Culture in Governance: does it work?


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Four Ugandan experiences

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CULTURE IN GOVERNANCE Does it work? Four Ugandan experiences The Cross-Cultural Foundation of Uganda, 2010 A


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Contents Culture in governance: does it work? 1. Protecting rights to land, our most precious resource The experience of the Land Equity Movement of Uganda in promoting customary land tenure in Northern and Eastern Uganda 2. Traditional and modern conflict resolution mechanisms in Pokot Interface and contradicting perceptions 3. Isaazi: elders speaking out against corruption Drawing on ancestral cultural values to restore honesty and integrity in Tooro, using modern media 4. The Alur Chiefdom and managing conflicts in fishing communities Using the influence of traditional leaders to enhance good governance in Panyimur 3 12 23 34 46 Culture in Governance: Does it work? 1


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Culture in governance: does it work? We increasingly recognise that important aspects of our cultural heritage, both tangible and intangible, provide important sources of inspiration and learning to address the nation’s current development challenges. And few of us would disagree that one of these challenges concerns the way we govern ourselves to shape our future, including how we manage our resources, our identity and diversity for our peoples’ benefit. The aim of this report is to suggest a response to the question: can cultural values, traditional governance systems and their current practices help us find a way forward in dealing with the contemporary governance challenges we face as a nation? In the last decade, Uganda has achieved a period of political stability not witnessed in the post-independence period. The country has also successfully transited from a one-party to a multiparty state, a new Constitution has been approved and elections are regularly held. Official statistics tell us that a growing number of Ugandans benefit from peace, economic growth and prosperity. Yet, in spite of this progress, do we see a sustained path to ‘development’, fundamentally reflecting people’s aspirations and desire for physical and mental well-bring? Everywhere we look, does another side of the ‘prosperity and progress’ coin not call for our attention? A point of departure for this report is that ‘governance deficits’ are one aspect of this reverse side: human and constitutional rights are constantly under pressure (with legal restrictions, or proposed restrictions on the media, NGOs and the right of association); the banning of radio stations and popular ‘chat shows’, such as ebimeeza; a Parliament increasingly controlled by the Executive; and the devolution – or recentralisation - of power to districts and regions the subject of conflict, often accompanied by violence (as in the 2009 ‘Buganda riots’ that cost 27 people their lives and another 800 their freedom). In addition, election processes are questioned; the nature of citizenship is challenged (as in Kibaale and the proposed ‘ring fencing’ of political positions); corruption scandals keep breaking, and impunity seems to prevail. Violence never seems very far from the surface. In view of this, can culture (and in particular current governance practices derived from our cultural background) give us pointers? The central message of this document is that it can and indeed should. More specifically, it suggests that there is much to learn from our traditional governance systems, as currently still in use and often adapted to new demands, and from examining their potential contribution to enhancing our governance as a nation. Culture, governance and civic action For our purposes, we can define governance as the evolving processes, relationships and structures by which a group of people organise themselves to achieve the things that matter to them. To do so, people need to make decisions, among others, about group membership and identity, authority, accountability, and enforcement. Governance is therefore as much about people, power, and relationships, as it is about formal structures; and it is certainly not culture-neutral. It is indeed rooted in our cultural values and defines what we consider ‘the right way’ to get things done. In a multi-cultural and artificial colonial creation such as Uganda, we can expect that determining whose way is the ‘right way’ will be contested and the selection of case studies presented here therefore reflects a pluralistic understanding of governance. If governance is inextricably linked to identity and to the ‘political community’ one relates to, then citizens will act in a space which may not be the nation state: it may be related to religion, ethnic group or other dimensions of locality where ethical principles prevail, where rights and responsibilities are exercised. The case studies in this volume therefore offer pointers as to whether non-state spaces, whose rules and values people are intimately connected to, offer Culture in Governance: Does it work? 3


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opportunities for civic action. Contrary to what is often assumed in the context of rights-based approaches, we therefore highlight the power of individuals to tackle a situation themselves, rather than that of disempowered communities whose claims on the State must be strengthened. At the same time, we recognise that civic change may run counter to democracy, may be racist, sexist, and segregationist. We need to understand this relativism, and therefore avoid falling into the romantic notion that we must ‘respect the local culture’; or ‘avoid importing foreign models’. Legal pluralism: is culture ‘opposed’ to governance? This understanding of governance and civic action challenges the supremacy of a ‘unique law’ and encourages us to examine the existence of several value systems, although the State may see ‘its’ system as universalistic (or at least superior) and exclusive of others. This may explain why ‘culture’ and ‘rights’ are often seen as invariably opposed, and why ‘customary law’ is generally considered ‘below’ statutory law. Case 1: Protecting rights to customary land for all The tension between the ‘local’ and the ‘universal’, between different sets of values is evident in current debates on human rights, which have become a key theme in the development discourse. International conventions stress the universal character of human rights and, amongst NGOs the acceptance of the universality of human rights is even more widespread than amongst states. Yet, if we consider the Universal Declaration of Human Rights, one may question the perspectives of its drafters in 1948 (a group of white men) and, more broadly, what legitimacy the ex-colonial powers, ex-cold war warriors, perpetrators of atrocities, advocates of ‘structural adjustments’, have to dictate to others. At the minimum, we must recognise that legal frameworks are inspired by a cultural context and reflect international power relationships. Can we therefore not legitimately ask whether, if human rights are to be at all universal (as the rights of all human beings everywhere), they must be integral to the culture of all societies, and not only of Western societies? Further, we can recall debates about the pre-eminence of ‘human rights’, versus ‘economic rights: which come first? Can one have human rights in a political instable environment fuelled by poverty: as an observer wittily put it, “Human rights start with breakfast”? This discussion finds its echo in debates about Human Rights in relation to “African culture”. African Heads of States adopted the African Charter on Human and People’s Rights in 1981, which mentions the importance of ‘taking into consideration the virtues of their historical tradition and the values of African civilisation which should inspire and characterise their reflection on the concept of human and peoples’ rights.’ and an African Court first starting meeting in 2006 (although to date the court has only heard a single case). Uncertainties therefore reflect the fact that, as these case studies show, we live in communities of mixed legal spaces, where a single act or actor is potentially regulated by multiple legal or quasi-legal regimes. Communities seek (and create) a wide variety of institutions, and practices to manage this mix. From across the world, we increasingly recognise that ‘traditional’ mechanisms have existed for years, providing a recognised system for governance and reconciliation, outside the formal system imposed by the State. While the State system associates justice with punishment, traditional institutions seek to combine these elements in keeping with the values of the community. It is therefore clear that the rule of law is not only a legal matter, but also a cultural one and it has therefore been suggested that legal pluralism offers not only a description of the world Culture in Governance: Does it work? 4


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we live in, but that ignoring the ‘mix’ mentioned above “as somehow not law is not a useful strategy.” Communities that produce these norms - rather than nation-states – therefore provide a useful framework for understanding the diverse sources of values that have become the focus of much current international law scholarship and, increasingly, practice. The four case studies This report is based on the documentation of four cases, in different parts of the country and with a different focus. All illustrate the interface between forms of ‘community governance’, culture and the State. They approach the topic from different perspectives, are based on lived experiences and examine different dimensions of governance: human rights and justice; accountability; access to resources and conflict resolution. The first case study, entitled “Protecting rights to land, our most precious resource”, examines the work of LEMU, the Land Equity Movement of Uganda, in relation to customary land tenure; a tenure regime that prevails in 80% of the country. LEMU has been animated by a contention that “everyone, women, men and children need and deserve land rights.” Land is key to our governance as a nation, a critical social and economic issue, whether in terms of access and ownership, population growth, environmental degradation, or in relation to contested legislation. The advantages of customary tenure, its resonance with local cultural values of care and solidarity, its management mechanisms that are accessible to local people, including the poor, are considered. LEMU’s work has helped to re-emphasise the relevance and usefulness of this type of tenure to many millions of ordinary Ugandans, albeit a system earlier seen as a remnant from an earlier epoch to be gradually replaced with freehold tenure. Two aspects of its work which have contributed to this changed reality are illustrated. The first has been to document, update and publicise the norms and mechanisms to make customary tenure more effective and to ensure that they protect the rights of all in the community, including the poorest and most vulnerable, and in the process revitalise the role of the clans in ensuring that these are adhered to. The second and possibly more decisive action has been on the policy front. As a result, the National Land Policy will, if implemented, reflect the status of customary land tenure as a system that deserves as much recognition and support from state authorities as others, and that can be linked to the state institutions for effective administration. The second case, “Traditional and modern conflict resolution mechanisms in Pokot”, examines the interface between traditional and state governance systems in conflict resolution, highlighting contradictions between local perceptions of cultural and human rights and how these are managed by mediators who use a cultural approach to conflict resolution, such as the Pokot Zonal Integrated Development Programme. Case 2: Traditional conflict resolution in Pokot The existence of two governance systems in Pokot raises a number of challenges in respect to the limitations identified in both systems, and to managing a productive interface between the two. On the one hand, most people met consider legal procedures as often unfair, slow, and corrupt. On the other, the traditional system, while effective to resolve some conflicts, has several limitations, including poor sensitivity to human and women’s rights, disregard for the marginalised, and lacking in accountability to any other authority. One area of contradiction concerns perceptions of justice: the traditional system places Culture in Governance: Does it work? 5


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emphasis on discipline, honesty, accountability, reconciliation and compensation while the state system seeks to establish right and wrong – in the process punishing the wrongdoer but not necessarily compensating the aggrieved. Without understanding these values in both systems, community members are likely to continue dismissing the legal governance system, which ideally provides for the protection of their rights. Having parallel, disconnected systems that aim at the same objective not only results is the ineffective use of resources, but occasionally in the mismanagement of conflict situations. The third case study, “Isaazi: Elders speaking out against corruption” presents an anti-corruption initiative in Tooro, whose features distinguish it from official endeavours. First, it is the brainchild of a group of elders, explicitly drawing on the ancestral cultural values. Secondly, while it relies on well-established values, it mainly uses modern technology – an FM radio station – to promote its message. Third, it is run on a voluntary basis and is independent of external private or public funds. It therefore presents characteristics that make it replicable elsewhere in the country. The experience of the Isaazi highlights the potential of culturally-rooted efforts to tackle such intractable current challenges as corruption. In this case, drawing on the legitimacy of cultural values and culturally-recognised persons – the elders and the Isaazi – acceptance and legitimacy have been quickly generated. This has been combined with new technology, the FM radio, to create a powerful, ‘modern’ space for the young and the elders to communicate. While it may take time to build the trust associated with a new, ‘non-aligned’ structure in all quarters – including the political class - new energy has perceptibly emerged from the Isaazi: “It is a voice for the people because they have no string attached; they can raise anything that they feel is in the public interest.” Other parts of the Tooro region have expressed interest in such a mechanism and are attempting to develop their own Isaazi, as people recognise such a Forum as a uniting factor, going beyond religion, politics, age, and ethnicity. The final case focuses on “The Alur Chiefdom and managing conflicts in fishing communities” and explores the interface between the traditional and local governance systems in Panyimur, Nebbi district. The traditional institution collaborates to varying degrees with different local governance actors, all playing a role to curb insecurity and resolve conflict in Panyimur. In most cases the interface is not consistent or systematic but is often considered relevant. Hence the effort made to ensure mutual consultation takes place for a commonly appreciated outcome. Collaboration between the traditional and local governance system is nevertheless ad hoc and flexible, resulting at times in successful and conclusive management of conflicts and at other times in unresolved cases, thus perpetuating conflict. Both systems nevertheless fail to single-handedly deal with drawn out problems, such as insecurity, that divert time and energy for resolution, as opposed to developing the area. The text points out that, while the traditional institution is likely to remain resilient as a source of cultural identity, its relevance in other spheres of development and in the private and public lives of the local community will largely depend on its ability to reinvent itself by retaining core traditional values and principles, while responding to changes in the wider environment, including the influx of new ethnic groups, the influence of education, religion and trade. Learning points Having set out some of the key issues in the first part of this text, what can we learn from the case studies presented in this report? a. The relevance and resilience of ‘traditional’ governance mechanisms. All the cases highlight the resilience of structures, mechanisms and values that help local communities organise themselves and deal with the problems they face. We are far from the monopoly of a single state-inspired and directed framework representing the totality of responses to governance challenges. To the contrary, in all cases, traditional systems of governance are sought by local people. Why this resilience? The most prominent ‘push’ factor appears to be a Culture in Governance: Does it work? 6


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widespread popular dissatisfaction with statutory mechanisms. ‘Modern’ state structures are seen as commercialised, distant (both physically and in terms of the values they represent), alien (for instance in terms of language and procedures), and incapable of delivering fairness and justice. They then lack credibility, as patronage and favouritism prevail or at least seen to prevail. As the LCs continue to offer the closest access to such state mechanisms, one may also ask how they are meant to operate in a multi-party system. Can a partisan system deliver impartial justice? We then see people voting with their feet, away from state structures. Hence a desire to revert to ‘informal’ structures. Here the ‘pull’ factor reflects the mirror image of the above: non-state structures are immediately available, they are familiar and understood because they resonate with local values, and are often considered non-corrupt, impartial and non-partisan. The case studies highlight the ‘usefulness’ of informal structures in certain types of conflict resolution and reconciliation, in securing land rights and in exacting accountability for public resources. Such mechanisms, institutions, and practices in effect recognise that communities may legitimately wish to use ‘their system’ in particular circumstances. b. Who are the ‘cultural leaders’? While the four cases focus on the role of cultural institutions in various aspects of governance, it is the role of elders and clan leaders that emerges in all as determinant, rather than ‘apex’ institutions, such as kingdoms. Often too, it is the values that these leaders represent and promote that make them ‘eligible’ to qualify as cultural leaders. In the case of the Isaazi in Tooro, for instance, the recognised elders are not necessarily elderly, but are distinguished on the strength of their responsibility, exemplary behaviour and knowledge of the culture. Women are often absent as ‘front benchers’ although their influence may be exercised in a less apparent fashion. c. A locally rooted value system open to change. As already noted with regard to alternative conflict resolution in Northern Uganda, both cases that focus on conflict management propound values that are different from those that emanate from the statutory legal framework. In both Pokot and Nebbi, the emphasis is on Case 3: the Isaazi: an elder speaking out against corruption in Tooro compensation and reconciliation, rather than punishment and retribution. Even where there is a less sharp distinction in values, the other cases illustrate the importance of what is considered ‘ancestral values’: in the LEMU case, where customary land tenure is informed by the need for collective solidarity and protection, rather than individual well-being and profit; and in the Isaazi case, in terms of clean leadership and probity. In all cases too, the communal aspect is important: what matters is the well-being and cohesion of the extended family and community, and less of the individual. Further, not only are ‘traditional’ reference points being used, they are also being adapted to new sets of local circumstances, as several of the cases indicate. ‘Culture’ is in movement, fluid, open to interpretation and contestation, at times challenged by urbanisation and other social changes, but re-emerging in new guises, as the radio replaces the fireplace for the Isaazi and uncertain clan leaders’ judgements are substituted with booklets on customary land tenure management. To this can be added a paradox stemming from the effects of globalisation: on the one hand, communities are exposed to new values and worldviews that threaten the existence of the local culture, and on the other, there is a sense of vulnerability and fear of getting lost in diversity, heightening the need for cultural identity The survival of traditional culture will indeed depend on the context and the benefits of either being subsumed, or standing out to be recognised as a unique expression of identity in diversity. Culture in Governance: Does it work? 7


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d. Traditional systems offer governance solutions that do not depend on ‘funding’ As an article on LEMU’s work observes, “It costs nothing to organise villagers to choose a tree that they will all recognise as a boundary marker and to encourage people to plant these trees.” Similarly, a traditional court sitting in Pokot or the ‘cultural’ resolution of a fishing dispute in Nebbi is not dependent on public funds. This is because of the spirit of voluntarism that often animates cultural leaders, the local ‘rootedness’ of such mechanisms and the generally undisputed legitimacy they represent. Thus, the Isaazi experience in Tooro demonstrates the importance of the commitment displayed by the elders and the considerable voluntary resource they represent. So long as the young want to learn from their elders, and elders have the urge to pass on their knowledge, such a Forum can present an important instrument to help construct a corruption-free nation, that mostly depends on people’s goodwill. On the other hand, reliance on limited resources, or even on complete voluntarism, opens the way for cultural leaders to be manipulated by the rich and the powerful. e. ‘Traditional’ systems are by no means flawless… One must avoid any romanticism about traditional governance systems, as these cases show: clan court judgements may be seen as arbitrary; cultural institutions are generally accountable to none but themselves, they may exhibit a tendency towards ‘big man’ politics that we recognise in other institutions, and may succumb to the power of the wealthy. They may experience a credibility gap, especially towards the urban elite and the mobile, cosmopolitan youth. Cultural leaders are not necessarily among the most exposed and best educated members in a local community and, where this is the case, it may cripple their ability to deal with pressing contemporary issues that do not squarely fit in the inherited cultural frame of reference. Women are often excluded from such processes, whose leaders may express strong chauvinistic sentiments about the roles and responsibilities of women, ‘hiding behind’ cultural reference points, real or imagined. The LEMU case for instance describes the tensions associated with giving women a strong voice in decisions concerning the sale of customary land. Most often, issues affecting women may not find their way into such public fora and the cultural leaders – overwhelmingly men – often adopt a paternalistic attitude towards these issues, often emphasising the need to ‘protect’ women, rather than to ‘empower’ them. Finally, the cases indicate that the traditional system is most effective in a largely homogeneous community – with shared beliefs and values. With mobility, intermarriage and exposure, traditional leaders’ influence is also challenged. f. A perception of ‘tradition’ opposed to ‘modernity’ and rights opposed to culture still prevails LEMU’s attempts to ‘rehabilitate’ customary land tenure in the eyes of policy makers and human rights activists illustrate how customary law is still often seen (at best) as subordinate to statutory law, a view inherited from the colonial set-up, which also implies that ‘culture’, in the same way as ‘tradition’ is unchanging. As one document about its work observes, “The problem remains that governments, academics and the urban elite of the NGOs have all inherited the prejudices against native or traditional culture from the colonial authorities.” All the cases indicate that these prejudices are usually ill-founded: the LEMU case shows how culture can in fact protect women’s rights; other cases exemplify how local justice systems have provided a solution sought by many, though based on a different perception of ‘rights’, informed by culture, and often focusing on the community, rather than the individual. g. Lack of synergy between systems With different values - indeed worldviews, traditional and modern governance systems operate in isolation from each other, with little communication, although neither operates in a vacuum. At times, one undermines the other, as illustrated in cases where politicians reverse legitimate decisions taken by traditional leaders. There is a lack of guidance as to how they should link and, where there is interface, it is ad hoc, based on individual preferences and practices. This lack of consistency is inefficient and muddies the extent to which people have the freedom to ‘subscribe’ to one system rather than another. It favours ‘forum shopping’ where conflicts are ‘resolved’ using the system that is thought to be most promising by the strongest party, or allows other issues to remain unconcluded, having fallen ‘between two stools’. Culture in Governance: Does it work? 8


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Lack of cross-referencing between the two systems then not only allows for continued human rights abuse, the neglect of some members of the community and the perpetuation of conflicts, it also prevents reflection and learning that could contribute to domesticating a state system that is perceived as foreign by many. So what can be done? a. Linking traditional and modern governance systems The case studies presented here suggest that benefits could be derived from moving from an ‘either or’ situation, to one where the positive aspects of both types of governance perspectives are brought together. Is, for instance, legal pluralism desirable? For a start, while a value conflict among multiple, overlapping legal, or quasi-legal systems is probably unavoidable, this might sometimes be desirable as a source of alternative ideas and experiences that can contribute to the design of appropriate mechanisms, institutions, and practices. As Mamdani notes, “Tanzania is the only former colony that has managed to uproot the colonial legacy of tribal rule and (…) create a single Tanzanian common law deriving from multiple traditions: pre-colonial history, the entire complex of colonial laws (both civil and customary) and the corpus of anti-colonial practices, (creating) the legal basis for a single citizenship.” More generally, how could ‘traditional’ and ‘modern’ governance mechanisms re-enforce each other? Case 4: The Alur Chiefdom and managing conflicts in fishing communities First, overall policy must provide a space for legitimate culturally-liked local mechanisms to coexist and link up with state delivery mechanisms. An example of the way forward is afforded by the draft national land policy, which provides for mechanisms not only to recognise the responsibilities of clan leaders in administering customary tenure, but also hold the clan system to account, provide for appeal mechanisms, and ensure the enforcement of judgments. Secondly, there is a need to create cooperative linkages, rather than competitive ones. One way would be to specify specific roles of cultural mechanisms (as in the customary land tenure case) and to codify elements of traditional practice that are aligned with human rights and other stateled practices. Procedures could entail having joint planning, implementation and review meetings ‘across institutions’ – recognising the contribution of the different stakeholders - not only to discuss, say, disarmament exercises and military interventions, but also national and district planning processes, operational plans, budgets and funds allocated. State operators also need to better understand the issues handled by the traditional courts, how livelihood challenges trigger conflicts and how traditional institutions can contribute to conflict prevention. There is a growing interest, for instance, in transitional justice, especially in northern Uganda. Could elders be formally part of LC courts? Could traditional leaders be trained to settle some issues? Could the nature of cases to be dealt with by the traditional governance system be established, beyond which a clear referral process is determined to avoid abuse of authority? Could legal aid providers link the two systems, with legal officers possibly involved in the traditional courts to provide guidance on the legal implications of the decisions that are taken? On the whole, although the existence of two governance systems provides alternative avenues for communities to access justice, it is therefore important that checks and balances for each system are put in place. Communities will need to be well informed of the justice and appeal processes, and referral of cases from one system to another well defined, so that cases can be tracked and conclusively handled. Third, whether it is federo, the regional tier or ever more districts, we have seen that governance is about people, not structures. Linkages therefore Culture in Governance: Does it work? 9


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need to go beyond the structural. Thus the principles of integrity and accountability used in the traditional system need to be integrated into the state governance system and the community made aware that it is their right and role to hold government officials accountable. To do this effectively, they need, possibly through civic education, to have access to relevant information and the ability to understand development plans, budgets and funds allocated for implementation to assess whether the development objectives have been achieved or not. Fourth, state mechanisms need to become fairer and more accessible: the State needs to ensure easy access to courts of law and to increase the number of legal officers to dispense cases efficiently. Courts must also use a language that is understood by the people or use translators for court proceedings, including explaining opportunities for appeal, bond, etc. Where appropriate, compensation must be adequately and efficiently dealt with and where this is not possible, the complainant needs to be explained why this is the case. For the relevance of the state governance system to be fully appreciated by community, local people need to understand what good governance from a government perceptive is; know their rights and understand court proceedings. Fifth, attitudes will need to change: state governance stakeholders need to take into account the cultural context and the strengths of the traditional system in terms of influence, access to information, and community management. As the LEMU case proposes, a genuine State-clan partnership will need to be forged and attitudes attuned to this, a formidable task. Thus, State authorities must make clear that the boundary trees will be protected as boundary markers by the law, that boundary maps will be respected in courts. When elders in Pokot ask soldiers who have harmed the community to sit under the tree and submit to local justice, this cannot be entirely ignored. On a broader front, respondents in Tooro suggested that the national government should learn from the Isaazi experience and mobilise retired civil servants, politicians, and others into a National Forum “to bring together all these unexpired brains and they would be willing to come and work without pay.” b. Modernise and equip the ‘traditional’ This is perhaps the greatest challenge of all. One must accept that the world is changing and that, to remain relevant, customary governance mechanisms, like any other, will need to adapt to change. What would be required? First, new responsibilities come with new needs. Most of the cases presented here suggest that the capacity of the traditional institutions to play their role more effectively needs to be strengthened. This could take the form of training (for instance on rights) or of documentation. In Pokot, for instance, the traditional conflict resolution system is well understood by the local communities, but its key principles and practices are not codified or documented, impairing any attempt to have these reflected in local by-laws. More generally, information on the law and rights must become more accessible than is presently the case, and work undertaken with traditional leaders to ensure that the communities understand their principles and thus collaborate for peace and justice. Secondly, and perhaps more importantly, the capacity to adapt to contextual change also needs to be supported. Whether it is responding to socio-economic change and the ‘dilution’ of ethnic identity, to pressure on customary land to accommodate investors, or to growing demands for democratisation and respect for human rights, all these must be accommodated. Fortunately, culture is dynamic and responsive to new changes, but traditional institutions would do well to enhance their ability to identify universal cultural values, open up to inclusion and equal protection for the community as a whole, and resist “the politics of fragmentation” while retaining their strong local ‘rootedness’. They must be seen as impartial and relevant to all within their geographical cultural boundaries, or risk becoming outdated mouthpieces, relevant only to a few. They must also engage with the youth and ‘connect’ with them (modern information technology offers opportunities, as the Isaazi experience demonstrates). To conclude, it appears that traditional leaders, if they are to continue playing an effective role in the current context, must indeed have the self-confidence to claim their legitimacy, to resist Culture in Governance: Does it work? 10


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co-option, to constantly reinvent themselves and ensure that there is no risk of being tainted with any suggestion of adhering to authoritarian and paternalistic values that are ill-fitting with people’s contemporary aspirations. Only then can they claim the legitimacy to help people reclaim their identity through vibrant local governance systems and ensure that non-state spaces offer continued opportunities for civic action, which these case studies demonstrate is possible. In the process, they can contribute to a more legitimate and accountable exercise of power to the benefit of all citizens, in tune with the vital cultural values that can inform the future of the nation. Culture in Governance: Does it work? 11


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1. Protecting rights to land, our most precious resource Introduction: Land, governance and the Land and Equity Movement Land is key to our governance as a nation, whether in terms of access and ownership, population growth, environmental conservation, as a social and economic issue or in relation to contested legislation. Land for instance provides a subtext to the ‘federo’ debates, Buganda and the ‘9,000 square miles’ issue; foreign investors and customary land rights in northern Uganda; and the respective rights of immigrants and ‘original’ residents in Kibaale district. This case focuses on governance issues linked to customary land tenure and on efforts to safeguard the rights of the marginalised sections of the population whose livelihood depends on this type of tenure. In particular, it examines the work of LEMU, the Land and Equity Movement in Uganda, to ensure fair access and effective use of land for all, and particularly for those depending on land held under customary tenure. From the start, LEMU has been animated by a conviction that “everyone, women, men and children need and deserve land rights.” It positions itself as “a facilitator and link between communities and the Government”, learning about customary land rights, informing communities about these rights, and attempting to influence policy to safeguard them. LEMU’s focus has been on customary tenure in northern and eastern Uganda, where, traditionally, this type of tenure has allowed access to land by all. Possibly more than elsewhere in the country, people in this part of the country rely on land as their sole means of material and spiritual wellbeing. As many respondents stated during the interviews that inform this case study, “Land is our most precious resource.” The region however faces special challenges in relation to land: first, long years of strife have resulted in many areas in the displacement of large numbers of people. With the return of peace, villagers go home but this is often marred by conflicts, aggravated by the death of those who were fully familiar with land demarcations in areas sometimes abandoned 15 or more years ago. As land gains in value and as the region returns to normality, external interests are also aroused by the fertility of vast tracts of seemingly unoccupied territory. Secondly, with years of neglect and conflict, the north and north-east have lagged behind other parts of the country in terms of infrastructure, hence the poorly developed institutions concerned with land administration (District Land Boards and Land Committees). These factors aggravate the perilous situation of local communities and its more vulnerable members, who have often been the victims of abuses of the principles that have informed customary land holding for generations, but whose application has more recently become uneven at best. Customary land tenure: perceptions, cultural norms and practice Perceptions and cultural norms Contrary to widespread perceptions, customary land tenure still prevails in most of the country - 80%, according to LEMU. This type of landholding is one of the four tenure systems recognised in the 1995 Constitution and the 1998 Land Act, that also provides for local systems of justice to determine land disputes, although the state also gave the right to go to courts of law. Yet customary land tenure has, until recently, been given little attention in debates on Uganda’s land laws. At national level there is (as yet) no policy on the operation of the customary tenure system, or legal procedures that regulate clan courts. The reform of the land law focused on titled land and ignored the administration of customarily owned land. Such neglect reflected a perception of customary tenure as an outmoded form of holding, ‘paperless’, and therefore ‘unofficial’, even un-serious. Such a perception has been fostered by two powerful schools of thought: first, one espoused by government and many of its international Culture in Governance: Does it work? 12


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supporters, whereby individualised freehold and generalised titling present an indispensable development-oriented way forward, creating a monetised land market, with land subject to sale and mortgaging. Secondly, there are the ‘rightsbased activists’ who argue that customary land tenure, if not ‘primitive’, does not adequately protect the rights of the poorest, especially women and children, since customary systems are managed within a patriarchal system, for men’s benefit. Especially at risk are widows and orphans. Yet customary law is meant to protect women and children. Customarily, land is ‘owned’ by a family but controlled by the clan, and ownership is passed on by inheritance from one generation to the next, to the family rather than to an individual. The system builds in full land rights for everyone and protection through clan oversight. In the past, women were protected by their uncles and other male members of the family; and widows and unmarried women were not considered vulnerable to exploitation. Upon the death of a husband, the widow would take over the management of the family land in trust for the children and the clan. Although marriage was considered a permanent state and wives were not ordinarily expected to divorce, divorcees were entitled to land and a child born outside marriage would, if accepted by the father, be expected to draw land rights from the father’s family. A widow and orphan would stay on the deceased’s land and continue to be looked after by the clan. A woman’s importance was however not attached to her ability to bear children but to other values and contributions she made to the home. Childless widows were traditionally expected to remain on their husband’s land and were often responsible for bringing up other children, providing labour and food for the home and clan, and were respected as such. Practice In practice, however, the administration of customary land tenure has suffered from its lack of integration in the state land management system and it has not received sufficient support to adequately play its role. Current practice then departs from traditional norms: over the years, it has become apparent that, the rights of the more vulnerable were frequently trampled on, sometimes by ‘investors’, more often by neighbours and family members, often too by those very same people – the clan leaders - who were meant to give customary tenure its legitimacy (see Box 1). Contrary to the provisions of customary law whereby all land is owned by families rather than individuals, for instance, men would proclaim that “women don’t own land” and grab it for themselves. Women’s rights would also be denied when male relatives take over where there is no male heir in a family. In many cases, divorcees and separated women were thrown off land with their children, often violently, by their in-laws. Orphans were especially at risk; some men were known to mortgage land without the consent of the widow, who would then only learn about the sale when the transaction was concluded, followed by her prompt eviction. Elderly women, orphans and ‘illegal’ children are especially at risk of losing access to land in the absence of clearly defined and respected rights Culture in Governance: Does it work? 13



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