MUST READ:
When a neo-liberal devilish Institution disguises as an angel: World Bank cuts off all funding to Uganda over Anti-homosexuality law: Our goal is to protect sexual and gender minorities from discrimination and exclusion in the projects we finance
https://watchmanafrica.blogspot.com/2023/08/when-neo-liberal-devilish-institution.html
World Bank shouldn’t pick & choose which rights to vigorously defend, and ignore
Written by DR BUSINGYE KABUMBA
On August
8, 2023, the World Bank released a statement to the effect that Uganda’s
Anti-Homosexuality Act of 2023 (the AHA) “fundamentally contradict[ed]”
the Bank’s values.
It went on to state that no new public
financing to Uganda would be presented to the Bank’s Executive Board of
Directors until Uganda effectively demonstrated that the rights of
sexual and gender minorities would be protected in the implementation of
World Bank-financed projects within the country.
I think the
World Bank’s approach was ill-advised, for reasons I will enumerate a
little later. At the same time, I have absolutely no doubt in my mind
that the parliament and president were wrong to enact the AHA. I do not
think it would be very good manners for me to enumerate in detail the
challenges of that Act, since I happen to be one of a number of persons
who are currently challenging the law before the Constitutional Court of
Uganda.
I do not refrain in this regard because
it is illegal to do so as is often suggested in some legal quarters –
based on the idea of the sub judice rule. The Latin phrase literally
means ‘under a judge’, and broadly refers to the idea that once a matter
has been placed before the court, it generally should not be discussed
outside the precincts of that forum.
I do not think that this common law rule
is consistent with the 1995 Constitution, particularly Article 126 (1)
thereof, read together with the logic of a consistent thread of Ugandan
jurisprudence in such cases as Osotraco v Attorney General and Kabandize
and Others v Kampala Capital City Authority on the democratic and
public foundations of judicial power.
That said, suffice to very briefly note
that I think the AHA 2023 offends several substantive provisions of the
Constitution, including the rights to privacy, dignity, work, access to
justice, expression, assembly and others. I also think it offends the
fundamental provision, under Article 7 of the Constitution, which
requires the maintenance of a secular state (although this particular
issue is not one presented in any of the petitions challenging the law).
Secondly, as a procedural (and in some
ways also substantive matter), the law was passed in an inordinately
rushed, sloppy, frenzied and haphazard manner, which offended all
democratic sensibilities and all reasonable norms of public
participation.
Finally, from a logical and policy
perspective, the law was unnecessary given that: (a) same-sex relations
were already prohibited under Section 145 of the Penal Code Act, Cap
120; and (b) its main purported objective, the protection of children,
was one already met by a myriad of statutory laws, including the
Children Act (as amended in 2016), the Penal Code Act (as amended in
2007) and others.
It was, and remains, quite simply, a bad
law, passed in the heat of passion, without sober reflection and good
judgment. In the spirit of good manners, I will leave it at that.
That said, the World Bank’s position is
itself problematic. Obviously, although initially established in 1944 to
support economic recovery following the end of the Second World War, it
has since had to contend with the nexus between its work and broader
social concerns, including human rights.
Article 1 of the Bank’s Articles of
Agreement (as amended) stipulates a number of primarily economic
purposes, and mandates that the Bank ‘be guided in all its decisions’ by
those purposes. This is reaffirmed in Article 4 (10) which prohibits
the Bank and its officers from ‘interfer[ing] in the political affairs’
of its members or being ‘influenced in their decisions by the political
character’ of a member.
In terms of the same provision, ‘[o]nly
economic considerations shall be relevant to their decisions, and these
considerations shall be weighed impartially in order to achieve the
purposes stated in Article 1’. Evidently, any human rights mandate
claimed by the Bank must be one carefully, strategically and
incrementally claimed and asserted.
One can contrast, in this case, the
difference between the East African Court of Justice (EACJ), which has
been able to claim a kind of ‘human rights-related’ jurisdiction using
the rule of law and good governance provisions in the Treaty for the
Establishment of the East African Community (EAC Treaty), following its
decision in James Katabazi and 21 Others v Secretary General of the East
African Community and Another, on the one hand; with the Southern
African Development Community Tribunal (SADC Tribunal)’s gamble with the
decision in Mike Campbell (Pvt) Ltd and Others v Republic of Zimbabwe,
on the other.
The EACJ’s more considered, and
politically savvy, approach has ensured its ability to continue being
able to protect critical human rights as part of the EAC integration
process (even in the absence of a specific human rights mandate).
For its part, the decision in Mike
Campbell effectively marked the end of the SADC Tribunal – it was
disbanded by the Summit of the Heads of State in 2012 and remains
non-operational to date.
There were of course, certain political
dynamics at play in the respective contexts, which might explain the
differing fortunes of the two judicial bodies. Nonetheless, it seems to
me that the Bank would be well-advised to examine the the incremental
and studied approach of the EACJ, as a case study in the assertion of a
human rights mandate within economic formations and relations.
This is especially so given the Bank’s
own chequered history with regard to respect for human rights issues. On
the one hand, it has historically been reticent in terms of
incorporating human rights concerns into its operations, including
infamously supporting the apartheid government in South Africa,
notwithstanding the United Nations General Assembly Resolutions
prohibiting such assistance, until it eventually capitulated to
international pressure and stopped this lending in
1966; on the
other, almost right from its inception, the Bank’s work has had direct
and positive relevance and impact in terms of the realization of a host
of rights across the world, including the rights to health, education,
work, social security – and indeed, ultimately, life itself.
The Bank can build upon its work in the
area of socio-economic rights and group rights, and can slowly improve
its record with regard to civil and political rights. For the latter to
be effective and sustainable, however, it should have a level of
consistency sufficient to build legitimacy, acceptance and respect.
It is precisely with regard to this
aspect – consistency – that the Bank’s position fails. Ugandans can
justifiably question the absence of similar statements and interventions
from the World Bank when nine people were killed during the ‘walk to
work’ protests in 2011; or when over 100 people were killed by security
forces in Kasese in November 2016; or with regard to the hundreds of
persons routinely held and tortured in so-called ‘safe houses’; or when
that most basic democratic right – the right to free and fair elections –
was egregiously violated in 1996, 2001, 2006, 2011, 2016 and, most
recently, 2021.
The August 8 position seems to suggest
that some Ugandans’ rights are more important than those of others. This
is wrong, of course. It might also breed resentment against both the
World Bank and the community it seeks to protect.
There is, however, another reason why
the World Bank’s approach is deeply problematic. It unhelpfully feeds
into, and gives some credence to, the common narrative around the
‘foreign’ nature of the rights of sexual and gender minorities – that
these rights are sourced from elsewhere and that any persons who
articulate and defend any such rights are funded or supported by
outsiders.
Indeed, these narratives are some of the
tropes, which found their way into the AHA, in terms of language around
‘promotion’ and ‘normalization’ of same-sex relations (Section 11 of
the Act). In this way also, the World Bank position might ultimately
harm the very community it ostensibly defends.
Certainly, the World Bank can, and
should, be responsive to human rights concerns in its work around the
world. However, if it is to be effective in this effort – both from a
legal and strategic perspective – it is important that its work be
incremental and consistent.
In order to claim a human rights
competence, it should demonstrate an understanding and appreciation of
basic human rights principles, including the notion of human rights as
being indivisible, interdependent and interrelated (as noted in the
Vienna Declaration and Programme of Action of 1993).
It should also demonstrate a real
commitment to the philosophical foundations of human rights law and
practice – which might coincide, with but are not always consistent with
the values, assumptions and motivations which underpin other kinds of
law (including international economic law and international financial
law).
As Professor Philip Alston warned in his
2002 article: ‘Resisting the merger and acquisition of human rights by
trade law’, the assertion of human rights competence by non-traditional
actors (such as the World Bank in this case), is not always benign.
If the World Bank wants to ‘do human
rights’, it should demonstrate an ability – and willingness – to do so
well, and seriously. In this regard, it can begin by not appearing to
pick and choose which rights to vigorously defend and which ones to
ignore.
That is not the way human rights theory and practice work.
The writer is senior lecturer and
acting director of the Human Rights and Peace Centre at the School of
Law, Makerere University, where he teaches Constitutional Law and Legal
Philosophy
1966; on the other, almost right from its inception, the Bank’s work has had direct and positive relevance and impact in terms of the realization of a host of rights across the world, including the rights to health, education, work, social security – and indeed, ultimately, life itself.
Hidden dark side of World Bank loans
https://observer.ug/news/headlines/78871-hidden-dark-side-of-world-bank-loans
