Last week, this column provided a broad consideration of the work and legacy of Professor Joe Oloka-Onyango, and attempted to identify what exactly it is that Makerere lost on 16th September 2024, when his formal association with the university ended.
Inevitably, the sweeping nature of that piece could not provide for a more in-depth exploration of the contributions he has made in the areas of human rights, international law, constitutional law, refugee law and others. Indeed, it is certainly impossible to properly convey, in this limited forum the full measure of a body of work spanning over four decades.
Nonetheless, an introductory effort must be made in this regard – especially for the purpose of demonstrating to particularly younger scholars and citizens what can be achieved in a career marked by passion and industry. Professor Oloka-Onyango’s career presents a particularly interesting – and informative – case study, in so far as it demonstrates a most practical application of one of the simple statements which was for a long-time plastered outside Professor Sylvia Tamale’s door: ‘Think globally, Act locally’ (another related to the expenditure on a single cow in the EU, relative to that on which half the world subsisted).
His work straddled two worlds – the international and the national – and impacted both. At the international level, his work and scholarship were clearly motivated by a motivation to improve – through law – the lives of persons and communities negatively impacted by the processes of globalization (including international law-making).
His work in the area of refugee law, for instance, critiqued the limited approach to the definition of ‘refugee’ and the notion of the ‘well founded fear of persecution’ standard for refugee-status determination under the 1951 Geneva Convention and the 1967 Protocol. Apart from international refugee law’s undue focus on the individual (at the expense of violations experienced by groups), the corpus of that law was also problematic insofar as, among other things: it unduly foregrounded civil and political rights over economic, social and cultural rights; and drew inordinate distinctions between the public and private arenas of the human experience.
Additionally, he critiqued that body of law as being neither sufficiently reflective of, nor responsive to, the needs and concerns of peoples of the Third World, women in general, and African women in particular. He thus advocated for a radical reformulation of both international refugee law, and the methods and practice of those bodies trusted with its enforcement, particularly the Office of the United Nations High Commissioner for Refugees (UNHCR).
Another notable example of his challenge to globalization and its norm-generation processes is represented by a United Nations Report he co-authored in 2000 with the Sri Lankan Jurist Deepika Udagama. The Report, which was prepared pursuant to a Resolution by the United Nations Sub-Commission on the Promotion and Protection of Human Rights (which has since 2006 been replaced by the Human Rights Council) had an immediate impact on account of its forceful indictment of the normative and procedural regime introduced under the World Trade Organization (WTO).
Among other things, the Report critiqued the insufficient acknowledgment of relevant human rights standards within WTO Agreements and Undertakings, on the one hand, and the significant – and adverse – impact of trade for the realization of human rights, on the other.
The Report described two kinds of globalization: i) globalization-from-above, characterized the exercise of hegemonic power by such entities as multi-national corporations (MNCs) and other vehicles of international capital; and ii) globalization-from-below, which was constituted by more public-spirited actors such as individuals and non-governmental organizations (NGOs) concerned by such issues as human rights, the environment and others.
The WTO project, they observed, had facilitated the first form of globalization and resisted the second, with the effect that it represented a ‘veritable nightmare’ for large parts of humanity, particularly in the South. Quite unsurprisingly, the Report almost immediately drew the ire of the WTO, whose top leadership pushed back against it.
On the other hand, it provided an intellectual foundation for scholars and activists across the world to further interrogate the extent to which international trade law – and international law in general – was working to serve, or undermine, the welfare and interests of humanity in its broadest sense.
His scholarship and activism at the international level placed him at the heart of a movement of ‘rebels’ – including jurists such as James Gathii, Balakrishnan Rajagopal, Bhupinder S Chimni, Obiora Chinedu Okafor, Abdullahi Ahmed An-Na’im – thinking and working to understand and expose the more problematic aspects (historical and contemporary) of the process of international law-making, and to reimagine a more democratic and emancipatory approach in this regard.
Under the rubric of Third World Approaches to International Law (TWAIL), their work and efforts complimented and engaged with other critiques of legal orthodoxy under the still broader Critical Legal Studies (CLS) movement.
This constant engagement with the question as to how law interacts with power, would also be a significant feature of Professor Oloka Onyango’s work at the national level. He was, for instance, one of the earliest scholars to realize the autocratic tendencies hidden behind the ‘National Resistance Movement’ and who would go on to tirelessly demonstrate the ways in which what was claimed to be a path to ‘democracy’ was simply a continuation – albeit a more sophisticated one – of the dictatorship of past regimes.
His work also explored the structural deficiencies embedded within a Judiciary whose foundations and ethos could not allow for any serious interrogation of state power. Among other things, he challenged judicial officers to claim the promise and potential of the 1995 Constitution, if there were to be any hope for the realization of real freedom and democracy in Uganda.
Unfortunately, very few did, and the ‘ghost of Ex Parte Matovu’ – of judicial deference to executive power – which came to be a defining theme of his work, seemed to often have the last laugh. Professor Oloka-Onyango further pointed out the deficiencies of a ‘decentralization’ process which, being unaccompanied by any robust attention to or incorporation of truly democratic elements, was simply creating localized dictatorships as extensions of the autocracy of the centre of the State.
This effort – an enquiry into the extent to which otherwise critical and indeed legitimate structures (ancient and modern) were consistent with the critical values of liberty, human rights and democracy can indeed be identified as a running theme across his work. Indeed, this would be a question he would pose with regard to, among others, the civil society movement in Uganda and beyond; the legal academy and scholars in general; traditional institutions (including his bako – the Buganda Kingdom); political parties and other sites of power.
In this way, his critique was consistent, his moral positioning solid, and his challenge fair and transparent. At all times, the target was the abuse of power – or to borrow a term from commercial law, and competition law in particular, the ‘abuse of dominance’. This would have interesting results, attracting equally interesting allies and protagonists.
To take but two examples, through his scholarship and work, he would support the legitimate claims and aspirations of traditional institutions (with the caveat of the requirement of democratization and respect for human rights), on the one hand, and similarly vigorously defend the rights of sexual and gender minorities in Uganda and elsewhere to a full and free existence, on the other.
If he did all these things, in the staid and conservative style typical of both academia and the legal profession, the above account – a description itself barely scratching the surface of a body of work spanning several decades – would certainly constitute excellence by any metric.
But, Professor Oloka-Onyango took it a notch higher. He did all these things with style, flair and panache. His communication – in speech and writing – has always had that rarest of qualities: simplicity and sophistication, or perhaps the sophistication of simplicity.
Consider, for instance, this portion in the opening paragraphs of his Inaugural Professorial Lecture, Ghosts and the Law, delivered at Makerere University on 12th November 2015: ‘For the past 30 years of my academic career I have been battling with a ghost. Every time I believe he is dead and buried, he resurrects again and again … and again. And yes; I am pretty sure it is a “he.” His name is ex parte Matovu.
For any student of the Law, it is a sin not to be on intimate terms with this ghost, whose full name is Uganda v. Commissioner of Prisons, ex parte Michael Matovu. On February 2nd, 2017 Matovu’s case will be 50 years old. In that sense, he is still quite a young phantom, because it is generally believed that he died at the relatively young age of 28 on October 8th, 1995, when our new Constitution was born.
However, ex parte Matovu is still a domineering presence in the Law, right from the very first class in Constitutional Law and throughout the four-year degree course of study. The ghost of ex parte Matovu will be felt in whichever branch of the Law one looks at in study or practice, directly or otherwise.’
Or this fluid elegance in an article on love, human rights and identity politics published in the 2015 edition of the African Human Rights Law Journal: ‘While the “right” to love appears in no known legal document – national, regional or global – there is no doubt that it is a universal human sentiment.
If one was to perform a dissection of the right to love, it would be found implicit in several human rights principles – freedom of association and expression, the right to health, the right to privacy and especially in the right to human dignity. Despite the absence of the right in normative form, it is a central feature of human existence, especially within the context of sexual expression. To deny its existence is to deny the very essence of our humanity.’
Interestingly, these two separate quotations – both drawn from work incidentally done in 2015 – together speak to two related themes in his scholarship that might explain its singular quality: power and love. Professor Oloka- Onyango’s reflection on his scholarship is in terms of a decades-old struggle with the ghost of executive power hovering over, and constraining, judicial power.
While this might be true, it appears that his work has also been powered (pun not intended) by his own abiding love for, and consideration of, human beings – in all their complexity, and in all their simplicity. And, I suppose, it is this love both for humanity in general and for his own chosen vocation that make his body of work so deep, so singular, so accessible – and ultimately, undeniably enduring.
The writer is Senior Lecturer and Acting Director of the Human Rights and Peace Centre (HURIPEC) at the School of Law, Makerere University, where he teaches Constitutional Law and Legal Philosophy.