THE ECONOMIC, SOCIAL AND CULTURAL RIGHTS PERSPECTIVE OF PARTICIPATION FOR THE BATWA

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Introduction

The Batwa populations within the great lakes region in Africa are estimated to be about 70,000 to 80,000 people.1 In Uganda, they number about 6,000 people2 and they are known as one of the indigenous peoples in the country. 3 Traditionally, they are known to mainly live forests and the mountainous Kabale, Bundibugyo, Rukungiri, Kisoro and Kanungu districts of the south-western part of the country. However, the exact number of the Batwa in terms of population in Uganda is very difficult to establish since they are not often included in the official national population census conducted in the country. The Batwa people are a very unique and distinct people in the great lakes region and they are part of a social group different from the mainstream society where they belong.4 The Batwa have remained vulnerable because of their close attachment to their traditions and reluctance to cope with the modern concept of development introduced by colonialism.5 They have remained the ‘most vulnerable of the vulnerable’ due to continued economic and political marginalisation. 6 The Batwa have virtually no representation in the political offices and structures in the country.
In fact, only two Batwa were on a Local Council (LC) in the whole of western Uganda, and even then at the lowest level (LC 1). 7 While the rights claimed by the Batwa are not any different from those sought by other indigenous and marginalised groups in Uganda, as an indigenous group, they are exposed to dire poverty levels to the extent that they have remained the ‘most vulnerable of the vulnerable’ due to continued economic and political marginalisation. 8 Unlike other indigenous peoples which have representation in Parliament, government institutions, institutions of higher learning, local governments and local councils, the Batwa are not represented anywhere in the government arena. Additionally, formal equality which calls for equal treatment of everybody is not favourable to the Batwa who have been subject to generations of discriminative treatment.

Justification of the study

The right to participation both in public and private life by the Batwa people has been a subject of debate and discussion among several professionals working with indigenous groups in Africa. Uganda recognizes the right to participation by all persons in its 1995 Constitution (as amended) and the Local Government Act, 1997 (as amended) (Cap. 243). Several efforts by the civil society organisations and government to promote fair participation by the indigenous peoples have been initiated. The challenge has been the lack of implementation of the laws and policies which promote fair participation of the indigenous peoples.
The Ugandan government, by virtue of its ratification and acceptance of international human rights standards, has taken on the obligation to treat its citizens equally and to uphold their rights and freedoms. The country’s National Culture Policy of 1996 bears an objective to develop and promote indigenous knowledge as a key factor in social and economic development and cultural transformation. However, this cannot be practical when the Batwa are not fully involved in the promotion of the indigenous knowledge. The Bill of rights (Chapter Four) in the Ugandan Constitution provides for the protection of the rights of the minorities, implying that the minorities have a right to participate in decision-making processes and their views and interests shall be taken into account in the making of the national plans and programmes.9 The focus on participation in this thesis therefore arises from the recognition that participation is a priority for good governance and democracy to flourish.
The focus on the Batwa is justified by their marginalisation especially during planning and implementation processes. The focus on participation arises from the fact that as indigenous peoples, their plight has for some time been examined by the United Nations Working Group on Indigenous Peoples and the United Nations Permanent Forum on Indigenous Issues. Both these forums have pointed out as a main concern the right of indigenous peoples to own and control their own land and resources which they possess through traditional ownership or use. The forums have encouraged member states to involve indigenous peoples in decision-making processes. It is thus found appropriate that this thesis focuses on the participation of the Batwa in civil, political, economic, social and cultural arenas as a matter of great importance for the indigenous peoples at the international and local level. This research is thus justified by the need to contribute new knowledge on how the international and domestic laws can protect and promote the rights of the marginalised indigenous communities.

The statement of the problem

The Batwa constitute one of the ethnic minorities in Uganda, 10 not only in terms of numerical numbers, but also in terms of resource access, utilization and political participation. They are a victim of the colonial legacy that sidelined or excluded them from the mainstream development programmes and activities in the country. In addition, the exclusion has further been perpetuated by the dominant ethnic groups neighboring them such as the Bakiga and Bafumbira that have continuously belittled the problems of the Batwa, which has ultimately limited attention that is given to their meaningful political participation. In fact, the African Commission on Human and Peoples’ Rights identifies them as one of the most marginalised due to their culture and way of life.11 Unlike in Europe where minority matters have caused action in respect to initiation of legislation and regional treaties, in the Great Lakes Region where the Batwa live, there has been inadequate action taken to initiate legislation and regional treaties to address the problem of marginalisation of ethnic minorities in Africa.
This is because of the lack of awareness on minority issues and inadequate comprehensive legal regime to protect the rights of the ethnic minorities. As a result, the Batwa remain marginalised and violations of their rights have become one of the causes of conflict rather than a unifier in Africa. There has also been a lack of implementation of the legal measures relating to the promotion of the rights of indigenous peoples in Uganda. Whereas Uganda has ratified international treaties such as the International Covenant on Civil and Political Rights that enjoin the State to institute measures to promote the rights of indigenous groups, relevant practical measures have not been adopted. Concern is particularly raised vis-à- vis the lacunas in the instituted policies in education, health and other sectors that are not specifically geared towards the improvement of the lives of indigenous peoples, and in his case, the Batwa.

TABLE OF CONTENTS :

• Declaration
• Dedication ii
• Acknowledgments
• Summary v
• List of abbreviations
• TABLE OF CONTENTS
• CHAPTER ONE A QUEST FOR THE RIGHT TO PARTICIPATE FOR THE BATWA IN UGANDA: AN
  • INTRODUCTION
  • 1.1 Introduction
  • 1.2 Justification of the study
  • 1.3 The statement of the problem
  • 1.4 The aims and objectives of the study
    • 1.4.1 General objective
    • 1.4.2 Specific objectives
  • 1.5 Scope of the study
  • 1.6 Research Questions
  • 1.7 Research methodology
• CHAPTER TWO CONCEPTUAL FRAMEWORK AND LITERATURE REVIEW ON INDIGENOUS PEOPLES AND THE RIGHT TO PARTICIPATION
  • 2.0 Introduction
  • 2.1 Equality defined
  • 2.2 Linking the right to participation with equality
  • 2.3 Indigenous peoples defined
  • 2.4 Historical context of human rights
  • 2.5 The Batwa as a minority or indigenous group
  • 2.6 International legal framework relating to the protection of indigenous people’s right to participation
    • 2.6.1 The International Covenant of Economic, Social and Cultural Rights
    • 2.6.2 International Convention on the Elimination on All Forms of Racial Discrimination
    • 2.6.3 United Nations Declarations on the Rights of Indigenous Peoples (UNDRIP)
    • 2.6.4 The International Labour Organisation (ILO) Convention
  • 2.7 Regional level
    • 2.7.1 Protection of indigenous peoples under the Inter-American System
    • 2.7.2 Protection under the African Charter on Human and Peoples’ Rights
  • 2.8 Domestic level
    • 2.8.1 The 1995 Constitution (as amended)
    • 2.8.2 Equal Opportunities Commission Act,
    • 2.8.3 The Land Act of 1998 (as amended)
    • 2.8.4 The Land Acquisition Act,
    • 2.8.5 The Uganda National Land Policy,
  • 2.9 Discrimination
    • 2.9.1 Discrimination in access to education
    • 2.9.2 Discrimination in employment
    • 2.9.3 Discrimination in access to healthcare
  • 2.10 Chapter conclusion
• CHAPTER THREE UNPACKING THE RIGHT TO PARTICIPATION FOR THE POLITICALLY MARGINALISED BATWA INDIGENOUS MINORITIES IN UGANDA
  • 3.1 Introduction
  • 3.2 The right to public participation
  • 3.3 The right to political participation
  • 3.4 Participation as a right to self-determination
  • 3.5 The right to participate in decision making
  • 3.6 Consultation and consent
  • 3.7 Representation in cabinet
  • 3.8 Chapter conclusion
• CHAPTER FOUR THE ECONOMIC, SOCIAL AND CULTURAL RIGHTS PERSPECTIVE OF PARTICIPATION FOR THE BATWA
  • 4.1 Introduction
  • 4.2 Economic, social and cultural rights for the Batwa
  • 4.3 The right to culture
  • 4.4 Participation in education
  • 4.5 Participation in land rights
  • 4.6 Participation in economic projects
  • 4.7 Chapter conclusion
• CHAPTER FIVE BATWA PARTICIPATION IN A TRIPARTITE COMPARISON OF BURUNDI, RWANDA AND UGANDA
  • 5.0 Introduction
  • 5.1 The case of Burundi
    • 5.1.1 The Burundi Constitution of
    • 5.1.2 Electoral Code,
    • 5.1.3 Best practice towards Batwa participation
    • 5.1.4 Citizenship and participation
    • 5.1.5 Recommendations
  • 5.2 The Case of Rwanda
    • 5.2.1 The Rwanda Constitution
    • 5.2.2 Batwa marginalisation in Rwanda
    • 5.2.3 Political participation
    • 5.2.4 National policies
    • 5.2.5 African Peer Review Mechanism (APRM) of
  • 5.3 The Case of Uganda
    • 5.3.1 Decentralisation policy as a basis for participation
    • 5.3.2 Batwa participation in the management of Bwindi Impenetrable Game Park
    • 5.3.3 Challenges faced by the Batwa in the gazetting of Bindwi Impenetrable
  • 5.4 Effective Batwa participation model
  • 5.5 Chapter conclusion
• CHAPTER SIX REVAMPING THE RIGHT TO PARTICIPATION FOR THE BATWA: THESIS SUMMARY AND CONCLUSION
  • 6.0 Introduction
  • 6.1 Promoting equality and nondiscrimination of Batwa
  • 6.2 Affirmative action
  • 6.3 Pluralist Techniques
  • 6.4 Anti-Discrimination Legislation
  • 6.5 Positive Action
  • 6.6 Development of a national policy for marginalised groups
  • 6.7 Strengthening the Equal Opportunities Commission
  • 6.8 Ring fencing of political positions for the marginalised groups
  • 6.9 Availability of data about the Batwa
  • 6.10 Observe International Human Rights Standards
  • 6.11 Thesis conclusion
  • 6.12 Model law for Indigenous Peoples in Africa
    • 6.12.1 Introduction
    • 6.12.2 Justification for the enforcement of the model law
  • Bibliography
  • List of cases

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