4 Challenges to participation of ethnic minorities in public affairs

From the outgoing discussions, the experience with participatory programmes concerning ethnic minorities in Africa is not encouraging. Moreover, as Ayee (2000: 9) observes, “even where development of local participation is an important objective of rural development, and where political education in mass participation is a key element of the development strategy, programmes have not developed genuine participation and responsibility among the rural people”. In some instances as discussed in chapter one, to make the situation worse, such development programmes have negatively affected ethnic minorities and instead left them more vulnerable, as in the case of Uganda with the eviction of Batwa and Benet to establish game reserves in the respective places.

In sub-Saharan Africa countries, including Uganda, public institutions, such as local government units and structures have not performed well in regard to participation of ethnic minorities, but rather decentralized their bureaucratic systems down to the village levels.

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For instance in Uganda, governance structures have been decentralised with the aim of extending and ensuring participatory approaches to all citizens. However, the institutions and structures put in place to initiate and implement development opportunities for people, have become stumbling blocks towards effective participation of such groups as the Batwa. Some developmental programmes have not benefited the communities, especially vulnerable and discriminated communities, to participate in such development programmes. Examples are Batwa and Benet communities that were evicted from their lands (Bwindi and Mt Elgon respectively), to establish game reserves. Consequently, some of these development initiaties have deepened the plight of ethnic minorities in terms of development (Forest Peoples Programme, 2015: 7).

Another point to note is the fact that participatory mechanisms are often launched without sufficient prior preparation and extensive consultations with the people concerned. This has been a big challenge in Uganda, because everything is done in a rush, and relevant people that would benefit from such a process are not given the opportunity to participate. This relates to the point discussed (page 105) on capabilities that would help people to influence any decision-making process. Because often ethnic minorities are not given adequate opportunity in such processes that would enhance their capabilities, the whole process remains foreign to them. This is coupled with the tendency by policy-makers and planners, who often, either deliberately or forget, that “participation cannot be achieved by plans and policies formulated in isolation – by central government together with decentralised offices – away from the people concerned” (Mathur, 1996: 28). It has to be emphasised that effective participation is more than planning mandates and/or good will, but also requires basic skills and re-orientation of structures and systems (capabilities), especially central and decentralised ones, which plans alone cannot achieve.

United Nations High Commissioner for Human Rights (2014: 15), in its report to the UN General Assembly, observed that “political constraints, specifically lack of political will, are still the biggest obstacle to effective public participation of ethnic minorities … more so in sub-Saharan Africa”. Other authors and scholars, including, Afaar Mindze (2015); Aritua (2013); and Chatora (2012); argue that African political leaders continue to have patronage

118 and nepotism tendencies, which eliminate those outside the current system, but use such tendencies to strengthen and entrench themselves in leadership. As a result of disenfranchised citizens, for instance in Uganda, there is, seemingly and allegedly, plans to weaken people’s power including civic engagements and sometimes coerce them to support the existing systems. According to Ayee (2000: 10) the “obsession with power by governemnts has led to centralisation of decision-making, which does not facilitate effective participation of vulnerable and discriminated people in rural areas”. Shockingly even in those countries where the decentralisation system of governance has been established, marginalised groups, such as ethnic minorities, have not benefited from such arrangements. This is due to the fact that citizens are not sensitised and/or empowered to effectively participate in the public affairs of their communities.

Another major constraint of effective public participation, particularly of ethnic minorities; is structural and systemic bureaucracy in public offices. This is very common in most African countries, despite the fact that the Africa Charter on Human and Peoples’ Rights and most of the AU member states’ constitutions emphasise participation by all in the governance and administration of public affairs. This is partly because, as observed by Ayee (2007: 7) “most African government-administered development agencies came into existence long before participation became part of development philosophy”. This means that government structures and systems are designed on a centralised, service-delivery approach in mind, without considering flexibility and responsiveness to needs in the field. And where decentralisation has been introduced – Uganda, Rwanda, and Ethiopia – not much has been done about removing such historical encumbrances. As a result, since such government programmes are very bureaucratic and lack development orientation, access to public participation by ethnic minorities has remained elusive. It has been argued by both scholars and practitioners, including Guy (2010: 643), Harding (2015), and Buddha and Mizanur (2018: 82) that bureaucracy is not good for a common citizen. Harding observes that “bureaucracy favours hierarchy, seniority, command (and control), unity, participation based on expertise, secrecy, impersonality and legitimacy based on expertise”.

Further to the bureaucracy in government circles are the socio-cultural constraints that have hindered ethnic minorities, such as Batwa in Uganda, Rwanda, Burundi, and the DRC, to 119 effectively participate in public issues. For instance, Kabananukye (2009) suggests that the deeply ingrained attitudes of “pessimism, self-pity, and lack of self-esteem and confidence” among the Batwa of Uganda hinder their participation in public processes. Batwa are excluded from the processes of planning and programming for services, not only in the local arena, but also at the national level due to the attitudes and negative stereotypes against them. The types of discrimination often faced by ethnic minority communities such as the Batwa include negative stereotypes, denial of rights and segregation (Lewis, 2000: 15). In an interview with Ms Tushemereirwe Lydia, a non-mutwa employing some Batwa as labourers in her gardens, openly noted that “Batwa are different from us; they are wild and savage people who are gluttonous”. Kidd (2008: 118) also noted that it is consistent that local people in those districts where Batwa are found refer to them as “inferior” because of their “begging” practice, but also they are routinely described as dirty people. Kidd further observes that these and other negative attributes to Batwa are products of their marginalised status, though presented as qualities inherent in Batwa society, which is false. I can attest to this based on my interactions with Batwa for about a decade now. Meanwhile some people think Batwa are an extinct group that should be left to disappear, noting that the Darwinian theory of natural selection will sort out Batwa issues. Wairama (2001: 17) suggests that, “there appears to be a retrogressive assumption that the Batwa are a temporary society destined to be assimilated and to ‘disappear’ into the dominant society as a result of ‘modernization’”. It is such negative attitudes towards Batwa that hinders them from participating effectively in public issues.

Another significant and common factor restricting participation of ethnic minorities in public affairs is their low levels of awareness. The assistance provided by government, mainly in the African context, seems irrelevant because a big population is simply not aware of service delivery which exists for them in their own local communities. According to André (2013: 69) ,the informed and educated people tend to seize and dominate every opportunity available, at the expense of the poor and illiterate, who in most cases are marginalised and discriminated, such as the Batwa in Uganda, the DRC, Burundi, and Rwanda; and Ik in Kabong, Uganda. This often comes in the form of representational participation, and in the case of an ethnic minority community, these elite groups tend to take cover under participatory democracy, arguing that all people participate through representation. As a 120 result, the illiterate, discriminated and marginalised communities see no motivation for active and effective participation in public affairs, and in competing with the elite for services and benefits which the latter enjoys.

In Ugandan context, public participation, for instance in political arena, systematically and structurally eliminates such groups as Batwa because of their low level of education. While at the lower governance structures – village and community (parish) levels – no education qualification is mandatory, some other levels including district levels requires one to have an education qualification of at least Advanced Level standard or its equivalent, plus non- refundable money paid to the government.37 Because the marginalised groups lack essential resources for effective participation – adequate information, education, money; coupled to ethnic tensions, impact strongly on effective participation of ethnic minorities in public affairs (Kabananukye, 2009: 13).

5.5 Participation and representation

As discussed in chapters one, section 1.1 and four, section 4.5, there is a distinction between mechanisms designed to promote or guarantee the participation of minorities such as temporary affirmative action. This approach aims to compensate for systemic discrimination and special mechanisms designed to protect and promote representation of a minority’s identity. According to Thornberry (1989: 870), there is a preferential difference between minority rights and minority protection: the latter is preferred because it is more expansive, and it covers the recognition of rights, including other methods of protecting minorities. The aim of integration and inclusion is to avert discrimination and the aim of preserving and promoting minority identity is to reverse assimilation (Verstichel, 2007: 28). This distinction helps to locate the difference between minority participation and minority representation, such that appropriate mechanisms suitable for and tailored to the specific issues of minorities are designed. Where unsuitable means have been developed and established, proper and effective participation of ethnic minorities has been hampered, and as such have not been beneficial to the target group. For example, Batwa in Uganda have not benefited politically and economically, despite a plethora of mechanisms and programmes put in place to address

37 Uganda Local Government Act 1997, Cap. 243, articles 111 and 112. 121 equality and equity among the Ugandan population; such as local council committee representations of the marginalised and vulnerable people, as well as prosperity for all.

Mechanisms intended to bridge the gap created by exclusion constitutes temporal affirmative action. In this case the participation of minorities is to be taken literally, since it will mean minorities actually sitting in parliament, taking up positions in public offices, as well as participating in all the public decision-making structures and mechanisms in order to contribute to reduce discrimination. What is essential to note is that minority representatives are authorised to represent their vulnerable and marginalised communities, thus creating accountability linkages between minority representatives and the people they represent (Verstichel, 2007: 80). For instance, one should not forget that Rwanda38; has worldwide highest ratio of female representation in national and Afghanistan39 leads in the Asian countries. However, this does not mean, unfortunately, that women in these countries have an effective voice and their issues are well represented and addressed. Although it can stimulate positive trends, mere presence of ethnic minority representatives in decision- making processes, especially in elected bodies, does not equal effective participation, nor does it grant participation as a whole; it is only a means, of passive, static, often formal (or token) inclusion as opposed to a dynamic, real involvement in the public process. Although the terms “participation” and “representation” are often used synonymously, it has been correctly pointed out that participation must be active and inclusive as opposed to mere presence of minorities (Verstichel, 2007: 10). It can also be noted that representation can be both ‘descriptive’ and ‘active’ representation (Pitkin, 1967: 21).

Furthermore, it is sometimes difficult to differentiate mechanisms to promote and guarantee participation of minorities as temporal affirmative action per se in order to reduce discrimination and underrepresentation, and then special representation mechanisms to enhance, promote and protect the minority identity. Sometimes both mechanisms overlap.

5.6 Dimensions of effective public participation

38 Article 9(4) of the 2003 Rwanda constitution, states … equality of all Rwandans and between women and men reflected by ensuring that women are granted at least thirty per cent of posts in decision-making organs. 39 In Afghanistan, 27.3per centof members of parliament are women, and the constitution establishes the procedure of electing them, and determines the numbers of women to be elected in each chamber. 122

McDougall (2009: 1) observes that effective participation “comprises the right to take part in the conduct of public affairs, the right to vote and to be elected (political participation), and to have access to public services”. She further argues that effective participation entails involvement of citizens in “governmental bodies and systems, local forms of governance, consultation mechanisms, as well as through economic, social and cultural arrangements” (McDougall, 2009: 3). For her, participation in socio-economic affairs means participation in and access to developmental aspects of the society, employment, land and property, education, housing, health care, social welfare and pensions. Above all, effective participation involves meaningful consultation and full and equal access to the necessary services.

Effective participation further consists of different mechanisms for civic engagements and action within a democratic system (UNDP, 2016). Ethnic minorities can “participate either before making decisions – by through consultations or direct participation – or after decisions are made – by acting on the execution of such decisions or by controlling their execution” (OSCE, 2013: 4). However, this is the minimum that can be accorded to the minorities. For effective representation, minorities should wholly be part of every space in public affairs, mainly voting during elections, joining political parties of their choices, standing for an elective position, joining civic and advocacy groups, or participating in a demonstration (Yash, 2003:15). In so doing it gives them the mandate to work and also being accountable to the citizens.

5.6.1 Participation through elected representatives

Representative democracy, as discussed in chapter three, section 3.2, appears to be the most extensively regulated mode of participation in the international human rights framework. According to article 25 of International Covenant on Civil and Political Rights, direct and indirect modes of participation are taken to be interchangeable, but the same article 25 seems to presuppose, in practice, some kind of representative decision-making structure (Suksi, 1993: 9). This standpoint is based on dogmatic as well as on pragmatic considerations, Suksi further observes. First, the separate election clause of article 25 (b) of the International Covenant on Civil and Political Rights indicates that some kind of

123 elections should be organised40. Suksi also argues that if direct and indirect modes of participation would be equally acceptable, a modern state could hardly be democratically governed solely through direct modes of participation.

Before analysing the participatory rights connected to representative democracy, it might be useful to examine standards concerning the structure of the political system at various levels. In the African context, we need to distinguish between two political systems. First, there are political systems where distinct government bodies performing legislative, executive, and judicial functions are linked to one another through some kind of mechanism for checks and balances. Second, there are systems which are built around strong executive powers, that is, political systems where the head of the state has, besides executive powers, wide legislative powers either formally or informally.

Besides the political systems and elective positions, there could be other ways of representing the people, this could be either appointed or allotted through special mechanisms and arrangements put in place. As long as the mode of appointing them is clear and open to all the citizens, then this would be an acceptable way for some sectors in the state to be represented.

5.6.2 Participation through decentralised local governance structures

Decentralisation is a form of local governance with structures “organised by and on behalf of local people, through planning, decision-making, enforcement of laws, and accountability processes” (World Bank, 2004: 3). Decentralisation does not only include local government sector and related public structures, it also consists of a variety of community and civic engagements by which people organise to act collectively. It facilitates greater popular participation in governance41 and is critical for efficiency, equity, and participation of all the people within a specific location. As its major pillar, decentralisation includes a social mobilisation dimension that motivates poor, vulnerable, and marginalised households to organise and seek access to available opportunities and resources (Smith, 1985: 7).

40 African charter on Human and Peoples Rights seems to be less explicit on this point, because of the lack of a separate election clause. 41 See Improving Local Governance and Pro-Poor Service Delivery, a report by Future Agricultures, London, March 2011 124

The participation of citizens at the very local level where decision are made is a key element of local democracy, because this increases transparency, as people will hold their leaders accountable on decisions made and their implementation. In this regard therefore, involvement of citizens in decision-making processes helps in disseminating information about local policies and their implementions and citizens are enabled to express their concerns for appropriate and timeous. One of the effective ways to increase participation and involve citizens in governance and improve the stability and security of the communities, is decentralisation (OSCE, 2011: 3), because decentralisationd is based on the principle of subsidiarity, in reference to bringing power closer to citizens. This requires sustainable and organised initiatives of relevant institutions and a continuous readjustment of the relations between different stakeholders, through sustained dialogue and communication (OSCE, 2013: 4).

5.6.3 Participation through the public service

Holding of position within the public service may offer an important platform for ethnic minority groups to participate in policy- and decision-making processes. The equality rights of minority to public office is widely recognised and has been deeply debated, as well as guaranteed in many human rights instruments comprehensively.42 Despite wide recognition of this right, its normative content remains obscure. Perhaps it is due to the ambiguity of the term public service. Some people have confused it with public offices, others public functions; and this leads to failure to come up with a meaningful and substantial mode to benefit such people as minorities. The term public service was debated by the United Nations Commission on Human Rights which agreed that the concept of public service covers public offices and public functions43. In whichever context and situation the term public service is defined, such government sectors as military, police, administrative offices, judiciary, education, all form a model under which ethnic minorities can be represented either through special considerations (affirmative actions) or by laws to ensure they equally have avenues to express their views. Further discussion in chapter nine (sections 9.3 to

42 See the Convention concerning Discrimination in Respect of Employment and Occupation (1960) , art 1 and 2; and the General survey of the Committee of Experts on the Application of Conventions and Recommendations , ILÖ Conference, 75th session 1988 43UN Doc A/C.3/SR.474 (1952), p.341 ( Mrs Roosevelt, USA), See, however, UN Doc A/C.3/SR.479 (1952), where the Swedish delegation argued that the term public office refers to the “government administration” 125

9.6) will look at the context in which the Batwa ethnic minority is able to utilise the public service approach to participate and have its voice heard in the decision-making processes.

5.6.4 Participation through associational life

Right to participation is linked to formal administrative structures. These are the ideals and indeed applicable in a “strong” state, for instance a state which has financial and effective institutional means to regulate the conduct of their public affairs. However, in a “weak” state, the case of Uganda and many African states, the government controls only a minor part of social life (Jackson, 1982: 18). It has to be noted that the role of the state as a means to development is emphasised almost in all the post-independence constitutions of African states. However, as Khabele (2002: 23) observes, the subsequent experience of economic deterioration, mismanagement, corruption, political turmoil in most African states has persuaded political thinkers to remodel the roles of the state, and this has called for thinking beyond the government structures and organisation and eventually gave birth to civil societies so as to bridge the gap created by the lack of emphasis on government’s side to address the issues of its citizens.

In so doing, the operation and functioning of these organisations has been facilitated by human freedoms like association and expression. This implies the right to become and stay as members, hence there is a need to either form and/or join a particular association. This also helps citizens to have their issues listened to at that level, as well as engage with the government collectively, in one voice, for their issues to be addressed. Through this model, groups such as ethnic minorities gain opportunities to contribute in public affairs and influence designing and implementation of decision.

5.7 Political participation of minorities

Political participation of minorities includes a broad range of decision- and policy-making processes at all levels (local, national, and international) in legislative, executive, self- governance and traditional spheres. Bird (2003: 6) argues that “legislative representation is a key mechanism for minority participation, enabling access for minorities to all levels of legislative representation in national parliaments, regional legislatures and local, municipal assemblies”.

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Political participation rights of ethnic minority can be exercised through self-governance. McDougall (2009: 8) observes that in such a situation this “entails some degree of group autonomy that gives minority the right to administer and even legislate in certain fields, including education, cultural affairs, application of personal laws and the preservation of customary law or practices”. McDougall further observes that “limited territorial autonomy provides opportunities for ethnic minorities to exercise participatory rights within a specific region in which the minority is concentrated” (UN Human Rights Council, 2009: 4). In this arrangemet the assumption is that since minorities are located in their own territory, it enhances service delivery and managing any problems without necessarily entrenching societal divisions. However, this assumption takes it for granted that all minorities are capable of having territorial governance and manage it by themselves, without intruders. It may take some times, for instance for Batwa to govern themselves due to the pertinent qualities and capabilities needed to do so (as discussed in chapter seven – sections 7.4 and 7.5).

Nevertheless, territorial autonomy has been used to accommodate the demands of linguistic or cultural minorities, which is not a progressive sign of manging diversity (but rather divisive). In short-term, territorial autonomy enables fair representation of minorities in making decisions and influencing implementation of such decisions in their own territory. Another challenge that may come from such arrangements is that if not carefully designed, it may lead to state fragmentation and thus incresase division. Moreover, arrangements should be made to ensure the rights of smaller “minorities within minorities”, through “power- sharing, cultural autonomy, and devolution to local authorities” (Reynolds, 2006: 12). As mentioned in chapter one, section 1.1, most African states have remained rigid to minority concerns fearing the secession of minority groups. It is, however, erroneous to think that political involvement of Batwa will empower them and demand secession.

5.8 Economic participation of minorities

The justifications for protection of minority apply equally, or even more forcibly, to include participation in economic spheres. In the same way as minorities are entitled to participate social and political spheres, equally so, the have the right to particiapt in influencing

127 formulation and implementation of economic issues. If development is to be truly achieved, all processes have to enable minorities “a voice of their own, to articulate their distinct concerns and seek redress, and lay the basis of deliberative economic advancement” (Yash, 2003: 14).

Effective economic participation can help towards the integration of minorities. Yash (2001: 12) further observes that for prospects of integrating minorities with other community members, it is better for ethnic minorities to get involved in development processes of their community. It is from this involvement that ethnic minorities get legitimacy in what is being done, and are able to effectively contribute towards its achievements. In addition to “power” given to ethnic minority, economic participation develops the talents of minorities for the national good. In its deliberations of 2010, under the theme “Minorities and effective participation in economic life” the Forum on Minority Issues Conference, recommended that participation and integration of minorities in national economic issues should be prioritised by the respective governments, and further observed that if minority rights to economic participation are respected and promoted, such a community becomes more stable with sustainable development (UN Human Rights Council, 2010: 4).5.9 Cultural participation 5.9 Cultural Participation

Cultural participation is a key and foundational mechanism for sound minority protection. This has been articulated widely in most legal mechanisms protecting ethnic minority rights, including the International Covenant on Economic, Social and Cultural Rights and the Framework Convention for the Protection of National Minorities (FCNM). Apart from participation in public affairs, direct engagement in cultural and social life is a key element in the lives of ethnic minority groups (Weller, 2005: 429). This is also based on article 2 of UDHR and influenced by article 2(2) of the UN Declaration on Minorities as well as article 15 of the FCNM. It is through cultural participation that minority persons express and preserve their identities, including languages; thus ensuring the survival and dignity of their community, which is essential for development of a truly inclusive and just society.44 UN Declaration on Minorities article 2 provides that minorities are free to express, preserve and

44 See Background document by the independent expert on minority issues, Gay McDougall, on “minorities and effective political participation”, Geneva 2010. 128 develop their ethnic, culture, linguistic or religious identity and to maintain and to develop their culture. It is from this background that in its subsequent statements and resolutions, CSCE calls for effective participation in all its forms, of minorities in issues concerning their culture.

5.10 The Principle of equality and non-discrimination

When discussing minority protection and participation in particular, one cannot avoid touching on the question of discrimination and equality. The non-discrimination principle has been included in most human rights instruments at different levels since 1948. Within UN system, already the charter of the organisation stipulates that the purpose of the UN, among others, “aims to promoting and encouraging respect for human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion” Article 2(3). The African Charter on Human and Peoples Rights on the other hand refers indirectly to the principle of equality and non-discrimination by reference to UN Charter and Universal Declaration of Human Rights, as the basis for international cooperation. This list of unacceptable grounds of distinctions has, in subsequent instruments, been extended further by inclusion of additional distinctions and a clause which leaves the list open-ended. Thus article 2 of International Covenant on Civil and Political Rights specifies that the rights recognised in the covenant shall be guaranteed “without distinction of any kind such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”.

Equality and non-discrimination are two coherent principles that have been widely established in domestic and international laws. They have their own “form” and “matter” aspects. In terms of “form”, it refers to the fact that all individuals should be treated equally according to fact and law; while “matter” implies equal distribution of rights and interests for all in a given society. On both aspects of form and essence, there are some differences between them in regard to the beneficiaries of the rights, as enshrined in different national and international laws. This study will seek to expound on the two concepts in relation to the context of Batwa.

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International commitments have been made through signing and ratification of the instruments at UN and Africa Union (AU) levels aiming to protect and promote non- discriminatory practises. These instruments highlight that every person has the right to freedom from discrimination without recourse to any restrictions. Furthermore, they espouse a spirit that realisation of fundamental human rights is dependent upon realisation of the human right to freedom from discrimination. It is thus to be noted that in as far as the ethnic minorities like Batwa, need to be protected from discrimination, and thus encourage participation in public affairs; such instruments must be effectively and sufficiently implemented at national levels. For instance, the UN Declaration on Rights of Minorities reaffirms common principles of equality and non-discrimination in both its preamble and in its substantive articles. However, the grounds on which discrimination is prohibited differs from one instrument to another, though the repeated reference to elements such as race, language, religion, national origin, social origin, birth and other status; cover traditional minority situations and aim to bolster and emphasise the issue of ethnic minorities not to be discriminated and/or excluded in public affairs.

Participatory equality includes all categories of people in political, social, economic and cultural spheres. This calls for inclusion of such groups, as minority, in all decision-making processes. Rightly said, minority rights protection remains inadequate, as long as it is designed and implemented “from above” as opposed to full inclusion of the minority groups themselves. Therefore, “effective participation”— as opposed to “token participation”— is not only a “right borne by minorities but also the only means of guaranteeing true stability within multi-ethnic societies” (Choudhry, 2008: 32). Protecting minorities and putting in place substantial equality systems are the only means of advancing respects for human dignity (Charles, 2003: 23) especially minorities’ dignity. This means right to equality inadequate if it lacks “participatory equality”.

5.11 Conclusion

In this chapter, the ways by which ethnic minorities participate, the reasons for their participation, and the rationale for different behaviours were explained. It can be deduced from the discussion that in those countries where minorities have been facilitated adequately, appropriate mechanisms to address their issues put in place; there has been

130 more participation by ethnic minorities in public affairs. The central theme of this study is to argue for the inclusion of Batwa in public affairs and enable them advance the fulfilment of their right to participation, as well as pave way for their social, economic, and political development. However, there are structural and proximate constraints that hinder their participation rights, and which must be dealt with squarely. This is because the two reinforce each other when it comes to the issue of Batwa’s access to and/or exercise of the right to participation in public affairs, and as such hinder the sustainability of any mechanisms and initiatives in place towards an effective public participation by ethnic minorities. Batwa’s participation in public affairs, as well as for any citizens, is a matter of good governance and democratic principle, as articulated by Kofi Annan, the former UN Secretary General: Good governance and sustainable development are indivisible. Governance, especially when it assumes a normative dimension of being qualified as good, is generally believed to be a basis for the reconstruction of the society. It is a means through which the people’s voices and expressions input into their life chances as it avows the principle of dialogue, consultation, consensus, and popular consent in decision-making and public policies. And without the people being the driving force of development, which (good) governance espouses, development can hardly take place; and if it does, it cannot be sustainable. It thus demands the consent and participation of the governed and the full participation and lasting involvement of all citizens in the future of their nation.

In line with this therefore, effective participation in public affairs requires an arrangement that encourages and facilitates the representation and presence of the ethnic minority themselves (where possible) or through their representatives in decision-making processes, and mechanism to influence implementation of such decisions. Minority issues therefore, should be consindered through principles of equality for all and non-discrimination. If effective participation in public affairs by ethnic minorities is to be meaningful, there should be arrangements and approaches at all levels to encourage and motivate all the people to get involved either directly or indirectly; as well as having strategies to reduce both structural and proximate encumbrances that hinder the effective and meaningful participation of Batwa in public affairs. In the context of Uganda, for instance, there is a need to link Batwa with development agencies of the government at all levels, establish forums to participate in the designing and implementation of public and development programmes; and empower such vulnerable groups with skills and knowledge to participate effectively. Such initiatives and programmes should be based on national, regional, and international human rights

131 framework, especially relevant instruments that Uganda is a party too. These are presented and discussed in the next chapter.

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CHAPTER SIX

POLICY AND LEGAL FRAMEWORK FOR EFFECTIVE PARTICIPATION OF MINORITY

6. Introduction

Between 1945 and 1948, as discussed in chapter two, the majority of UN member states were against any discussion aimed at articulating and protecting minority rights. However, in recent decades, the international community has demonstrated a more responsive and progressive attitude towards minority protection. This has facilitated the coming into force of human rights frameworks recognising minority rights as well as machineries mandated to protect minorities. This chapter opens the discussion on the examination and elaboration of a minority rights framework at different levels – national, regional and international levels – both legally binding mechanisms (convention, covenant) and non-binding instruments (declarations and policy guidelines).

The discussion in this chapter will focus on concepts such as ethnic minority, effective participation, and equality and non-discrimination principles as formulated and enshrined in various human rights instruments. The epicentre of chapter six is to study the progressive development of the minority protection regime and relevant legal provisions that are linked with the concepts of minority and effective participation. However, main focus is placed on instruments and mechanisms that are substantive on minority protection. This does not mean that only instruments and mechanisms examined (listed below) should be taken as an exhaustive list for protection of minorities. This chapter complements chapter two (theoretical and conceptual thematic scene-setting in respect of evolution and understanding of ethnic minority rights in relation to public participation). The theoretical discussions in chapter two continue to resound across this chapter.

Table: International and regional human rights treaties and ratification status of Uganda

Human Rights Year of Treaty body Ratification / Treaty/Instrument adoption accession of Uganda UDHR Universal Declaration of 1965 1948 Human Rights

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CERD International 1965 Committee on the 1980 Convention on the Elimination of all Elimination of all Forms Forms of Racial of Racial Discrimination Discrimination ICESCR International Covenant 1966 Committee on 1987 on Economic, Economic, Social and Social and Cultural Cultural Rights Rights ICCPR International Covenant 1966 Human Rights 1995 on Civil and Political Committee Rights CEDAW Convention on the 1979 Committee on the 1985 Elimination of All Forms Elimination of of Discrimination Discrimination against Women Against Women Declaration on the 1992 1992 Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities ACHPR African Charter on 1981 African 1986 People's Rights (Banjul Commission on Charter) Human and Peoples' Rights ACRWC The African Charter on 1990 African Committee 1994 the Rights and Welfare of of the Child Experts on the Rights and Welfare of the Child AYC African Youth Charter 2006 2008

6.1 International legal and institutional frameworks

6.1.1 The Universal Declaration of Human Rights

The Universal Declaration of Human Rights, as discussed in chapter two, was a result of World War II experiences. Despite the ethnic minority and tribal tensions in some countries at the time, the Declaration did not include any provision on minority issues, recognising that it emphasises the universality of human rights. Many states, such as Austria, Chile, former Czechoslovakia, former Yugoslavia, former Soviet Union, Haiti, Hungary, India, Romania and the Philippines opposed the discussion on minority definition (Capotorti, 1979: 8, 110–111; Welhengama, 2000: 57–60).

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However, some critical issues of concern to minorities can be gleaned from some of the general provisions, which are either explicit or implied in the document. These include religious freedom (article 18); freedom of association (article 20), which would facilitate meetings of ethnic minority communities; and the prohibition of discrimination on grounds of race, colour, language, religion, national or social origin, birth, or other status (article 2). There are characteristics that describe well contextual pespectives of ethnic minority communities within a state.

It can thus be said that minority rights were certainly forgotten, if not disregarded in the early days of the United Nations, while the universal regime was being established. As Smith (2009: 1) argues, “it is remarkable that while international human rights have attained global acclaim and universal acceptance, ‘the fate of minorities’ has, arguably, yet to be satisfactorily resolved”. The non-inclusion of a minority clause cannot go unmentioned here. Practically, at the time of drafting this instrument, ethnic minority concept was already a contestable discussion at the League of Nations (as discussed in chapters 3 (3.3) and 4 (4.1) on pages 83 and 91 respectively. Whereas it was proposed for consideration and later rejected due to perceived political fears, rather than humanitarian idealism45, such an omission of a minority clause has been regarded as a “mistake” (Capotorti, 1991: 1). Many states to date remain reluctant to address minority issues due to fear that such recognition may trigger demands for secession. For instance, the dissolution of the Soviet Union and Yugoslavia and Sudan are examples that many countries do not want follow, although that encourages infringements of minority rights (Eide, 2001: 381).

6.1.2 International Covenant on Civil and Political Rights (1966)

Article 25: Participation Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions: (a) To take part in the conduct of public affairs, directly or through freely chosen representatives. (b) To vote and to be elected at genuine periodic elections, which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors. (c) To have access, on general terms of equality, to public service in his country.

45See UN Doc. E/CN.4/21, Annex A, Article 46, p23. 135

Article 25 recognises and protects rights of every person to participate in the public affairs of their respective state. While there may be be limitations in terms of pregressive realisatio of this right, the article compels states to adopt necessary and conducive legislative and other measures to ensure that citizens have opportunities to effectively participae in the conduct of public affairs. International Covenant on Civil and Political Rights General Comment 25 paragraph 6 lists various ways in which citizens may participate in decision- making processes. These include participation in constitutional chages; referendum processes when deciding public issues; taking part in popular assemblies that make decisions about local issues or about the affairs of a particular community; and participating in bodies structures established to represent citizens.

It has to be noted that at the formulation of this article, there were debates disputing the inclusion of this article in the ICCPR. This is because the article was seen as a legal matter (human rights issue) and participation being a political (democratic) issue. Nowak (2005: 78), as well as Allan (1992: 58), believe that democracy is a matter of constitutional organisation of governments, belonging to the academic discipline of political science, where participation falls; whereas human rights is seen as a legal matter. This was based on the background that Britain, Holland and Belgium had expressed reservations on this article while Belgium voted against this article46.

Despite cognizance and protection of minority rights given by this article, this same article excludes minorities that are not citizens of a particular state, and only favours those minorities who are considered to be citizens of a given state. This is premised on the fact that participation rights are citizen rights. But a more serious issue with the drafters of this article in relation to this is the fact that citizenship shall be determined by the state as a principle of state sovereignty (Nowak, 2005: 570). Another gap in this article is how participation should be implemented in practice47, it also misses the sectors or structures wherein such participation should take place, but only mentions public service, which in itself is ambiguous. Is public service meant to be public positions? The United Nations

46 See E/CN.4SR.367, 12,14 47 See UN Doc A/47/40 section 366. 136

Human Rights Committee noted with concern that states should never restrict citizens from taking part in the conduct of public affairs, but rather provide opportunities that would facilitate their involvement, directly or through freely chosen representatives. It further emphasises the obligations (legal and constitutional) of the state to provide accessible and appropriate modalities of such participation.

Article 26: Equality and Discrimination All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status

In 1989, UN Human Rights Committee defined discrimination as any distinction, exclusion, restriction or preference based on any ground listed in ICCPR articles 2, 3, 4, 14, 20, 23, 25, and 26, with intentions of curtailing enjoyment or exercise of one’s rights. In this respect, the committee stressed the duty of states to “take affirmative actions in order to correct general conditions of inequality”.48

Along with liberty and non-discrimination principles, equality is another key ingredient and principle concept of human rights. Different from article 14 (1) of International Covenant on Civil and Political Rights, which talks of equality before the courts, article 26 provides that “all persons are equal before the law and hence should be treated so”. This is where the need for substantive equality (as discussed in chapter one) arises so as to address specific needs of ethnic minorities namely, addressing systemic discrimination from and marginalisation concerning effective participation in public affairs. Thus the equality before the law is not directed at legislation but rather exclusively at its enforcement. In addition to prohibition of discrimination as negative aspect of equal protection of the law, this article provides positive obligation on state parties to take steps to protect all persons against discrimination, as well as ensure equal and effective protection against discrimination. These are positive protection measures necessary for groups, such as ethnic minorities,

48 See A/45/40 Vol. I (1990) Annex VI sub A (pp. 173-175); CCPR/C/21/Rev.1/Add. 1, (pp. 1-4) 137 who are seriously discriminated against, either by state practises or by and through other means.

Another important factor in relation to article 26 ICCPR is on classification covered by this provision. Article 26 is open-ended; it forbids discrimination on any grounds “such as… or other status”. Thus in implementation of this article, it easy to invoke this provision in the event that preferential treatment occurs between persons. However, this has left many questions unanswered due to the lack of clarity of the Human Rights Committee practice on this provision. For instance, in Ibrahima Gueya et al. vs France49 in a case where French law provided that pension benefits of retired soldiers of Senegalese nationality who served in the French army prior to the independence of Senegal in 1960, was less than that enjoyed by retired French soldiers of French nationality, was discriminatory. The committee accepted that there is differentiation by reference to nationality after independence and this falls within the reference to “other status”. Subsequently, the Human Rights Committee opined that the events in the case, in so far as they produced effects after 17 May 1984 violated article 26 of the Covenant.

Article 27: Minority Rights In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.

This article is the first international provision to formally consider the concept of minority rights as a universal standard. It establishes and recognises minority rights as distinct from other rights that ethnic minorities, individually or in common, are entitled to enjoy. The article is by far the most important provision on the rights of minority, since it is the only legally binding provision at international level. Notwithstanding its negative formulation, it is regarded as positively guaranteeing the right of minorities to identity (Capotorti, 1979: 37). According to UN Human Rights Committee, this article “is directed towards ensuring the survival and continued development of the cultural, religious, and social identity of the minorities concerned”50. The Committe further asserts that to effectively potect this provision

49 Communication No. 196/1985, U.N. Doc. CCPR/C/35/D/196/1985 (1989) 50 See General Comment 23 on Article 27 of ICCPR, para. 9. 138 of the article, it is necessary to have positive measures ‘essential to protect the identity of a minority group and enable them develop their cultural and religious freedoms together with other community members. However, the expansive explanation of article 27 does not give adequate direction on issues, such as language, education, and participation pertinent to minority groups should be addressed. In accordance with the opinion of minority protection, Nowak (2005: 640) observes that the “article was formulated in an extremely cautious and vague manner, leaving many questions unanswered, but rather subjected to varying interpretations”.

In light of this argument, for instance, by using the phrase "in those states in which ... minorities exist," this article gives states option of not recognising minorities living on their territories, thereby excluding its application in such states; as in the case with Ghana and the Soviet Union. Second, the article confers rights on ethnic, religious, or linguistic minorities. It is therefore not clear if these categories are considered in the context of citizenship, and thus becomes a precondition to invoke article 27. Third limitation of article 27 is that it is the only provision in the covenant that is formulated in negative form. It should be stated in a way that is positive and progressive – "shall have" the rights specified – instead "shall not be denied" those rights. Nevertheless the article recognizes the rights of minorities. Finally, article 27 also is ambiguous and leaves room for interpretation of two subjects “individuals or groups”, to which it applies. While article 27 obviously confers rights on individual minorities, Nowak, (2005: 640) and Ulrike (2015: 48) opine that the phrase "in community with the other members of their group" suggests that a collective element was intended as well

Although article 27 refers to the rights of minorities in states in which they exist. However, its applicability is not subject to official recognition of a minority by a state exclusion (UN OHCHR, 2010: 15). The article does not compel states to adopt special measures to enable implementation of the aticle, but rather encourages states that have ratified the covenant to ensure that citzens in their respective states enjoy their rights. This may require specific action to correct inequalities to which minorities are subjected51.

51 See General Comment of the Human Rights Committee 18 (37). For the full text see United Nations Document HRI/GEN/1 of 4 September 1992. (Fact sheet No. 18 (Rev_1), Minority Rights.htm.) 139

6.1.3 Convention on the Rights of the Child

Article 30: Children belonging to minority group In those States in which ethnic, religious or linguistic minorities or persons of indigenous origin exist, a child belonging to such a minority or who is indigenous shall not be denied the right, in community with other members of his or her group, to enjoy his or her own culture, to profess and practice his or her own religion, or to use his or her own language.

This article repeats article 27 of International Covenant on Civil and Political Rights in reference to children, with an addition of “persons of indigenous origin”. This is followed by recommendation of UN Committee on Rights of Children, urging UN member states to ensure respect chidren’s rights belonging to ethnic minority communities, including cultures, oppression, and discrimination they experience. The UN Committee on the Rights of Children further notes that state parties should prioritise positive measures to reduce obstacles that hinder equal enjoyment of all rights of children belonging to minorities, in particularly; and to promote participation of these children, especially girls, in all matters affecting them.

The article sets a good precedence of efforts to mainstream minority issues in human rights frameworks, however, the focus of the article fails to bring out critical issues affecting minorities. Article 30 – “a child belonging to... a minority or who is indigenous shall not be denied the right, in community with other members of his or her group, to enjoy his or her culture”. The contextual fact is that children of minority or indigenous communities are not simply discriminated against in education, health, and participation opportunities, but rather discrimination stemming from social and cultural prejudice. Their discrimination is based on cultural, religious and linguistic rights – that must be prioritised - rather than economic or political rights, which may have indirect relations with their plight in terms of hindrances from economic or political forms of persecution, as the committee stated in the concluding observation.52

52 See CRC/C/15/Add.265, para. 75 140

6.1.4 The International Covenant on the Elimination of Racial Discrimination - 1969

This covenant came into existence at a time when the world was grappling with the issues of ending colonialism, after establishing a Declaration on the Granting of Independence to Colonial Countries and Peoples of 1960. The covenant re-affirms UN’s condemnation of colonialism and practises of segregation and associated discrimination53. Unlike many other instruments, the covenant, however, does not explicitly bring out minorities, rather implicitly refers to issues that are of concern to minorities’ protection. For instance, the Committee on the Elimination of Racial Discrimination (CERD) emphasises racial equality before the law; condemns institutions and strucutures that perpetuate racial superiority and hatred. The committee further encurages adoption of educational and cultural programmes that would help in promoting racial tolerance, and other measures to control racial discrimination. The most powerful provision in this document is article 5 that is considered an important tool to protect the minority rights broadly and protection against discrimination in specific contexts.

The committee also focuses on the participation rights of the indigenous minorities, by encouraging states to facilitate such initiatives. The recognition of the participation rights in public spheres and in decisions directly affecting indigenous minorities in this recommendation; is another fundamental development at international level that has inspired and directed the recognition and promotion of the rights of indigenous minorities to participate in public affairs.

6.1.5 Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities

This declaration was adopted by the General Assembly in 1992 as main point of reference regarding the rights of ethnic minorities. It includes a list of rights associated with ethnic minorities’ contexts and are entitled, including the right to own culture, religion, and language. It also provides measures to be taken in enabling people to enjoy their rights and minorities to participate fully in the economic progress and development of their country. The cornerstones of this declaration are the principles of non-discrimination, effective participation, and protection and promotion of identity. Although the rights of minorities

53 See Preamble para 4 141 increasingly get recognition as part of the “anti-discrimination agenda”, much remains to be done to achieve a just community free of racism.

Article 1: Protection of minority rights by states 1. States shall protect the existence and the national or ethnic, cultural, religious and linguistic identity of minorities within their respective territories and shall encourage conditions for the promotion of that identity. 2. States shall adopt appropriate legislative and other measures to achieve those ends.

In some states, different mechanisms have been used to deal with minority issues; these include elimination, assimilation, tolerance, protection and promotion. Among these, elimination is illegal and against human rights law. This article and indeed the whole declaration condems forced assimilation but encourages integration which respects fundamental rights of every person without discrimination. Protection of minorities articulated in this article ensures that integration is not imposed on people and becomes unwanted by minorities, rather allowing principles of equality facilitated by rule of law to prevail. Minority protection in this declaration is based on promoting their existence, inclusion exclusion, non-discrimination, and non-assimilation of minority communities.

The second paragraph mandates states to establish “appropriate legislative and other measures” to realise positive minority protection. It suggests that legislation should be in place and complemented by relevant measures in order to ensure effective implementation and realisation of article 1. In terms of process, declalration encourages states to consult minorities on what would constitute appropriate and suitable measures for them to effectively contribute to public affairs. This is because different minorities have unique needs that need specific intervention to be taken into account. This follows the principle that any policy or intervention that involves minorities must be based on objective and reasonable grounds suitable to the community, and clearly explained to the concerned parties in order to avoid implementaional callenges, especially discrimination tendencies.

Article 2: Right to participation 2. Persons belonging to minorities have the right to participate effectively in cultural, religious, social, economic and public life.

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3. Persons belonging to minorities have the right to participate effectively in decisions on the national and, where appropriate, regional level concerning the minority to which they belong or the regions in which they live, in a manner not incompatible with national legislation.

Article 4 5. States should consider appropriate measures so that persons belonging to minorities may participate fully in the economic progress and development in their country.

Article 2 sets forth political participatory rights. The article states clearly that the right to participation is crucial to promote interests and values of minorities. Important to note here are the words “effectively” and “public life”. These should be understood in the broader sense to include public offices as well as public institutions.

Different from the previous paragraph, the third paragraph of article 2 clearly deals with minorities’s rights to effective participation, and the catching phrase is “in decisions […] concerning the minority to which they belong or the regions in which they live”. This is because such decisions have great impacts on minorities; hence taking part processes of making decision will help them to have their views listened to and influence the implementation. The article encourages participation of minorities at different levels including regional and national.

Article 4 complements article 2 by obligating states to put in place measures for participation in economic progress and development. Considering African situation, such measures by states have to be context applied based on capacities and available resources that would enable participaion of ethnic minorities in public afairs. This should be on a progressive realisation programme. This is a good gesture, however, it fails to bring out ways and mechanisms or a particular formula by or through which such can be realised or attained. And it focuses on economic progress and development, but leaves out other spheres, which are covered under public affairs. Considering that the decalartion is not binding but providing guidelines for member states to follow, substantially the article should have, at minimum, provided guiding indicators to qualify the effective participation and/or means to achieve such effective participation. For instance, in comparison to Lund, recommendation 11 qualifies what it calls effective participation “…the structures and decision-making

143 processes …should be made transparent and accessible in order to encourage participation of minorities”.

One general problem in this declaration is the lacuna on clear definition of minorities or to provide criteria to recognise ethnic minorities. The declaration does not define “minorities” or make an attempt at describing the categories of minorities. This being an instrument dedicated to minorities, one would expect a comprehensive analysis on the minority as a concept. This leaves the implementing parties to interpret and apply the declaration depending on their situations.

6.2 International mechanisms for the protection of minorities

In addition to instruments aimed at protecting and promoting minority rights, there are other mechanisms put in place to ensure effective implementation of these instruments, as well as realisation of rights of minorities. Within UN frameworks, there are numerous bodies mandated to protect human rights. However, not all these mechanisms are exclusively dedicated to minority protection and several of these mechanisms possess overlapping mandates. These include:

6.2.1 United Nations Human Rights Council

One of the achievements of the council was establishment of Sub-Commission on Prevention of Discrimination and Protection of Minorities in 1947. Among other mandates it was supposed to study the implementation of Universal Declaration of Human Rrighs make recommendations relating to human rights and fundamental freedoms related to protection of racial, national, religious and linguistic minorities. However, before it finalised its mandate, the commission was renamed as “Sub-Commission on the Promotion and Protection of Human Rights”. The changes in names meant that the mandate and functions of the commission had to change and extended beyond the issues of discrimination and minority rights. This did not give sufficient priority to minority issues and thus became one among many topics at the commission sessions.

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6.2.2 United Nations Forum on Minority Issues

A major achievement of UN Human Rights Council is establishment of minority forum in 2007 alongside the mandate of an independent expert on minority issues (IEMI). IEMI is a first and unique office specifically dedicated to address minority issues and enhance the work of UN on ethnic minorities. IEMI has mandate to reieve communication from minorities directly as well as from states on situations of minorities; take up specific actions to address issues raised conducting country visits and making recommendations to UN Human Rights Council; and to convene the annual forum on minority that discusses and makes recommendations to different stakeholders on matters of importance relating to protection of ethnic minorities.

Forum on Minority Issues replaced another body, UN Working Group on Minority (WGM) that was influential in promoting minority rights at the global level. Notwithstanding its brief history, WGM had a strong impact as an effective platform for “deliberation and producing mutual understanding between minorities and their governments”54. It provided a space for actors, members of minority groups, practitioners, and government representatives to meet and discuss issues of concern about minority protection (Eide, 2005: 615).

Minority Forum that replaed WGM has provided space dialogue on minority issues, discuss sustainable solutions to prevailing challenges, and identify opportunities initiatives for the further implementation of UN Declaration on minority. The main focus of the forum to “improve the promotion and protection of the rights of persons belonging to minorities”55, including at the regional level. The forum is credited for its comprehensive recommendation on minority issues, and taking on neglected areas of minority rights such as minority women and girls (2011 theme and focus). Perhaps this is the first time issues of minority women had been the focus of the work of a UN meeting. The forum has also engaged with international organisations, something the working group was struggling to get hold of, and

54 See UN OHCHR, “The Former Working Group on Minorities”. Available at https://www.ohchr.org/EN/Issues/Minorities/Pages/TheformerWGonMinorities.aspx

55 See UN OHCHR, “United Nations Minority Forum on Minority issues”. Available at https://www.ohchr.org/EN/HRBodies/HRC/Minority/Pages/ForumIndex.aspx

145 thus saw little practicable benefits for many organisations such as UN agencies to participate. However, the UN minority forum, like many other UN mechanisms is yet to come up with a concrete definition on minority. It has also been criticised for not doing much to engage with the member states, especially those violating the rights of minority to ensure ethnic minority issues are implemented in such specific countries.

6.3 Regional legal frameworks

6.3.1. African Human Rights system and minority rights

Coming home to Africa, the then Organisation of African Unity (OAU) did not actively promote an agenda for minority protection, perhaps in a way to avoid cessation discussions, as well as complex and impractical exercises. In addition to what was discussed in chapter four, section 4.2, other governments including Botswana and Rwanda not supporting the UN initiatives to come up with mechanisms to protect and promote indigenous ethnic minority. For instance, Botswana noted to UN that “the country is made up of indigenous people, who could not be against themesleves”. While Rwanda explained that the discussions at UN isolated indigenous ethnic groups and incited them to establish their own institutions countering the existing ones by their states. That would weaken states as a whole and hinder their recovery processes (UN General Assember, 2006). Such statements and attitudes resulted into lack of serious articulation of political, social, and economical situations of a variety of minority communities in Africa (Dersso, 2010: 41). A lot of effort has been focused on equality, elimination of discriminatory tendencies and struggles for recognition of the minority communities. However, there is a growing realisation that participation of minoroites in public affairs is a necessary condition, if all these human dimensions are to be realised; and for good governance and rule of law to be effectively beneficial, all people need to participate in such processes.56

At regional level, there is no treaty or instrument devoted to minority issues. As Ramcharan (2002: 100) observes “protection of minorities in Africa is a subject practically untouched in the literature or in African policy documents, even though it involves one of the core causes

56 See Guide lines for African Union Electoral observation and monitoring missions contained in the report of the meeting of experts on elections, democracy and governance in Africa, Addis Ababa, may 2004 146 of conflicts and of gross violations of human rights throughout the continent”. However, minorities’ protection is refelected in some other documents and best practices that are either explicit or implicit about minority issues. Viljoen (2007: 529) suggests that “it is possible to infer minority rights from rights that are expressly provided for in African treaties using the doctrine of implied or un-enumerated rights”. However, the challenge with using implied rights theory is that it is not targeted and thus fails to precisely specify the exact scope of protection that should be afforded to minority issues. For example, what does discrimination on the basis of origin mean in practical terms?

Furthermore, interpretation of some rights using implied approcach is left to regional bodies – African Commission of Human and Peoples Rights – which has not managed well some critical cases on the continent. An example is the diversionary interpretation on Batwa of Rwanda by the commission. While examining the Rwandan state report in 1991, the then Commissioner Nguema of the ACHPR asked;

“Does that mean that we have to take into account the rights of the Hutu community, the Tutsi community or the Tua community? I think that according to the interpretation and even the principles which are enforced in the OAU at the level of states, I think it is admitted that we do not have to take into account the rights of the various ethnic groups, to consider them as peoples' rights. For the OAU, the ‘peoples’ is the whole group composing the nation - the groups as a whole that we find within a state” (ACHPR, 1991).

In light of the above, minorty rights and protection can, perhaps, be implied in some human rights instruments of the African human rights system.

6.3.2. African (Banjul) Charter on Human and Peoples Rights

The African Charter is an exceptional instrument due to its wider coverage of human rights categories. It has entrenched all three human rights generations (firt, second, and third), which have the same legal validity and are legally enforceable (Oloka-Onyango, 2002: 857). Second, the use of peoples’ rights together with human rights in its title brings on board a wide range of issues that many treaties have not addressed. However, the African Charter is not different from other similar instruments that “do not refer to minorities as a legal category of people to protect” (Oloka-Onyango, 2002: 887). In the context of the Charter, minority rights are not distict from those proclaimed by other instruments, such as the 147

African Charter on the Rights and Welfare of the Child, African Youth Charter, African Charter on Democracy, Elections and Governance, and AU Convention for the Protection and Assistance of Internally Displaced Persons. Nevertheless, the Charter enshrines specific rights that should be considered in the realm of minority protections. These includer right to non-discrimination (article 2), equality and equal protection (article 3), respect for human dignity (article 5), participation rights (article 13), and development (article 22 [2]) for all the people.

These provisions and in particular article 2, are important in that they prohibit UN member states from denying individuals the equality rights merely on basis of their group membership. When considered with article 20 (right to self-determination) of the African Charter, this right can be interpreted as giving fundamental protection to the right of any given ethnic minority to live freely without any dominance by a group or individuals. This could implicitly call for cessation of such a group. These provisions should thus be seen in light of article 26 of the ICCPR and the provisions of the ICERD, particularly article 2. It can therefore be argued that this provision mandates all governments to abolish all tendencies of discrimination against minorities, but gives the obligation (in the context of economic, social and cultural rights) to “take necessary measures to correct the conditions that challenge or diminish the enjoyment of rights by members of minority groups on an equal basis with other members of society”.57

The African Charter has been credited for being conducive and relevant to monority protection because it harmoniously “integrates the individual and collective rights” (Quashigah, 2011: 122). For the same reason, as argued by Derso, “the charter was received with pessimism by many human rights scholars and practitioners” (Dersso, 2006: 333). Like many other human rights instruments, African Charter does attempt at providing clear distinction between t “minority” and “indigenous population or people” notions. Although, in recent years, the African Commission on Human and Peoples Rights has elaborated that minorityrights “are formulated as rights of individuals, while the rights of indigenous people are collective rights” (Kane, 2008: 29).

57 See General Comment No. 18 of the Human Rights Committee of the UN, paragraph 10; CERD articles 2(2) and 1(4). 148

6.3.3 The African Charter on the Rights and Welfare of the Child

African Charter on the Rights and Welfare of the Child (ACRWC) was adopted to ensure that African states recognise specific protection relevant to children. It can be said that among African human rights instruments it is ACRWC that explicitly talks about minority issues. It brings out special protection for children belonging to minority communities and clearly prohibits discrimination based on cultural identity (article 3; article 26, paras 2–3). However, like many other instruments, regardless of being a continental issue with similar challenges, ACRWC fails to provide a succinct definition of who a minority is in the African context.

6.3.4 African Youth Charter Article 2 of the charter obligates states to recognise rights of youth belonging to minority groups. Though the article does not mention minorities, but indigenous instead, minority communities in Africa have been the most vulnerable and marginalised communities (UNDP, 2010: 164). This article, and indeed the whole charter, potentially promote minority rights and ensure the visibility and recognition of minorities and their culture and practises. The charter, however, is silent on how such a mechanism will help youth from minority communities who are always marginalised. It assumes that all youth have the same opportunities and therefore will participate equally; the reality is far from the truth in different countries. However, the fact that it recognises youth from marginalised groups, should have put in place mechanisms that can be applied in different contexts to help the marginalised participate equally.

An important point to make is that, the absence of a comprehensive mechanism to deal with minority rights at African level cannot be underestimated by this study. In Africa with its ethnic diversity, one would expect to have a robust mechanism to protect and defend issues of minority. But one point to make is that, some African government are always courteous about recognising distinct identities within their borders as a threat to national unity58 (as discussed in chapter 1, 3, and 4). However, there is enough information to suggest that

58 See Alternative Report - Rwanda CERD/C/RWA/13-17 submitted by UNPO to the UN Committee on the Elimination of Racial Discrimination at the 78th Session during the consideration of the 13th – 17th Periodic Reports of the Republic of Rwanda, 2011 www2.ohchr.org/english/bodies/cerd/.../NGOs/UNPO_Rwanda78.pdf, accessed on 29th March, 2012 149 ignoring the fact of identity has been a factor on most African countries (as discussed in chapter one). This had been noted by the OAU’s under in 1994: “peace, justice, stability and democracy call for the protection of the ethnic, cultural, linguistic and religious identity of all our people including national minorities and the creation of conditions conducive to the promotion of this identity”.59

6.4 National legal frameworks

6.4.1 Uganda Constitution of 1995

Uganda has ratified all the above human rights instruments and domesticated all of them. For instance, the 1995 constitution of Uganda is a robust mechanism towards human rights protection in general. The constitution has “national objectives and directive principles of state policy” section, which is comprehensive and summarises almost all the critical areas of concern in Uganda and in particular it highlights concerns of Ugandans regarding equal opportunities for vulnerable groups. In its preamble, the constitution mandates the government to establish a socio-economic order to ensure equality and social justice for all.60 This is expounded in article 21 - right to equality and freedom from discrimination. The provision further compels parliament to enact favourable laws necessary for implementing policies and programmes to address socio-economic and other inequalities in Uganda. In light of this parliament and other government agencies and ministries have responded to this provision by establishing different mechanisms, for instance, the gender policy, the national policy for older persons, the children’s act, the disabled policy, and the national youth policy; to ensure protection of equality and freedom from discrimination of these marginalised groups.

Article 36: Protection of minorities Minorities have a right to participate in decision-making processes and their views and interests shall be taken into account in the making of national plans and programmes.

Article 36 of the constitution provides for the protection of minorities but more so emphasises participation in decision-making processes for purposes of ensuring that their interests are

59 Declaration on a Code of Conduct for Inter-African Relations, Assembly of Heads of State and Government, 30th Ordinary Session, Tunis, Tunisia, 13–15 June 1994 60 See Para 3, preamble, constitution of Uganda, 1995. 150 taken into account in national plans and programmes. However, the constitution does not define or describe the concept of “minority” to be protected by this provision, and hence there is generalisation that includes also the traditional and historically marginalised communities, such as, women, children, people with disabilities, and elderly, under this article. The article also does not show how minorities will participate and/or be consulted.

The constitution provides for affirmative action for marginalised communities based on “gender, age, disability, or any other reason created by history, tradition or custom” (article 32). It has to be noted that other vulnerable and historically marginalised groups such as women, disabled, and youth have enjoyed the benefits of this constitutional provisions while Batwa are yet to realise the same. Affirmative action is a long-term measure aimed at redressing inequality, and should last as long as such imbalances exisit in the concerned community or group of people. In the same article, parliament has obligations to establish an equal opportunities commission in view of addressing this imbalance. While this mandate has been used by the parliament of Uganda and other governance mechanisms, such as the local government systems and structures, less (and in some instances like the Batwa, nothing) has been done. This calls for more concerted efforts to effectively and equally implement such provisions of the constitution.

Further still article 180(2) of Ugandan constitution mandates parliament to make laws for local government councils and to prescribe their composition; and stipulates that affirmative action principles – referred to in article 32 – shall be applied to the system of local government. The constitution further mentions the one-third system reserved for women and consequently, section 10 of the Local Governments Act provides for the participation of all people in local government processes at all levels61. And indeed in practice, the traditional groups identified as marginalised like women, people with disabilities, youth and elderly have either a slot in the local council governance and/or a distinct council handling their respective and particular issues. These, implicitly and/or presumably, may be interpreted as the categories of minorities mentioned in article 36 to benefit from article 32.

61 Cap. 243, 2000 Laws of Uganda. 151

The significant silence and inadequate attention to ethnic minorities in Uganda is clearly reflected in two reports – 2007 and 2010 – on Uganda’s performance on Millennium Development Goals (MDGs). Since adoption in 2002, the MDGs became a hinge upon which most important policies and social development plans were based. However, regarding poverty eradication and related challenges, all developed plans did not draw attention to the specific challenges of ethnic minorities, like Batwa, in Uganda. To some extent this explains why some of these indicators and declarations were not met.

6.4.2. Equal Opportunities Act 2007

Based on the constitutional mandates under article 180, the Ugandan parliament adopted the Equal Opportunities Act, to deal with issues of social justice, equity and equality. The Act seeks to address discrimination and inequalities against any individual or group of persons. The provisions of this Act also give effect to affirmative action (enshrined in constitution article 32) in favour of groups marginalised based on any distinction. The Equal Opportunities Act broadens the spectrum for understanding the concept of discrimination in the Ugandan context, by defining discrimination as any act, omission, policy, law, practise, situation that has the effect of nullifying one from accessing equal opportunities.

Whereas the Act does not mention minority rights, it aims at ensuring equality in freedoms, attainment of access to social services, education, employment and physical environment or the participation in social, cultural and political activities regardless of any reasons or factors which, in one way or another, affect marginalised minority communities like Batwa. However, the Act focuses on the establishment of the commission and does not mention how to ensure the protection and promotion of the rights of the marginalised. It is also silent about the equal opportunities that would be availed to the beneficiaries of the Act let alone defining or describing the categories of the people the Act would protect.

While the Act is silent about the minority rights, it is surprising that the Equal Opportunities Commission (established by the same Act) has focused ites work mainly on ethnic minorities, such as Batwa. This is discussed below as well as as in chapter 8, section 8.2.2. in light of this, and also considering the stance Government of Uganda has on indigenous ethnic minorities (as presented in chapter one, section 1.3; refer to footnote 28; and chapter

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6, section 6.3.1), it is not surprising that an Act such as this, is silent about ethnic minorities. Perhaps the government is trying to portray the same spirit as it did at the UN. In doing so however, the silence about minority issues contradicts the spirirt of the Act, particularly on how it defines discrimination62.

6.4.3 The Equal Opportunities Commission

The Equal Opportunities Commission (EOC) is established by an Act of parliament63 to eliminate discrimination and inequalities against citzens. The EOC has “mandate to monitor, evaluate and ensure that policies, laws, programmes, activities, practises, traditions, cultures, usages and customs are compliant with equal opportunities and affirmative action in favour of marginalised groups”.64 Furthermore, the commission is required to investigate any act that constitute discrimination, marginalisation, or undermines equal opportunities. The EOC also has powers to “hear and determine complaints by any person against any action, practise […] which amounts to discrimination, marginalisation or undermines equal opportunity”.65 However, the commission is not well facilitated in terms of resources - for instance commissioners have not been appointed, and has for last 4 years been underbudgeted, thus cutailing its work, especially on addressing minority issues in Uganda.

6.4.4 The Local Government Act, Cap 243 The Act mentions that local governance system is based on the district structures as units, under which there are lower administrative units: municipalities, counties, sub- county/divisions/town councils, parishes/wards, and villages. These administrative units are charged to handle most of the local matters including legislation, revenue, political, and socio-economic; and must enforce affirmative actions through by-laws and programmes within their mandates. This therefore means that at the local council level, ethnic minorities in Uganda, including Batwa, have structures through which they can participate and/or be represented and have their issues attended to. However, the reality on the ground is different with many Batwa losing faith in available mechanisms. The reasons and factors for

62 See preamble of the Act referring to discrimination as any act, omission, policy, law, rule, practice, distinction, condition, situation, exclusion or preference which, directly or indirectly, has the effect of nullifying or impairing equal opportunities. 63 Act 2 of 2007. 64 EOCA, sec 14. 65 EOCA, sec 14(4). In discharging this function the EOC has powers to order any person or authority to adopt or take particular steps or action to promote equal opportunities. 153 such inadequacies are discussed in detail in chapter seven. In light of these national legal framework, one needs to get to the question as to where is the challenge in promoting and protecting the participation rights of Batwa. Perhaps, as discussed in chapters 8, section 8.5 and ten, section 10.3, the “elephant in the room” remains the political will on the side of state actors to effectively implement these provisions.

6.5 Case laws There have been legal proceedings handled by different human rights systems and mechanisms, including United Nations, African Commission on Human and Peoples Rights, Inter-American Commission of Human Rights (IACHR), European Court of Human Rights (ECHR). In this study, the focus will be on the cases that have been submitted and handled by the UN and ACHPR. These present relevant situations that African minorities (Batwa in particular) could exploit in taking litigation, as one of the approaches, in ensuring that their rights are protected and promoted.

6.5.1 Principle of equality and non-discrimination

Equality and non-discrimination are two coherent principles with each having its own formal and material aspects (as discussed in chapter 5). Both concepts have been included in most human rights instruments since 1945 (with the end of World War II), in particular, the UN Charter and OAU Charter66, article 2 of ICCPR; as well as others that deal with different kinds of discrimination. Despite the plethora and extensive instruments on these principles, equality and non-discrimination issues have remained on paper for ethnic minorities in many parts of the world.

Equality and non-discrimination are linked to poverty, and both principles support efforts meant to eradicate poverty and encourage the growth of democratic institutions. In Lovelace Vs Canada case,67 Lovelace faulys Canadian Government in application of certain provisions of the discriminatory practices68 and alleges violations of her rights as a Maliseet

66 See also aticles 8, 13, 55 of the UN Charter. The OAU charter refers indirectly to the principle of equality and non- discrimination by reference to the UN Charter and the universal declaration as the basis for international cooperation 67 Lovelace vs. Canada (No. 24/1977), Report of the Human Rights Committee, 36 UN GAOR Supp. (No. 40) at 166, UN Doc. A/36/40 (1981). 68 See Indian Act Section 12(1) (b) an Indigenous woman who marries a non-Indigenous man loses her status under Canadian law. Published by the Minister of Justice at the following address: http://laws-lois.justice.gc.ca, 2011 154

Indian to live on designated reserve land and to enjoy subsidised social benefits. UN Human Rights Committee, where the case was taken, determined Ms Lovelace was denied her right to enjoy her culture in community with other members. This is further supported by the Kitok petition in Kitok Vs Sweden case, 69 which concerned violations of article 27 of ICCPR on protection of minorities. As a Saami in Sweden he was discriminated against and not afforded the same treatment as his fellow Saami community. UN Human Rights Committee declared the petition admissible under article 27, nonetheless, the committee decided that Sweden had not violated that article, which was a contradiction.

6.5.2. Minority protection and effective participation

According to Izsák (2013: 1), minority communities across Africa are in dire need of strengthened attention and protection. This stems from the semantic debates on who are the minorities. This has resulted in massive abuse by different actors, including governments through different ways of commission and omission. In the case of Sarr Diop, Union Interafricaine des Droits de l’Homme and RADDHO Vs Mauritania,70 which was brought to African Commission on Human and Peoples Rights, affirms this assertion. In this case, petitioners alleged that black Mauritanians were murdered,71 expelled from their land,72 inhumanely treated, tortured, their goods confiscated, and villages destroyed.73 This case illustrates patterns of systematic violations of rights, marginalisation and discrimination to which minorities in many African countries are susceptible on account of their group membership. The commission noted that “representative of the government and authors of the communications declared that many Black Mauritanians were forced to flee or were detained, tortured or killed because of the colour of their skin”.74 The commission finally held that “for a country to subject its own indigenes to discriminatory treatment only because of

69 Kitok vs. Sweden, Report of the Human Rights Committee, 43 UN GAOR Supp. (No.40) at 221, UN Doc. A/43/40 (1988). 70 See Communications 54/91, 61/91, 98/93, 164/97, 196/97 and 210/98, Malawi African Association, Amnesty International, et al Vs Mauritania, 13th Annual Activity Report of ACHPR (1999–2000), ACHPR/RTP/13th, Annex V (hereafter the case against Mauritania). 71 Communication 98/93 provides list of villages that were destroyed. 72 Communication 96/93 provides a list of villages all or almost all of whose inhabitants were expelled from their land and driven into Senegal. 73 Communication 61/91 contains a list of 339 persons believed to have died in detention 74 The case against Mauritania, supra note 33. 130 155 their skin is an unacceptable discriminatory attitude and a violation of the very spirit of the African Charter especially Article 2”.75

Although the ACHPR in this instance has drawn a connection between discrimination and group membership, it did not articulate the essence of this link and how and why the provision quoted from the 1992 minority declaration is relevant and the ways in which it adds substance to interpretation of article 2 of African Charter. The recognition of this connection entails that, non-discrimination calls for recognition and protection of existence and identity of various constituent ethnic communities in the African state. It is interesting to note, that in its concluding observations on the periodic report by DRC, the African Commission on Human and Peoples Rights recommended the importance of recognising minorities for their protection against violations including discrimination: The Commission urges the DRC Government to take urgent measures to ensure the protection of the rights of the Batwa people in the whole territory of the DRC and move particularly to stop the serious violations of the rights of these people in the Eastern Districts. The government is urged to put in place, as quickly as possible, legislation recognising the rights of the Batwa76.

One of the problems facing minorities in Africa is the hostility of African states to accord official recognition to the existence or identity of ethnic groups, which is translated into violation of freedom of association, expression and assembly, and protection of the peaceful activities and associations of minorities (Walker, 2012: 30). One of the manifestations of this is the imposition of legal restriction on the formation of minority organisations or activities on pretext that they pose threats to national security and unity. For instance, the Rwandan government forced the Community of Indigenous People of Rwanda to change its name to Community of Porters in Rwanda, reasoning that such ethnic self-identification undermines the unity in the country (ACHPR, 2010: 30).

Such policies of assimilation, like the case against Mauritania, Communication 61/91, where racial discrimination was propagated; their associations taken as injurious to national interest and guilty of engaging in racial and ethnic propaganda.77 In relation to minorities,

75 Ibid 76 Concluding Observations on the Consolidated Report of the Democratic Republic of Congo, ACHPR 34th Ordinary Session held in Banjul, the Gambia on 6–20 November 2003, Recommendation 24. 77The case against Mauritania, supra note 33 156 the findings should be understood to entail that minorities have the right within the framework of freedom of association to form their own organisation for the preservation of their identity and the promotion of their common interests. As such, states are barred from interfering in the functioning of such associations and their activities unless such associations and activities involve violence, or propagate ethnic hatred, war or conflict. Concerning limitations, the African Commission rightly indicated that any law that prescribes limitations must provide an objective criterion for determining criminal nature of a fact or an organisation78.

Another case involves Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) Vs Kenya79 that was brought before the African Commission on Human and Peoples Rights. Endorois Welfare Council alleged violation property rights, religious freedoms, and right to development by the Kenya government in violation of ACHPR and Constitution of Kenya. This stems from the 1970s evictions by the Kenyan government of the minority Endorois community from their land in the Rift Valley (around the Lake Bogoria area” to create a game reserve for tourism. This stopped the community “from practising their pastoralist way of life, using ceremonial and religious sites, and accessing traditional medicines”80.

The ACHPR found that the Kenyan government had violated the Endorois' rights under the African Charter (articles 8, 14, 17, 21 and 22, respectively). The commission observed that “violations resulted from the displacement of the Endorois community from their ancestral lands, failure to adequately compensate them for the loss of their property, disruption of the community's pastoral enterprise and violations of the right to practice their religion and culture, as well as the overall process of development of the Endorois people”81.

The commission further stated that government of Kenya erred by not consulting Endorois in processes of developing the region as a tourist game reserve. In light of these violations, the commission recommended the government to “recognise Endorois ownership of the

78 Communication 211/98, 14th Annual Activity Report of ACHPR (2000–1). 79 See Communication 276/03 to ACHPR. Available at http://www.achpr.org/communications/decision/276.03/ (accessed May 7, 2017) 80 See Communication 276/03 to ACHPR. 81 See Communication 276/03 to ACHPR. 157 land, compensate their losses, and ensure Endorois benefit from the royalties and employment opportunities within the game reserve”82. The decision is noteworthy because it emphasises the right to participation as well as minority rights protection (although for collective claims for Endorois).

In Uganda’s context, following the first case ever in the country involving an ethnic minority community protesting their forced eviction from their lands, the Benet went to the courts of Uganda to have their land in Mt Elgon restored. This land was taken by the government and gazetted as a wildlife conservation area. The consent agreement by the court recognised Benet as rightful owners of land in question. The settlement stated:

That it is hereby declared that the Benet Community residing in Benet Sub-County including those residing in Yatui Parish and Kabsekek Village of Kween County and in Kwoti Parish of Tingey County are historical and indigenous inhabitants of the said areas which were declared a Wildlife Protected Area or National Park; That it is hereby declared that the said Community is entitled to stay in the said areas and carry out agricultural activities including the developing the same undisturbed; That the Respondents take all steps necessary to de-gazette the said area as a Wildlife Protected Area or National Park pursuant to this Consent Judgment, after a physical inspection of the boundary with the Benet Community.83

6.6 Conclusion

This chapter presents main legal and institutional frameworks guaranteeing the minority rights at national, regional and international levels. These frameworks give guidance on minority protection at different levels and are therefore crucial for the realisation of the minorities. The chapter has identified and elaborated the legal and normative bases for the recognition and accommodation of minority rights, and in particular the right to effective participation. The foregoing discussion has shown that arguments supporting such accommodation can be drawn from equality and non-discrimination, recognition, identity and non-assimilation issues; as well as minority protection. Although each of these elements

82 See Communication 276/03 to ACHPR. 7 83 Consent Judgment and Decree, Uganda Land Alliance, Ltd. Vs Uganda Wildlife Auth., Miscellaneous Cause No. 0001 of 2004 (High Court of Uganda at Mbale).

158 provides its own basis for addressing issues of minorities, as shown in this chapter, no one or two of them alone would be enough to constitute a minority rights framework sufficiently robust for designing an adequate legal regime to protect and promote minority issues. They complement each other to offer comprehensive legal and normative framework for minority protection. However, the lack of definitive clauses articulating and unpacking the minority concept by all the legal and institutional frameworks cannot be taken as an oversight, but rather as a contested issue that is still contentious and developing at all levels, as well as misunderstood in its social, cultural, economic and political perspectives. In light of the above, the next chapter specifically looks at the marginalistions of Batwa, with reference from the relevant human rights instruments, particularly those signed and or ratified by Uganda.

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CHAPTER SEVEN

BATWA OF SOUTH-WEST UGANDA: A HISTORY OF MARGINALISATION AND PARTICIPATION IN PUBLIC AFFAIRS “Batwa are law abiding citizens of this beloved nation but as a minority group we have faced too much discrimination and prejudice from the communities we live in, especially the local political and religious leaders. This is mainly in terms of land distribution, education and provision of social services like awareness campaigns about the dangers of AIDS and other diseases. We don’t have priests to bury our dead even though we are believers”84

7. Introduction

The emergent studies about the Batwa minority group in south-western Uganda have exposed the relationship between influential partners and stakeholders, realities at the local levels, as well as current interventions from different actors. However, such studies have not sufficiently paid attention to the linkage between the eviction of Batwa from their ancestral land, participation in public affairs, and current situation in communities where they live. Therefore, the chapter is divided into three sections: section one looks at the chronological events and consequences of the Batwa’s eviction from their land comprising of Echuya, Mighahinga, and Bwindi in the early 1990s and how this has affected their current situation in relation to effective participation in public affairs, as presented in chapter one. Preliminary studies have suggested that the evictions of Batwa were conducted in disregard of international, regional, and national standards; including not consulting them and failure to compensate them.

Section two looks at factors facilitating the marginalisation of Batwa, which include; poverty, exploitation by dominant groups, landlessness, negative stereotypes, discrimination in health care services, and diverse interventions with limited tangible deliverables to the Batwa. The third section focuses on direct impacts of the Batwa’s evictions and marginalisation to their current state (in relation to participation issues in public affairs). Specifically, this section looks at factors responsible for the Batwa’s non-effective participation in public affairs, which include stereotype and misconception about the Batwa,

84 John Rwubaka, 2005. “We Batwa face discrimination” in The New Vision, November 9, 2005. Kampala. 160 derogatory labels demeaning the Batwa, illiteracy, denial of rights to same standards of justice and treatment as others. The chapter concludes by noting that mass displacement and eviction of Batwa has contributed to the plight of Batwa, and that effective measures to address the Batwa issues should be effected following the guiding principles of human rights standards (Mukasa, 2014: 80).

7.1 Context of ethnic indigenous minorities and marginalisation and more from other countries

Ethnic indigenous minority communities in various contexts experience diverse challenges in recognition for their rights. For example, many ethnic minorities depend on their lands for their livelihood, but often are uniquely affected by natural resource induced developments. Such developmental challenges are often ignored by development partners, who often are behind development projects, such as wildlife conservation in the developing world (WRM, 2000: 4; World Bank, 3). Ethnic minorities need to be provided with opportunities to choose their own development path – development that takes into consideration their issues and recognises their rights. Responsibility of a state to development should not undermine miorty rights; rather human dignity should supersede such developments. Ignoring basic principle of human dignity and integral values of traditional livelihoods of ethnic minorities has serious hindrances towards a sustainable development. While developmental projects are recommended, fair and meaningful consultations between affected communities (particularly ethnic minorities) and government should be exhausted before any negotiations involving development partners and other players can take place. Development partners includingWorld Bank, have an obligation – as guided by their operational standing policies and procedures85 - to ensure participation of ethnic minorities for these projects to have a significant impact.

Despite such practises being common, with robust legal framework, some development partnersin collaboration with government of Uganda; did not effectively consult Batwa before their eviction that started in the early 1930s, only to be finalised in 1990. It has to be

85 See World Bank Operational Manual - OP 4.10 - Indigenous Peoples, at https://policies.worldbank.org/sites/ppf3/PPFDocuments/090224b0822f89d5.pdf

161 underlined and made clear that the marginalisation of Batwa did not start only in 1990 with their final eviction from their ancestral land, but rather earlier than that. The events in 1990 were more proximate (the triggers) than structural (what had been in the system). In the course of internalising Batwa issues, it has become clear that Batwa share similar challenges with other ethnic minority communities in Africa. In this section we explore the challenges similar indigenous ethnic minorities in some of the African countries experience. While this is a snapshot of specific issues, such as participation, equality and discrimination, land rights, and general human rights situation, specific country experience supports the arguments and issues raised on the Batwa’s situation. As such we look at the Khoisan community of South Africa, Basarwa of Botswana, San of Namibia, and Baka of Cameroon.

7.1.1 Khoisan community

Although apartheid system was discontinued, South Africa continues to deal with the “legacy of apartheid” – despite gains made since the end of apartheid in 1994. Le Fleur and Lesle (2013: 2) argue that South African indigenous ethnic minority groups who were dispossessed of their land, their communities and cultures destroyed; continue to suffer the impacts of such dispossession. (One such community is Khoisan that has remained in a subordinate position, discriminated against, marginalised without compasation. Khoisan continue to claim recognition and protection of their fundamental human rights and freedoms, although authorities remain silent about their issues, or not fulfilling their promises. In an interview with Naidu86 (March, 2018), she noted that Khoisan are caught in the trap of majoritarian perspectives that tend to ignore the issues of minority in the whole spectrum of ending apartheid rule and ushering in democracy, which looks at numbers rather than issues. Although indigenous ethnic minority communities are still not officially recognised as such in South Africa, South African government acknowledges their existence as evidenced by the constitutional reference to the need to promote the Khoe and San languages of the Khoisan community.

One of the impacts of the dispossession of their lands is poverty. Le Fleur and Lesle (2013: 4) observe that Khoisan community is considered to be the poorest of the poor in South Africa, living in rural areas and “stigmatised as a lower class by dominant communities, work

86 Sanusha Naidu is a governance expert and Lecturer of African politics at University of Cape Town. 162 as menial labourers without tenure rights or job security in poorly paid seasonal work”. Furthermore, despite South Africa being an example in managing problems of marginalised communities, it has taken so long to address Khoisan situations and they have continued to suffer from a variety of breaches of their fundamental human rights and freedoms, including inequality and discrimination, recognition, rights to land and restitution, and socio- economic rights. In 2005, UN Special Rapporteur, Rodolfo Stavenhagen, described “development problem of Khoisan community as stemming from the forced dispossession of their traditional land”87. In his reported he noted that dispossession of land and natural resources plunged them from a situation of self-reliance – that they long enjoyed in their ancestral land – into poverty and dependency on external resources and dominant communities that otherwise took over their lands.

Another aspect of Khoisan’s assertion of identity in post-apartheid period is that of public participation and civic engagement. As noted earlier, members of the Khoisan community have been active in engaging the government on their issues, for instance, the 2010 lawsuit, and the current demands for the restitution of land rights. However, their participation in public affairs is still a challenge and they have not been represented through the affirmative action enshrined in the constitution. The good news is that political leaders in are slowly recognising issues of Khoisan community. In his “State of the Nation” address on 9 February 2012, former President of the Republic of South Africa, Jacob Zuma promised to work on recognition and related issues of Khoisan community. Mr Zuma noted harsh and brutal experiences Khoisan people experienced at the hands of colonialists and undermining their language and identity tried to make them extinct. He noted that “as a free and democratic South Africa today, we cannot ignore to correct the past”. According to Naidu (March, 2018), the constitution of South Africa is a starting point to addressing the issues of the Khoisan. She observes that the bill of rights clearly mandates the government to ensure human dignity of every citzen; equality in every aspect without any discrimination. For her, it is lack

87 See the Commission on Human Rights “Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous Persons, Rodolfo Stavenhagen: Mission to South Africa”, E/CN.4/2006/78/Add.2, 15 December 2005. Available at https://documents-dds-ny.un.org/doc/UNDOC/GEN/G05/167/46/PDF/G0516746.pdf?OpenElement

163 of political will by the Government to grant full recognition to Khoisan of their full and respective identity.

7.1.2 The Basarwa of Botswana

In Botswana, the Basarwa, sometimes called Bushmen, are about 10 000 (3 per cent) of the country's population. Historically, Basarwa are distinct from the rest of the population - linguistically, culturally and physically - exhibiting different characteristics, such as being short in height, “yellowish” in complexion, have narrow eyes and high cheek-bones. Due to intermarriages with other communities, these physical distinctions have changed and the majority of Basarwa do not have these physical characteristics distinguishing them from rest of the population. Basarwa, like the Khoisan of South Africa, were formerly hunters and fruit- gatherers, and lived a nomadic life. Their economic, social, and political lifestyles have changed from time to time due to imposition of some aspects that have left adverse impacts such as eviction from their ancestral lands for development of Kalahari Central Reserve. The creation of the reserve’s land and their evictions did not say anything about their rights, compensation, or restitution.

Basarwa are politically, socially, and economically marginalised (IWIGIA, 2004, 138). Socially, Basarwa’s cultural aspects, such as language, chiefdoms, and customs are not legally recognised. While the Botswana Constitution guarantees all citizen 18 years right to vote, without any restrictions; this provision does not consider other means of participation and neither does it consider the social, economic, and political status and marginalisation that hinder their participation. Botswana should be commended for providing structures and various levels that would enable indigenous ethnic minorities to effectively participate in public affairs. For instance, local governance structures consist of four key institutions: Tribal Administration, District Councils, District Administration, and Land Boards. As Chadzimula (2012) observes these institutions are “creations of different historical epochs in Botswana’s quest for development, and as such offer different possibilities for participatory development of such marginalised communities”. However, given discrimination, negative perceptions, and contempt with which Basarwa are held, their utilisation of such structures remains inadequate; notwithstanding the electoral Act section 58 which provides for affirmative action concerning participation in public affairs, though

164 this has not benefited Basarwa, and in practice the provision is utlised to appoint members of the ruling party (non-Basarwa) who, in most cases, lose elections or are being introduced into politics as a way of cpmpasating them or building their capacity.

7.1.3 San of Namibia

Ethnic minority communities in Namibia, as the neighbouring countries, have experienced injustices that have left them vulnerable and disadvantaged. Following its independence, Namibia, has made strides to address some historial imbalnces and inequalities left by colonialism and apartheid, such as land restitutions. However, certain indigenous ethnic minority communities – including San – have not benefited from the gains and promises of independence, as land restitution. San community has expressed strong desires for greater inclusion and participation in public shperes all levels. In their petiton to the government, San have requested that they should be given opportunities to contirubute to the policymaking. I an interview with Ms Ndeutalala Amulungu (February 2018), former Chief Planning Officer at National Planning Commission of Namibia, she noted that San have asked authorities to “genuinely set their own priorities for development and to regain or strengthen rights over lands and natural resources, particularly lands to which they retain a cultural attachment but which were dispossessed”. However, authorities have kept promising to deal with the issues raised year after year.

The San, who number about 35000 of the total national population, lost their lands during colonial as well as apartheid periods. They live in remote areas after losing their lands through land dispossession and exploited by dominant communities through cheap labour as farm labourers, and often under extremely poor conditions (Job, 2013). San community gets their livelihood and survival from land by hunting wildlife and gather veld fruits. Because of their eviction from their lands and failure to be compensated, their lifestyle has been disrupted; began to be treated as “less developed”, and started suffering discrimination from dominant communities.

As discussed in chapters three and four, for any ethnic minority community to maintain their distinct identities and claim their dignity, they must effectively participate in all decisions affecting them. Unfortunately, San in Namibia feel excluded from decision-making processes at all levels because of their ethnic identity. They are not represented at any level 165

– save for the recognition of two chiefs in the Tsumkwe District – despite constitutional provision on equality rights and affirmative action for previously marginalised communities. They are discriminated against socially, politically, and economically and this has left them vulnerable.

7.1.4 Baka Pygmies of Cameroon

The Baka people – who are traditionally hunter-gatherers numbering about 30000 in Cameroon – are part of a bigger community of “pygmies” that lived in rainforests of Central Africa. They are called different names in these countries.

In Cameroon, as in many African countries, Baka as an indigenous ethnic minority community has been disposessed of their land to establish national parks – Boumba Bek, Nki and Lobeke – other land for safari hunting, and others have been taken by the government for mineral extraction and logging. Because of development initiatives, Baka have been stripped off rights to their ancestral lands and are regularly harassed, arrested, and tortured by wildlife officers and security officers whenever they go back to access fruits as food, medicines, and visit their spiritual sites. The situation is worsened by the implementation plan of Cameroon’s 2035 vision of national development that cannot allow Baka to access their ancestral lands. This development is being supported by international organisations, funded by institutions that purportedly embrace the principles of human dignity and sustainable development (these will be discussed in detail in the coming section). As alluded to in chapter one, sustainable development must have a human face and consider the welfare of the concerned community. David Hoyle, an activist for wildlife did not have kind words about the Baka community when contacted by Ngala (2012), a human rights activist in Cameroon. David noted "but of course the world is changing, Cameroon is developing, going down the development route. Hence, the government's push for mining permits, logging permits and general development cannot allow such human activities of Baka".

Baka suffer from discrimination, stigmatisation and marginalisation in so far as their level of participation in public spheres at both the community and national levels is still low, since they are not consulted and involved in designing and planning processes that affect them. Furthermore, the effects of stigmatization has forced Baka to resort to begging and 166 becoming “slaves” who work on other people’s farms, since they cannot access forests to get fruits or hunt and are unable to meet the demands of their daily living due to poverty. This has changed their lifestyle, forcing them to live in camps along the roads and act as tourist attractions, only to be paid in food currency by the well-wishers, and they continue to live as squatters on their own land as an indigenous ethnic minority.

Ethnic minority communities in these countries have suffered injustices in the past (at the hands of colonialism – as discussed in chapter one sections 1.1 and 1.2.2– under the pretext of development that leave them disadvantaged, marginalised, and vulnerable to discrimination and exclusion in the present (ACHPR, 2006: 8). It is obvious that development planners often focus on infrastructural development and neglect the human aspects, including giving little or no attention to socio-economic issues, such as education, health, livelihood and entire well-being of the people. It is because of such deficiencies that ethnic minority communities degenerate into vulnerable, disadvantaged, and marginalised relative to other dominant groups; and have not benefited from promises and benefits of independence in these countries. Affirmative actions and positive measures should developed and implemented, in consultation with affected communities to enhance effective participation by all citzens at all levels of governance and decision-making structures.

7.2 Tracing a history of marginalisation of Batwa

During colonialism, African indigenous communities were dispossessed of their ancestral lands and/or their natural resource bases through unjust and undemocratic policies and legislation (Harris, 2004:168). Despite advocacy work by various actors on the continent against forceful eviction and appropriation of lands belonging to indigenous ethnic communities, unjust practices continue unabated up to today. Development and nature conservation approaches continue to affect human rights of ethnic minority communities, because implementation of this projects fails to consider minority livelihoods, equity, and protection. For example the eviction of Batwa from Bwindi and Mghahinga, demostrates how “a well-intentioned” development projects can ruin the lives of vulnerable minority community (Tumushabe and Musiime, 2006; Zaninka, 2001; Zaninka and Kidd, 2008).

167

While in the forest, Batwa carried out hunting and beekeeping for livelihood. Their resource utilisation patterns supported sustainable natural resource use (Lewis, 2000: 17). However, the 1990 Ugandan government policy of biodiversity-conservation transformed Bwindi and Mgahinga natural forests into jealously guarded game and forest reserves. The whole process, however, did not recognise, resettle or compensate Batwa, despite living in these places for ages, and for losing their ancestral land. The eviction forced a sizeable number of Batwa to live as landless, homeless and squatters on other people’s lands without affording Batwa basic necessities of life and others migrated to cities where they live a destitute life. This eviction did not take into consideration what would befall the Batwa after leaving their ancestral lands. This forms a cornerstone of their current situations in all the countries where they live.

In the programmes to stop all human activities in and around the forests of Echuya, Mgahinga and Bwindi, the Batwa were neither consulted nor informed prior to their eviction from their ancestral land. The exercise as such dawned on them, without any resettlement package and/or compensation for loss of their land. Such compensation is supposed to be guided by the recommendations of the International Labour Organisation Convention (No. 169). Paradoxically, non-Batwa farmers and other encroachers, whose activities had destroyed the forest to make farms and plunder resources, were compensated (as a recognition of their land rights) while Batwa “who lived for generations before and after 1930 without destroying the forest or its wildlife, and even had historical claims to land rights were never compensated” (Lewis, 2000: 20). This is a clear indication of discrimination extended to the Batwa community in these areas. It has to be noted that the tourism industry contributes immensely to Uganda’s Gross Domestic Product (GDP); however, the challenge getting right a balance between human beings and wildlife (animals) conservation. For instance, it would have been fair to resettle or compensate Batwa alongside wildlife conservation projects. The bigger picture is the fact that conservation is done for the people, and as such the priority should be given to human beings and later to wildlife.

In most countries in Africa, where national parks have been established, the practice has been to evict settled communities from the land. While this is understandable, it is not desirable and all these cases have led the evicted communities to experience disastrous effects, including living miserable lives (Dowie, 2009: 23). For instance, the Endorois 168 community in Kenya were evicted from their land in Baringo to establish a game reserve; Ogiek of Kenya were evicted from Mau Forest for conservation purposes. Batwa in Burundi, the DRC and Rwanda were also evicted from their forests for the same reasons; Basongora in Uganda were evicted from their ancestral grazing lands to create the current Queen Elizabeth national park and Benet in eastern Uganda were also evicted from their lands in Mt Elgon for nature conservation related reasons.

7.3 The role of World Bank and international actors in conservation processes of ethnic minority lands

International agencies, such as the World Bank, Conservation International (CI), and the WWF, are always applauded for the programmes in their areas of focus. However, it has to be highlighted that some communities, including ethnic minorities across the world, have been dispossessed of their properties as result of, either the “good work” turned bad (by the implementers) of the these actors, or by their unfavourable and hostile decisions. The World Bank’s policy on indigenous ethnic minorities (OP 4.10) is specific in underscoring that “recipient country and the bank should to identify such communities, consult with them, ensure that they participate in, and benefit from bank funded operations in a culturally appropriate way and ensuring that the adverse impacts are avoided, minimised or mitigated” 88.

Despite the presence of such operational policy within the World Bank’s mechanisms, many communities including the Maasai of Tanzania; the Batwa of Great Lakes region; Basarwa of Botswana; Ogiek and Endorois of Kenya; Mursi of Ethiopia; Babongo, Bakoya, Baka, Barimba, Bagama, Kouyi, and Akoa of Gabon, as well as the Karen of Thailand; the Adevasi of India; and the Kayapo of Brazil; were dispossessed of their ancestral lands in the course of protecting and conserving biodiversity, which were undertakings of the World Bank (World Bank, 1995; 3). Most of the affected communities are always taken to be “enemies of conservation” and the common complaint is that evictions often occur with the tacit approval of some international development institutions and organisations – The Nature Conservancy (TNC); the World Wide Fund for Nature; African Wildlife Foundation (AWF),

88 Operational Directive 4.10 on Indigenous Peoples under the objective and policy section. 169 and the Wildlife Conservation Society (WCS) – which have been nicknamed the “BINGOs” (Big International NGOs) by local communities.

In the case of the Batwa of Uganda, their eviction was based on recommendation of World Bank through Global Environment Facility (GEF) to gazette the Echuya, Mighahinga, and Bwindi as game reserves (World Bank, 1995: 5). Although World Bank Operational Directive 4.2089 requires “meaningful consultation” with affected communities to “mitigate negative development impacts and ensure adequate benefit sharing prior to project approval”90, consultation with Batwa took place later after the project had began in 1995. The World Bank conducted a study and came up with substantive recommendations, including allowing Batwa to have user-rights and access sacred (religious) sites; and build Batwa’s capacity - through educational, health, and economic assistance. More shocking is a fact that in 1995 the World Bank through GEF, provided US$ 4.3 million, a portion of which was supposed to buy land to compensate the evicted Batwa; but only 326 acres were bought, without giving them land titles, in addition to land being not suitable for their livelihood and sustenance (Kenrick, 2000:26).

Notwithstanding comprehensive Ugandan legal framework91 that have provisions, which grant Batwa access and use of the national parks, coupled with the study recommendations of the World Bank, Batwa remain unattended and little is being done to reverse the situation. This is a “classic” case of ethnic minority community that has lost its land, being ignored. Undoubtedly, community land rights were not given priority in the process of evicting communities and establishing national parks, also the study recoomedations pointed out these issues, both government and the development partners were not bothered to manage the situation. It has now been made worse by parks management teams and responsible governance structures who have failed to take effective action to restitute Batwa lands, rather often torture and mistreat them.

As a result of lack of considerations, as guided by World Bank Operational Directive 4.20, Kenrick (2000:11) noted that Batwa currently “live in conditions of great hardship and poverty

89 Operational Directive 4.20 on Indigenous Peoples under the objective and policy section. 90 Operational Directive 4.20 on Indigenous Peoples under the objective and policy section. 91 Laws such Uganda Wildlife Statute, 1996; Uganda Wildlife Act 1996; National Parks Act, 1952; Uganda Wildlife Policy, 1995 eshrine provisions of access and user-rights to be granted to the affected communities. 170 on the margins of mainstream society”. In 2014, 44 per cent of Batwa were reported to have been landless with nowhere to “build a hut”. In a study conducted in 2007 by UOBDU show that the landlessness in Kisoro was 50.4 per cent, Kabale 61.4 per cent, Kanungu 20.9 per cent, while in Mbarara, Katovu and Ntungamo landlessness was at 100 per cent of total households (UOBDU, 2007: 6).

The marginalisation of the Batwa is manifested in “their social, political, and economic walks of life” (Kidd, 2008: 62; Kidd & Zaninka, 2008: 4). They are discriminated based on their physical appearance (men and women rise to an average of four feet or less in height) and their heritage as forest dwellers. Furthermore, ACODE (2006:14) noted that “marginalisation of Batwa is visible in the education sector, health, local and national government offices”. Due to marginalisation, Batwa are gradually being assimilated, losing their language and culture amidst pressure from dominant non-Batwa groups. Surprisingly, “little, if anything, is being done to keep and maintain their original language and culture” as noted by Zaninka (October, 2017). It is common knowledge among the non- Batwa in these districts that the original language and cultural practises of the Batwa are disappearing steadily. This has been attributed to marginalisation and pressure from "other" ethnic groups (Kabananukye & Kwagala, 2007: 23). In an emblematic case, Alice Nyamihanda, the first Mutwa in Uganda get a formal diploma in 2011, lamented in a BBC interview that, “after evicting her forefathers from the forest, the concern is not only their loss of land but also their loss of culture” (Vishva Samani-BBC, 2010: 18).

7.4 Factors affecting Batwa’s effective participation in public affairs

The Batwa are prevented by multiple factors from effectively participating in public affairs. In the first instance, what seems to be the most widely known factor is their numerical strength that renders their articulation of a common stand on their concerns as a minority community problematic. However, the effective participation of Batwa in public affairs is influenced by social, economic, cultural, and political factors that linked to the factors for their marginalisation.

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7.4.1 Poverty

Poverty is a major challenge for the majority of Ugandans owing to the inequitable access to, and utilisation of land and natural resources. This affects more indigenous ethnic communities, such as Batwa, who are natural-resources-dependent, but whose lands were taken away from them without any compensation. According to the UN Committee on Economic, Social and Cultural Rights, “poverty arises when people have no access to resources because of who they are, what they believe or where they live”92. Marginalisation is one of the causes of poverty among Batwa community. From the experience with ethnic minorities on the continent, it is possible to note that “marginalisation causes poverty in the same way as poverty causes marginalisation”.

Poverty directly affects Batwa’s ability to compete for elective positions of responsibility. This is due to low self-esteem and lack of confidence (due to their appearance and social status). Participation assumes security and self-confidence. For instance, in one of the communities in Rubanda, the community tells a “tale of extreme poverty and apathy”, a ramshackled school and scattered straw houses overlook Lake Bunyonyi” This is what I could gaze at while standing at Rwamahano, in Rubanda. In an interview with Nyirabagenzi (January, 2017) whom I met in Rwamahano and one of the women leaders in their community, in her 40s, miserably dressed in old clothes filled with holes and caked with mud, her home made from dried leaves, straw and sticks; she noted: “this is my home”. Inside the house lies a rock, pieces of old fabric placed on a pile of grass, which she uses as her bed. In lamentation, she mentioned “we are the first and original inhabitants of this place, all other communities found us here, but we are also the poorest,” she says “when it is rainy season, we just have to lie in the water”. As noted in chapters one and three, and confirmed by ACODE’s study, “the socio-economic status of the Batwa remains precarious even to date”, putting them at second level status compared to the rest of the community. It

92 See UN Committee On Economic, Social and Cultural Rights. Twenty-Fifth Session Geneva, 23 April-11 May 2001. Available at http://www2.ohchr.org/english/bodies/cescr/docs/statements/E.C.12.2001.10Poverty-2001.pdf

172 is therefore, difficult for the Batwa to actively participate in public affairs due to such weak economic status that causes them to feel inferior and lose self-esteem.

It has been argued that effective participation rights is limited if citizens’ rights to basic resources are denied. This is to confirm the indivisibility, interdependency, and interrelatedness of human rights. It is thus not possible for a hungry, homeless or illiterate person to effectively participate in public affairs, especially where such participations is competed, and to develop their citizenship rights. Eyben (2003: 13) confirms my assertion by noting that “poor peoples’ ability to realise their right to participate presupposes knowledge of this political right, and access to basic economic and social rights to meet their survival needs”.

Furthermore, poverty has rendered the Batwa vulnerable and marginalised. It has led to vices such as sex abuse and women being raped by men from dominant communities, under a ‘popular’ belief among the Batwa and their neighbours that having sex with a female Mutwa helps to cure back ailments. This has rendered female Batwa vulnerable to a host of sexually transmitted diseases. And all this is done well knowing that the Batwa will be silenced with some money and/or they are too poor to go to the police or local courts for any other legal attention. In addition, because of low self-esteem and fear of humiliation, Batwa fear to report such crimes that have gone long unaddressed. Poverty challenges limits Batwa’s ability to access and utilise medical services. Furthermore, Kabananukye and Wily (1996: 13) observe that “most Batwa are usually poorly dressed and so shy away from medical personnel and fear mixing with other patients who are better dressed. This makes Batwa helpless and increases their sense of rejection”.

Poverty has also left Batwa often depressed and concerned about the future of their children, food, and housing. In an interview with Sarah Kigongo (January, 2018), of Kisoro District Community Development Officers (DCDOs), she confirmed the assertion that the issues of Batwa originated from gazetting of their lands by government, which has caused food insecurity, resulted in limited incomes (sometimes none), lack of family resources and upkeep. In response to this study Rwangabira (January, 2017) and Kabwana (February, 2018) narrated, confirming Sarah’s assertion, the depression she goes through to ensure that her family gets food. In her words “I wish I could go to town and beg from people as 173 other Batwa, it is very hard to find food for my three children in this village”. In similar sentiments Uwimana (February, 2018) informed this study that the only option she is left with is to beg from well-wishers. Such sentiments indicate how Batwa are left out in both social and economic programmes that would ensure them having a sustainable livelihood. This directly affects their participation rights in public affairs.

However, it has been proven that given an opportunity, Batwa are willing and committed to work towards sustainable development. For instance, in an interview with Irene Muhawe (April, 2018) a Mutwa Woman of Nyabwishenya sub-county, Kisoro district, she expressed happiness and appreciation that she had received a cow. She noted "I'm also soon going to be drinking my own milk". The cow was donated by Batwa Development Programme (BDP) an NGO working for development of Batwa. Ms Muhawe is the first Mutwa in Uganda to own a cow. This was confirmed by BDP staff, Karegyesa (March 2017) who was interviewed in this study, noted that Irene is also the first Mutwa in her community to construct and live in a permanent house. As elaborated in chapter ten with sustained capacity and empowerment, Batwa can demystify the prejudice and stereotypes that they are lazy and cannot help themselves.

7.4.2 Exploitation by dominant groups

As stated above, the marginalisation of Batwa is expressed and manifested in different spheres of life but mainly in social, economic and political circles. Socially, for instance, although Batwa are traditional hunters, their current situation has forced them into other forms of labour for survival, where they are exploited for very low pay or sometimes not paid at all. In an interview with Paskali Mugisha (2017) – a non-Mutwa from Muko sub-County, Kabale district, he noted that he prefers hiring Batwa to work on his farms because, "Batwa work hard when they are well supervised and some Batwa are happy to be paid in Waragi – local gin, which they drink there and then". Others describe Batwa as working animals. According to Elly Maate (2017), the Kigezi regional police spokesperson and Kabale district labour officer Tumwesigye (Janaury, 2017), noted that reports of Batwa being trafficked to other areas for work and then not paid have increased. In another interview with Musime (Janaury, 2017), a non-Mutwa timber vendor, he noted that Batwa are cheap to maintain, because they do not ask for too much money or expensive items like workers from the other 174 ethnic groups. “You do not have to spend much on them, a bit of waragi (a local gin) will have them contented and ready to work the next day”.

In another interaction with a non-Mutwa, Musiimenta (Janaury, 2017), who employs two Batwa, noted that many farmers pay Batwa less than other workers because Batwa need close supervision. Musiimenta says that though she pays her Batwa workers only 15 000 shillings (around US$5) monthly, she reported that some other farmers never pay Batwa at all. Kakuru (Janaury, 2017) a Mutwa from Muko Kabale district, confirms that many Batwa realise that they are exploited, however, they do not have alteratives to give them money. Kukuru further noted that “non-Batwa labourers would be paid between 70 000 to 90 000 shillings a months for their labour, while a Mutwa will get 20 000 Uganda shillings or less for the same work and period”. This exploitation has made Batwa a vulnerable group that lives on the mercy of the dominant groups.

7.4.3 Landlessness

Throughout this study I argue that Batwa were evicted from their ancestral lands without any compensation. They have been left to meander in a non-forest environment, which requires them to live a settled lifestyle as opposed to their traditional nomadic liestyle. While this may sound good and developmental for the general public, for Batwa, however, the implications of this are diverse and have contributed to their current situation. It has necessitated land acquisition for settlement, and perhaps build "permanent" structures, establish sustained economic activity for their livelihood. For example, in a study conducted in 2014, found that more than 80 per cent of Batwa live on land provided by neighbours (dominant ethnic groups), in return they offer free labour to landlords (UN HRC, 2014: 1). The same study further reports that Batwa have remain transient squatters constantly looking for settlement. This can be attested by Batwa such as Ntezikye93 (January 2017), a Mutwa woman from Kisoro district, who in an interview noted that: “Non-Batwa who allow us on their lands, want us to cultivate or work for them without any pay. When we refuse to work for them, they chase us from the land, or keep shifting us from one corner of the land to another so that we clear it for them, and we are not

93 Ntezikye Medias has been directly affected by the fact that she has moved from one land lord to another and lived at their mercy for close to 15 years. She has experienced worst mistreatment including land lord forcing her child to clean the human wastes with her hands because she had defecated in the land. 175

allowed to put up any permanent structures even latrine, and if they find us defecating on the land, we are forced to remove it with hands”.

What is important to note is that about 20 per cent reported to have land, they do not have any proof of ownership (either land title or ownership agreement). This makes the squatters on government land or on land donated by charities or NGOs (October, 2017). It has to be noted that agricultural production is the backbone of peoples’ livelihood in this region, and yet Batwa continue to be characterised by landlessness and cannot produce for themselves. As a result, Batwa are poor and this poverty has pushed Batwa to begging and collecting from the garbage. These practises cause Batwa to feel badand lose self-esteem and thus it becomes the starting point for their marginalisation by the community.

Due to poverty, as discussed above, Batwa also are often portrayed as dirty and shabby due to lack of clean clothing (Akankwasa, 2001: 229). The dominant communities perceive them not only as dirty people, but that Batwa somehow chose to be so and deliberately do not want to clean themselves. In an interview with Kabale DCDO, Tumwesigye Everest, he noted that initially Batwa school-going children “resisted using pit latrines, preferring to defecate in the bush”. According to Tukahirwa (December 2016), a community project officer at MBIFCT, who was interveied for this study, noted that “many people in community do not want to associate with Batwa because they are dirty”. She further noted that “given their poverty, some Batwa are dirty not because they want to be but because they lack adequate clothing and soap”. In an interview with Ntezikye Kedress, a Mutwa woman in her 60s, she noted that dominant groups insult them because they do not eat proper food. “We were used to meat, mushrooms and fruits while we were in the forest, but now we cannot access the forest and we have no lands to grow food, so we eat garbage and beg from the landlords, who repudiate us, sometimes they pour food or beer into our open hands, they cannot give us their plates because they say we are dirty”. She, however, noted that such practises and attitudes are slowly going away and the Batwa are being tolerated. In another interview with Ntezikye she noted the Bakiga and Bafumbira do not respect or value them in the same way as they do to other ethnic groups because many Batwa lack proper houses, and live a less dignified life and they just see Batwa as animals or objects to be used. Kyomukama (January, 2017) confirmed this when he noted that we Batwa are

176 taken and lured by small items like alcohol and salt, because we are poor and we cannot resist anything.

7.4.4 Negative attitudes

Generally speaking, hunter and fruit gatherers are closely associated with being wild and uncivilised bush people by neighbours. In light of this, Batwa are held in contempt and also feared by neighbours. Accoording to Kabananukye & Kwagala, (2007: 14) “Batwa are seen as “sub-human”, “animal-like” people whose sexuality is unrestrained by cultural prohibitions, feed like insatiable animals on disgusting and taboo foods and, unable to feel shame or a sense of decency” In an interview with Moses Byaruhanga (January, 2017), a local council leader in Rubanda sub-County, he noted that “Batwa are only good for dirty or tedious”. In some places, for instance Rwanda, where reference to ethnic distinctions is a crime, Lewis (2000; 13) observes that “discrimination is expressed in more personally relevant idioms and justification increasingly is made with reference to negative stereotypes rather than ethnic identity”.

In an interview with Mr Mbonimpa Emmanuel, a Mufumbira from Kisoro, he informed the researcher that “Batwa are lazy and they want everything free and do not want to work”. Friedman (2002: 24) noted that the Batwa are perceived by their neighbours as “lazy who prefer begging”. On the contrary, the Batwa pupils who are called lazy by their teachers often disprove, once they get to schools they are hard working, interested in studies, and express great ambitions of becoming doctors, nurses, among others (Hamudi, 2011: 290; Booker, 2004; Kabananukye and Andrew, 2007). However, for one to brand the Batwa lazy people, a number of factors need to be put into context. First, Batwa are traditionally a hunter and fruit gatherer community, whose lifestyle - associated with the forest – has be affected by their eviction from the forests. It is therefore unrealistic to expect them to, for instance, engage in economic activities on the same footing with non-Batwa, considering that most of them lack adequate skills to do so. Second, the majority of Batwa do not have lands and cannot establish long-term investments as squatters (OBDU - ULA, 2004; Kabananukye and Wily, 1996; Zaninka, 2001; Kamugisha et al., 1997). Different ethnic communities in Uganda have different livelihood systems, what facilitates their activities is that they have their own land. Considering “Batwa as lazy because they are not tilling the land like their

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Bakiga neighbours is being unfairly stereotypical”, said Rev Fr. Ignatius Arinaitwe, a Roman Catholic priest who runs a humanitarian project for the Batwa community in Kabale district.

7.4.5 Stereotype and misconception about the Batwa

Batwa are always despised by the dominant groups and taken as vulnerable poor, wholive more or less a life of forest people, incapable of doing anything in their communities. In an interview with a group of dominant communities of Bakiga in Rwamucucu, Rwamahano, and Omurubindi in Kabale district, they describe Batwa as “untrustworthy, immoral, uncultured and undeserving people whose characters and behaviour is disgusting”. One of therespondents, Bagamuhunda Abel, noted that “Batwa are like irresponsible children incapable of making any sensible decisions, lacking wisdom and in need of constant guidance and charity”. It was frequently referred to by all interviewees from the dominant groups that many Batwa are not yet capable of taking leadership positions in the community, and this prohibits Batwa from participating in local public affairs. An example given was that participation at the local community, particularly at the village level, is conducted in people’s homes because there are no public places at this governance level. Because Batwa’s houses are in miserable states and cannot accommodate such village meetings or gatherings, they miss holding such meetings, and yet they are not very owelcome in neigbours’ homes. Moreover, the Bakiga communities neighbouring the Batwa are not comfortable entrusting communities’ authority and public leadership to someone without a decent house. Due to lack of land, some Batwa wander from place to place in search of livelihood. In a focused group interview with some leaders from Kisoro, it was noted that Batwa cannot be entrusted with public responsibility or community leadership because of lack of land (meaning they have nothing to attach them to that community) and “nomadic” way of living. As such, Batwa remain marginalised in all elective local community leadership positions.

The characterisation of Batwa as non-Ugandan has also contributed to their widespread marginalisation as well as discrimination against effective public participation. Dominant groups often refer to Batwa as foreigners that have just been forced by the government to settle among them. For instance, in an interview with a district official in Kanungu (who preferred anonymity) he noted that Batwa are not originally from Uganda, they came from

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Rwanda and the Democratic Republic of the Congo during 1958 civil unrests. After civil wars, some remained and good “Samaritans” gave them temporary settlement facilities, such as grass-thatched huts, some went back to the forest. Those who remained decided to stay as squatters and potters. Although the 1995 Uganda constitution recognises Batwa as a classified tribe within Uganda, local communities continue to uphold the belief of Batwa being foreigners and thus do not involve them or give them a chance to participate in public and community initiatives. For example, Batwa in Bundibugyo district are still referred to as “Congolese” while those in Kisoro are called “Rwandese” because of the significant Batwa population in both neighbouring countries.

Furthermore, respondents confirmed lack of institutional will from district to village level that can be utilised to manage challenges related to effective participation of Batwa in public affairs. Although the Local Government Act of 2000 gives power to local councils to make by-laws that would facilitate inclusion and delivery of services to everyone, little has been done to bring on board Batwa at the local council levels. A common reason for this neglect is that “Batwa themselves do not want to learn”. In an interview with Mr Kalemera Alfred, the Assistant Chief Administrative Officer Kisoro district, he noted that Batwa are clever, wise, and hard-working people, but claimed that they have resisted education. He said: “It is not easy to transform the lives of the Pygmies. They do not like working, they like to work for other people and are not interested to work in the fields, they go begging. They don’t want to eat with you, they want to sit separate from Ugandans. Even if you give them soap they will not use it.”

7.4.6 Derogatory labels demeaning the Batwa

Batwa are called derogatory names and labeled as forest people or pygmies – referring to a person of “short stature - a height of less than 1.50m or to a very small person or species of animals or plants with abnormal growth” (Kabananukye and Wily, 1996: 8). This creates hostilities between the two groups, and also causes Batwa to withdraw from public processes as they are referred to as animals or people with abnormal growth. Relations between the Batwa and Bakiga, Bahororo or Bafumbira (the dominant communities) often are hostile in form of physical fights or physical harm leading to the death. For instance, in an interview with Batwa and dominant communities of Rwamahano community in Kabale district, both confirmed that there had been some disputes that resulted in the killing of a

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Mutwa in 2010, and another one was allegedly murdered by the same group, though no one claimed responsibility. To their disappointment, Batwa noted that the killers of the first person were arrested in the morning and by afternoon were released without any charges. The continued use of derogatory names for Batwa and referring to them as forest people has alienated them from the public.

7.4.7 Discrimination in health care services

Batwa remain discriminated in accessing health care due. Due to discrimination, the vast majority do not go to health centres for treatment and they depend on local herbs and traditional medicine to cure their sickness. Kabananukye (1990: 10) points out three reasons why Batwa at this time still use the traditional herbal medicines. First, the Batwa are very knowledgeable about the ailments and their herbal treatments and believe in their traditional medicine being effective for most sicknesses. This was confirmed eight Batwa at the focus group discussion in Rubanda, Kabale, led by Mr Habyara’Imana (January, 2017), the former Chairperson of Batwa in Kabale, Kanungu, and Kisoro. Second, it was pointed out that Batwa continue to use herbal traditional medicine because they face difficulties in obtaining modern medical care. This is based on the fact that most Batwa are poor or do not have official health documents such as immunisation cards. Habyara’Imana noted “attending health centres requires paying for consultations and prescription costs, in the government facilities which are free services, there is no medicine or officials to attend to us, so we decide to use traditional healers who often accept goods or services”. This was also confirmed by Tumwesigye (December 2016), a medical assistant at Bwindi Community Health centre, who was interviewed for this study. Tumwesigye noted that because the Batwa are marginalised and vulnerable, they face difficulties in accessing medical facilities, and more so the fact that they do not have money, they are always turned away at the medical facilities and resort to their herbal treatments. None of the Batwa met by the researcher at Rwamahano community in Kabale district possessed clinic cards for their children. Batwa reported that without this clinic card, their children are not attended to by the medical personnel in the government health facilities. This leads to third reason – discrimination against Batwa.

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In an interview with Tushabe (January, 2017), the Executive Director of African International Christian Ministry (AICM), an NGO based in Kabale that has worked to uplift the conditions of Batwa, he noted that in some instances they had given Batwa some money for medical services to go to health centres, however, the Batwa are often subjected to humiliation by health workers, as well as other patients from the dominant communities. In a focused group interview, some Batwa reported that “we are not allowed to sit in waiting areas of health facilities, to sit on benches with other patients, we are insulted and teased, and ignored until all patients (non-Batwa) are treated and if it is late, we are turned away”. Studies conducted by Bwindi hospital94 foud out that the challenges of accessing health facilities has resulted in Batwa having limited access to primary health care either for themselves or for their children. High infant and maternal mortality and morbidity rates among Batwa communities remains a challlenge. Batwa children are not vaccinated against common killer diseases - tetanus, whooping cough, measles, and polio. Pregnant women do not access antenatal services and generally give birth at home in non-hygienic conditions. Malnutrition rates and health statistics are generally very poor among the Batwa communities because of lack of resources.

7.4.8 Diverse interventions with limited tangible deliverables to the Batwa

Following their eviction from their lands, Batwa have become the focus of increasing attention and intervention from different actors, including civil society organisations, missionary and church charities, individual actors, and government itself. These actors and stakeholders have attempted to articulate the need to resolve the Batwa’s plight, as well as contributing towards the relief and development of Batwa. For example, the Seventh Day Adventist Church through its relief department, Adventist Development and Relief Agency (ADRA), as well as others, helped in resettling some Batwa by buying lands for them. However, as noted above on the issue of landlessness, Batwa have not been availed the land titles, which continues to marginalise Batwa, (as they noted in the interview for this study). Batwa cannot engage in long-term projects, such as tree planting which is so particular and relevant to their contextual background.There is thus an increasing realisation

94 See the excerpts from Batwa at http://www.bwindihospital.com/index.php/resources/batwa-byumba (accessed February 2018). 181 among Batwa and non-Batwa, as well as the local authorities; that Batwa are vulnerable and marginalised and thus deserve specific attention and action programmes. This in itself contributes to their inferiority complex and being undermined by the dominant communities.

7.4.9 Illiteracy

Education is the key pillar for effective participation of any group or individual in any society, however, the Batwa have not yet embraced this factor, which makes their society remain under-represented in most public initiatives and community programmes. It is acknowledged that lack of education continues to marginalise Batwa. In an interview with the local non-Batwa, it was reported that there is resistance from the dominant groups against Batwa being given special slots for representation of their communities, based on their illiteracy (failure to speak, write, and/or read English). To stand for any elective position at local or national levels, or to achieve other positions of relative prominence in public life or public service, one is required to attain a certain level of education. Because over 80 per cent of Batwa lack formal education, they are automatically left out of participating in public affairs or in the decision-making structures. Most Batwa children do not attend primary or secondary schools. There are different reasons for this: among the most important ones, children need to contribute to generate income for their families (due to their extreme poverty).

In spite of the fact that education is free in Uganda, Batwa communities still cannot send children to school. They unable to buy school uniforms, books and other essential school materials. Furthermore, they cannot supply their children with proper food on a regular basis. Due to poverty, they prefer their children to remain in the homestead and work to earn money for the family, or make them beg for food. Moreover, schools are not often easy to reach for some communities, and finally, when the children go to school, they experience discrimination by the other children. As a result of these factors, just 0.5 per cent of Batwa children have secondary education.

In an interview with Zaninka (January, 2017), he noted that the Batwa girls are more vulnerable in terms of education and as such it becomes difficult for them to study because of “extra challenges and responsibilities” they face. She observed that Batwa “girls are not

182 encouraged to pursue education… because they need to help their mothers… in Batwa culture girls marry very young, at the age of 15”. Some of the reasons for early marriage that is ofthen supported by their families is to bring marriage gifts (dowry and bride wealth) to the family and to look after their brothers at home.

Generally, few Batwa can afford eductaion. Some religious institutions have used this situation to recruit Batwa in their arrangements on promises that their children will be given an education. According to Lewis (2000: 15) “Batwa children often receive some limited material or financial support and tend to suffer less abuse and harassment compared to the government public schools because of the egalitarian ethic of Christianity”. Batwa families depend on the efforts of every member to obtain food each day and in situations of extreme poverty among the Batwa, small children are sent public places to beg. While interviewing Mugisha Maxencia, a mutwa from Rushaga, Kisoro noted that “very poor families cannot afford to lose an important person to education, while they starve at home …. that person would be contributing to the household economy, and even then there is no money to meet scholastic mahterials and provide daily packed meals”. As I was walking in the villages, I often met school going age children playing by the homesteads, Upon asking them why they were not at school, the responded with a question; “How can we study when our stomachs are empty”? It sounded like a rehearsed answer, but that is the reality.

Despite such situations, some Batwa have managed to find resources to go to school. However, they frequently suffer discrimination, teasing and bullying. One Mutwa parent narrated that the packed meals of his children were being examined by other pupils to see the type of food they carried to school. Batwa children are often bullied and teased by their peers. The same community discrimination follows children to school. For example, Mugisha (January 2017) noted that “pupils from other ethnic groups refuse to share a school bench with Batwa children, and some instances special benches for Batwa pupils are provided”. Batwa children remain “minority” – in terms of number – in schools and often become discouraged by discrimination and bullying they suffer from their schoolmates, which contributes to their dropping out of school. One success story, however, is Alice Nyamihanda from Kisoro District, the 26-year-old is one of only three Batwa nationally to have been to university. Alice recalled that “It was very difficult for me at the beginning;

183 children didn’t want to sit with me, they didn’t talk to me, but I was strong and convinced them that I am as normal as they are”. Discriminatory conditions have created disparity in levels of education between Batwa and members of other ethnic groups.

In terms of participation participatio, few Batwa people have exercised their right to vote in the recent 2016 general elections. However, no Mutwa contested for any elective position. According to Kibukamusoke and Alemiga (2018: 5), several factors explain low participation of Batwa in political processes not only in 2016, but even before then. Kibukamusoke and Alemiga argue that the most outstanding of these factors limiting Batwa’s participation include “biased decisions made by local council courts in favour of other communities, which has instilled in the Batwa a negative perception of local councils as institutions that perpetuate their marginalisation”. Zaninka (February, 2018) agrees that “continued negative attitudes among other communities that Batwa are backward and primitive discourages them from getting involved in any political activities”. As noted earlier, human rights are indivisible and interrelated, thus lack of political participation has had direct effects on Batwa’s socio-economic rights since decision are made by elected political structures, where Batwa are not represented.

7.4.10 Denial of rights

Inspite of legal provisions enshrined in various human rights frameworks that require states to “respect, protect and fulfill”95 minority rights, there is widespread denial and disrespect of integrity of minorities’ issues. In Batwa’s context, for example, they are restricted from accessing their land, in which their livelihood depends, including getting food, medicines, and accessing their spiritual (religious) sitesprevented. Although bio-diversity conservation policy affects communities – around Bwindi and Mgahinga forstes - that once derived their sustannce from the forest, the effect of this policy has had unique effects on Batwa because of their vulnerability; moreover, hunting and related activities are central to socio-economic identity of Batwa and not for their neighbours.

95 See States assume obligations and duties under international law https://www.ohchr.org/en/professionalinterest/Pages/InternationalLaw.aspx

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In my interactions with Batwa communities, Batwa expressed fondly memories about their culture. For example in a focus group discussion, Nyinakayanje (January, 2017), who was born and raised in the Bwindi forest, narrates her only memories in this forest: “I was born in the forest of Bwindi and spent about ten years there. My father used to go hunting and my mother would take us to collect fire wood (udukwi) and food (ibyokurya)… near our home, we had a small hut for worshipping (uguterekerera), done by our father before and after hunting.” Another Mutwa, in the same focus group discussion Serutoke (January, 2017), told me that “when they chased us from the forest, we started living here in Rushaga… we would go back to the forest to look for food, firewood, weaving materials and medicine. But later, we were stopped from accessing the forest, which led to death of our people. Village conditions are hard and challenging, we live on begging food from Bakiga”

It has been argued that Batwa have been denied freedom of movement and association especially by their landlords, who claim their labour (Lewis, 2000: 14). Human rights abuses and violations against Batwa continue unabated. Some people find it fine to mistreat or exploit them, others do it with impunity, for example, taking property belonging to Batwa by force or deceit, knowing that Batwa are unable to initatiat a legal case in local council courts or even to sustain it and obtain justice when they have been abused.

7.4.11 Rights to the same standards of justice and treatment as others

Uganda ratified African Charter on Human and Peoples’ Rights, and thus obliged by the same charter to uphold protection of citzens’ rights. However, Batwa have not benefited from the protection guaranteed by the charter, in particular, equality before the law96 - to a public, fair and impartial hearing; to effective remedy; to be presumed innocent until proved guilty; and to protection against arbitrary interference or attacks97. Local council authorities connive with farmers in exploiting Batwa, or to cover up serious abuses against Batwa when reported to council courts. This was collaborated by affirmation from Zaninka (February, 2018) when she noted that “Batwa require support from non-Batwa to have their complaints heard by authorities and action take… for a Mutwa to take a neighbor to requires courage and resources, which Batwa lack in most cases”.

96See Banjul Charter, article 3 97 These are critical provisions enshrined in Uganda Constitution, articles 23, 24, and 28. 185

In Uganda, Rwanda, Burundi, and the DRC Batwa report being threatened by dominant groups, who often abuse and mistreat them because of their lack of official status. Because of constant movements and migration from one community to another, some Batwa have suffered a sense of lack of belonging. As a result, the communities around them find it easy to abuse and violate the Batwa’s rights and no one listens to their complaints because of not belonging to the community. This goes so far as instances such as death. In an interview with Kashumba (January, 2018), a Mutwa from Rwamahano Community in Kabale district, he noted that “when a Mutwa dies, it is like a dog has died, no one cares or does anything about it apart from fellow Batwa”. But when a Mukiga dies, they force us to go and do all the work including preparing the gravesite. Such treatment rendered to Batwa has affected their motivation to engage leaders and as such they remain isolated. I argue that if Batwa issues are to be addressed sustainably, all relevant stakeholders need to bring their efforts and initiatives together, including looking at the approaches to empower Batwa to overcome the issues of illiteracy and related challenges.

7.5 Systemic discrimination and participation in public affairs

The challenge of discrimination and exclusion of the Batwa from participating in public affairs is generally entrenched in the governance structures of Uganda. To understand the problems of effective participation, representation, and access to the public affairs of Batwa in Uganda, this section discusses the structural issues imposed by the social, economic, and political restrictions towards effective participation of Batwa in public affairs.

Due to their vulnerability, the Batwa are discriminated in terms of participating in public affairs. Their representation in governance structures is weak. Based on Uganda’s governance structure of decentralisation, the Batwa are expected to participate effectively in local councils, where local governance issues and decisions are designed and implemented. Information from the Batwa communities indicates that no Mutwa in Kabale, Kanungu and Kisoro is voted into public office and therefore not involved in decision-making structures of their respective community. This means that their issues most likely are not brought up for deliberation, and if they are, may not sufficiently be discussed. The absence of Batwa from local governance structures restricts their contributions to the on-going

186 deliberations that design policies and their implementation strtategies, of which Batwa should be part as these decisoions have far-reaching consequences on their lives.

In the study conducted by ACODE (2006, 7), it is evident that Batwa’s problems should be seen in a broader context of government’s failure implement recommendations made by the World Bank while assessing the creation of a wildlife project98. Morever the government as also failed to effectively support existing structures or establish special mechanisms that would address inequality that negatively impacts on Batwa rights protection. Ugandan Government needs to envoke their “tripartite obligations” assumed by ratifying relevant legal provisions that guarantee minority protection to deliberately put in place programmes to secure and promote Batwa’s participation rights in public affairs, as well as integrate such mechanisms into Uganda’s human rights framework, as provided for in the constitution (Tumushabe and Musiime, 2006: 36).

The problems of low participation and under-representation of Batwa in public affairs should not be taken in isolation. Though no legal barriers exist to accessing the public and decision- making structures, Batwa’s lack of effective participation can be contributed to other structural obstacles. It is worth looking at the main factors preventing effective public participation of Batwa thus paving the way for their valid under-representation.

7.6 Conclusion

Chapter seven has examined problems related with Batwa’s participation in public affairs. The chapter has discussed the different aspects of marginalisation and discrimination being experienced by Batwa, which has affected their participation in economic, social, and cultural life. It is the duty of the Ugandan government to recognise the indigenous ethnic minority groups in Uganda, and also has obligation to ensure that the rights of Batwa community, in particular right to effective participation in public affairs, is protected and promoted. From the foregoing discussion, it can be said that not only is discrimination of Batwa limited to public institutions, it also extends to spheres of their lives. Faced with all

98 See the World Bank assessment report of Uganda - Bwindi Impenetrable National Park and Mgahinga Gorilla National Park Conservation Project: Annexes 3-8.

187 these prejudices and stereotypes, Batwa are demotivated to participate in public affairs. The government seems not giving enough “attention” to the plight of the Batwa in Uganda, in particular, and to ethnic minorities in general. Having established that the right to participation is a core and significant claim by the Batwa and that it should be protected and promoted by the government, the next chapter focuses on the role the government of Uganda has played in enabling the Batwa to participate in public issues, but also to understand what is the government doing to adfdress the marginalisation of and discrimination against Batwa that is systemic and structural in Uganda.

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CHAPTER EIGHT

THE ROLE OF UGANDAN GOVERNMENT IN PROTECTING AND PROMOTING THE PARTICIPATION RIGHTS OF ETHNIC MINORITIES (BATWA) "The litmus test of development is the degree to which any strategies and interventions satisfy the legitimate demands of the people for freedom from fear and want, for a voice, inclusion and participation in their own societies, and for a life of dignity." Navi Pillay, Former UN High Commissioner for Human Rights, 2013

8. Introduction

According to international Alert (2013), based on their study conducted in Uganda, they observe that Uganda is “a nation divided along ethnic fault lines that have fuelled a number of internal conflicts”. These conflicts invariably led to human rights violations. For last 56 years, (since independence in 1962), Uganda has gone through different “intra-state” violence, including a 22-year civil war in the north. In Karamoja sub region, insecurity and conflict among the pastoral communities continues. These conflicts have left the country divided, although government authorities vehemently deny this. There is a public belief that a substantive societal sicussions on national divisions and seemingly “regional imbalance and marginalisation” should be given priority for a cohesive society. The notion of ethnicity and its substantive elements has not been given enough attention in Uganda’s national policy discussions even though it remains a contentious issue in the public domain. Indeed, the existence of discrimination based on ethnicity in Uganda has been strongly refuted (as discussed in chapter one) not only at home but also at international level, and “this has contributed to the lack of public visibility and limited discussion of the issue”.99 Moreover, there are “structural” and “proximate” causes of ethnic tensions that remained unresolved, thus obstructing national “reconciliation” and “integration” in Uganda.

This chapter explores the role the government of Uganda has played in managing such ethnic tensions, but specifically, its core obligations in observance and implementation of ethnic minority rights. The chapter looks at the national mechanisms as well as commitments (national, regional, and international) that the governments of Uganda have over time promised to uphold. In the context of Batwa issues, there are some non-state actors that have – through the government of Uganda – contributed to the eviction of Batwa.

99 Report on the African Commission’s Working Group on Indigenous populations/ communities, 189

Such an institution is the World Bank. This chapter will discuss the role played by the World Bank in Batwa land issues. The chapter concludes by observing that despite the plethora of mechanisms and commitments, both internal and external, on promoting Batwa issues, a lot still needs to be done including practical means (as will be discussed in chapter eight) to address the existing gaps in facilitating the effective participation of Batwa in public affairs.

8.1 Uganda’s obligations under human rights instruments and bodies

States are primary subjects of international law (without disregarding the principle of sovereignty) and therefore have sole responsibility for promotion and protection of citizens, including observance and implementation of ethnic minority rights. This is supported by scholars such as Prof Gilbert Khadiagala; and Prof Michelo Hansungule100. For instance, in an interview for this study with Prof Gilbert Khadiagala (March, 2018), he noted that government is the key interlocutor in participation, allowing different voices to be heard. Without activism on the part of government, some of these voices may not be listened to. He concluded by observing that it is therefore the responsibilities of governments to intervene where there is a sense of marginalisation and marginality. Prof Hasungule (March, 2018), who supports the same idea, in an interview with him for this study noted that government should develop policy and laws intended to ensure Batwa’s participation in public affairs. In light of this, I argue that measures to protect and support Batwa are linked to ratification of treaties and legislation; implementation of affirmative action provisions; establishment of new mechanisms specifically for minority protection; and provision of financial support to boost economic trajectory.

Uganda follows “dualist doctrine”, which, according to Brownlie (1990: 33) asserts that “international law is not applicable in domestic jurisdictions unless domestic law makes provision for this”. Ugandan parliament is mandated by constitution (article 123(2)) “to make laws that govern ratification and domestication of international treaties, conventions and agreements”. As a gesture in fulfilling its mandate, in 1998, the parliament of Uganda promulgated the Ratification of Treaties Act.101 Section four of the Act compels government that “all treaties ratified by cabinet be laid before parliament as soon as possible”. While the

100 Hansugule is professor of Human Rights Law at the University of Pretoria 101 Ch 204, Laws of Uganda 2000, http://www.ulii.org/ug/legislation/consolidated 190

Act is not explicit on the reason for submitting treaties to the parliament, one could perhaps assume is to ensure that treaties are effectively domesticated, before they become affective; and also for the parliament to enact enabling laws for proper implementation of domesticated treaty. This was confirmed by Ugandan constitutional court that “international covenants are not part of the national laws unless incorporated into domestic laws”102. While Uganda must be applauded for big leaps in signing and ratifying a number of regional and international treaties - particularly pertinent to ethnic minorities - not enough has been done to operationalise and fully implement them. Consequently, inadequate mechanisms to implement ratified treaties remains a challenge in enforcing the provisions of such treaties in Uganda.

International Covenant on Civil and Political Rights remains most authoritative international instrument protecting the rights of ethnic minorities, which Uganda ratified in 1995, though little has been done to date to domesticate it, in particular article 27 of the covenant. Article 36 of Ugandan constitution has remained vague on issues of ethnic minority and Batwa have not effectively benefited from this article. The article states: Minorities have a right to participate in decision-making processes and their views and interests shall be taken into account in the making of national plans and programmes. In implementing this article, categories of people that are identified as “historically vulnerable and disadvantaged or less privileged”, such as women, youth, elderly, and people with disbility, have been included in this article and given more attention, making it difficult for ethnic minorities to benefit from it.103 Another instrument that would particularly enable Batwa to effectively benefit from the government programmes is UN Declaration on the rights of Minority. Although the government is commended for supporting adoption of the final draft of UN declaration on the rights of the minority, it still has not yet established domestic mechanisms to support implementation its provisions. As noted above, minority protection is only referred to in article 36 of the constitution, with no clear delimitation and definition of who “minority” is to benefit from this article. As argued in chapter five, ambiguities that surround minority interpretation remain serious challenges in

102 See Paul Kawanga Ssemwogerere & Others Vs Attorney General: Constitutional Appeal No. 3 of 2003 103 See the Uganda Country APRM Self-Assessment Report, November 2007, p.167 191 implementation of this article, particularly in delineating “vulnerable and historically” marginalised communities.

Furthermore, Uganda must be reminded that it has delayed to ratify and domesticate two critical instruments that comprehensively articulate the rights of minorities. These are UN Declaration on the rights of minority and International Labour Organisation (ILO) Convention 169. These two instruments are crucial for for protection of Batwa in their current state of human violations, discrimination, and marginalisation. The failure by Ugandan government to ratify ILO convention makes a huge impression on the culture and spirit of Uganda espouses in managing minority issues. However, what remains relevant and significant is that there is actually an instrument that can be envoked to improve the condition of Batwa. A discussion of this nature can thus be used to inform and remind Uganda a need for ratifying and domesticate this instrument.

In light of this, it should be strongly highlighted and noted that Uganda has not established adequate framework to implement its international commitments and obligations on protection of ethnic minorities. This was acknowledged by leader of Parliamentary Committee on Equal Opportunities, Mr Wliberforce Yaguma (January, 2018) in an interview for this study. Mr Yaguma expressed concern about the “lack of a clear mechanism through which the issues of Batwa can be addressed”. He noted that while the committee is mandated to “monitor and promote measures designed by the constitution to enhance the equalisation of opportunities… especially marginalised groups, such as Batwa, … redressing imbalances which exist against them….; there is inadequate legal framework to invoke when addressing ethnic minority issues at national level”. He further observed that absence of such mechanisms hinders the “task of harmonising constitutional rights for minorities with international standards”, and makes “enforcement and monitoring of those rights more difficult on the side of the government as well as ethnic minorities themselves to demand accountability and their protection from the government”. In my opinion, I argue that while the promulgation of the 1995 constitution was a positive step in recognising minority protection, communities, such as Batwa that need protection from this constitution have not got it.

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At the African regional level the leading instrument from which the rights of Batwa can be deduced is the Banjur Charter of 1981, which guarantees individuals a number of rights to be enjoyed without distinction of any kind, article 2. In addition charter has specific provisions – equality and non discrimination, property ownership, fundamental freeds, economic, social and cultural development among others – that Uganda can utilese to address the problems faced by Batwa in a very specific and unique context. The good news is that all these are provided for in Uganda’s legal frameworks, and what is needed is the will and favourable mechanisms to implement them.

While it is evident that Ugandan government has taken efforts to effect some constitution provisions, a lot remains to be done. For example, the constitution states that “all persons are equal before and under the law in all spheres of political, economic, social and cultural life, and that no one may be discriminated against on the ground of sex, race, colour, ethnic origin, tribe, birth, creed or religion, social or economic standing, political opinion or disability” (article 21). The questions that have remained unanswered to date are: why are these provisions not implemented in favour of Batwa? How serious and committed is the government in addressing such issues and putting in place mechanisms to monitor the progressive realisation of the said rights? As discussed in chapter five, some mechanisms that have been established – such as the Equal Opportunities Commission – to cater for such issues are either not adequately funded or facilitated to do so; as such these issues have remained unattended by government and its institutions.

8.2 National mechanisms and frameworks to address the issue of ethnic minority

The constitution puts out some basis for the protection of ethnic minorities in Uganda. In the national objectives secions 3 and 4, reference is made – in terms of objectives of the constitution – to promote a culture of cooperation and tolerance of diversity in the country and fair representation of marginalised communities in public affairs. The constitution states that:

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“every effort shall be made to integrate all the peoples of Uganda while at the same time recognizing the existence of their ethnic, religious, ideological, political and cultural diversity.”104 However, with diversity issues not well managed in Uganda, as discussed previous chapters, “ugly face” of ethnic tensions and discussions keept coming up in the realm of governance with absence of no effective systematic and structural mechanisms to manage them.

Second, Ugandan constitution has a comprehensive section on bill of rights (chapter four of the constitution) covering all three generations of human rights. For instance, article 26 provides the essence that constitution does not only protect individual rights, but also group rights. This implies that the rights of a minority group such as Batwa are guaranteed by the constitution, and as such they are able to claim their rights as a group collectively. In a situation such as this of the Batwa, where they have been forced out of their ancestral land as a group, they are thus protected by the constitution to collectively demand their rights to property. While the constitutional review commission of 1993 should be commended for the inclusion of this provision in the constitution, the subsequent mechanisms that would enable the implementation of this provision are lacking and/or inadequate.

Another constitution provision on which the government is to be commended is article 32 on affirmative action, which is to be taken in “favour of marginalised groups based” on any categorisation for purposes of managing such inequality or historical injustices. Affirmative action for a group such as the Batwa is also further emphasised by the constitution in article 180 (2) (C) where it mandates the local government structures to put in place favourable laws to cater for the issues within their areas of jurisdiction. However, the Uganda Local Government Act, Chapter 243, 2000 does not implicitly address the issues of ethnic minorities, notwithstanding section 10 of the Act that focuses on representation of the marginalised groups. For instance “there is no effective representation within decision- making structures, both at the central and local government levels by ethnic minorities in the districts of Kabale, Kanungu, and Kisoro” as Neza (October, 2016) confirmed.

104 National Objectives and Directive Principles of State Policy, Objective III on National Unity and stability subsection ii. 194

Ethnic minority communities such as “Batwa are generally represented by people from other ethnic groups who even do not consult them” according to Mr. Kwarigaba George (February, 2018) who works with Batwa. Their absence in public affairs affects the extent to which Batwa’s issues are discussed, especially in circumstances where there is gross marginalisation and discrimination against Batwa as discussed in chapter five. However, the Local Government Act has sections, and is thus mandates local governance structures, to enact any “by-laws consistent with constitution or any other law made by national parliament which the council deems will facilitate to fulfil its mandate or serve the people efficiently” article 39. It thus remains for those districts and local government structures, in whose jurisdiction there are Batwa communities, to come up with policies and by-laws to ensure that Batwa are represented and involved in the public issues of their community. Also affirmative action provisions must practically be rolled out to empower Batwa to engage with the local government structures to demand considerations.

Having looked at the legal regimes and policy framework, it is relevant to have a clear understanding of institutions and structures that have been put in place to, among others, look into Batwa issues. The government of Uganda ought to be commended for establishing specific institutions for human rights promotion – such as the Uganda Human Rights Commission and the Equal Opportunities Commission. Both commissions have wide mandates to promote and protect issues related to marginalisation of citizens. Attempts have been made by both commissions to address ethnic minority protection despite operational challenges due to inadequate capacity in fulfilling their mandates in relation to ethnic minority challenges.

8.2.1 Uganda Human Rights Commission

Uganda Human Rights Commission is established by 1995 constitution with the mandate, among others, “to investigate violations of human rights and to monitor government’s compliance with its human rights obligations, and make recommendations to parliament on national human rights situation” (article 51). The commission is required to submit annual reports the state of human rights in the country. However, the major challenges to the commission’s good work is hesitancy by government to its recommendations. Moreover, the “parliament has never prioritised its reports on the order papers to be discussed in the

195 house” as told by one of the commissioner who preferred anonymity. It has been noted by the commission that the government is stubborn towards implementing its decision arising from the complaints about human rights violation (UHRC, 2016: 26).

For instance in 2011 and 2015, in line with its mandate under article 52(1) (h) of the 1995 constitution, UHRC undertook monitoring visits to a cross-section of ethnic minority groups in Uganda, including Batwa located in Kisoro, Kabale, and Bundibugyo. The visits were to establish the state of human rights of ethnic minority communities, including developments and concerns, and to track the government’s progress in realising them. Their findings and recommendations were presented to parliament in the 11th and 18th reports of the commission respectively and nothing has so far been done about addressing critical issues, including inadequate participation in public affairs by minority communities, and violations meted to minority groups such as Batwa.

In an interview with Dr Katebalirwe Amooti Wa Irumba, a commissioner at the UHRC, he noted that the Batwa situation is very bad and needs serious attention from all the stakeholders, including government as the main guarantor of their rights. In terms of the commission’s work, Dr Amooti noted that the commission has worked on Batwa issues, including submitting critical recommendations to parliament for action. For him, parliament has not extensively deliberated on this issue and thus government has not deeply and extensively engaged with Batwa problems. He observed that parliament needs to implement the commission’s recommendations on Batwa, as well as ethnic minority issues in Uganda.

8.2.2 The Equal Opportunities Commission

The Equal Opportunities Commission is a statutory body, by an Act of parliament - Equal Opportunities Act 2007 - pursuant to article 32 of Ugandan constitution and principle VI of National Objectives and Directive Principles of State Policy (EOC, 2016: 2). The objecties of the commission, include among others, to provide oversight to constitutional provisions about elimination of discrimination and inequalities against any individual or group of persons; and to take affirmative action in favour of marginalised groups (EOC, 2016: 2). Furthermore, the commission has a mandate of monitoring, evaluating and ensuring that mechanisms put in place to manage and address inequality and injunstices in Uganda are

196 effectively implemented. The commission, in the same way as Uganda Human Rights Commission, has powers of court in the discharge of its functions.

Despite its formation, the commission is not facilitated adequately and this delayed implementation of its objectives for example, “inadequate funding has constrained the operations and interventions of the Commission” (EOC, 2016: 10). According to Mr Nduhura Dennis, Vice Chairperson of the commission, he observes that the commission is still new and needs to be rolled out nationally: “there are no formal structures at district or regional levels, as such the public is not aware of the commission’s mandate”. Due to limited resources, including funds and personnel, the commission has prioritised setting up its activities; although it conducted community studies, including a survey on vulnerable groups in northern Uganda105. On the minority protection, the commission has taken on one complaint brought to its court section involving a member of Batwa community (from Bundibugyo district) who was voted at district council but was denied a position because he is a Mutwa. The capacity of the commission remains inadequate to manage huge challenges faced by ethnic minority community in Uganda.

In 2013 the commission undertook a study which established that “issues of ethnic minorities in Uganda are not regarded to be of utmost importance at a policy level” (EOC, 2013: 25). The establishment of institutions to deal with minority protection is a good guesture on the side of the government, but when institutions lack adequate facilitation to implement their respective mandates, then the whole purpose of their estebalishment is not achieved, and casts the government into bad practice in terms of its obligations to respect, protect, and fulfil. Further still minority issues are not sufficiently mainstreamed in development and planning processes of these instutitons. In light of responses from community leaders interviewed in Kabale, Kanungu, and Kisoro,106 “Government institutions do not see the need for a different set of policy frameworks or laws for this group, and in fact, there have been attempts to assimilate them into the dominant society, an approach which has impacted negatively on their values and cultural diversity” (Neza, 2016; Zaninka, 2017).

105 The study reports can be accessed at http://www.eoc.go.ug/publications-downloads 106 Neza Henry, Zaninka Penina, Kwizera Aloysius, Local councillor 3, Bufundi Sub-County, Rubanda, Kabale district, July 2016. 197

Other mechanisms that the government has taken towards promotion and protection of ethnic minority issues (although sometimes not consistent to its obligations and standards) include: National Social Protection Policy Framework, 2013 and National Land Policy, 2013.

8.2.3 Development of National Social Protection Policy Framework 2013

The policy provides a framework for legislation, coordination and programming for social protection for the most vulnerable and elderly. Prior to 2015, the government only had 15 districts on the programme. However, seven districts hosting some of the ethnic minority communities are not on the list of beneficiaries and therefore, the ethnic minorities residing in those districts will not benefit, notwithstanding the fact that they are poorest of the poor in the country, as discussed in chapters one and five. Equally important is the fact that the criteria for selecting the grant beneficiaries was simply based on one’s age, irrespective of economic and social status. The older persons are always vulnerable due to the aging factor, but the fact that ethnic minorities are vulnerable by virtue of their social status, subjects the older persons among the minorities to multiple vulnerabilities. As such the implementation of affirmative action should have benefited individuals from ethnic minority groups who suffer multiple victimhood.

8.2.4 Development of the National Land Policy, 2013

The government developed a National Land Policy in 2013, which, among others, recognises land rights of ethnic minorities. The policy states “government shall, in its use and management of natural resources, recognize and protect the right to ancestral lands of ethnic minority groups… establishment of national parks and conservation areas managed by government, and large-scale commercial mining, logging, plantations, oil exploration and dam construction, often take place at the expense of ethnic minorities”107. In relation to National Land Act, section 24 details right to land of communities to “graze, hunt, gather honey, and other forest resources for food and medicinal purposes, and any other purposes as may be traditional among the community to be protected”. The question that remains unanswered is why it is taking long for the government ad related institutions to envoke such provisions to respond to land issues of Batwa. Perhaps, the common saying

107 See the Uganda National Land Policy, 2013, sections 56-58 198 that “good policies are made in Uganda and implemented in the neighbourghood carries some merit”. Moreover, in 2013 policy statement on land policy, government “committed to pay prompt, adequate and fair compensation to ethnic minority groups displaced from their ancestral land by government action”. However, implementation of this has remained on paper to date. Many ethnic minorities including Batwa, Benet, Basongora, who lost their ancestral lands to make way for national development programmes, such as national parks and wildlife conservation areas (in the case of the three groups), have never been compensated.

As the saying goes that “too many cooks spoil the broth”, in a similar way because of many policies trying to deal with a similar problem, end up contradicting each other, and the results are suffered by the communities. For example, National Environment Statute of 1995 recognises customary ownership of land and its forest usage. However, at the same time, the statute and National Land Act, permit government to evict and stop “human activities in any forest area by declaring it a protected forest”, which nullifies the customary land rights of minority communities, such as Batwa. The absence of a specific consolidated law on ethnic minority in Uganda, contributes to their marginalisation and exclusion, because no attention is given, especially in prioritisation and distribution of national resources. As urgued in chapters four and five, mixing particular situations and rights relevant to ethnic minorities with those of “everybody” increases vulnerability and marginalisation they are facing, thus exacerbating their situations.

Despite the progressive nature of the Land Act and Land Policy with the clauses on compensation, the current government of Uganda has been faulted for being responsible for eviction of Batwa from their lands, without any recourse to compensation and thus should be responsible for resettlement and compensation. In 1991 Bwindi forest was turned into National Park by Parliament.108 The park was later expanded from 320.8-330.8 sq.km covering the areas originally occupied by the Batwa. In an interview with Francis Sembagari, an elder from the Batwa community of Kisoro district, who was born in Mgahinga, he noted, without holding tears, that; "It was so violent, my uncle was killed by government soldiers who were evicting us. Everybody was running, and falling, and taking whatever we could

108 Statutory Instrument Supplement No. 3 of 1992. 199 carry. It was the government using guns against us, who were unarmed". The whole discussion is thus on the role government played in this eviction. it is clear that government’s action of evicting Batwa from their lands (violently) without following the established legal procedure, in my opinion, was “unconstitutional and a violation of the Batwa’s rights of which government is the custodian”. And even after putting in place such progressive instruments, the government is reluctant to review its earlier inappropriate actions meted to Batwa communities in Kabale, Kanungu, and Kisoro.

8.3 Uganda Government-World Bank actions and Batwa’s evictions

The Batwa community was evicted by the government by an Act of Law (Uganda Wildlife Act Cap. 200) on recommendations of World Bank on Ugandan government policy on biodiversity conservation, “to stop any human activity from Echuya, Mgahinga and Bwindi forests and turn them into national parks”109 and heritage sites for preservation of endangered mountain gorillas.110 As discussed in chapter five, the financial support for this project came from the World Bank’s Global Environment Facility (GEF), through an established community trust111 to oversee the whole process. The government did not compensate Batwa in the same way for their lost ancestral land. This has perpetually and progressively contributed to the current plights of Batwa including their absence in participating in public affairs. Batwa have been engaging various government structures to ensure that such issues are addressed; unfortunately government is yet to pronounce itself explicitly on fulfilling its responsibility to protect the ethnic minorities in Uganda. For instance, Batwa petitioned the government: We invoke the provisions of article 32 of the Constitution and implore the government to establish a comprehensive affirmative action programme for the Batwa community covering areas such as participation in public affairs, access to forest resources, revenue sharing arrangements, education, health services, housing, water and sanitation and to bring the Batwa issues into the work of Equal Opportunity commission (OUBDU, 2014).

109 Statutory Instrument Supplement No. 3 of 1992. 110 World Bank, Uganda: Bwindi Impenetrable National Park and Mgahinga Gorilla National Park Conservation, Global Environment Facility, Project Document 12430 – UG. Global Environment Coordination Division, World Bank, Washington DC, (January 1995), Annex 6 111 This is today known as the Bwindi Mgahinga Conservation Trust (BMCT) 200

As earlier discussed (and as a thread through this study), Batwa lived in this forest time immemorial. However, the measures and processes for their evictions to establish “environmentally protected” areas, violated their rights. The protection of Bwindi forest began during colonial rule (in 1930s), but this did not stop Batwa from using and accessing the forest for their livelihood. Many Batwa continued to live in the forest and to use its resources until 1990s; when the current government of Uganda - upon the advice of the World Bank - evicted them, without any alternative land and source of livelihood. It has also been noted that apart from conservation projects, World Bank wanted to esbalish and support research and small projects for local people, including projects seeking to address the needs of the Batwa who, according to the evaluation of the World Bank, were recognised as adversely been adversely affected by the creation of the National Parks112.

At the time the trust was established, World Bank requested Ugandan government to provide a comprehensive assessment of local context, with specifi focus on participation and benefit of Batwa, which had been raised as a contextual risk to the project (World Bank, 1995). However, it took four years for World Bank approve funding the assessment study that was conducted to assess the needs of Batwa and the effect of the project on their needs. The study found out that Batwa’s livelihood depended entirely on this part of the forest that was added on later; and therefore recommended that Batwa should be given access to forest resources for their foods, access to sacred sites, in addition to building their capacity (through provision of educational facilities, health and economic assistance) (Kabananukye and Will, 1996).

However, these recommendations have not been adequately implemented. Instead what has been done include random compensation invoving land distribution to Batwa, without any criteria; moreover without land titles or any legal document to ascertain ownership; as well as grants of “brown envelopes” to a few selected Batwa groups. Otherwise, key recommendations such as sharing on park benefits and access to park resources have not materialised on any meaningful basis. During 5th World Park Congress in 2003, a statement by BMCT representative confirmed that “access to forest and its products was denied to

112 See World Bank, Global Environment Facility; Impact Evaluation of Protected Area Projects in East Africa. Impact Evaluation Information Document No. 12, September 2008 201 the communities … This action by government without consultation with locals created a lot of local communities’ hostility against the protected areas” (Dutki, 2003: 2).

In an interview with Zaninka (January 2017), she noted that following the pressure from activists working on behalf of Batwa communities in the region, Ugandan government directed Uganda Wildlife Authority to consider Batwa in sharing proceeds from the parks and also to involve them in the running of BMCT at their communities. According to Penina, this was implemented with a memorandum of understanding signed between the Batwa organisation – UOBDU – and the UWA in 2011113. In another interview (focused group discussion) with UWA staff at Bwindi, they noted that according to this memorandum, Batwa are supposed to be employed as guides to tourists and UOBDU tasked with overall management of the Batwa’s involvement. The intention of the memorandum was to improve the livelihoods of the Batwa living around Mgahinga and reconnecting them to the forest that their social and cultural lives depend on. However, the implementation of this memorandum has failed since UWA removed UOBDU from the management role of Batwa involved in this project. As such Batwa are not benefiting from this project.

As discussed in chapters one and five, all the Batwa problems stem from the evictions from their land, whose revenues and employment opportunities (as promised and recommended prior to the establishment of the park) have not benefited the Batwa. What is shocking is that community benefit sharing scheme revenues is to be in public interest, with local councils (where Batwa are discriminated and unable to participate) having responsibility to plan for revenues. However, these revenues have not been redistributed to address the negative impacts suffered by the Batwa. Land restitution, resettlement, and positive measures to address violations of Batwa’s human rights should be a government priority, but these issues are simply not on the agenda. In addition to this, the UWA withdrew from the 2011 memorandum of understanding that it had signed with UOBDU (on behalf of Batwa) regarding the employment and revenue sharing of the tourism project. The agreement, which was seen as positive action put in place by the Ugandan government for the development of Batwa, has been terminated by UWA, after Batwa petitioned

113 See the signing ceremony athttp://ugandawildlife.org/gorilla-tracking/item/3-batwa-trail-tourism-product-of-the-decade- launched 202

Constitutional court seeking redress for marginalisation and continuous human rights violations resulting from dispossession of their ancestral lands by the government.

At the time of cancelling the memorandum, the initiative had collected good money that would benefit the Batwa. What is not clear then is where the money went. According to Mr Moses Turinawe (January, 2017), Warden in Mgahinga national park, noted that “from the time agreement was signed in 2011 to 2014 when UWA withdrew, about 30 million Uganda Shillings (about US$9 000) was collected on the Batwa’s account”. In an interview with Batwa leadership, Mr Yeremiah Dusabe, Chairperson of UOBDU, noted that they have never been consulted, and do not know when or how that money will be returned to them.

8.4 Enactment of the Institution of Traditional or Cultural Leaders Act, 2011

Uganda government enacted Institution of Traditional or Cultural Leaders Act, 2011, which was to facilitate implementation of affirmative action obligation for ethnic minority groups so that they could enjoy their cultural rights and promote their culture without any hindrances. Sections 3 and 4 of the Act provide criteria for instituting traditional or cultural leaders based on culture, customs and traditions of the people concerned, among others. Article 9 also provides the roles of traditional or cultural leaders, including “promoting their cultural values, norms and practises”, which enhance the dignity and well-being of people recognised as such. These criteria and roles are consistent with the wording of the UN declaration on people belonging to ethnic minorities and the ILO 169 convention discussed in chapter four.

Issues of ethnic minority are not well appreciated at national level and minority communities have largely been marginalised in poverty reduction support strategies and national development plan (Samia, 2010: 23). At the policy level, national development plan has a chapter on mainstreaming human rights in social development sectors. It acknowledges Uganda Human Rights Commission as the principal institution for promoting human rights principles of equality and equity. The national development plan, however, lacks specific reference to issues of ethnic minorities. Perhaps this explains why little (if any) resources areprioritised for key relevant institutions to work on ethnic minority issues in the medium term. Uganda national plan was revised in 2015, and as usual, the issues of ethnic minority remained largely ignored and were not given attention. In the whole NDP document of 136

203 pages, there was only one reference to ethnic minority groups and even then the point was lumped together with issues of other marginalised groups, namely, women.

Furthermore poverty reduction strategy papers largely ignored the plight of minorities who usually are among most of the marginalised and poor communities in Uganda; who often live in rural areas; are illiterate and ignorant about government procedures; and do not participate in public affairs (Samia, 2010: 3). Batwa community is an example of such communities that have failed to benefit from national programmes that emanated from poverty reduction strtategic papers, such as “Entandikwa”, “wealth for all”, which have tended to benefit the “haves” than needy and vulnerable communities.

Despite a plethora of initiatives and mechanisms implemented by the Ugandan government, not much is effectively benefiting Batwa, due to inadaquacies legal frameworks, and particularly lack of a coherent policy to implement international human rights provisions for the protection of ethnic minorities (Kibukamusoke and Alemiga, 2018: 7). There is also a school of thought that the political will to implement the national mechanism is lacking. As such, some of the progressive laws on ethnic minority issues, including the Equal Opportunities Act 2007 have remained vague and generic to benefit other categories of groups. For example, this Act lumps together ethnic minorities with other marginalised groups – disabled, women, and children – without explicit mention of ethnic minority protection, while other categories have benefited from the implementation of this Act. Also, key provisions on discrimination are scattered in various legal frameworks, which makes their enforcement and monitoring more difficult, especially on the side of ethnic minorities, such as the Batwa.

The Government of Uganda seems not to be prioritising ethnic minority issues, and as such the burden of addressing the issues of ethnic minority in Uganda, and particularly Batwa, has mainly been left to civil society organisations, through research and advocacy, provision of basic services; including land, health, shelter, education, and food. Majority of civil society organisations working with Batwa, however, have institutional weaknesses and limited capacity to address all concerns of Batwa. In addition, “their interventions follow a piecemeal and uncoordinated approach, largely dealing with small groups of a big community, say a district in a region, and focusing on a preferred issue, such as food security; instead of a of

204 having holistic approach to address issues” as observed by Tumwesigye (January, 2017). In an interview with Simon Lokodo (2018), a member of parliament representing Ik, an ethnic minority community in north-east Uganda, who is a government Minister of State for Ethics and Integrity, he noted that ethnic minorities have not yet benefited from government programmes of economic empowerment, some groups are still marginalised but the government is slowly recognising such groups. He further expressed concern on the work of CSOs, that some of them are using ethnic minorities to get money and do not deliver. He recommended that CSOs need to work with government to ensure that development of ethnic minorities in Uganda is sustainable.

Uganda recognises that social groups, including Batwa, remain “marginalized or excluded from the benefits of development” and that to manage these challenges “an enabling environment for social protection and social transformation of such communities, while envisioning better standard of living, equity and social cohesion is needed” (MGLSD, 2003: 5). It can be emphasised that Uganda has some of progressive policies related to land and poverty alleviation in the region, implementation is still ineffective and Batwa have been left behind in Uganda’s development processes.

8.5 Uganda’s commitment to implement recommendations by human rights bodies

Since its 40th session held in 2006, the ACHPR has been requesting that the Republic of Uganda provides specific information on human rights situation of ethnic minorities in Uganda. For instance, concluding observations of 2006 recommended that as a state party to Banjul Charter Uganda should: “Ensure that the rights of ethnic indigenous minority groups and other vulnerable groups are respected” (ACHPR, 2006: 27). Also in 2006, the Working Group on Indigenous Populations/Communities of the African Commission led a country visit to Uganda and a series of recommendations was issued following this visit but there appears to be no implementation or intention on the government’s part to follow up on these recommendations.

In 2009, the commission observed “the apparent lack of political will to take measures to realize the rights of vulnerable populations especially the Batwa people as guaranteed

205 under the Charter”.114 The commission also expressed concerns regarding the “exploitation, the discrimination and the marginalization of Batwa of Uganda, who are deprived of their ancestral lands and live without any land titles”115 (ACHPR, 2009; 21). Based on these observations, the commission recommended Uganda to adopt and put in place mechanisms for effective protection of vulnerable populations, such as establishing favourable laws that protect land rights and natural resources of ethnic minorities, particularly for Batwa, as enshrined in Banjur Charter, (ACHPR, 2009; 39).

In 2011, after receiving the Fourth Periodic report of Uganda and noticing its continued silence on rights of ethnic indigenous minority communities in Uganda, UN Human Rights Commission reiterated lack of “political will” to protect Batwa, and also stressed the lack of implementation of its preceding concluding observations and recommended again that Uganda should adopt effective mechanisms to protect ethnic minority communities within its borders (ACHPR, 2011: 121).

Equally so are the other international human rights bodies, such as UN Committee on elimination of racial discrimination (CERD) and ACHPR, that have expressed concerns over the silence and seeming lack of interest and/or political will to address ethnic indigenous minorities issues, and demanded that Uganda provides information and implements the rights of such communities. For instance, the CERD in 2003 observed that it was: “concerned by reports of the difficult human rights situation of the Batwa people, particularly in relation to the enjoyment of their rights over lands traditionally occupied by them, and requests information on their situation in accordance with general recommendation XXIII.”116 Such recommendation from the regional body, to which Ugandan government committed to implement and domesticate human rights provisions, demonstrates lack of seriousness to fulfil its obligations. For example, failure to establish standards and codes of practice relevant to minority rights and to fully integrate Uganda’s minority communities into

114 African Commission on Human and Peoples’ Rights, Concluding Observations and Recommendations on the Third Periodic Report of the Republic of Uganda, Adopted at the 45th Ordinary Session of the African Commission on Human and Peoples’ Rights held in May 2009, Banjul, The Gambia, paragraph 21. 115 Ibid, at paragraph 39 116 UN Committee on the Elimination of all Forms of Racial Discrimination, 62nd session, 3-21 March 2003, CERD/C/62/CO/11 2 June 2003, paragraph 14 206 national policies, planning and programme implementation signify lack of political commitment to work on ethnic minority issues .

It should be noted that Uganda, ratified International Convention on the Elimination of All Forms of Racial Discrimination in 1983, has only reported to its committee twice – 1994 and 2003 – despite the obligation bestowed on any state party to regularly report to this committee every two years. This is a very instrumental human rights document that highlights the peculiar rights of ethnic minorities, based on principles of equality and non- discrimination, as discussed in chapter five. Despite impressive ratifications of all core human rights instruments by the government of Uganda117, there are still several problems and gaps in terms of compliance to fulfil its obligations118.

There is a consensus among both practitioners and policymakers that human rights systems at regional (Africa) and international (UN) levels have not done more than lay a foundation for national systems to ensure protection of ethnic minorities in their respective countries. In an interview with Ambassador James Jonah (2017), former UN Under-Secretary General for Political Affairs, he noted that the UN has laid a foundation, including establishing a Minority Forum, Working Groups, and Rapporteur, and related Special Procedures, which can be used to ensure protection of human rights of ethnic minorities. Ambassador Jonah noted that what is apparent now are the governments using these mechanisms to ensure that ethnic minorities are targeted specifically and developed, so that their issues are voiced at these mechanisms and favourable decisions are made. For him, if governments fail to do this, the same mechanisms provide opportunities for ethnic minorities to petition the UN for redress, however, ethnic minorities are sometimes not capable of reaching these mechanisms. Ambassador Jonah further noted that this can be done at regional level (AU) by establishing specific mandates dedicated to issues of ethnic minorities. On the same topic, in an interview with Ambassador Francis Deng (2017), former Representative of UN Secretary-General on Internally Displaced Persons and former South Sudan ambassador to the UN, he informed this study that the issue of ethnic minority in Africa needs to be

117 See The Ratification of 18 International Human Rights Treaties, available from http://indicators.ohchr.org/ 118 As per December 2016, Uganda had six reports that were overdue, including on the ICCPR, CAT, CRC, migrant workers, CRC Optional Protocol (a) CRC Optional Protocol (sexual exploitation). 207 managed at the national level using the mechanisms in place both at regional and international levels.

8.6 Conclusion

Ethnic minorities in Uganda remain unrecognised. The whole legal framework requires comprehensive amendments to ensure that ethnic minority issues are explicitly and effectively integrated. The current legal provisions are either vague or shallow (not robust enough) to articulate minority protection (participation rights); equality and non- discrimination; among others. It has been recommended by various bodies, that Uganda should establish legislative, administrative, and practical remedies to decisively address the plight of Batwa. Serious gaps discussed in this chapter that requires urgent attention include lack of specific legislation on ethnic minority issues, weak institutional capacity, inadequate resources within institutions supposed to work on minority issues, and systematic and entrenched marginalisation of Batwa, and gross violations of their human rights.

Vulnerable communities, particularly ethnic minorities, are known for having special attachment to their ancestral land, notwithstanding such traditional practice, government and its agencies have on different occasions, especially in establishment of protected areas, evicted these groups thus infringing on their rights. Moreover, as in the case of Batwa, whose land rights are alienated, are never involved in decision-making nor adequately compensated prior to establishment of these protected areas. For example, Batwa in Kabale, Kisoro, and Kanungu have been affected by decisions that were taken without their inputs. Gazetting Bwindi forests into a national park in violation of the constitutional provisions and related human rights principles, is a typical example of injustices to ethnic communities, including Benet around Mt Elgon, with impunity. If the government is serious in promoting and securing the rights of Batwa, and to implement the constitutional and policy provisions that protect the rights of ethnic minorities, specif and appropriate models strategic to Batwa have to be designed. In the next chapter, the thesis reflects on the models suggested by the author that suits the context of Batwa in Uganda. These models also suits the systems and structures of governance and leadership in Uganda. The commitment is on the government to fulfil its obligations to protect, fulfil and respect by implementing these models.

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CHAPTER NINE

MODELS TO FACILITATE THE PARTICIPATION OF BATWA IN PUBLIC AFFAIRS

9. Introduction

Effective participation in public affairs entails providing an opportunity for every individual and particularly the silenced voices to get involved in their governance processes. This enhances democratic principles and ideals of any society by allowing citizenry involvenment in public affairs that affect them. While it is generally agreed that involvement of citizens in the decision-making processes as well as in public affairs that concern them is a good practice of accountable governance, there is little consensus on best ways to achieve meaningful involvement. According to André (2013: 65), although all AU member states signed and ratified the relevant governance and human rights instruments, citizens have not benefited from such instruments, because they most of them lack awareness (not well- informed) and these instruments are in English, which is not the language spoken and understood by many citizens that are supposed to hold accountable their leaders. André (2013: 69) further argues observes that most of the good governance processes, such as APRM, have been dominated by government and thus leaving out citizens. He argues that such processes are people’s affair and every one should be entitled and encouraged to participate in the different stages of the processes.

Although there are many ways to implement principles of effective participation in public affairs by citizens, appropriate and suitable means have to be utilised based on the context in which participation is to take place, including the profile and capacity of citizens to access and effectively engage in participation processes. Therefore, pariticipation-citizens nexus must be contextualized, as “there is no one size fit for all”. This chapter explores and reflects on various models of citizen-government interactions and makes recommendations for moving beyond rhetoric and “conventional” participation. It is worth noting that the benefits of including citizens in all public affairs processes are widely recognised, however, more often than not, citizen’s participation is not routinely sought in the decision-making processes.

The previuos chapters, in particular chapter four, have presented the importance of the right to participation for Batwa, and gone deeper to present the understanding of the content of 209 participation of ethnic minorities in civil, political, economic, and social rights in view of managing challenges (structural and systemic) relating to effective participation in public affairs. Discussions in chapter three have established that effective participation is not an event or an end in itself, but rather a continuous process and a means to achieve greater aspects in the lives of Batwa, whose strength is influenced by both public and private institutions. The rights of Batwa as an ethnic minority group to participate in public affairs is grounded in formal legal recognition that identifies ethnic minorities as a “specific group of peoples with specific rights” to be promoted and protected. For instance, the ICCPR articles 26 and 27 and UN Declaration on the Rights of Minorities of 1992 article 2 clearly stipulate the rights of ethnic minorities to participate in public affairs and compels states to remove barriers that challenge ethnic minority communities from effective participation. Regardless of these provisions at national, regional, and international, some scoholars, such as Falama (2017) argue that the concept ethnic minority is a misnomer and fiction, since their human rights are covered under general categorisation of “all the people”, “every person”, and African people” as given in common human rights instruments. However, Falama contradicts his earlier argument when he states that fundamental rights that are constitutionally guaranteed for all citizens are enjoyed by a few people who have the economic wherewithal to enforce them while the majority of citizens are perpetual victims of violations of human rights as they lack the means to enforce them. By other way, Falama, as many Africans think, there is a tendency to group the “few people” not enjoying their human rights and then claim that by having them together helps them to be protected by the existing legal provisions; this has proven not to be the case, and by other way, Falama accepts that there is a “minority group” that is marginalised.

In light of this, Prof Hanshumgule (March, 2017), argues that indigenous ethnic minorities, such as Batwa in Uganda, should be enabled to participate as well as have a 'buy in' into decisions directly affecting them which is their fundamental human right. He continues to opine that Batwa cannot be members of the Ugandan public and not participate in public decisions; such decisions which affect them but in which they do not participate are ipso facto illegal119. While there is slow progress on the side of the Ugandan government to

119 Ipso facto is a Latin phrase, directly translated as "by the fact itself", which means that a specific phenomenon is a direct consequence 210 promote and protect human rights of people belonging ethnic minorities, less has been done on the modes – formal or informal – of participation in public issues by ethnic minorities (Tumwebaze, 2016). The focus of this chapter is therefore to proffer frameworks and structures specific to the Ugandan situation, which the Batwa, as well as other communities in such categories, can exploit to effectively participate in public affairs.

9.1 Mechanisms for promoting participation by Batwa in public affairs

The state of marginalisation and vulnerability in which Batwa live hinders them from effective participation in public affairs. As earlier noted in chapters one and two, the Batwa community is mainly comprised of individuals that are illiterate, homeless, and landless, who cannot easily defend their interest in their local communities, as well as at national level. Leaders at different levels therefore, need to devise and design mechanisms that facilitate the inclusion and participation of Batwa in public affairs; particularly in the decision-making processes.

In the context of Kabale, Kanungu, and Kisoro districts, combined factors, and not only the person’s literacy levels - as earlier confirmed by respondent - have potential to determine the ability, quality, and depth of their participation in decision-making processes. If all these combined factors are missing, it becomes a little problematic for one to effectively participate in public affairs. For example, illiterate people are likely not to effectivel participate in such processes, especially if the mechanisms used to promote public participation require certain levels of literacy (as the case with Uganda local governance elective positions from level two through five to national level). As for Uganda, at the local levels, many factors are at play, including level of literacy, social, and economic status (UOBDU, 2014). As the reality shows in the three districts of Kabale, Kisoro, and Kanungu, illiterate people from the majority communities have participated efficiently in governance as well as socio-economic programmes in their local communities, simply because they are favoured by other factors such as socio-economic influence, which Batwa lack; as discussed in chapters five and six. Yet in these communities, I argue that there is “correlation between illiteracy levels and low income abilities, which imply high dependence on local governance service delivery”. Therefore, it is important that participatory mechanisms that are suitable to the context be

211 tailored to increase effective involvement of Batwa in decision-making and service delivery processes.

9.2 Effective community governance model

Source: Epstein and Fass Associates120

Epstein and Fass developed a model that has been found to be helpful in enabling communities to have effective involvement in public governance issues. This model is faciliatator led, and thus needs some one to take lead then concerned people follow. However, this model can be helpful if translated and contextualized to Batwa situations, and particularly on issues of engaging with governance structures in the local government system of Uganda. The model starts with a focus on community problem solving; managing results from the community arrangements; ensuring citizens reach such results; and engaging citizens in getting things done (public and private).

In the context of the Batwa of Uganda in relation to this model the interaction between Batwa and the authorities at different levels occur at the overlaps of the circles, which is number four. The government of Uganda in general has programmes – political, economic, and social – that engage the entire citizenry, including national elections, and wealth creation, among others. In this case, concerning the model, the interaction between government and

120 Epstein and Fass Associates (2005). Effective Community Governance Model. Available from http://slideplayer.com/slide/6632925/. 212 the citizens occurs at number one. This is where the structures concerned with addressing Batwa issues would come in. This overlap point is based on the fact that citizens are crucial and play an important role in ensuring that decisions and policies made for them are favourable and implementable. This can be effectively checked if the concerned communities (in this case Batwa) are empowered and involved in all the processes from start to finish.

At intersection two, this is where results are managed. It is at this level that public authorities and private citizens (Batwa community) interact and get things done. In relation to the Batwa situation, as affected citizens, the government, through relevant institutions and structures should engage them at this point. There is a need for collaboration and working together on both sides if the results of engagements are to be managed effectively. Epstein (2005: 8) notes that this practise can be very effective for inclusion of all affected groups in governance processes. However, Epstein underlines the fact that the results achieved may not necessarily reflect the citizens’ wishes or interests because often they are not involved in planning processes and goal-setting for public engagements.

At intersection three it is clear that citizens are reaching for results. This is a point where the government seems to be engaging the citizens, where they are given the opportunity to engage with the results. What is paradoxical is that if at intersection two citizens are not involved and do not participate in goal-setting for the processes, then how useful will it be to engage effectively on level three? For instance, in those circumstances where Batwa have been involved, it has been a “token” participation that has not effectively helped them. For example, Tusingwire Elvaida, a Mutwa respondent for this study noted “oh! It does not make any differences simply because I feel that our inputs as members of the public are not considered. For me, it is a waste of time to discuss my views on a particular local council issue my interests as a citizen are always neglected”. In my view, based on the type of government (as described in chapter one) and the governance structures of leadership in Uganda, there is a need for stronger advocacy and networking at this level so that the affected citizens (Batwa) can effectively influence the decision- and policymaking and implementation for their benefit.

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It is assumed that if the first three intersections and processes are effectively benefiting the affected citizens (Batwa), then the desired results – empowered Batwa effectively participating in public processes – is created. At this intersection, citizens are empowered and their capacity enhanced to control all the processes and fully engage in all decision- making and their implementation for their ultimate benefit.

In the context of Uganda, and in particular, the situation of Batwa, this model for effective participation in public governance, can be used to facilitate the involvement and inclusion of Batwa. This will encourage Batwa to collaborate and work with the relevant government institutions, especially in policy-formulation as well as their implementation; and through this they will make their contribution as an affected community in relation to national programmes and hence, their participation will be improved.

9.2.1 Elections

Voting is one of the main processes through which Batwa can effectively participate in public affairs both at the decentralised and national levels. This can be effective by having Batwa contesting as candidates for elective positions, but also voting in elections is regarded as the “principal form of public participation in the making and implementation of policy at all levels” as enshrined in various human rights frameworks and Uganda constitution articles 50 and 59. While Batwa’s numbers remain numerically inferior in these communities, it is possible that in some communities, such as Nyakabungo in Kabale and Bwindi in Kanungu, some community members have joined Batwa in solidarity in issues of environment. In a focused interview with nine community leaders of Nyakabungo in Kabale, they noted that non-Batwa would be willing to vote with Batwa in solidarity if enough sensitisation and civic education would be done for Batwa as well as non-Batwa. In the context of Uganda, elections are held at an interval of five years, in which period, registered voters have ample opportunity of expressing approval or disapproval of the way the elected representatives have served and or represented their constituencies. In this perspective, participation in elections by Batwa becomes the best way for them to get involved, at least in as far as at the village level and local government (decentralisation) structures and governance is concerned. Important to note, however, is the fact that there is a need to build the civic capacities of the Batwa and sensitise the communities, including Batwa, on the importance

214 of community participation. If this is not prioritised, the current situation of the Batwa – lack of effective public participation – may not change easily.

Decentralisation is a political tool seeking to delegate power to lower level structures of governance. For instance, in Burundi, the leadership at the local council – the lower community level (commonly known as “Commune”) – is supposed to reflect gender and ethnic balance, among others (World Bank, 2014) . This has helped Batwa in Burundi to participate in public affairs of their communities. Furthermore, in Ethiopia, the devolution of power to lowest level local administration known as Kabele121, has enabled indigenous minority commutoies to participate in issues concerning their communities. Bekele and Kjosavik, 2016: 3, noted that this devolution of power brought in a new pattern of decision- making and and created a platform for participation fro vulnerable and marginalised people. In light of this, there should be real power and authority devolution. This view is supported by Prof John Akokpari122. In an interview with Prof Akokpari (March, 2018), he noted that decentralisation is the best approach to allow vulnerable ethnic minority communities to effectively participate in governance issues, if it is well structured, with deliberate power devolution to the lower structures. With a similar view, Smith (1985, 227), opines that decentralisation includes “sub-division of the state’s territory into smaller administrative units and the creation of political and administrative authorities in those areas”.

The fundamental question in decentralisation therefore, is how power and authority are devolved from top and to the lowest level of governance and how the responsibilities, both administrative and financial, are functioning in relation to accountability in the whole discourse of good governance. Therefore, the greater the proximity of ethnic minorities to either national or local government institutions – or grassroots, as Prof Akokpari, suggests – “the greater the effective participation and involvement of ethnic minorities in public affairs, which leads to the greater fulfilment of democratic and good governance ideals”.

Accordingly, local government structures, and particularly in Uganda, carry potential for truly democratic governance with increased opportunities for ethnic minorities to participate in

121 Kebele is an Amharic word which means neighbourhood referring to the lowest grassroots administrative unit after the Woreda, recognized by both federal and regional constitutions as lower echelon of local administration in both urban and rural areas. 122 John Akokpari is a governance expert and Professor in African Studies at the University of Cape Town. 215 public affairs, if power and authority devolution is reasonably and realistically implemented. In the context of Uganda, decentralisation is effectively being implemented from the village to the district levels. Based on the local government Act 1997 any administrative unit is encouraged to make by-laws – that do not contradict the national laws – if it deems fit for the benefit of the community. Article 39 of the Act states;

An urban, sub-county, division or village council may, in relation to its powers and the functions make byelaws not inconsistent with the Constitution, or any law enacted by the Parliament, or ordinance of the district council or a by-law passed by a higher council. If this is possible and considering the role these decentralised structures are playing in Uganda, those district leaders (particularly Kabale, Kisoro, and Kanungu) in whose territories the Batwa are living, should come up with specific and relevant guidelines as well as frameworks, in the form of by-laws to enhance the participation of Batwa in local governance programmes, including their implementation.

In order to ensure that the Batwa participate effectively in public affairs, at least at the decentralisation levels, there is a need to invoke the normative content of affirmative action as enshrined in the Ugandan constitution (1995). This includes special measures and preferential treatment given to a previously marginalised or less privileged group in comparison to the majority population. The essence of affirmative action is to enable Batwa to achieve equal enjoyment, which distinguishes them from the majority population. The major problem hindering Batwa from participating in public affairs as discussed in this thesis is that relevant Ugandan political structures have not taken deliberate steps to recognise ethnic minority communities and their specific issues. The constitution makes provision for establishment of affirmative action plans and programmes in favour of marginalised communities in view of getting sustained solutions to historic inequalities and injustices. The National Objectives also make provision for fair and equal representation of marginalised communities on all constitutional and other bodies. Article 32(1) provides as follows:

Notwithstanding anything in this Constitution, the State shall 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 purposes of redressing the imbalances which exist against them.

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In addition to this, the Ugandan constitution (article 21 {4}) empowers parliament to “enact laws that are necessary for the purposes of implementing policies and programmes aimed at redressing political, social, economic, or other imbalances in society”. In its current state, the provision has so far benefited a few groups, such as women, children, youth, and persons with disabilities, despite being designed to target a wide range of categories of marginalised and vulnerable people on the basis of “any other reason created by history, tradition or custom”. It is therefore essential that the government reviews the implementation of this provision, both at national and decentralisation levels to ensure effective participation of marginalised ethnic minorities.

Despite such provisions, ethnic minorities, Batwa in particular, find it hard to participate meaningfully in all the national and local electoral as well as related governance issues. In an interview with Dr Everist Benyera (March, 2018), an expert in political studies and good governance at the University of South Africa, he noted that “Batwa are not taken seriously by their governments in terms of soliciting their views or involving them in governance processes; because they are not a majority in terms of votes”. He further observed that “one of the best currencies in politics is votes, so by virtue of being a minority, Batwa do not have many votes, consequently, governments view them as a nuisance and economic drain, and if possible something that can be dispensed, if they were many to have enough votes, they would attract attention; unfortunately, this is the major tragedy of modern liberal democracy, where it is perfect for the majority to carry on with impunity”.

9.2.2 Consultation

Effective public participation by the Batwa in public affairs also can be achieved through consultation with them by getting their views on policymaking issues as well as their implementation. This involves a “process of communication between the government and the governed in dealing with a public issue” (Craythorne, 1997: 99). This process should ensure that both sides receive and give information; it should be a “two-way” process, where each party has something the other party wants. In the consultative processes leading to the 1995 Uganda constitution, several groups participated in the process although the Batwa were not included. The spirit behind public consultations and their involvement of the public was to ensure that the interests of the citizens were catered for when drafting the

217 constitution; but also to ensure that the public becomes part of the process since the implementation of the constitution requires the will and support of the citizens.

The local government system in Uganda provides for division of powers, functions and duties to the lower governance units in order to ensure an all inclusive process in democratic and decision-making processes. This can be of help in respect to devolution of powers – an idea advanced by Prof Akokpari as well – to the local communities but only to a small extent because most of the policies at the local levels are not initiated by the grassroots people. They are from the central government and the local leaders only assist with the policy implementation. This, however, emphasises the point of government conducting robust consultations with all the citizens, especially the marginalised and vulnerable communities, to ensure that their situations, needs, and interests are included in such policies which originate from the national levels. For a more effective representation of and/or effective participation by the Batwa in public affairs, the legislature and local bodies should act as a stepping stone for them to air their views and be considered in making policies at both local and national levels, instead of being ticking-box exercise (what Arnstein (1969: 216) calls tokenism- as discussed in this chapter, section 9.6) on the side of the government, and a procedure that benefits majority and notminority. This can be effectively reached if consultations processes are prioritised.

Based on the governance system in Uganda, consultative structures within appropriate institutional frameworks – national and local – aimed at enabling effective flow of information between government institutions and ethnic minorities, such as the Batwa community, should be established. The formation and membership of these structures should reflect their purpose and contribute to more effective communication and advancement of Batwa’s interests. This may take different forms and arrangements. For instance, the Lund Recommendations on the Effective Participation of National Minorities in public life, note that “as well as involvement of ethnic minorities in public affairs and especially political processes is important, there is also scope and need for developing consultation and participatory mechanisms to ensure that minority interests are considered” (Recommendations 12, 13). In the context of Batwa in Uganda, liaison structures should be established at different levels but more especially from local council one to five (LC 1, 2, 3, and 5). 218

In an interview with Prof Akokpari (March, 2018), he also raises the point of ensuring that the grassroots structures are empowered to be able to engage authorities on ethnic minority issues. For him, lower structures are characterised by people who are not adequately educated and informed, semi-iliterate and sometimes not capacitated to deliver as expected, and as such, nothing much will be achieved at the grassroots level, even if consultation plans are available, structurally, they will not get involved because of capability issues (a point held by Nussbaum and Amartya Sen as discussed in chapter five). Prof Akokpari thus, suggests that deliberate strengthening of these structures gives a voice to representatives of the minorities at that level to engage with various stakeholders, such as private and individual companies that are concerned with Batwa issues. These include religious institutions, civil society organisations, business entities (national parks, game reserves, and related investors). Batwa should be encouraged to be part of these structures by letting them choose their own representatives. Other actors working for Batwa, including civil society organisations, independent experts in minority issues, and Batwa organisational structures and leadership should be incorporated to ensure that consultation revolves around relevant and critical issues, and that consultation is not “tokenism but more empowering”.

If these structures are to be more effective and functional, they need to be strengthened, formalised and institutionalised. This can be done by ensuring that responsible government institutions including the ministry of gender, Uganda Human Rights Commission, Uganda Equal Opportunities Commission, Uganda Land Commission, put in place specific ways to facilitate regular interactions and consultations with Batwa communities, and to allow free and open engagements between these agencies and Batwa communities. In these ways Batwa communities should voice their issues with decision- and policymakers, prepare and submit recommendations, monitor developments, and provide views on proposed government decisions that may directly or indirectly affect them. Emphasis should be placed on government authorities to consult these structures regularly, in order to contribute effectively to the satisfaction of ethnic minority concerns and to the building of their confidence.

Marginalised ethnic groups, such as Batwa, can secure “special representation” in public decision-making processes, as well as in local government structures by guaranteeing a

219 minimum number of seats. This will ensure such groups are not isolated from public issues, and particularly in policy- and decision-making processes. In the context of Kabale, Kisoro, and Kanungu, specific positions or seats should be preserved at the local councils 1, 2, 3, and 5, where decision-making for the decentralisation structures takes place and planning for the respective structure is conducted. In Uganda, such an arrangement has helped historically marginalised groups such as women, youth, and people with disabilities. These have been given a space to organise themselves through commissions and directorates as well as designating a specific number of seats in local council structures and in parliament. The question that has gone long unanswered is: why not for Batwa or ethnic minorities in general, if this can be done for other groups, and apparently seems to be serving the purpose (ensuring that the voices of the voiceless are heard). One important point to note is that such representation and arrangement should not be on a permanent basis, rather, temporary; once the “fruits of special representation” are achieved and the challenges of public participation are removed; such mechanisms would become unnecessary and be removed. An example where the mechanism of special representation is working is Burundi and Ethiopia. For instance in Ethiopia's lower house – the “Yefedereshn Mekir Bet or Council of the Federation” – out 547 delegates, 22 seats are reserved for members of minority nationalities and peoples, elected for five-year term in single-seat constituencies.

In Burundi, for instance, some positive actions have been introduced aimed at encouraging political integration of the Batwa. This integration process is a result of implementation of a number of laws and regulations adopted in Burundi, including the Arusha Accord of 28 August 2000, the National Constitution of 18 March 2005 and the 2010 Electoral Code, which explicitly recognise the protection and inclusion of minority ethnic groups within the general system of government.123 The 2005 constitution provides for three seats for Batwa representatives in the National Assembly and three seats in the Senate and one seat in East African Community (EAC). This has been implemented since 2005 to date. In addition to the Batwa in parliament, they are progressively moving towards full participation in government institutions.

123 See Law No. 1/10 of 18 March 2005 implementing the Constitution of the Republic of Burundi. 220

In Burundi more so, Batwa already hold key positions in some departments of government such as the State General Inspection, as the Governors and Senior Advisors in Kirundo province. However, the Batwa’s participation is still limited especially in decision-making in public affairs because of their low levels of education. They are more concerned about their immediate needs including food, shelter, clothing and land. The EAC treaty recognises human rights principles and guarantees promotion and protection of minority rights. The Batwa therefore can be integrated into the EAC through their representation in their national government institutions to structures such as East African Legislative Assembly (EALA). And since the Batwa are represented in the Burundian Senate, they have been given special arrangement to select one of their own to represent them at the EALA. This is a best practice in as far as providing mechanisms to ensure participation of ethnic minority groups in public affairs, including policy- and decision-making structures not only at local and national, but also at regional levels. Burundi’s case presents a best practice that other countries need to emulate.

As discussed in chapters one and three, most of the ethnic minority communities in Uganda have been left at the periphery and thus lack qualities and skills to effect participation in public affairs, these include Batwa and Ik. However, there are some ethnic minority groups that have acquired some skills (for instance Benet and Basongora) and are able to participate in public affairs, if they were facilitated. In this regard therefore, government can increase participation in government by the Batwa through appointive positions. For example, when selecting the appointive position, such as members of commissions, the issue of ethnic composition should be taken into consideration. This will ensure that the issues of ethnic minority communities will easily reach the national structures and will eventually inform the policy- and decision-making processes.

The 1995 Uganda Constitution, under its National Objectives and Directive Principles of State Policy, provides an objective for ensuring the inclusion of such groups of people in government. Objective II, clause (iv) states that the “composition of government shall be broadly representative of the national character and social diversity of the country”. However, no Batwa holds a key position in government, constitutional, or statutory bodies. Participation and representation in public life is very important to create linkages of loyalty to the state and the society, of which Batwa form a part. It is, therefore, important to ensure

221 that interests of ethnic minorities are taken into consideration, prioritized, and inspected as far as possible in a tolerant and inclusive environment.

In terms of ability for the minority community, such as Batwa, to get involved and effectively utilise the consultative mechanisms, it is argued that there is a need for capacity-building to develop their knowledge and skills. In the context of Batwa, this should target the whole Batwa community, not only their representatives. “Special attention” should be given to those categories of people within Batwa community, including women, disabled, elderly, and children, who are further marginalised. This will enable the whole group to grow together, compared to other continuum, such as women’s emancipation, where attention has been placed on the representatives and leaders, leaving the majority of women unattended and eventually skewing the impact of the whole work. For instance, in Africa, Rwanda is taken as an example for increasing the women’s participation in governance with 63 per cent in parliament. However, this is not reflected at the grassroots, where women are seriously affected by among other issues, poverty and leadership; more than men.

9.2.3 Establishing associations

The Lund Recommendations’ General Principles suggest that effective participation of minorities in public affairs is cricial and hence, concerned that “in those states in which ethnic, religious or linguistic minorities exist; governments must come up with mechanisms to ensure effective participation of minorities is guaranteed”. What remains to be done is which mechanisms can be put in place for effective participation in public affairs by the Batwa in Uganda? Minority communities and Batwa in particular can achieve effective participation and/or representation in public affairs by forming associations, which can play a formal role in representing minority interests. The leaders of the associations can be the direct representatives of the minority community in question or another appropriate mechanism can be put in place to ensure that through this association their views are heard and are consulted effectively. For instance, the Batwa in Kisoro, through some concerned community people, formed an association to assist Batwa (UOBDU). While it has extended its mandate to other districts of Kabale and Kanungu, it is still not yet efficient enough and not yet well aligned with national and public structures to allow consultations and participation. In terms of implementing this mechanism, there is a need for exhaustive and

222 comprehensive strategy by all the stakeholders to ensure that minority associations are formed in different parts of Uganda, and mechanisms geared at effective representation that will include all the relevant communities and their units – be it women or members of a minority living in a different region – being reached and their views given attention.

In a country such as Uganda, participation in elective positions has specific stringent requirements including financial, in terms of a nomination fee124. For instance, to be eligible for parliamentary election, one is required, among other things, to pay a nomination fee of Uganda shillings two million (around US$550) and for the local leadership structures it ranges from 20 000 Uganda shillings (around US$5) to 200 000 Uganda shillings (about US$55). In any country, the legal and institutional framework managing electoral processes, including the nature of the electoral system and procedures, has the capacity to positively or negatively influence representation and integration among societal groups; or may be one of the systematic mechanisms for discrimination and exclusion of vulnerable communities in society.

In this case therefore, to facilitate effective participation and representation of Batwa, and other ethnic minority communities in Uganda, to meaningfully participate in public affairs, would be to lessen requirements for one to stand for any elective position, including reducing or withdrawing the fees to be paid and quorum for recommenders. This measure would allow Batwa to register with less expense and without a broadly planned campaign for obtaining statements of support. While this mechanism may not guarantee that the Batwa will automatically get the elective seat, since it is a competition and whoever wins the elections takes the seat, it, however, facilitates their journey in the whole process. This is based on the backdrop that ethnic minorities and Batwa in particular, have been left out and/or marginalised in many sectoral areas such as education and economic prospects.

Advisory bodies and institutions are another form of representation to ensure the views and opinions of ethnic minorities in Uganda can be heard by public leaders. In the context of Uganda, there are a number of presidential advisors on different themes in social, economic, political, and religious issues. The rationale for the establishment of these offices

124 See Uganda Electoral Commission, Basic Requirements for Nomination as a Candidate For the 2015-2016 General Elections. Available from http://www.ec.or.ug/?q=content/basic-requirements-nomination-candidate-2015-2016-general- elections. 223 and appointing advisors is to ensure that views and opinions of the citizens in these areas are easily received to enhance service delivery. This should be extended to the ethnic minority communities in Uganda. In terms of their relationship or role they play in a legislative capacity, advisory bodies should be given the roles of ensuring that constructive consultations are done and that affected ethnic minorities participate in public affairs, either directly or through their representatives. This will not only improve the policymaking processes, but also the implementation of such policies. Advisory bodies should be an integral part of decision-making process, and contribute effectively to this cause, if both the government and the ethnic minority communities use the structures sufficiently. The particular structure of representative capacity and authority assigned to an advisory body will usually differ across institutions. Members may be chosen, or the body may be composed of elected representatives of various groups. Advisory bodies may originate from grassroots structures, from constitutional mandates, or legislative initiatives.

In a related mechanism, ethnic minority concerns should be reflected in the national arrangements and programmes. And this can only be achieved if there is an established government agency(ies) specialising in ethnic minority issues. Through such agencies Batwa interests are easily heard as they get organised and participate in their agency. In countries where ethnic minority issues were at stake, such as Estonia, Macedonia, Russia, and Slovakia this mechanism worked for minorities and proved to be a success. The institutionalisation of ethnic minority issues, in Uganda for instance, will help to entrench the programmes and plans that benefit minorities clearly. In the context of Uganda, these agencies can be either attached or linked to ministries such as gender, labour and social development – where similar units (commissions) of vulnerable groups of people including women, children, disabled, elderly, have been established – as well as other ministries such as constitutional affairs; lands, and education. In order to improve coordination and work on ethnic minority issues in Uganda, an inter-ministerial working group on minority issues ought to be established. This is because the issues of minorities, Batwa specifically, are cross- cutting and may not be handled by one ministry effectively. For instance, issues on land, housing, education, health, poverty, may need concerted effort from different relevant ministries. However, as earlier discussed, the lack of a robust legal framework dedicated to minorities accounts for the absence of such agencies, and even where similar institutions

224 would assist, such as human rights commission, EOC, they have not been able to help enough in addressing the issues of ethnic minority communities in Uganda.

In countries such as Burundi, this has been tested and is working. Batwa have been placed in some government agencies. In an interview with Mr Vital Bambaze (April, 2018), a mutwa reprensentative to the senate, noted that “Batwa in Burundi are represented in the State Inspectorate Office and the National Commission for Land and Other Assets. At the local level, there are some representatives on the communal councils of the areas in which the Batwa live”. The consideration so far given to minority communities by the government of Uganda needs to be reinforced by the appointment of a government ombudsperson, presidential advisor, commissioner (in institutions like human rights commission, EOC), contact person or committee for these questions.

A lesson can be learnt from Rwanda where a Mutwa is selected to guide and advise the governor of Kirundo Province on issues concerning the Batwa in this region. Through this mechanism, Batwa issues in this province are gradually being managed. This position should be assigned comprehensive responsibility for all areas of minority questions, including combating discrimination, marginalisation and enhancing participation, as well as constituting a channel between minorities and the government in ensuring relevant and favourable legal framework is established and disseminated to the populace for effective implementation. In Cyprus, for example, a presidential advisor on minorities has the role of facilitating complaints submitted by minorities and coordinating general policies in this respect (Kristian: 2001: 63). This can easily be replicated in Uganda at different levels with various institutions, including parliament, local government structures, as well as in private institutions, including civil society organisations and business entities.

9.3 Techniques of public participation for ethnic minority

Having looked at some ways in which participation of the Batwa in public affairs can be enhanced, and in an attempt to answer the critical questions raised in chapter one, on whether Batwa are informed about and empowered on participation issues; it is of utmost importance that a genuine robust framework is established in Uganda to ensure effective participation of Batwa. Different frameworks have been developed by various actors and institutions including the International Association for Public Participation and Organisation 225 for Economic Co-operation and Development (OECD). These are active participation frameworks aimed at increasing levels of citizen’s involvement and influence on policymaking.

There are a variety of techniques available by which the Batwa can participate in public affairs. These range from simple open meetings to more sophisticated techniques such as the “Delphi and Nominal Group techniques”125 which give ethnic minorities, such as Batwa, an equal voice, thus minimising or eliminating the potential power differentials among and within their respective communities in Kabale, Kanungu and Kisoro. These techniques also provide a range of opportunities to better understand the opinions and judgements of every person involved. Cogan (1986: 292) states "with few exceptions, a successful public involvement program incorporates several techniques". These techniques are graphically presented as a continuum that ranges from passive to active involvement.

(Source: OECD 2001): Citizens as Partners - Information, Consultation and Public Participation in Policy-Making Information sharing: The Batwa can participate by sharing information with relevant structures in a public arena. The Government of Uganda has used information sharing as a way to produce and deliver services to the citizens. However, this is passive participation and only a “one-way” path from government to the citizens. While this is limited to one party and does not include minorities’ views being included in the public spaces, it could be a good opportunity and starting point for both parties – Batwa and government – to begin constructive engagements.

125 The Delphi is a survey technique for decision-making and consensus building among isolated respondents, while nominal group technique is a highly controlled small group process for the generation of ideas, problem- solving or determining priorities. 226

Consultation: This is a two-way relationship in which ethnic minorities can participate in public affairs, by providing feedback to government structures. This should be based on the prior identification of the issues at hand by government, on which citizens’ views are being sought, and/or they need to participate (OECD, 2001: 33). This may require providing adequate information to the Batwa so as to have an informed capacity that would contribute to ensure effective participation. In such a case, the government of Uganda should outline issues for consultation, prepare questions and manage the process; invite Batwa to contribute their views and opinions, and in return, government gives feedback to the Batwa based on the views and opinions collected.

Active participation: This is a relationship between government and citizens, based on partnership and engagement with government, in which citizens actively engage in defining the process and content of issues of interests to both parties (OECD, 2001: 36). Active and direct participations of Batwa in public affairs will ensure and gives Batwa a hand in setting the agenda, an opportunity to propose policy options and shaping the policy discourse in Uganda. However, the responsibility for final decision or policy formulation rests with Government of Uganda. In the context of Uganda, this should be at all levels in governance structures including all local council decision-making structures as well as national institutions responsible for policymaking and implementation.

9.4. Levels of public participation

1. Inform 2. Consult 3. Involve 4. Collaborate 5. Empower

Source: Adapted from International Association for Public Participation; Available at , https://cdn.ymaws.com/www.iap2.org/resource/resmgr/foundations_course/IAP2_P2_Spectrum_FINAL.pdf

At the first level, the objective is to provide balanced and objective information required by the public to support understanding the issue being tabled or consulted. This involves

227 building-capacity of the public to effectively engage. There is a need for keeping the public engaged, committed, and informed. At level two, the focus is on getting public feedback or their views and analysis, alternatives and/or decisions. What is expected from government structures and authorities is the commitment to listen actively, appreciate, and acknowledge concerns of the public. At level three, the objective is to work with public to ensure that concerns and aspirations raised are realistic, achievable, and more so are understood and considered by both parties. This includes working with concerned citizens, in this case the Batwa, to exchange information, ideas and concerns. At level four, the objective is to engage with citizens on each issues raised against decisions taken, including deveising means to develop alternatives and preferred solutions. Commitment and priorities should be given by looking for advice and innovations from and among citzens, who are directly working on the issues of Batwa, as well as ethnic minority communities in Uganda. Level five, which is the final stage in this continuum; suggests that Batwa are given the power to manage their issues. This can be done by creating structures to delegate decision-making and/or enable the Batwa to work directly with decision-makers at various levels. The priority and commitment here is to work with the Batwa to implement agreed-upon decisions.

The first two levels – inform and consult – occur when there is need for a decision to be made or decisions have already been made, and government seeks to either communicate that to citizens, or get opinions on the decision. This level calls for participation of the citizens to ensure everyone is included in the processes. The third and fourth levels – involve and collaborate – have “two-way” information flows, and include sharing information within and across stakeholders and relevanr communities during the decision-making process. When conducting engagement activities, decision-makers commit to consulting and involving stakeholders for feedback to inform the decision and shape the outcome. Activities that take place at collaboration level are sometimes also referred to as partnering engagement, since they facilitate and enhance partnership. The fifth public participation level – empower – is also also referred to as co-production. This is where decisions are made jointly between government authorities and community members. This often happens if the exercise of engaging with community has been delegated to a group, including members from both government and the community. This level is called empowerment, and resonates well with the notion of capability and the minority democracy theory, which underpin this thesis.

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9.5. Public participation continuum

Publicity Public Education Public Input Public Interaction Public Partnership

Building public Disseminating Collecting Two-way Securing advice and support information information communication consent

<------PASSIVE ACTIVE------>

Cogan and Hertberg (1986: 284) provides the following description of each of the forms of participation in public affairs:

Publicity is designed to encourage, influence, and facilitate public support. However, in relation to the Batwa’s issues this is a passive way of participation, and thus taking them as passive consumers. Public Education is a programme seeking to provide complete and balanced information for Batwa to draw its own conclusions. These should aim at empowering the Batwa. This stage supports the notion of capability as well as minority democracy theory, which emphasises empowerment and capacity-building. The thesis argues that at this stage, even if public education is passive, if it is well managed, it gradually leads to effective participation because people will be empowered and their skills developed. Public Input is developed to obtain ideas and opinions from Batwa. Ideas and opinions from Batwa are effective when combined with feedback mechanisms that inform rightful targeted people of the extent to which their inputs influence ultimate decisions. Public Interaction facilitates exchange of information and ideas between Batwa and authorities, particularly planners, at different levels, and decision- and policymakers and implementers. These interactions enhance participation if they are effectively utilised; and they provide an opportunity for the underprivileged and marginalised – the Batwa – to express their concerns and needs; interact and interrogate ideas from other actors as they work towards building consensus and cohesive community. Public Partnership will provide Batwa with an opportunity to contribute to the processes of making and implementing ultimate decisions. Important to note is that these approaches may not necessarily fit into one category. For example, one meeting organised for Batwa, may provide opportunities 229 for information dissemination and publicity; educate and empower; and interaction with others.

A key point Cogan and Hertberg (1986: 285) make is that “the number of citizens who can be involved is inversely related to the level of active involvement”. In the context of Batwa in Uganda, while it is necessary for Batwa to effectively participate at all levels of decision- making and implementation (national and local), urgent and active participation needs to be prioritised at the lower levels, and particularly in the local government structures, since these structures hold responsibilities of making and implementing policies that affect Batwa directly.

9.6 Ladder of participation Arnstein’s Ladder of Citizen Participation Batwa’s participation in public affairs should be central to all national programmes in Uganda, and particularly those programmes and policies that are implemented in their localities that affect their lives directly. This is based on participation typology by Arnstein (1969: 216) titled “ladder of citizen participation” which defines gradations ranging from the sharing of information at the lowest ‘rung’; moving to consultation; to involving people in decision-making; to collaborating and acting together; and eventually to actual empowerment that supports communities to act independently. Suggesting that the lower rungs amount to ‘non-

230 participation’, she argued that they aim more at manipulating people as opposed to empowering them. This is evident in the Batwa’s situations where they are being manipulated by majority communities in all three districts of Kisoro, Kanungu, and Kabale. Arnstein refers to middle rungs, which comprise sharing of information and consultation, as “tokenism” because they largely placate participants. In the context of Uganda, ethnic minorities tend to be dragged into consultations by leaders and sometimes without having adequate information about the exercise. For instance, during the PEAP revision to become the current National Planning Authority, ethnic minorities were majorly informed and the consultations were to “tick the box”. At the end of the exercise their issues were never considered. In her view, Arnstein argues that it is only at the point at which participants gain some degree of control over decision-making and operational processes that meaningful participation exists. The experience of the participant is thus better captured in Arnstein’s ladder of citizen participation.126

Some scholars and practitioners (Fierke: 2007: 61; Ignatieff: 2001: 18; and Ogata & Sen: 2003: 4) agree that for the ethnic minority to effectively participate in public affairs, they need empowerment. To a large extent empowerment refers to supporting the weak and marginalised to be able to influence their environment (Fierke: 61). Ignatieff (2001, 18) also argues that it is a fact to protect and empower individuals to claim their entitlement. However, that assumes a functional relationship between a state as a formal duty bearer and citizen as rights holder. So, what does meaningful empowerment mean in the case of Batwa in Uganda, given that many of the disempowering dynamics as described in chapters three and five are all too evident and many of the essential formal structures and institutions simply ignore or do not want to involve ethnic minorities in public programmes? During their work on Human Security, Ogata & Sen stressed the importance of building people’s “capabilities” and “empowering” them “to act on their own behalf” (Ogata & Sen: 2003, 4). However, while people are by no means passive in contexts, such as the Batwa’s current situation, the above sketches a number of often deadly dynamics that can squelch and oppress the Batwa even more. This is especially so when considered through an ethnic minority lens.

126 The Cartoon Participation ladder is available at: http://outcomestoolkit.com/wp-content/uploads/2016/05/Box1.jpg

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9.7 Conclusion

From the foregoing discussion, and looking at the situation and the context of Uganda, it can be adduced that Uganda has progressive legal frameworks and structures that Batwa can utilise to ensure effective participation in public affairs. However, less has been put in place to ensure that such opportunities are utlised. There is a need to revitalise the concept of effective participation of ethnic minority communities as espoused by legal regimes at national, regional and international levels. While the Ugandan legal frameworks, both for national and local governments, provide for effective participation by every citizen in public affairs, there is a need to put in place specific structures and create opportunities to ensure that ambience is provided for the Batwa to participate in public affairs at different levels. This can be possible, if all stakeholders in promoting issues of ethnic minority; are committed. As seen above furthermore, there is a need to build the capacity of the Batwa. Kaban (2010: 13) noted that even if the structures and models conducive for the Batwa participation are put in place, they will not utilise them if they are not empowered in terms of social, economic and political advancements. Thus, among others, this thesis recommends that a two- pronged approach is needed, clearly targeting the Batwa directly, as well as revitalising the participation structures in public and private sectors, otherwise, participation will remain as “tokenism” in the lives of Batwa. The thesis further gives recommendations that all actors in the issues of Batwa, specifically the Government of Uganda, civil socity organisations, development partners, and general population in Uganda, ought to appreciate and recognise.

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CHAPTER TEN

SUMMARY, RECOMMENDATIONS AND CONCLUSION

10. Introduction

The main objective of this study is to explore complexity surrounding right to effective participation of ethnic minorities in public affairs in Uganda, with specific focus on seeking to understand the factors responsible for their participation in public affairs. The study also looked at the opportunities that Batwa can utilise to effectively participate in public affairs. In sub-Saharan Africa, generally, ethnic minority issues are not given the attention they deserve, and worse still the situation is alarming when it comes to the recognition of ethnic minorities in some countries where they are found, such as Cameroon, Gabon, Ghana, Kenya, Uganda, and Tanzania. Apart from the DRC and the Central African Republic – as the only two countries in Africa that have specific national legislations protecting the rights of indigenous ethnic minority communities (including participation); no other country has put in place a legislation that provides for the protection of ethnic minorities’ rights (ACHPR, 2009: 20).

In order to understand ethnic minority issues in relation to right to participation, the study used two lines of inquiry to get the information namely; review of the relevant literature (secondary source) and conducting interviews (primary source). This was done under the framework of the research objectives that formed the basis of the chapter division. First the study looked at the context and background of the problem, including research methodology, theoretical and conceptual frameworks; to assist in understanding and unpacking effective participation and ethnic minority concepts. These are covered in chapters one to three. Second, the study looked at the policy and legal framework enshrining the ethnic minority issues in relation to effective participation at different levels, and their implementation, with focus on Uganda in chapter four. Third, the study delved into the core questions of the research; the marginalisation of the Batwa and their participation in public affairs, the role played by the Ugandan government, in relation to its “tripartite obligations” to respect, protect, and fulfil; and then suggests models through which Batwa can effectively participate in public affairs. This is covered in chapter five to eight.

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Having the general outlook of the study, it is important that I highlight critical points that the study has found under each of the four objectives of this study: 1) to investigate the level and attitude of Batwa towards participation in public affairs; 2); to investigate the attitude of Batwa towards participation in public affairs: 3) to explore the role of Ugandan government in effective participation of Batwa in public affairs; and 4) to proffer the modalities for the Batwa’s effective participation in public affairs in Uganda. The next section, therefore, presents a summary of the objectives of the study.

10.1 The level of participation in public affairs of the Batwa in Uganda

The study argues that the rationale for effective public participation is to ensure that citizens influence and own the decision-making structures, as well as those decisions (and their implementation) that affect their lives. On the contrary, the study reveals that often participation strategies that would enable participation of citizens in public affairs have remained rhetoric and/or in books and not assisting the concerned people, especially the marginalised to effectively engage with their leaders and authorities in matters of public issues, including governance and development. Such “tokenism” participation – based on Arnstein’s typology of participation (see chapter eight) – as experienced by Batwa in Uganda, has not empowered the citizens as it should, in regard to Rousseau’s argument that more participation leads to empowered citizenly with enhanced participation skills.

As for Batwa, they are not participating in public affairs and one of the reasons for this non- participation, as revealed by this study, is that Batwa are not empowered to engage and get involved in public affairs processes. Research findings from the field interviews for this study indicate that 83 per cent of the respondents identified common challenges, including ignorance, poverty, marginalisation, lack of confidence, and Batwa taken as inferior compared to other communities around them; related to empowerment of Batwa. Other challenges include public stigmatisation, diseases due to poor hygiene, and alcoholism, which hinder their participation. In an interview with Steven Tumusime (January, 2018), Programme Officer with Bwindi Mgahinga Conservation Trust, he noted that Batwa lack capacity to engage in public issues, and even when opportunities are provided, are not confident enough to participate. For Steven, this is also due to their humiliating experiences at the hands of non-Batwa. This confirms the “capability” issues raised by Sen (1993), as

234 discussed in chapters three and four. Therefore, according to Fierke, (2007: 61); Ignatieff (2001: 18); and Ogata & Sen (2003: 4), as well as interview respondents including Dr Everisto Benyera, Prof John Akokpari, and Prof Tim Murithi; Batwa must be empowered to effectively take charge of the issues affecting them.

Based on the research findings and the discussion of this study, in particular chapters three, four, six, and seven, it can be adduced that Batwa, as an ethnic minority community; is marginalised and negatively affected by the lack of representation and participation in all levels of decision-making processes and structures, and specifically in governance and development programmes. This is confirmed by field study findings, where majority of the study respondents – 87 per cent – indicated that Batwa lack representation at all levels. For instance, in an interview with Mr Samson Werikiye (2018), Regional Programme Manager with The Gorilla Organisation in Uganda, he observed that Batwa lack representation compared to non-Batwa; community leaders do not consult them during such community processes, which means their voices cannot be heard.

The Government of Uganda has on several occasions reported that “all Ugandans are fully represented in the national governance structures”, through their leaders127. Article 36 of the 1995 Uganda Constitution provides for participation of minorities in all public issues while article 32 urges the State to work on affirmative action in favour of marginalised and vulnerable communities for the purpose of addressing historical inequalities and injustices that exist against them. Article 180, paragraph 2(b), of the Constitution of Uganda, women are granted one-third of the membership of each local governance structure. In all the local government councils, disabled and youth are given two seats each on all the committees; while at the national level each district is given a slot to send a woman representative to parliament.

In light of this, however, ethnic minorities, particularly Batwa; are not adequately represented in governance structures and decision-making bodies at all levels. While articles 32 and 36 aimed at enhancing the participation of communities, such as the Batwa, these provisions have not been effective in assisting ethnic minority communities in Uganda,

127 See 5th Periodic Report by the Government of the Republic of Uganda to the African Commission on Human and Peoples’ Rights presented at the 54th Ordinary Session held in Banjul, The Gambia, 22nd Oct –5th November 2013. 235

Batwa in particular. The question this study poses is, if these constitutional provisions can be invoked for other marginalised groups (women, youth, people with disabilities), why is the same arrangement difficult to put in place for ethnic groups such as Batwa? Respondents of this study, including Naidu and Dr Benyera, noted that the majoritarian perspectives of ignoring the minority takes precedence in the whole discourse of participation in liberal democracy, and as such the issue then is, what gains are there for their inclusion and participation in public affairs in terms of political “currency” – how many votes – would they carry to warrant attention.

In an interview (Byaruhanga, 2017), Assistant Commissioner, Family Affairs in Ministry of Gender, Labour, and Social Development – a Ministry that purviews ethnic minority issues in Uganda – noted that there has been some level of involvement of Batwa in designing some national development programmes such as the Uganda Management of Social Risk. This is a programme developed to assist marginalised communities, which is yet to take off. However, according to Byaruhanga, Batwa are not effectively involved in governance and development issues, there is not, for example, even a single local council with a Batwa representative in the entire Kisoro district. This is supported by Zaninka (2017), the Coordinator of the Batwa organisation called UOBDU which is working in the three districts, who informed the researcher that there is no participation of Batwa in local councils of Kisoro Kanungu, and Kabale. The reasons Zaninka give include the negative attitudes of non- Batwa and Batwa marginalisation, as the factors most hindering Batwa participation. Mr Byaruhanga further mentioned that the deeper marginalisation of the Batwa in governance issues is facilitated by “commercialization of politics”, where they have to buy electorates; and because Batwa are poor, they cannot afford funding their participation in elective positions. This is coupled with the small pool of voters within their clusters.

The study further found there is deep entrenched marginalisation of Batwa, that has resulted in their systemic exclusion from almost everything, leading to a situation of conflict and tension between Batwa and non-Batwa communities in the three districts of Kisoro Kanungu, and Kabale. For instance, the study reveals that in 2014, 13 Batwa homesteads were burnt down by non-Batwa in Rubuguri parish, Kirundo sub-county, Kisoro District as a result of a non-Batwa despising a Batwa, ending in fighting. Kodish (2007: 6) observes that

236 a society's “internal strife is connected to the quality of democracy and specifically the failure of integrating minorities”. Therefore, it is important to ensure that participation and integration of Batwa in all issues that concern them should be prioritised, if they are to enjoy their constitutional rights. This should be applied at all levels in national and local government structures, but also consideration and priority should be given to social and cultural perspectives of Batwa, which have a direct bearing on their general issues. Some African states including Nigeria, Rwanda and Sudan have over the past decade, experienced violent conflicts because of the exclusion of marginalised groups. The current violent conflict in South Sudan, for instance, is due to ethnic exclusion and marginalisation of some ethnic groups. The study argues that involving ethnic minorities in public affairs, is not only good practice in governance discourse, but can be a conflict-prevention strategy that may serve to mitigate or stop social tension and violence.

Furthermore, there is a widely recognised linkage between conflict and violation of minority rights. Both AU and UN agree that effective participation of ethnic minorities in public affairs is crucial and gateway to resolve most conflicts in Africa, and will enhance cohesion. The AU has observed that “peace, justice, stability and democracy, call for the protection of the ethnic, cultural, linguistic and religious identity of all people including the national minorities; and the creation of conditions conducive for the promotion of their identity.”128

10.2 The attitude of the Batwa towards participation in public affairs

This thesis supports the argument that the “right to effective participation is meaningless unless a group has the ability and the resources to exercise it” (Ramy, 2010). The thesis argues that even if the Batwa are represented by non-Batwa (participatory democracy) in public affairs (as it is currently done in Uganda), if they lack capability to hold their leaders accountable, their needs and interests, as well as voices will not be heard, and as such they will not be able to influence any decision in their favour. Lack of self-esteem and confidence coupled with poverty and illiteracy are among the issues the study finds to be common

128 Declaration on a Code of Conduct for Inter-African Relations, Assembly of Heads of State and Government, 30th Ordinary Session, Tunis, Tunisia (June 13-15, 1994). Available from http://www1.umn.edu/humanrts/africa/INTAFN.htm 237 causes of non-participation by Batwa in public affairs, specifically in governance, development, and service delivery related programmes. It was reported by numerous respondents — both Batwa and non-Batwa — that in effect Batwa remain unrepresented and do not get involved in the issues of public concern simply because they are not informed, and even when they are discriminated against, they cannot stand up for their rights because they are less empowered and lack confidence (capability).

These assertions were also confirmed by Evarist (2018) of Bwindi Nature Organisation in an interview for this study, when he noted that Batwa feel they should participate but the majority are not willing; Batwa feel they should participate but their inferiority complex is a limitation. He further noted that when Batwa gather exclusive of other people, they start complaining that they are ignored and discriminated against, but when they join others they cannot talk and even start disagreeing between themselves. In relation to this, Mr StevenTumusime (January, 2018) of BMCT in an interview noted that currently Batwa are divided into two categories; the few (about 17 per cent) who are a little bit exposed, have received some land from NGOs and built houses. According to Mr Tumusime, these Batwa feel the need and interest to participate in public affairs. While the other group, of who the majority are not empowered, are not interested and feel inferior to others when in public.

Increasingly, it is being recognised that there is minimum levels of education and other socio-economic facilities that are necessary for one to effectively exercise the right to participation. Ethnic minority communities in Uganda, and particularly Batwa, lack all these. It has been argued that even if favourable mechanisms and frameworks are provided to enable Batwa to participate in community and national programmes, without empowering them to do so, they will still miss the opportunity or other people not of their choice, will continue representing them. This means that the status quo will not change. In an interview with Kayeeye (January, 2017), Chairperson of African International Christian Ministry (AICM), he observed that “Batwa’s lack of access to information, illiteracy, and low self- confidence seriously affects their ability to participate and take advantage of opportunities open to them in public affairs”. The Batwa themselves agree that they lack confidence to associate with the non-Batwa and they fear to contest for any elective position or attend meetings because of their situations. For instance, in an interview with Ruguza (January, 238

2017), from Kanungu, when asked if he could contest for an elective position in his village, he noted that “tinshomire, tinkumanya kuhandika, ndashwara kandi ntiine kugamba. Tinkayesimba nomukiga oshomire”. Translated as “I am not educated, I cannot read, I feel shy to stand in front of people to speak. I cannot contest with a Mukiga who is educated”.

However, the study also found that the Batwa’s negative attitude towards some initiatives has contributed towards their current situation. For instance in an interview with Kabale District Education Officer, Mr Sabiiti (January, 2016), he noted that “Batwa have been stubborn and sometimes do not want to send their children to school”. Mr Sabiti went further stressed that Batwa are “clever, they can do innovative work”, however: “they have been resistant to education. It is not easy to transform the lives of the Pygmies. They don’t like working, they like to work for other people and are not interested to work in the fields, they go begging. They don’t want to eat with you, they want to sit separate from Ugandans. Even if you give them soap they will not use it”.

These reasons have been used by some leaders as excuses and they thus ignore the issues of Batwa, as well as failing to use institutional structures, especially at district levels in Uganda, to address the problems of Batwa. Even in his response one can identify that the officer is referring to Batwa fearing to sit with Ugandans, which gives the impression that Batwa are not Ugandans.

The study, therefore, argues that the Batwa must be empowered and “resourced” in order to gain confidence and self-esteem to participate in public affairs freely, and benefit effectively in the government programmes that seek to improve their living and general development. In a focus group interview with Batwa from Muko in Kabale, eleven members of the Batwa community supported this observation, and specifically Byenaku (January, 2017) noted that the Batwa need a lot of sensitisation to enable them to catch up with the rest of society. If Batwa are not assisted properly, their participation will remain tokenism as discussed in chapter eight. In the words of Cernea (1992:18), “if effective participation of a community in public affairs is to be a self-sustained process, one that will not wither away once the initiators leave the community, the people have to be taught certain skills”. In the context of Batwa community knowledge and information are key skills to make participation a continuing activity and to give Batwa an idea of what their rights and responsibilities are.

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Moreso, building on the skills that Batwa have, including working as tour guides, will help to perfect and boost their capacities that will facilitate their direct participation in public affairs.

10.3 The role of the government of Uganda in promoting effective participation of the Batwa in public affairs

The third principle of Limburg Principles on the “implementation of the International Covenant on Economic, Social and Cultural Rights” observes that states have an obligation to “respect, protect and fulfil” their citizens’ human rights, including effective participation in public affairs.129 Failure on the side of Ugandan Government to perform any of these three obligations constitutes a violation of such rights. This view is supported by political and governance scholars and experts that were interviewed for this study. These include Prof Francis Deng, Ambassador James Jonah, Prof John Akokpari, Dr Tim Murithi, Prof Everisto Benyera, Dr Webster Zambara, and Sanusha Naidu. They all agree that the government has the primary mandate of ensuring that all citzens effectively exercise their participation rights. For instance Ambassador Jonah observed that “it is the role of the government to ensure that ethnic minorities within its borders are promoted and protected as it is its constitutional mandate”. Particular to Batwa, Prof Everisto Benyera, in the same line of argument, opines that “the government of Uganda must authenticate and lead the need for the enhancement of the participation of Batwa in public affairs”. This may require the enactment of specific laws and policies, as is the case in other countries such as Burundi and Ethiopia.

The obligation to “respect” requires states to “refrain from interfering with the enjoyment of the rights”130 to participation. Therefore, a State violates this if it directly gets involved in activities that hinder its citizens from participation in public issues. The obligation to “protect” requires States to take measures that will prevent violations of rights of the citzens, particularly by third parties. Thus, the failure on the part of Ugandan Governement to ensure that the non-Batwa, development partners, as well as local government structures comply

129 See principle 3 of the Limburg Principles on the Implementation of the ICESCR of 1987, guideline 6 of the Maastricht Guidelines on Violations of Economic, Social, and Cultural Rights of 1997, and Dankwa et al 1998 Human Rights Quarterly 705 on the “three-level ‘typology’ of obligations”. See also Eide 1999 NIHR Human Rights Report 141. 130 See the report of Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, available at https://www.ohchr.org/en/issues/health/pages/srrighthealthindex.aspx

240 with constitutional and relevant legal obligations, may amount to a violation of the right to participation. The obligation to “fulfil” requires States to take suitable and conducive measures, including legislative, administrative, financial, and judicial towards full realisation of participation rights. Thus, the failure of a State to provide necessary guidelines on participation rights as stipulated in all legal frameworks in the country amounts to a violation. The Ugandan Government has failed on accounts – to fulfil its tripartite obligation – in terms of addressing plight of the Batwa.

The study found out that currently Ugandan government has not fulfilled the protection obligation, despite available constitutional and other legal provisions. For instance, the Batwa being evicted from their ancestral lands without consultation and being involved in the processe, moreover with no compensation and/or resettlement from the government, amounted to lack of protection against such inhumane actions. More so, the fact that Government has not taken any action on communities marginalising and discriminating Batwa is a sign of lack of protection of the Batwa. In an interview with Tumusime (January, 2017) of BMCT, he noted that the Government has not done enough to protect the Batwa in their current situation; government programmes and service delivery have failed to target Batwa specifically, including in governance structures at all levels. He further observed that Batwa are still left behind in terms of leadership and representation. However, some people feel that Batwa are treated and exposed to all opportunities in the same way as other citizens, since they are free to contest for, and vote in, any elective position; they are free to access education and health services; and even some Batwa (among the 17 per cent mentioned above) have been offered goats for raring and are doing well. Interacting with those Batwa families in Kabale and Kanungu district, who have benefited from such programmes, it is clear that they are living a slightly different lifestyle compared to those who did not get animals. In an interview with Tagiri (February, 2018), one of the beneficiaries noted that he has been able to sell a goat and bought food, clothes, and bedding for his family. This supports the thesis of this study that if the Batwa are supported and their capacity enhanced, they are able to overcome their current plight. This responsibility squarely falls in the mandate of the government of Uganda.

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Furthermore, the study indicates (67 per cent of respondents), both Batwa and non-Batwa, feel that the Government has, either deliberately or otherwise, left the protection and promotion of Batwa issues to non-state actors including CSOs (NGOs, religious institutions, and individual well-wishers). Neza (February, 2018) an activist for the Batwa at OUBDU in an interview for this study, strongly challenged the Government to embark on programmes to empower and address Batwa issues, otherwise litigation may be the next option. For instance, a similar situation in Kenya is that of the Ogiek, who on 26 May 2017 won the land rights case taken to the African Court on Human and Peoples’ Rights in 2010. The Ogiek community, like Batwa were evicted from Mau forests without any resettlement and compensation. The court ruled that the Kenyan government had violated seven articles of the African Charter on Human and People's Rights, of which Kenya is a signatory, and Kenya failed to protect basic freedoms and human rights of the Ogiek131.

Furthermore, in an interview with Tumwebaze (December, 2016), working with Ministry of Gender, Labour, and Social Development, Kampala, Uganda, she noted that the Government has put in place some mechanisms, including an equal opportunities commission, that Batwa can utlise. She, however, observed that it is unfortunate that currently there is no government programme to facilitate the public participation of Batwa in governance structures, as well as national development programmes. More so, the Ugandan Government has consistently denied or refused to recognise indigenous ethnic minorities, although the Batwa are commonly referred to as “the first people in the region”. This is further confirmed by writings on the official Ugandan Tourist Board website states that Uganda is: “... a cultural melting pot, as evidenced by the 30 plus different indigenous languages belonging to five distinct linguistic groups ... the country’s most ancient inhabitants, confined to the hilly southwest, are the Batwa and Bambuti Pygmies, relics of the hunter- gatherer cultures that once occupied much of East Africa ...”132

The study further reveals that despite the progressive 1997 Local Government Act, Uganda’s decentralisation governance system, as powerful structures not only in

131 African Commission on Human and Peoples' Rights Vs Republic of Kenya Application No. 006/2012, 26 May 2017, Res.112 132 URL (accessed 30 December 2016) www.visituganda.com/people.html

242 development but also in service delivery and decision-making processes, has not helped Batwa at all the levels (local councils 1, 2, 3 and 5). As such, participation of Batwa in public affairs remains a challenge without favourable conditions; including by-laws to enable them to participate in decentralisation processes. While there are many reasons for decentralisation, including justification that it is the optimal way through which citizens may effectively participate in public affairs, the study found that a robust framework must be in place to ensure that all categories of society are able to and participate equally. In an interview with Kanyomozi (January, 2017), Chairperson of the local council 3 of Kayonza in Kanungu, agreed that local governance structures have not done enough to support the call to help Batwa out of the current situation, despite the powers vested in these councils. He further noted that local councils have powers to make laws to help their people. However, currently no by-law to support Batwa issues has been effected, either at national or local government levels.

Furthermore, this study found that despite Uganda’s good decentralisation programmes, Batwa were not helped as much as other vulnerable and marginalised groups, such as women, people with disabilities, and the youth. The major reason that keeps coming up is lack of “political will” and commitment on from authorities to implement decentralisation in its entirety. In other words, there is no “genuine” decentralisation. This study, however, found out that for a successful implementation of decentralisation programmes – “genuine” decentralization – effective channels of political participation and representation must be developed. As Rondinelli et. al. (1989: 21) observe, these channels should seek to “reinforce and support decentralised planning and administration, and allow citizens, and especially the poor, to express their needs and demands and to press claims for national and local development resources”. In the context of the Batwa this can happen, if there is political commitment at all levels to work on the issues of ethnic minorities, particularly the Batwa.

The study found that some civil society actors, including Care International, the Uganda Land Alliance (ULA), ADRA, and BMCT have engaged with local government structures in these districts to ensure that such by-laws are put in place to ensure deeper and meaningful involvement and consultation of the Batwa by public offices, in particular, local government

243 councils. Unfortunately their efforts have not yet yielded much fruit. When the researcher interacted in an interview with some officials from the local government, the response was still negative. For instance Ndyomugyenyi (December, 2016), Chairperson local council 3 of Mpugu, and Moses Ndyahikayo, Community Development Officer, Butogota Town council, both in Kanungu district, noted that it is tricky to have a by-law in favour of the Batwa. The first thing is to sensitise communities and empower the Batwa themselves. He further noted “even if the policy is in place, in their current state, the council will need a lot of money to effect such a law, and these councils have no adequate funding”. This was supported by other community leaders including Hategyeka, Tugume, Baryayihahenkyi, and Kiconco (February, 2018), who in an interview for this study noted and asked the Government to increase its support to address Batwa issues, whikle Tugume observed that poliy frameworks with funds to implement the action plans will render policies futile.

Looking at the best practice from other countries such as Burundi and Ethiopia, on how they have integrated ethnic minority issues into national programmes (particularly the Batwa in Burundi), it is evident that it is possible to get a right approach to ensure that the Batwa in Uganda participate effectively in public affairs. The study found that between 2008 and 2010, due to advocacy process, as a result of the UN UPR and the APRM processes, Government of Uganda had “softened” its stance on the issues of the Batwa and the parliament had started discussion on how best to resettle and compensate the Batwa. Based on this, civil society actors interviewed in this study suggested that more focused advocacy and discussions should be conducted to encourage the Ugandan government to promote and protect the Batwa by facilitating their involvement in public affairs. There is also a need to support programmes that seek to improve the Batwa’s political, social, and economic spheres; through awareness and empowerment programmes to enable their effective participation in decision-making processes, and implementation of such decisions at different levels.

Furthermore, suggestions from the actors interviewed, including the pro-Batwa agencies, local community and religious leaders, as well as local government leadership, highlight that there is lack of vibrant local organisations to manage Batwa issues. The only existing organisation – OUBDU – is not well facilitated and cannot address the massive issues of Batwa in the whole country. In chapter nine (9.2.3) of this thesis, it was suggested that 244

Batwa can participate in public affairs through associations and organisations formed by them or working purposely for them. The study reveals that there is a gap in this area, and thus a need to ensure that either OUBDU is adequately capacitated or Batwa are facilitated to begin various associations that can be used as passages for consultation and delivering their concerns to the concerned. For instance, Nyirahanze (January, 2017) a Mutwa respondent from Bikuto, and Rwangabira, (2017), a Mutwa from Kebiremu clusters in Kanungu, noted that OUBDU staff have not come to their communities in the last two years; Nyirahanze noted “I hear they come and visit others, for us in this community, we have not seen them, and we don’t get support from them”. When the author contacted OUBDU National Coordinator, Penina Zaninka, she confirmed that the work is overwhelming and Batwa issues are many – “OUBDU is a small organisation, with few staff and not funded well, we cannot reach each and every Mutwa in Uganda, leave alone in the three districts of Kabale, Kanungu, and Kisoro. We need a lot of support from well-wishers including the government of Uganda to ensure that we reach all the Batwa as we seek to empower them”. However, some Batwa and non-Batwa informed me that this organisation has not helped Batwa in the participatory processes. Ntwangale (January, 2017), from Kanungu noted that OUBDU is led by non-Batwa and exists to help non-Batwa and not Batwa.

10.4 Modalities for the Batwa’s effective participation in public aAffairs in Uganda

Based on the responses from the people interviewed for this study and the discussions in this thesis, it is necessary to consider favourable approaches which Batwa may utilise as they aspire to achieve participation in public affairs. For example, the effectiveness of local governance processes (in terms of numbers and quality of ethnic minority communities that participate), will depend much on how the Batwa access such processes, and their ability to utilise prevailing approaches – including those that link them to non-Batwa and dominant communities, who form the electorates with big influence on administrative structures and leadership. This whole continuum depends on the formal structure of local governance system, status of local leaders in the community, their individual aptitudes and integrity, among others. As the discussion in chapter five (5.4, 5.5, and 5.6) confirms, the Batwa in south-western Uganda lack these progrmmes or approaches such as affirmative actions, specific mechanisms designed to facilitate Batwa’s participation in public affairs – be at local or national levels. 245

The study also strongly highlights that it is necessary to consider the obstacles that hinder the Batwa’s attempts to participate in public issues. In this regard, more attention should be given to other problems, which are likely to arise, should alternative methods or procedures are adopted to ensure participation of Batwa. It is such robust and meaningful analysis of the situation that may guide the architecture of the methods to help Batwa. In my view, it might well be necessary to devote efforts to having social, political, economic reforms, of which, without any attempts to answer participation challenges of Batwa will not be productive. As discussed in chapter eight, mainstreaming of ethnic minority issues will help to ensure that both national and local government programmes include Batwa interests. This argument is supported by Prof Hasungule (March, 2018), who argues that there should be specific and explicit legislation on a minimum quota for Batwa representation in local councils, as in Burundi; include or sanction Batwa language (Lutwa) as one of the languages to use at lower local governance structures (local councils 1, 2, and 3) in those districts where Batwa are located. According to Prof Hasungule, this will improve the participation of Batwa in publlic discourses.

Finally, there isa need to consider formal and informal modes of participation through which Batwa can participate. Diana Conyers (1982:13) cautions that “the tendency for leaders and, in particular, planners, to concentrate on formal kinds of participation has proven not to be effective all the time, especially for marginalised and vulnerable communities”. This is because such tendencies focus attention on reforming political and administrative structures and on devising more effective procedures for use within these structures (systemic issues or what is termed as “software”) and fails to pay attention to the basics and contextual issues of communities affected (structural issues or termed as hardware”). But in the Ugandan context, as well as for the Batwa situation, as Epstein and Fass’ typology suggests (see chapter eight), informal and community-based modes of participation, such as formation of village groups, community focal points, and committees, as well as religious-based arrangements, may play a very important role and should not be neglected at the expense of the constitutional modes.

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10.5 Lessons learnt

The study, among others, aimed to explore the participation of Batwa in public affairs. There are some lessons and experiences learnt that contribute to enhancing body of knowledge in the ethnic minority and participation discourse. In the first instance, the study shows that 75 per cent of respondents for this study are not satisfied with the functioning of decentralisation structures that should be supporting the participation of Batwa in public affairs. Respondents noted that both local and national governance structures are supposed to facilitate participation of the marginalised communities in development and planning processes. As stipulated in 1997 Local Government Act preamble that “decentralisation structures seek to ensure democratic participation in, and control of, decision-making by the people concerned”. Decentralisation processes are intended to bridge the gap between governance structures and public (Batwa). In order to narrow the gap, leaders should have knowledge about and an understanding of Batwa they represent. However, the study learnt that leaders of the local governance structures are not informed about the issues of Batwa in general.

Furthermore, the study learnt that ethnic minority communities in Uganda have conducted street marches, demonstrations, and petitioned the government to look into their plight. For instance, in 2010, the Batwa petitioned the Parliament and the Ministry of Gender, Labour and Social Development. The study found out that inclination for the ethnic minority communities resorting to unconventional street marches and petitions as means of public engagement and participation; indicates that there is a stand-off between the Government institutions, authorities and ethnic minority communities, and therefore, not will to attend such demostrations and street matches. In relation to this, the study found that there are proximate and structural obstacles to public participation. The proximate obstacles include social impediments, such as the stereotype that results in discrimination of ethnic minorities by the dominant community and a culture of silencing the ethnic minority to the extent of assimilation (the case of Batwa), as well as domination by the local elite.

Concerning structural obstacles, the study learnt that these are prevalent in local and central government structures and systems (such as administrative rigidity) which tend to discourage grassroots participation in decision-making. For instance the decentralised

247 administrative structures have control over decision-making, planning, and allocation of resources, disseminate information and knowledge with fewer opportunities for the marginalised and vulnerable groups to engage with them. Generally people lack information and as such they are not informed of their rights and duties vis-à-vis those of their leaders. In an interview with both Batwa and Bakiga in Kabale, they noted that if the district official brings them social services like water, they thank God for it, if not, life continues. This leaves main beneficiaries (Batwa) of social services and development programmes outside the planning and implementation processes of the programmes that are meant for their benefit, but they would rather remain at the receiving end.

Another lesson learnt from this study is that poverty has immensely contributed to the marginalisation of Batwa. As Rousseau stated, “no citizen should be rich enough to buy another and none so poor to be forced to sell himself” (The Social Contract, 1762: 96). However, this reality has dawned on Batwa, and the reverse is true. The study informs that poverty affects the Batwa in different ways including being bought or silenced by non-Batwa during public programmes such as elections. It was revealed during the research; that in an election period, due to poverty, the Batwa are unable to contest for elective position due to lack of funds required for nomination. There is information that some Batwa have tried to contest for village leadership, however, the Batwa are “bought” with a few items or sometimes promised with material items to remain voters, not for their fellow Batwa but for non-Batwa who, after elections do not represent them or work on their issues. The study reveals that for those Batwa who are trying to get some income and seem to be empowered and committed to participate; other challenges curtail them from realising this. It is thus of great importance and a priority to empower Batwa economically, if they are to participate effectively in public affairs.

The study indicates that lack of genuine and empowering public participation opportunities in decision-making processes has alienated Batwa and resulted in public disengagement from available processes at the local and national levels. The public participation models suugested by this study should be tested and adopted by both local and central government of Uganda, and non-state actors – including development partners, CSOs, and community members of three districts – as an essential public participation strategy. The models, if well implemented, will empower the public to negotiate a new “social contract” as suggested by

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Jean-Jacques Rousseau (see chapter three) with relevent authorities, mainly, based on the terms suggested and accepted by Batwa. It is only when genuine and empowering public participation is entrenched in and implemented by relevant institutions that meaningful participation will be realised by Batwa. Such empowering public participation processes provide opportunities for public to “input, influence, direct, control and even own own” their development and decision-making processes.

Participation has on many occasions been taken as a political tool and as such not considered for other sectors such as economic and social spheres. Public participation is understood, interpreted and enlisted differently, depending on the context in which it is used (Theron, 2008:106; Kumar, 2002:24; Chambers, 2005:104). The study informs that effective participation goes beyond the political arena and, like other elements such as education and empowerment, participation is a conditio sine qua non for economic and social advancement, thus meaningful participation leads to community development. This is why scholars such as Arnstein (1969) and Pretty (1994) developed typologies of public participation to suit all situations including community models which can be conceptualised and put into practice. Chambers (2005:105) cautions that typologies, ladders and modes of public participation are not cast in stone, but act as a guide and can be adapted to suit the prevailing situations, contexts and needs. In the context of Batwa and other ethnic minority communities in similar situations in Uganda, in general, the study found that effective participation has helped some of those who have been identified as minorities, but commonly referred to as historically disadvantaged, such as women and people with disabilities.

10.6 Generation of new knowledge

The essence of every study of this nature is to contribute new knowledge in the academic arena. This thesis contributes to existing body of knowledge with theory and research about Batwa and their right to participation (including its normative content), as well as ethnic minority issues in general. As noted in chapters one, three, and four, one of the main obstacles to full realisation of minorities’ rights globally, and in Africa particularly, is recognition and acceptance either by the communities where they live or by their respective governments. This can be verified in both theory and practice, as in the case of Ghana,

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Gabon, Cameroon, and Uganda, who have stated categorically that they do not have the problem of minorities in their respective countries133. As a result, lack of recognition has contributed to failure to have a common agreed definition of who a minority group is, despite their presence on the African continent. As such many indigenous ethnic minorities and their communities in Africa are suffering greatly at the hands of their respective governments. Their concerns are not given attention or catered for both at the national and local governance structures. The ACHPR has argued that lack of recognition of ethnic minorities has contributed to violation of their human rights and hinders any progress in addressing their concerns. In light of this, the first knowledge this study is contributing to the ethnic minority discourse in the context of Uganda is the definition of who a minority is, which should contribute towards the recognition of ethnic minorities in Uganda and Africa at large. The developed definition looks at the pertinent characteristics and features of the Batwa, their lifestyle, systems, and beliefs, as well as challenges they experience. Thus ethnic minority community is defined as

A group of persons numerically smaller (non-dominant) than the rest of the population of a state or within a region (sub-division) or community of the state, have a long-term presence on the territory where it has lived; whose members possess ethnic characteristics different from those of the rest of the population in that region or community and they are all willing to preserve, protect, and promote their culture, customs, traditions, religion or language. The definition is derived from article 27 of ICCPR in consideration of the situation of Batwa and their context in Uganda.

The second knowledge generated in this study is the models and typology of participation that Batwa can utilise to participate in public affairs. The study reveals that both local and central government leaders have for a long time taken a complacent position that the available structures are enough to support the participation of the Batwa. This can be verified by the legal framework and the way ethnic minority issues have been managed in Uganda. Based on the interactions with district administrations of Kabale, Kanungu, and Kisoro, there is a belief that government has provided space for the Batwa to participate through decentralisation structures. And this is the position widely believed by those in

133 See 14th Session ACHPR Examination of State Report OF Ghana December 1993, Op cit.5. 250 leadership positions. This has also contributed to castigations of the Batwa as people who are not interested or deliberately do not want to participate in community programmes.

However, during my field visits to Batwa communities and attending the council meeting, the reality is that Batwa need special arrangements if they have to effectively benefit from available avenues for involvement in public affairs. During my observation session in three local council meetings in Bufundi, Muko, and Rwamucucu, in Kabale district; Kambuga and Mpungu, in Kanungu district; and Busanza, Nyakabande, and Nyakinama in Kisoro district; I clearly saw that the few Batwa who manage to attend council meetings, including budget meetings, service delivery planning meetings; are not given the same attention as their counterparts. They are given the peripheral seats and rarely given an opportunity to voice their critical issues.

The generation of these participation models is based on, among other factors, that the available opportunities have not helped the Batwa sufficiently. If these models are utilised effectively, there is no doubt that the Batwa will meaningfully participate in both community and national development programmes, but also their voices will be heard by the decision- makers and their issues given the attention they deserve.

In light of this, the study emphasises the following models that will help Batwa to engage meaningfully in both national and local arrangements, including governance, development plans, and service delivery programmes. In the first instance, the study suggests that in as far as the elections in Uganda provides the opportunity for people to participate in different forums, Batwa are generally left out, as such the study cautions that there is a need to urgently gazette special seats and invoke the normative content of affirmative action to benefit the Batwa. This typology has not been used in Uganda for ethnic minority communities, and using the Burundi and Ethiopia best practice, where it has worked, Batwa in Uganda would be assisted to participate.

Furthermore, the study suggests a consultation approach through which Batwa can participate in public affairs. The consultation should be a two-way relationship in which ethnic minorities can participate by providing feedback to government structures. This enables free flow of information from one level to the other thus informing decision-making processes but also ensures owning of such decisions by the people concerned. The study

251 suggests liaison structures and focal points with the Batwa communities through which consultations can be done. Apparently, this is lacking, and as such there is no effective consultation between government structures and the Batwa on issues of governance and development.

The study further avers that communal associations provide good opportunities through which marginalised communities, such as the Batwa, can access decision-making structures and influence decisions thereafter. The associations can take different forms including advisory bodies, community-based association, or an association based on gender – for men or women – to give opportunities for the leaders of the association to engage with relevant government structures. Through these engagements, the association will eventually find itself not only being consulted, but also setting the agenda on issues pertinent to the community for favourable and progressive laws.

In line with participation models, the other knowledge generated by this study is the building blocks that facilitate the participation in public affairs for vulnerable and marginalised communities, such as the Batwa. As Rousseau posited, supported by scholars such as Oakley (1991:17) and Burkey (1993:50), participation leades to empowerment of people and gain of confidence in their own knowledge and skills, and to participate more and increase ability to identify problems and find solutions in order to make improvements in the issues that affect them. This implies that by participating in public affairs, people perfect their skills and knowledge from their experiences and eventually become more effective and leaders of their own processes and destinations. To realise this, the study suggests two building blocks and bridging approaches – capacity-building and empowerment – that must be used to ensure that Batwa effectively participate in public affairs. As earlier noted, many people, including government officials, seem to believe that Batwa do not want to participate in public affairs, not realising that they need capacity and some level of empowerment if participation is to be meaningful for them.

10.6.1 Capacity-building

Swanepoel and De Beer (2011:26) assert that “capacity-building means the reinforcement of personal and institutional abilities to effectively take on tasks”. For De Beer (1997:21), capacity-building is based on the “principle that people are able to control and determine 252 their processes”. This is possible if capacity-building opportunities provide learning experiences and collaboration – planning together and learning from each other’s experiences – between authorities and citizens. In this case, capacity-building will provide information and knowledge, “social capital”, and material required for meaningful participation in decision-making processes. Second, capacity-building helps in addressing imbalances that may exist within a community, either created by historical contexts or systemic. This is doable since it puts to use opportunities and resoureces to vulnerable Batwa, who would otherwise not get a chance to access them.

The emphasis given to capacity-building as an approach to facilitate effective participation of Batwa in public affairs is built on the notion of “capabilities”, as advanced by Sen and Nussbaum, as earlier discussed in chapters one, three, and five. The notion proposes that “social arrangements should be primarily evaluated according to the extent of freedom and ability people have to promote or achieve functions they value” (Alkire, 2008: 6). Both Sen and Nussbaum agree that if people are to live “valuable” and productive lives they should be able to to influence decision-making processes that are key in determining their destiny. Therefore, for Sen and Nussbaum, specific and adequate opportunities should be availed to citzens to facilitate their participation and involvement in decision making. In light of this, for the Batwa to effectively engage with, and participate in, public affairs, specific and relevant “capabilities” – based on the context and needs – (substantive equality or capability of justice) should be prioritised to address their needs and incorporated into policies and work plans for easy and effective implementation.

10.6.2 Empowerment

The other “building block” pertinent for participation in public affairs is empowerment. Swanepoel and De Beer (2006:30) suggest that “empowerment is a mixture between the right to make decisions and the ability to make decisions”. Theron (2009: 124) argues that “”issues of public participation and empowerment in public affairs, and particularly in planning process for service delivery, are essential to sustainable development of the communities concerned. Empowerment provides opportunities and capabilities to the people concerned and enbales them to articulate their issues, including transforming such issues into actions and outcomes. The ability of people to participate in public affairs is

253 more facilitated by “social capital” that provides the basis for collective action to address their common concerns (World Bank, 2004: 3).

In light of this, in view of establishing a base for Batwa’s sustainable development, Batwa must be empowered, have ability, and legitimacy to determine their own development trajectory. This is only possible if they are empowered. As such, empowerment in this case will increase Batwa’s personal and institutional (of their organisation) capacities in order to mobilise and manage processes that will help them to access decision-making structures, and implementation of such decisions. Community empowerment, therefore, goes beyond involvememt or participation of communities in public affairs; it implies the ability of the community to take ownership of the processes and engage in actions that explicitly seek social, economic, and political changes. In Batwa’s context, participation will address social, economic, and political factors that support their rights and seek to get solutions for the current challenges.

This argument falls squarely in what Rousseau calls the educative and developmental role of effective participation, as discussed in chapter three. For Rousseau, as well as other philosophers such as Emile and Bakunin, the more the person participates in issues of their concern, the more they are empowered and educated in doing so perfectly. In light of this, therefore, marginalised citizens such as Batwa need empowerment through participation at different levels.

In an endeavour to provide knowledge to public participation discourse, the study argues that, the suggested models for participation will not yield any meaningful result if the two building blocks are not given attention, in Batwa’s context. It is important that Batwa have the means to assume the ability and power to influence and own governance and development interventions together with decision-making processes.

The argument for capacity-building and empowerment of Batwa is further supported by scholars including Prof Akokpari, Prof Everisto Benyera, and Prof Tim Murithi, as well as community leaders in Kabale, Kanungu and Kisoro. For instance, while responding to this study, Prof Akokpari (March, 2018) observed that while authorities may be willing to provide 254 opportunities for vulnerable communities, such as ethnic minorities, such communities may lack necessary skills and competency to utilise the available routes for participation in public affairs. For him, as well as Prof Benyera, empowering and building the capacity of Batwa is a priority that should be taken seriously by any actor aiming at changing the status of Batwa. Prof Everisto noted, “an empowered ethnic minority community such as Batwa, will engage and hold authorities accountable and their issues will be listened to”. According to Prof Akokpari, the same view that is shared by Pro. Everisto, Prof Hasungure, and Dr Zambara; if these communities are not empowered enough, as the tendency is, they will be manipulated by their leaders. This is already happening as reported by Kedress ( chapter seven) noting that Batwa are given alcohol as a bribe to participate in elections by voting and supporting campaigns of people from dominant communities. Community leaders Tibemanya, Mutambuzi, Kato, and Tumuheirwe (January 2018) in a focused group interview noted that for Batwa to benefit from the national programmes they need empowerment in terms of education and vocational training.

10.7. Public Participation Model for Batwa (Quadrant model)

Model developed by the author to facilitate Batwa’s participation in public affairs This “quadrant” model - consult, inform, involve, and feedback should be followed to facilitate and enable participation of the Batwa in public participation. The model is developed based

255 on findings of this study. There is enough evidence to suggest that these four stages are currently missing, (inadequately implemented or selectively applied) in the whole continuum of participation by Batwa. As indicated by arrows on top, each stage should lead to and inform next. The quadrant approach responds to the gap raised by the two theoretical studies of this study – minority democracy theory and participatory democracy theory – on whether ethnic minorities must be represented or need to actively and directly be involved. In this quadrant both methods are catered for. This is because Batwa are not yet “strong” enough, in terms of “capability” to represent themselves, but also stakeholders cannto hide under that to ignore direct interact with the Batwa. For example, during consultation, information sharing, and feedback sessions, the aim should be to reach as far as possible to all the communities, while during involvement, few Batwa represenattives and other community leaders can be upfront leading the process. Thus a model that can merge two to ensure comprehensive and effective participation.

In terms of consultations, this should be a process not an action or event. Stakeholders, especially local and national government leaders must ensure that Batwa are consulted in these processes throughout – formulation, execution, and evaluation. This bottom up input and all-inclusive stage will help planners and leaders to have adequate information on the needs and aspirations of the Batwa. Consultations should be carried out through community visits, community hearings, research and surveys. It is important to highlight that, in as far as Batwa community is marginalised (as a group), and there are specific categories of people with Batwa that are “doubly” marginalised. These include women, elderly, and people with disability. It is therefore very crucial that in consultation processes, all these categories are considered and their voices are heard. In this approach, I argue that consultation should be taken as a means to achieve a goal and not as a goal (end) in itself. The goal is to enhance effective participation of the Batwa in public affairs. Consultation with Batwa should be conducted in collaboration with their community-based organisation (United Organisation for Batwa Development in Uganda).

In relation to giving information, the Batwa need to be informed about the processes and issues they are supposed to be participating in. As discussed in chapters three and four, Amartya Sen and Jean-Jacques Rousseau noted, effective participation by community depends on the level of empowerment and knowledge people have on issues they should be

256 involved in. Information giving stage should aim to giving Batwa suitable opportunities to enable them to participate equally. This can be done through sensitisation and awareness sessions, training, and education programmes. Information giving and sharing should include providing Batwa-friendly information about key legal provisions pertinent to their plight.

Another crucial stage in this participation model is involvement of the Batwa. While consultations and information sharing focus on community, the two processes are driven by stakeholders and not the Batwa themselves. During involvement stage, the Batwa, who are already informed and empowered are given opportunities to lead on some programmes and processes, influence on decisions being considered and taken. If this stage is well managed, Batwa will own processes and commit to implementation of any decisions especially those that seek to enhance their participation. Involvement of the Batwa should aim at providing opportunity to dialogue and interact with leaders and other people through community hearing, dialogues, meetings, and research.

Finally, when the first three stages are successfully managed, the Batwa should be given feedback. The Batwa need feedback from the engagements conducted and decision taken. This also will empower them and enhance their commitment towards the whole process. Feedback can at the same time act as a link to all the first three stages, in a sense that during feedback sessions, the Batwa are further consulted, informed, and involved. This explains the bottom arrow that comes from “feedback” block through to “consult”. Feedback sessions should be conducted through follow up visits to communities, monitoring and evaluation sessions, and specific communication strategy that should be put in place to constantly interact with Batwa.

10.8 Generalisations

The research findings of this study are applicable and can be generalised to all ethnic minority communities in Uganda, such as Benet, whose population is about 20000 people, living in eastern part of Uganda, in Mt Elgon region; and Ik, numbering about 1600 people living on the edge of the Karamoja region along Uganda-Kenya border. Other ethnic communities in Africa include the Khoisan community in South Africa, Basarwa in Botswana, San in Namibia, Baka and Mbororo of Cameroon, Hadzabe in Tanzania, San in Angola, Elimoro in Kenya, and Baka in Gabon. Furthermore, the findings and more so the 257 recommendations of this study can be used by those countries that share a similar system of decentralised type of governance, which has limited opportunities for vulnerable and marginalised people to get involved and participate effectively in such structures. It is important to underscore that, although study findings can be generalised, one needs to appreciate the context of each community in a sense that while the challenges may be similar their management and solutions should be tailored and aligned towards the particular needs of the Batwa community. For instance, study recommendations and participation models should be used to also manage the situations of ethnic groups such as Batwa.

10.9 Recommendations to the government of Uganda

Findings in this study reveal that building on the positive steps already taken by the Ugandan government with institutions working on Batwa issues, particularly human rights situation, such as the Uganda Human Rights Commission and Equal Opportunities Commission, there is need to consolidate national laws and policies on ethnic minorities, including useful utilisation of the provision of affirmative action in both the national constitution and 1997 Local Government Act. There is also a need to strengthen capacity of the institutions with mandates on Batwa issues – political, social, and economic – to enable them prioritise ethnic minorities and give special attention to the rights of minorities, including implementing provisions of existing legal frameworks.

1. Government of Uganda should fully operationalise and implement all the ratified and domesticated relevant international regulations and laws to enhance the promotion and protection of Batwa Rights.

Most of these instruments elucidate and facilitate the understanding of the definition of ethnic minorities to increase their recognition in relation to the systemic and structural injustices and entrenched marginalisation and discrimination they have suffered for about three decades. As Thomas Jefferson put it “the two enemies of the people are criminals and government, so let us tie the second with the chains of the Constitution, so the second will not become the legalized version of the first". To this end therefore, the study recommends that the Ugandan government should review its legal regimes to cater for issues of ethnic minorities robustly. This was also recommended by two former senior officers of the UN:

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Ambassador James Jonah, former UN Under-Secretary General for Political Affairs and Ambassador Deng M Francis, former Representative of the UN Secretary-General on Internally Displaced Persons and South Sudan ambassador to the UN, during interviews for this study. Prof Hashungule also suggested that the Ugandan government should proactively enlist Batwa when driving public programmes; ensure that Batwa are clearly and explicitly recognised in the national policy implementation frameworks (such as social security, economic, and affirmative action policies) as an indigenous ethnic minority; as well as ensure that society at large includes Batwa in their programmes.

2. Government should explicitly recognise Batwa in policy-formulation and implementation.

The participation of Batwa in public affairs can be effectively realised if the government explicitly recognise them, plan, and implement with them in all progrmmes that benefit their well-being. It has to be noted that the 1995 Ugandan constitution recognise minority rights (though vaguely) and worth mentioning is the inference in the Bill of Rights section in the constitution. What is lacking are express provisions to that effect as well as parameters to define who a minority is, in the context of Uganda. In light of this, in a way of filling this gap, this study proposes and recommends a working definition that should guide the government and relevant actors to effectivel y work on the issues of ethnic minorities, particularly Batwa. The study defines ethnic minority as:

A community numerically smaller (non-dominant) than the rest of the population of a specific location (a village or region) in a state, who have a long-term presence in this region; whose members have ethnic characteristics different from those of the rest of the population in that location and they are all willing to claim, preserve, protect, and promote their culture, customs, traditions, or language.

3. Government of Uganda should enhance the role of local government structures to effectively manage Batwa issues in their respective districts.

The study further found that local government system plays a specific and vital role in ensuring that Batwa’s participation rights are realised. Therefore, recommendations to enhance the role of local governments to plan for, and protect the rights of, ethnic minorities is one suggestion that this study sends to all actors, particularly to government. While there are specific programmes, in some areas, to address development concerns of 259 ethnic minorities, such as the Karamoja Integrated Disarmament and Development Programme (KIDDP) in Karamoja, this is not replicated in other areas where ethnic minority communities are located. As a result, ethnic minorities have largely remained on the periphery at the expense of other dominant communities around them. To local government, as mandated by 1997 Local Government Act section 39, as key duty bearer for the people in the participation in local governance programmes, the study recommends that specific programmes that facilitate the effective participation in public affairs by ethnic minorities should be developed and put in place at all levels of governance structures. While responding to this study, Prof Akokpari (March, 2018) recommended that “decentralisation should be real not rhetoric, where decision should be made and implemented, where citizens are able to demand service delivery of their leaders and hold accountable authorities”.

4. Government of Uganda should expeditiously and urgently look into compasation of Batwa for their expulsion and the loss of their territory.

The study reveals that one of the major causes of the current plight of Batwa is poverty, as an effect of their eviction form their land coupled with lack of resources and capital to engage in income generating activities. In Uganda, with about 75 per cent of Ugandans geting their sustanance from agriculture - being a “back-bone” of the economy - land therefore becomes a major factor of production in the lives of Ugandan, especially those living in rural areas (my emphasis goes to Batwa). The study recommends that restitution and compensation for lands owed to Batwa in view of addressing the historical injustices created should be implemented expeditiously. Furthermore, the government should acknowledge Batwa as a distinct population group with unique situation (as discussed in chapter four, section 4.5) and prioritise their needs by designing targeted programmes to improve their conditions, including meaningful participation approaches in policy-making processes – formulation and implementation.

5. Government of Uganda should regularly get up-to-date information on situation of minority communities, particularly Batwa, for effective planning and monitoring their meaningful participation in public affairs.

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One of the challenges I experienced in the process of this study was to get the statistical data from responsible government institutions. There is no current data regarding Batwa, including their present location and/or settlement. As such, government of Uganda has to establish specific mechanisms or institutional procedures to conduct a baseline survey aiming at profiling Batwa in particular, and to all minority groups in general. This data should be published regularly in an easily accessible format, and discussed in public meetings with all actors and stakeholders, including CSOs and development partners. The collection of data should happen in close cooperation and consultation with minorities. Wherever possible, representatives of Batwa should be involved throughout the process of data collection. Furthermore Ugandan govenement should monitor, on a regular basis, the progress achieved (through established institutions) towards increasing effective participation of ethnic minority (Batwa) in public affairs.

6. National human rights institutions (UHRC and EOC) should ensure that ethnic minority representatives are given a space in their structures to communicate their views and challenges.

These institutions need to establish strong mechanisms, within their structures, that are specifically dedicated to managing minority issues, and develop outreach programmes that will be engaged in awareness and capacity-building, especially in civic education to facilitate effective public participation of ethnic minorities. They should ensure that persons belonging to ethnic minorities are both involved in and have access to all their programmes, including in complaint mechanisms, and ensure that human rights materials are available in the ethnic minority languages.

10.10 Recommendations for non-state actors

1. Capacity-building initiatives aimed at equiping Batwa with skills and knowledge to enable them participate effectively in public affairs should be well coordinated and implemented.

The Batwa’s capacity to participate meaningfully in public affairs is limited and thus an urgent need to build the capacity and empower the Batwa. The study recommends that development agencies working with the Batwa should focus on long-term programmes seeking to empower Batwa, aiming to facilitate Batwa to participate in decision-making

261 processes. Programmes that should be implemented to empowere and enhance the capacity of Batwa include, adult literacy; community mobilisation and sensitisation on collaborative national park management”134; training and support for Batwa communities; and prompt establishment of the Batwa Representation Committees that were meant to be created with funding and assistance from the Conservation Trust (from the forests where they were evicted).

2. Civil society actors should streamline and prioritise activities focused on Batwa to synagestically and coherently contribute to Batwa’s quest for participation in public affairs.

The role of civil society organisations cannot be underestimated in the struggle to protect minority rights, and therefore they should continue playing their respective roles in removing barriers that prevent effective public participation of Batwa. Civic engagements including, through capacity-building and training activities, to facilitate effective public participation of ethnic minorities should be strongly considered and prioritised. They need to robustly establish civic education programmes that specifically target Batwa and non-Batwa (those communities hosting Batwa), conduct civic awareness seesions with local and national leaders, in view of empowering them to ably use available policy options and utilise citizens to promote minority rights. CSOs need to coordinate and network with each other more effectively, share best-practices and lessons, leverage resources, and avoid replication of and competition for projects. In an interview with Ms Justine Nabirye (April, 2017) working with Uganda Human Rights Network noted that “CSOs need develop more effective issue- based coalitions, and they should involve members of the majority in training to strengthen their support for the participation of minorities”.

3. Development partners should prioritise Batwa issues in their respective policy development guidelines and programmes.

Furthermore, development agencies play a key role in contributing to developmental strategies of the country. In light of this, they should work closely with government of Uganda in addressing root causes of Batwa plight and in empowering Batwa. Development partner’s strategies and programmes (particularly on development and human rights) on Uganda

134 The joint management of the national park was agreed on as an initiative to support Batwa for losing their lands to these national parks. This applies to the protected areas around Kabale, Kisoro, and Kanungu. 262 need should explicitly prioritise minority issues and minority rights; and consider to effectively include programmes on minority issues in all strategies and programmes targeted at Uganda. To this end, development agencies should focus on enabling full and effective participation of the Batwa (as well as representatives from other minority groups) in public affairs. This may may be done directly by engaging minority communities or their organisations in their national programmes, in view of empowering them.

4. Focused and specific funding and related support should be initiated to facilitate the work aimed at enabling Batwa realise effective public participation rights.

Development partners should increase funding portifolios and technical support given to organisations belonging to minority groups, such as UOBDU (for Batwa) and also to encourage ethnic minorities to start similar associations as means for quicker and efficient coordination and consultation. Civil society groups and local NGOs working with communities, and play a major role in assisting Batwa to overcome their plight, need to be supported in their work, particularly by development partners. In the same sense, development partners should be encouraged to establish advisory structures and mechanisms comprising representatives of ethnic minority communities, community leadrs, and dominant groups in Kabale, Kisoro, and Kanungu districts that support development partners on policy issues affecting the communities of those ethnic minority groups.

5. Effective and rigourous consultations should be conducted with Batwa during project assessments affecting Batwa directly or indirectly.

Development agencies are recommended to assess the impact of their proposed and implemented programmes, especially those that are excuted in areas occupied by ethnic minority (Batwa) communities. Development agencies, as “development partners”, should help in safeguarding well-intentioned projects but end up being harmful due to bad practises used by the government of Uganda for increasing the participation of ethnic minorities in the mainstream economy. Development partners (particularly World Bank) should use their good offices to urge Ugandan government to fulfil its commitments and obligations towards effective participation of Batwa in decision-making processes and also on identifying solutions to their current challenges.

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6. Community awareness programmes (targeting non-Batwa) seeking to encourage social cohesion and inclusion of vulnerable people should be conducted.

Non-Batwa communities (Bakiga, Bahororo, Bafumbira, and Banyankore) should be encouraged, through sensitisation, to accept Batwa, especially in matters of public interest, including social, economic, and political issues. Communities should be sensitised about discrimination tendencies and their negative impacts, and the mutual value of a coherent and equal community. Dorminat communities (non-Batwa) should be assisted, alongside Batwacommunities, as they also experience social and economic challenges such as poverty. Failure to bring them on board and appreciate Batwa issues, may result in resentment and increased marginalisation of Batwa.

Last but not least, there is a dearth of literature on Batwa in the academic arena. There is a need to provide a centre stage academic discursive and deliberations about Batwa and their respcetive human rights and governance issues. It must be underscored that the role of academic interrogation in such an issue has a trickle-down effect to various actors including policymakers, social workers, and individual actors; and provides a lens through which the general outlook about Batwa issues can be understood.

10.11 Conclusion

The study highlights the critical issues of participation by ethnic minorities, in particular, Uganda Batwa in districts of Kanungu, Kabale, and Kisoro. Based on the foregoing discussions and study findings from the respondents, the study concludes that the importance of public participation by citizens cannot and should not be underestimated in development strategies of any society. This is also based on the practice and fact that it is an essential component of good and accountable governance and for sustainable development. The study further concludes that development being a process of enhancing people’s capacity to engage in their respective affairs, must involve people concerned in those processes that affect their lives (UNDP, 2016: 156). Effective participation that aims to empower people, is part of the process and means to sustainable development. To this effect, all state actors in Uganda must ensure that every citizen, particularly the marginalised ethnic minorities (Batwa) exercise their basic rights of taking part in decisions that affect their lives.

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In this age of multiculturalism and with the ethnicity dynamics in Africa and specifically in Uganda, the issue of ethnic minorities is a topical subject particularly in the spheres of participation in public affairs, but more so in the broader issues of governance discourse. Batwa’s effective participation remains critical and a key initiative to promote and protect their rights, and being a step forward to their recognition not only in Uganda but also on the continent and the world. In consideration of varying hardships – marginalisation, exclusion, and inhumane treatment – they go through, and tensions and conflicts that have raged in some African states, as a result of marginalisation and exclusion of ethnic minorities, in countries such as Burundi, Chad, the DRC, Mali, Niger, Nigeria, Rwanda, Uganda, South Africa, Sudan (Venkatasawmy, 2015: 28); the issue of effective participation of ethnic minorities should be prioritised, legal frameworks strengthened, and human rights systems and architectures broadened, as well as their mandates supported by all stakeholders. The few available mechanisms have suffered no-implementation “sickness” resulting in many good policies on the continent suffering from the same, as in the case of Uganda with its robust 1997 Local Government Act, 2000 Equal Opportunities Act, among others.

Definitively, this thesis argues that Ugandan government has neglected its tripartite obligation to “respect, protect and fulfil” rights of Batwa and in particular, to effective participation in public affairs, including in decision-making processes and structures, and in developmental programmes both at national and local levels. Furthermore, the thesis argues that specific programmes to empower and build the capacity of the Batwa must be prioritised if they are to effectively participate in public affairs. Finally, the study concludes that although pervasive in Africa and Uganda in this case, protection of ethnic minority issues, has a universal ring to it and ethnic minorities wherever they are still face challenges including recognition, discrimination, marginalisation which all have a direct bearing on their effective participation in public affairs.

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Uganda Land Alliance Ltd. Vs Uganda Wildlife Authority, No. 0001 (2004)

Human rights instruments

African Youth Charter, 2006. Convention on the Rights of the Child, 1989.

Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities, 1992.

Equal Opportunities Act 2007 Human Rights Committee, General Comment 23, Article 27 (fifth Session, 1994) UN Doc. HRI/GEN/1/Rev.1 at 38 (1994)

Human Rights Committee, General Comment 25, paragraph 6 of the Committee on Civil and Political Rights, 1996.

ILO Convention No. 169 concerning Indigenous and Tribal Peoples in Independent Countries 72 ILO Official Bull. 59, 1989.

International Covenant on Civil and Political Rights (1966)

Lund Recommendations on the Effective Participation of National Minorities in Public life, 1999.

The African Charter on the Rights and Welfare of the Child, 1990. The International Covenant on the Elimination of Racial Discrimination, 1969

The Universal Declaration of Human Rights, 1948.

Uganda Constitution of 1995 Vienna Declaration and Programme of Action, 1993.

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Annexes

Annex 1: Leter of introduction

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Annex 2: Acceptance Letter to participate in research (Ethics Letter)

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Annex 3: Data Collection Tools

a. Data collections for civil society actors and government employees (interviews and questionaires) Name…………………………….. Gender………………………………………… Organisation ……………………………………………………….. Title/Position……………………………………… Contacts: Phone…...... Email:………………………………

1. What aspect of your work relate to Batwa issues? 2. What are the 5 common challenges faced by the Batwa in your community? 3. In your opinion, do you think Batwa are treated as other dominant groups in terms of participation in communityand public affairs? 4. What social services/programmes are available and accessible to the Batwa in your community of work? Who provides these services? 5. How are Batwa involved in the planning and implementation of these services/programmes? 6. The constitution talks of the affirmative action for the marginalised communities. Do you think Batwa have benefited from this? If not why? If yes how? 7. If your answer to question 6 is no, what should be done to effectively utilise the affirmative action provisions? 8. Do you think Batwa are effectively engaged and involved in public affairs (such as local council/government programmes) that concern them? If yes, give examples and if no why do you think they are not? 9. What are the factors responsible for the effective participation of Batwa in public affairs in in your community? 10. What is the attitude and approach of various levels of government structures regarding effective participation of Batwa in public affairs? 11. What are the perceptions of Batwa regarding the right to effective participation in public affairs? 12. What, in your opinion, should be the major roles of different stakeholders (NGOs, development partners, government, etc…) in this issue?

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13. What do you think are the contributions the government has done towards the implementation and exercising the right to participation? 14. What is the impact of either participation or non-participation in public affairs of Batwa on their integral development? 15. What can you recommend as a solution towards enhancement of right to participation of Batwa?

b. Interview Guide for focused group discussions and key informants. Guide for Batwa and local dominant communities 1. Do you believe Batwa are discriminated against? 2. What are the causes of such discrimination? 3. What types of discrimination are common in your community against Batwa? 4. According to you where do you think this discrimination happens mostly? 5. What are the attitudes of the people towards discrimination of Batwa? 6. Are Batwa participating in public issues (government programmes, local councils, etc)? 7. If no, what are the reasons that have kept Batwa out of participation in public affairs? 8. What are the consequences of discrimination on Batwa? 9. What strategies have been used to stop such discrimination? 10. What has the government done to stop this discrimination? 11. How has the government helped Batwa to participate in public affairs? 12. Are there other actors that have helped in the issues of Batwa apart from the government?

For LC 1 and 2 1. Do you think Batwa are a marginalised group? Why? 2. Are there programmes where Batwa are involved? 3. If yes, who initiates these programmes? 4. Do you think Twa people are involved in public issues that concern them? 5. What is the level of participation of Batwa in local councils?

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6. What do you think are the critical rights of Twa people that are not respected in your area? 7. Who do you think is the most violator of these rights? 8. With regard to implementation and exercising the right to participation of Batwa, what mechanisms are necessary for the state to better enhance this right? 9. What, in your opinion, has the government done towards the implementation and exercising the right to participation of Batwa? 10. What can you recommend as a solution towards enhancement of right to participation of Batwa? 11. What is your general take on the situation/problems of Batwa in your community?

For LC 3 and 5 (politicians and technocrats) 1. What are the most relevant concerns of Batwa in your community? 2. Do you think Batwa are discriminated in the communities they live? 3. If so, what would be the causes of such discrimination? 4. What can be done to address problems linked to discrimination of Batwa? 5. What is the status of Batwa in participating in public issues? 6. How are they mobilized to participate in local council programmes? 7. Do you think there are structures in place to promote and protect the rights of Batwa? 8. What do you think about the participation of Batwa in public issues? 9. Are there mechanisms for the effective participation of Batwa in your community? 10. What is the role of local councils in addressing the participation issues of Batwa in public issues? 11. What is the role of central government in addressing the participation issues of Batwa in public issues? 12. What is your general take on the situation/problems of Batwa in your community?

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