Law and Development Complete Set of Notes

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LAW AND DEVELOPMENT
INTRODUCTION
Law and development is an interdisciplinary study of law, economic

and social development. It examines the relation between law,
development and analyzes how to use law as an instrument to
promote economic development, democracy and human rights.
The main objective of this course is to examine the scope and

limitations of Law as an instrument of socio-economic development.
What contributions have and can legal theory and legal institutions
make towards the quest for socio-economic development?
The course has a comparative approach, examining local, regional

and international perspectives of the relevant issues. It focuses on
the major challenges facing the African continent in its quest for
sustainable human, social, economic and political development.
It has both a theoretical and practical content engaging, amongst

others, with relevant issues such as, Africa and the Law and
development Movement; Theories of Law and Development in
Africa, the role of law in major areas of concern that impact on
development in Africa, such as: Governance, Democracy and Rule of
Law; Land, Natural Resources and environmental Sustainability;
Urban/Rural Development; Human Rights and access to Justice;
Conflicts and Resource Control Agitation; Corruption and Economic
Crimes; Economic and Financial Regulation; Corporate and Social
Responsibility; The New Partnership for Africa’s development
(NEPAD); and International law, Right to Development and the UN
Millennium Development Goals.
HISTORICAL CONCEPT
Joan B. Nairuba, Law and Development

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Western scholars have also long been interested in the role played
by law during the great period of colonization in the 18 th and 19th
centuries.
Moreover, since the 19th century scholars from developing countries

have been deeply concerned about the role that law might play in
their countries’ social and economic development.
To understand development theories e.g Modernization theorists

contended that a society’s underdevelopment was both caused by
and reflected in its traditional (as opposed to modern) economic,
political, social and cultural characteristics or structures. In order to
advance underdeveloped societies would have to undergo the same
process of evolution from traditionalism to modernity previously
experienced by more developed societies. However, while the
impetus to modernize in the now developed countries had resulted
from endogenous changes, the transformation of developing nations
would come about primarily from exogenous stimuli. That is, the
modernization of the Third World would be accomplished by the
diffusion of capital, institutions, and values from the First World.
Drawing on modernization theory, the first wave of law and

development theorists that emerged in the 1960s presumed that the
diffusion of Western law to the Third World would aid in its
modernization. Indeed, modern law was believed to be the
“functional prerequisite of an industrial economy”. Influenced by
Weber, a strong instrumentalist conception of law underlay this view
of the relationship between law and development.
As defined by Burg, this conception “sees law as a force which can be

molded and manipulated to alter human behavior and achieve
development”. It “focuses above all on substantive rules of law,
looking to the state for the promulgation of these rules and reserving
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for the legal profession a prominent role in formulating them.” Such

a conception of law as an instrument of and not merely a response
to development, as well as the view of the lawyer as a ‘social
engineer’, was entirely in line with the “perceived need for rapid,
directed change” underlying the modernization school’s notion of
development.
To undertake reform of legal education and the legal profession, and

to a lesser extent the reform of formal legal rules. The assumption
was that lawyers trained to use law as an instrument for change
would promote the developmental goals of the state. It was
presumed that reform of legal education and the legal profession
would stimulate other forms of modernization, including the
emergence of other institutions integral to an effective modern legal
system, such as those responsible for administering and enforcing
legal rules.
Others have criticized the Law & Development discourse as another

source of imperialism and dominance that justify senseless legal
transplants from the North to the South. However what is clear is
that while law and development encompasses some principles of law
as understood in introduction to law it is not a repetition of it. It is an
independent area of study which addresses the main concerns of
development and its relationship with law and the state.
THE CHARACTER OF LEGAL PHENOMENA/LAW
Until the 1960s law has been mainly analyzed as simple rules without
relating it to the society in which it evolves or operates. As law is the
basis on which many aspects of social goals, institution and
development pursuits are based it would be indeed unrealistic to

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study law from a perspective of traditional legal analysis which does

not concern itself with legal impact or effectiveness in society.
Law and society studies (sociology of law – sociologically informed

empirical and theoretical research on law)
Law and society or law and development studies have now become
important as forms of realistic legal education, scholarship and
advocacy in which the rational elaborational techniques of policy
formulation and implementation are central. For that matter in this
course we shall attempt to understand the character of law as
doctrine in light of the empirical social and political conditions within
which that doctrine is developed and invoked. But since the social,
the political and economic structures/formations mutually influence
each other and in the process embrace law, we shall have to study
the political economy of a number of matters e.g. the political
economy of capitalism, law, Africa/Uganda etc.
There are various theories concerning how law emerges. The most
convincing of them is the dialectical-materialist approach/view which
is also called the Marxist-Leninist approach or method. With this
approach the existing social, economic and political structure and
institutions in a given social-economic formation are understood to
be a result of a complex interaction of antagonistic social-economic
forces in the history of that formation.
Thus, here the economic system i.e the mode of production is

viewed as majorly the one that cherishes the other aspects of social
life like the political system, the legal system, the ideological system
etc.
The state, law and ideology in class society are viewed as an

aggregate of economic relationships with the economic factors being

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the overriding but not the all determinant, these non economic
aspects of social life that are dependent on the economic system are
collectively called the super structure. This is in contrast with the
economic aspects called the sub structure.
The sub structure and the super structure all put to the same thing
the economic system and superstructure corresponding to it
together constitutes the socio-economic formation. Of essence to
the dialectical materialist method is that the state, law and ideology
are not given by a super natural power and are not dictated by
arbitrary desires of purely volitional determination of individuals
rather the ultimate determinant of the state, law and ideology is the
production, and reproduction of the individual society.
Marx and Engel’s empirical study of social movements in history

present a dialectical theory. This is the one that the decisive factors
in social movement is the mode of material production and we all
know history is a regular process of changed of social economic
process each of which is characterized by a certain stage of
development of reproductive forces, the corresponding type of social
relationships in production which eventually leads to the changed in
the productive system and super structure determined by them.
(Productive forces, the 5 components of productive forces i.e labour
power, objects of labour and means of labour taken together
constitute the productive forces) the productive forces express the
overall productive capabilities of the society they tend to develop all
the time.
When one talks of development of productive forces one may be

thinking of the quantitative and qualitative improvement of labour
power e.g when power acquire more scientific knowledge and
technical skills one could be thinking of improvement in qualitative

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natural assets such as irrigation of inerrable land to make it arable,

one could be thinking of the development of technology.
The state of the development of the productive forces decisively

influences social organization, culture, the level of welfare and even
social consciousness.
Prof. Ake Claude in his book “the political economy in Africa” says
that African backwardness and abject dependency today reflect a
stage in development of the productive process.
(Labour and production is usually social i.e done in cooperation or at

any rate in association with others. The relations which people enter
into with each other in the course of production are called the social
relations of production and the productive forces; a particular
relation of production comes into being because productive forces
are at a particular stage of development)
Development of productive forces entirely changes in the relations of

production and the super structure and the broad sphere of social
consciousness are corresponding altered. Legal phenomena are an
element of social reality whose roots go down into the needs of
prevailing mode of production of class society. Law and ideology
emerge as a special variety of social consolidation of the prevailing
mode of production hence law and ideology are linked from the very
start in actual property relations and the appropriation of objects of
nature and of the results of labour activity.
The Properties/Content of the Law
The properties of ideology and the progressive and social content it

may bear are dictated by the objective needs of the mode of
production.

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The mode of production, the existing economic and political

relations, the regime of power and the balance of class forces are
ultimate results of social economic events in special specific stages in
the history of a social economic formation.
In the final analysis, these events and forces in history primarily

characterize the law, ideology and the institutions based on that
ideology. The course of history has shown that a class society where
relations of production are antagonistic the dominant individuals in
those relations get to organize their forces into a state and express
the will conditioned by these relations in a law and ideology. In the
course of movement of ideology in this class society of the historical
role assigned to law and ideology has been that the reproduction
and conservation of the dominant social relations whose particular
will the law and ideology embody. The state serves to conserve,
fortify and evolve that economic and social order which best
corresponds to the interests of the ruling source of law or
individuals.
In employing the law and courts to strengthen the dominant class

position, the state authority cannot ignore the objectively necessary
legal form and must ensure the economically necessary law and
order and legality. The logic of the state, law and ideology cannot be
explained outside the contradictions and class struggle which dictate
their character. The study of social and legal institutions should not
be made in abstraction from the study of the dynamic relevant and
dominant structures and the nature of the attendant relations of
production. Legislation is both an active agency in all historical
processes and at the same time it records and
encapsulates/summarizes the balance between social forces at
particular historical moments and the ideological form in which
struggles are fought out. But law may have n necessary
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consequences or impact in some instances. There is such a thing as

limitations on legal effectiveness. There are necessary conditions for
specific effects of the law to be realized. Law is not confined in its
effectiveness to the level to which it appears to realize. The
effectiveness of legislation stems not from its content alone but from
the conditions of its application.
THE STATE CONCEPT
Most scholars have tried to define the concept of a “state” and have
come up with not so different definitions to elaborate what a state is.
Among them are; Prof.H.Laski who looked at a state as “a territorial
society provided into Government and subjects claiming with its
fixed physical area of supremacy over all other institutions,
Prof.J.W.Garner who defined the state as a concept of political
science public law, that is a community of persons, more or less
numerous, permanently occupying a definite portion of territory,
independent, nearly so, of external control and processing an
organized government to which the great body of inhabitants render
habitual obedience, Holland looks at a State as a Politically organized
people of a definite territory and the prominent Prof Woodrow
Wilson, who defined a State is as People organized for law within a
definite territory.
It is therefore based on this background that scholars have tried to

identify the features of the state to be; Population; in a sense that
one cannot think of a state without the Population. Scholars like
Aristotle thought of “optimum population small enough to be well
governed and big enough to be self sufficient”.

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Territory; in that a State can only exercise its authority over well
defined territory,
Government; government being taken as an agency which steers the

ship of the State based on a notion that without government, state
will be directionless and sovereignty; which is believed by scholars to
be the soul of the state because it’s because of sovereignty that a
state can be able to exchange its relations with other states and
agencies or organizations both national and internationally.
A state is therefore a complex phenomenon i.e. an assemblance of

people and organs or agencies endowed with political power that
constitute an organization; that is; a source of command (authority)
that formulates the rules and laws and formulates machinery for
their implementation, that direct media matters concerning society,
that controls and governs in society of reasonable size. It’s
considered paternalist or the genuine society and is presumed to be
a welfare maximizer for you and me.
There is taken to be a social contract between the state and the

people and in that, the state is meant to govern the conduct of
affairs in the society, maintain order and champion social welfare.
Those are the ideal of the institution called the state although more
often than not it is more in practice a very controversial,
contradictory and predatory institution that turns out as a front to
oppress and exploit the masses in the interest of a few.
As a legal concept the state delineates as a territory within a given

state institution/apparatuses have jurisdiction e.g the monopoly of
the use of legitimate violence. The state is also a political concept
with territoriality and political authority as the principle criteria of
the state. But it is also important to see the state in relation to
society.
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The state as an organization within the society where it co-exists and

interacts with other formal and informal organizations from families
to political organizations to religious organizations is however, a
myriad of other organizations in seeking predominance over them
and in aiming to institute rules binding other organization’s activities.
The state is seen as part of the society where it interacts with the
different parts of the society but at the same time the state stands
slightly above the society in a sense that it guides the other
organizations; activities.
The state is a historical and not an ahistorical (not historical) or an

abstract category. It is a dynamic product of correlating forces that
comprises and envelop all of society. It is a complex of articulation,
contradictory relations and mediations. The state is thus a field of
objective forces and is not a formation by its own conscious making.
Likewise state action or the choices and forms of state intervention
in a wide range of matters within its territory are not subjective
“consciously” made actions, choices and forms, rather they are
derivative instances traceable to a matrix of objective forces, socio-
economic, socio-cultural and political which also define and redefine
the state in specific historical faces.
The acts and policies of the individual in the state authority, whether
this state authority is constituted by an individual or group of
individuals – are objective acts and policies conditioned by the power
of the institution called the state.
The state considered a welfare maximizer assumes the role in social

dynamics and it’s the social overall source of legal, social, political
and economic resources and policy making. In the study of law and
development we have to address the essence of the state since law,
the economic structures and the political structure and processes
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(i.e. the state and its activities mutually influence each other). Law
and development of the social economic system are much a variable
of the state (political structure and processes) just as the state is in
turn a variable of them)
THE NATION STATE
The nation state is a state that self-identifies as deriving its political

legitimacy from serving as a sovereign entity for a nation as a
sovereign territorial unit (such a definition is a working one: “all
attempts to develop terminal consensus around nation resulted in
failure” concludes Tishkov, Valery (2000). The state is a political and
geographical entity; the nation is a cultural and/or ethnic entity. The
term nation state implies that the two geographically coincide.
Nation state formation too place at different times in different parts
of the earth but has become the dominant form of state
organization.
The concept and actuality of the nation state can be compared and
contrasted with that of the multinational state, city state, empire,
confederation, and other state forms with which It may overlap. The
key distinction from the other forms is the identification of a people
with a polity.
Origins
The origins and the early history of nation states are disputed. A
major theoretical issue is; “Which came first, the nation or the nation
state?” For nationalists, the answer is the nation that existed first,
nationalist movement arose to present legitimate demands for
sovereignty, and the nation state met that demand. Some
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“modernization theories” of nationalism see the national identity

largely as a product of government policy to unify and modernize an
already existing state. Most theories see the nation state as 19 th
century European phenomenon, facilitated by developments such as
mass literacy and the early mass media. However, historians also
note the early emergence of a relatively unified state, and a sense of
common identify, in Portugal and the Dutch Republic.
Historians Hans Kohn, Liah Greenfield, Phillip White and other have
classified nations such as Germany or Italy, where culture unification
preceded state unifications, as ethnic nations or ethnic nationalities.
Whereas ‘state-driven’ national unifications, such as in France,
England or China, are more likely to flourish in multi-ethnic societies,
producing a traditional national heritage of civic nations, or territory-
based nationalities.(Kohn,Hans(1955). Nationalism: Its meaning &
history. Greenfield, Liah (1992). Nationalism: Five Roads to
Modernity. White Phillip L. (2006). Globalization and the mythology
of the nation state, In A.G Hopkins, ed. Global history: Interactions
between the Universal and the Local Palgrave Macmillian, pp. 257-
284)
The relation between racism and ethnic nationalism reached its

height in the 20th century fascism and Nazism. The specific
combination of the ‘nation’ (people) and ‘state’ expressed in such
terms as the Volkische Staat and implemented in laws such as the
1935 Nuremberg laws made fascist states such as early Nazi
Germany qualitatively different from non-fascist nation states.
Minorities were not considered part of the people (Volk), and were
consequently denied to have an authentic or legitimate role in such a
state. In Germany, neither Jews nor the Roma were considered part
of the people, and were specifically targeted for persecution.

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German nationality law defined “German” on the basis of German

ancestry, excluding all non-Germans from the people.
In recent years, the nation state’s claim to absolute sovereignty

within its borders has been much criticized. A global political system
based on international agreements and supra-national blocks
characterized the post-war era. Non–state actors, such as
international corporations and non-governmental organizations, are
widely seen as eroding the economic and political power of nation
states potentially leading to their eventual disappearance.
The state therefore may not necessarily mean a nation. The concept
of nation involves other factors such as common language, culture,
custom, religion a common consciousness that its people belong to a
specific community which sets them apart from other communities.
In many African nations there are multi-ethnic groups and the state
reflects this aspect.it is a multi-nation state e.g. Uganda
Characteristics of a nation state
Legitimate states that govern effectively and dynamic industrial

economies are widely regarded today as the defining characteristics
of a modern nation state. Nation states have their own
characteristics which makes them different from pre-national states.
1. They have a different attitude to their territory as opposed to

dynastic monarchies. No nation shall swap territory because of
marriage to a King’s daughter. They have a different type of
border, in principle defined only by the area of settlement of

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the national group, although many nation states also sought

natural borders (rivers, mountain ranges).
2. The instrument of national unity in economic, social and
cultural life.
The Nation State promoted economic unity, by abolishing
internal customs and tolls. In Germany, that process, the
creation of the Zollverin preceded formal national unity. Nation
states typically have a policy to create and maintain a national
transportation infrastructure, facilitating trade and travel. In
the 19th Century Europe, the expansion of the Rail transport
network was largely a matter for private railway companies,
but gradually came under the control of national governments.
The French rail network, with its main lines radiating from Paris
to all corners of France, is often seen as a reflection of a
centralized nation state, which directed its construction.
Nation states continue to build for instance, specifically
national motorway networks. Specifically, transnational
infrastructure programs, such as the Trans-European Networks
are a recent innovation.
3. Nation States have a more centralized and uniform public
administration than imperial predecessors they were smaller,
and the population less diverse. After the 19 th century triumph
of the nation state in Europe, regional identity was subordinate
to national identity, in regions such as Alsace-Lorraine,
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Catalonia, Britanny among others. In many cases, the regional

administration was also subordinated to Central (national)
government this process was partially reversed from the 1970s
onward, with the introduction of various forms of regional
autonomy, in formerly centralized states such as France.
4. The other most important element of Nation states is the
creation of a uniform national culture, through state policy. The
model of the nation state implies that its population constitutes
a nation, united by common descent, a common language and
many forms of shared culture. When the implied unity was
absent, the nation state often tried to create it. It promoted a
uniform national language, through language policy. The
creation of national systems of compulsory primary education
and a relatively uniform curriculum in secondary schools was
the most effective instrument in the spread of the national
languages. The element of national history among others.
5. Language and cultural policy. Language prohibitions were
sometimes used to suppress the non-national nature.
Nation state in Practice

In certain cases, the geographic boundaries of an ethnic
population and a political state largely coincide. In these cases,
there is little immigration or emigration, few members of ethnic

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minorities, and few members of the “home” ethnicity living in

other countries.
Some examples of Nation States (those that make up more
than 95% of the population as shown).
a) Albania(98.9% of the population are Albanian while the

others are of a few small ethnic minorities)
b) Armenia(98% of the population are Armenian while the
others are of a few small ethnic minorities)
c) Bangladesh(98% are Bengali while the others are Bihari
migrants and indigenous tribal groups)
d) Egypt (99% of the population are ethnic Egyptians while the
others are of a few small ethnic minorities like the asylum
seekers, refugees. Modern Egyptian identity is closely tied to
the geography of Egypt and its long history, its development
over the centuries saw overlapping or conflicting ideologies.
Today though, the Cultural dimension of their identity is not
a necessary attribute to their national political being. Today,
most Egyptians see themselves, their history, culture and
language as specifically Egyptian and at the same time as
part of Arabs.
e) Hungary. The Magyer people of Hungary consist 95% of the
population while the others are the small Roma and German
minority.
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f) Japan. Japan is also traditionally seen as an example of the

nation state and also the largest of the nation states, with
population in excess of 120 million. It should be noted that
japan has a small number of minorities such as Ryukyu
peoples, Koreans and Chinese, and on the Northern Island of
Hokkaido, the indigenous Ainu community.
g) The others examples are; Lesotho (99.7%), San Marino
(97%), Swaziland (98.6%) among others.
The notion of a unifying national identity also extends to

countries that host multiple ethnic or language groups, such
as India and China. For example, Switzerland is
constitutionally a confederation of cantons, and has four
official languages, but it has also a Swiss national identity, a
national history and a classic national hero.
Conflicts have arisen where political boundaries did not
correspond with ethnic or cultural boundaries like the Hatay
province was transferred to Turkey from Syria after the
majority- Turkish population complained of mistreatment.
Exceptions
The United Kingdom
The UK is a Unitary state formed initially by the merger of 2
independent kingdoms, the Kingdom of England and the
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Kingdom of Scotland, but the Treaty of Union(1707) that set

out the agreed terms has ensured the continuation of
distinct features of each state, including separate legal
systems and separate national churches.
In 2003, the British government described the United

Kingdom as countries within a country. While the office for
national statistics and others describe the United Kingdom as
a nation state, others describe it as a multinational state and
the term home nations is used to describe the four national
teams that represent the four nations of the United Kingdom
(England, Northern Ireland, Scotland, Wales)
Israel
Israel’s definition of a nation state differs from other
countries as its concept of a nation state is based on the
Ethnoreligious group (Judaism) rather than solely on
ethnicity. The ancient mother language of the Jews, Hebrew,
was received as a unifying bond between them as a national
and official language.
Israel was founded as a Jewish state in 1948, and the
Country’s basic laws describe it as both a Jewish and a
democratic state. According to the Israel Central Bureau of
Statistics, 75.7% of Israel’s population is Jewish. Large
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numbers of Jews continue to immigrate to Israel. Arabs, who

make up 20.4% of the population, are the largest ethnic
minority in Israel. It also has small communities of
Armenians, Assyrians, and Samaritans among others
Pakistan
Pakistan, even being an ethnically diverse country, is
regarded as a nation state due to its ideology on basis of
which it got independence from British India as a separate
nation state rather than a unified India. Pakistanis are
strongly bonded by their Muslim identity, culture, heritage, a
single national language and values in the sub-continent.
Minorities
The most obvious deviation from the ideal of ‘one nation, one
state’ is the presence of minorities, especially ethnic
minorities, which are clearly not members of the majority
nation. An ethnic nationalist definition of a nation is
necessary exclusive: Ethnic nations typically do not have open
membership. In most cases, there is a clear idea that
surrounding nations are different, and that includes members
of those nations who live on the ‘wrong’ side of the border.
Historical examples of groups, who have been significantly
singled out as outsiders, are the Roma and Jews in Europe.
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Negative responses to minorities within the Nation State

have ranged from cultural assimilation enforced by the
State, to expulsion, persecution, violence, and
extermination. The assimilation policies are usually enforced
by the State but violence against minorities is not always
state initiated: it can occur in the form of mob violence such
as lynching. Nation states are responsible for some of the
worst historical examples of violence against minorities
because they are usually never considered as part of the
nation.
However, many nation states accept specific minorities as

being part of the nation, and the term national minority is
often used in this sense. The Sorbs in Germany for example
have lived in German speaking states, surrounded by much
larger ethnic German Population without a historical
territory. They are now generally considered to be part of
the German nation and are accepted as such by the Federal
Republic of Germany, which constitutionally guarantees
their cultural rights. Of the thousands of ethnic and cultural
minorities in nation states across the world, only a few have
this level of acceptance and protection.

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THE EMERGENCE AND CAUSE FOR THE STATE AND ITS

CONTRADICTORY CHARACTER
Social antagonisms or conflicts are an expression of the
inherent contradiction of the state, the antagonistic social
relations it seeks to mediate, and the contradictions in the
formation, forces and processes with which the state is in
interface, and amidst which it exists and operates just as the
state itself.
These forces influence a range of matters. Engels clarifies the

state of affairs. He says that the state is by no means a
power imposed upon the people from without. Just as little
is it the reality of a common idea, the image and reality of
reason, rather it is a product of a society at a particular stage
of development. It is an admission that the society has
involved itself in insoluble self-contradiction and it splits
into irreconcilable antagonism which is powerless to dispel
but in order that these antagonisms, clashes in conflicting
economic interests shall not consume themselves and
society in fruitless struggle.
A power apparently standing above society has become

necessary to moderate the conflict and keep it within the
bounds of order. This power arose out of society by placing

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itself above it and increasingly alienating itself from it as the

State. As distinct from the old gentile order the state first
derived its subjects according to territory.
It also establishes a public force which no longer directly

coincides with the people’s own organisation of themselves
as an organized power. As the state arose because of the
need to hold the class antagonisms at check but also arose
at the same time at the midst of the same conflict class, it is
as a rule the state of the most powerful economically
dominant class which through the medium of the state
becomes also politically dominant class and thus acquires
new meaning of holding down the oppressed class.
This exclusive claim to political power, which was so

necessary for the colonial system, plunged the same system
into acute contradiction. Once a contradiction between
colonial Bourgeoisie and the African Petty Bourgeoisie
became political, the African Petty Bourgeoisie had to merge
this with their own exclusive claim to power. The essence of
the contradiction was that the colonizers monopolization of
power created its own negation.

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It created a condition in which the demands of the political

outsiders could not be met by form and accommodation but
only by the complete displacement of those to exercise
political power. When at last the colonizers granted formal
independence to the Africans to govern themselves, at first
the petty bourgeoisie had very limited ideological clarity but
eventually this changed and a formidable front gradually
emerged.
CHARACTERISTICS OF A CAPITALIST STATE/ECONOMY

Capitalism is the personalized conditions or relations of
production and private ownership of the means of
production and appropriation of the results of labour. This is
a contradistinction in a socialist/ communist system of
collective ownership through the State.
Ake C in “A political economy of Africa” pg. 128 speaks of
capitalism as pervasive commodification, a system geared
towards the exchange values rather than use values with
production so geared to exchange; capitalist society is a
market society and as such is ruled ideally by forces of
supply and demand. Often times, exploitable relations are
hidden behind the mechanism of exchange. The exchange
relations themselves appear as something in which people
freely enter and this after makes themselves responsible for
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their failures and success, capital is monopolized by few and,

fewer people are exploiting more and more people and
taking more and more of the wealth of the society. The
fundamental contradiction of capitalism is that more and
more people cooperate to produce but the product is
appropriated by the increasingly small number of people.
There is a contradiction between the forces of production
and the relations of production. The forces of production
under capitalism develop in the direction of socialization of
production; however the social relations of production
develop in the direction of greater private appropriation of
products.
Indeed the development crises which African countries have

been experiencing since 1980s have forced many social
scientists to rethink and consider social development from a
political dimension. One can rightly argue that African states
are overwhelmed by their own incoherent indiscipline and
shrinking fiscal base. Political variables, such as state actions,
policies, relations among political leaders, political traditions
or patterns of state structures are known to have relevance
for our understanding of development Programmes. To this
end, a number of studies on the State have emerged with

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the primary objective of explaining the peculiar problems of

development being experienced by many African countries.
Concepts such as the social state, the personalistic state and
neo-patriotic theory of the state which ceased the personal
rule of the leader with its strong patron-client ties are the
central factor behind political decay and the failure of the
state to provide appropriate conditions for capitalism to
develop are attempts to explain the low development of
nations through the state.
POST COLONIAL AFRICA AND DEVELOPMENT
a) The African post-colonial State

The post-Colonial era was analyzed by Ake in a way that specifically
reflects the changed politics, goals and manner of action of the pre-
independence nationalist leaders. When political independence
came, the interests of the nationalist leaders who inherited power
changed…their ideas and dispositions to actions changed
correspondingly. The change from being an opposition group in one
of being the government was full of perils as well as exciting
possibilities. Authority had to be consolidated. The appetite for
participation and better welfare, which the nationalistic leaders had
excited, had to be satisfied. The oppositional politics, which the
nationalistic struggle had produced, had to be changed. These
problems quickly revealed the contradictions within the newly
independent society, particularly the contraction between the new
rulers and masses. Consider the politicization of the masses and the

26
pressure for democratic participation, which the nationalistic

struggle had created. If the new rulers had chosen to allow
democracy in substance as opposed to appearance, they would have
entirely had to abolish the capitalist relations of production as
diametrically opposed to substantive democracy. So the choice was
one of denying the demand for participation or hanging the relations
of production and their privileges…they (the rulers) decided to
maintain the exploitative relations and stratification system that they
dominated. They decided to firmly discourage demands for
redistribution of wealth and for mass participation. Having made
these commitments, they were obliged to use coercion to solve the
problems of authority and integration. Workers movements are
deprived of all autonomy and effectiveness (Ref: Ake C “The
congruence of political economies and ideologies in Africa”
After formal independence, for example in Uganda and Kenya, there

were efforts to encourage indigenous capitalism. These efforts were
complemented by efforts to increase the intervention of the state in
the economy, particularly the creation of parastatals. From the point
of view of the interest of the new African leaders, the extension of
state participation in the economy was most desirable. The more of
the economy they brought under the power of the state, the more
they increased their economic power and political leverage. The
extension of state participation in the economy, which was often
justified in the name African socialism, the pursuit of economic
independence and the rationalization of the process of economic
development, created opportunities for the enrichment of the ruling
class by manipulation of the appointments of officers to the
parastals, by influencing how the parastatals conduct their business
and with whom they do so, etc.

27
This was a response to the contradiction between economic and

political power in the post-colonial social economic formation. The
nationalist leaders who had just replaced the colonial regime had
political power but not economic power. Economic power was still
largely in the hands of foreign capital, whose political power had
been grossly diminished by the fact of political independence in the
former colonies. The pressure on the part of nationalist leaders in
office to translate their political power into economic power was one
way of resolving this contradiction. But colonial capital, which had
largely lost its political power, had to turn the new rulers into docile
agents for promoting its interests: the postcolonial African state
remained to collaborate in the moment of capitalism. The social
strata which the neo-colonial state represented were dubbed by the
Chinese Marxists as comprador elements” after the cadre of
professional intermediaries who dealt with the foreign trading house
in the coastal enclaves.
The state at its head had to remain inextricably linked to, and under
the aegis of the international financial oligarchy (form of government
in which a small group of people hold power)
1. Consumer demand in the periphery countries remained to be

largely satisfied by imports from the metropolitan countries,
and such demand failed to stimulate local investment. Post-
colonial Africa’s growth has been largely confined to the sector
or sectors producing primary products for export. The
economies of the periphery acquired their well-known
“external orientation”, with very weak links between the
different domestic sectors, and very (string links between the
different domestic sectors) and very strong links with overseas
markets and supplies.
28
2. Some of the local nationalists now have a foot in the door of

the capitalist class and have become appeased if not content.
Foreign capital can feel more secure because of the vested
interests of politically powerful leaders in capitalism.
However, the neocolonial structures which serve the African
petty-bourgeoisie so well also underline the dependence and
the African petty-bourgeoisie so well also underline the
dependence and underdevelopment which limit their power
and undermine their political legitimacy.
The post-colonial state in Africa came to consist of the new
nationalistic leadership that has to rely on political power as
the means of creating their economic base, it unfortunately
created a tendency to make political power the means of
accumulation. The prospect for capitalist appropriation through
political power are so attractive that some people who want to
be wealthy and who would normally have engaged in
productive enterprises have preferred to seek their fortune by
going into politics. With attention being directors to politics
rather than production capitalism, this cannot be very
conducive to the development of productive forces.
❖ In a situation in which politics is the way to power as

well as wealth, the premium on the acquisition of
political power becomes inevitably very high. The
further implication of this is that political
competition becomes a grim battle in which winning
is all important. Because winning is all important,
the competitors tend to use every means to win.
This is part of the explanation of the high incidence
of political violence and political instability in turn
reduce the prospects of overcoming
underdevelopment.
29
❖ The massive intervention of the state in the

economic sphere and the use of political power as
the means of appropriation distorts the role of the
capitalist state in Africa. This means that the state
gets too involved in class struggle and begins to look
like “the executive committee for managing the
affairs of the bourgeoisie” because it is so difficult
for the State in Africa to rise over the class struggle
and to mediate it, the struggle has become
singularly crude and intense, and the contradictions
are deepening and developing out of proportion to
the state and the development of the productive
forces.
❖ What the African formation had at independence
which was;
a) Particularly developed and
b)Immersed in the class struggle instead of rising
above it. The development of the colonial state was
due essentially to the overwhelming need of the
colonizers for the repressive force. The involvement
of the colonial state in the class struggle was due to
the fact that in the early colonial era, most parts of
Africa were for all practical purposes under the rule
of companies such as the Royal Niger Company, the
Imperial British east African Company (IBEAC) which
acted as the state, and from this tradition the
colonial state, developed as a tool of capital. Also in
the colonial socio-economic formations of Africa
state power was regularly needed for primitive
accumulation.

30
These two characteristics of the colonial state were reinforced in the

postcolonial era by the fact that the indigenous bourgeoisie which
took over government at independence lacked a secure material
base and used its political power for accumulation. We have a post-
colonial state that is interventionist and involved in the class
struggle, that is to say a state already dragged into politics and
politicized. Partly because of this fact (whose significance is the
perception of the state as being very partial) and partly because
state power in question is highly developed, there is a bitter struggle
to gain control of it, which is the formal access to state power.
The battle for control of the government and for hegemony is all the
more grim because, as we saw before, governmental and state
power has tended to become the means of production for the
African Bourgeoisie. Thus, in Africa those in office do all they can to
perpetuate their hold on it, there is hardly any restraint beyond
prudence as to permissible means for this struggle.
On the other hand, the ruling classes of Africa are highly fractious;
they are-beset with contradictions arising from the state of
development of productive forces, the juxtaposition of different
modes of production in the social-economic formation(i.e. in
Uganda, there is a predominant small-scale peasant mode; vestiges
of the semi-feudalistic mode in Buganda; the communist
mode(primitive community modes, and the miniature
capitalist/monetary sector), the disarticulation of the economy( a
disarticulated economy is one whose parts or sectors are not
complementary. In a coherent economy, there is regional and/or
sectorial complementarity and reciprocity. One region specializes in
agriculture while another supplies the agricultural sector with
manufactured goods. Along with this general type of regional or
sectarian reciprocity of exchanges will be a system of what
31
economists call forward and backward linkages in production),

dependence, and the exploitative role of foreign capital. As always,
contradiction to make political competition intense, for the less a
fraction of the ruling class feels it has in common with others the less
it is willing to allow that fraction to become politically dominant. The
effect of contradictions is to politicize the ruling class intensely. So
we have a situation in which the ruling class is far less passive (it is
very active) about who governs and becomes engaged in grim
factional battles for hegemony through the control of the formal
access to state power, namely the government. We are then left with
a state with limited potential for mediating the class struggle, and
endemic political stability arising from too high a premium on
political power.
The broader implication of this state of affairs is these in brief;
❖ First it means a crudely oppressive class rule: because the state

and government are too involved in the class struggle, and
because of the high premium placed on political power, the
tone of politics is highly authoritarian and the hegemonic
faction of the bourgeoisie adopts a siege mentality.
❖ Secondly, the existence of crude oppression and the
involvement of state and government in the class struggle
makes it more difficult to mask class contradictions and
encouragement of class consciousness (what are the effects of
class consciousness?)
❖ Thirdly, the potential of the state for making the social
economic formation more coherent is limited.
❖ Fourthly, the tendency to accumulate through the use of state
power rather than through productive activities makes post-
colonial capitalism less conductive to the development of
productive forces and the increase of surplus.

32
❖ The African leaders are in a dilemma: there is lack of symmetry

between political and economic power. The economic power
lies outside of the policy/realm while the political power which
the African leaders may have is drastically curtailed by the diet
that Western capital successfully translates its economic power
into political control of African states. As all that happens, the
African leaders get more and more alienated from the masses.
b) The African postcolonial state and ideology
Faced with disaffection among the masses, the petty

bourgeoisie at the head of the African state had no choice, but
to engage in demagogic ;( ideological) social engineering. With
the challenges from the various constituencies (not
parliamentary), the neocolonial state gets to make political
responses to these challenges in a manner that leaves the State
to feature as an erratic crisis manager” Gordon (1991) states
that; “Although their actions frequently reflect pressures to
cater to foreign capital, which largely controls the formal
economy, Africa’s rulers have other agendas as well. That is,
they must respond to multiple indigenous social forces and
interest groups such as ethnic or religious constituencies, the
militia domestic business and agricultural interest groups such
as ethnic or religious constituencies, the militia domestic
business and agricultural interest groups, and women’s groups,
such interest groups must be for ruling class to the economic
surplus necessary for the regime’s own activities (and often
enrichment), facilitate capital accumulation.”
The African leadership/the state thus engages in social

demagogy and invents or activates ideology state apparatuses
33
(ISAS) by harping on the very ills that affect the people

(masses). Faced with outcries, pervasive corruption, for
example, state will appoint a minister of Ethics & integrity, an
Inspector General of Government (ombudsman) and enact a
leadership Code to declare wealth, as has been the case in
Uganda, inversion of reality, to throw dust in the eyes of the
sufferers, so that they would not appreciate their plight what,
in essence, called ideology. Indeed, in Uganda there have been
promulgated the 1995 Constitution, other laws, such as the
Land Act, 1998 with gender neutral provisions which in reality
are unlikely to accord women their due rights for a number of
reasons, including the nature of the policy environment in
which they are brought to be enforced; the social relations of
production, for example, and culture seem to be inhibitive
prohibitive factors that work against the propagandist
affirmative action for women in Uganda.
These measures could hardly have been put forward for

genuine realization; Ake, C has called such measures an
attempt to create a progressive image in those countries of
Africa where there are revolutionary pressures from the
masses. He states that through these measures or populist
rhetoric, the social groups in power seek to maintain it. He
refers to this situation as “defensive radicalism”. He points out
that “whether or not the rulers of a country engage in
defensive radicalism is something that is determined by the
objective condition of the country in question (pp-210-211)
c) The African Post-Colonial state and the Gender Question

State policy, law and ideology are often handed down
purposely to mystify reality and maintain the pre existing order
34
that disenfranchises a section of the population, say in land

relations in Uganda for example, the State's indulgence in
redefining gender relations and women's land rights has often
served to reproduce the disenfranchised position of women a
and also to exacerbate the emergence of the infra-familial land
disputes, indeed in all the period prior to the 1995 Constitution
of the Republic of Uganda, there was little, if any, attention by
the State to women's issues and the women's denied land
rights. There is a situation of institutionalized patriarchy about
which Gordon(1996:81) writes that “women's present status in
Africa patriarchy is a product of precapitalist gender relations
that were modified and distorted as African-American societies
were incorporated into the World economy. Both gender
ideology and relations that have subordinated women and
relegated them to specific roles in the sexual division of labour
reflect patriarchal power and the dynamics of under developed
capitalism, and they have been maintained through state policy
and law. Women confront a dual system of exploitation; the
sex-gender system and underdeveloped capitalism. They thus
resist the appropriation of their labour and its products by the
international commodity markets through the agency of their
husbands.
Gordon(1996; 32, 37) further observes that, Africa’s patriarchy

has benefited Africa’s ruling classes as well, Africa’s elites in
both the State and private sector are the product of
underdeveloped capitalism; therefore they depend heavily on
the patriarchal family production system to generate the
surplus they expropriate for their own power and enrichment
(e.g through taxes on products or profits generated by cheap
African labour and cheap commodities in agricultural or
35
business enterprises). The ruling class have used the State to

provide the legal and policy supports for African Patriarchy and
thus for underdeveloped capitalism. Ideology and state policy
typically aid men in their effort to maintain control over women
and preserve male dominance. The domination of women in
Africa operates through the collusion of the State and sub
national structures like ethnic groups (tribes), clans, and
lineages. Patriarchal elements from within these groups evoke
African custom and tradition in order to preserve male
dominance over women. The state because it must have the
support of these same groups, often caters to them in order to
maintain political stability. The state, however, is confronted by
women's resistance to subordination and denial of property
rights, conflicts over land within the family and pressures from
various quarters for it to take corrective measures in this
respect. In Uganda, in the major part of the post-independence
period, the State made literary no response to the woman's
cause. Not so long ago, the pressures on the State however
made it to provide for gender relations and property rights in
law (the constitution, 1995; and the Land Act, 1998). Despite
the gender-neutral wording of the law, it seems to be
inadequate, ambiguous and contradictory. Since this law
operates against a background of institutionalized patriarchy
whereby the State and the underdeveloped capitalist relations
reinforce domination of women by men and unequal
opportunities, it in reality serves to preserve male dominance,
thereby exacerbating intra-familial disputing over land as
women increasingly resist their denial of land rights.
POST COLONIAL AFRICA AND DEVELOPMENT

36
d) The African post-colonial State

The post-Colonial era was analyzed by Ake in a way that specifically
reflects the changed politics, goals and manner of action of the pre-
independence nationalist leaders. When political independence
came, the interests of the nationalist leaders who inherited power
changed…their ideas and dispositions to actions changed
correspondingly. The change from being an opposition group in one
of being the government was full of perils as well as exciting
possibilities. Authority had to be consolidated. The appetite for
participation and better welfare, which the nationalistic leaders had
excited, had to be satisfied. The oppositional politics, which the
nationalistic struggle had produced, had to be changed. These
problems quickly revealed the contradictions within the newly
independent society, particularly the contraction between the new
rulers and masses. Consider the politicization of the masses and the
pressure for democratic participation, which the nationalistic
struggle had created. If the new rulers had chosen to allow
democracy in substance as opposed to appearance, they would have
entirely had to abolish the capitalist relations of production as
diametrically opposed to substantive democracy. So the choice was
one of denying the demand for participation or hanging the relations
of production and their privileges…they (the rulers) decided to
maintain the exploitative relations and stratification system that they
dominated. They decided to firmly discourage demands for
redistribution of wealth and for mass participation. Having made
these commitments, they were obliged to use coercion to solve the
problems of authority and integration. Workers movements are
deprived of all autonomy and effectiveness (Ref: Ake C “The
congruence of political economies and ideologies in Africa”

37
After formal independence, for example in Uganda and Kenya, there

were efforts to encourage indigenous capitalism. These efforts were
complemented by efforts to increase the intervention of the state in
the economy, particularly the creation of parastatals. From the point
of view of the interest of the new African leaders, the extension of
state participation in the economy was most desirable. The more of
the economy they brought under the power of the state, the more
they increased their economic power and political leverage. The
extension of state participation in the economy, which was often
justified in the name African socialism, the pursuit of economic
independence and the rationalization of the process of economic
development, created opportunities for the enrichment of the ruling
class by manipulation of the appointments of officers to the
parastals, by influencing how the parastatals conduct their business
and with whom they do so, etc.
This was a response to the contradiction between economic and

political power in the post-colonial social economic formation. The
nationalist leaders who had just replaced the colonial regime had
political power but not economic power. Economic power was still
largely in the hands of foreign capital, whose political power had
been grossly diminished by the fact of political independence in the
former colonies. The pressure on the part of nationalist leaders in
office to translate their political power into economic power was one
way of resolving this contradiction. But colonial capital, which had
largely lost its political power, had to turn the new rulers into docile
agents for promoting its interests: the postcolonial African state
remained to collaborate in the moment of capitalism. The social
strata which the neo-colonial state represented were dubbed by the
Chinese Marxists as comprador elements” after the cadre of

38
professional intermediaries who dealt with the foreign trading house

in the coastal enclaves.
The state at its head had to remain inextricably linked to, and under
the aegis of the international financial oligarchy (form of government
in which a small group of people hold power)
3. Consumer demand in the periphery countries remained to be

largely satisfied by imports from the metropolitan countries,
and such demand failed to stimulate local investment. Post-
colonial Africa’s growth has been largely confined to the sector
or sectors producing primary products for export. The
economies of the periphery acquired their well-known
“external orientation”, with very weak links between the
different domestic sectors, and very (string links between the
different domestic sectors) and very strong links with overseas
markets and supplies.
4. Some of the local nationalists now have a foot in the door of
the capitalist class and have become appeased if not content.
Foreign capital can feel more secure because of the vested
interests of politically powerful leaders in capitalism.
However, the neocolonial structures which serve the African
petty-bourgeoisie so well also underline the dependence and
the African petty-bourgeoisie so well also underline the
dependence and underdevelopment which limit their power
and undermine their political legitimacy.
The post-colonial state in Africa came to consist of the new
nationalistic leadership that has to rely on political power as
the means of creating their economic base, it unfortunately
created a tendency to make political power the means of
accumulation. The prospect for capitalist appropriation through

39
political power are so attractive that some people who want to

be wealthy and who would normally have engaged in
productive enterprises have preferred to seek their fortune by
going into politics. With attention being directors to politics
rather than production capitalism, this cannot be very
conducive to the development of productive forces.
❖ In a situation in which politics is the way to power as

well as wealth, the premium on the acquisition of
political power becomes inevitably very high. The
further implication of this is that political
competition becomes a grim battle in which winning
is all important. Because winning is all important,
the competitors tend to use every means to win.
This is part of the explanation of the high incidence
of political violence and political instability in turn
reduce the prospects of overcoming
underdevelopment.
❖ The massive intervention of the state in the
economic sphere and the use of political power as
the means of appropriation distorts the role of the
capitalist state in Africa. This means that the state
gets too involved in class struggle and begins to look
like “the executive committee for managing the
affairs of the bourgeoisie” because it is so difficult
for the State in Africa to rise over the class struggle
and to mediate it, the struggle has become
singularly crude and intense, and the contradictions
are deepening and developing out of proportion to
the state and the development of the productive
forces.

40
❖ What the African formation had at independence

which was;
a) Particularly developed and
b)Immersed in the class struggle instead of rising
above it. The development of the colonial state was
due essentially to the overwhelming need of the
colonizers for the repressive force. The involvement
of the colonial state in the class struggle was due to
the fact that in the early colonial era, most parts of
Africa were for all practical purposes under the rule
of companies such as the Royal Niger Company, the
Imperial British east African Company (IBEAC) which
acted as the state, and from this tradition the
colonial state, developed as a tool of capital. Also in
the colonial socio-economic formations of Africa
state power was regularly needed for primitive
accumulation.
These two characteristics of the colonial state were reinforced in the

postcolonial era by the fact that the indigenous bourgeoisie which
took over government at independence lacked a secure material
base and used its political power for accumulation. We have a post-
colonial state that is interventionist and involved in the class
struggle, that is to say a state already dragged into politics and
politicized. Partly because of this fact (whose significance is the
perception of the state as being very partial) and partly because
state power in question is highly developed, there is a bitter struggle
to gain control of it, which is the formal access to state power.
The battle for control of the government and for hegemony is all the
more grim because, as we saw before, governmental and state
41
power has tended to become the means of production for the

African Bourgeoisie. Thus, in Africa those in office do all they can to
perpetuate their hold on it, there is hardly any restraint beyond
prudence as to permissible means for this struggle.
On the other hand, the ruling classes of Africa are highly fractious;
they are-beset with contradictions arising from the state of
development of productive forces, the juxtaposition of different
modes of production in the social-economic formation(i.e. in
Uganda, there is a predominant small-scale peasant mode; vestiges
of the semi-feudalistic mode in Buganda; the communist
mode(primitive community modes, and the miniature
capitalist/monetary sector), the disarticulation of the economy( a
disarticulated economy is one whose parts or sectors are not
complementary. In a coherent economy, there is regional and/or
sectorial complementarity and reciprocity. One region specializes in
agriculture while another supplies the agricultural sector with
manufactured goods. Along with this general type of regional or
sectarian reciprocity of exchanges will be a system of what
economists call forward and backward linkages in production),
dependence, and the exploitative role of foreign capital. As always,
contradiction to make political competition intense, for the less a
fraction of the ruling class feels it has in common with others the less
it is willing to allow that fraction to become politically dominant. The
effect of contradictions is to politicize the ruling class intensely. So
we have a situation in which the ruling class is far less passive (it is
very active) about who governs and becomes engaged in grim
factional battles for hegemony through the control of the formal
access to state power, namely the government. We are then left with
a state with limited potential for mediating the class struggle, and

42
endemic political stability arising from too high a premium on

political power.
The broader implication of this state of affairs is these in brief;
❖ First it means a crudely oppressive class rule: because the state

and government are too involved in the class struggle, and
because of the high premium placed on political power, the
tone of politics is highly authoritarian and the hegemonic
faction of the bourgeoisie adopts a siege mentality.
❖ Secondly, the existence of crude oppression and the
involvement of state and government in the class struggle
makes it more difficult to mask class contradictions and
encouragement of class consciousness (what are the effects of
class consciousness?)
❖ Thirdly, the potential of the state for making the social
economic formation more coherent is limited.
❖ Fourthly, the tendency to accumulate through the use of state
power rather than through productive activities makes post-
colonial capitalism less conductive to the development of
productive forces and the increase of surplus.
❖ The African leaders are in a dilemma: there is lack of symmetry
between political and economic power. The economic power
lies outside of the policy/realm while the political power which
the African leaders may have is drastically curtailed by the diet
that Western capital successfully translates its economic power
into political control of African states. As all that happens, the
African leaders get more and more alienated from the masses.
e) The African postcolonial state and ideology
Faced with disaffection among the masses, the petty

bourgeoisie at the head of the African state had no choice, but
43
to engage in demagogic ;( ideological) social engineering. With

the challenges from the various constituencies (not
parliamentary), the neocolonial state gets to make political
responses to these challenges in a manner that leaves the State
to feature as an erratic crisis manager” Gordon (1991) states
that; “Although their actions frequently reflect pressures to
cater to foreign capital, which largely controls the formal
economy, Africa’s rulers have other agendas as well. That is,
they must respond to multiple indigenous social forces and
interest groups such as ethnic or religious constituencies, the
militia domestic business and agricultural interest groups such
as ethnic or religious constituencies, the militia domestic
business and agricultural interest groups, and women’s groups,
such interest groups must be for ruling class to the economic
surplus necessary for the regime’s own activities (and often
enrichment), facilitate capital accumulation.”
The African leadership/the state thus engages in social

demagogy and invents or activates ideology state apparatuses
(ISAS) by harping on the very ills that affect the people
(masses). Faced with outcries, pervasive corruption, for
example, state will appoint a minister of Ethics & integrity, an
Inspector General of Government (ombudsman) and enact a
leadership Code to declare wealth, as has been the case in
Uganda, inversion of reality, to throw dust in the eyes of the
sufferers, so that they would not appreciate their plight what,
in essence, called ideology. Indeed, in Uganda there have been
promulgated the 1995 Constitution, other laws, such as the
Land Act, 1998 with gender neutral provisions which in reality
are unlikely to accord women their due rights for a number of
reasons, including the nature of the policy environment in
44
which they are brought to be enforced; the social relations of

production, for example, and culture seem to be inhibitive
prohibitive factors that work against the propagandist
affirmative action for women in Uganda.
These measures could hardly have been put forward for

genuine realization; Ake, C has called such measures an
attempt to create a progressive image in those countries of
Africa where there are revolutionary pressures from the
masses. He states that through these measures or populist
rhetoric, the social groups in power seek to maintain it. He
refers to this situation as “defensive radicalism”. He points out
that “whether or not the rulers of a country engage in
defensive radicalism is something that is determined by the
objective condition of the country in question (pp-210-211)
f) The African Post-Colonial state and the Gender Question

State policy, law and ideology are often handed down
purposely to mystify reality and maintain the pre existing order
that disenfranchises a section of the population, say in land
relations in Uganda for example, the State's indulgence in
redefining gender relations and women's land rights has often
served to reproduce the disenfranchised position of women a
and also to exacerbate the emergence of the infra-familial land
disputes, indeed in all the period prior to the 1995 Constitution
of the Republic of Uganda, there was little, if any, attention by
the State to women's issues and the women's denied land
rights. There is a situation of institutionalized patriarchy about
which Gordon(1996:81) writes that “women's present status in
Africa patriarchy is a product of precapitalist gender relations
that were modified and distorted as African-American societies
45
were incorporated into the World economy. Both gender

ideology and relations that have subordinated women and
relegated them to specific roles in the sexual division of labour
reflect patriarchal power and the dynamics of under developed
capitalism, and they have been maintained through state policy
and law. Women confront a dual system of exploitation; the
sex-gender system and underdeveloped capitalism. They thus
resist the appropriation of their labour and its products by the
international commodity markets through the agency of their
husbands.
Gordon(1996; 32, 37) further observes that, Africa’s patriarchy

has benefited Africa’s ruling classes as well, Africa’s elites in
both the State and private sector are the product of
underdeveloped capitalism; therefore they depend heavily on
the patriarchal family production system to generate the
surplus they expropriate for their own power and enrichment
(e.g through taxes on products or profits generated by cheap
African labour and cheap commodities in agricultural or
business enterprises). The ruling class have used the State to
provide the legal and policy supports for African Patriarchy and
thus for underdeveloped capitalism. Ideology and state policy
typically aid men in their effort to maintain control over women
and preserve male dominance. The domination of women in
Africa operates through the collusion of the State and sub
national structures like ethnic groups (tribes), clans, and
lineages. Patriarchal elements from within these groups evoke
African custom and tradition in order to preserve male
dominance over women. The state because it must have the
support of these same groups, often caters to them in order to
maintain political stability. The state, however, is confronted by
46
women's resistance to subordination and denial of property

rights, conflicts over land within the family and pressures from
various quarters for it to take corrective measures in this
respect. In Uganda, in the major part of the post-independence
period, the State made literary no response to the woman's
cause. Not so long ago, the pressures on the State however
made it to provide for gender relations and property rights in
law(the constitution, 1995; and the Land Act, 1998). Despite
the gender-neutral wording of the law, it seems to be
inadequate, ambiguous and contradictory. Since this law
operates against a background of institutionalized patriarchy
whereby the State and the underdeveloped capitalist relations
reinforce domination of women by men and unequal
opportunities, it in reality serves to preserve male dominance,
thereby exacerbating intra-familial disputing over land as
women increasingly resist their denial of land rights.
THE AFRICAN POST- COLONIAL STATE AND BUREAUCRACY
The post - colonial state in Africa has the imperialist exploitation of

Africa. The bureaucrats are a part of this category of people. In so far
as they foil into this role, they are unable to champion effectively
those changes which will liberate African economies from their
exploitative dependence and diversify her economy.
BUREAUCRACY AND ITS CHARACTERISTICS
BUREAUCRACY:

47
The foremost theorist of bureaucracy is the German sociologist Max

Weber (1864-1920), who described the ideal characteristics of
bureaucracies and offered an explanation for the historical
emergence of bureaucratic institutions. According to Weber, the
defining features of bureaucracy sharply distinguish it from other
types of organization based on non-legal forms of authority.
Encyclopedia Britannica defines bureaucracy as a specific form of

organization defined by complexity, division of labor, permanence,
professional management, hierarchical coordination and control,
strict chain of command, and legal authority and looks at it as being
distinguished from informal and collegial organizations.
According to the Encyclopedia, bureaucracy in its ideal form is

impersonal and rational and based on rules rather than ties of
kinship, friendship, patrimonial or charismatic' authority.
Bureaucratic organization can be found in both public and private
institutions.
The bureaucratic arena refers to all state organizations engaged in

formulating and implementing policy as well as in regulating and
delivering services. While issues of bureaucratic governance are not
constitutive of development per se, they are seen as crucial
determinants of the degree to which a country makes social and
economic progress or fails to do so. This set of issues has been of
concern since the advent of centralized
CHARACTERISTICS
Bureaucracy is characterized by;
 Professionalization;
Professionalization of 'management, another basic element of

48
bureaucracy, requires a full-time unit of officials whose attention is

devoted exclusively to its managerial responsibilities.
In government for instance like Uganda, professionalization is vested

in civil servants whose positions have generally been obtained
through the passage of tests based upon merit. The civil service is
sometimes considered a permanent government, distinct from the
transient politicians who serve only for a limited-time (five years) and
at the pleasure of the electorate in democratic political systems.
However as we will broadly see below, even the civil service in
Uganda has been manipulated to the extent that at times the
incompetent are also recruited within the Civil service.
 Jurisdictional competency which is considered to be a key

element of bureaucratic organization and is broken into units
with defined responsibilities it fundamentally, refers to
bureaucratic specialization, with all elements of a bureaucracy
possessing a defined role. The responsibilities of individuals
broaden with movement upward through an organizational
hierarchy.
 Command and control where bureaucracies must have clear

lines of command' and control. Bureaucratic authority is
expected to be planned hierarchically, with responsibility taken
at the top and entrusted with decreasing discretion below.
 Continuity which is another key element of bureaucratic

organization and according to this principle; Rational-legal
authority necessitates uniform rules and procedures for written
documents and official behavior and most importantly a
bureaucracy’s files (i.e., its past records) provide it with
organizational memory, thereby enabling it to follow precedent
and standard operating procedures.
49
Other elements of bureaucracy include; Rules which are the lifeblood

of bureaucratic organization, providing a rational and continuous
basis for procedures and operations and importantly is that an
organization’s files provide the inventory of accumulated rules.
There is also expected to be separation of personal from official

property and rights; Official property rights concerning e.g. machines
or tools should belong to the office or department not the
officeholder to ensure that personal properly is separated from
official property.
BUREAUCRACY AND THE DEVELOPMENT AGENDA
In recent years, there has been increasing evidence, from case

studies and cross-country empirical analysis, that bureaucratic
performance is important for development performance. Others
have also argued that the weakness of bureaucracy in Africa helps
explain the poor development performance of many countries on
the continent
In many developing countries, there have been pressures to

dramatically reduce the role of the state in relation to the market
and cut the size of the civil service (the numbers of employees, and
wage bill). Lack of economic and social progress in these countries
has also led to many calls for improving the managerial efficiency of
bureaucracies.
The bureaucracy, however, should not only-be studied in the context

.of implementation of individual policies, but also in terms of
governance. The rules that determine procedures .in the
bureaucracy, whether formal or informal, are especially important
for public, perceptions of how the state operates. As we know, many
50
contacts that citizens have with government are with first level
bureaucrats responsible for processing requests for services and
assistance. The recent Voices of the Poor study provide a
demonstration of the importance of this set of issues. The poor
highlighting that their experiences with bureaucrats are often
unpleasant, unfair and corrupt (D. Narayan, R. Patel, K. Schafft, A.
Rademacher, and S. Koch-Schulte, Voices of the Poor: Can Anyone
Hear Us? Washington D.C.: The World Bank 2000.)
What Rules Matter for Bureaucratic Performance?
There are a number of ways in which bureaucratic incentives and

structures are thought to affect bureaucratic performance. Again
with much of the theoretical support from the classic work of Weber
(Stemming from the original work of Weber, Evans and Evans and
Rauch developed a set of hypotheses that can be found in Evans
1995, op. cit. and Evans and Rauch, 2000, op. cit,).

51
The main argument, articulated most clearly in Evans and Rauch
(1999), is that replacing systems for state officials by a professional
bureaucracy is a necessary (though not sufficient) condition for a
state to be developmental...( Evans and Rauch, 1999, op cit. See
also: Evans and Rauch, 2000, op. cit,) Public servants should act in
the public interest. Weber argued that a key aspect was the
distinction between public moneys and equipment and the private
property of the official... ( Weber, 1947, 'op. cit.) Evidence from the
miracle era in East Asia highlights meritocratic recruitment and
deep bureaucratic traditions as crucial to their development success
(World Bank- 1993, op.cit.). In contrast, it has been a standard
theme in the literature on African states that public officials serve
their own interests rather than that of the public (Hyden 1983,
op.citr, also Richard Joseph, Prebendalism and Democracy in
Nigeria. New York:

52
The need to have objective entry requirements or an independent

body on public service employment is a key concern. Competence,
and thus better performance, is seen as stemming from competition
based on merit rather than personal contacts or illicit payments.
Governments e.g. in Africa, have been accused of being more

preoccupied with securing public employment than promoting the
quality of the civil service. Even in the face of fiscal pressure, public
employment; has-often been maintained and even expanded at
lower skill levels. The World Bank has put it quite starkly: [African]
governments have become employers of last resort and dispensers
of political patronage, offering jobs to family, friends and
supporters.... (World Bank. The State in a Changing World, World
Development Report 1997. New York: Oxford University Press 1997,
p. 95.)
Paying reasonable wages, should encourage talented people to enter

and remain in the civil service. In East Asia, adequate compensation
of civil servants has been used as one means of attracting and
retaining competent staff. It is not clear, however, how far better-
pay makes a difference when it comes to better performance and
less corruption. For instance, most studies conclude that there is no
positive link between higher salaries and lower levels of corruption.
Another important issue in the bureaucratic arena is the extent to

which officials follow rules. Clear rules relating to how decisions are
made and how civil servants conduct themselves are important for
performance. Although the existence of clear rules is often related to
how the public views the bureaucracy, it is also linked to how
efficient it is. Clear decision-making rules are typically seen as
enhancing efficiency. The-risk of misuse of public office and poor
decisions is seen as higher, the less clear rules are (Robert Klitgaard,

53
Controlling Corruption. Berkeley and Los Angeles: University of

California Press 1988.).
Rules are also important for holding officials accountable. Rules

internal to the bureaucracy may not be enforced unless there are
control mechanisms and watchdog organizations. Audits,
ombudsman institutions, anti-corruption commissions, public
censure or courts are mechanisms that have been used to hold civil
servants accountable.
Policy issues in society are typically complex and multi-dimensional

requiring the insights of civil servants with professional and
specialized competence. Structuring the policy formulation and
implementation process such that government operations can
benefit from the advice of professionals is seen to be an important
issue, affecting bureaucratic performance. The extent to which
authority is given to specialized agencies to formulate policy
indicates a strong role for bureaucrats. The existence of deep layers
of political appointments in bureaucracy would indicate a lesser role.
The finding that the depth of political appointments was low in East
Asia has been cited as one important reason for that region’s
economic success.
Accommodated with bureaucratic decision-making, bureaucracies

need autonomy fromboth politicians and the public. It cannot
afford, to be responsive-to-every demand placed upon it. A degree of
autonomy, therefore, seems to be helpful when it comes to
formulatingand, implementing development strategies. On the
other hand, links to certain groups in society are common and
sometimes institutionalized, as, for example in Japan and Korea (On
a Weberianness scale, such as the one produced by Rauch and Evans,
these two countries would not score high on the autonomy measure,

54
but they do have other qualities that place them high on such a
scale. Comparing 35 countries largely from Asia and Latin America,
they concluded that Weberian characteristics of the 'bureaucracy are
positively correlatedwith economic growth. They also found that
the bureaucracies of Asia are more in an additional twenty countries
in Africa and compared with the original data set from Rauch and
Evans study. The original results were confirmed:-better
bureaucratic performance is' associated with-greater power, and
autonomy of agencies to formulate policies- : good career
opportunities in the public sector and good pay of public servants.
Countries with a merit-based bureaucracy perform better, have

lower corruption and higher efficiency in their service delivery, and
provide a better framework for the private sector.
A final issue for discussion here concerns, public access to the

bureaucracy. While autonomy may be important for its functions, it
must be tempered by some degree of accessibility. Without the
latter, the legitimacy of the rules guiding this arena may be in
question. This is particularly the case since some groups in society
are more powerful than others.
The framework for implementing' policy is very important. Day-to-

day management of government operations affects the impression
citizens have not only of individual departments but often the regime
as a whole. In other words, how policy-implementation is structured
constitutes an important aspect of governance. There is clearly much
discontent about the bureaucracy in many countries. There are
plenty of references in the commentaries that nepotism and
various forms ’of corruption continue to affect the civil services
in many countries.
The most significant determinants of bureaucratic performance: (1)

55
Influence, (2) Meritocracy, (3) Accountability, (4) Transparency, and

(5) Access should always be given prominence.
AUTHORITARIANISM
The Broad features/characteristics of authoritarianism in (lie Post-

Colonial African State).
Professor Issa G Shivji outlined the characteristics of authoritarianism

with respect to the post-independence African State, (State and
Constitution: A new Democratic perspective in An African debate on
Democracy – Issa G Shivji, (1991), pp. 29-31). First he tackled the
mechanics of the state, then he addressed the feature of an
authoritarian legal order; His observations (below) reflect the reality
on the ground.
What underlies authoritarianism? He asked;
1. It has been widely observed that the state in Africa is not only
dominant but also prevalent over society. The notion is
different from one of an interventionist state. The latter
assumes a separation between the state civil societies which
may not be fully applicable to Africa.
2. The authoritarian state assumes not only the usual regulatory

functions but also plays a central role in installing, buttressing
and reproducing “civil relations (economic) in society through
state coercion. The overt use of state coercion without
structural and ideological mediations is a differentia of an
authoritarian state. Repression and arbitrary use of state power
is the political manifestation of this phenomenon.

56
Processes of political legitimization through political, and

particularly legal ideology are almost absent or so weak as to
be insignificant. (To use Gramscian term) the state rules, by
coercion rather than consensus. The "organizing principal" of
the organs of the state inter se is one of concentration, rather
than separation, of power whereas, separation of power both
legitimates the exercise of power by ruling class as well as
providing organic unity to the state as such, concentration of
power in the authoritarian state fragment the state structurally
and the ruling class politically- Therefore power struggle
between and among various factions of the ruling class takes
the form of military coups, conspiracies and intrigues. It also
means as has been observed so often, power is concentrated in
the executive/military branch of the state while the legislative
and the judiciary are marginalized politically and have little
ideological prestige or hegemony. Concentration of power in
the executive/military branch often takes the form of
personalized rule whether by an autocratic leader (Kamuzu
Banda) or a charismatic one. (Julius Nyerere).
Okoth-Ogendo graphically describes this as the imperial

presidency.
3. Autonomous organizations of the people - whether civil or

political-are ruthlessly suppressed or coercively co-opted. This
further delays the process of the political constitution of civil
society.
4. Ideologically, the dominant ideology of the ruling class and the

state is what has been called developmentalism. It centers on
the terrain of economics where both law and polities are
superseded. There is thus effective depoliticisation of a large

57
section of the population.
5. There is close identity between state and class power under an

authoritarian state.
(f) The Broad features/characteristics of an Authoritarian Legal

order in a postcolonial African State.
Parallel to and reflecting the authoritarian state, is the authoritarian

legal order. Some of the essential features of such a system may be
summarized as follows;
1. Structurally, the organs of resolution of disputes tend to be a

part of or heavily influenced/controlled, by the executive
organs of the-state. Thus, although impartial adjudication
processes may be paid lip service, in practice such impartiality
is either absent or not decisive in crucial cases probably the
most important indicium of the tendency for lack of impartiality
is the lack of openness which traditionally accompanies
processes of adjudication in developed bourgeois formations.
Broadly speaking, processes of adjudication are overshadowed
by administrative decisions, a command by someone in a
position of power (president) for example. That is decision
making rather than judicial resolution of disputes. To
paraphrase the timeworn adage, even if justice is occasionally
done, it is rarely seen to be done.
2. Much of the law on the statute book is of the enabling kind i.e.
empowering in very wide and unrestrictive terms, the executive
organs of the state to effect a wide variety of "functions" i.e.
exercise arbitrary/discretionary power. In one form or another,
these 'functions' relate either to the governance of the
58
population or their daily civil/economic lives in contrast to

being simply welfare or administrative provisions. Directly
therefore, such legislation impinges on the ‘rights’ of citizens.
Where the element of legislation, is not of an enabling kind
conferring power, it is likely to bestow privileges on specified
sections of the population or even individuals (ad hominem
laws). In short, laws are characterized by
exceptionalism/particularism as opposed to universalism. Using
broadly flohfaldianJural postulates, it may be said that whereas
the developed bourgeois legal system is characterized by the
'right /duty pair of correlatives, the authoritarian system is-
marked by ‘privilege/no-right" or "power/liability'. The
executive organs of the state are usually the beneficiaries of
privilege, power and immunity while the mass of the civil
population suffers from no right or liability and disability .
3. The central conception of the bourgeois legal system,

‘right/’equality; is either absent or weakly developed in the
authoritarian system. The idea or conceptions of ‘right
/equality’ revolve inextricably around the notions of contract,
which is the epitome of bourgeois private; law reflecting the
dominance of the market and commodity exchange in the
economy, contract, notwithstanding the use of the term
conceptually and’ the practice plays a minor, role in the
dominated formations particularly in regulating relations with
major producers of the surplus-workers and peasants.
4. The most important, single, indicium of the authoritarian legal

system and law is ‘the' 'pervasive and arbitrary use of state
coercion without ideological mediation force is apparent on the
surface of law. Use of the state force is not confined to the
political role 'In establishing, reinforcing and reproducing
59
civil/economic relations. Criminalisation of ordinary economic

acts, and behavior is pervasive. Resort to criminal penalty and
liability characterizes all significant legislation that relates to
the relations between capital and labour.

60
THEORIES OF DEVELOPMENT
1. Definitions / concepts of Development
Economic Development in the Third World)
Rist Gilbert in The History of Development;-from western origins

to Global Faith(1997) P9-10, states that for a definition to be
operational- that is, for it to allow us to identify an object without
the possibility of error - it must first of all eliminate all
“preconceptions’ 'the fallacious ideas that dominate -the mind of the
layman and then base its self upon certain “external characteristics'
common to all phenomena within the group in question. Talk of
'realizing people's potential' or 'expanding the range of individual-
choice does not help us to reach a proper definition of development
- for it refers to individual (context-bound) experience 'that can
never be apprehended by means of "external characteristics.
The principal defect of most pseudo-definition of' development is

that they are based upon the way in which one person (or set of
persons) picture the ideal conditions of social existence.
The definitions;
The declaration on the Right to Development (Resolution 41/128 of

the General" Assembly of the United Nations, 4 th December, 1986)
gave a consensual (from consent) usage of the term "development’
in these terms; 'the right to development is an inalienable human
right by virtue of which every human person and all peoples are
entitled to participate in, contribute to enjoy economic, social,
cultural and political, development, in which all human rights and
fundamental freedom can be fully realized
The report of the South Commission, produced under the

chairmanship of the former Tanzanian President Julius Nyerere, was

61
supposed to sum up the aspirations and policies of “developing

countries. It defined development as process which enables human
beings to realize their potential, build self- confidence, and lead lives
of dignity and fulfillment. It is a process which frees people from the
fear of economic or social oppression. Through development,
political independence acquires its true significance. And it is a
process of growth, a movement essentially springing from within
the Society that is developing" (the challenge to the South. The
report of the south Commission, Oxford; 1990, p. 10.).
The Human Development Report of L991, publish ed by the

United Nations Development Program, stated; 'the basic
objective of human development is to enlarge range of people's
choice ... to make development more democratic and
participatory. These choices should include access to income
and employment opportunities, education and health, and a
clean and safe physical environment. ‘Each individual should
also have the opportunity to participate fully in community
decision and to-enjoy human, economic and political freedoms.'
(UNDP, Human Development Report, 1991, Oxford, p. 1).
Rist Gilbert writes that, 'we might comment at length on these

definitions and demonstrate their various presuppositions;
social evolutionism' (catching up with the industrialized
countries)’ individualism (developing the personality of human
beings) economism (achieving growth and access to greater
income),-we might also show how the definitions themselves
are either normative (what should happen) or instrumental
(what is the purpose), and register the abundant use of
interisifiers (e.g. ‘more democratic and more participatory’)
which actually point to things presently ‘lacking* or deficient
The most important question, however, is whether these really
62
are definitions.
Like a map; it provides enough detail for us to recognize the

geographic area, but does not pretend to describe all the life
unfolding there) p. 12.
It is necessary to identify sociologically, by reference to practices that

anyone may observe, what allows us to say that certain countries are
‘developed’, while others, are ‘developing’. The point is not to
contras two different sets of countries by showing that one has-
more of this (school, roads, currency reserves, average calorie
consumption, cars, democracy or telephones) but less of that
(illiteracy, cultural traditions, children per family, ‘absolute poor’,
time, skilled labour, etc.), while the other set has the reverse (such a
way of defining- “development’ is quite widespread. It enables the
dominant group itself to define the characteristics of ‘development’
and then to identify a series of “lacks” that are supposed to be filled
within an evolutionary perspective, in reality, the so- called
‘underdeveloped’ countries are those which have more or less
directly undergone Western domination
“Development" does not concern only the countries of the ’south',

nor only operations conducted under the auspices of ‘development
cooperation’. It is a global, historically distinctive phenomenon,
whose functioning first needs to be explained before it can be
detected as either present or absent.
It is enough to say that in the end 'development' boils down to social

change, for social, change has been a constant, feature of life in
every society-since the dawn of humanity. What has to be shown is
the characteristic of ‘developmental’ change which distinguishes
modem societies from those which have gone before.

63
The starting point, Rist, writes, is the following definition;

‘Development’, consists of,* practices , sometimes appearing to
conflict with one another, which require - for the reproduction of
society - the general transformation and destruction of the natural
environment and of social relations. Its aim is to increase the
production of commodities (goods and services) geared, by way of
exchange, to effective demand ‘qualitative’ (To explain each element
above in details).
The 'practices' (above) in question (economic, social, political and

cultural) correspond to the "external characteristics" that Durkheim
invoked to exclude from a definition any normative aspect stressing
what is hoped as against what actually occurs. The facts, then, should
not be ' considered on the basis of one or another currently available
theory of 'development/ for we know that what is envisaged in
practice, and that similar practices can lay claim to opposing
theories. This is why, as we have already noted, these practices are
innumerable and appear at first sight to contradict one another. At
the level of economics, for instance, some practices are geared to
profit (direct investment, technology 'transfers', trade, e.t.c.), while
others involve a degree of generosity (loans on favorable terms, all
kinds of NGO assistance, etc.); some foster international trade (raw
materials exports, cash crops, industrial relocation, etc.); while
others' hold it back (import restrictions as part of a restructuring
drive, import substitution, customs duties, etc. some aim to enhance
the role of the state (creation of nationalized corporations,-
subsidization of basic commodities, etc.), others to limit it
(deregulation, privatization, etc) some have the effect of increasing
external debt (new loans or rescheduling of old ones while ‘others
seek to reduce it (cancellation, agreements playing the environment
off against external financing).

64
What Is Development?
Every nation that strives after development is synonymous with

rapid economic growth, it is not the only essential element. This is
because development is not purely an economic phenomenon.
Ultimately, it must encompass more than the material and financial
side of people's lives. But before analyzing the concept of
development, perhaps it is worthy examining it against the backdrop
of underdevelopment. Underdevelopment is viewed in terms of
international and domestic power relationships, institutional and
structural economic rigidities, and the resulting proliferation' of dual
economies and dual societies (such as a few. rich people or nations
co-existing with many poor people and or nations) within the state
("state" here, used in the ordinary sense of a ‘geopolity’).
This guarantees the dependency syndrome. Dependency theories

tend to emphasize external and internal institutional constraints on
economic development such as gross inequalities in-land ownership,
highly unequal and imbalanced international trade relationships and
the control of the most important domestic and international
economic levers by small group of wealthy local and global power
elites. Under development in a sense of personnel and societal
impotence in the face of disease and death, of confusion and
ignorance as one gropes to understand change, of servility towards
men whose decisions govern the course of events, of hopelessness
before hunger and natural catastrophe. The condition of
underdevelopment is thus a consciously experienced state of
deprivation rendered especially intolerable as more and more people
acquire information about the development of other societies and
realize that technical and institutional means for abolishing poverty,
misery and disease do indeed exist. Development must therefore be
conceived of as a continuous multidimensional process involving
65
changes in structures, attitudes and institutions as well as the

acceleration of economic growth the reduction of inequality and
eradication of absolutely poverty. In essence development must
represent the entire gamut of changes by which an entire social
system tuned to the diverse basic needs and desire of
individual’s .and social. Groups with that, system, moves away from
a condition of life widely perceived as unsatisfactory, and towards a
situation of or condition of life regarded as materially and spiritually
better.
Development can therefore be concluded to be both a physical

reality and a state of mind in which society has through some
combination of social, economic and institutional processes, secured
the means of obtaining a better life. Development in all societies
must have at least three main objectives;
- To increase availability and widen the distribution of basic life

sustaining goods, such as food, shelter, health and protection
to all members of society;
- Secondly, to raise the levels of living including, in addition to

higher incomes, in provision of more jobs, better education,
and more attention to cultural humanistic values. These all
serve not only to enhance -material well -being but also to
generate greater individual and national self-esteem.
- To expand the range of economic and social choice to

individuals and nations by free them from servitude and
dependence; not only in relation to other people and
nation states but also to the force of ignorance and
human misery;
Development as an ideological slogan

66
(Ideology in Development)
The state, that is, the African post - colonial state of the petty
bourgeoisie, and the state in industrial heartlands of the West,
as well as the multilateral, financial institutions (IMF & World
Bank) arid others have quite often turned .'Development' into
an ideological slogan to-keep to affected people just hoping for
the better conditions of life, which have, for the most part
remained elusive. Through the media banners etc. empty
promises of development through all out strategies have
always been made.
Rist. Gilbert in The History of Development begins his book

with a paragraph that touches c the ideological perspectives of
development (P.1):
“The strength of "development" discourse comes of its power to

seduce, ill every sense of the term: to charm, to please, to fascinate,
to set dreaming, but- also- to abuse, to turn away from the truth, to
deceive. How could one possibly resist the' idea that there is a way
of eliminating the poverty by which one is so troubled?’ How dare
one think, at the same time, that the' cure might worsen the ill
which one wishes to combat?”
2. Definitions/Theories of under development/Concepts of

Underdevelopment
Kaberuka, Will; the political 'Economy of Uganda 1890^1979-Acase

Study of Colonialism and Underdevelopment, 1990 - p.25. .
He defines "underdevelopment" as a situation in which the

majority of a given-population live in' dire poverty and hence
enjoy a low standard of. Living ;( low levels of education
health, And nutrition); they have a low productivity per person,
67
and there is- a high: degree ofnon participation in the

generation of the country's economic surplus so that economic,
growth benefits a small proportion of the population, which
leads to a high income inequality- between the haves and have
nets, in addition to those internal factors, the national
economy is-dependant for its operation on externally
determined factors; internal! Consumption needs are met
mainly by imported consumer goods while internal, production
depends on externally' supplied capital, technology, and know-
how. This dependence puts a large part of the national
economic base' outside the state influence, and in most cases
financial and material resources out of the economy, making it
difficult for independent development to 'take place.

68
3. Law In Development
"Law and development "should indeed have been designed as

"Law in Development" (as one; LL.M. Degree course at the
university of Warwick, U.K is designed), although-this would at
the' same time have made the course so onerous and more
detailed. It would then have required us to address the various
theories of law and analyze the place of law in social –
economic change. We nevertheless here look at the general
aspects of Law - not so much its jurisprudential aspects, or the
philosophy sciences of law and make general comments about it in
relation to development.
Law, simply put, is a set of principles and rules that govern the
conduct of affairs in a given community at a given time,
whereby machinery is provided for an aggrieved party to
enforce his rights in case any of these rules or principles is
broken.
Cotterrell' Roger:' The Politics of Jurisprudence - A Critical

Introduction to Legal Philosophy (1989) P.l. Talks of
Jurisprudence, Legal Philosophy and Legal Theory. He writes
that the legal realism can be looked at in ways that go beyond
the immediate experiences and needs of professional practice.
Law is assumed to be socially significant, although the nature
of this significance, and what kinds of study are appropriate to
reveal it, are always controversial matters. Law has long been
thought- worth studying for its intrinsic philosophical or social ;
interest or importance, which relates to but extends beyond its
immediate-instrumental value or professional relevance. In this
sense, law is “a great anthropological document”.
The term most often used to refer to the whole range of actual
69
and possible inquiries concerned, in one way or another, with

the broader significance of law, is jurisprudence (which you will
study as a subject in the years ahead). It includes work grounds
in the diverse perspectives of the various social and human-
sciences and of many kinds of philosophy (lay and
professional), as well as other intellectual declines.
[Jurisprudence is, therefore, probably best defined negatively
as encompassing all kinds of generals’ intellectual inquiries
about law which are not confined solely to doctrinal, serious
explanation after deep, study, especially of a Bible exegesis.
The qualification "general" is important. If jurisprudence is
unified at all, it is by a concern with; theoretical- generation; in
contrast to the emphasis on the particular and the immediate
which characterizes most 1 professional legal practice],
Insofar as philosophy is concerned with examining, the concept

apparatuses by which the experience is interpreted, legal
philosophy's major focus is on clarifying. Or analyzing the ideas
of structures of reasoning implicated in, presupposed by or
developed through legal doctrine, or which constitute the
environment of thought and relief in terms, of which legal
processes are justified and explained. It is not concerned with
empirical inquiries about laws social effects and about legal
behavior such as are pursued in sociological studies of law.
Legal philosophical 1 inquiry cannot be clearly demarcated from
the kind of conceptual inquiries with which sociological studies
of law is concerned. The difference is perhaps primarily one of
emphasis. In legal philosophy generally, conceptual
clarification tends to be treated as much more important than-
and sometimes independent of - systematic empirical analysis
of legal institutions (by legal institutions here, is meant

70
patterns of official of actions and expectations of action

organized around the creation, application and enforcement of
legal precepts or the maintenance of a legal order) in their
historical context and social environment.
When we talk of law and development, or Law or the

instrumentality of law render it in effectual in
fostering/engendering the progressive growth/development of
the sectors in the socio economy for whose establishment and
regulation such law might have been designed. It is
undoubtable that the various branches of law have a crucial
bearing on social, economic, and political processes/functions,
as well as the changing of all these. When law is promulgated
for purely ideological purposes (social engineering) and is from
the outset not meant to be realized; when it emerges from the
start with inadequacies, contradictory provisions, or is
defective; or when it is ripe for repealing to suit changing
social-economic and political structures andprocesses and no
repeals or amendments are done, there may result unguided
and unregulated social, economic and political functions, and
thus social-economic advancement or development, as it were,
become elusive.
Again here, the state or the political power structures and

processes, take center-stage in the founding and enforcing
Law-thus, Law is a fundamental tool which the state must use
to regulate matters of both a public and private nature.
Weakness in the state or limitations on it adversely affects the
legal institutions and the development processes, (you
remember) we said before that the state, considered 'a welfare
maximizes assumes the role of major player in social dynamics,
and is the overarching source of legal, political and economic
71
resources and policymaking. Law, or the legal institutions and

processes are a major correlate of the political power structure
and processes (the nature of the state, its mechanics or
functions).
As Cotterrell, page I 13 says, the state is an entity standing

above law and creating Law, The state is merely the legal order
itself viewed from a certain stand point State functions, offices
and jurisdictions are all defined by legal norms insofar as
legitimate authority attaches to them. They have no identity
apart from the content of the legal norms defining them. Law,
the 'machine', does not run by itself. Law is an expression of
political power, and is related to the political. For our limited
purpose here, we can take politics to refer to the struggle to
acquire and make use of power, especially through established
institutions and formal processes, and without resort widely
visible and extensively organized politics naturally centers on
what is thought of as "government" and the state. Law is
clearly related to the political.
But what is the relationship? How far can legal reasoning and
judicial decision be seen as different and distinct from policy
argument and political decisions? Are legal institutions to be
thought of as special or specialized, as regards their functions,
forms, character or controlling values, in comparison with
government, administration and the varied activities of the
state? These issues are important, as their addressing helps to
define Law's place in society and the degree of autonomy,
which Law can be considered to have in relation to other
aspects of society or political life.
As Kristin Mann and Richard Roberts (Law in colonial Africa,

72
1991) have maintained, Law is about power to command and to

shape social relations and social action, but it is equally about
challenges to authority. Law is a dynamic historical formation
which at once shapes and is shaped by economic, political and
social processes. Law is a derivative tool that features not as an
impartial arbiter guided by fixed rules and procedures, but as a
resource that is used in struggles over property, labour, power,
and authority.
The state, law and ideology (according to the Marxist-Leninist

theory-dialectical materialism) are interactive members of the
superstructure whose major influential factors are the
economic structures and relations. A given state under given
circumstances, can adopt policies, law. And? ideologies' and
pursue these in such a way that the economic structures and
relations, which primarily influence the state, are in turn
impacted upon by state action through policies, Laws and
ideology. (An invention that returns to "plague" the inventor).
There are inhibitions on the state that prevent it from turning
the choices of policy, law and ideology, and pursuing these in
such a way that the much desired development in the social-
economy can be achieved.
The fundamental questions for the Law and Development

scholar are; what are these prohibitive factors that (a)
undermine the state’s ability to organize, make the proper
choice of policy, .law and ideology as would lead to social-
economic transformation, or development, as it were? (b) How
do the prohibitive factors interplay? (c) Can law take an
independent course to help guide and regulate social economic
processes without decisive intervention of the state (political
power structure and processes)?
73
Focusing on Law and development, as such, law cannot be

looked at singly as the cause of causes; we have noted that Law
is a derivative tool; being derivative, Law's inadequacies and
defects are derived too. They are th e phenomena or institutions
from which Law derives, that are primarily responsible for the
derailed course of development or underdevelopment, as such.
Secondly, being a resource that is used in struggles over
property, labour, power and authority, Law is perforce a class
institution in class society to fortify, guard and foster class
interests. It is (Law) ordinarily/ majorly taken advantage of by
the social groups wielding state power and their cronies as well
as the propertied. In summary Law is often times diverted away
from a positive social role of transformation and welfare to
that of struggles over property, labour, power and authority.

74
LAW IN DEVELOPMENT
The bourgeoisie devised law as a necessary means for the

preservation of their property relations (see “The development
of legal philosophy” by Paschal Mihyo, 1977)
Friedman in his book “legal theory” states that the history of

legal positivism is the history of the emergence, consolidation
and crisis of the bourgeois state - it’s the reflection of the
development of bourgeois economic relations and the
bourgeois state. Constitutionalism, we see began with the right
of workers, slaves and stake. In his book, “The social
contract,”Rousseau asserted that slavery was unnatural
phenomenon -- his major premise was that sovereignty is
derived away from people’s will - a will which is simply a
collective being, cannot be represented by anyone but itself -
power may be delegated but the will can’t be -- this leads to
the current constitutional provisions of freedom from slavery
(see Art. 22 of Constitution of Republic of Uganda).
Look at the voting power, or properly called, the right to vote.

It finds its roots in the old systems of governance - Kingdoms
planning this time, the voting system was very unsuitable to
human kind. There would be a-few representatives by the will
of people, and even these few would take a long time to have
them replaced hence breeding corruption, bad rule, archaic
laws etc.
Bentham wrote in his book “The theory of legislation.”After his

book he died in 1832. .A reform Act was enacted which
increased the number of voters from 430,000/= to 650,000/=.
In 1867, another Act was passed called the Representation of
People’s Act which extended the voting power of the working
75
class and gave qualification for candidacy to the bourgeois on

the basis of property. This through common law has led to
improved representation and voting in Africa and East Africa at
large. In Uganda for instance class - struggles have led to
women emancipation, involving a representation seat in
parliament as member and representative. The same applies to
the Needy people to wit disabled, workers, soldiers all these
are now represented in parliament in Uganda
LAW DEVELOPMENT IN UGANDA
GENTILE SOCIETY
This society was organized on the basis of clans and produced

on a collective basis. This was in response to the fact that they
had limited skills and instruments of productions sq. they had
to work together to sustain themselves. They lived in a natural
economy, not ^ market economy. The catchword here was
development-, First there was the storage period, discovering
of (ire and then iron smelting and in all these stages,
productivity of labour, trade, all developed. Due to this,
political organizations also become collectivist.
In these societies, taboos governed as a means of social

regulation. They were cohesive and conflict was minimal.
SLAVE SOCIETY
These were differentiated in classes and were organized in

states. When people became able in surplus, it became
possible to sustain a class of persons who were not producing
anything. The emergency of philosophers who believed in

76
thinking as primary and labour as secondary under slavery

leading to creation of classes. Because they were the minority,
the property owners could not protect themselves later on
their interests, hence the best way was through the state as an
instalment of coercion:
FEUDAL SOCIETIES & MERCHANTALISM
Societies in Uganda started trading by way of Barter and later

developed into mercantile traders. They started to trade with
whites, in exchange for land, coffee etc. Therefore during this
time we see hut tax, gun tax etc. introduced hence the
beginning of the Tax law among others, in Uganda. Serfs and
peasants engaged in cottage industries, which would
encourage the emergence of land law, mercantile law (contract
and labour law). These were to regulate the nature and
conduct of business between and amongst societies.
Emergence of the legal system is also seen in the constitutional
development through the orders in council. These were to
regulate the tendencies, policies and governance of societies.
Such laws like sale/purchase of land, regulations were enacted.
The evujjo and Busuulu laws were developed in the central
region of Buganda, which would later spread to the rest of
Uganda.
THE DEVELOPMENT OF LAW VIS- A-VIS DEVELOPMENT
Therefore this topic law in development looks at the dynamics

of why, how and when laws are made enacted, repeated,
amended, reformed, modified, looking at the nature of a
country’s development in all sectors of life. It’s contended that
without physical / structural, economic, social, political,
constitutional and cultural changes in society, there can never
77
be development in the area of law simply because the law

protects, regulates and governs the above mentioned
institutions. By changes we mean new developments, repeals
to existing ones, amendments. We shall produce in our
discussion by looking at various laws, enactments, which have
been occurring as a result of development.
PHYSICAL DEVELOPMENT/ STRUCTURAL DEVELOPMENT
Development here we mean the sprouting/buildings,

constructed ventures like road networks, bridges etc. in all
these, there are several laws that come in to regulate and
protect different interests. Statutes like the Town and Country
Planning Act Cap. 246, (now repeated) lawsof Uganda have
been enacted to regulate the planning in various parts of the
country.
Workers’ Compensation Act Cap. 225 was setup to render

protection and provide a remedy in case of an injured worker
due to physical activity that can as a result of the rampant
developments of structures, take the example of Bwebajja
Hotel which was being constructed scheduled to host CTIOGM,
several people were buried in the collapsed structure. Hence
such laws would come in to remedy the situation.
POLIT1CAL DEVELOPMENT:
The most common example of both law developments,

amendments and repeals are embedded in the Land Act Cap.
227. When the N.R.M party took over power in 1986,women
were a marginalized group, therefore gender sensitive
provisions were enacted lo provide for protection of women.
An owner has no right to sale, mortgage, pledge family

78
property, notwithstanding Art. 26 of the constitution and other

sections of the Registration of Titles Act Cap. 230 which
recognize an owner with inalienable rights to sale their
property.
As we saw more developments in the area of politics,

government wants to cling to power and usually the law is used
to enhance political ambitions since the parliament makes
laws, it’s usually constituted by the ailing governments and
therefore making it easy to achieve its (Ruling government)
goals. An example is in Uganda where the ailing party, the NRM
with its leader Yoweri K. Museveni moved to have the Article
105, on term limits amended, whether to accommodate the
needs of the time, to wit, “no one had the right vision for
Uganda" hence Mr. Museveni had to stay, or developments in
politics warranted the amendment to such a law, that’s a view
which may fail either side. (See the New Vision, April 21, 2008
ay page 18, a column titled “was Berlusconielection a wise
country’s choice?”…... That much of the legislature effort
during hisprevious two terms as prime Minister was devoted to
writing the laws to help Berlusconi escape conviction. Changing
the statute of limitations, for example so that the charges
against him suddenly expired)
SOCIAL DEVELOPMENT
Social development is a wide area and entails among others,

educational and religious developments among other things.
We have seen schools, Universities (both private and Public)
sprouting out. The advantage here is the competition, which
has bred both positive and negative results, that is, the quality
of education is high, but the level of cheating is high too,

79
respectively.
Therefore the government usually comes in to regulate the

activities and transactions of such institution not to defraud
and cheat people. Hence such statutes like the Education Act
Cap. 127, the Management Training and Advisory Centre Act
Cap. 134. Come in handy. Equally to note is the area of
charitable organization these have grown in numbers majorly
for differing reasons, among others, to assist the needy groups,
to make money, carry out vices, etc. Hence the hitherto
regulatory body, the NGO Board with its Act, the Non-
Governmental Organizations Registration Act Cap. 113, were
established and enacted respectively.
However, it was later found out last year that they (NGOs)
were abused and some reforms in form of amendments were
advised. This was because of the level of involvement of NGOs
in Terrorist and other bad activities. The new requirements in
the Non-Governmental Organizations (Amendment) Act, 2006
include getting a certificate/ letter of good conduct from the
area R.D.C (Resident District Commissioner)
A new law is in the offing to regulate the works and activities

of “Born Again” Churches in Uganda. This is a new area, which
is seemingly more of money making than God oriented.
Sometimes it’s resulted into massive deaths like the Kanungu
inferno in western Uganda where a one, Kibwetere and others,
still at large led over 1000 people to ban themselves to death
with a decay that they were meeting the Lord/God.
CULTURAL DEVELOPMENT/ CONSTITUTIONAL DEVELOPMENT
Back into time, cultures were very fundamental, albeit archaic

80
and discriminative. With the advent of the Constitution, certain

cultures have been rendered outdated, hence development in
several areas has rendered some of them either dangerous or
discriminative, for example, culture had it that if a witch was
caught or a person suspected and proved a witch, they would
be banished from the land. A law was made, during the 1960’s
i.e. The Witchcraft Act Cap. 124.
However, recently, in A.G. -V- SalvatoriAbuki Constitutional

Appeal No: I of 199S, where the Supreme Court by confirming
the Court of Appeal decision stated that the convictions of
banishments from their Lands under S.3 (3) and 5(1) of Witch
Craft Act by the Magistrates Court was inconsistent with the
Articles 21(1) and (2) 24, 26, 273(1) etc., of the constitution
and therefore was null and void.
Therefore, development does not warrant such unnatural

cultures. Under Art. 273 (1), of the Constitution of the Republic
of Uganda, it’s provided that, “existing law after the coming into
force of the Constitution, shall not be affected by the coining into
force of the constitution, but the existing law shall be construed
with such Modifications, adaptations, qualifications and exceptions
as may be necessary to bring fat into conformity with the
constitution”
Such laws have suffered modifications due to development in

constitutionalism, and cultural changes include, the Divorce Act,
Cap 249whose section 4 which requires males to prove adultery
only in a petition for divorce whereas females prove; adultery
and any other of cruelty or desertion for 2years, was a subject
of a Constitutional Petition in Uganda Association of Women
Lawyers and 5 others V A.G. Constitutional Petition No. 2 of 2003

81
Here, the (institutional Court stated that S.4 of the Divorce Act
Cap. 249 was inconsistent and contrary to Articles 21, 33 etc. of
the constitution and therefore was null and void and could not
even be saved by Art. 273(1) of the (institution.
Consequently, constitutional development has led to

challenges, regularization of governments, stay on power
basing on the law etc.
In 2001 and 2006, when Dr. Besigye lost in the Presidential

elections, unlike his opponent Mr. Museveni who lost in 19S0
and went to the bush, starting up a rebellion against the then
government which claimed thousands, Dr. Besigye was
constitutional and went to Court, <3Ubeit loosing on the two
occasions. This however goes a long way in punctuating
Uganda’s current trend in constitutional development.
Needless to say and painful to mention is the, amendments,

reforms, modifications that can be made on several laws
depending on the development trends. We shall as students of
law and Development find out that most of the above is carried
out in political and economic developments which usually are
not important to the masses but to a small class, particularly
the ailing class. This is usually for protection of the ruling
class’s interests. (Discuss justification to amendment of Art.
105 in the Uganda’s Constitution). Whose main insertion
initially was because of Uganda’s conquered history dominated
by coups predominantly as a result of greed for power on the
one hand and or clinging onto power for long on the other
hand.

82
GLOBALIZATION
BACKGROUND

83
In the globalization world, the political and economic relations are

highly exploitative and oppressive to the 3 rd world. The part of the
world, that part of which is being oppressed has been turned into a
periphery 3rd world, it’s called so because of its inferior, economic
and political picture and status of the world system, it has been
brought about on a content of inferior, economic and political
status of the world system it has been brought about as a result of
long periods of an efficient and effective mechanism of
underdevelopment! Today, The north has realized that arms
(ammunition trade is the most beneficial, so have gone ahead to
support wars in the south, no wonder wars never end in the south).
The World System
The underdevelopment process has created a three-tier world

system and its this world system where the Multi-National
Corporations (MNCs) carry out their drama and the present world
system is part and parcel of the man’s process of development from
Gardens of Eden theory to the highly complex system. The three -
tier world system reflects a globe where parts of it are developed
while others are underdeveloped. As a matter of fact, some
periphery part of the globe still exhibits trails of early man e.g.
pigmies in Congo, South America, Andas etc., however the world
has advanced.
Western System of Independence .
This world encompasses the developed economies of the! World,

which includes the metropole of the world, USA, most countries of
Western Europe and Japan. These countries' development process
has allowed them attain highly organized capitalist social
organization. They have created a highly developed, organized and
immense network of both economic and political interaction.
84
They are the ones at the helm of the current capitalist domination.
They dominate international economic activities through
multinational oligopolies, which control the institutions like World
Bank and IMF (International Monitory Fund). They own and control
state of the art technology, have developed highly sophisticated
military hardware that has allowed them to politically dominate the
world power i.e. a world power is a country that has the military
capacity to force other countries to do what it wants them to do.
All these countries have agreed to a common approach to tie world

economy and
political appointment. They control the world through the
Brettonwood system of
the World Bank and IMF (international Monitory Fund) through
organization like
GATT and today WTO. They rule the world through the group of
8(G8) and today the Paris Club and MNC's to advance their common
interests in the world. The countries appear to have a cartel of
some sort to control the world through a trade strategy, where they
fail, they use force to ensure and enforce compliance. Their main
problem- is managing their own interdependence and relations-
between themselves.
According to Samir Amin in his book, “Towards the Ego centric

World" these countries appear to have taken their domestic
policies to their interdependence called transnationalisation. In
their quest to dominate the world, they have formed organizations
like the European Union, which uses the IMF and WB. The NAFTA
(North Atlantic Free Trade Area) is also an organization used which
don’t import from Europe. It’s through such organizations that
political and economic powers are collectively exercised. Some East
Asian countries have joined the ranks of those countries e.g.

85
Taiwan, Singapore, Indonesia, Malaysia known with a common

name as Asian Tigers, following the footsteps of capitalism, in Latin
America, there is Argentina and Brazil. Such countries are coming up
because of the technological expertise i.e. their labour is trained to
the level of the American expertise take this examples, in '1971,
Singapore was a village, the leader decided that Singapore had to
develop hence following capitalism.
THE EAST/WEST SYSTEM OF INDEPENDENCE
This covers the recently developed economies of the East, which

have developed along the socialist system of development such as
Russia, many Soviet Republics, China, former Yugoslavia (Serbia and
Montenegro), Vietnam and Libya. These countries took a socialist
ideology and managed to develop their socialist approach to levels
almost similar or even higher to those of the capitalist western
countries. These countries' mode of social, organization was in
complete opposition to capitalism and threatened to capitalism.
For most of their existence they have held the world hostage
for nuclear war threats, have carried the-world through the cold
war, nuclear war threat and the tort (peace negotiations). In the
end, socialism has demonstrated capacity to rapidly transform
backward economies into modern and highly developed in a very
short time. Having realized that socialism can develop countries
quickly, capitalism has not slept and has moved very quickly
especially when through a man called Gorbachev, destroyed the
Union of Soviet Socialist Republic through its own forms. He allowed
the capitalists mode of path as he thought it would develop Russia.
'But it instead destroyed it and today the 1 st world moved swiftly to
adopt Russia in the G.7, hence the G.8 class and these are the donor
countries.

86
Russia’s technology had been admitted as the best and it was Russia
that sent the first man to outer space. But today the American
recognized that even the soviets have better outer space than that
of theirs. Today, technology is imported from Korean technology;
therefore the socialists have integrated with the capitalist world,
however, a few countries have declined e.g. North Korea, Cuba etc.
and China which is producing many goods is seeking to be
integrated in the world market system which is a capitalist in
nature.
The-East-West system countries are not really independent

but are moving close to independence. Vietnam's target to their
development programmes were independent of capitalism,
periphery countries are puttinggoods and labour thatcapitalism
once put on the market. The East-West independence is the verge
of collapsing due to the fact that the socialists have put up similar
goods like those of the capitalists.
The North. South System of Development
It’s a direct result of the disruption, fragmentation and destruction

of development processes of the nations of the system by the
capitalistic countries of the world. According to Samir Amin in his
book. “Delink in the Egocentric World”. This has come a long way
as a result of a long period of dominance, exploitation and
manipulation of the South by the North resulting into
underdevelopment.
To begin with capitalism plundered and plunged South-Eastern

Resources through naked imperialism. The south was covered up by
colonial powers into colonial states for purposes of colonial

87
exploitation, and maximum benefits of "the colonialists - many of

such countries, even with, the demise of colonialism have remained
with the same status quo and it appears to have taken a turn for the
worst. The neo colonial forces of multi-national corporations have
effectively held the 3 rd world into an under developed vice. The
south has come to be known as the 3 rd world characterized by the
following;
 Food scarcity and hunger.
 Deplorable mass poverty.
 Decimating disease.
 Pervasive illiteracy.
 Scientific and technology backwardness amounting to foreign

debt.
 Growing repression and depression manifested in continued

civil strife,
 Lingering colonial mentality, which has culminated

into intellectual interdependence and loss of
sovereignty. The result of this situation is an un
institutionalized historical economic crisis with nothing to
offer but despair. The south suffers from a situation of
structural fajlure beyond remedial application. By the time the
south tried to provide a structura(jiemedy, ail the human and
physical resources of the south had beer^up by the North
leaving the south as a wreck, Africa and Uganda n particular
provide a micro and macro manifestation or equation of this
situation.

88
21 of the 31 least developed countries of the word are in Africa,

Uganda among them, Africa has manifested a 0.4% negative GDP
growth rate between 1960 .-and 1980. Africa has a low per capital
income of US dollars 772, dollars on average but sub-Saharan Africa,
Uganda inclusive goes as law as 1J55 and 115 dollars per annum.
Uganda’s GDP percapita is 354,000/=, which is just about 200
dollars.
This African wreckage suffered a negative growth rate in agriculture

with a percapita food and index of below 100. Food imports take up
19.4% of Africa's export earnings e.g. the income from coffee in
Uganda has declined steadily. In1998, Uganda earned 295,666,000
dollars from the sale of coffee. In 1999, it dropped to 287,958,000
US dollars. In 2000, there was a drastic drop to 125,316,000 US
dollars. In this place called Africa, a manufacture almost plays a nil
role in its economies, African, production is mainly of raw material?
Which it doesn’t consume but consumes manufactured goods of the
north it does not produce. This has resulted into a balance of
payments deficit, which has led Africa into a debt crisis. Africa has
spear headed a large foreign debt of over 240 billion dollars.
According to CorniaHoervin, "Africa's Recovery in the 1990” by the
Saint Martin’s place said Africa’s balance of payments deficit
annually by 1990 was 7.8billion US dollars. According to Burkhosi,
Uganda’s balance of payments deficit in 2000 was;
Imports - dollars 1537m CIF (dollars),
Exports - dollars 402m CIF (dollars),
BOP deficit - 1097m CIF (dollars),
This kind of situation has led to a destruction of the social order

resulting into cultural, economic, political interdependence. This has

89
manifested itself in increased political strength, high poverty levels,

increased crime rate, thuggery, drug abuse, increased prostitution,
food scarcity, child labour and ethnic animosity gearing up into civil
war. In all these, the benevolent hand of capitalism has funded
these wars, as arms trade is the most beneficial form of trade to the
North.
Multinational companies have developed technologies that have,

shrunk the world in both time and space. Technology has been
manipulated to increasingly controlthe South’s financial, human and
physical recourses plus the political forces. Thesouth appears
helpless to this wall accelerated manipulation. Even the hope
fordevelopment as the latest theoretical development models has
come to pass but this has even become, worse.
The New World Order
According to Glenn Campbell, the new world order is an alleged

conspiracy of world governments to control the citizens by devious
means. This conspiracy is vague that it is not easily understood but
its ever changing and always connected in some way so as to
control the world. This conspiracy may be synonymous to one world
government or council on foreign relations. It’s a world where USA
rules by will, might and the world trade organization controls the
market of-all tradable commodities and labour. It’s a one
government and one unit monetary system under permanent non-
elected capitalist oligarchies.
These oligarchies would select from their members, who are to rule
for example, The Bush family etc. and in this one world entity
population would be limited on the number of children per family
by use of disease e.g. HIV, wars famine to decimate the population
that they don't want and no middle class i.e. the working class but
90
only rulers and servants. All laws will be uniform under a legal
system of the world courts practicing the same unified code of laws
backed up by one world police force and one world unified police
force. In all former countries and no national boundaries thus the
world be one. The system would be on a basis of a welfarestate. The
obedient and sub servient on the one world government will be
rewarded with the means to live and those who are rebellious will
be starved to death see The confessions of an Economic Hitman, by
John Perkins: The Shocking inside story of how America really took
over the world, Eburry press, 2006; false and exaggerated
economic projections are given in order to justify why poor
countries should be lent huge credit loans, which in turn are used to
award big jobs to companies from donor countries and
consequently enslavesthe borrowing countries and their people, to
the lender countries.
See Chinese Government Resolution, May 2008 through its China’s

Development Bank to send 30 Billion Dollars to the East African
Development Bank to lend to East African business projects with a
Chinese element as a China Development Bank to lend to condition
precedent.
Privately owned firearms or weapons of any kind will be prohibited.

It has become
clear that the amount for focusing on global issues has emerged this
new century
and this movement is forcing such people who believe in world
government to fight
back.
In Seattle, the World Trade Organization talks collapsed due to

differences but they still maintain their secret agenda of controlling

91
the world. We are faced with a group of people who are not ready
to negotiate with us but to control the World today. The world
Trade Organization is for effective exploitation of resources from
those who are inferior to them. They want to create a system that
will promote health, economic development with new rules,
institutions and funds because of what they want. They are arguing
that the current international economic system doesn't support the
global utilization of global natural resources e.g. oil in Iran water
resources etc. this resource crisis is being complicated by the global
warming driven by global extremes, growing inequality (poverty) in
the periphery and cultural homogenization that is, people with the
same cultures so as to respond uniformly hence economic
structures that they will control easily.
Due to environmental problems they have got environmental and

economic research programmes to create one world. They want to
work out a new financial framework such that labour laws are eased
and consequently control the world easily by allocating their
industries where they want them to be. e.g. the Green card lottery
that has taken over 100 Ugandans to work for Americans.
There are two major parts of the economic system, that is, finance
and' the economy, investment grants and loans are-to be used. This
finance will be directed for industries and agriculture which is
production, but they must have systems to control these finances
e.g. banking sector, insurance sector, stock market sectorand
currency trading sector. But this production is the body new world
order about business.
Globalization has meant, allowing special interests to privatize some

parts like transportation sector, fisheries which when are private,
cannot develop society. World Trade Organization has focused on

92
disorganization of the local rule thatimpedes International Trade

Organizations as a result; International Finance does not concern
itself with sustainability
In the health arena. Globalization may mean siphoning national

budgets in developing countries to establish foreign owned health
maintenance e.g. the AAR organization and to prevent in nations,
which they do uncautionably. They want to set new rules under the
sovereignty in nations. In doing all these, after World War II, there
was the global-'depression, therefore the world leaders met in New
Hampshire to craft the framework to stabilize the national economy
and established 3 (three) rules, that is, free trade, control of capital
flows and fixedcurrency exchange rates and in their thinking,
established the monsters that control the world, that is, the World
Bank, IMF and a political body, the UN and were focused. Soon after
that they set up the Marshal Aid Plan and Fund. USAmoved the
development capital to Europe for restructuring and to use the
same to develop Africa, while Europe succeeded, Africa has failed.
Later in the 1970s they began control in new development skills at

inflated rates, which caused debts. In the third world, even when
they did that, we cried for a neo-international economy order.
However, the pumping in of the money has led to Structural
Adjustment Programmes, (SAPs) which the periphery has to adopt.
It’s meant to make us conform to the new world order which has no
room if or disobedience and hence dictators. They have convinced
the third world that such programmes have been designed to
ensure exports to recover the-debts. These programmes have led to
the reduction on the government, its on local sectors hence 3 rd
world has to tighten the belt. This has led thedestruction of state
infrastructure leading to wide increased disparities and destruction
of countries. By the 1980s the periphery realized that such SAPs

93
were not working to their situationbut only encouraged corruption,

see GAVI funds cases in Uganda, inflated foreign exchange rates
leading to explosion of finances, poverty increased, destruction of
state infrastructure, escalating values of foreign currencies e.g.
dollars etc. such SAPs have led to collapsing of many Third World
Countries e.g. Malaysia, Indonesia etc.
In such scenario, new rules to controlling capital are required to

control capital investment and that those who can’t pay the debts
will have problems from them. Hence today, the development
programmes in many third world countries are not •home but
imported, causing debt driven economies that can't go away unless
theconditions are damaged. The biggest problem is the terms of
trade with the north that is, how much is earned from export.
Because the terms of trade are distributedthe global wealth
equality, which they are not willing to do so. They haveestablished
institutions like the IMF and World Bank, which are used to control
the third World. Such institutions are only developmental when
money flowed from theMarshal Aid Plan to Europe and becomes
commercial when money flowed from Europe to the third world and
such institutions are there to administer the monies, which is not
good for third world development. And the little that is sent for
development is through NGOs such as N^SF, UNICEF etc., which is
got indirectly. Incentives put up are pervasive and encourage
extraction, mining and refining withmoney but they don’t want
countries to give any subsidies to their people. Products are taken
by government in America and farmers are paid in cash. In the third
world, such stores have been privatized and hence no cash is given,
to farmers i.e. money moves along long channels. Projects they
finance have to fit the new world order. With the collapse of
communism, these fellows seem to have no challenge and want a

94
one world government, which is headed by Multinational

Companies. The USA will stop at nothing because they have no
hindrance.
The new world order is not about balance of power but capitalist
domination. However even when the 3 rd world countries cried out
for change, it can't happen as the communist who formerly agitated
for the third world has collapsed. The new world order to rule the
world through the new world order government. These leaders
(group) are not meaningful in society, such leaders don’t like the
third world but are interested in dominance of the world. We
happen to be a biological substance to be used to their journey of
acquisition of wealth in the world. However, secrecy has been
crucial e.g. on May 12 th 1986 at Texas, University, Bush senior said,
“Ultimately our intention is to welcome the Soviet Union back to
the world order.” In 1991, Bush said “if we don’t follow the
potential of our inner moral capacity and stand up for human life,
then this emerging new world order we now see is an old hindered
vision we have all worked towards a long time" Henry Kissinger,
former Secretary of State said, “Our nation is uniquely endowed to
play a creative and decisive role in the-new world order which is
taking me from around us.” Later he says “In the end, they (The
people) will relate their freedom at our feet, the controller, and
they will stay as your slaves but feed us"
.In conclusion therefore, we have seen the three-tier world systems

respectively grow where parts of it are developed while others are
underdeveloped. The reality is that we are not all equal in that
globalization hence globalization more of a myth than a reality, or if
a reality a means enhance capitalism at the expense of socialism.

95
WOMEN IN DEVELOPMENT
Fifty one percent 51%) of Uganda's 31.8 million people are women.
However, this numerical superiority does not extend to their status in
society. They suffer discrimination, subordination and oppression on
al! Fronts (i.e. Social, economic political and cultural), despite the fact
that Ugandan women constitute 60% of the labour force in the
agricultural sector and account for 8% in food production. This is clear
the country's economy, which hinges on agriculture, is supported
mainly by the rural women who are the major tillers of land-land they
neither own nor control.
Uganda ratified the United Nations Convention on the Elimination, of

all forms of Discrimination against Women (CEDAW) in 1985. For the
last 23 years the National Resistance Movement (NRM) government
has been supportive of the women's cause, however, despite these
efforts, the legal position of women in Uganda remains grossly
inequitable. The laws, which are a reflection of the development of
any society, still fail to sufficiently protect generally women's interests.
In fact many of the existing laws continue to perpetuate the
subordination of women.
Since the NRM assumed power in 1986, the issue of women's rights
has attained some prominence in Uganda and President Museveni
himself has pledged government support for the cause of women's
emancipation. In one address to the nation on international women’s
day Museveni said.
"It is now acknowledged that the involvement of women in the

development process is not just a matter of ethics but of good
Joan B Nairuba. Law and Development

96
economics. The challenges of development enjoin us to pay more

than lip service to the core issue of unequal relations in our society.”
The NRM has taken a number of concrete initial steps to put this into
practice. In 1986, for example, the NRM accorded women mandatory
seats in all five hierarchies of the National Resistance Council (NRC)
"interim" legislature. A women's desk had also a mobilization body for
the movement. Furthermore, a ministry of women in development
was created for the first time in March 1998. Included in the ministry's
objectives was the task of formulating and coordinating policies on
women as well as sensitizing government organs and the public at
large to gender related issues.
The supportive issues stand adopted by government on women issues

was received like a breath of fresh air by all those involved in the
struggle to emancipate women. Numerous women NGOs were formed
and others reactivated to take up the challenge of rectifying
traditional and legal inequalities in terms of women's rights. After
seven years of the NRM administration, it is time to take stock of the
achievements made on the front of women's struggles and to consider
the overall situation of Ugandan women in the context of the
apparently favorable political climate. This article will specifically
tackle the issue of legal reform concerning women’s interests.
From the outset, it is necessary to acknowledge that structural and

other limitations exist that impede women's emancipation via
legislation hence reducing the role that women would play in the
development of our country. While conscious of the fact that legal
reform per se cannot act as a panacea for women's problems and
thatlegislation alone cannot secure women's equality, I would submit

97
that having laws favorable to women is a necessary first step in the

struggle towards total emancipation.
Therefore even if "law in legislation" is far removed from "law in

practice" law reform is an essential step by way of establishing a sound
foundation on which to construct a platform for true emancipation and
general development of the country. Without such legal support, the
discrimination against women would be futile. Thus the reform of legal
mechanisms must be viewed as only one facet of the struggle rather
than as an end in and of itself.
A related problem is that despite the support that the NRM

government gives to women, and all the supportive and non-
discriminatory laws, very little legal reform has been achieved. Laws
that blatantly discriminated against women and those that perpetuate
their subordination remain in our statute books and little has been
done to put new legislation in place that specifically caters to women's
interests in society. Even where the courts declare by interpretation
some laws to be null and void, the legislature has failed totally to
implement the amendment of the same. For example, the need to
reform laws pertaining to marriage, divorce, maintenance, succession
remains long overdue despite the fact that many women NGO's have
highlighted this need. The Domestic Relations Bill has had the longest
discussion by parliament Marjory because of the anticipated impact on
male influenced legal imbalances.
The law reform process is riddled with huddles that make it difficult to

98
initiate changes in the law. Moreover, political and economic forces

that influence this process exacerbate the problem in addition to the
socio- cultural attitudes that are manifestly hostile to legislative
measures promoting women's interests. These are some of the reasons
why, in spite of the fact that women were allotted special seats in
parliament, no fundamental change in their position, legal or
otherwise, has occurred save for having the first woman former Vice
President SpeciozaKazibwe.
THE LEGAL STATUS OF WOMEN IN UGANDA
Article 1 of the Universal Declaration of Human Rights provides: "all

human beings are born free and equal in dignity and rights...." Under
Article 2 "everyone is entitled to all the rights and freedoms set forth in
this declaration without distinction of any kind, such as sex "
Article 2 of the CEDAW is more specific: State parties condemn

discrimination against women in all its forms, agree to pursue by all
appropriate means and without delay a policy of eliminating
discrimination against women and to this end, undertake:..(f) To take
all appropriate measures, including legislation to modify or abolish
existing laws, regulations, customs and practices which constitute
discrimination against women."
In the same spirit, the African Charter on Human and People's Rights
provide that every individual must be entitled to equal protection of
the law. Uganda is signatory to each of the above international
documents and the Uganda's Constitution echoes these same general
principles as the supreme law of Uganda. In Article 21(1) that all
persons are equal before and under the law in all spheres of political,

99
economicsocial and cultural life and in very other respect and shall
enjoy equal protection of the law.
However, the reality is quite different. A review of the laws relating to

the constitution, marriage, divorce, maintenance, custody, succession,
employment, education, health and crime clearly illustrate the
subordinate position women occupy in Uganda Society and Africa at
large.
It should be pointed out at the outset that Uganda as with most other
ex-colonies, operates a dual legal system. This means that formal law
which is found in statutory enactments and in the inherited common
law regime on the one hand coexists withcustomary law, which is "
not repugnant to natural justice, equity and goodconscience; .and
not incompatible with any written law" therefore, customary law,
although not codified, has the same force and effect as written law,
almost all statutory laws that were adopted during the colonial era.
A. The Constitution
1. The Present Constitution - The 1995 Constitution of the Republic of

Uganda is the supreme law of the land and the superstructure upon
which all other legislation and government policies are based. In spite
of the incorporation of the bill of rights in the constitution, which
guarantees equal protection-of law to all Ugandan citizens, this has not
been put in practice.
Developments
The 1995 Constitution provides under Article 33(1) that women shall
be accorded full and equal dignity of the person with men. Clause (2)

100
of the same Article states that the state shall provide the facilities and
opportunities necessary to enhance the welfare of women to enable
them to realize their full potential and advancement. This is
exemplified in the political arena where women have been accorded
the chance to have representation in parliament; this is through
women representative per district. This has not helped women avoid
standing against men in the various constituencies albeit an example of
former Lira Municipality. M.P. Hon. Cecilia Ogwal who trounced on two
occasions a prominent businessman, Sam Engola.
Equally to note is clause (3) of the Article 33, which states that the
state shall protect women and their rights, taking into account their
unique status and natural functions in society. Women shall have the
right to equal treatment with men and that right shall improve equal
opportunities in political, economic and social activities (of Article
33(4)). This is exemplified in employment field where women have or
are supposed to be given maternity leave during pregnancy.
Article 31(1) state that men and women of the age of 18 years and
above have, tbj3 right to marry and found a family and are entitled to
equal rights in marriage, during marriage
B. Marriage
In Uganda, a person may choose from among four choices of marriages

systems: customary, civil. Mohammedan and Hindu. However, the last
choice is only involved by a small preparation of the population and is
not discussed in detail. The law relating to marriages generally
encourages male domination over womeneconomically and otherwise.
This is especially because of the patriarchal system that exists in

101
Uganda, However, Article 31(1) of the 1995 constitution provides that

men and women of the age of 18 years and above have the right to
marry and found a family and are entitled to equal rights in marriage,
during marriage and its dissolution.
1. Customary marriage - Although the intricacies of customary

marriage vary from one ethnic group to another, customary marriages
have three basic elements that are common to all. First, they are all
potentially polygamous. All recognize the payment of bride wealth by
the prospective husband to the parents (read father), of the wife to be.
Lastly, all constitute a contract between the groom and the father or
guardian of the bride. The men feature prominently in a customary
marriage ceremony, and women participate as mere spectators; the
young bride has very little say in the rituals that affect her directly and
personally. She cannot enter into a marriage relationship without the
sanction of the males around her.
Bride wealth, which is fixed by the male members of the bride's family
or clan, constitute several heads of cattle, goats and foodstuff, or cash
in lieu depending in which part of the country the marriage is
conducted. Some families have reduced bride wealth to a mere token
gift to symbolize the custom, but the majority of Ugandans still
demand prohibitive bride wealth from prospective husbands, dowry
payment was regarded as an essential part of a valid marriage under
customary law, in the case of Uganda V John Eduku. (1975) HCB 359 in
Eduku's case, the accused was charged with adultery under the
Ugandan Penal Code Act. The issue was whether the complainant was
a married woman since criminal adultery can only be committed by a
married woman with a man who is not her husband. Justice Lubogo

102
held that since bride wealth had not been paid in full, no customary
marriage subsisted between the complainant and her "husband"
Therefore; the couple could not be regarded as husband and wife. The
accused was thus acquitted of the adultery charge.
Whatever virtues the institution of bride wealth carried in the past,

they have been lost in the present. Rather than cementing the
relationship between the families concerned and providing stability to
the marriage the customary payment of bride wealth now gives the
husband proprietary rights over his wife, allowing him to treat her
more or less like a chattel. This is especially so because it equates a
women's status in marriage with the amount of bride wealth
exchanged and not with her skills and abilities.
In 1973, the government passed a decree establishing a uniform

system of registration of customary marriages. The customary
Marriages Registration Decree (now Act, Cap 248) also set down the
minimum ages of marriage as 16 for girls and 18 for boys. Persons
below those prescribed minimum ages who wish to get married must
obtain consent of their parents according girls such legal capacity to
marry at a younger age than boys and this is based upon the sexist
presumption that marriage is the only proper thing for a woman and
that men -should be encouraged to engage in better and more useful
pursuits before they enter marriage. In practice, a woman, irrespective
of her age, will always need theconsent of her father or guardian
before she can contract a valid customary marriage in Uganda. This
limits the woman's choice of a marriage partner since it is subject to the
father’s approval. Therefore despite the presence of Articles 31, 33, the
institutions implementing such laws are not favorable to women.

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The polygamous nature of customary marriages also perpetuates the

oppression of women because the woman becomes half a third or a
quarter of a wife, depending on how many wives the husband marries.
This inevitably means that the wife's entitlement to love; consortium
and maintenance is apportioned in Uganda; only polygamy is legally
recognized while polyandry is not, moreover, women have absolutely
no say over the question of whether a husband should* take on
another wife.
Customary law further gives the husband the leeway to chastise his
wives whenever he sees fit. This leads to wife battering and the woman
often suffers silently as she deems it "proper" for her husband to
chastise her. Apart from the general law on assault and Article 24,
which states that, no person shall be subjected to any form of torture,
cruel, inhuman or degrading treatment or punishment. There is no
mechanism in Uganda, legal or otherwise to protect battered women.
2. Civil Marriage - A civil marriage is governed by the provisions of the

Marriage Act Cap 251. This type of marriage, which is monogamous in
nature, was imported to Uganda from Britain during the colonial
period. Most of the provisions governing such marriages therefore stem
from common law principles with many of them conservatism and
chauvinism. Because civil marriages are alien to Ugandan society, it is
quite common to find that people who opt to often mix it with
customary rituals and totally disregarded some of its principles. For
example, many Ugandan men disregard the monogamous requirement
of a civil marriage and either commit bigamy or simply take on
additional "informal" wives. Such practice is customarily considered
"natural"

104
Moreover, the institution of bride wealth is so deeply entrenched in

Ugandan Society that it has been carried to civil marriages. Thus in
practice, a civil marriage will not be regarded as valid by all concerned
parties unless it has been preceded by bride wealth. This is true even
though the marriage act does not require the payment of bride wealth.
Another significant and unjustifiable consequence for a woman who

contracts a civil marriage is that she acquires the domicile of her
husband for the duration of the marriage. The law collapses the
woman's individuality into the man's under whose wing she is supposed
to be protected and maintained. Therefore custom requires that a
woman drop her maiden name and adopt her husband’s surname upon
marriage. Moreover the Ministry of Internal Affairs has an
administrative regulation prohibiting a married woman from obtaining
a passport without the written consent of her husband. All of these
practices emphasize the fallacy of male "supremacy" and accord men
the privilege to dominate women.
Under common law, a marriage is presumed where a man and woman

have been cohabiting and holding themselves out as husband and wife,
in practice however, the "wives" of such presumed marriages are not
afforded any legal rights enjoyed by married women. This has been the
major basis for the delayed Domestic Relations Bill.
3. Mohammedan Marriage - The Marriage and Divorce of

Mohammedans Act Cap 252, provides inter alia, that the
Mohammedan religion (Sharia law) shall govern all marriages and
divorces between Muslims under Sharia law, women are
considered perpetual minors and their position in relation to
other women, is definitely worse. In her role as wife, she is

105
subjected to near servitude. She is not to speak in public unless

she is specifically asked to do so: when in public she must keep
her face covered, and she is not permitted to challenge her
husband on any important issue Sharia courts gives less evidential
weight to the testimony of women.
A Muslim man pays mahr (bridal gifts, but not bride wealth) to his
prospective wife, and this becomes the property of the wife as a result
of the marriage contract. Without mahr, a Muslim marriage is null and
void abinitio. Moreover as in the case of civil marriages, Muslim
marriages are normally preceded with customary bride wealth along
with its negative implications for the wife.
Mohammedan marriages are also potentially polygamous. The Quran

allows a Muslim man to marry up to four wives, (cf chapter 4:3)
although Sharia law enjoins Moslem men to take on more than one
wife only when they can afford to provide for them equally, in reality,
Muslim men disregard this law. Many Muslim wives suffer from the
consequences that come from sharing a husband and a home with two
or three other wives.
Under Islamic law; it is not unusual for a girl of fourteen (or one who
has just attained the age of puberty) to be betrothed to a much older
man in exchange for money. The consent of the girl to such betrothal is
irrelevant. As a result of these forced marriages there is a high rate of
maternal mortality among teenage mothers, as their bodies are not
mature enough to handle child bearing.
C. Divorce
There is no law in Uganda that exemplifies the discriminatory character

106
of our laws than the law governing divorce. Divorce law does not grant
equal rights and duties upon the dissolution: of marriage between
husband and wife.
1. Customary Divorce: - Customary marriages are normally by the

refund of the bride wealth from the parents of the wife to the
husband. This is especially so where the divorce results from the
wife's wrongdoing. Courts have taken cognizance of this custom.
In the case of IVluhinduka v Kabale
S-No. 1/71 a -claim for a refund of one cow and Shs.400/= as a

bride wealth on divorce was upheld by the Magistrates court in
Kabale. The reality is that on most occasions, the father of the
wife will not be in the financial position to refund the bride
wealth, which means that the unfortunate wife will be forced to
stay in a miserable marriage.
The grounds for divorce under customary marriage are different

for men and women and depend upon the customs of different
nationalities. In general, however whereas a man may divorce his
wife on grounds of infertility or bareness, infidelity,
repeated .adultery, witchcraft, theft or insubordination, a
woman's only sure ground is impotence. Cruelty, if it is -excessive
and desertion may also provide a woman with possible grounds
for divorce. Otherwise, the grounds of infidelity or adultery are
not available for a wife to divorce her husband. This is contrary to
the spirit embedded under Articles 21 and 31 of the 1995
constitution.
2. Civil Divorce: Under the Divorce Act Cap 249, section 4, adultery is

107
the primitive ground for all civil divorce. The law requires only
that a husband proves adultery on the part of the wife as a
ground for divorce. However, a wife must couple adultery with
other grounds such as cruelty, incest, bigamy or desertion.
Furthermore, under the divorce law only the husband is entitled
to monetary damages from a correspondent in the event of
adultery with his wife. However the status quo has changed
thanks to judicial activism, in the case of Uganda Association of
Women Lawyers and 5 Others V AG. Constitutional Petition NO.
2/2003. Where section 4,21 and section 22 of the Divorce Act
were rendered inconsistent with Articles 21 and 31 of the
constitution hence null and void.
3. Mohammedan Divorce: Sharia law permits dissolution of

marriage where the marriage has irretrievably broken down.
However, it is the method of effecting such dissolution, which is
discriminatory, as it is the unilateral right of the man. Thus a
Muslim man may at his will and without the intervention of the
courts divorce his wife by simply pronouncing the word
talaqthree times, this has led to so many arbitrary divorce among
the Muslim community as it permits men to discard their wives at
will without giving women the corresponding right to divorce
their husbands. A Muslim woman can only be granted a divorce
from her husband when the latter is in agreement i.e. through
mutual consent.
These double standards sanctioned by the legal regime only

perpetuate the inferior status of women. Divorce based on fault
concepts should be abolished and the more realistic ground of

108
"irretrievable break down” adopted. This will remove the higher

standards cl conduct required of wives than of husbands in a
marriage relationship.
D. Property and inheritance Rights.
In 1977, the high court of Uganda belatedly recognized the fact that, a
woman regardless of her marital status, can own property in her own
right. In the case of. Uganda V JeninaKyanda (1977) HCB 111 the
English married woman's property' Act of 1862, which allowed woman
to own property in their own right, is also applicable in Uganda. This Act
also gave women full contractual capacity. Thus, women are free to
purchase and own property. However, such laws remain in the statute
books because the majority of Ugandan women simply are in a position
to take advantage of them. Take the example of land. Although under
the registration of Titles Act, any Ugandan citizens is free to purchase
and own land only. About 7% of the land is owned by women. Under
the 1995 Constitution, Article 26 provides hat every person has a right
to own property either individually or in association with others and
that no person shall be compulsorily deprived of property or any
interest in or right over a property of any description. It should be
equally notedunder section 39 of the Land Act cap 227 that a husband
cannot deal, sell, mortgage, transfer give as a gift land without the
written consent of his wife. This is however not very surprising when
you consider that women are still confined to income activities, limiting
their activities to the field, Kitchen and nursery. The realities of the
social and cultural; conditions in Uganda are such that woman cannot
even claim ownership or control of the land that they till dawn to dusk.
At best, they can only enjoy usufruct rights to this land.

109
In 1972, the succession (amendment) decree (now a Succession Act)

was enacted as an attempt to streamline the law of inheritance in
Uganda. This law made the legal position of women in inheritance
matters better than it was prior to its enactment. For example, it
guaranteed a wife's share in her husband's estate, whether he died or
not. A widow also has the right to the matrimonial home until she dies
or remarries. The act also gave the right of inheritance to dependent
female relatives Furthermore, section 4 provides that no person shall
acquire by marriage and interest in property of the person he or she
marries. In effect, this recognizes the concept of separate property
acquired before marriage. It further provides that a person will not, by
virtue of marriage, be incapacitated from doing any act with respect to
his or her property which he or she could have done before marriage.
However, the reality is that customary law is still supreme in

inheritance matters. The majority of people in Uganda continue to
operate in total disregard of the provisions of the Act. For example,
property grabbing and the harassment of widows by their in laws is
commonplace in Uganda even today though where a husband died
having married customarily, his brothers while contesting the legality of
wife's inheritance of their brother's property, court held that the widow
though married customarily was the rightful administrator of the estate
(c.f)Farasia Rwabaganda V Danato Bahemurwabusha (1978) HCB 244.
A deceased father is almost always succeeded by a male, regardless of
whether the male is a "collateral relative” as opposed to "lineal"
daughters who are given preference over collateral relatives by law. In
the definition section of the Succession Act, the term "legal Heir" is
defined as the living relative nearest in degree to person who dies
interstate, it goes on to clarify that "...a male shall be preferred to a

110
female...." When there is equality between Kindred of the same degree.

It is also important to note that the succession law provides for the
distribution of the estate on the depth of a male interstate, but not for
a female who dies interstate. Such preference based on sex are quite
elaborate in inheritance cases in Uganda. Sharia law recognizes a wife's
right to inherit one eighth of the estate if her husband has left children
and one quarter if he had none. Muslim women can also inherit
property form their fathers, brothers and other relatives under the
sharia law. However, the male’s share always doubles that of the
females in inheritance matters. However, the practice of Islamic
inheritance is very different from the theory. Given the overlap
between customary practices and Sharia law and the fact that a Muslim
wife has to share whatever little she inherits with her co-wives, the
reality is extremely bleak for Muslim women in such matters.
In summation the legal regime together with the social and cultural
realities generally exclude women from the property owning class in
Uganda. Implementation of the inheritance law leaves much to be
desired. To compoundmatters, the procedure employed at the
administrator general office is extremely slow.
E. Employment and Education
1. Employment- Uganda women constitute only 30% of the entire

formal sector labour force. The employment Act purports to protect for
instance prohibits the employment of women in manual underground
mining. Women's employment in underground mines is thus limited to
managerial posts or health/welfare positions. Furthermore, although
the decree only prohibits minors from being employed in night work in
any industrial undertaking, women are also customarily excluded from

111
such employment. This is based on the perception that night work

would prevent the women from performing her roles as housewife and
mother.
Such discrimination under the pretext of "protectionism" cannot be

justified and perpetuated the limitations on the areas where women
can realize their full potential. If the objective of the law was to protect
employees from hazardous work. It should be applied across the board.
The risk involved in mining for example, apply equally to men as they
do to women.
The only justifiable differentiation in employment law on the basis of

sex in that concerning the specific reproductive role of women in
procreation. As the law presently stands, a working mother is entitled
to only few days maternity leave and where necessary, with medical
certification, up to two months unpaid maternity leave. Any period
longer than that entitles the employer to dismiss the female employee.
According to Article 40(4) of the constitution, the employer of every
woman worker should accord her protection during pregnancy and
after birth, in accordance with the law.
The majority of Ugandan women were deployed in stereotypical female

occupations, such as teaching, nursing, stenography and clerking. A
great many more are now involved in jobs in the informal sector,
working as housemaids in urban middle class homes. However this has
changed as we see several women managers in leading multinational
companies like MTN, Zain, UTL, Hima Cement, Media houses,
Government institutions etc. this reflects high levels of development on
the part of women in Uganda. The informal sector is often marginalized
in terms of access to productive resources, such as credit and this is

112
extremely vulnerable to harsh town council regulations.

Notwithstanding, this has not stopped such women as Allen Kagina,
commission GeneraLURA,MariaKiwanuka, owner of Radio One and
Akaboozi, Maggie Kigozi former Director Uganda Investment Authority,
etcand a host of other women entrepreneurs and academicians. The
Employment Act does not protect any of these categories of female
workers from the exploitation and sexual harassment that they suffer
at the hands of their employers. Under the Penal Code, which makes it
an offenceto overly insult the modesty of a woman/girl or intrude upon
the privacy of a woman/girl punishable with a one year term of
imprisonment, is rarely invoked by women who are sexually harassed.
A law is needed that specifically addresses the issue of sexual
harassment. Such legislation should criminalize sexual harassment
grievances. A new form of harassment has emerged in the form of
education where male teachers (lecturers) seek sexual advances in
return for marks.
In spite of the fact that Uganda ratified the International Labour

Organization (ILO) convention on equal work, value and embedded the
same under Article 40{1) (b) of the constitution, women are paid less
and receive fewer benefits for the same kind of work as their male
counterparts in Uganda.
In conclusion, therefore, all said and written, the legal regime in post-
independence African states on women and the girl child is lacking in
policy, enforcement and relevance, and still, responsible bodies like
parliament, executive and the judiciary as arms of government have not
come out to do the necessary reforms, repeals, amendments,
modifications and adaptations required for a good and fair legal regime.

113

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1

LAW AND DEVELOPMENT

Law and development is an interdisciplinary study of law, economic

The main objective of this course is to examine the scope and

The course has a comparative approach, examining local, regional

It has both a theoretical and practical content engaging, amongst

Joan B. Nairuba, Law and Development

Moreover, since the 19th century scholars from developing countries

To understand development theories e.g Modernization theorists

Drawing on modernization theory, the first wave of law and

As defined by Burg, this conception “sees law as a force which can be

for the legal profession a prominent role in formulating them.” Such

To undertake reform of legal education and the legal profession, and

Others have criticized the Law & Development discourse as another

THE CHARACTER OF LEGAL PHENOMENA/LAW

Joan B. Nairuba, Law and Development

study law from a perspective of traditional legal analysis which does

Law and society studies (sociology of law – sociologically informed

Thus, here the economic system i.e the mode of production is

The state, law and ideology in class society are viewed as an

Joan B. Nairuba, Law and Development

Marx and Engel’s empirical study of social movements in history

When one talks of development of productive forces one may be

Joan B. Nairuba, Law and Development

natural assets such as irrigation of inerrable land to make it arable,

The state of the development of the productive forces decisively

(Labour and production is usually social i.e done in cooperation or at

Development of productive forces entirely changes in the relations of

The Properties/Content of the Law

The properties of ideology and the progressive and social content it

Joan B. Nairuba, Law and Development

The mode of production, the existing economic and political

In the final analysis, these events and forces in history primarily

In employing the law and courts to strengthen the dominant class

consequences or impact in some instances. There is such a thing as

THE STATE CONCEPT

It is therefore based on this background that scholars have tried to

Joan B. Nairuba, Law and Development

Government; government being taken as an agency which steers the

A state is therefore a complex phenomenon i.e. an assemblance of

There is taken to be a social contract between the state and the

As a legal concept the state delineates as a territory within a given

The state as an organization within the society where it co-exists and

The state is a historical and not an ahistorical (not historical) or an

The state considered a welfare maximizer assumes the role in social

THE NATION STATE

The nation state is a state that self-identifies as deriving its political

“modernization theories” of nationalism see the national identity

The relation between racism and ethnic nationalism reached its

Joan B. Nairuba, Law and Development

German nationality law defined “German” on the basis of German

In recent years, the nation state’s claim to absolute sovereignty

Characteristics of a nation state

Legitimate states that govern effectively and dynamic industrial

1. They have a different attitude to their territory as opposed to

Joan B. Nairuba, Law and Development

the national group, although many nation states also sought

Catalonia, Britanny among others. In many cases, the regional

Nation state in Practice