THE EFFECTIVENESS OF ACCESS TO INFORMATION ACT No. 6 OF 2005 IN PROMOTING PARTICIPATORY DEVELOPMENT IN

UGANDA

BY:

Ogillo Mark Pascal

Reg No. 09/K/29264/EVEStudent No. 209022257

A DISSERTATION PRESENTED TO THE FACULTY OF LAW, MAKERERE UNVERSITY, IN PARTIAL FULFILMENT OF THE REQUIREMENT FOR THE AWARD

OF A DEGREE OF BACHELORS OF LAWS (LLB)

(MAKERERE UNIVERSITY)June, 2011

"Knowledge will forever govern ignorance, and a people who mean to be their own governors, must arm themselves with the power knowledge gives. A popular

government without popular information or the means of acquiring it; is but a prologue to a farce or a tragedy or perhaps both."

-US President James Madison

© 2011

ABSTRACT

Development is a complex multi-dimensional concept based on the expansion of capabilities leading to enrichment of humans lives through producing ‘life sustaining’ necessities and enhancing social choice. However, the foregoing is only possible if the people have the freedom and capacity to choose how they want to live. This choice is exercised through participation in development, a process through which stakeholders influence and share control over development initiatives and resources that affect them. This ability to choose subsumes that the citizens are capacitated through information so as to make informed choices and subsequently qualitatively participate in the process of development.

However, despite the centrality of the phenomena of development in the structure of governments; the inability of citizens to participate not only in the process of development, but also in sharing the benefits of such development are rampant and exhibited through inter alia, the low life expectancies; high levels of ignorance; and crippling poverty levels. In Uganda, the poverty is appalling. Uganda ranks 157th out of 182 countries in the 2009 Human Development Index. Whereas access to information helps promote participatory development, the ranking of Uganda in access to information and transparency is very low at 51 in the Open Budget Index with key documents and reports about in-year spending remaining inaccessible, making it extremely difficult for the public to track what the government is receiving, spending and borrowing throughout each year. In addition, there is yet to be realized a one-stop portal for the four basic models of e-governance, namely, Government to Customer (Citizen), Government to Employees, Government to Government and Government to Business.

The current regime of laws and institutions established by the Uganda government including the Access to Information Act of 2005, are not sufficient to facilitate participatory development. The law neither obligates the government to proactively disclose information, nor does it provide for citizen activism in accessing such information. There is hence need for a comparative review of the current access to information legislative framework in Uganda, with the aim of understanding the gaps and lacuna that creates this inertia and to promulgate a new legal regime that will go beyond merely giving the citizen the right to access public information, but obligating both the government and private sector players to provide, proactively, certain types of information, which are necessary for the public to participate not only in governance, but also in to allow them to enhance social choice in the production of ‘life sustaining’ necessities such as food, shelter, and health care and eradicating ignorance.

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This paper analyzes the relationship between the concept of participatory development and access to information with special reference to the role of access to information law in facilitating the popular and hitherto missing participation of the citizenry in development. The author opines that there is a gap in participation, and the recommends that the government has an obligation to provide the legal framework for popular participation in development.

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CONTENTS

ABSTRACT...........................................................................................................iiDECLARATION....................................................................................................ivSUPERVISOR’S APPROVAL..................................................................................ivDEDICATION........................................................................................................vACKNOWLEDGEMENT.........................................................................................viLIST OF ABBREVIATIONS....................................................................................vii-Chapter One- INTRODUCTION............................................................................1

1.0 Chapter Summary...................................................................................11.2 Introduction & Contextual Background...................................................11.3 Statement Of The Problem......................................................................31.4 Purpose Of The Study..............................................................................41.5 Research Questions.................................................................................41.6 Significance Of The Study.......................................................................41.7 The Research Methodology.....................................................................51.8 Review Of Literature................................................................................61.9 Chapter Breakdown...............................................................................10

-Chapter Two- PARTICIPATORY DEVELOPMENT.................................................112.0 Chapter Summary.................................................................................112.1 Participatory Development....................................................................112.2 Development as Participation...............................................................132.3 Defining Participatory Development.....................................................142.4 Participatory Development in Uganda...................................................182.5 Challenges and Lessons for Participatory Development.......................202.6 Case studies..........................................................................................202.7 Conclusion.............................................................................................22

-Chapter Three- PROMOTING PARTICIPATORY DEVELOPMENT AS A HUMAN RIGHT................................................................................................................23

3.0 Summary...............................................................................................233.1 Participatory Development As Human Right.........................................233.2 Development as a Human Right............................................................253.3 Criticisms of The Concept of Development as A Human Right..............303.4 Conclusion.............................................................................................30

-Chapter Four- UGANDA’S LEGAL & POLICY FRAMEWORK ON PARTICIPATORY DEVELOPMENT..................................................................................................31

4.0 Chapter Summary.................................................................................314.1 The Province Of Law..............................................................................314.2 The Constitutional Framework For Popular Participation In Uganda......314.3 The Statutory Framework For Popular Participation In Uganda.............324.4 Uganda’s Policy and Institutional Framework........................................324.5 An Analysis Of Laws Encumbering Access To Information....................34

-Chapter Five- AN ANALYSIS OF UGANDA’S ACCESS TO INFORMATION ACT NO. 6 OF 2005.........................................................................................................37

5.0 Chapter Summary.................................................................................375.1 Principles Of Participatory Development...............................................375.2 About Freedom Of Information In Uganda.............................................375.3 Access To Information Act & Principles Of Participatory Development. 385.4 Conclusion.............................................................................................42

-Chapter Six- SUMMARY OF FINDINGS, CONCLUSIONS AND RECOMMENDATIONS!.......................................................................................43

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6.0 Chapter Summary.................................................................................436.1 Summary Of Findings............................................................................436.2 Recommendations.................................................................................446.3 Conclusion.............................................................................................466.4 Implication for Future Research............................................................47

BIBLIOGRAPHY..................................................................................................48

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DECLARATION

I, Ogillo Mark Pascal, hereby declare that this dissertation is my original work, and other works cited or used are clearly acknowledged. This work has never been submitted to any University, College or other institution of learning for any academic or other award. Other works cited or referred to are accordingly acknowledged.

Signed: ……………………………………………………………..

Date: ………………………………………………………………..

SUPERVISOR’S APPROVAL

This dissertation has been submitted for examination with my approval as University supervisor.

Signed:………………………………………………………………

Prof. Frederick Jjuuko,Makerere University

Date:…………………………………………………………………..

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DEDICATION

This academic paper is dedicated to that woman called my mother; Fibi, Nyadiedo, the woman from Adiedo.

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ACKNOWLEDGEMENT

This LLB has been a long walk. As I look back now, I am humbled by my own perseverance and the support of my friends, family, clients & colleagues.

I salute my father, Ojijo Paul and mother, Fibi Odira, for paying for my education, and for never doubting my choices. You motivated me to be more every day. Many thanks also to my friends Booker, Jimmy, Wachira, Wanjohi, Hellen, Asli, Brenda, Rashida, Kamau, Prossy, Salim and Seko, for their support during my period in exile as a refugee in Uganda. Your sacrifice and support is deeply appreciated and I owe you my best self. And when I was almost quitting, there was Ms. Joan, the registrar at the school of law, who took on the role of mother and mentor, to encourage me to finish the course. Thank you!

This study was carried out under the supervision of Prof. Frederick Jjuuko, of the School of Law at Makerere University. I wish to thank him most sincerely for his diligent and valuable comments; and hi encouragement of open dialogue.

Finally, I want to thank the Foundation for Human Rights Initiative, which paid for part my tuition and gave me protection as a refugee in Uganda.

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LIST OF ABBREVIATIONS

ACHPR African Commission on Human and Peoples’ RightsACSRT African Centre for the Study and Research on TerrorismAU African UnionGA General Assembly (United Nations)HRW Human Rights WatchICJ International Commission of JuristsIGAD Intergovernmental Authority on DevelopmentLRA Lord’s Resistance ArmyOAU Organisation of African UnityPSC Peace and Security CouncilPD Participatory Development SC Security Council (United Nations)UDHR Universal Declaration of Human RightsUHRC Uganda Human Rights CommissionUNHCR United Nations High Commissioner for Human RightsUN United NationsUS United States of AmericaWHO World Health Organization

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-Chapter One- INTRODUCTION

1.0 CHAPTER SUMMARY

This chapter serves as the introduction, and provides the general background and framework for the study. It covers the introduction of the study, statement of the problem, purpose and objective of the study, research questions, justification and scope of study, literature review and methodology.

1.2 INTRODUCTION & CONTEXTUAL BACKGROUND

Development is a complex multi-dimensional concept based on the expansion of capabilities leading to enrichment of humans lives through producing ‘life sustaining’ necessities and enhancing social choice (Dudley Seers, 1971).1

However, the expansion of capabilities; production of necessities; and the enhancement of social choice are only possible if the people have the freedom and capacity to choose how they want to live (Amartya Sen, 1999).2 This choice is exercised through participation in development. Participation in development, also referred to as participatory development, involves both taking part in deciding what development projects to be implemented, and sharing the benefits accruing from the development project (Tandon and Cordeiro, 1998). Through participatory development, the citizens can influence and share control over development initiatives, and over the decisions and resources that affect their lives3. For effective participation, the citizens must be capacitated through information so as to make informed choices. 4 In Development as Freedom, Sen argued that individuals act in their best interest whenever they have the choice, that is, when they possess adequate knowledge.5 Indeed, for truly participatory development to take place anywhere in a modern nation state, the people must have access to information. Information ensures public awareness from which people can make informed choices, such as assessment of political and economic regimes. Confucius warned long ago that, "The people may be made to follow the course of action; but they may not be made to understand it." Access to information makes people understand the course of action.

However, despite the centrality of the phenomena of development in the structure of governments; the inability of citizens to participate not only in the process of development, but also in sharing the benefits of such development are rampant and exhibited through inter alia, the low life expectancies; high

1 Dudley Seers. (1971) Development in a Devided World” Oxford Univeristy Press2 Amartya Sen Development as Freedom Oxford University Press 19993 Framework for Mainstreaming Participatory Development Processes into Bank Operations, ADB. 19964 Pillar 2, AHHRIS Convention, Public Participation5 A. Sen, Development as Freedom (Oxford: Oxford University Press, 1999).

levels of ignorance; and crippling poverty levels. This is not lessened by the fact that over 30 countries now have laws that require the disclosure of government records either in separate legislations in toto or as operative parts of their National Constitutions and various sectoral legislations and dozen more countries are considering passing access to information legislations.6

Uganda’s Access to Information Act of 20057 has done little to promote participation of the citizens in the planning, implementation and sharing of resources. The law neither obligates the government to proactively disclose information, nor does it provide for citizen activism in accessing such information. Indeed, the refusal of the government of Uganda to disclose the details of the companies mining oil8 and the subsequent harassment of the individuals who sought such information renders credence to the averment that the law is spineless in promoting participatory development. Uganda’s poverty is appalling. Uganda ranks 157th out of 182 countries in the 2009 Human Development Index of the United Nations Development Program9. The ranking of Uganda in access to information and transparency is very low at 51 in the Open Budget Index with key documents and reports about in-year spending remaining inaccessible, making it extremely difficult for the public to track what the government is receiving, spending and borrowing throughout each year.10 Further, corruption, which is central to crippling development, 11is rampant in Uganda, with the country having been ranked at number 91 by Transparency International in 2010. Transparency International’s (TI) 2010 Corruption Perceptions Index (CPI), released in October 2010 identified Africa as the most corrupt region in the world.12. Global Integrity’s 2006 report on the country estimates that more than half the government’s annual budget is lost to corruption each year, amounting to USD 950 million. 13 In addition, the government has held several meetings and programs to enhance e-governance. These include the Uganda E-Government Strategy (March 2004) Uganda e-Readiness Assessment (March 2004), The National ICT Policy for Uganda Implementation Framework Draft Final Report (February 2005) and East African Community Regional E-Government Framework (Draft) December 2005. However, there is yet to be realized a one-stop portal for the four basic models14 of e-governance, namely, Government to Customer (Citizen),

6 David Banisar. Freedom of Information and Access to Government Records Around the World, Privacy International, March 2001 available http://pravovedet.ecn.cz/html/zahrleg/FOI_survey3.01.pdf accessed on July 20, 20097 The Uganda Gazette No. 42 Volume XCVIII dated 19th July, 2005 8 See http://www.skyscrapercity.com/showthread.php?t=1137943&page=7 accessed on March 15, 20119 See Uganda: Country Brief available at http://web.worldbank.org, accessed on March 15, 201110 See TRANSPARENCY SNAPSHOT: Uganda Available at http://www.revenuewatch.org/our-work/countries/uganda/transparency-snapshot accessed on March 16, 201111 Id 12 Transparency International, Corruption Perceptions Index, Transparency International, www.transparency.org.13 Available at http://www.globalintegrity.org/reports/2006/uganda/index.cfm accessed on March 17, 201114 Garson, D.G. (2006). Public Information Technology and E-Governance. Sudbury, MA: Jones and Bartlett Publishers.

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Government to Employees, Government to Government and Government to Business. The above leads to the conclusion that the current regimes of laws and institutions established by the various governments of the world have not promoted participation in development. In Uganda, the current regime of laws and institutions established by the government of Uganda, are not sufficient to facilitate participatory development; that is, the participation of the citizenry in development.

Given the foregoing, and appreciating the centrality of participation in development by the citizens, it is imperative that the law takes a central role in obligating the government to provide information and facilitate participation in development. Various legal jurisprudes have theorized on the source of government’s obligation. John Locke (1664) observed that the purpose of law is to preserve and enlarge freedom.15 The role of law, as stipulated in the contracterian theory of law, is to regulate relations of the societal towards promoting progress and protection of property and life (Hobbes, 1668; Rousseau, 1762; Locke, 1764). In so doing, the law operates to clearly identify rights and obligations and to render the correct desert to the various actions (Weber, Max, 1890). This need for availing information as a tool to enhance participatory governance creates an obligation on the parties holding the relevant information to ensure that the people attain certain information for their use in development. This right to access information has been enshrined in treaties, declarations, and soft law. Indeed, the United Nations, at its founding, recognised the freedom of information as a fundamental human right (Art. 19, UDHR; Art 19, ICESCR)16 and reflected in the regional human rights instruments (Art. 10, ECHR; Art. 13, ACHR; Art 13, ACHPR)17. Indeed, the UN has declared access to information to be “…the touchstone of all freedoms.”18

There is hence need for a comparative review of the current legislative, policy and institutional framework in Uganda, with the aim of understanding the gaps and lacuna that creates this inertia and to promulgate a new legal regime that will go beyond merely giving the citizen the right to access public information, but obligating both the government and private sector players to provide, proactively, certain types of information, which are necessary for the public to participate not only in governance, but also in to allow them to enhance social choice in the production of ‘life sustaining’ necessities such as food, shelter, and health care and broadening their distribution; raising standards of living; and eradicating ignorance.19 This new regime of laws will move from enhancing

15 John Locke, (1664) Questions Concerning the Law of Nature, edited. Ithaca: Cornell University Press, 1990.16 Article 19, Universal Declaration of Human Rights, (UDHR); Article 19 International Covenant on Economic, Social and Cultural Rights Adopted and opened for signature, ratification and accession by General Assembly Resolution 2200A (XXI) of 16 December 1966 entry into force 3 January 1976.17 ; Article 10 European Convention for the Protection of Human Rights and Fundamental Freedoms, E.T.S. No. 5 (Rome, November 4, 1950; entered into force September 3, 1953) (ECHR); Article 13 ACHPR; and Article 13 American Convention on Human Rights (ACHR).18 Resolution 59(1) of the UN General Assembly Adopted in its First Session in 14th December 194619 Tadaro Michael, Economics for a Developing World, Singapore, Longman Group, 2nd Edition Ed 1977.

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access to information to promoting popular participation through improving the freedom of people to choose20 between different ways of thinking21 and their capability to choose how they want to live.22 This new regime of laws will be pillared on two twin concepts popular participation of the citizenry in development through access to information.

This paper analyzes the relationship between the concept of participatory development and access to information with special the role of access to information law in facilitating the popular and hitherto missing participation of the citizenry in development. The author hypothesizes that facilitation of popular participation of the citizenry in the process of development and the sharing of benefits arising therefrom will lead to enrichment of human lives. The author opines that the current laws, policies and institutions regulating access to information and availability of communication infrastructure are not sufficient to facilitate participatory development. There is a gap in participation, and the role of law in development by regulating social conduct should be invoked. The governments must now be obliged to establish institutions to promote participation of the populace in development. The paper concludes that the government has an obligation to provide legal, institutional and policy infrastructure to ensure that the people attain certain information and have access to communication avenues for their participation in development.

1.3 STATEMENT OF THE PROBLEM

Despite the centrality of the phenomena of development in the enhancement of human lives, the ability of citizens to participate not only in the process of development, but also in sharing the benefits of such development are rampant and exhibited through the low life expectancies due to, inter alia, poor medicare; high levels of ignorance; and crippling poverty levels. This is not lessened by the fact that Uganda has an access to information law.

It hence seems that the current legal regime is not sufficient to promote access to information for the purpose of participation of the citizenry in development. It is the opinion of the author that there is need for a new regime of legal principles that will go beyond giving the citizen the right to access certain public information based on access to information laws, to obligating the government to proactively make accessible certain types of information which are important and necessary to allow the public to enhance social choice in the production of ‘life sustaining’ necessities such as food, shelter, and health care and broadening their distribution; raising standards of living; and eradicating ignorance.23

20 Supra Note 2 above21 Amartya Sen (1981) Equality of What22 Poverty and Famines: An Essay on Entitlement and Deprivation (1981)23 Tadaro Michael, Economics for a Developing World, Singapore, Longman Group, 2nd Edition Ed 1977.

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1.4 PURPOSE OF THE STUDY

The main purpose of this research paper is to analyze the effectiveness of Uganda’s access to information act of 2005 in promoting participatory development.

1.5 RESEARCH QUESTIONS

The primary research question this study seeks to address is whether it is possible to effectively promote participatory development under the current access to information regime in Uganda. Other questions which shall be addressed are as follows:

1. What is participatory development?2. What is the role of law in enhancing participatory development?3. What are the challenges facing participation of citizenry in

development?4. To what extent does the access to information law of 2005 promote

participatory development?5. What changes should be made to the access to information act of

2005 to enhance participatory development?

1.6 SIGNIFICANCE OF THE STUDY

The priority and seriousness of participation of the citizenry in development cannot be gainsaid. Further, the role of information in enhancing the quality of participation is as paramount. Unfortunately, there has not a comparative analysis of the extent to which Uganda’s Access to Information Act no. 6 of 2009, promotes participatory development. This study seeks to fill this gap.

This study is also significant because Uganda, like most African countries, is facing still challenges in participation of the citizenry in development, and this can be attributed to the inability of the legal regime to promote effective participation. It is, therefore, imperative to interrogate the current legal regime regulating access to information and communication infrastructures and their effectiveness in promoting participatory development. Out of this analysis, the paper shall identify gaps and lacuna that need be filled, either through legislative amendments and enactments; policy formulation and implementation; and institutional reorganization and strengthening to advance the ideal of participatory development.

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Further, the study seeks to relate this study to the larger, ongoing dialogue in the literature about information for development and the role of law; seeking to fill in the gaps and proposing new perspectives for the information for development discipline. The results of this study will hence provide useful academic knowledge and resource to students, academicians, policy makers and other stakeholders who wish to understand in depth the area of study. Consequently, it will offer a basis for further criticisms and development of the knowledge on the need for information for development and the role of law in the same.

Further, the paper will introduce a paradigmatic shift to the current debate on access to information by placing responsibility on the government to not only make accessible, but to publish and popularize certain types of information which are important for the citizens to participate in development.

1.7 THE RESEARCH METHODOLOGY

1.7.1Data Type

The research shall utilize secondary data only. The researcher shall not carry out primary data collection, partly due to the availability of the required data, and partly due to the limitation of time and money to carry out primary data collection and data analysis.

1.7.2Data Sources

The data to be collected shall be obtained through desk -top research, library research, internet research, legislative analyses and comparative analyses of various jurisdictions on access to information and participation.

1.7.3Data Analysis

The data will be analysed through a comparative study of the research materials so as to seek to show the importance of access to information for the enhancement of participation in development process and the role of law in enhancing the access to information.

1.7.4Data Presentation

The research final work shall be presented in the form of a dissertation paper.

1.7.5Scope and Limitations of the Study

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The study shall be confined to the role of law in enhancing access to information; and the nexus between participatory development and access to information.

The theoretical scope of the study will involve the analysis of the theories of participatory approach in development and access to information as human rights concepts.

This author shall critically analyse the extent to which laws in Uganda, including ratified international legal instruments; the 1995 constitution; case law; and legislations, principles of law derived from case law; jurisprudence and soft law in international legal regime; institutions, both public and private; and policies, draft and actualized, in Uganda affect, either through claw-back provisions, or progressively, the strategies, policies and principles of development communication namely, facilitating participation; making information understandable and meaningful; and fostering policy acceptance-the areas of questionnaire and analysis benchmarks.

The paper is however not an exhaustive survey of the topics presented but provides a critical analysis to how the current legal, policy and institutional frameworks affect the access to information and communication infrastructure which are necessary for participation of citizens in development.

A further limitation in the study is the fact that the author shall only use secondary data. This is mainly because the author seeks to do a critical analysis of theories already espoused by various writers and hence the work is not a novel theoretical masterpiece but an attempt to seek the best relationship between various theories for the purposes of effective and maximum output.

1.8 REVIEW OF LITERATURE

1.8.1Summary

This literature review aims to review the critical points of current knowledge and or methodological approaches on the relationship between access to information, the law and participatory development. The literature reviews are secondary sources, and as such, do not report any new or original experimental work. The goal of this literature review is to bring the reader up to date with current literature on the definition of participatory development, the role of access to information in enhancing participatory development, and the role of the law in promoting access to information, for the purpose of promoting participatory development. Further, the review will establish the gap, which necessitates this research study

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1.8.2 Introduction

Literature in information for development is fairly recent. This literature review seeks to share with the reader the results of other studies and writings on the role of law in enhancing access to information for the purposes of participatory development, noting that Information for development (Infodev) is rapidly becoming recognised an interdisciplinary research field.24

1.8.3Participatory development

Participation

Long (1999) defines participation as a process through which stakeholders influence and share control over development initiatives and the decisions and resources which affect them.

Tandon and Cordeiro (1998), building on World Bank (1994), state that participation is an interactive process involving the continuous re-adjustment of relationships between different stakeholders in a society in order to increase stakeholder control and influence over initiatives that affect their lives.

Gaventa (1998) posits that there are various levels and/or degrees of participation ranging from simple consultation to joint decision making to self-management by stakeholders themselves. The specific degree of participation of different stakeholders is determined through a negotiation process, but the challenge is to increase numbers without undermining quality-involving people throughout the development process in a way that empowers.

Development

Samuel Huntington (1963) determined development to be a linear process which every country must go through. In propounding the modernity theory in development, he stated that the state is a central actor in modernizing "backward" or "underdeveloped" societies. He hence put the state at the centre of development. This has since been refuted, however, with the new theories of bottom up development, which put the stakeholders, and especially the citizens, at the centre of development. Participatory development puts the people at the centre of development.

On the other hand, Professor Michael Todaro (1977) sees three objectives of development as producing more ‘life sustaining’ necessities such as food, shelter, and health care and broadening their distribution; raising standards of living and individual self esteem; and expanding economic and social choice

24 McNamara, Kerry S. (2003). "Inforamtion and Communication Technologies, Poverty and Development: Learning From the Experience" (PDF). World Bank, Washington D.C., USA. Retrieved on 2007-04-08.

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and reducing fear. This statement puts participation of the citizenry at the centre of development.25

Amartya Sen (1981) in his seminal work, Development as Freedom, States that development is the expansion of capabilities leading to enrichment of human lives. This, he argues, is only possible if the people have the freedom to choose between different ways of thinking, the (cap) ability to choose how they want to live. For the choice to be meaningful; it has to be informed, hence the need for information to build on the quality of participation.

A critique of Sen’s views exposes a human rights concept in the freedom angle. The freedoms and entitlements of the citizenry in choosing the lifestyles they want and hence enriching their lives is buttressed by the conception of development as a human right, which has dignity as a central theme in the realization of the full potential of man; and is hence central to the Universal Declaration of Human Rights.26

The freedoms and entitlements of the populace in the process of development are captured clearly in the 1986 Seoul Declaration on the Right to Development,27 which stated unequivocally that the right to development is a human right; and the Second UN World Conference on Human Rights in Vienna, 1993. It is also important to note that the concept of human development as a human right is supported by “social contract” philosophical pronouncements of natural rights theorists, Hobbes (1588-1679); Locke (1632-1704) and Rousseau (1712-1778), but were best exemplified by Locke’s claim during the English Revolution of 1688 that ‘…certain rights like the right to life, liberty, and property belonged to individuals as human beings because they existed in the state of nature before human beings entered civil society.’

Professor Dudley Seers (1971) 28 argues that development is about outcomes, that is, development occurs with the reduction and elimination of poverty, inequality, and unemployment within a growing economy. As per the doctrine of participation, development is both a process and a result, hence outcome.

Ekins (1986) argued for development from below, as the philosophy and action of learning from below. Development from below seeks to consult first with “those who are last” in determining the development agenda. The spinal cord of development from below is participation of the people in formulating the plans, implementing them and participating in the sharing of benefits resulting

25 Tadaro Michael, Economics for a Developing World, Singapore, Longman Group, 2nd Edition Ed 1977.26 Article 1 of the UDHR27 The Declaration on the Right to Development was adopted by the United Nations General Assembly, resolution 4/128 on December 4, 1986 (http://www.unhchr.ch/html/menu3/b/74.htm). The Universal Declaration of Human Rights was adopted by UN General Assembly Resolution 217 (A) II on December 10, 1948.28 Dudley Seers, (1971) Development in a Devided World” Oxford Univeristy Press

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from such developmental processes. This view is very representative of the principle of participatory development.

Participation in Development

Long (1999) defines participation in development as adopting the institutional reforms and innovations necessary to enable full and systematic incorporation of participatory methodologies so that meaningful primary stakeholder participation becomes a regular part of a project and policy development, implementation and evaluation. Accordingly hence, the concept of participation is concerned with ensuring that the intended beneficiaries of development projects and programmes are themselves involved in the planning and execution of those projects and programmes. This empowers the recipients of development projects to influence and manage their own development - thereby removing any culture of dependency.

1.8.4Access to Information for Participatory Development

The issue of ensuring access to information as a pre-condition to achieve sustainable development has been addressed by several meetings and international conferences, including but not limited to the World Summit on the Information Society, 2005 World Summit, and World Social Forum (1998).29

Daniel Lerner (1958) believed that that mass media could facilitate change from a traditional society to a modern consumer democracy by enhancing participation of the masses in development.30

Talcott Parsons (1968) functional sociology lends credence to Lehre’s theory, by stating the qualities that distinguished "modern" and "traditional" societies and putting education in the centre. Education, according to Parsons, is key to creating modern individuals. Technology played a key role in this theory because it was believed that as technology was developed and introduced to lesser developed countries it would spur growth.

Wilbur Schramm (1980), in addressing the importance of information in development, set targets for developing nations to meet: newspapers, radio sets, cinema seats and TV sets per 1,000 populations. This top-down approach is widely criticized on the grounds that each nation should set its own goals. It also focuses on national media and gives little attention to local or community media.

29 Convention On Access To Information, Public Participation In Decision-Making And Access To Justice In Environmental Matters done at Aarhus, Denmark, on 25 June 1998. 30 Daniel Lehrer, The Passing of Traditional Societies (1958)

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Everett Rogers (1976) on the other hand looked more closely at specific development projects and the adoption of new technology and ideas among target populations. He called this the diffusion of innovations. Modern projects tend to continue this emphasis on specific goals in fields such as agricultural extension and health education. 31

An expansion of the concept of Information for Development (Infodev) can be found in the work of Paulo Freire (1984) who stresses dialogue with communities about their actual needs rather than one-way communication by education as the most productive means of development. 32

However, the idea of Information for Development (Infodev) has been criticized by Luis Ramiro Beltan (1980) and Alfonso Gumucio Dagron (2001) 33 as tending to locate the problem in the underdeveloped nation rather than its unequal relations with powerful economies. There is also an assumption that Western models of industrial capitalism are appropriate for all parts of the world. Many projects for Information for Development (Infodev) fail to address the real underlying problems in poor countries such as lack of access to land, agricultural credits and fair market prices for products. Such problems cannot be solved by education or communication alone but requires fundamental social change. The author thinks differently, since the acquisition of knowledge leads to faster social change than ignorance. 34

1.8.5Participation & Access to Information: The Role of Law

Law as a Guarantor of Human Freedoms

John Locke (1664) observed that the purpose of law is to preserve and enlarge freedom.35 Indeed, the role of law, as stipulated in the contracterian theory of law, is to regulate relations of the societal towards promoting progress and protection of property and life (Hobbes; Rousseau; Locke). In so doing, the law operates to clearly identify rights and obligations and to render the correct desert to the various actions (Weber, Max).

There is hence need for availing information creates an obligation on the parties holding the relevant information to ensure that the people attain certain information for their use in development.

31 Everett Rogers, "Communication and Development: The Passing of A Dominant Paradigm," Communication Research 3, 2, (1976): 213-40. 32 Paulo Frerre, Pedagogy of the Oppressed, 198433 Alfonso Gumucio Dagron, Making Waves: Stories of Participatory Communication for Social Change, 2001, the Rockefeller Foundation. 34 Luis Ramiro Beltran, "A Farewell to Aristotle: Horizontal Communication," Communication 5 (1980), 5-41 35 John Locke, (1664) Questions Concerning the Law of Nature, edited. Ithaca: Cornell University Press, 1990.

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Access to Information as a Right

Access information has been enshrined in treaties, declarations, and soft law as a human right. Indeed, the United Nations, at its founding, recognised the freedom of information as a fundamental human right (Art. 19, UDHR; Art 19, ICESCR)36 and reflected in the regional human rights instruments (Art. 10, ECHR; Art. 13, ACHR; Art 13. ACHPR)37. Indeed, the UN has declared access to information to be “…the touchstone of all freedoms.”38 The above means that the government is obliged, as duty bearers, to fulfill, protect and promote access to information as a human right, to the right holders, being the citizenry.

ICJ (K) (2009) reported that the citizenry must be informed for the realization of a just, free and equitable society where the rule of law is observed, human rights protected and democracy enhanced.39 The author agrees totally that for the participation of the citizens to be meaningful, they need to be informed, so that they engage in informed participation.

From the foregoing, the freedom of information is widely recognised as an important component of human rights which is capable of fulfilling important roles in society and as an underpinning of democracy.

1.8.6Conclusion: The Gap-The Situation in Uganda

The constitution of Uganda in article 41 provides for the access to information by citizens. This is also provided for by the access to information act of 2005.40

Uganda has also established various offices, both by acts of parliament and administrative offices, which seek to enhance the access to information by the citizenry, including the office of the ombudsman. There is also established the commission for access to information, and the office of the ombudsman, for the purposes of lodging complaints, not to mention the law courts. However, access to information for the purposes of development has not been effected.

However, all the regimes of laws, policies and institutions, and judicial pronouncements, there lacks a clear guideline that allows the citizens to participate in development initiatives or that obligates the government to give certain types of information to the societal for their use in making life choices

36 Article 19, Universal Declaration of Human Rights, (UDHR); Article 19 International Covenant on Economic, Social and Cultural Rights Adopted and opened for signature, ratification and accession by General Assembly Resolution 2200A (XXI) of 16 December 1966 entry into force 3 January 1976.37 ; Article 10 European Convention for the Protection of Human Rights and Fundamental Freedoms, E.T.S. No. 5 (Rome, November 4, 1950; entered into force September 3, 1953) (ECHR); Article 13 ACHPR; and Article 13 American Convention on Human Rights (ACHR).38 Resolution 59(1) of the UN General Assembly Adopted in its First Session in 14th December 194639 ICJ (k) Publication, Freedom of Access to Information in Kenya: Analysis of Access to Information Act 40 Cap 534 laws of Uganda

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and enhancing the quality of their lives. This paper looks at the gaps and offers recommendations.

1.9 CHAPTER BREAKDOWN

This study is undertaken in five chapters. Each chapter will aim at answering one or more of the research questions. Chapter one serves as the introduction, and provides the general background and framework for the study. Chapter two is an incisive analysis of the concepts of participatory development generally, but with specific reference to Uganda. Chapter three is dedicated to an in-depth examination of the international and regional standards and human rights framework for promoting participatory development. Chapter four focuses on Uganda’s legal and policy framework on participatory development. Chapter five focuses on Uganda’s Access to Information Act No. 6 of 2005 with reference to its ability to promote participatory development in Uganda. Chapter six is the summary of findings, conclusion and recommendations of the study.

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-Chapter Two- PARTICIPATORY DEVELOPMENT

2.0 CHAPTER SUMMARY

This chapter is an incisive analysis of the concept of participatory development generally, but with specific reference to its application in Uganda.

2.1 PARTICIPATORY DEVELOPMENT

2.1.1Defining Participation

Participation is a process through which stakeholders influence and exercise control over development initiatives and the decisions and resources which affect them (World Bank 1996). It is an interactive process involving the continuous re-adjustment of relationships between different stakeholders in a society in order to increase stakeholder control and influence over initiatives that affect their lives (Tandon and Cordeiro 1998). The United Nations Research Institute for Social Development (UNRISD)'s Popular Participation Program, (1996) defined participation as "the organized effort to increase control over resources and regulative institutions in given social situations on the part of groups or movements hitherto excluded from such control".41

Although rather general, this definition captures the wider meaning of the participation concept and stresses its empowerment, control and decision-making aspects. The World Bank's Learning Group on Popular Participation defined popular participation as "a process by which people, especially disadvantaged people, influence decisions that affect them".42 Citizen participation is the 'direct ways in which citizens influence and exercise control in governance’ (Gaventa and Valderrama 1999).

2.1.2Levels and Dimensions of Participation

There are various levels and/or degrees of participation ranging from simple consultation to joint decision making to self-management by stakeholders themselves. The specific degree of participation of different stakeholders is determined through a negotiation process, but the challenge is to increase numbers without undermining quality-involving people throughout the development process in a way that empowers (Gaventa 1998).

2.1.3Why Participation?

There are various benefits of participation, as herein below listed.

41 UNRISD (1996). Their choice or yours: Global forces or Local voices? Discussion Paper No.79.42 World Bank (1995), World Bank Participation Sourcebook, Environment Department Papers. Participation Series Washington D.C. World Bank.

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a) Tying Programs to People

Citizen participation is a desired and necessary part of community development activities. As Spiegel notes, "Citizen Participation is the process that can meaningfully tie programs to people" (1968). Citizen participation in community decision-making can be traced as far back as Plato's Republic. Plato's concepts of freedom of speech, assembly, voting, and equal representation have evolved through the years to form basic pillars upon which the United States was established. Citizen participation is the essence of democracy. Heberlein (1976) notes that public involvement results in better decisions.

b) Check & Balance

Citizen participation in community affairs serves to check and balance political activities. Participation allows fuller access to benefits of a democratic society (Wade 1989). Partisan political favors, pork barreling, and nepotism are negative examples of unchecked political behavior. A cross section of citizen participation in the decision-making process reduces the likelihood of community leaders making self-serving decisions.

c) Dignity

Cahn and Camper (1968) suggest that merely knowing that one can participate promotes dignity and self-sufficiency within the individual. It taps the energies and resources of individual citizens within the community and provides a source of special insight, information, knowledge, and experience, which contributes to the soundness of community solutions. The result is an emphasis on problem solving to eliminate deficiencies in the community (Christensen & Robinson 1980).

d) Program Legitimacy

Cook (1975) notes that citizen participation can legitimize a program, its plans, actions, and leadership. To legitimize can often mean the difference between success and failure of community efforts. Unsupported leaders often become discouraged and drop activities that are potentially beneficial to community residents. Voluntary participation can also reduce the cost for personnel needed to carry out many of the duties associated with community action. Without this support, scores of worthwhile projects would never be achieved in many communities.

e) Equitable Resource Allocation

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Long (1999) defines participation as a process through which stakeholders influence and share control over development initiatives and the decisions and resources which affect them. This leads to equitable resource allocation, as per the needs of the stakeholders.

f) Encouraging Bottom Up Process

Tandon and Cordeiro (1998), building on World Bank (1994), state that participation is an interactive process involving the continuous re-adjustment of relationships between different stakeholders in a society in order to increase stakeholder control and influence over initiatives that affect their lives. This presupposes a bottom up process, which is the current trend in developmental paradigms.

2.1.4Conditions of Citizen Participation/ Facilitating Citizen Participation

People become involved in community affairs only when certain conditions are present (Wade 1989, Christensen and Robinson 1980). Whereas the conditions to be met are various, the two basic conditions are the presence of structures and institutions for participation; and the presence of knowledge to make citizens use the structures.

a) Institutional Structure

Citizen participation is chiefly facilitated with an appropriate organizational structure. Sills (1966) notes that there is the need for organizational structures appropriate for citizen participation. These must be hinged on the law, and supported by policy.

b) Information (Better Knowledge)

People are reluctant to participate in community activity when they do not have enough information to act responsibly. If citizens do not know how to act, they will avoid participation as long as possible or until they have what they believe to be sufficient information.43

2.2 DEVELOPMENT AS PARTICIPATION

As noted earlier, development is a complex multi-dimensional concept based on the expansion of capabilities leading to enrichment of humans lives through producing ‘life sustaining’ necessities and enhancing social choice (Dudley Seers, 1971).44 However, the expansion of capabilities; production of necessities; and the enhancement of social choice are only possible if the

43 Id 44 Dudley Seers. (1971) Development in a Devided World” Oxford Univeristy Press

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people have the freedom and capacity to choose how they want to live (Amartya Sen, 1999).45

This choice is exercised through participation in development. Participation in development, also referred to as participatory development, involves both taking part in deciding what development projects to be implemented, and sharing the benefits accruing from the development project (Tandon and Cordeiro, 1998). Through participatory development, the citizens can influence and share control over development initiatives, and over the decisions and resources that affect their lives46.

For effective participation, the citizens must be capacitated through information so as to make informed choices. 47 In Development as Freedom, Sen argued that individuals act in their best interest whenever they have the choice, that is, when they possess adequate knowledge.48 Indeed, for truly participatory development to take place anywhere in a modern nation state, the people must have access to information. Information ensures public awareness from which people can make informed choices, such as assessment of political and economic regimes. Confucius warned long ago that, "The people may be made to follow the course of action; but they may not be made to understand it." Access to information makes people understand the course of action.

From the foregoing, true development only subsists in an environment of participation; hence, development is only development properly so called when it is participatory.

45 Amartya Sen Development as Freedom Oxford University Press 199946 Framework for Mainstreaming Participatory Development Processes into Bank Operations, ADB. 1996 47 Pillar 2, AHHRIS Convention, Public Particiaption48 A. Sen, Development as Freedom (Oxford: Oxford University Press, 1999).

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2.3 DEFINING PARTICIPATORY DEVELOPMENT

Participatory development is also referred to as Participation in Development49. Long (1999) defines participation in development as adopting the institutional reforms and innovations necessary to enable full and systematic incorporation of participatory methodologies so that meaningful primary stakeholder participation becomes a regular part of a project and policy development, implementation and evaluation. Accordingly hence, the concept of participation is concerned with ensuring that the intended beneficiaries of development projects and programmes are themselves involved in the planning and execution of those projects and programmes. This empowers the recipients of development projects to influence and manage their own development - thereby removing any culture of dependency. There are many different public participation mechanisms, although these often share common features (for a list over 100 mechanisms, and a typology of mechanisms, see Rowe and Frewer, 2005).50

2.3.1The Rise of Participatory Development

Participatory development is not a recent phenomenon. Democratic forms of decision-making have existed in most cultures including religious communities and political dissident movements. Participatory principles were central to the international cooperative movement, many nationalist and some socialist movements (Tandon, 1998). In the 1950s and 1960s postcolonial and post revolutionary governments employed a wide range of measures at local and community level in attempts to mobilize their populations for national development.51

In the 1970s and 1980s there was widespread institutionalization of the rhetoric of participatory development in response to evidence of the failure of large numbers of expensive large-scale, top-down projects in both capitalist and socialist countries. In the 1980s this emphasis on participatory development was also part of the move to 'roll back the state' and to put greater emphasis on non-governmental organizations as providers of services previously supplied by the state (Sriskandarajah et al, 1991).

By the end of the 1980s participatory development had become an established umbrella term for a new style of development. There is a plethora of manuals on techniques for participatory development produced by a wide range of organizations. Most international donor agencies have official statements about the need for beneficiary participation and project guidelines for participatory projects (Long, 1999)

49 Id 50 Rowe, G. and Frewer, L.J. (2005) A typology of public engagement mechanisms, Science, Technology, & Human Values, 30 (2), 251-290.51 id

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2.3.2Why Participatory Development?

Participatory development has been promoted on the basis of a number of arguments:

a) Rights Argument

The International Covenant on Economic, Social and Cultural Rights (ICESCR)52, in article 1 recognizes the right of all peoples to self-determination, including the right to "freely determine their political status"53, right participate effectively in society (Articles 13 and 14); and right to participation in cultural life (Article 15)

The Universal Declaration of Human Rights, 54UDHR guarantees the right to participate in cultural life and to enjoy the benefits of social progress in article 27. Article 21 outlines the right to participate in government and in free elections.

Participation, and particularly and explicitly participation of the poorest and most vulnerable participants is a human right and an inherent and indivisible component of pro-poor development strategies and empowerment. Long (1999) argues that participation in development leads to the involvement of the primary stakeholders in the development process. Such involvement, the author posits, enhances ownership, and sustainability of the development programs.

The 'UN System Network on Rural Development and Food Security'55 describes participation as one of the ends as well as one of the means of development. Participation is hence useful in all the stages of development program, right from conceptualization, planning, implementation, monitoring and evaluation.

Article 1 of the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters56 states that,

“In order to contribute to the protection of the right of every person of present and future generations to live in an environment adequate to his or her health and well-being, each Party shall guarantee the rights of access to information, public participation in decision-making, and access to justice in environmental matters in accordance with the provisions of this Convention.”

52 Adopted by the United Nations General Assembly on December 16, 1966, and in force from January 3, 1976.53 ICESCR, Article 1.254 Adopted in 194855 Available at www.rdfs.net/ accessed on June 14th 2011 56 Adopted At Aarhus, Denmark, on 25 June 1998

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Further, Article 3 of the same convention provides that,“such participation shall lead to mobilization of the community and their transformation into prefects of their development.“

In Africa, the African countries have made major strides in democratizing governance since the 1990 Arusha Conference, which produced the African Charter for Popular Participation in Development and Transformation57. The Arusha document was a milestone as it identified the lack of popular participation in development as central to the dismal state of African economies and cause of political instability and social calamity. Popular participation is both a means and an end. Popular participation is recognized in the document as a fundamental right of the people to fully and effectively participate in the determination of the decisions which affect their lives at all levels and at all times.

Further, African [Banjul] Charter on Human and Peoples' Rights 58 ACHPR in article 13(1) provides that every citizen shall have the right to participate freely in the government of his country, either directly or through freely chosen representatives in accordance with the provisions of the law.

A critical analysis of the above international human rights documents exposes 5 (five) core principles for effective citizens’ participation, namely, mass literacy; democratization; freedom of association, political accountability of leadership; and decentralization of decision-making processes and institutions.

b) Effectiveness Argument

Participation of the main stakeholders increases the accuracy of information and relevance to the realities of peoples' lives and policy decision and implementation processes. Public participation is viewed as a tool, intended to inform planning, organizing or funding of activities. Public participation may also be used to measure attainable objectives, evaluate impact, and identify lessons for future practice.59 The public can also better assess government performance and support the oversight of decision making if they are aware of the criteria that are to be applied by the government agencies making the decisions. At a minimum, the public should know60:

i. How the funding priorities were decided;

ii. How they can input;

iii. How plans are made at community level;

57 adopted in February 1990 at the "International Conference on Popular Participation in the Recovery and Development Process in Africa", Arusha, Tanzania58

Adopted June 27, 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), entered into force Oct. 21, 198659 Davies, A. (2001). ‘What silence knows – planning, public participation and environmental values’, Environmental Values, 10: 77–102.60 Id

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iv. How policy consultations are run, who is involved when the policy decisions are made and what arguments exist for and against various policies;

v. How government activities are monitored and how they can get involved;

c) Cost-Efficiency Argument

Involvement of the main stakeholders increases ownership of the development process, better use of resources and is likely to enable mobilisation of local resources to augment or even substitute those from outside. Much of the failure of the strategies of development is due to the fact that most of them were designed in closed environment. If governments were to be obligated to provide information, then public can be empowered to more meaningfully determine their own developmental destines. They can assess the development strategies they want, the project they need and if they are suppressed, they can press for changes to put the development back on track.

d) Process Argument

The participatory process, through building skills, capacities and networks is a contribution in itself to pro-poor development, civil society and empowerment. The role of public participation in economic and human development was enshrined in the 1990 African Charter for Popular Participation in Development and Transformation. 61 Further, improved access to information and public participation in decision-making enhance the quality and the implementation of decisions, contribute to public awareness of environmental issues, give the public the opportunity to express its concerns and enable public authorities to take due account of such concerns. This further presupposes that the public is aware of the procedures for participation in decision-making and they have free access to them and know how to use them.

2.3.3Criticisms of Participatory Development

Despite the various benefits of participatory development, there are various critiques to the concept as below:

a) Costly & Slow

When compared with traditional forms of development, Participatory Development (PD) is sometimes criticized for being costly and slow. A project may take longer if one has to engage, work and come to a consensus with

61 Adopted in February 1990 at the "International Conference on Popular Participation in the Recovery and Development Process in Africa", Arusha, Tanzania, and available at http://apic.igc.org/african-initiatives/chartall.htm accessed on June 11, 2011

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local communities, than if one did not have to do these things.62 PD may also have higher start up costs than traditional development.

b) Low Coverage

In addition, PD is criticized for reaching a smaller population than traditional development. Community dialogue and augmentation may initially involve only a few individuals, whereas dropped food aid reaches hundreds of people.63

c) Marginalization

Critics also argue that in trying to give voice to communities, development agencies may connect only with elite members of a group, thereby re-enforcing local inequalities. They hence treat all people in communities the same, 64 hence not addressing such issues as gender power imbalances 65and hence it fails to adequately address other inequalities such as class66. PD projects have also been accused of enabling tokenism, where a few “hand-picked” local voices are allowed to speak as a “rubber stamp to prove...participatory credentials”.67 This view suggests that organizations only include local voices to improve their image, without really seeking to engage the population with which they are working. Further, there are arguments that outsiders may further reinforce existing inequalities because of their ignorance of local inequalities and/or their dependence on these power structures to gain access to 'communities'. Reference to 'cultural-sensitivity' and the need for 'community participation' are often cited as reasons for not addressing gender issues without even consulting women or men about gender concerns they may have.

A response to the above criticisms would be that the institution implementing the PD projects must be engendered and be well representative.

2.4 PARTICIPATORY DEVELOPMENT IN UGANDA

62 Jennings, R. (2000). ‘Participatory Development as New Paradigm: The Transition of Development Professionalism’. Community Based Reintegration and Rehabilitation in Post-Conflict Settings Conference. pp 4.63 Id 64 Mohan, G. (2008). ‘Participatory Development’. The Companion to Development Studies. Hodder Education. pp 46.65 Mayoux, L. (1995) ‘Beyond Naivety: Women, Gender Inequality and Participatory Development.” Institute of Social Studies. pp 242.66 Mohan, G. (2007) “Participatory Development: From Epistemological Reversals to Active Citizenship”. Geography Compass. pp 78467 Mohan, G. (2008). ‘Participatory Development’. The Companion to Development Studies. Hodder Education. pp 48

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Uganda as a country has adopted various approaches for participatory development at various levels. A few are sampled hereinunder.

2.4.1The Participatory Development (PDM) Programme

The Participatory Development Programme is Government’s deliberate effort to build mutual trust and therefore willingness of the Local Authorities to respect and respond to decisions taken and needs identified through citizen’s participatory processes. It is guided by principles of knowledge and awareness of the Government policies and priorities by the citizenry, self reliance, openness, inclusiveness, transparency and both upward and downward accountability. The Programme is designed to strengthen Local Government institutions to deepen decentralization to the grassroots. Ministry of Local Government and Local Governments implement it with the support of UNDP, Uganda.

The programme aims at assisting Government to implement the above legal provisions intended to empower the local population to effectively participate in planning and management of development programmes which impact on them directly. It also aims at ensuring that peoples’ visions and priorities, right from the village and cell level, are used as building blocks of development plans of higher-level councils and Governments. Activities under the PDM programme revolve around supporting local governments to involve civil society in decision making and development management. This involves capacity enhancement of the Political and Technical Leadership to support and embrace participatory development management as a working modality in their Local Governments.

2.4.2Participatory Budgeting from Uganda Fieldwork 

There is a strong legal, political and institutional framework to support participatory budgeting activities in Uganda.  The local governments are generally following the process of participatory budgeting as outlined in the General Guide to the LocalBudget Process. One area of concern is the extent to which the process is truly inclusive and participatory.  But holding them during a busier season might have adversely impacted attendance.  For example, a budget conference during the working hours might preclude a business person from attending due to his occupational duties whle holding it in the evening might preclude a housewife from attending due to her household duties. Additionally, the team established that when participants do attend, they do not always exercise their voice.  With multiple stakeholder groups in the audience, one group can tend to dominate discussion.  For example, in the study, both community members and local government officials cited technical budgeting knowledge as a hindrance to implementing partiipatory budgeting.  However, budgeting is complicated and that inadequate understanding of the topic could impact the process botho

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n the effectiveness of the mechanism and the process of participation in its own right.  Additionally, it is likely that the lack of capacity of both technical staff and citizen participants adversely impacts the extent to which articipatory budgeting occurs in Uganda.  Such an argument indicates that in some cases local level officials themselves do not understand what participatory processestruly mean, let alone have the capacity to facilitate them.  In this sense, one can argue that there is no true participation in these forums, as technical staff neither facilitated conversation nor probed citizens to uncover their true priorities. 

2.4.3Mechanism for Strengthening Accountability in Local Governance

Uganda also has periodic elections which have a tendency of disciplining the councillors to make policies that serve the needs of those who elect them. However, there are other mechanisms that can be used to hold the local governments accountable. First is the right to recall non-performing representatives. The Ugandan law is explicit on this. Also, citizens can petition against wrong acts. This element can be strong if there is a strong civil society. Further, the right to information is a strong tool for accountability. The Ugandan local government laws provide for the publication of finances in local newspapers circulating in the area (GoK 1998: 127). Uganda, the Universal Primary Education fund figures are displayed on school notice boards for citizens to see and take action if they think there is some foul play. In addition, Ugandan local governments hold budget conferences that contribute to improving the accountability of representatives. Again, there is the provision for citizen’s right to information, a window that can be used by individuals and civil society to monitor what the local government is doing. The Uganda Debt Network, an NGO based in Kampala is monitoring the use of Universal Primary Education funds. This is helping improve accountability.

2.4.4Local Development Planning

One of the important outcomes of participatory development based on the LC system is local development planning. All districts are now expected to compile respective District Development Plan (DDP) reflecting the needs of the grassroots people. However, the level of popular participation in planning varies considerably from one district to another. Citizens’ participation in Uganda has been skewed towards politics. Adults are allowed, and the majority actually votes their leaders into office. Also the media is predominantly preoccupied with political debates. Sometimes such debates influence the decision-making processes of Local Authorities. Citizens’ participation in decision making on development matters that affect them has generally been passive. This is based on the real or perceived failure of Governments, Central or Local to deliver expected services to the citizens. This seems to be the real or apparent reason why local people participate more in politics than in development planning and implementation. People tend to look for leaders who can deliver hence the explanation of the high turnover of political leaders.

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Attempts to solicit peoples’ involvement take the form of occasional one-time consultations, which although sometimes taken to be a proxy for participatory practice, only enable the local authorities to exercise their right to be heard. They are supply focused, not inclusive because they are dominated by the elite and are often marred by mistrust and negative attitudes of both the upstream technocrats and the communities themselves. They therefore don’t allow for peoples’ demands to influence policy making in Local Governments. Consequently peoples’ needs are not accurately identified to inform policy decision-making processes which results into incidences of resentment and occasionally demonstrations over development decisions taken by local authorities. Often this calls for tireless and at times costly interventions to solicit peoples’ support of decisions already taken. Occasionally the decisions are painfully reversed.

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2.5 CHALLENGES AND LESSONS FOR PARTICIPATORY DEVELOPMENT

The challenges and risks associated with participatory development planning include:

a) Time and Money

The participatory techniques themselves are as such inexpensive to use. However, the overall planning process can require a considerable staff time and resources on the part of the government or development agency, especially if it involves extensive preparatory activities like information campaigns and training of facilitators, and the convening of large multi-stakeholder meetings. For local stakeholders, their participation can have significant costs in terms of their time and effort, particularly if they need to forego any wages or sacrifice time spent on subsistence activities.

b) Resistance and Manipulation

Some groups or individuals involved in the participatory planning process may find it difficult to accept the collaborative decision-making approach. For example the government decision-makers may feel threatened that their responsibilities and power are being undermined and may become obstacles to the process (et al. 2004). Other stakeholders may try and manipulate the process to push their own agendas.

c) Bypassing Existing Planning Structures

If participatory approaches are not carefully integrated into formal planning frameworks, they can undermine these existing structures thereby risking conflict and a poor receptivity of the outputs of the participatory planning on the part of public authorities.

d) Scaling–Up Risks

The success of participatory approaches relies on their adaptability to different situations. Therefore, when governments or development agencies attempt to replicate and standardize the use of such approaches on a large scale, there is a risk that the participatory element will become negligible or even meaningless.

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2.6 CASE STUDIES

2.6.1Rural Community and Sub-District-Level Planning In Indonesia

The Indonesian government launched the Kecamatan (Sub-district) Development Program (KDP) in 1998 as a response to a severe economic crisis. The aim of the program which ended in 2008 has been to alleviate poverty and improve local-level governance by: providing poor communities with the financial and organizational resources to decide how to improve their livelihoods; build appropriate infrastructure; provide health care and education services; and build effective local government and community institutions. The World Bank-funded program provided flexible grants, ranging from US$50,000 to US$150,000 per sub-district which were channeled straight to the communities to finance activities that villagers defined as the most important. In addition, the program set aside funds for the thousands of participating villages specifically for participatory planning at the sub-village, village and sub-district levels. Villagers elected facilitators, a man and a woman, who assisted with the socialization and planning process. The facilitators held group meetings, including separate women’s meetings to discuss the needs of the village and their development priorities. Social and technical consultants were available to help with the socialization, planning and implementation processes. For the sub-district level planning, an inter-village forum composed of elected village representatives made the final decisions on project funding based on proposals that came from the communities. KDP community forums then selected members to be part of an implementation team to manage the projects, assisted by technical facilitators provided by the program. While the KDP suffered from numerous shortcomings, it is nonetheless an impressive example of allowing ordinary citizens to plan and fund what development they want to see in their communities.

2.6.2Municipal Rural Development Planning In Brazil

The Centre for Alternative Technologies (CTA), a Brazilian NGO, has devised a participatory process to develop municipal rural development plans (MRDP) in three municipalities as a means to support pro-poor local development and involved contacting communities and negotiations and networking between partners to agree on the guiding principles for the local development process and each partner’s role; a community planning phase that involved a series of group meetings and family interviews in every community and an initial analysis of the key issues emerging; and a final stage that included providing feedback to the communities, deepening the analysis of the issues identified by the communities, and the identification and prioritization of proposals to address some of these issues. The PRAs lasted several months and concluded with the process and results being documented in a MRDP that then became the official agreement between civil society organizations and the municipal

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council. In order to ensure implementation of the plan, CTA and its partners established a municipal council for rural development (MCRD), making use of the national legislation that encouraged such bodies. The council is responsible for implementing the plan and also provides a forum where the municipal policies and proposals for rural investment are discussed. The council is composed of representatives from the town council, agricultural/forestry extension and research services, CTA, rural workers’ unions, women’s groups and smallholder cooperatives.

2.6.3Peri-Urban Community-Level Planning In India

In 2001, an agricultural university in the Hubli–Dharwad twin city region of India partnered with international and local NGOs as well as community-based organizations to run a one-year participatory action planning project (PAPP). This project operated in five peri-urban villages that were selected based on their potential to show how trends in peri-urban areas could affect natural resources and local livelihoods. Factors such as proximity to the city, presence of immigrant populations, and incidence of alcoholism, gambling and other urban influences, were taken into account. The early stages of the participatory planning process involved initial rapport-building activities with the communities using methods like using street plays and then PRA exercises, including group discussions with various sections of the communities to facilitate a village-based analysis of the problems faced by different groups and the identification of community representatives to participate in all future events. A diagnostic workshop was then held where the community representatives presented the findings of their analyses and community, government and NGO representatives collaboratively identified possible solutions. Finally, village representatives designed and presented their own action plans and logical frameworks viz. the format of the action plans, in their communities.

2.7 CONCLUSION

Participatory Development seeks to engage local populations in development projects. It is an important part of the "basic needs approach" to development68 as it seeks “to give the poor a part in initiatives designed for their benefit” in the hopes that development projects will be more sustainable and successful if local populations are engaged in the development process. However, it is until it is studied in the context of human rights that it becomes evident that that participation must be appreciated by all government planning agencies.

68 Cornwall, A. (2002)'Beneficiary, Consumer, Citizen: Perspectives on Participation for Poverty Reduction. ‘Idaa Studies, pp 11.

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-Chapter Three- PROMOTING PARTICIPATORY DEVELOPMENT AS A HUMAN RIGHT

3.0 SUMMARY

This chapter is dedicated to an in-depth examination of the international and regional standards and human rights framework for promoting participatory development.

3.1 PARTICIPATORY DEVELOPMENT AS HUMAN RIGHT

The framing of participatory development as a right has the ultimate goal of describing the sociopolitical process of legalization for a new generation of human rights. The concept of participatory development being viewed as a human right is based on the two components of participation and development, being viewed as rights, in their own right.

3.1.1Participation

Participation is a human rights principle, and as such, it is not a gift or privilege bestowed by government.69 In other words, it is a right for all citizens – especially the most marginalized and vulnerable in society. “[t]here is nothing more basic to the development process than participation,”70 “Effective participation” is that which helps ensure efficiency and economic growth on the one hand, and equity and social justice on the other.71

Article 12 of the UN Convention on the Rights of the Child72 lays down the principle and purpose of meaningful participation of children and young people, and Article 7 of CEDAW on women’s rights.

The Millennium Declaration73 in Article 25 reaffirms the commitment to work collectively for more inclusive political processes, allowing genuine participation by all citizens (and in this case, children and young people included) in all countries.

The World Fit for Children in para 32 (i) adopted at the UN General Assembly Special Session on Children made a strong commitment towards increasing participation of children.

69 See UDHR, Art 1.70 J. Brian Atwood, U.S. Agency for Int’l Dev., Statement of Principles on ParticipatoryDevelopment (1993), http://pdf.usaid.gov/pdf_docs/PNACF577.pdf.71 id72

Adopted and opened for signature, ratification and accession by General Assembly resolution 44/25 of 20 November 198973 UNGA R 55/2

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As noted above, participation is a non-negotiable right. Citizens whose rights are not realized have claims (as “claim-holders”) against those whose responsibility it is to act on it (as “duty-bearers”) – viz, communities, civil society organizations, governments, etc.

A human rights approach to participation implies five key roles for citizens:

a) identifying unfulfilled rights and acting on themb) claiming of rightsc) identifying capacity gaps in rights not realized and duties not performedd) participating in the implementation of solutionse) involving in monitoring, evaluating and reporting

3.1.2Participation in the Context of the UN Programming Process

Participation is also important for guaranteeing developmental programmes – a principle that has been adopted as a “common understanding” within the UN system.

Participation is fundamental to human-rights based approach to programming and it is laid down as one of the five basic elements of the HRBA (others include: express linkage to rights, accountability, equality and non-discrimination, and empowerment).

In the Common Understanding Document74 it is stated that “development cooperation contributes to the development of the capacities of 'duty bearers’ to meet their obligations and/or of ‘right holders’ to claim their rights”.

Capacities for human rights promotion and protection can be only acquired by rights-holders through the process of their active participation in all parts of development programming. Participation is central to the developmental approach as the development is “a process of expanding the real freedoms that people enjoy”. The goal of development is to be free and be able to choose and live the sort of life one wants to live. A community can be considered developed to the extent that it ensures that its entire people are in a position to participate and shape a life of dignity.

Participation is also important for personal development. It is only through participation that humans develop self-confidence and skills, build competencies, form aspirations, gain confidence and attain valuable resources. Learning - through experience – to make informed decisions, to develop stable relationships and to take on the responsibilities of democratic citizenship, is an important component of participation.

74

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Participation is an essential component of successful and lasting development. Therefore, the right to development is fulfilled through popular participation as echoed in the Arusha Declaration:   In our view, popular participation is both a means and an end.  As an instrument of development, popular participation provides the driving force for collective commitment for the determination of people-based development processes and willingness by the people to undertake sacrifices and expand their social energies for its execution.  As an end in itself, popular participation is the fundamental right of the people to fully participate effectively in the determination of the decision which affect their lives at all levels and at all times.75

  The Organization of African Unity (O.A.U) is determined to promote and protect human and peoples’ rights especially the right of people to freely participate, by its affirmation in the African Charter on Human and Peoples’ Rights that: “Every citizen has the right to participate freely in the government of his or her country, either directly or through freely chosen representatives in accordance with the provision of the law (Article 13.1).”

Further, the role of public participation in economic and human development was enshrined in the 1990 African Charter for Popular Participation in Development and Transformation. 76 This is a landmark document in promoting right to participatory development.

Here every African country is supposed to enact relevant laws in this respect.  Member states of the O. A. U are bound to affirm the right to development and encourage the right to participation in their different countries.  Popular participation, however, depends on the nature of the state and the ability of government to respond to popular demands.  This is possible where the government allows the people freedom in decision making.

3.2 DEVELOPMENT AS A HUMAN RIGHT

3.2.1Legal Basis of the Right!

The conception of right is of fundamental import in law because of the enforceability of particular rights. Human rights are classified into three categories as per the trio-classification of rights by Vasak.77 The first generation rights relate to the civil and political rights, guaranteed by the ICCPR; the second generations of rights relate to the social, economic and cultural rights, guaranteed by the ICESCR; and the third category of rights

75 http://www.crvp.org/book/Series02/II-8/chapter_ix.htm#_edn76 Adopted in February 1990 at the "International Conference on Popular Participation in the Recovery and Development Process in Africa", Arusha, Tanzania, and available at http://apic.igc.org/african-initiatives/chartall.htm accessed on June 11, 201177 Vasak Karel, a 30 years struggle, UNESCO Corner (1977) p. 96

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involves the collective rights and includes inter alia the right to development and the right to a healthy living and environment.

The modern poverty reduction and development programmes often have dignity as a central theme. Dignity is also a central theme of the Universal Declaration of Human Rights, the very first article of which states that:

"All human beings are born free and equal in dignity and rights.”78

The concept of dignity in development has been extensively explored by many, and related to all of the development sectors. For example, in Development with Dignity79 Amit Bhaduri argues that full employment with dignity for all is both important and possible in India, while the UN Millennium Project's task force on Water and Sanitation links the sector directly to dignity in the report Health, Dignity and Development: What will it take?80.

The Asian Human Rights Commission released a statement claiming that "Human dignity is the true measure of human development."81

The UN Charter states in its preamble that:

“...mankind thirsts for peace and development and it is in the interests of mankind that international law directs the actions of states by imposing on them the duty to cooperate...”

The Universal Declaration reflected the immediate post-war consensus about human rights based on what President Roosevelt described as four freedoms—including the freedom from want—which he wanted to be incorporated in an International Bill of Rights. There was no ambiguity at that time about political and economic rights being interrelated and interdependent components of human rights, and no disagreement that “true individual freedom cannot exist without economic security and independence.”82

Mrs. Eleanor Roosevelt, who was the head of the U.S. delegation during the drafting of the Universal Declaration, first identified and advocated for the right to development when she stated, “[W]e are writing a bill of rights for the world, and . . . one of the most important rights is the opportunity for development.”83

78 Article 1 UDHR79Amit Bhaduri, (2005) Development with Dignity HB, Print Price: 200.00. Author: ISBN: 81-237-4597-4. Publication: 30-11-2005 80 Goal 1 of the United Nation Millennium Development Goals81Communiqué issue on on July 27, 200682 State of the Union Message to Congress by President Roosevelt, January 11, 1944.83 M. Glen Johnson, “The Contributions of Eleanor and Franklin Roosevelt to the Development of International Protection for Human Rights,” Human Rights Quarterly 9.1 (1987): 19–48.

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The 1986 Seoul Declaration on the Right to Development,84 which stated unequivocally that the right to development is a human right. This declaration sees development as a constant economic, political and social process which aims to constantly improve the wellbeing of the entire population of individuals by their active participation in the developmental process and in the distribution of the benefits therefrom. The first article of the text of the Declaration on the Right to Development succinctly puts forward the concept of the right to development. It states:

“The right to development is an inalienable human right by virtue of which every human person and all peoples are entitled to participate in and contribute to and enjoy economic, social, cultural, and political development in which all human rights and fundamental freedoms can be fully realized.”

The right to development is a hence human right, by virtue of which “every human person and all peoples are entitled to participate in, contribute to and enjoy” that processes of development. Further, the legal justification of the right to development is found in article 2(2) of the UN Charter which affirms that:

“...all human beings have a responsibility for development, individually and collectively taking into a count...their duty to their community...”

Also, Article 1 of the UNGA Resolution 41/128 of 1986 reaffirms that right in clear and categorized terms stating that:

“...the right to development is an inalienable right by virtue of which every human being and all persons are entitled to participate in and enjoy social, economic and political development...”

The process of development, “in which all human rights and fundamental freedoms can be fully realized,” would lead to, according to Article 2(3) “the constant improvement of the well-being of the entire population and of all individuals, on the basis of their active free and meaningful participation in development and in the fair distribution of benefits resulting therefrom [emphasis added].” Article 8 elaborates this point further by stating that the measures for realizing the right to development shall ensure “equality of opportunity for all” in their access to basic resources, education, health services, food, housing, employment and in the fair distribution of income.

84 The Declaration on the Right to Development was adopted by the United Nations General Assembly, resolution 4/128 on December 4, 1986 (http://www.unhchr.ch/html/menu3/b/74.htm). The Universal Declaration of Human Rights was adopted by UN General Assembly Resolution 217 (A) II on December 10, 1948.

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The realization of the right would also require that “appropriate economic and social reforms should be carried out with a view to eradicating all social injustices.”

The primary responsibility for the creation of national and international conditions favorable to the realization of the right to development” is of the states, as Article 3 categorically suggests. This responsibility is complementary to the individual’s responsibility as mentioned above, and is only for the creation of conditions for realizing the right and not for actually realizing the right itself. Only the individuals themselves can realize the right.

In regards to the obligation of the states operating at the international level, the Declaration emphasizes the crucial importance of international cooperation. First, the states have a duty “to cooperate with each other in ensuring development and diminishing obstacles to development . . . and fulfill these duties in such a manner as to promote a new international economic order based on sovereign equality, interdependence, [and] mutual interest . . .” (Article 3, Clause 3). This has been further reiterated in Article 6, which states that “all states should cooperate with a view to promoting, encouraging and strengthening universal respect for and observance of all human rights and fundamental freedoms.”

The Declaration on the Right to Development85 consists of the following four main propositions:

i. The right to development is a human right;

ii. The human right to development is a right to a particular process of development in which all human rights and fundamental freedoms can be fully realized—which means that it combines all the rights enshrined in both the covenants and each of the rights has to be exercised with freedom;

iii. The meaning of exercising these rights consistently with freedom implies free, effective, and full participation of all the individuals concerned in the decision making and the implementation of the process. Therefore, the process must be transparent and accountable, individuals must have equal opportunity of access to the resources for development and receive fair distribution of the benefits of development (and income); and

iv. Finally, the right confers unequivocal obligation on duty-holders: individuals in the community, states at the national level, and states at the international level. National states have the responsibility to help realize the process of development through appropriate development policies. Other states and international agencies have the obligation to cooperate with the national states to facilitate the realization of the process of development.

85 Id

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The International Covenant on Economic, Social and Cultural Rights (ICESCR)86, in article 1 recognizes the right of all peoples to self-determination, including the right to "freely determine their political status"87, right participate effectively in society (Articles 13 and 14); and right to participation in cultural life (Article 15)

The Universal Declaration of Human Rights, 88UDHR guarantees the right to participate in cultural life and to enjoy the benefits of social progress in article 27. Article 21 outlines the right to participate in government and in free elections.

Participation, and particularly and explicitly participation of the poorest and most vulnerable participants is a human right and an inherent and indivisible component of pro-poor development strategies and empowerment. Long (1999) argues that participation in development leads to the involvement of the primary stakeholders in the development process. Such involvement, the author posits, enhances ownership, and sustainability of the development programs.

The 'UN System Network on Rural Development and Food Security'89 describes participation as one of the ends as well as one of the means of development. Participation is hence useful in all the stages of development program, right from conceptualization, planning, implementation, monitoring and evaluation.

Article 1 of the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters90 states that,

“In order to contribute to the protection of the right of every person of present and future generations to live in an environment adequate to his or her health and well-being, each Party shall guarantee the rights of access to information, public participation in decision-making, and access to justice in environmental matters in accordance with the provisions of this Convention.”

Further, Article 3 of the same convention provides that,“Such participation shall lead to mobilization of the community and their transformation into prefects of their development."

In Africa, the African countries have made major strides in democratizing governance since the 1990 Arusha Conference, which produced the African 86 Adopted by the United Nations General Assembly on December 16, 1966, and in force from January 3, 1976.87 ICESCR, Article 1.288 Adopted in 194889 Available at www.rdfs.net/ accessed on June 14th 2011 90 Adopted At Aarhus, Denmark, on 25 June 1998

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Charter for Popular Participation in Development and Transformation91. The Arusha document was a milestone as it identified the lack of popular participation in development as central to the dismal state of African economies and cause of political instability and social calamity. Popular participation is both a means and an end. Popular participation is recognized in the document as a fundamental right of the people to fully and effectively participate in the determination of the decisions which affect their lives at all levels and at all times.

Further, African [Banjul] Charter on Human and Peoples' Rights 92 ACHPR in article 13(1) provides that every citizen shall have the right to participate freely in the government of his country, either directly or through freely chosen representatives in accordance with the provisions of the law.

A critical analysis of the above international human rights documents exposes 5 (five) core principles for effective citizens’ participation, namely, mass literacy; democratization; freedom of association, political accountability of leadership; and decentralization of decision-making processes and institutions.

3.2.2The Value Addition in the Human Rights Approach to Development

If development depends upon policy and not just in the spontaneous play of market forces, then any approach that facilitates, if not ensures, more than another the formulation, adoption, and implementation of appropriate policies to realize the objectives of development would be regarded as superior. When development is seen as a human right, it obligates the authorities, both nationally and internationally, to fulfill their duties in delivering (or, in human rights language, promoting, securing, and protecting) that right in a country. The adoption of appropriate policies follows from that obligation.

The fundamental problem with according the right to participatory development status as a customary international law, however, is that there are too many unknowns with respect to what constitutes this purported right.93

Further, there is no generally agreed upon definition of the right.94 Arjun Sengupta goes so far as to state that “[t]he right to development . . . involves the realization of all the civil, political, economic, social, and cultural rights.”95

91 adopted in February 1990 at the "International Conference on Popular Participation in the Recovery and Development Process in Africa", Arusha, Tanzania92

Adopted June 27, 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), entered into force Oct. 21, 198693 Id. at 1.94 See generally PUTTING PEOPLE FIRST: SOCIOLOGICAL VARIABLES IN RURALDEVELOPMENT (Michael M. Cernea ed., 1985).95 Sengupta, supra note 46, at 857

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The ICESCR speaks of signatories taking affirmative steps to realize economic, social, and cultural rights, but does not further break down the content of these steps.96 The 1986 Declaration similarly contains a discussion of participatory development which is “internally contradictory, duplicative of other already clearly codified rights, and devoid of identifiable parties bearing clear obligations.”

As Arjun Sengupta, one of the foremost proponents of the right to development, acknowledges, “the primary responsibility for implementing the right to development will belong to states.”97 There is little evidence to indicate, though, that states accept participatory development as obligatory as a matter of international law.

3.2.3Philosophical Foundations of the Right

The natural rights theorists, Hobbes (1588-1679), Locke (1632-1704) and Rousseau (1712-1778), were the principle proponents of this secular theory, which was best exemplified by Locke’s claim during the English Revolution of 1688 that certain rights like the right to life, liberty, and property belonged to individuals as human beings because they existed in the state of nature before human beings entered civil society.

Upon entering a civil society, those human beings surrendered through a social contract to the state only the right to enforce the natural rights, not the rights themselves. If the state failed to secure these rights, it violated the terms of the social contract and would be liable to be overthrown by a social revolution.

Among other revolutionaries of the Eighteenth Century, Thomas Jefferson98

claimed that it was not only permissible but morally required to overthrow tyrannies that violate these principles of “natural equity and justice” that formed the basis of the legitimacy of the governments. The American Declaration of Independence openly proclaimed:

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their creator with certain inalienable rights that among these are life, liberty, and the pursuit of happiness.”

Hence the right to development is viewed in this manner—as a human right derived from an implicit social contract binding civil society that identifies duty-holders both nationally and internationally, (primarily the nation-states and the international community, individuals, and groups operating in civil

96 See ICESCR, supra note 48, arts. 2, 3.97 Sengupta, supra note 46, at 855.98 Third President Of The United States, Drafted The Declaration Of Independence

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society) with the obligation to deliver this right—it should be easy to appreciate the controversies surrounding this right.

3.3 CRITICISMS OF THE CONCEPT OF DEVELOPMENT AS A HUMAN RIGHT

One of the arguments made against the concept of human rights is that it suffers from cultural imperialism. In particular, the concept of human rights is fundamentally rooted in a politically liberal outlook which, although generally accepted in Western Europe, Japan, and North America, is not necessarily taken as standard elsewhere. An appeal is often made to the fact that influential human rights thinkers, such as John Locke and John Stuart Mill, have all been Western and indeed that some were involved in the running of Empires themselves. The cultural imperialism argument achieves even greater potency when it is made on the basis of religion. Some histories of human rights emphasise the Christian influence on the agenda and then question whether this is in keeping with the tenets of other world religions. For example, in 1981, the Iranian representative to the United Nations, Said Rajaie-Khorassani, articulated the position of his country regarding the Universal Declaration of Human Rights by saying that the UDHR was "a secular understanding of the Judeo-Christian tradition", which could not be implemented by Muslims without trespassing the Islamic law.

Yet, some feel that the cultural imperialism argument is not entirely factual. While Western political philosophers like Locke, Hobbes and Mill made important contributions to the development of modern notions of human rights, the concept of human rights itself has origins in many world cultures and religions. Additionally, this argument can lead to absolute relativism. If all viewpoints and moral frameworks are equally valid then one cannot condemn any behaviour, however outrageous or horrific. In practice, human rights offer a basis to criticise such behavior or conduct, including imperialism. As such, human rights can be a transformative tool for self-determination.

3.4 CONCLUSION

From the foregoing, it is imperative that governments engage in domestication of international legal regime and standards of participation, development and participatory development as human rights, so as to realize the qualitative enjoyment of both the means and ends of development processes.

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-Chapter Four- UGANDA’S LEGAL & POLICY FRAMEWORK ON PARTICIPATORY DEVELOPMENT

4.0 CHAPTER SUMMARY

This chapter focuses on Uganda’s legal and policy framework on participatory development.

4.1 THE PROVINCE OF LAW

John Locke (1664) observed that the purpose of law is to preserve and enlarge freedom.99 Indeed, the role of law, as stipulated in the contracterian theory of law, is to regulate relations of the societal towards promoting progress and protection of property and life100. In so doing, the law operates to clearly identify rights and obligations and to render the correct desert to the various actions (Weber, Max)101. The current rights based approach to development stipulates that the law serves to clearly stipulate the duties and obligations of duty bearers, and to guarantee rights and claims of the right holders, for the purposes of facilitating settlement of disputes and enforcement of duties (Tamale, 2005). The law hence performs a very critical function in fulfilling the dreams and demands of the citizenry. The law is important in promoting participatory development. The law needs to obligate the government, as the main duty bearer, to provide information to the citizens.

4.2 THE CONSTITUTIONAL FRAMEWORK FOR POPULAR PARTICIPATION IN UGANDA

The Constitution of the Republic of Uganda 1995 guarantees every Ugandan the right to participate in the development process of Uganda.  However, the same constitution limits this right in case of activities which may threaten the peace in Uganda (Article 38). 

National Objective X of the Constitution on the Role of People in Development states that:

“The state shall take the necessary steps to involve the people in the formulation and implementation of development plans and programmes that affect them.”

99 John Locke, (1664) Questions Concerning the Law of Nature, edited. Ithaca: Cornell University Press, 1990.100Supra note 53 101 Supra note 54

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The Ugandan constitution also recognizes the need to protect the rights of the minority to participate in decision-making processes that their views and interests are taken into account in making national plans and programmes (Article 36).  This is a good gesture in response to the requirements of the right to development, which is to encourage popular participation in all spheres as an important factor in development and in the full realization of all human rights. 

While it is true that the Uganda government has, since the enactment of the 1995 Constitution, encouraged different groups of the population: women, youth, workers, elders, the army, etc., to participate actively in the affairs of this country, it has remained reluctant to allow broad based political participation.  Article 269 of the constitution, for instance, regulates political organizations by limiting their active participation in the political governance of the country contrary to the other provisions of the same constitution.  This in reality means that people must not organize and mobilize themselves under different political organizations. The lesson here for Ugandans is that for meaningful development to take place, popular and democratic participation must be the guiding principle.

Additionally, the Ugandan Constitution allows space for civic participation, stating that “…every Uganda citizen has the right to participate in the affairs of government, individually or through his or her representatives in accordance with law.”102  

4.3 THE STATUTORY FRAMEWORK FOR POPULAR PARTICIPATION IN UGANDA

People’s involvement in the Country’s development processes is provided for in the Uganda Constitution and the supporting Local Government Act (LGA).

National Objective X of the Constitution on the Role of People in Development states that:

“The state shall take the necessary steps to involve the people in the formulation and implementation of development plans and programmes that affect them.”

Sections 35(3) and 37(4) of the LGA CAP 243 respectively state that:

“The District Council shall prepare a comprehensive and integrated development plan incorporating plans of lower level Government for submission to NPA and that LLGs shall prepare plans incorporating plans of

102 Constitution of the Republic of Uganda 2005.  The Republic of Uganda. September 30, 2005, Article 38‐1 

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Lower Councils in their respective areas of jurisdiction.” and “Technical Planning Committees shall coordinate all plans of Lower Councils and submit integrated plans to their respective councils for consideration and approval.”

To implement these provisions there is an elaborate democratically elected Local Council system comprising:

a) Higher Local Governments – The City (1), City Divisions (5), Districts (79) and Municipalities (13)

b) Lower Local Governments – Sub-counties (900), Town Councils (92) and Municipal Divisions (34).

c) Administrative Units – County Councils (151), Parishes and Wards (5,500) and Villages and Cells (45,000)

4.4 UGANDA’S POLICY AND INSTITUTIONAL FRAMEWORK 

In 1992, Uganda implemented an extensive decentralization plan, devolving many important fiscal responsibilities to local governments.  This plan was rapid and broad‐sweeping, giving local governments a significant amount authority and autonomy over a short period of time in comparison to other countres who have implemented decentralization more incrementally. According to the National Constitution, “…decentralization shall be a principle applying to all levels of local government and in particular, from higher to lower local government units to ensure people’s participation and democratic control in decision making.”103   

To ensure this transfer of fiscal and administrative responsibility, the constitution also promises, “…each local government unit a sound financial base with reliable sources of revenue.”104 Although this figure varies under such conditions as rural versus urban localities, intergovernmental Fiscal Transfers (IFT) in the form of Conditional, Unconditional and Equalization grants account for up to 90% of local government revenues in Uganda. 

From these revenues, local governments are responsible for service provision and planning their budgets on both the expenditure and revenue sides.  Budgeting is guided by the Uganda Poverty Eradication Action Plan (PEAP) which, in 1997, established four main pillars for transforming the Ugandan economy, namely: “105…creating a framework for economic growth and transformation; ensuring good 

103Constitution of the Republic of Uganda 2005.  The Republic of Uganda. September 30, 2005, Article 176‐2b 104Constitution of the Republic of Uganda 2005.  The Republic of Uganda. September 30, 2005, Article 176‐2b 105 Infra

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governance and security; directly increasing the ability of the poor to raise their incomes; and directly increasing the quality of the life of the poor.”106   

Additionally, the Ugandan Constitution allows space for civic participation, stating that “…every Uganda citizen has the right to participate in the affairs of government, individually or through his or her representatives in accordance with law.”107  

The straightforward process for participation in the budgeting process is laid out step‐by‐step in the “General Guide to the Local Government Budget Process for District & LLG Councillors, NGOs, CBOs & Civil Society,” which provides tools to guide local governments though the local government planning and budgeting cycle.108   

The Ugandan government has also provided a strong institutional foundation for participation through the creation and support o government bodies such as the Ministry of Local Government (MLG), advisory bodes such as the Local Government Finance Commission (LGFC) and other non‐state institutions such as the Uganda Local Government Association (ULGA), business and professional associations and labor unions.  The Uganda Local Government Act further contributes to the institutional framework of budgeting in Uganda as it allocates a dsignated number of seats in local governments for marginalized groups such as women, youth and people with disabilities.   

The legal, political and institutional framework provides solid support for participatory budgeting in Uganda.  However, beyond the established process and legal protections, factors related to implementation of the process are also necessary for the success of participatory budgeting. 

106 The Right to Participate:  Participatory Budgeting & Revenue Generation in Uganda Uganda’s Poverty Eradication Action Plan, Summary and Main Objectives. Ministry of Finance, Planning and Economic Development, March 24, 2000. http://www.imf.org/external/NP/prsp/2000/Uga/01/index.htm107 Constitution of the Republic of Uganda 2005.  The Republic of Uganda. September 30, 2005, Article 38‐1 108Local Government Budget Committee. “General Guide to the Local Government Budget Process for District & LLG Councilors, NGOs, CBOs & Civil Society” 

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4.5 AN ANALYSIS OF LAWS ENCUMBERING ACCESS TO INFORMATION

4.5.1Official Secrets Act

The Act, relates to state security.109 The breadth of the Act concerns itself with the regulation of the interaction between agents of foreign powers and prohibited government premises as well as official government documents. Most of the provisions are broadly framed, effectively obstructing the free flow of information from official sources. The Act is also clogged with severe criminal sanctions for infringement of any of the provisions. The list of documents classified as official documents is unnecessary broad and potentially unlimited. Public participation in natural resources exploration and management is very critical to enhance transparency. This is however difficult where such documents like licenses remain classified documents under the Act. Secondly, the phrase “other document of a similar character” is undefined and ambiguous and therefore subject to abuse where no specific benchmark is set. There is also no provision as to who determines that any other document apart from those listed is an official document under the Act. Further, under Subsection 2, the prosecution need not prove that the accused was guilty of any particular act tending to show a purpose prejudicial to the safety or interests of Uganda. Rather, reliance is put on circumstantial evidence and previous character of the accused person. Similarly under Subsection 3, any document, note, article, sketch or plan obtained or collected by a person other than a person acting under a lawful authority, shall be deemed to have been obtained or collected for a purpose prejudicial to the safety or interests of Uganda unless the contrary is proved.

The main Section of the Act that limits public access to official records is Section 4 which in effect restrains those in possession of certain pieces of information from disclosing such information. Article 14 (2) of the International Covenant on Civil and Political Rights (ICCPR) enshrines the presumption of innocence as of right. Besides, the accused’s guilt must be proved and still this proof of guilt shall be in accordance with the law. Article 7(b) of the African Charter on Human and People’s Rights (ACHPR) also recognizes the presumption of innocence of an accused person. On the other hand, Section 4 (3) of the Act criminalizes any act of receiving the prohibited information. The above provision widens the scope of liability right from the public officer in whose custody the information is, to the solicitor who may be a citizen. It is apparent from the section that public officers under a contractual obligation to the government are precluded from disclosing information encountered within their course of duty to citizens. This is because under the section disclosure is limited to authorized persons. Unfortunately, the Act does not define who these persons are. The net effect of this is that the public and citizens are unfairly and indeed unjustly denied clusters of information under the guise that 109 See short title to the Act, it states thus “ An Act relating to State Security”

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they are not authorized persons. This constitutes an unjustifiable limitation on the right of access to information. Secondly, it is provided under the Constitution that information prejudicial to state security is expressly excluded. Nonetheless it should be noted that not all information on security is prejudicial to state security. Still on this inquiry, it was found that the purchase of junk military equipment was not only economically disastrous to the country but also a strong compromise to security. More examples on this exist in the Ghost Soldiers’ Scandal where the army pay roll was inflated to reflect many soldiers when in reality they were just a few of them. Clearly, public oversight especially on state expenditures even in the security sector is critical in promoting transparency in the administration of public funds and in promoting efficiency in the public sector. This section thus constitutes unjustifiable inroads into the right of citizens to participate in their governance through access to information. The Official Secrets Act is an archaic and opportunistic law used by undemocratic regimes to cloak themselves from transparency and accountability. The law is disguised as a law to enhance and protect state security while illegitimately limiting access to information in government custody. It is contrary to the fundamental democratic standards of open government which forms a strong foundation for all democratic comities.

4.5.2Evidence Act

The Evidence Act110 applies to all judicial proceedings. Although the Act as observed regulates the tendering of pieces of evidence, some of its provisions have far-reaching consequences on the right of access to information. One of such provisions is to be found in Section 122 of the Act. It unjustly limits access to public records. In the first instance there is no requirement for the head of department to state reasons for denial of permission to access unpublished records under his/her control. This is very significant to prevent unreasonable denial of information. It is surprising that under Section 123 of the same Act, access to official communications can be denied where the public interest would suffer from disclosure of such communications. It is however submitted that while public interest is vital, it should be construed only within the limitations set out in Article 41 of the Constitution that guarantees the right of access to Information.111 Under this Article, it is only that information that is prejudicial to state security or sovereignty or another person’s right to privacy that can be withheld. Secondly public interest should not at any time limit enjoyment of a right beyond what is acceptable and demonstrably justified in a free and democratic society. This principle is well established under the Constitution and Ugandan jurisprudence.112The effect of Section 122 (then 121)

110 Cap 6 Laws of Uganda 111 Under Article 41 of the Constitution of Uganda 1995, Every Citizen has the Right of Access to information in possession of the State or any organ of the state except where such information is prejudicial to state security or sovereignty or with the right of privacy of another person.112 See Article 43 of the Constitution. The same principle was reechoed in Charles Onyango Obbo & Anor v. Attorney General

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of the Evidence Act was decried by Oder JSC in Major General Tinyefuza v. Attorney General.113 In this case the petitioner sought to adduce evidence of radio messages in support of the petition. However Section 121 (Now Section 122) of the Evidence Act required seeking of permission from the head of department before one could use such information. The Learned Justice of the Supreme Court held that such a provision had the undesirable effect of limiting the right of access to information safeguarded under the constitution.114 Most importantly, both the Constitutional and Supreme Courts stated that the right of access to information includes the right to use such information in courts of law to support a citizen’s case. In a nutshell the radio messages were held to be admissible and to be in conformity with Article 28 that provides for a fair hearing. Despite this ruling, Section 122 remains on the Statute books. Section 122 of the Act should be amended to provide for the head of department to furnish reasons where he/she denies access to a public record under his/her control.

4.5.3Parliament (Powers and Privileges) Act

The Parliament (Powers and Privileges) Act115 seeks to define powers and privileges of parliament, secure freedom of speech in parliament and to protect persons employed in the publication of reports and other papers of parliament.116 The major provision as regards accessing information in or before parliament is Section 14 of the Act. Section 14 unjustifiably restricts access to contents of documents laid before parliament and committees of parliament by subjecting access to such documents to the leave of the speaker but does not specify grounds for which the speaker may deny access. The above provision was considered in Zachary Olum & Another v. Attorney General.117 In this case the petitioners challenged the Constitutionality of the Referendum Act having been passed without requisite quorum. They sought to adduce a hansard and video recordings of parliamentary proceedings in evidence but the respondents objected on the basis of Section 15 of the National Assembly (Powers and Privileges) Act that provided that such evidence would only be used with leave of the speaker of parliament. The Constitutional Court reiterated its earlier position in the Tinyefuza case to hold that the impugned provision was inconsistent with the constitution. Okello J.A further stated that ‘access to information without use would be empty’. Accordingly, the petitioners were entitled to adduce the Hansard and video recordings in evidence. Section 14 of the Parliament (Powers and Privileges) Act should categorically state conditions for which the speaker may deny access to contents of documents laid before parliament and its committees.

113 Const. Petition No.1 of 1997114 Attorney General v. Major General David Tinyefuza, Const Appeal. No. 1 of 1997, judgment of Oder,JSC, at pp.38-9115 Cap 258, Laws of Uganda 2000.116 See Title to the Act117 Const. Petition no. 7 of 1999

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These conditions should be in tandem with those under Article 41 of the Constitution, namely, information should be denied only where disclosure is prejudicial to state security, sovereignty of the state or another person’s right to privacy. Above all, the reasons for non disclosure should conform to those that are acceptable and demonstrably justified in a free and democratic society.

4.5.4The Oaths Act Cap 19

The Act aims at consolidating the law relating to the taking of oaths in Uganda. Of importance to Access to information is the oath of secrecy which is sworn by all senior government officers. Generally all chief executive officers in government institutions take this oath and the oath prohibits public officers from the sharing of information which comes into their hands in the course of their duty. This provision is in conflict with the spirit of the Access to Information Act. It will be difficult for the information officer who has taken an oath of secrecy to give information to the public as part of his legal obligation. There is urgent need to repeal this oath to provide for other forms of swearing for public officers. As already observed above, one of the impediments to full disclosure and maximum access to information in the public domain are the archaic and inconsistent laws. Most of them had been enacted essentially to protect colonial governments of the day, but have persistently remained on the national statute books. Successor regimes have and continue to utilize them to keep themselves in power by limiting public participation. Clearly, these laws cannot stand Constitutional Scrutiny in the wake of renewed calls for commitment to good governance, rule of law and Constitutionalism.

4.6 CONCLUSION

The subject of this chapter was the legal frameworks for citizen participation in Uganda. Uganda has the most advanced system of representation and therefore participation. However, there are still laws that need to be amended to be in line with access to information legislation as far as access to information is concerned, so as to promote participatory development.

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-Chapter Five- AN ANALYSIS OF UGANDA’S ACCESS TO INFORMATION ACT NO. 6 OF 2005

5.0 CHAPTER SUMMARY

Chapter five focuses on Uganda’s Access to Information Act No. 6 of 2005 with reference to its ability to promote participatory development in Uganda.

5.1 PRINCIPLES OF PARTICIPATORY DEVELOPMENT

As noted earlier, A critical analysis of the above international human rights documents exposes 5 (five) core principles for effective citizens’ participation, namely, mass literacy; democratization; freedom of association, political accountability of leadership; and decentralization of decision-making processes and institutions.

5.2 ABOUT FREEDOM OF INFORMATION IN UGANDA

5.2.1Freedom of Access to Information Is a Human Right

Freedom of access to information is a human right and forms one of the defining characteristics of a democratic society and the basis for open government. The United Nations (UN) General Assembly in 1949 passed Resolution 59(1), which stated that freedom of information is a fundamental human right and the touchstone of all freedoms to which the UN is concerned. The International Covenant on Civil and Political Rights which Uganda ratified in 1995 guarantees the right to freedom of expression providing, Everyone shall have the right to freedom of expression, this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print...." Article 9 of the African Charter on Human and Peoples' Rights also provides for freedom of expression.

The right to access information is an important human right. Access to information in government possession is one of the ways of promoting good governance, improve and strengthen the culture of transparency and accountability in the public sector. The value of access to information legislation comes from its importance in establishing a framework of open governance. In this context, the law must be premised on a clear commitment to the rule of maximum disclosure. It will curtail abuse of power, human rights violations and corruption by exposing the veils in government dealings to the public. The right to access information gives practical meaning to the principle of participatory democracy. The underlying foundation of the democratic tradition rests on the premise of an informed constituency that is able to

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thoughtfully choose its representatives on the basis of the strength of their record and that is able to hold their government accountable.

5.2.2Odoki Commission

The genesis of this in Article 41 of the Constitution of Uganda can be traced to the recommendations of the Uganda Constitutional Commission (the Odoki Commission). Reflecting on a constitutional history that entailed the non-respect for human rights and the absence of democratic values, the Odoki Commission pointed out that "the fundamental freedom of expression and the right of every person to information are vitally important rights, at the centre of the struggle for the defence of human rights and democracy". Ultimately, the Odoki Commission recommended, "the freedom of expression which includes freedom to speech, receive, hold and impart opinions, information and ideas without interference should apply to all individuals, groups and the media". Further, the Commission recommended, "public officials should be free to disclose information they come across in the course of their duties, provided it is not classified".

5.2.3Constitutional Provisions

In Uganda, Act No 6 of 2005 does not provide for the right to access information, as stated. The right to information is contained in Chapter four of the Constitution, and is part of the Bill of Rights.

Under the Constitution, Article 20 clearly stipulates that fundamental human rights set out in the bill of rights are inherent and not granted by the state. It follows therefore that Access to Information Act does not grant right of access to information. This right is not even granted by the Constitution but is inherent. The Constitution however also sets limits, as rights are not absolute. The limits set by the Constitution constitute the maximum beyond which no law can add. A statute cannot set limits beyond those set by the Constitution.

5.2.4The Enactment of the Access to Information Act 2005

Since 2004, The Foundation for Human Rights had been actively engaged in legislative analysis and advocacy for the enactment of the Access to Information Act 2005. This was passed in 2005 and received presidential assent on July 7, 2005. It came into force on April 20, 2006. The President's office issued the Commencement Instrument on March 3, 2006 notifying the commencement to all government departments and agencies.

The Act seeks to promote an efficient, effective, transparent and accountable government, giving effect to Article 41 of the Constitution, protecting whistle

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blowers, promoting transparency and accountability in all the organs of the State as well as empowering the public to effectively scrutinise and participate in government decisions that affect them.

5.3 ACCESS TO INFORMATION ACT & PRINCIPLES OF PARTICIPATORY DEVELOPMENT

Whereas there are many principles of participatory development as above illustrated, this section will look at the two principles which are relevant and ought to be covered by an access to information regime.

1.3.1Mass Literacy/Proactive Disclosure

a) Proactive Disclosure

The information collected should be proactively disclosed by the government on its website, at a minimum. It should monthly be collected by each public body and sent to the government department responsible for overall implementation of the Act.

b) Citizens Right of Appeal If Access to a Basic Government Record Is Denied

 

Section 37 of the Access to Information Act, 2005 states that a person may lodge a complaint with the chief magistrate because of a decision by an information officer that resulted in information being denied. There is ignorance of the Access to Information Act and so people normally do not appeal. However, much as citizens have a right to appeal, not many of them know about this right.

a) Mass Literacy Program

Strengthening communication capacities for rural development through mass literacy is one ground for promoting participatory development. However, the current law does not provide for such mass literacy programs. Literacy skill training is a means of enhancing popular participation. The law should provide for a system to help initiate, animate and promote mass literacy and training programs.

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1.3.2Access to Information

a) Citizens Right of Access to Government Information and Basic Government Records

 Under Article 41 of the 1995 Constitution of Uganda, every citizen has a right of access to information in the possession of the state or any other organ of the state except where the release of the information is likely to interfere with the security of the state or the right to the privacy of any other person.

However, Access to Information Act, 2005 is restrictive. The Act is unconstitutional in so far as it purports to exclude certain categories of information e.g. Cabinet records or those of its committees. Because this goes beyond the limits set by the Constitution. The public can only be denied access to these records if the State can show that their release is likely to prejudice ‘the security or sovereignty of the state or likely to interfere with the right to privacy. Records of court are already freely accessible to the public even before the coming into force of the Act. The only requirement is payment of one thousand five hundred Uganda shillings (Shs. 1,500) for perusal, about one US dollar. The attempt therefore to remove them from accessible record is unconstitutional.

b) Publicise Request

In accordance with best practice all the statistics collected should be compiled into an annual report. The Access to Information Act requires the Minister responsible for Information to submit an annual report in Parliament on the requests to access information and/or place the said report on government websites. The report should be disseminated as widely as possible.

c) An Established Institutional Mechanism through Which Citizens Can Request Government Records

Section 10 of Access to Information Act, 2005 states that for the purposes of this Act, the Chief Executive of each public body shall be responsible for ensuring that records of the public body are accessible under this Act. Section 10 (1) of the Access to Information Act, 2005 states that a request for access to a record or information shall be in writing in the prescribed form to the information officer of the public body in control of the record or information required and shall provide sufficient details to enable an experienced employee of the body to identify the record or information. However, the public officers are not trained, and they are not present currently in ministries.

d) Citizens Receipt of Responses to Access to Information Requests within a Reasonable Time Period

 

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Sometimes it takes less time for information that is already in the public domain, such as reports accessible through websites. But for information not accessible through the public domain, requests take a very long time. For example, the government still refuses to release information on the oil agreements it signed with Tullow Oil and Heritage Oil companies on how proceeds will be shared. The government refuses to release this information even to Parliament, despite complaints from the general public and individuals. On June 17, members of the civil society, East African Legislative Assembly (EALA) visited oil areas in Hoima under the ownership of Tullow Oil Company, but were denied access to the Tullow drilling sites by the Petroleum Exploration Production Department. (The Independent July 28, 2009)

e) The Cost of Access to Information Mechanism 

Despite the government passing the Access to Information Law, there are still challenges to its use. First of all, the government has not developed specific guidelines for the implementation of the law. These guidelines should be developed and shared with all responsible officers under the act to guide them on implementation of specific aspects of the law. But this hasn't been done yet. For example, Section 39 of the Access to Information Act 2005 provides that the rules committee shall, within six months after the enactment of the act, make rules of procedure to regulate the procedure made under the same act. The same section goes on to say that these rules of procedure will regulate the procedures. However, the regulations have never been made, delaying the effective operationalization of the law. Secondly, the act actually doesn't repeal the Official Secrets Act which creates barriers to citizen access to information other than that which would interfere with the security of the state. Due to this, it is sometimes difficult for citizens to use the Access to Information Law alone to get access to records such as those which are up-to-date.118 The government has refused to make public oil agreements despite requests from the public.119Information may be accessed but at a cost of photocopying and other costs that emerge from the information source. The law is in place, but in practice but it depends on the willingness of the information holder because there is no information about how to pursue information that is denied.

f) Quality Of Responses To Information Requests  Responses given normally relate to information interfering with the security of the state and the requirements under the Official Secrets Act. 120

118 Uganda Governance Monitoring Project Trends Report; Discerning Governance Trends in Uganda (2004-2008), February 2009. 119 Media Reports (New Vision. Daily Monitor July 2008 to August 2009)120 New Vision, Daily Monitor, Weekly Observer, The Independent June2008 to August 2009

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Information relating to budgeting, corruption and issues of good governance are usually irrelevant or not provided at all. The Ministry of Information, through the district-information officers, tends to serve the interests of the NRM when giving out information, so members of the opposition tend to be sabotaged. The Resident District Commissioners (RDCs) are deployed by the president and his NRM party and, of course, they serve the interests of the NRM and tend to dismiss information requests and even issue threats to those people needing information. The responses to information requests vary in quality.

The government sometimes ignores lawful requests for information. For example, when two journalists with the Daily Monitor recently asked the government to release details of the revenue-sharing agreements that relate to the oil exploration process, they did not get the answers they needed.

g) Grounds for refusal to grant access to information

Getting information from the government is a very cumbersome process. The bureaucracy in civil service does not permit any officer to just release information. This is normally vested in an accounting officer called the Permanent Secretary. However, with restructuring, there are now public relations officers in all government departments. Citizens do have access to information but the majority of them are illiterate, and much of the information is indecipherable even to the educated; for instance, the annual budget is too technical. The most appalling is the exception that denies access to information relating to detention of persons, investigations, prosecutions and disclosure of techniques etc. this is a blank cheque to governments to violate human rights with impunity. This relates to detention of citizens in “safe houses” practices of torture etc. the very information Article 41 grants access to, in order to prevent abuse of power. These exceptions can only hold if it is shown and the onus is on the state, that the disclosure will prejudice National Security or State Sovereignty. Where Information is denied, often times no substantive reason is given except that the information being sought would interfere with the security of the state. In the case of not releasing oil agreements which caused two monitor journalists to sue the state, sighting the Access to Information Law, no reason has been given for denying citizens access to information.121 However, access to information is a procedural issue, such as getting clearance from the Permanent Secretary or Head of Department, sometimes going through this procedure is cited as a reason.

h) Privileged Information

121 Media Reports (New Vision, Weekly Observer, Daily Monitor, The Independent June 2008 to August 2009)

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Under Article 41, there is no such category as “privileged information”. What is set out in the paper under this item i.e. trade secrets, commercial and financial information, scientific information etc, is not exempted or even envisaged under Article 41. This is the information that must be disclosed for “good governance” as indicated earlier above. The exception relating to protection of property and the safety of person is not envisaged by Article 41 and as such is unconstitutional and unenforceable. The exception under Article 41 relates only to privacy not to safety and property. So is the refusal to grant access to information on account that it would deny a person right to a fair trial. As already stated, all court records are freely available. The Act has no business trying to “achieve a reasonable balance between public access, individual privacy and state confidentiality”. This is not its role. It is only limited to operationalisation of Article 41 but not to set its own new limits, boundaries and standards. The exceptions to access as set out in the paper are mainly unconstitutional. For example, an Information Officer refusing access on account of proprietary, scientific or technical information. Where is this exception set out in Article 41? It is not even envisaged. There are other laws such as copy rights and trademarks that deal with this. The provision that allows the information officer to deny information on account of likelihood to constitute breach of duty or contract is also unconstitutional. In fact the purpose of Article 41 is to force the state to provide such information. Otherwise, every contract government signs would simply include a confidentiality clause.

5.4 CONCLUSION

From the foregoing, it is clear that there is need for regime of laws that espouses the above listed principles of participation law, so as to enhance participatory development. The Act therefore ought to have been reviewed with the above in mind. The Act does not therefore compel Government to guarantee access to information in its custody. It is agreed that international human rights law had influence in enactment of Article 41 of the Constitution, especially Article 19 of the Universal Declaration of Human Rights.122 Without going to all the details of all issues raised in the paper, let me conclude that the Access to Information Act is a bad law. As its effect is to limit and not provide access to information. It creates many limitations that are beyond those prescribed under the Constitution and as such most of its provisions are null and void. Finally, effective implementation is fundamental to the success of any access regime, hence the government to take steps to establish the necessary infrastructure and systems which will ensure that the law is effectively operationalised.

122 See R. Ikoja- Odongo & Dick Kawooya Access to information Act in Uganda. An Examination of Recent Developments”, by the East African Journal of Peace and Human Rights Vol. 12 (2) 2006.

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-Chapter Six- SUMMARY OF FINDINGS, CONCLUSIONS AND RECOMMENDATIONS!

6.0 CHAPTER SUMMARY

This chapter gives a brief summary of the findings, conclusions derived from the findings and recommendations based on the findings. It further outlines suggested areas for further research. The chapter is divided into three sections. The first section deals with summary of findings. The second section provides the conclusion of the research findings while the lasts section provides the recommendations and implications for future research together with suggested areas of further study.

6.1 SUMMARY OF FINDINGS

Uganda’s poverty is appalling. Uganda ranks 157th out of 182 countries in the 2009 Human Development Index of the United Nations Development Program123. The ranking of Uganda in access to information and transparency is very low at 51 in the Open Budget Index with key documents and reports about in-year spending remaining inaccessible, making it extremely difficult for the public to track what the government is receiving, spending and borrowing throughout each year.124 Further, corruption, which is central to crippling development,125 is rampant in Uganda, with the country having been ranked at number 91 by Transparency International in 2010. Transparency International’s (TI) 2010 Corruption Perceptions Index (CPI), released in October 2010 identified Africa as the most corrupt region in the world.126 The law neither obligates the government to proactively disclose information, nor does it provide for citizen activism in accessing such information. Indeed, the refusal of the government of Uganda to disclose the details of the companies mining oil127 and the subsequent harassment of the individuals who sought such information renders credence to the averment that the law is spineless in promoting participatory development. It is imperative that the law takes a central role in obligating the government to provide information and facilitate participation in development. In so doing, the law operates to clearly identify rights and obligations and to render the correct desert to the various actions (Weber, Max, 1890). This need for availing information as a tool to enhance participatory governance creates an obligation on the parties holding the relevant information to ensure that the people attain certain information for

123 See Uganda: Country Brief available at http://web.worldbank.org, accessed on March 15, 2011124 See TRANSPARENCY SNAPSHOT: Uganda Available at http://www.revenuewatch.org/our-work/countries/uganda/transparency-snapshot accessed on March 16, 2011125 Id 126 Transparency International, Corruption Perceptions Index, Transparency International, www.transparency.org.127 See http://www.skyscrapercity.com/showthread.php?t=1137943&page=7 accessed on March 15, 2011

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their use in development. This right to access information has been enshrined in treaties, declarations, and soft law.

Uganda’s representation in local government brings on board many categories that had been marginalized in the political process, namely women, youth and disabled have special reserved seats. Further, elections remain one important mechanism of citizen participation. Real participation goes with powers to make laws, to budget and plan, to hire and fire civil servants and to raise resources through taxes.

Ugandan local governments can hire and fire their civil servants without reference to the central government. A serious limitation to local governments in the three countries is their inability to raise enough resources independent of the central government and donors. This curtails citizen participation. In terms of accountability, there are provisions in the law especially in the Ugandan one for recalling non-performing representatives, for public display of budgets and expenditures including budget conferences. There are several instances which show that the little opening for citizen participation in local governance can close.

From the foregoing, it is clear that there is need for regime of laws that espouses the above listed principles of participation law, so as to enhance participatory development.

6.2 RECOMMENDATIONS

a) Legal Reform

There is hence need for a comparative review of the current legislative, policy and institutional framework in Uganda, with the aim of understanding the gaps and lacuna that creates this inertia and to promulgate a new legal regime that will go beyond merely giving the citizen the right to access public information, but obligating both the government and private sector players to provide, proactively, certain types of information, which are necessary for the public to participate not only in governance, but also in to allow them to enhance social choice in the production of ‘life sustaining’ necessities such as food, shelter, and health care and broadening their distribution; raising standards of living; and eradicating ignorance.128 This new regime of laws will move from enhancing access to information to promoting popular participation through improving the freedom of people to choose129 between different ways of thinking130 and their capability to choose how they want to live.131 This new

128 Tadaro Michael, Economics for a Developing World, Singapore, Longman Group, 2nd Edition Ed 1977.129 Supra Note 2 above130 Amartya Sen (1981) Equality of What131 Poverty and Famines: An Essay on Entitlement and Deprivation (1981)

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regime of laws will be pillared on two twin concepts popular participation of the citizenry in development through access to information.

This paper analyzes the relationship between the concept of participatory development and access to information with special the role of access to information law in facilitating the popular and hitherto missing participation of the citizenry in development. The author hypothesizes that facilitation of popular participation of the citizenry in the process of development and the sharing of benefits arising therefrom will lead to enrichment of human lives. The author opines that the current laws, policies and institutions regulating access to information and availability of communication infrastructure are not sufficient to facilitate participatory development. There is a gap in participation, and the role of law in development by regulating social conduct should be invoked. The governments must now be obliged to establish institutions to promote participation of the populace in development. The paper concludes that the government has an obligation to provide legal, institutional and policy infrastructure to ensure that the people attain certain information and have access to communication avenues for their participation in development.

b) Popular Participation Law

There is need for a promulgation of a popular participation law which shall combine decentralization and participation to promote local ownership of development. This law will empower registered community-based organizations in both rural and urban municipalities to participate in making municipal development plans and implementing local development projects. The law will also impact social sector investment by leading to decentralization of education, health and basic sanitation over poverty reduction in Uganda. Such law should also expand the scope of pre-emotive information to cover all information that is needed by individuals to participate in governance.

c) Establishment of One Stop E-Governance Information Spot

The government should quickly move to realize a one-stop portal for the four basic models132 of e-governance, namely, Government to Customer (Citizen), Government to Employees, Government to Government and Government to Business. This will enhance informed decision making and participation of the public in matters of development.

d) Mandatory Disclosure In The Public Interest

Despite the above listed grounds of refusal, the Information Officer should grant a request for access to a record of that body if, the disclosure thereof

132 Garson, D.G. (2006). Public Information Technology and E-Governance. Sudbury, MA: Jones and Bartlett Publishers.

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would reveal evidence of a substantial contravention of, or failure to comply with, the law; or an imminent and serious public safety or environmental risk; and the public interest in the disclosure of the record, outweighs the harm contemplated under the grounds for refusal.

e) FOI Manual

The information commission should also provide a manual to ensure adherence to the act. Every private entity should have a manual for ease of accessing information held by the same body.

f) Access to Information Training for Public Bodies

Access to information training for public bodies should include instruction in the partial release, or “severing” of documents, to ensure that non-harmful information contained in the same documents as classified information can enter into the public domain.

g) The Need for Legislative Advocacy

The current judicial environment of post-legislation advocacy should continue without abating to give rise to a regime of protection, promotion and respect of freedom of information, and especially, the right to participate in development. This advocacy should advise on issues that need to be addressed in developing legal and constitutional provisions. It includes the basic minimum that is required for enjoyment of freedom of information.

h) Need for an FOI campaign/Mass Literacy Movement There is need for advocacy to oversee the substantive implementation of the freedom of information act. The advocacy shall address common fears and suspicions that emanate from governments when confronted by FOI advocates, drawing illustrations from the reviewed jurisdictions. Such advocacy shall take place through an FOI campaign, which campaign shall address itself to three stages of advocacy - pre-legislation advocacy, legislative-process advocacy and post-legislation advocacy.

i) Active Involvement of the Poor and Marginalized

There must be a decisive and progressive incorporation of the knowledge and opinions of the people if at all there has to be sustainable development. In this view, an actively involved and empowered local population is essential to successful rural community development. Further, getting the participation of the poor involves a lot more than finding the right technique. It requires

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strengthening the organizational and financial capacities of the poor so that they can act for themselves. In this context, community organizing, training, and pro-active dissemination and publication of information is very relevant. As the capacity of poor people is strengthened and their voices begin to be heard, they become “clients” who are capable of demanding and paying for goods and services from government and private sector agencies. Under these changed circumstances, the mechanisms to satisfy their needs will change as well. In this context, it becomes necessary to move away from welfare-oriented approaches and focus rather on such things as building sustainable, market-based financial systems; decentralizing authority and resources; and strengthening local institutions.

j) Stakeholder Participation

Participation of the community members in projects must be stakeholder driven to ensure that focus is shifted from popular participation to stakeholder participation—the participation of all relevant stakeholders in the development process.

6.3 CONCLUSION

The access to information is a fundamental freedom that is premised on international human rights and fundamental freedoms, reiterated by the international conventions and various country constitutions and enforced by judicial organs. This section hence seeks to propose actions that should be taken by various stakeholders, both at institutional and individual level, to ensure the realization of the right to access information under various benchmarks. The author also seeks to propose the essentials of a freedom of access to information legislation.

The right of access to information held by public bodies has become a benchmark of democratic development. The impetus for governments and legislatures to adopt Freedom of Information (FOI) laws is driven by a variety of factors, ranging from successful civil society campaigns, to pressure from intergovernmental organizations and the multilateral donor conditionality, which increasingly place a premium on transparency in anticorruption initiatives.

However, as already observed above, the continued existence of archaic laws on the statute books has hindered the implementation of provisions of the Access to Information Act as well as the right of access to information in Uganda. Despite the fact that most provisions of these laws have been found inconsistent with the Constitution, they continue to exist and parliament is reluctant to enact suitable provisions. Access to information is critical to the fight against corruption and therefore unjustifiable restriction on access of public information carries with itself the danger of encouraging corruption,

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which is already entrenched in most institutions. If the right of access to information is to be realized, there is need to amend or possibly repeal the Official Secrets Act and other archaic laws. Moreover, Uganda’s archaic laws are a replica of Victorian laws, which have since been amended and/or repealed. For instance, section 2 of the 1911 UK Official Secrets Act was repealed by the 1989 Act thereby removing the public interest defense. Ideally, Uganda should follow suit in order to give full effect to the right of access to information.

There must be a decisive and progressive incorporation of the knowledge and opinions of the people if at all there has to be sustainable development. In this view, an actively involved and empowered local population is essential to successful rural community development. Governments attempting to win over the trust of their citizens enthusiastically embrace public participation programs, predicated on increased openness. These developments all provide significant opportunities for those working to promote open and accountable government.

6.4 IMPLICATION FOR FUTURE RESEARCH

This study was centered on only the legal framework as espoused in the Access to Information Act No. 6 of 2005, and how it affects participatory development. There should be further research on the entire scope of legal, policy and institutional mechanisms on promotion of participatory development.

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List of Statutes

1995 Constitution of Uganda Access to Information Act, 2005Official Secrets Act, The Penal Code, Cap 120 Local Governments Act, 1997

List of International Conventions, Comments and Resolutions

African [Banjul] Charter on Human and Peoples' Rights, adopted June 27, 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), entered into force Oct. 21, 1986

Declaration on the Right to Development was adopted by the United Nations General Assembly, resolution 4/128 on December 4, 1986

International Covenant on Economic, Social and Cultural Rights Adopted and opened for signature, ratification and accession by General Assembly Resolution 2200A (XXI) of 16 December 1966 entry into force 3 January 1976.

International Covenant on Civil and Political Rights Adopted by General Assembly resolution 2200A (XXI) of 16 December 1966 entry into force 23 March 1976, in accordance with Article 49

Universal Declaration of Human Rights Adopted by UN General Assembly Resolution 217 (A) II on December 10, 1948.

Vienna Declaration and Programme of Action, adopted by the UN World Conference on Human Rights, June 25, 1993.

Universal Declaration of Human Rights Adopted by UN General Assembly Resolution 217 (A) II on December 10, 1948.

Vienna Declaration and Programme of Action, adopted by the UN World Conference on Human Rights, June 25, 1993.

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