Acknowledgments: I would like to express my sincere gratitude to everyone in Uganda who agreed to participate in this research, and to everyone who made it possible by assisting with the authorisation processes, and who helped me throughout the various stages of this doctoral research. I would also like to thank Carole Berrih and Bénédicte Fischer and my reviewers for their comments and careful reading, which helped me improve the manuscript.

Introduction

1On 22 February 2000, the Ugandan Parliament passed the law introducing community service orders (CSOs). The text received presidential assent from Yoweri Museveni in December of the same year (Community Service Act 2000, Uganda, Cap 115). However, no national budget was allocated to the implementation of this non-custodial sentence. The Non-Governmental Organisation (NGO) Penal Reform International (PRI), which supported CSO reform, secured funding to cover the salaries and activities of 15 people in charge of implementing CSOs in four pilot districts between October 2001 and January 2003. 788 CSOs were issued during this period (Rumin, 2003). The political and administrative apparatus necessary to make the reform effective was only mobilised at a minimal level.

2More than 20 years later, there are CSO officers in 97 of the country’s 135 districts. Data collected for the 2022/2023 financial year by the Directorate of Community Service, the institution that oversees implementation of the policy, reveal that no CSOs were issued in 28 districts: 11 in the Northern region, 9 in the Eastern region, 5 in the Western region and 3 in the Central region.

3Most of the works on public policies and prisons in Africa emphasises failures, distortions and inadequate resources. This contributes to framing them as subjects for intervention rather than analysis (Enguéléguélé, 2008; Deslaurier, 2019). From this perspective, the limited materialisation of the reform introducing CSOs (Morelle and al., 2018) and the absence of sentences being applied in several parts of the country could be interpreted as being “lack-based”. This study adopts an alternative stance, and shows that gaps between the law and practice may constitute a resource for the making of public action by national actors.

6It would be possible to follow in the footsteps of this body of work and analyse the gaps between the formal legal order and practice as indicators that the introduction of CSO in Uganda has failed. Findings of success or failure are generally formulated as part of the framework of project evaluations funded by international donors, but several scholarly works have also examined the causes of failed transfers (Dolowitz, Marsh, 2000; Delpeuch, Vassileva, 2009). Dolowitz and Marsh proposed a typology that distinguishes three such causes: “uninformed transfer”, in cases where a lack of information about how a policy operates leads to its adoption as is; “incomplete transfer”, where necessary elements are not transferred; and “inappropriate transfer”, where ideological, political, social or economic differences have not been sufficiently taken into account (2000).

7The Ugandan CSO reform does not correspond to any of these types, however. This sentence entered into force following a conventional parliamentary process, after several working meetings involving national officials from the relevant institutions and experts from PRI (PRI Information bulletins, 1993-2003). The fact that local actors were involved throughout all the phases of the CSO policy design invites us to move beyond attributing “failures” to external origins (Darbon, 2003) or to a lack of contextual knowledge (Olivier de Sardan, 2021). Since the proponents of the reform were very well informed as a result of their participation in several conferences and study visits, and since all the constitutive elements of the Zimbabwean model were, in fact, transposed, the CSO reform would, by a process of elimination and based on Dolowitz and Marsh’s typology, fall under the category of an inappropriate transfer.

8Nevertheless, the limitations of this interpretation in terms of transfer failure are manifold. First, the criteria used to assess success or failure are themselves ambiguous: for Dolowitz and Marsh (2000), a transfer may be considered to be successful either when it achieves the objectives set by the actors involved or when it is perceived as such by key actors in the relevant sector. In some cases, however, the reform rests on a working misunderstanding (Sahlins, 1985): actors engaged in the process may pursue diverging aims, as Morelle, Awondo, Birwe and Eyenga (2018) have shown in the case of Cameroon. Second, whether it is “appropriate” or not, this particular analysis of CSO transfer does not explain why some reforms take hold while others do not (Bouagga, 2019), and therefore why this sentence has remained in force in Uganda. Third, the typology does not incorporate the temporal dimension and possible reorientations linked to domestic political dynamics; it therefore leaves duration aside as a factor when a transplant is evaluated (Sabatier, 1986). Fourth, it does not take the initial situation into account: some states have internal structures that facilitate the implementation of the transferred policy, whereas others have an accumulation of inhibiting factors (Delpeuch, 2008).

9Rather than reading this reform through the prism of transfer alone, it should be understood as a fully-fledged public policy-making process (James, Lodge, 2003). James and Lodge emphasise that the reforms that are the outcome of a transfer are subject to the same tensions as any public policy: they may encounter poorly adapted institutional structures, divergent social or cognitive representations, burdensome administrative legacies or unfavourable political and economic dynamics (2003). In Uganda, the limited scope of the transfer is primarily the result of an intentionally weak mobilisation of the national political and administrative apparatus (Allal, 2010). This limited involvement of the central state stems from a compromise that was reached prior to adoption of the law between the coalition promoting the reform and the government. In this context, a holistic approach to public action of the kind proposed by Howlett (2018) makes it possible to avoid reducing any gaps between norms and practices to mere technical shortcomings, and instead invites us to understand them as the product of institutional choices, actor configurations and power relations.

10Because the members of the Interim National Community Service Committee were aware of the lack of political will, they preferred to secure the adoption of a legal text with limited immediate transformative scope. As a result, the legal norm that was adopted is characterised by a threefold disconnection: from national administrative capacities, from dominant cognitive norms regarding “punishing well” (Bouagga in Morelle, Le Marcis, Hornberger, 2021) and from judicial practices that traditionally favour maximum custodial sentences. Over the following twenty years, this legislative text has become a resource for transforming sentencing practices and legitimising the deployment of a judicial institution throughout the country (McCann, 1998).

11This article is situated in the field of the sociology of public action, which seeks a comprehensive understanding of the interplay between actors by taking into account the interests, representations, practices and resources of the stakeholders. From this perspective, law is conceived as a resource actors mobilise during both the mobilisation and implementation phases to transform punitive practices (N’Diaye, 2016). More than just a shared narrative among actors, it tends to make the CSO solution an obvious response to prison overcrowding and poor detention conditions (Delpeuch, Vigour, 2019). By articulating ideas, interests and institutions, this approach makes it possible to understand the conditions under which a legal text becomes effective at the intersection of cognitive and strategic dynamics (Surel, 2000). The meaning of the law, far from being frozen at the moment it is passed, is the subject of ongoing interpretative struggles that begin well before it is put on the agenda and continue through its phases of appropriation, adaptation and evaluation (Caillosse, 2001).

12The argument I advance here is that the adoption of a disconnected legal norm for CSOs in Uganda, whose effectiveness has been slow and gradual, is neither a counterproductive effect nor an indication of reform failure. On the contrary, for both the proponents of the reform, who were concerned with finding an alternative to imprisonment in positive law, and for national officials, who have mobilised the text of the law to progressively structure a new judicial institution, it is an accepted strategic horizon. This dynamic supports scholarship that calls for the law to be taken seriously when analysing public action in Africa by showing how a formal norm can be invested in, reappropriated and used as a resource to bring a public policy into existence despite the absence of massive state mobilisation (Andreetta, N’Diaye, 2021).

13Although this reflection is included in a thematic issue devoted to the African continent, it also seeks to use the Ugandan reform to shed light on global dynamics (Morelle, Le Marcis, Hornberger, 2021). The disparities that have been noted in the implementation of this alternative sentence are not attributable to specifically African features. Research conducted in other contexts has also highlighted a significant geographical heterogeneity in the application of community-based sanctions because of the limited judicialisation of probation measures and the considerable discretionary power left to magistrates as to how to apply them (O’Hara, Rogan, 2015; Ollivon, 2020). More broadly, what is at stake here is the question of the conditions under which non-custodial sentences become institutionalised, given that they are based on a punitive paradigm oriented towards rehabilitation (Carvajal Sánchez, 2009).

14The first section of the article describes the genesis of the CSO reform in Uganda. It analyses the strategies of the actors who supported the adoption of a legal rule that was disconnected from national capacities, and goes on to examine the resistance it generated as a result of its misalignment with the dominant representations of punishment. The second part shows how the gaps between formal law and practice were interpreted and invested in different ways by studying the role of law as a lever for the institutionalisation of a new form of sentencing on the one hand, and the plurality of purposes projected by the various actors around this policy on the other.

Methodological box

The data I have used have been taken from a doctoral research project comparing CSO reforms in Kenya and Uganda. Three periods of fieldwork were conducted in Uganda between April 2022 and May 2024 for a total period of five months. During an initial exploratory fieldwork phase, around ten unrecorded interviews were conducted, primarily with NGO representatives, to test and refine the research design. This preliminary phase also made it possible to begin the processes required to obtain official research authorisation, as requested by the Directorate of Community Service.

Obtaining this authorisation required three separate approvals of the project: by an academic ethics committee, by the competent national body – the Uganda National Council for Science and Technology (UNCST) – and by the supervisory ministry of the institution being studied (the Ministry of Internal Affairs). The ethics committee of the Department of Social Sciences at Makerere University required a particularly comprehensive dossier: a detailed presentation of the research project, interview guides and consent forms, a research timetable and provisional budget, an anti-plagiarism declaration, a risk management plan relating to Ebola and Covid-19, a curriculum vitae, a submission form. A detailed online application form also needed to be completed. The project was officially authorised by the ethics committee on 5 June 2023 after around twenty comments had been incorporated. It was then approved by the Permanent Secretary of the Ministry of Internal Affairs subject to a number of conditions (including the validation of interviewees by the Directorate of Community Service) before the UNCST granted its final authorisation on 13 July 2023. This entire procedure, which began in October 2022, cost USD 700, which was covered by my laboratory, LAM, whom I would like to thank for their support.

Throughout, I found it difficult to decipher the implicit expectations underlying these bureaucratic procedures. I approached numerous individuals about this: some suggested that the slowness of the process was linked to expectations that bribes would be paid, while other researchers reported obtaining authorisation without having to make unofficial payments. No informal payment was made in my case. These issues led me to reorient my research protocol (Morelle, Le Marcis, 2022). While awaiting the research permit, I spent six weeks observing public hearings in three courts in the capital in order to familiarise myself with their functioning. This prolonged immersion – which proved to be an invaluable point of entry for understanding justice as it is actually practiced — forms part of an ethnographic approach that represents a departure from the dominant normative perspectives (Martin, Jefferson, 2019). Once I had received the authorisations, my presence in the field facilitated my requests for interviews and access to judicial documents (CSO registers, sentencing orders, etc.).

This article draws on interviews conducted with five officials from the Directorate of Community Service, four members of the National Community Service Committee (two serving and two retired), seven magistrates and four CSO officers. Despite the official authorisations, however, there was a persisting sense of mistrust: five of them refused to be quoted and in one case even to be recorded. In order to reconcile the need to substantiate the evidence with the protection of the participants’ personal data, these interviews are cited in an anonymised form, indicating only the respondent’s position and the date of the interview. The material collected was supplemented by an analysis of various documentary sources: grey literature produced by the Directorate of Community Service (notably annual reports from 2014-2015 onwards), and documents issued by national institutions (ministries), international donors (World Bank) and NGOs (Penal Reform International). The quotations correspond to the original language of the source documents, except for those translated from French, which are noted as “author’s translation.”

1. Adopting a Disconnected Norm: From Mobilisation to Reception

15The CSO policy can be understood as a space of confrontation among actors that is structured by their interests and representations (Surel, 2000; Enguéléguélé, 2008). An analysis of the production of the legal norm and its reception shows that the disconnected nature of the legislative text is not the result of dysfunction but of strategic interactions. The absence of resources for implementing it reflects the structural and deliberate disengagement of the state from this policy, which is an attempt to challenge the punitive paradigm of incarceration.

1.1. The CSO Reform: Law as a Strategic Resource and Point of Convergence

18It began around a reflection on how “to improve prison conditions, and to overcome the problems posed by a growing prison population, lack of resources and all sorts of diseases” (PRI newsletter, July 1996, 5). It was consolidated by the organisation of the “All Africa Seminar on Prison Conditions” in Kampala from 19 to 21 September 1996. The event was coordinated by PRI at the request of the ACHPR, and was organised in partnership with the Prison Reform Commission chaired by Joseph Etima, who represented the government, as well as several national organisations, including FHRI, and international organisations such as the International Committee of the Red Cross. More than 130 delegates from 40 African countries took part.

20This seminar offered a strategic opportunity for advocates of CSO to mobilise members of the government. In his opening address, Bart M. Katureebe, the Minister of Justice and Attorney-General, endorsed the reform project. After emphasising that the 1995 constitutional provision limiting the duration of pre-trial detention offered a potential avenue for reducing prison overcrowding, he stated: “Another solution for reducing chronic prison overcrowding in Uganda would be to introduce community service as an alternative to imprisonment.” (PRI, 1997, 19; author’s translation). In his closing speech, the Minister of State, Colonel William Omaria, stressed that “The current Government of the Republic of Uganda remains firmly committed to promoting human rights and fundamental freedoms.” (PRI, 1997, 97; author’s translation). He concluded by underlining that “the promotion of alternatives to imprisonment […] is of vital importance” (PRI, 1997, 100; author’s translation).

21The reform was not adopted under the terms initially formulated by the members of the Interim National Community Service Committee. After presenting itself as an activist state during the Kampala seminar, the stance adopted by the government was to actively provide a strict framework for the reform and set the conditions for it (Eboko, 2015). Despite the declared political will, reservations about the relevance and severity of this form of punishment persisted. In 1998, following the first reading of the bill, the executive required that a certificate of budgetary viability be issued, invoking Article 93 of the Constitution, which is formally reserved for private members’ bills. The law was thus used as a constraint: legal norms can, in fact, be used to restrict the transformation of institutional relations (McCann, 1998). Examination of the bill was suspended until a compromise was reached on a form of implementation that would involve no public funding, thereby reshaping the very scope of the reform.

22To meet the budgetary certificate requirement, the proponents of the reform had to demonstrate that CSOs would not require public resources. The members of the Interim Committee proposed a gradual implementation: first through pilot projects funded by the NGO PRI, and then offset by the savings on prison expenditure. Continuing the legislative process thus meant accepting the disengagement of the political and administrative apparatus in favour of a reform driven by external funding, with an underlying logic of delegating the humanisation of punishment (Ould Aklouche, 2025).

24Adoption of the CSO Act was thus the result of a negotiated compromise between the Ugandan executive and the advocacy coalition. Despite disagreements over the purposes of the reform, the agreement materialised in a text that conferred reciprocal legitimacy on both the reform’s proponents and the Museveni regime. This consensus rested on a working misunderstanding (Sahlins, 1985): the same legal instrument served divergent objectives. For the government, the reform primarily fulfilled a symbolic function by projecting an image of commitment to human rights (Bouagga in Morelle, Le Marcis, Hornberger, 2021) in line with the expectations of democratisation and structural adjustment promoted by international donors (Torrenté, 1999). For the members of the Interim Committee, the text was a central resource for developing a penal policy aimed at limiting recourse to imprisonment for minor offences, despite a framework imposed by the state that restricted its scope (McCann, 1998). It thus enshrined a legally defined sentence that remained disconnected from both its practical terms of implementation and the dominant representations of “punishing well” (Bouagga in Morelle, Le Marcis, Hornberger, 2021).

1.2. “I Thought It Was a Joke”: A Sentence at Odds with Dominant Punitive Representations

25When the CSO policy was first implemented, the logics underpinning this form of sentence appeared to be profoundly disconnected from the cognitive norms by which a “proper punishment” is a prison sentence. Even today, the limited use of CSOs is rooted in social representations that hold that ensuring that justice is done is synonymous with incarceration. In almost all the interviews I conducted, the respondents acknowledged that the main obstacle to the implementation of CSOs was that magistrates, actors in the criminal justice chain and citizens more generally did not consider CSOs to be a legitimate punishment.

Naturally most people feel when someone is sent back home, they’ve not been punished enough. The majority want to see you incarcerated, for them to get that satisfaction that this person has been, you know, punished. Justice has been done. So unless they understand what this is about, they cannot appreciate [community service] that much. But when they understand, they get to appreciate.
(Interview with an official from the Directorate of Community Service, 19/07/2023)

26By comparison with imprisonment, which remains the penalty of reference, CSOs are described as a lenient sentence and a soft punishment.

27The predominance of imprisonment in Uganda’s penal arsenal can first be explained by historical factors. It is a legacy of British colonial rule, during which the criminal justice system relied primarily on imprisonment, with the occasional use of fines, which were less costly to administer (Coldham, 2000). In continuity with colonial practices, recourse to incarceration by state authorities intensified after independence, and it became increasingly arbitrary and violent under Obote I and subsequent regimes (Bruce-Lockhart, 2022). Prison thus became an instrument of power to “serve the coercive, material, and symbolic needs of state power” (Bruce-Lockhart, 2022, 133).

28The gap between the legal norm that governs the application of CSOs and the cognitive norms that define legitimate sanctions was particularly pronounced at the onset of the implementation. Several of the professionals who had been recruited for the pilot phase shared this sense of disconnection. Shifa Katutu Mpabaisi, Director of the Social Reintegration Department, recalls the first time she heard about CSOs while listening to a radio programme following the Kampala seminar:

I found it very strange, and everybody was like getting these criminals to work within the communities. You know, we have all grown up in a society where we believe if you commit an offence, the answer is prison incarceration. So it sounded strange… […] because of the way we had always looked at punishment and imprisonment. Punishment and imprisonment were synonymous with each other at the time.
(Interview, 06/05/2024)

29Despite her initial scepticism, she applied for the position of district coordinator in Masindi, which offered more attractive working conditions than her post as a human resources officer in the same district. She quickly changed her original opinion when she observed that offenders were serving their sentences, that magistrates were imposing CSOs, and that citizens accepted them when awareness-raising efforts were undertaken, thereby confirming that CSOs could function in Uganda. A similar trajectory can be observed in the case of Flavia Anglin Senoga, who was a magistrate at the time of adoption and later Chair of the National Committee between 2011 and 2021. She was initially sceptical about giving offenders a second chance, but she later acknowledged the benefits of CSOs in terms of reducing prison congestion and avoiding the penalisation of families (interview, 20/07/2023).

30One of the major concerns among professionals and reform advocates was that the absence of detention for convicted individuals might trigger forms of mob justice, including lynching.

At first the population feared to see criminals back in their community. The sensitisation activity managed to clear this misunderstanding. The sensitisation has been taken very seriously, since mob justice is reported as a common phenomenon in Uganda. In the end, all the fears were not grounded and no incidents were accounted in the pilot districts
(Rumin, 2003, 22)

32Representations that equate justice with incarceration are not confined to the general population; they are also shared by magistrates.

It appears from the interviews that some reluctance amongst the magistrate’s community is real and will necessitate substantial action to sensitise them. […] Actually they believe that CS is a soft sentence and that sending people to jail make them be perceived as tough and respected.
(Rumin, 2003, 22)

33These representations weigh all the more heavily because they are expressed in a context in which the legal text leaves magistrates with wide discretion: “Where a person is convicted of a minor offence, the court may, instead of sentencing that person to prison, make a community service order.” (Community Service Act 2000, Uganda, Cap 115). Although there is some debate over the relevance of the notion of street-level bureaucrats for analysing magistrates (Biland, Steinmetz, 2018), this approach makes it possible to link the discretion they enjoy when it comes to applying CSOs to implementation of the policy, thereby highlighting their influence in its construction (Lipsky, 1980). In the absence of any obligation to impose CSOs, magistrates effectively have a right not to apply them, which gives them a blocking capacity and turns them into “veto players” (Tsebelis, 2000).

34Nearly 20 years later, several magistrates still deny CSOs their place in the arsenal of legitimate sentences. Some draw on the functions traditionally associated with punishment to argue that because CSOs are insufficiently punitive, they lack a deterrent effect. A magistrate serving in the Northern region stated that she does not “believe in community service” because, unlike a fine – which has an impact on household finances and requires relatives to become involved – CSOs do not affect the offender enough to prevent reoffending (interview, 14/05/2024). For others, the non-application of CSOs reflects a concern not to be perceived as lenient so they are not suspected of corruption. As one magistrate in Kampala summarised it: “They just believe that justice is prison. Nothing less, nothing more. When someone is arrested it is prison. So when you give an option of community service there is no justice served. The judicial officer has been compromised, corruption that’s it” (interview, 14/07/2023). This issue is all the more sensitive given that magistrates in Uganda are regularly transferred between courts, which means that they are constantly building their reputations.

2. Interpreting and Making Use of Gaps between the Formal and Real Legal Orders

36This second part builds on scholarship that considers gaps between law and practice not as failures, but as spaces for interpretation, appropriation and strategic projection (Cover, 1983; McCann, 1998). The analysis in the first section highlights the ways in which these gaps have been mobilised by national actors as levers for the institutionalisation of CSOs (Surel, 2000). The second section goes on to show that these gaps may be interpreted as signs of failure by external actors, raising the question of the standards applied to evaluate a policy when several strategic readings of the legal text coexist.

2.1. The Law as a Resource for Building a Judicial Institution

37The development of the institution of CSOs proceeded in fits and starts, based on a gradual dynamic driven by the strategic actions of the officials responsible for enforcing this sentence (Streeck, Thelen, 2005). As one of them emphasised, “With government, you often go step by step, incrementally. You’re always running to scale at once, but in practice, you move gradually” (anonymised interview, 25/07/2023). CSOs evolved from a pilot project limited to four districts (2001-2003) to a nationwide programme in 2004, before becoming a department of the Ministry of Internal Affairs in 2008, and finally a directorate in 2016. Its integration into the institutional landscape was the outcome of a long process of advocacy by the reform’s proponents and later by the professionals responsible for its implementation, aimed at ensuring that the legal text became effective. The strategy used to this end was twofold: to develop the structures responsible for implementation and to deploy officers across the entire country. From this perspective, the gaps between formal and real legal orders act as resources for building the judicial institution. The development of the CSO institution still rest today on a logic of compliance, in the sense of an alignment with the law driven by the agents responsible for its implementation (Surel, 2018).

38The creation of a National Community Service Committee in Section 10 of the Community Service Act (2000), was a decisive resource for anchoring the policy. Inspired by the Zimbabwean model, this legal provision established an inter-institutional structure made up of representatives from the judiciary, the prison service, the police, the relevant ministries and civil society. It provides for a coordination, supervision and advisory function aimed at improving implementation of the sentence. It gradually acquired operational reality and became a mobilisation tool for the Directorate of Community Service. As Dr Pamela Tibihikirra Kalyegira, a member of the Committee representing the Uganda Law Reform Commission, notes:

Each of the members is a channel of mobilisation of institutions that are key for the development of community service. We meet every three months, the directorate involves us a lot – reading reports, integrating our feedback, organising field visits to raise awareness or assess implementation.
(Interview, 01/08/2023)

39The Committee also plays a strategic role in budgetary discussions, serving as an intermediary between the Directorate and the Ministry. As Judge Flavia Anglin Senoga, former Chair of the Committee, explains: “You show them what is necessary and what they need to do. [...] When they understand and they find it fit, then when they are making their budget, they put what is necessary for the directorate.” (Interview, 20/07/2023). By defining a permanent structure, the legal text thus provides a lever for gradual institutionalisation.

41At the end of the pilot phase, the EU funded the programme for an additional year to ensure a transition to management by the national politico-administrative authorities. This transition was supervised by Rebecca Nyonyi, a former official at the Ministry of Gender and Labour, who applied for the position of National Coordinator. In September 2003, the government agreed to assume responsibility for the programme, and CSOs were extended nationwide in 2004. This expansion of implementation was formalised through the publication of delegated legislation (General Notice).

In exercise of the powers conferred upon the Chief Justice by section 9(1) of the Community Service Act of 2000, it is hereby notified that:

The High Court of Uganda and all Subordinate Courts hereto under the Magistrates’ Courts Act shall commence issuing Community Service Orders as required by law as they deem appropriate with effect from the date of this notice.

Dated at Kampala this 3rd of March 2004.

B.J. Odoki - Chief Justice
(The Uganda Gazette, 12 March 2004. Vol XCVII No. 11, General Notice No. 80 of 2004)

42Once again, the legal norm was issued before the financial, administrative and human resources necessary for its implementation had been secured. The law thus operated as a symbolic anchor authorising the application of CSOs, even though the policy had neither a dedicated budget between 2004 and 2008 nor any institutional attachment. The CSO programme was hosted by Danida, the Danish development agency. Of the 15 professionals initially recruited, 12 continued to work on a voluntary basis in the hope that the CSO programme would be transformed into a department of the Ministry of Internal Affairs, which would enable them to secure a budget and obtain civil servant status.

43Lobbying efforts directed at governmental and institutional actors coordinated by Rebecca Nyonyi led to the integration of the programme as a department in the Ministry of Internal Affairs in 2008. As early as 2001, members of the National Committee and the Secretariat had identified this Ministry as the most powerful – and therefore the most strategic – way of securing funding. Thanks to this integration, the recruitment of officers was channelled through the Ministry of Public Service, which manages civil servants’ contracts, and the budget was approved by Parliament. Paul Kintu succeeded Rebecca Nyonyi on her retirement and was appointed Director of the CSO Department. A graduate of Makerere Business School and holder of a PhD in Public Management from the Maastricht School of Management, he specialised in analysing the performance of the Ugandan judicial system.

44At the time the programme became a department, 21 professionals were responsible for implementing CSOs. Supervision of sentences at the local level relied on Probation, Social and Welfare Officers (PSWOs), who were already deployed in each district. This arrangement quickly proved unsustainable: their workload was already substantial, and the nature of their duties meant that they were frequently absent from the courts, which prevented them from coordinating the application of CSOs. In the mid-2010s, a public service restructuring plan under discussion created a window of opportunity to renegotiate the structure of the CSO policy. The department seized this opportunity to propose the establishment of a CSO officer in each of the 112 districts.

46In 2023, the programme covered 97 of the 136 districts, with 85 officers in post. Faced with the continuous increase in the number of districts – rising from 112 to 136 between the approval of the current structure and 2023 – the Directorate is seeking to link the development of the CSO institution with that of the judicial apparatus. In a context in which the increase in the number of districts is part of a broader strategy of state territorialisation (Singiza, de Visser, 2011), programme managers now advocate a deployment strategy based on the judicial map.

Actually, we are now negotiating for one person per Court. [...] Community service is a court-based function. That’s why we need a community service officer full-time at every point. [...] We made the justification of the need to be at every court, meaning that we need a minimum of 394 community service officers.
(Anonymised interview with an official from the Directorate, 07/05/2024)

47This strategy seeks to anchor the institutional embedding of CSOs in the concrete presence of the state across territories by following the expansion of the judicial network rather than that of administrative boundaries.

48A study of the role of the law in the making of CSO policy thus makes it possible to convey the interests of the actors and the role of institutions in the gradual anchoring of a new punitive paradigm (Surel, 2000). During the implementation phase, the law operates as a neutral resource that legitimises institutionalisation, while the gaps between the formal legal order and practical realities themselves become resources for action: “The void is an opportunity, a challenge and a resource for all actors” (N’Diaye, 2016, 291; author’s translation). The legal text is a resource for actors who invest in the institutionalisation of the sentence out of professional interest, both from above, through its gradual integration into the state apparatus, and from below, through their continued commitment to its implementation. Here, the law exerts a productive force: despite the gradual application of the text, the principle of the uniformity of the law legitimises the deployment of public action up to the time when the entire country is covered.

2.2. Behind the Legal Text: A Diversity of Ambitions for CSO Policy

49The adoption of the CSO Act in Uganda was the result of a compromise between actors advancing heterogeneous projects for whom the text did not have the same scope or pursue the same objectives. This diversity of interpretations cannot be explained solely by a misunderstanding of the legal content of the text; rather, it reflects a struggle over the very definition of the penal policy to be pursued (Caillosse, 2001). The purposes associated with the CSO policy vary according to the interests, representations and practices of the actors involved: “The range of meaning that may be given to every norm – the norm’s interpretability – is defined, therefore, both by a legal text, which objectifies the demand, and by the multiplicity of implicit and explicit commitments that go with it.” (Cover, 1983, 46).

50This plurality of interpretations raises the central question of which indicators should be retained to assess the effects of CSO policy. Should the focus be on the gaps between the legal text and its implementation in order to highlight the absence of uniformity in sentencing across the country or on measuring the gap between the effects achieved and those initially expected by evaluating the impact of CSOs on the prison population? Or should attention be directed to the use of the sentence by magistrates to determine whether their practices comply with the legal norm? And why should one not examine the extent to which the sentence contributes to changing mentalities, challenging the idea that only imprisonment can be a legitimate punishment? In other words, in the absence of predefined indicators for this policy, behind any attempt at evaluation there lies a position on what the sentence is supposed to achieve.

52Beyond the adoption phase, those responsible for implementation did not apply the same priorities as the initial proponents of the reform. Officials at the head office continue to attribute a diversity of objectives to CSO policy. The Director clearly distinguishes the prison decongestion targets assigned to the programme from his own priorities, which are ensuring a physical presence in every court, gaining public trust and changing the lives of those sentenced to CSOs. This stance reflects a form of depoliticisation of the sentence, and it is shared by those who observe pragmatically that: “without us, prison cannot cope” (anonymised interview, 31/07/2023). Others place greater emphasis on the quality of execution of the sentence than on the number of orders issued. Thus, Judge Flavia Senoga Anglin stated at a workshop for magistrates in 2012:

In the past the programme has focused on advocating for and popularising the use of community service as an alternative to custodial sentences, with little emphasis on the rehabilitative and reintegration aspects of penal sanctions. Now is the time to run away from numbers and concentrate on the quality of the orders issued.
(2012, Training of Magistrates and State Attorneys on implementation of Community Service in Uganda. Workshop report, 1-86)

53This position is shared by Shifa Katutu Mpabaisi, Head of the Social Reintegration Department, when she emphasises:

We are diverting from prisons and for us once we got those orders, we would clap our hands, yes and say: yes, we are working. We focused on the numbers. Over time we realised the numbers are not enough. The quality of the orders is more important even than the numbers.
(Interview, 06/05/2024)

54This shift from a quantitative to a qualitative focus reflects a gradual change in perspective within the administration.

57For the national actors involved in implementation, on the other hand, community service is considered to be a success. They do not evaluate it against the initial objectives of the reform, but in the light of the trajectory covered and the initial conditions. Rebecca Nyonyi, National Coordinator between 2004 and 2008, stated: “I’m also very impressed because it was long but they had to start from scratch. Yes. And now it’s still there. And it’s way bigger than before. And it goes slowly, slowly. But we arrived at the... the institution that was planning the law.” Another interviewee affirmed: “But we are, we are optimistic. We shall reach there because when you look at when we start, we started 10, now we are talking of 100” (anonymised interview, 19/07/2023). These assessments reflect a reading in terms of the gradual construction of a judicial institution inscribed over the long term. There are several indicators that lend support to this view: in 2023, 66% of sentences imposed were CSOs.

59Consequently, to label community service as a failure on the grounds that it has not reduced the prison population amounts to adopting a reductive interpretation based on partial criteria and disconnected from the dynamics specific to the construction of a judicial institution. Any evaluation rests on an implicit position on what the sentence is supposed to achieve. This is why the analysis of this policy must adopt a holistic approach attentive to the debates, objectives, framings and constraints that punctuate each phase of its trajectory (Howlett, 2018).

Conclusion

60An analysis of the CSO reform in Uganda as a process of public action makes it possible to reconsider the gaps between law and practice, not as indicators of dysfunction, but as the product of situated actor configurations and arbitrations (James, Lodge, 2003).

61First, the disconnection between the legal norm and the means of implementation was the result of an early withdrawal on the part of the state. As soon as the 1999 parliamentary debates, the proponents of the reform accepted the absence of a budgetary commitment in exchange for adoption of the law, which was passed in February 2000. Since then, the partial implementation of the CSO policy has been gradually rolled out across the country as new human and financial resources have been secured by the institution in charge of CSOs.

62Second, the sentence is deliberately at odds with national punitive representations and practices, which are centred around incarceration. The legal text contributes to normalising an alternative to imprisonment and establishes a horizon its proponents regard as desirable (Cover, 1983) without relying on social or institutional consensus.

63Third, the gap between the proclaimed objective of decarceration and the expected results came as no surprise to the proponents of CSO reform. Although this objective was considered to be unattainable, it was maintained for strategic purposes in order to secure adoption of the law by the political authorities. According to a logic of working misunderstanding (Sahlins, 1985), the reform enabled both the Ugandan regime to project a reformist image and NGOs to maintain their human-rights-based framing.

64These gaps highlight the central role of law in public action. The limited initial materialisation of the reform does not disqualify the legal norm. As Jacques Caillosse reminds us, “What determines the validity of a legal prescription is not the fact that it is observed, but that certain activities are oriented in accordance with it” (2001, 45; author’s translation). The law thus acts as a structuring resource (McCann, 1998) – including in African contexts (Andreetta, N’Diaye, 2021) – for transforming sentencing practices based around imprisonment for minor offences.

65The gradual development of the institution responsible for CSOs follows a logic of progressive compliance with the requirements of the legal text (Surel, 2018). Contrary to the initial discourses, which were framed around human rights, the law, which is considered to be neutral facilitated the adherence of justice professionals, who were attracted by the statutory and institutional opportunities the reform offered.

66Rather than analysing reforms in terms of success or failure, there is a third approach, which consists in examining the plurality of ambitions that accompany a legal text and the different uses stakeholders make of it. It illustrates that “Human rights therefore do not have imperative effects of success or failure as formally prescribed. They rather have ambiguous, accumulative and contingent effects and it is in the mix between different repertories of norms that reform effects manifest themselves in practice” (Martin, 2014, 48). Several inhibiting factors, including state withdrawal, a discontinuity of funding, and the weight of punitive paradigms, slow the general spread of community service down, but do not interrupt its implementation.

67The analysis underscores the importance of taking the long-term temporality of institutionalisation, the delayed effects of the norm and the social conditions of its reception into consideration. The Ugandan case shows that although the state partially withdrew, it has remained part of an actor configuration marked by a dynamic of bottom-up appropriation. The struggle over the meaning of the legal text and the mandate of the institution illustrates that the evaluation of a policy cannot be reduced to measuring a gap against a prescriptive ideal: it requires a dynamic reading of the power relations surrounding the reform process itself.