Affirmative Action as a Remedy for Dispossession: The Judgment of the Ugandan Constitutional Court

On 19 August 2021, the Constitutional Court of Uganda handed down an interesting judgment in United Organisation for Batwa Development in Uganda v The Attorney-General. The case concerned the rights of the Batwa, an indigenous community in South-West Uganda. The Petitioners argued that over a long period of time, spanning many decades, the Batwa had been systematically dispossessed of their lands, first by the colonial government, and then by the actions of the government of Uganda. This constituted a breach of their constitutional rights under the 1995 Constitution of Uganda (such as the rights to life, equality, and a set of social, economic and cultural rights), and triggered a range of remedies, ranging from financial compensation to recognition of the right to access traditional forest land.

There are two features of this judgment that repay careful study. The first is the extent of evidence that the Petitioners brought on record to demonstrate the historical ties of the Batwa community with the land in question. This evidence took the form of individual testimonies, combined with expert analysis submitted by way of affidavit (see pgs 20 – 32 of the judgment); this expert analysis included material from the colonial archives, which demonstrated how the colonial government had displaced the Batwa in order to create game reserves. The Respondents were unable to rebut this evidence, arguing only that as of date, the Batwa were not located on forest land, and their access to it was limited to procuring some forest produce. As the Court recognised, that, of course, was a non-sequitur, because the displacement was historical.

From a legal point of view, it is the second feature that is particularly interesting. The Court located the remedy within Article 32 of the Ugandan Constitution, which provides for affirmative action:

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 purpose of redressing imbalances which exist against them.

The Constitutional Court held that the text of Article 32 indicated an affirmative obligation upon the government to undertake affirmative action measures, tailored to two requirements: first, it must be established that the claimant group is marginalised (call this the “entitlement” requirement); and secondly, that the nature of the measure must be such that redresses these structural imbalance (call this the “fit” requirement). In the present case, on the basis of the evidence before it, the Court found that it was beyond cavil that the Batwa had been – and continued to be – a marginalised group. This fulfilled the entitlement requirement, and thus triggered an obligation upon the State to introduce affirmative action measures.

In other words, therefore, the Court held that a generic affirmative action provision in the Constitution created a right in favour of marginalised groups, and vested in them the standing to approach the Court for enforcement. This is as it should be; however, it is also important to note that a generic affirmative action guarantee (as in Article 32(1) of the Ugandan Constitution) is nothing more than the principle of substantive equality, expressed in more concrete terms. Logically, therefore, what the Ugandan Constitutional Court accomplished through Article 32(1) ought, in theory, to be accomplished in Constitutions that do not have a specific affirmative action guarantee, but nonetheless subscribe to a theory of substantive equality. More to the point, in the Indian context, this shows once again how the Indian Supreme Court’s repeated statement that “there is no right to reservation” is entirely at odds with its simultaneous jurisprudence that the Indian Constitution guarantees a right to substantive equality. It is illogical to hold, on the one hand, that there is a right to substantive equality, while also holding, on the other, that people who have been deprived of this right have no remedy for it.

Back to the issue: the Ugandan Constitutional Court then went on to hold that the tailoring of affirmative action measures could not be undertaken purely through evidence by way of affidavit. It was a fact-intensive enquiry. Under Article 137(4) of the Ugandan Constitution, it was open to the Constitutional Court to refer a matter to the High Court “to investigate and determine the appropriate redress.” Availing of this provision, the Constitutional Court directed the High Court to expeditiously hear evidence and determine the matter, keeping in mind that affirmative action measures put in place “do not expose the Batwa people to further exploitation, are practically effective, and are enjoyed by all the Batwa people.” (pg 46)

It is of particular significance to note that upon finding that a State obligation of affirmative action was triggered, the Constitutional Court did not remand the matter to the government, to devise an appropriate affirmative action programme; instead, it remanded the matter to the court below, to hold (what appears to be) a trial on the issue.

Now if you look at Article 32(2) of the Ugandan Constitution, which immediately follows the affirmative action provision, it is provided there that “Parliament shall make relevant laws, including laws for the establishment of an equal opportunities commission, for the purpose of giving full effect to clause (1) of this article.” This formulation is a familiar one in the context of comparative constitutional law: rights that require structural or institutional solutions to implement are often followed by a sub-clause that delegates their implementation to the legislature (see e.g., Article 17 of the Indian Constitution, prohibiting “untouchability”). It is therefore noteworthy that the Constitutional Court nonetheless held that the crafting of affirmative action measures was a judicial task, to be undertaken after judicial consideration of evidence. In this, the judgment is somewhat reminiscent of the Indian Supreme Court ruling in NALSA v Union of India, which specifically held in favour of affirmative action for the transgender community, and the concrete form that it would take (enforcement, of course, ran into hurdles).

Consequently, the judgment sets down the crucial principle that: (a) under the Constitution’s generic affirmative action principle, it is open for groups to directly approach the Court as rights-bearers, and trigger an obligation upon the State to fashion an affirmative action programme; and (b) if the claimants are successful in meeting the entitlement requirement, then the remedy will be judicial in nature, i.e., the Court will hear evidence and determine affirmative action remedies that meet the “fit” requirement. Taken together, these principles represent a highly progressive approach to affirmative action, which firmly grounds it as a right, that can be enforced by claiming specific remedies, which can be granted even where the government chooses to drag its feet and not fashion an appropriate affirmative action scheme. Of course, this approach comes with its own risk: as has been seen around the world, the exclusion of the government from the task of fashioning social welfare schemes, and the transposal of that power to the judiciary, can bring with it its own set of pathologies. Given that, students of comparative constitutional law may be particularly interested in following these proceedings through the High Court, where the question of the appropriate affirmative action scheme will be debated in the coming weeks.

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