LOS ELEMENTOS DEL DELITO TIPICIDAD ANTIJURICIDAD Y

One of the sources of discrimination faced by the marginalised groups relates to the imbalances that exist between them and other groups in society, created by history, tradition and customs. Affirmative action is designed as a redress measure to those imbalances by governments mandating preferential treatment be accorded to the marginalised groups inform of targeted programmes, reservations or quotas in the distribution of services or resources. By so doing, affirmative action is aimed at remedying past intentional discrimination facing the marginalised, increasing their participation, and enhancing diversity in society.100 Its origin

dates back to the US Executive Order 10925 issued by President, John F. Kennedy in the 1960s; mandating public policies intended to overcome the effects of past racial discrimination101 because the civil rights laws alone were not enough to remedy then the racial discrimination.

Whereas, how affirmative action is implemented and the aims appear obvious, how in actual sense it addresses the question of equality in society calls for critical

99 _Ibid.

100 _{S Fredman (n14)}

101 _{See:Affirmative Action Timeline |}

Infoplease.comhttp://www.infoplease.com/spot/affirmativetimeline1.html#ixzz2b vlMaE2M

scrutiny. Because, how an affirmative action policy or programme are framed and how the beneficiary groups are demarcated differs from jurisdiction to jurisdiction and as such providing different ways how affirmative action is tackling inequalities102 and as well its effect in a particular jurisdiction. Detailed analysis how affirmative has been framed is beyond the scope of this research. How it is suffices to say that, affirmative action has been framed in three ways: Affirmative action as means of achieving substantive equality rather than a breach of equality guarantee; affirmative action as a breach of the right to equality (the formal equality); and affirmative action as an exception to the prohibition against discrimination (the 'derogation' approach).

Where affirmative action is framed as means of achieving substantive equality rather than a breach of equality, it is viewed as a facet to ameliorate the conditions of disadvantaged individuals or groups.103 In this arrangement, the equality law is directs government to counter discrimination by developing programmes aimed at preventing discriminatory distinctions that impact adversely on the disadvantaged groups and these programmes are viewed as complimentary to the constitutional goal of achieving equality for all. Uganda for example, adopts this approach. In Uganda, affirmative action is a constitutional provision and the constitution further mandates parliament to enact laws to operate it. Consequently, largely Uganda‘s policy and legal framework on disability is based on affirmative action (more discussion on this in chapter four). Although, this framing of the affirmative action appears inconsistent with the expected merit based criterion, it is seen to be widening opportunities for the disadvantaged groups to participate in society and in particular for case of disabled people in Uganda access higher education.

102 _{See S Fredman, ‗Comparative study of anti- discrimination and equality laws of the US,} Canada, South Africa and India,‘ Luxembourg: Office for Official Publications of the European Communities 2012, pgs 63-75. Also S Fredman, ‗Discrimination Law, second edition‘ (Oxford: Oxford University Press, 2011) 237.

103

The clarification made by the Supreme Court of India in the case of State of Kerala v NM

Where affirmative action is seen as a breach of formal equality norm, like in Great Britain, where the equality law is firmly on the basis of equality of opportunity approach, the preferential treatment measures are therefore introduced by way of statutory exceptions.104 Such as a requirement to treat disabled people more favourably than non-disabled people in the direct discrimination provision,105 and on the Public Sector Equality Duty (PSED) provision.106 Even in such exceptions, for higher education, it is arguable that, rarely are higher education admission policies seen to be explicit on the affirmative action. So are commissioned reviews by government on admissions into higher education recommending affirmative action. In fact, these reviews, for example, the Schwartz report107 circumvents affirmative action issue by advising higher education to ensure 'equality of opportunity within the equality laws‘ during admissions and to minimise barriers to admission particularly related to disability. In employment, affirmative action is only limited to those who qualify for a job or promotion108 and is only applicable when there is a tie in the applicants competing and when one is disabled, the chance is given to the disabled person in question.

Generally, affirmative action attracts public criticism and legal challenge on ground that it is not merit based. In particular reference to higher education, public criticisms surfaced in relation to the admission of women to public universities in Uganda109 and legal challenge in the US in relation to race110- the cases of

104 _{See UK Equality Act 2010, section 158.} 105

See UK Equality Act 2010, section 13(3) 106

See UK Equality Act 2010, section 149(4) 107

S Schwartz , ‗Fair Admissions to Higher Education: Recommendations for Good Practice,‘ the Schwarz Report 2004. <Fair admissions to Higher Education: Recommendations for good practice> accessed on 10th March 2010.

108 _{See the Great Britain Equality Act 2010, section 159.}

109 _{S Tamale, ―Gender and Affirmative Action in Post-1995 Uganda: A new Dispensation, or} Business as Usual‖ in J. Oloka Onyango Constitutionalism in Africa: Creating Opportunities,

Facing Challenges (1st Published 2001 Fountain Publishers, Kampala) 223. 110

William C Kidder ‗Affirmative Action in Higher Education: Recent Developments in Litigation, Admissions and Diversity Research‘ A report for the Society of American Law Teachers (SALT) October 2001.

Regents of the University of California v Bakke,111 Grutter v Bollinger112and

Fisher V. University of Texas113 are classic examples. In the Bakke case, the High Court held that a preferential system of affirmative action that uses quotas constitutes reverse discrimination and is therefore invalid, but universities were still permitted to consider race as a factor in admissions. In Grutter, the Supreme Court upheld the right of a university to take race into account when deciding whether or not to allocate a student a place, but held that awarding applicants from ethnic minority extra points was unconstitutional. While in Fisher, the Supreme Court held that universities need more proof of the need for diversity before they can undertake an affirmative action. These judgments mean that although higher education institutions in the US are permitted to pursue affirmative action to achieve diversity on campus, the affirmative action policies should be narrow in their impact and must be justified in each instance as needed for diversity. This interpretation potentially limits the application of affirmative action in higher education.

The limits of affirmative action is that, it does not clarify what public authorities ought to do to attain genuine equality i.e. non-discrimination. Affirmative action only mandates preferential treatment to be taken and actions to be followed thereafter in regards to removing further barriers after entry are not explicit within affirmative action scope. Therefore, affirmative action policy should be enhanced with other equality laws that promote equality of opportunity.

111 _{438 U.S. 265 (1978). This case was brought by a white student, Allen Bukke, who argued that,} the University of Michigan‘s affirmative action strategy was challenged on the grounds that its preference for Afro-Americans breached the Fourteenth Amendment equality guarantee.

112

539 U.S. 306 (2003).The case was brought by three white students who argued that their applications for places at University were turned down.