The
constitution is a set of rules expressing the needs and aspirations of the
people. It is a legal and normative framework that regulates and governs a
country. It often addresses several aspects including the relations between the
people and their structures of government and the relationship between various
organs of government. It is often considered the supreme law of the land such
that any other law (or custom), which is inconsistent with that law or custom
is to the extent of its inconsistency treated as null and void, and the supreme
law shall prevail. In legal theory, the constitution has been described as the
grand norm and that all other laws derive their validity from this supreme
norm.
Why we study constitutional history
We
study constitutional history because we want to look at how common society
evolved especially as regards its structures of government and the body of laws
that have existed over a period of time. Further in order to assess the
present, we need to look at our past, learn from the failures and successes and
be able to provide reform for the future. The necessity of studying
constitutional history is in fact apparent from the preamble to the 1995
constitution which provides inter alia,
recalling our history which has been characterized by political and
constitutional instability committed to building a better future by
establishing a socio-economic and political structure through a popular and
durable national constitution based on
principles of unity, peace, equality, democracy, freedom, social justice and
progress.
Since
all laws derive from the constitution as the fundamental law, it is necessary
to examine the manner in which the constitution is itself derived and enacted.
We
study constitutional history because the concepts and principles that are
central to constitutional law for instance separation of powers, independence
of the judiciary, parliamentary sovereignty, human rights can only be
appreciated against their origins in the Anglo-American tradition and their evolution
and appreciation in the history of Uganda as a modern state.
Origins of the Ideas of the Constitution
The
ideas of the constitution in the various forms have their origins traceable as
early as the antiquity, through the medieval era in Europe
to the political thinking and events of the 17th and 18th
century. In the period of antiquity ancient Greece with its scholars such as
Aristotle, Socrates and Plato gave us the idea of modern state and government.
The city – state (polis) was in Aristotle’s view to be of such a size that
allowed participation of all citizens in government and thus the concept of
direct democracy is no longer possible in modern large states and has been
replaced by the concept of representative democracy.
Furthermore,
in the open life of market squares, democratic ideas of freedom of assembly and
association expression and conscience and equality evolved. Ancient Rome gave birth to several constitutional ideas including
that of the modern parliament and perhaps more significantly the idea of
citizenship by defining who was a citizen of Rome and the duties and rights that attached
to citizenship.
The
medieval era in Europe was essentially a
feudal one characterized by feudal lords and noblemen and merchants and serfs
and was basically founded on agriculture and trade. It was a period of
absolutism in the power of the noblemen and feudal lords over the lives and
liberties of serfs as well as taxation of trade. The influence of Christianity
during the period also saw the conflict between church and the state. During
this period, there were developments to restrain
the absolutism in the powers of noblemen and feudal lords. One of these
developments occurred in the 13th century in England in 1215 in the form of Magna Carta, which often recognized as
the first document in the process of establishment of constitutional states in Europe. It contains several clauses but the most
significant were.
i) The right of the
individual to trial by the jury
ii)
The
writ of Habeas Corpus.
These
two clauses sought to restrain the power of the noblemen and feudal lords to
arbitrarily detain people by requiring a trial by jury, the Magna Carta gave
birth to the modern concept of due process or the right to a fair trial. On the
other hand by introducing the wit of Habeas Corpus, it guaranteed the right to
personal liberty.
Evolution of a Constitutional State in Uganda
The
scramble for Africa, which pitted the major European powers of the time against
each other, was eventually settled through an international conference in Berlin in 1884. Prior to
the Berlin conference, the powers had nonetheless already secured spheres of
influence through the activities of missionaries, explorers and charted
companies and the conference only served to give affirmation to the demarcation
of territories. In E. Africa, the source of the Nile
and the economic as well as strategic interests had already fuelled colonial
rivalry. The rivalry in Uganda
was however on the outset in the character of religion and whose intensities
would threaten social order within the territory particularly Buganda. The protestant and
catholic missionary groups were engaged in a religious rivalry, which defined
the politics and the balance of
power between Britain and France.
The religious group that emerged dominant was the Protestants and has since
remained a dominant force in the political evolution of the colonial and
postcolonial state in Uganda.
The religious factor has permeated the political life (in particular political
parties) as well as socio-economic aspects (e.g schools, hospitals etc) of Uganda’s
history even up to the present day. It is to be noted that the Amin influence itself gave birth to
the minority religion of Islam and which in the Muslims were to have a dominant
role. It’s therefore evident that
from the very beginning of the emergence
of Uganda as a
constitution/state religion has permeated the socio-economic and political
digest of Uganda
and have since been inter-related.
The
religious factor was in its earliest from prominent in the attempt to raise counts as well as wining favours of
the Kabaka in Buganda.
Eventually after the settlement of religious conferences in Buganda and after a brief period of the
administration of the Imperial British East Africa Company and the subduing of Bunyoro’s Kabalega and Buganda’s
Mwanga. The British flag was erected in Uganda
for the first time on 1st
April, 1893 at Fort
Lugard, Old Kampala hill.
The protectorate was declared a year later and between 1894 and 1900, the
British consolidated their dominion. In 1900, the British entered into an
agreement with Buganda
called the (B) Uganda Agreement whose significance was to pervade Uganda’s
colonial and post-independence periods in both political and constitutional
terms. The 1900 Agreement is largely significant to a number of respects.
i) It was the first of its kind in Uganda and consequently led to
other agreements with kingdom areas such as Toro (1900), Ankole (1901 and 1941)
and Bunyoro (1933 and 1937). In the latter part of the colonial period, another
agreement would be concluded with Buganda in 1955.
ii) It introduced indirect rule as a policy of colonial
administration as it established and confirmed British over rule over Buganda
with the Kabaka as the political ruler although in fact relegated to a status
of a puppet.
iii) It tended to give Buganda a privileged status in
comparison to the other parts of the protectorate. This was in spite of
provisions to the contrary.
iv) It confirmed the territory and boundaries of Buganda as a kingdom.
v) It introduced the first instances of formal political
government and thus it is often regarded as the first constitutional instrument
in Uganda’s
instrument.
The 1900 Buganda Agreement, its Provisions
and their Significance.
The Buganda Agreement was
signed on 10th
March 1900 between Sir Harry Johnston
as His Majesty’s special
commissioner and the regents (and chiefs) including sir Appollo
Kaggwa, Stansilas Mugwanya and
Nuwa Mbogo on behalf of the infant king Chwa II.
The Agreement contained 22
clauses and the majority of which were to be of profound
significance of Buganda in particular and the protectorate of Uganda
as whole.
Article 1 of the agreement demarcated
the boundaries and laid out the territory of the
kingdom of Buganda. In so doing, it established
the geographical, political and
administrative jurisdiction of
the kingdom. This had a number of ramifications:
i) It placed a restraint on the expansionist tendencies of Buganda
by clearly defining the extent of its territory.
ii) It defined the extent to which the jurisdiction of the
Kabaka’s government went in terms of legislative, judicial, political and
administrative competence.
Kazaraine v The Lukiiko [1963] E.A 472
nb highlights some of the problems of jurisdiction.
Article 9 which laid out the
administrative units /counties of Buganda. The agreement
confirmed the kingdom as the
primary entry in Uganda
for the control of the rest of the
protectorate territory. It is
significant that within the boundary demarcated was territory
which belonged to Bunyoro and
had been given to Buganda
by the colonial government
for its assistance to the defeat and pacification of Bunyoro. This
territory consisting of 7
of the counties of Bunyoro and
remained a contentious issue particularly between
Buganda and Bunyoro throughout the
political and constitutional existence of the
protectorate and the immediate
post-independent Uganda. The lost counties issue
would
be reflected on a number of
events, judicial decisions and constitutional
developments including.
- The signing of the 1933 and 1937 Bunuyoro Agreement where
Bunyoro raised the question of the return of its territories.
- The Lancaster and Marlborough conferences in 1961 and
1962, Bunyoro raised the issue and the Morrison Commission was formed.
- The Kazaraine case in 1963.
- 1964 referendum on lost counties
- Kabaka’s Government
v AG of Uganda
(1964)
(Challenged the constitutionality of the referendum)
- Constitution of Uganda Amendment Act No.36/1964.
Article 2 provided that the Kabaka and
the Chiefs of Buganda agreed to forfeit the
collection of tribute form
neighbouring provinces in favour of his majesty’s government.
In this provision and others,
the agreement recognized the transfer of economic
rights as an objective of the
colonial state (cross reference with article
4, 9, 12, 15, 16 and 17).
Article 3 stipulated that Buganda
would rank as a province of equal standing with any of the other provinces in
the protectorate (to which it may be divided). Refer to article 1 of the 1902
Order in Council. The intention of article 5 was to ensure that Buganda did not
play any special or privileged status in the protectorate in comparison to the
other parts or provinces while this was latter of the agreement, the spirit of
it was to in fact give Buganda an enhanced position which would eventually lead
to struggles and conflicts between Buganda and the rest of Uganda which
characterized the protectorate and immediate post-independent periods. Buganda
became involved in struggles to enhance its position or even to assert its
independence and these would become more apparent in the period leading to
independence and the post independence period.
-
1953
– 55 Kabaka crisis.
-
The
1955 Buganda Agreement (gave Buganda
a format of electing representatives to the Leg co.)
-
The
1958 memorandum by Buganda
to her Majesty’s government.
-
1958
– 1991, boycott of Leg co elections.
-
Katiikiro
of Buganda v Ag. Of Uganda
[1959] E. A 38.
-
Lancaster
and Marlborough conference 1961 and 1962.
Article 4 stipulated that the revenue of
Buganda
kingdom that was collected would be
merged with the general revenue
of the protectorate. The implications of this provision,
was to undermine the economic
independence of the Kabaka and his kingdom and is one
of the provisions in the
Agreement that ceded economic power to the colonial
administration.
See
AG v Kabaka’s Government [1965] E.A 305
Article 5 stipulated that the laws made
for the general government of the protectorate
were applicable to Buganda
except where they were a conflict with the terms of the
agreement in which case the
terms of the agreement were to prevail. The significance of
this article lies in the fact
that it laid down the law applicable as between the protectorate
laws and the agreement
provisions. It was largely designed to appease the kingdom in
giving the impression of the
supremacy of the terms of the agreement, but this would
eventually turn out to be an
empty gesture as it did not stop the colonial administration
from overriding the terms of
the agreement. When it suited the administration and several
cases would later demonstrate
this fact.
See R. v Besweri Kiwanuka
(1937)
Mukwamba v Mukubora (1954)
Nasanairi Kibuuka v Bartie
Smith (1908)
Katozi v Kanizi (1907).
Article
6: Stipulated
that His Majesty’s government would recognize the existence of the Kabaka and
give him protection, the Kabaka, chiefs and people of Buganda would conform to the laws
and cooperate with the colonial government. This article is the crux of the
entire agreement as it dealt with the essential elements of the imposition of
colonial rule in Buganda.
i) Indirect rule between the Kabaka and
the native ruler of his people.
ii) Subordination of the kingdom to the authority and over rule
of the colonial administration.
iii) The failure to cooperate was to result in withdrawal of
protection and recognition.
Mukwaba v Mukubira 1954: Issue related to legality of
the withdrawal of recognition of
the Kabaka resulting in his deportation. There are other
significant aspects to Article 6
including:
i) It attempted to address the issue of succession to the
Kabakaship in Buganda
by placing the duty upon the lukiiko to nominate and elect a successor.
Although the colonial government would have the final say on who eventually
became the Kabaka.
ii) It spelt out the jurisdiction of the court in the Kabaka’s
kingdom stipulating that this jurisdiction would cover only cases involving
natives (cross-reference to Article 8).
iii) It spelt out remuneration of the Kabaka and that he would be
guaranteed a yearly allowance of pounds 1,500 as well as pounds 650 for
household needs during his year of minority while the regent would get an
annual salary of 460 pounds.
iv) It stipulated that the Kabaka would be
addressed as His Highness and receive a 9 gun salute at functions (while His
Majesty of England got a 21 Salute).
It is clear from Article 6 that
with overall authority was vested in the colonial government
and the Kabaka rule at its
pleasure.
Article 7 provided that the Namasole
mother of the Kabaka was to receive a lifetime
allowance of 50 pounds a year
while this sum was designated during her life time, it was
one-off allowance that would
not continue for the subsequent Namasoles.
Article 8 provided that in cases of a
mixed nature cases involving
natives and non-
Natives these were subject to
the jurisdiction of the British Courts (cross reference 1902
Order-in-Council sec. 15).
Article 9 as already noted divided Buganda
into 20 administrative units (counties) each
of which was to be headed by a
chief appointed by the Kabaka’s government and
approved by the colonial
administration. The chief were to receive an annual salary of
200 pounds and carry out a
number of functions including :
i) Administering of justice (in effect the chiefs were the
judicial officers in the Kabaka’s courts).
ii) assessment and collection of taxes up keep and maintenance of
roads.
iii) Overall supervision of native affairs
with respect to all their functions, except for the collection of taxes, the
chief was to report to the Kabaka’s government. As regards taxes, the chiefs
were responsible to the colonial government.
If a chief failed to carry out his duties diligently, the
colonial Government could call upon the Kabaka to dismiss and replace him.
Article 10 stipulates that the Kabaka
would be allowed three ministers (native officers of
state)
including:
i) Prime minister (Katikiro)
ii) Chief Justice (Omulamuzi)
iii) Treasurer (Omuwanika)
who were to be approved by the
colonial administration.
The three ministers were to
receive an annual salary of 300 pounds (except where they
were regents for which they
received 400 pounds). The native officers of state were to act
as a conduit for relations
between Kabaka and the colonial administration. The P.M was
to be an ex-officio member and
president of the lukiiko. While the Chief Justice was to
be the vice president.
Article 11 constituted the lukiiko as the
native legislative body of the kingdom apart
from the three ministers, it
was to comprise each county chief (who
were also to be ex-
officio members and seven other
persons nominated by the Kabaka.
Functions of the lukiiko were:
i) Discussion and legislation on all matters relating to the
administration of the kingdom.
ii) Act in certain instances as courts of appeal involving
property and sentences of imprisonment.
Notably the lukiiko had no power over the property
belonging to Europeans.
iii) Membership of the lukiiko was confined to the natives of Buganda
and on selecting his representatives; the Kabaka was under a duty not to take
into account the religious affiliation of the person selected.
Article 12 provided for taxation as a
means of raising finances and revenue towards the
administration of the kingdom
and the protectorate. A system of taxation involved the
following taxes:
i) A hut tax of 3 rupees or 4 shillings per year imposed on
every hut used as a dwelling place.
ii) A gun tax of 3 rupees or 4 shillings per year to be paid by
any person who possessed a gun.
Article 12: However contained exemptions of certain
persons from the payment of gun
tax in respect of a certain
number of guns thus the Kabaka was granted 50 guns for 50
men in his household. The
Namasole was to get 10. The ministers 20, county chief
10 and other membership of the
lukiiko one.
The system of succession was
however not to affect:
i) Exterior taxation i.e customs and port dues.
ii) Rates on things such as water, lightings, market dues.
Significantly Article 12 embodied the principle of no
taxation without representation or legislation. Given that no other tax was to
be imposed except by the majority of the lukiiko.
Article 13 dealt with the question of
military service in Uganda
by recognizing the
Kabaka’s preexisting right to
conscript able bodied men for military service in the
defence of the kingdom were the
need to arise. However this right was now to be
exercised under advice of the
colonial administration. Article 13 as with other provisions
of the agreement affirm the
laws of the Kabaka of his authority in the kingdom in this
regard in respect of military
affairs.
Article 14 provided for the maintenance
of roads in the Kingdom. It would give the
county chief labour and free
able bodied men to compulsory work on the up keep and
maintenance of roads
Article 15 concerned with the
distribution of land and was to be of great significance the
subsequent history of Buganda
and the protectorate at all. The land was distributed as
follows:
i) 1,500 sq. mile of forest came under the control of the
control of the colonial administation
ii) 9,000 Sq. Miles of land was vested in her majesty’s
government and under the control of the colonial administration.
iii) 19,000 and
9,000 sq. miles came to constitute the crown land. (cf Article 18 compensation
for the 10,500 sq. miles).
iv) 330 sq. miles of plantations and other private property for
the Kabaka 16 sq. miles for the
Namasole, 10 sq. miles and other private property for the king’s mother.
v) 320 sq. miles for the 4 princes.
vi) 960sq. miles for the princesses, and other relatives of the
Kabaka.
vii) 920 sq. miles for the county chief of which 160 sq. miles was
held as private property/ each chief and the other 160 sq. miles was the
official estates of the county.
ix) 96 sq. miles for the regents of which 48
sq. miles was private property each regent 16 sq. miles and the other 48 sq.
miles was official estate advanced to the office of the regents.
xi) 24 sq. miles for Nuwa Mbogo, leader of the Muhandans.
xii) 20 sq. miles for the Kamuswaga
the chief of (kooki).
xiii) 180,000 sq. miles for 1,000 chiefs and other private owners.
There were mostly estates already on possession and each was composed at an
average of 8 sq. m.
xiv) 92 sq. miles for the three missionary societies.
xv) 50 sq. miles for the colonial government for its station and
offices.
Because of distribution of land
in sq. miles, it came to be known as mailo land, although
it is basically freehold.
Article 15 would have a significant impact
on the political, socio-economic and cultural
destiny of Buganda and the protectorates.
i) It led the disposition of the Kabaka’s
authority over the Butaka/customary tribal land. It would ultimately lead to
the demise of communal land ownership in Buganda. This was made more
apparent by the pressing of Buganda
land law of 1908 which allowed for the alienation of land in Buganda.
See Mwenge
v Migade (1933).
ii) Given that mailo land was free hold, it placed emphasis on
individual ownership and as such land became the basic unit of economic
development of the protectorate. The difficulties of the relations would emerge
in the early period of colonial rule.
Articles 16 and 17 dealt with the promulgation of
Forest Regulations and rights over
ministers on private estates
and further confirmed the colonial government’s grip and
control over economic and
natural resources.
Article 20 stipulated the instances in
which the colonial government would repudiate
(revoke) the agreement on
account of the conduct or acts of the Kabaka or chiefs or
people’s of Buganda. One
such instances was the failure to raise a minimum amount of
revenue or the taxation due.
Article 21: Although the agreement was
written in English and Luganda, the English
version was the authoritative
text to be used in its interpretation.
THE 1902 ORDERS– IN –COUNCIL
The 1902 order-in-council
formalized colonial rule in Uganda
and was the fundamental
Law of the protectorate. The
order in council was in exercise of power granted to His
Majesty’s government under the Foreign Jurisdiction Act of 1890 to
legislate with
regards to foreign territories
of the United Kingdom.
1902 orders-in-council dealt with
several matters of
constitutional significance ranging from the provincial and
administrative divisions,
structures of government. Administration of justice and the
maintenance of law and order to
the applicable laws. As the fundamental law of the
protectorate, the
Order-in-Council provided for the following:
1) First and foremost, it defined the provinces and
administrative divisions of the protectorate under Article 1. In so doing it
defined the extent of the applicability of Order-in-Council as a constitutional
instrument. As well as the extent of the jurisdiction of the colonial
government in the protectorate. The divisions originally established by the
Order-in-Council were five.
a) The Central province consisting of the
districts of Elgon, Karamoja Busoga, Bukedi and Labwor.
b) The Rudolf province consisting of the
districts of Torkwed, Turkana and Dabossa.
c)
The
Nile province consisting of the districts of
Ddinga, Bari
and Shuli.
d)
The
western province consisting of the districts of Bunyoro, Toro and Ankole.
e)
The
kingdom of Buganda and the islands appertaining
thereto (Article 3 of Buganda government).
In 1926, a border adjustment
took place to transfer a part of eastern Uganda to the Kenya colony.
This was undertaken by two Orders-in-Council that is the Kenya Colony and Protectorate (Boundaries)
Order-in-Council of 1926. Proclamation
under Article 6: Uganda
Order-in-Council of 1926 as a result of which what was referred to
as a Rudolf province became part of Kenya. The protectorate was divided
into districts and sub-districts for the purposes of its administration and
this was a power conferred by Article 6 to the commissioner.
2) It
provided for the office of the Commissioner under Article 4 and 5 who
was to take overall control of the administration of the protectorate as the
chief representative of His Majesty’s government. The commissioner would later
become the Governor under the provisions of the 1920 order-in-council.
3) The Order-in-Council provided for crown lands under Article 7 which were under the control of
the commissioner. The order-in-council defined crown lands to mean all public land land in the protectorate that
had been subject to the control of His Majesty by virtue of any treaty
convention or agreement and all land, which shall have been acquired for public
service (Article 2). Similarly minerals and mines were to vest in the colonial
government, under Article 7 (clause 4). In effect the control of the
greater part of land and natural resources in the protectorate was vested in
the colonial government. The definition of crown land by reference to
agreements was intended to affirm the public lands acquired under Buganda, Ankole
and Toro agreements.
4) The Order-in-Council empowered the
commissioner to make laws under Article 8-10. In 1920, this function was placed
in the hands of a legislative council. However, by virtue of the 1902
order-in-council, the commissioner was able to make laws for peace, order and
good governance in the protectorate between 1902 and 1920.
5) The Order-in-Council established a system of exercise of
judicial power comprising of the Courts of Justice, in particular the High
Court which was to have full civil and criminal jurisdiction on all persons and
matters in Uganda.
This was provided for under Article 15 (clause1). The court was referred
to as His Majesty’s High Court of Uganda.
6) The Order-in-Council contained a reception clause under Article
15 (clause 2). The reception clause essentially defined the law to
be applied in the protectorate and in particular in the judicial determination
of disputes and matters by court. The applicable law was to include in law,
doctrines of equity and statutes of general application of force. The reception
date of Statutes of General Application was legislation in force in England as of 11th August 1902.
This is how laws such as the Evidence Act, Contract Act, Sale of Goods Act, and
Penal Code came to be part of the laws of Uganda.
7) The Order-in-Council contained a repugnancy clause under
Article 20. The clause recognized the application of native laws and customs in
disputes involving natives as long as they were not repugnant to natural
justice and morality.
Article 20 provided: in all cases, civil
and criminal to which natives were parties, every
court shall:
a) be guided by native law so long as its
applicable and is not repugnant to justice
and morality or inconsistent with any order-in-council or ordinance or any
regulation or rule made under any Order-in-Council/or ordinance.
b) Required the courts in such disputes between natives to
decide all such cases according to substantial justice without undue regard to
technicalities of procedure and without undue delay.
nb R v Yowasi K. Paulo et
al (1922) is a forerunner to Article (d) & (e) of the 1995.
The repugnance clause was
intended to remove those customs and laws that were
considered negative and
repugnant to natural justice and good conscience. The major
problem with the clause was
that the negative and repugnant aspects of a custom were
perceived in the eyes of the
colonial judge. In other words, it was a subject test which
was applied according to the
morals and standards of an English person. As a result of
this subjectivity, many native
laws and customs which were fundamental to the social
fabric of the native
communities were rendered inapplicable at the stroke of the English
man’s pen. The subjectivity of
repugnance of native custom was reflected upon by Justice
Wilson in the case of Gwao Bin Kilimo v Kissunda Bin Ifuti (1928) 1 T42 403 in
which be admitted that the test
is one of English morals and standards.
The most famous case on the
repugnant clause was R. v Amkeyo (1917)
KLR 14.
Amkeyo had been charged and
convicted of possession of stolen property and the man
witness against him was a woman
whom he claimed to have married according to native
custom.
On the basis of the law of
evidence, the testimony of this woman should not have been
admitted given the desire to
protect marital confidence. The issue by the court was
whether a woman married under
native custom was a wife in the strict sense of the word
and in effect that the
relationship between Amkeyo and the woman could be construed as
a marriage.
Hamilton C.J took the view that
the relationship between Amkeyo and the woman in
question was for lack of a
better phrase “wife purchase” and that it did not fit in the
idea of marriage as generally
understood among civilized peoples and that the native
custom was supply repugnant to
good conscience and morality. In holding that the
relationship under native
custom was not a marriage, the C.J underscored the standards of
a marriage as understood among
the English.
The rejection of a relationship
under native custom as a marriage was founded on a
number of reasons:
i) There was no consent on the part of the woman as she was
not a free contracting party.
ii) The element of bride price or bargain made the woman to be
rather in the nature of a (chattel).
iii) Relationship under active custom was potentially polygamous.
Read these Cases
Abdulrahaman v R.
(1962) E.A
Whether a relationship contracted under Mohammedan law
was a marriage.
Uganda v Alai
(1967) E.A 596
Alai was accused and charged with
adultery. And his argument was that the woman was
married under customary law, so
she was not a wife. Held: Udo Udoma C.J, held that
marriage under the laws of Uganda included
relationship under civil, customary laws.
Nb After 1964, laws were made to
recognize all forms of marriage.
The repugnance clause has
survived beyond the colonial period and has been stipulated
under the various Judicature
Acts since, that is the 1962, 19678 and 1996
Judicature Acts (now cap 13
Laws of Uganda 2000).
Qn. Is the Repugnance test really the suitable test for determining
the validity and continuity of custom or should the test be rather one of
consistency with the constitution, that is Article 2 (2), 33 (6) and 246 (2)
among others.
Gwao
Bin Kilimo v Kissunda Bin Ifuti (1928) 1
T42 403
A government tax clerk named
Mange received 10 Shs. From Kisunda for poll tax
issued him with a false tax
ticket and converted the money to his personal use. Mange
was charged and convicted in a
criminal court. Subsequently Kisunda sued for the return
of his 10/= and obtained
judgment in his favour thereafter, Kisunda went and took
possession of 2 heads of
cattle, which wasn’t property of Mange but the father Gwao Bin
Kilimo unsuccessfully objected
to the native and so brought the matter to the High Court. The issues by the
High Court were:
1) Whether there was an authentic Turu native law, which allows
the taking of a father’s property in compensation for a wrong done by a son.
2) Whether this native law is consistent with the repugnancy
clause
By Article of 24 of the 1920 Tanganyika Order-in-Council. A
British court may or should be guided by native law. The court noted that the alleged
native law was not of universal application and so baraza of chiefs had never
enforced the custom.
Nonetheless, Judge Wilson went on to reject such a custom
as being repugnant because it could never be expected that an individual should
bear responsibility of the conduct of another adult person and therefore the
alleged Turu native law was
repugnant to justice and morality.
Mwenge
v Migade (1933)
Migade wanted to sell land
which was part of Butaka and Mwenge challenged his right to
do so on the basis that Butaka
land was inalienable in native Buganda
customs. The issue
before the court related to the
instance and continuance of customary
tenure in Buganda.
The court considered the
provision of the 1900 agreement and the land legislation passed
by the Buganda
government. (Buganda Land Law of 1908)
and when not to hold that
the practice in Buganda showed
that butaka tenure no longer existed and therefore, by the
provisions of the land law. The
continued existence of the alleged custom was repugnant
and that the custom must be
repealed as abrogated and destroyed.
Kajubi v Kabali
(1944) 11 E.A.C.A
R. v Paito and others
In this case, the accused and 5
others were arrested for;
Proceedings in the court, the
court adapted procedures peculiar to the native. The
procedure normally is for the
complainant to prosecute since there is no designated
prosecutor under Buganda native
laws – given that the Kabaka was the aggrieved
person
and could not appear in his own
courts to prosecute, the court acted as prosecutor putting
questions to the accused itself
and finally convicting them. On appeal to the High Court,
the three accused that the
procedure adapted was irregular. The High Court held that the
procedure of the lukiiko court
is not expected to be the same as in a British Courts. But as
long as the procedure of the
lukiiko allows for substantial justice being done, there are no
grounds for setting aside a
decision of that court for irregularity.
8. The Order-in-Council provided for the power of the
commissioner to order the removal or deportation of any undesirable person from
the protectorate, in order to preserve peace, order and good governance. This
favour was provided under Article 24 and 25. An order of removal or deportation
was not subject to judicial appeal before the courts as a result of the
provisions of Article 24 and 25. The commissioner made laws for removal and
deportation:
1)
Removal of Undesirable Natives
Order 1907
2)
Deportation Ordinance 1908
This was revised four times
between 1908 and 1956.On the several occasions during the colonial period,
orders of removal and deportation were issued to deal with art-colonial
sentiments instances included:
Deportation of several members
of the Bataka party after the riots in 1940s.
Deportation of Kabaka Mutesa II
in 1953.
Re
GL Binaisa (1959) E.A 997
Judicial inquiry pending
deportation.
The Deportation Ordinance would
survive into post-independent Uganda
as Cap 46 and its constitutionality would finally be challenged in Ibingira I
in 1956.
Implications of
Order-in-Council 1902 in terms of constitutionalism.
The Order-in-Council is
important because it was the first legal instrument to establish a framework of
government for the whole of the protectorate. It put in place the basic elements
and structures of government, which would influence politics and constitutional
government through the colonial period as well as post independent Uganda. On the
other hand, the Order-in-Council tended in other respects to negate the ideas
of constitutionalism including those ideas, which had developed in Britain at the
time e.g.
i) It did not respect the doctrine of
separation of powers given that the legislative and exercise of powers were
vested in the one person of the commissioner
ii) It did not recognize the rule of law by
applying double standards an open discrimination between the natives and the
Europeans. For instance on terms of adjudication of disputes.
The absence of the rule of law was
also apparent in the denial of the right of recourse to court by individuals in
respect of the acts of the colonial authorities.
iii) It did not define the rights and freedoms
of the individual in fact apart from a casual reference to Habeas Corpus; the
Order-in-Council does not mention human rights whatsoever. The question that
has been significant in Uganda’s
constitutional history has perhaps been on the relationship between the
Order-in-Council and the kingdom agreement, Article 5 stipulated that the
agreement would have procedure over other laws of the protectorate. The
relationship between the Order-in-Council and the kingdom agreement would be
the subject of dispute in a number of cases.
Nasanairi
Kibuuka v Benie Smith, (1903) 1U.P.L.R 34
The issue related to the
legislative powers reserved the kingdom
of Buganda
under the 1900
Order-in-Council. The court held that his Majesty’s government
did not acquire powers in Buganda which
had not been granted by the 1900
agreement. Carter, J noted that
“As I understand the agreement, it is not to be
regarded as taking away any
right or power of the Kabaka except by its express
provisions. Therefore whatever
powers had Kabaka before remained with
him except as far as they are
expressly taken away or limited. A sovereign
state has undoubtedly the power
of legislating which was the case prior to
the 1900
agreement, in so far as am aware which the agreement takes away this
right”.
Katozi v Kanizi
(1907) 1 U.P.L.R.24
This case involved
the conflicts between the 1901 Ankole agreement which
reserved certain
judicial powers in Ankole native courts and the terms of the 1902
Order-in-Council
which in establishing the High Court claimed to give it full
jurisdiction
within the protectorate territory. The High Court held that the Order
in-Council did not
alter existing kingdom agreements. The court’s decision was
supported by the
secretary of state for the colonies who stated:
“The
validity of Uganda
Order-in-Council, 1902 is so far
as it nullified this reservation of
judicial powers is
open to question. In these
circumstances am advised
that the Uganda-Order-in-Council of
1902 should be
construed in such a manner as not to
impair the rights
and powers reserve”
These two early
cases, indicate the courts giving prominence to the kingdom
agreement and
bearing powers reserved to the native institutions under those
agreements. In the
subsequent decade, the courts demonstrate a shift in approach
that would result
in the virtual disrespect the kingdom agreements.
R. v Besweri
Kiwanuka (1937)
The issue was
whether the High Court established under the Order-in-Council had
jurisdiction over
matters and persons in Buganda.
The Buganda Agreement had
not explicitly
stated whether or not this would be the case (Article 6). As in the
Katozi case, the
issue was referred to the Secretary of State of the colony whose
reply was to
affirm that the 1902 Order-in-Council was superior to the kingdom
Agreement. The
court eventually held that the 1902 Order-in-Council, Her
Majesty’s
government had made manifestions to the extent of his jurisdiction in
Uganda and further
that such manifestation was to be regarded as an “act of
state” which was
not challengeable before Her Majesty’s courts
Mukwaba and
others v Mukubira and others (1954).
One of the issues
raised before the court related to the validity of the withdrawal
of recognition and
deportation of the Kabaka in 1953. The court held that the
withdrawal of
recognition under Article 6 of the Buganda agreement was an Act
of State in which
case, the court would not be able to inquire unto its validity.
Katikiro of
Buganda v A.G (1959) E.A 382
The issue was
whether the protectorate government in conducting the 1953
Buganda Agreement
which provided for a format of indirect elections for
Buganda. The court
held that the conclusion of the 1955 agreement was an Act of
state and
therefore not challengeable before her Majesty’s court .
Daudi Ndibarema v
Enganzi of Ankole (1960) E.A 47
The issue was the
validity of the Ankole Land Regulations of 1958 in relation to
the 1901 Ankole
Agreement. The conclusion between the Ankole Agreement
amounted to an Act
of state upon which no inquiry could be brought before the
courts.
Shobuza
II v Miller and others (1926) AC 518
These cases ended
the debate about the superiority as between the Order-in-
Council and
kingdom agents and the courts difference to the Act of state doctrine
was in the
interest and political convenience of the colonial government. Most
significantly it
demonstrated the fact that the colonial government did not respect
or feel itself
bound by the provisions of those agreements.
IMPOSITION
AND OPERATION OF COLONIAL RULE BETWEEN 1902 AND 1920
Once
the Buganda agreement had been signed and 1902 Order-in-council enacted, the
British government spent the next two decades consolidating its authority and
over rule. In between the two instruments other kingdom Agreement had been
signed with Toro and Ankole with administrative structures set up under those
kingdom Agreement essentially similar to those of Buganda (counties, chiefs,
native courts and legislative councils, officers of state etc) Outside the
kingdom areas, or addition to the 1902 Order-in-Council the primary instrument
for the consolidation of colonial rule was the Native Authority Ordinance of 1919
which made provisions for the powers and duties of chiefs and for the
enforcement of authority in their areas of jurisdiction. The 1919 Ordinance,
the chiefs had administrative duties (collection of taxes, supply of labour for
the maintenance of law and order, prevention of crime, arrest and detention of
people’s and animals etc).
In
1920, another Order-in-Council was promulgated and whose major significance was
the introduction of district organs of government. This was actually the
primary purpose of the Order-in-Council as was apparent in its preamble which
refers to the necessity of executive and legislative councils. The main changes
introduced by the 1920 Order-in-Council:
1. It changed the nature of the head of the protectorate from
commissioner to governor. A term that would remain until 1962.
2. It established the Executive Council under Article 6 as a
formal executive arm of government and was to consist of such members as His
Majesty’s government would deride to appoint. In the subsequent years, the
executive council would consist of officers such as.
i)
Director
of Finance
ii)
Director
of Medical Services
iii)
Director
of Transport
iv)
Attorney
General
v)
Director
of Agriculture
3. It established the legislative council (Article 7) 10-17 as
the formal legislative organ of government and was to executive the legislative
powers hitherto by the commissioner. The commissioner hitherto exercised the
legislative powers. The legislation council was to consist of the governor and
not less than two other persons appointed by His Majesty’s government. The
powers of the legislative council were:
i)
To
make laws
ii)
Constitute
the courts
iii)
General
oversight of administration of justice and maintenance of peace, order and good
governance. Laws made by the legislative council were to be sent to the
governor for assent otherwise they lacked validity. The governor had a right of
veto on all matters legislative council.
4. Members of the Legislative and Executive Council sat at the
pleasure of His Majesty’s Government and therefore would be removed from
office. (Article 6 and 7). The governor was also given power to suspend either
members of the executive and Legislative Council which suspension had to be
confirmed by his Majesty’s government and if so done, the particular individual
must vacate membership on either council (Article 16).
5. The judicial system put in place under the 1902
Order-in-Council remained largely intact. The Eastern African Court of Appeal
would be established a year later by the 1921 East Africa Court of Appeal
Order-in-Council.
The Order-in-Council is significant in Uganda’s
constitutional history as for the first time; the best features of a typical
constitutional state are seen to take shape. There is more less a clear
demarcation of the three powers under the 1902 Order-in-Council. However, it
was still designed to retain and reinforce colonial authority given to closer
relationship on the powers of government such that there had not been much of
the transition in the actual distribution of power. In effect, the
Order-in-Council confirmed the reforms. This is evident from the membership of
the executive and legislative councils under the Order-in-Council. The
ex-officio members of the legislative council were largely drawn from the
public service including the Executive Council and there were the majority
while official members were a minority. Further, the governor’s right of veto
and power of suspension of members rendered irrelevant any demarcation of
powers between the arms of government.
In effect, while there were district organs of government
and an increased number of persons involved in the administration of
government, the powers of the government remained largely intact. Finally in
spite of the creation of the executive and legislative councils, the management
would for sometime continue to exclude Africans and other non-European
community from their membership.
DEVELOPMENTS IN THE PROTECTORATE FROM 1920s – 30s
In the 1920 and 1930s, there
were a number of developments but two in particular stood
out significantly.
i)
The
Asian question in terms of political representation and economic interest.
ii)
The
Bataka and peasant grievances in respect of relations on land in Buganda.
THE ASIAN QUESTION
After 1920, demands for
participation in the protectorate government would be made not by the native
Africans but by the other non-European community, the Asians. The Asians had
come to E. Africa at the close of the C19th
mainly to
construct the Uganda railway. After which most settled in Kenya and Uganda
carrying on trade and commerce as their main occupation. By the 1920s, the
Asian community was significant and because of their numbers, they argued for a
political and economic state in the protectorate. The Asian community put
pressure on the colonial government for representation in the legislative
council and this would bear fruit to the nomination in 1926 of the first Asian
representative Chinubhai Jethabai Amin to the legislative council. In effect,
the first non-European representative on the Legislative Council was Asian
rather than African. It would take another 19 years before African
representative to the legislative council was recognized. The Asian question
would throughout the colonial period affect politics and government in Uganda.
In
terms of economic interest, the promotion of the Asian economic prosperity was
not by accident nor was it their doing for discriminatory and racist laws put
in place by the colonial government results economic privileges and ultimate
domination of trade and commerce by the Asian community. This domination was a
result of laws and policies, which excluded Africans trading within a specified
radius of an urban center. The Trading Ordinance of 1938 would prohibit
Africans from trading within a radius of 10 miles of an urban center or
township. The Trading Amendment Ordinance-1930 attempted to reduce the effects
of the ordinance by reducing the limitation of 1-mile radius. Similarly,
Africans were prohibited from growing cotton, processing coffee as well as
engaging in export-import trade thus the foundation of the economy of the
protectorate was left largely in the hands of the Asians. This led to friction
and antagonism against the Asian community such that wherever there were
uprisings and riots, as occurred in the Bataka uprisings of the 1930s and
1940s, the Asian community was a prominent target of expressions of
Anti-colonial sentiments as they were identified as part of the repressive colonial rule. One
can in fact say that the 1972 expulsions represented the culmination of the
African dissatisfaction with the Asian community.
GRIEVANCES OF THE BATAKA AND PEASANTS
The
protectorate underwent significant developments between 1900-1930 particularly
in Buganda. During that period, the power of the mailo land beneficiaries was
on the increase and this was set against the dissatisfaction of those who had
been disposed by the land redistribution under the 1900 Uganda Agreement that
is the Bataka clan leaders. When Kabaka Chwa II took over from the Regents, the
Bataka who had formed a quasi
political
association, the Bataka Association in 1921 appealed to the Kabaka to ask the
Governor for a period of the agreement. They were joined in this appeal by the
peasants who were burdened by the rent (Busuulu and Evunjjo) paid to the mailo land owners. Although
Kabaka Chwa II was sympathetic, the Lukiiko which was composed of the main
beneficiaries of the land distribution rejected the demand. Nevertheless, at
this point in time, the colonial government had itself been concerned about:
i) The relations between landlord and
tenant in Buganda.
ii) The system of land tenure in Buganda was not delivering
efficiently in economic terms and
iii)
The
Bataka grievances which if not addressed threatened to been even more
problematic to the administration of the protectorate. Under these
circumstances the colonial government set up a commission of inquiry in 1925
and in 1928 wherefore the Busuulu and Envujjo Law was enacted
to bringing to an end to the previously unlimited amount of rent and tribute
that the landlord could extract from tenants. Given that the amount payable was
often arbitrarily determined by the landlord. The peasants had therefore felt
oppressed by the system and the colonial government admitted that the state of
affairs was not economically productive. In this regard in 1928, Busuulu and
Envujjo law did:
1. That a limit in the amount of Busullu and Envujjo that
landlords could extract from tenants.
2. Guaranteed to Buganda peasants, complete and hereditary
security of tenure that is they could not be evicted for simply failing to pay
rent and so allowed for the continued cultivation of land.
Look at this particular part in Nabudere’s Imperialism
& Revolution in Uganda.
The Busuulu and Envujjo law of
1928 represented a revolution in the socio-economic
relations in the protectorate.
The law created new relations between landlord and
peasants by reducing the
arbitrariness and insecurity in those relations. Economically
the tenants gained security of
a use of the land and this ensured that cash crop production
continued.
- look at Mwenge v Migade (1933)
On the part of the Bataka who
had raised the peasants complaints, their own grievances
relating to the restoration of
their cultural authority over communal land were not
addressed. In fact, the Busuulu
and Envujjo law robbed them of their support base. The
case of the Kabaka was more
complex. On the one hand, he was seen a sympathetic
listener to the plight of his
people. On the other hand however, he was not actually able
to deliver any reform. His
prestige and position was generally undermined. That he was
to lament
“My present position is so precarious that am
no longer direct
ruler of my people. Am
beginning to be considered by my
subject merely as one of the
British government’s paid servants.
This is solemnly due to the fact that I do
not real power
of over my people. Even the
smallest chieftainship is under
the control of the provincial
commissioner. Any order
given whether by the local
chiefs or the Lukiiko is always
looked upon with contempt unless and until it
is confirmed
by the provincial commissioner.”
Look
at Yowasi K. Pailo (1922).
The
Busuulu and Envujjo law was able for the time being to diffuse social and
economic tensions in the kingdom. However, the failure to address the
grievances of the Bataka would result in increased antagonism and protests.
Most significantly, the Bataka would eventually organize the most prominent
early anti-colonial riots.
THE
HUMAN FACE PERIOD: COLONIAL REFORMS AND POLITICAL DEVELOPMENTS TOWARDS
INDEPENDENCE:
The
developments in the 1940s in Europe and domestically in the colonial gave way
to what tends to be referred to as the human face period of colonial
administration. This can be attributed to a number of factors.
i) The war in Europe had resulted in the weakening of the
economies of most European powers and so rendered it difficult to maintain the
administration of the colonies.
ii) Africa participation in the war in places such as Burma and
India (for instance by the King African Rifles) had awakened an upsurge of
nationalistic feelings and desires for self-government. This was given impetus
by the UN’s emphasis on self-determination under its charter and the 1952
General Assembly resolution on the grant of independence to colonial
territories and peoples. (Res. 1514(xx) (1960). Further, the appearance of the
labour government in U.K with policies more inclined to the granting of self
government to the colonies would gradually see the grant of independence to the
British colonies.
iv)
Domestically,
in the protectorate, the Bataka upsurge saw it emerge as a strong political
force turning the 1921 association into the Bataka Union in 1945 and
with a more nationalistic and political
outlook. The Bataka Union would stage strikes and riots in Buganda in 1945
and 1949. They did also submit a memorandum to the colonial government in 1945
asking for social-economic and political reforms (native election of their own
chiefs, rights of natives to grow and process cotton and coffee as well as
engage in export trade. The Bataka union was subsequently banned in 1961 as an
unlawful society by the Penal Code Ordinance of 1951, but its legacy was to
inculcate nationalistic feelings and the ultimate emergence of nationalistic
political organizations for instance the Uganda National Congress.
KABAKA CRISIS, 1953 – 55 (look
at Kanyeihamba’s Constitutional History of Uganda)
In January 1952, Sir Andrew
Cohen arrived as governor and during his governorship, he sought to reform
colonial policy particularly as regards:
i)
The
creation and training of African administrators.
ii)
Increment
of African participation in the protectorate government.
iii)
Placing
of local government on a stable and democratic platform.
Significantly one of Sir
Cohen’s first concerns was in regards to Buganda. In March 1953 Cohen issued a
joint memorandum with the Kabaka on constitutional development and reform in
Buganda providing for:
i)
60
of the proposed 89 members of the Lukiiko were to be elected.
ii)
The
Kabaka was to consult the committee of the Lukiiko before selection of his
minutes.
iii)
Increment
of the responsibilities of the Buganda government and the devolution of
services as such local services, on primary and junior secondary, rural
hospitals and dispensaries, field services for soil conservation livestock
breading and disease control were to be transferred to the Buganda government.
The
devolution of services appeared to be contrary to the promotion of the
protectorate unity as was regarded by Sir Cohen as essential to it. In fact the
reforms of March, 1953 were an attempt to forestall a federal system rather
than an essential step towards it. The memorandum in fact provided:
“The Uganda’s protectorate has been and will continue to be
developed
as a unitary state.”
Significantly
the 1953 reform would demonstrate the dependence of the colonial government on
the legal cooperation of the Kabaka with the ascendancy of Mutesa II as Kabaka,
his strength was bound to be the cause of friction between the Buganda government
and the colonial government. Educated at Cambridge and already offended that he
was not treated with honour at the coronation of Queen Elizabeth II in 1952,
the reliance on Mutesa II to promote colonial government policy was unlikely to
be a happy cirmustance. Nonetheless Mutesa II was keen to support the March
1953 reform but where the Cohen policy in its strong belief that Uganda must
develop as a unitary state threatened the tribal loyalties. This would result
in tribal institutions including the Kabakaship declining in importance. This
factor and concern would spark off the crisis in Buganda that came to be known
as the Kabaka crisis of 1953 – 1955. The Kabaka crisis of 1953 – 1955 was
sparked off by a speech made on 30th June, 1953 by the Secretary of
State for the colonies in which he referred to the possibility.
“As time goes by of larger measures of unification
and possibly still
larger measures of federation of
of the whole East
African territories.”
This
pronouncement caused adverse public reaction on Buganda. In a seriously worded
letter, Kabaka Mutesa II urged that the affairs of Buganda be transferred from
the colonial office to foreign office and that the time table be prepared for
the independence of Buganda. In particular, they later rated that;
“The Kabaka and his ministers could no longer feel
happy about Buganda’s
position under 1900
agreement. Apart from
the danger of federation,
they considered the
policy of developing a
unified system of
government along parliamentary
lines which would result
in Buganda becoming less
and less important in
the future.”
The
Kabaka’s and Buganda’s demands were for more than a challenge to any proposed
federation as they meant a complete break with governor’s Cohen’s vision of a
unitary state in Uganda. The Kabaka’s letter would only reaffirm Buganda’s
separatist tendencies and assertion of claims to a special status that were
arguably evident since 1902. During the proceedings of a case filed in 1994 to
challenge the deportation of the Kabaka (Mukwaba and 2 other v Mukubira and 4 other).
The treasurer is recorded as having stated:
“After
some two or 3 years after the agreement, the
divisions (dependencies) into
provinces to rank as being equal
to Buganda province. As regards
administration we are of equal
rank but otherwise, we the Buganda kingdom is independent.”
On
October, 27th, 1953 the lukiiko passed a resolution (directing) the
advising the Kabaka to refuse to name any representatives of Buganda to the
legislative council. By 1945, African representation was first admitted in the
legislative council. They were to be three representatives, one being the
Katikiro of Buganda. Another to be the Katikiro of the other three kingdoms,
the other to be drawn from the other districts. The Lukiiko resolution not only
endangered the success of the newly reformed Legislative Council but also
rendered a unitary Uganda extremely unlikely. After a series of unsuccessful
negotiations, Sir Cohen put before the Kabaka certain undertakings to which he
was required to agree:
i) That the Kabaka would possibly cooperate in the future
progress of Buganda as an integral part of the Uganda protectorate in
accordance with the March 1953 reforms.
ii) That the Kabaka would submit names of Buganda’s
representatives for appointment to the legislative council.
iv)
That
the Kabaka would cooperate loyally with her Majesty’s government in the organ
and administration of Uganda in accordance with the 1900 agreement. When Kabaka
Mutesa II refused this undertaking, the governor withdrew recognitions from
him, declared a state of emergency in Buganda and deported the Kabaka to the
United Kingdom.
In the aftermath of the deportation of the Kabaka,
a case was filed by the High Court, Mukwaba and 2 others v. Makubira and 4
others Civil case No.50/1954. Three of the Kabaka’s nominees to the
lukiiko (plaintiffs) contested the right of the first four defendants who had
been nominated to be members of the lukiiko to take their place in the lukiiko
since they had been nominated by the Kabaka. The fifth defendant was the
Attorney General of the protectorate who was joined to the suit as some of the
issues related to acts of the protectorate government. The case eventually
became an indirect attempt to challenge the validity and legality of the
withdrawal of recognition of the Kabaka. The issues before the court:
i)
Whether
the one matter before the court was to justiciable.
ii)
Whether
the dispute between the Kabaka and the protectorate government related to the
organ and administration of the kingdom.
iii)
Whether
the acts of the Kabaka could justify the withdrawal of recognition in terms of
Article 6 of 1900 agreement.
iv)
Whether
appointment of the nominees to the lukiiko was valid.
On the first issue, the Attorney General had argued
before the court that the matter was unjusticiable. This argument was upheld by
the court which noted that although the 1900 agreement created legally
enforceable rights and obligations between the parties, these rights and
obligations were not enforceable before the court. The court therefore held
that the withdrawal of the recognition of the Kabaka was an act of state into
which the court was unable to inquire as to its validity.
On the second issue the court held that the matter
in respect of which the dispute arose between the Kabaka and the protectorate
government conerned the matter of a federation and cooperation of Buganda with
the reforms of March, 1953 and its representation in the legislative council.
There according to the court were not matters affecting organs and
administration of the kingdom within the meaning of Article 6 of the 1900
agreement, the court held that therefore, no right to withdraw recognition had
arisen from Article 6 in November, 1953.
On the third issue, the court held that the lack
of loyal cooperation must relate to the phrase.
‘Kabaka, chiefs and people of Buganda’ in Article
6 of the agreement and this must be read conjunctively. The court pointed out
that neither the chiefs nor the people of Buganda had shown any signs of
disloyalty or failure to cooperate and therefore, the Acts that were solely of
the Kabaka could not justify withdraw of recognition under Article 6 of the
agreement.
On the fourth issue, the court noted that in the
aftermath of the deportation of the Kabaka, the protectorate government passed
or enacted Emergence Powers (Regents of Buganda) Regulations of 1953 and 1954
which in themselves were superseded by the Regents Order-in-Council in 1954 (as
an Act of State). The court therefore held that the Regents Regulations were
affective to give the regents power to nominate members to the lukiiko
including the first four defendants. The court noted that the powers of
nomination of members to the lukiiko were previously those of the Kabaka and
before withdraw of recognition did not lie elsewhere than in the Kabaka. The
fact that the case was decided on the basis of the defence of ‘Act of State’ gave the impression that
the colonial government did not in fact respect the Buganda agreement or feel
itself bound by its terms’(see D.A Law & Pratt, Buganda and British
Overrule 1955 p. 342).
The reaction to the deportation of Kabaka Mutesa
II was overwhelming with Buganda in particular angered by the deportation. Even
the Uganda National Congress which was hostile to traditional institutions and
rulers joined the voices agitating for the return of the Kabaka. In the
aftermath, Sir Cohen set up a committee under the chairmanship of Hancock to
consider among other things the constitutional reorganization in Buganda,
continued participation of Buganda on the protectorate and representation of
Buganda in the legislative council. After several meetings between the Hancock
committee and the Buganda government (known as the Namirembe negotiations). It
was proposed to replace the traditional character of the kingdom with
structures of a modern representative government and therefore a new Buganda
Agreement of 1955 was conducted and shortly thereafter, Kabaka Mutesa
II was allowed to return. In the 1955 Buganda Agreement colonial government did
make concessions to the Kabaka and Buganda on the issue which had been the
cause of his deportation, thus in the preamble to the agreement , it was
provided:
“Her Majesty’s government has no intention
whatsoever
of raising the issue of
the East African federation, either
at the present time which
the local political opinion on the
issue remains as it is or
in the future and recognitions
accordingly that the
conclusion of the Uganda protectorate
in any such federation is
outside the realm of practice
practical politics at the
present time or while politic
opinion remains as it
is.”
The colonial government also undertook to consult
with the Buganda government on the matter of federation of it were arise in the
future. In effect the agreement laid to rest to the question of federation and
so upheld the Kabaka’s original objection.
The other main features of the 1955 agreement
were:
i)
It
constituted the constitution of Buganda and the Buganda government was
transformed into a constitutional monarchy in that the Kabaka had to appoint
his ministers in consultation with the lukiiko and not to the Kabaka.
ii)
The
participation of Buganda in the legislative council was clearly defined. The
election of Buganda’s representatives was to be undertaken through the lukiiko
as an electoral college thus the format of election Buganda’s representatives
to the legislative council was to be based on the form of indirect elections.
The composition and formation of Uganda’s representatives was under the
agreement not to be altered for 6 years.
In 1958, the government would conduct elections on
the basis of direct elections, which Buganda boycotted. In the following year a
case was filed by the high court, Katikiiro of Buganda v. Attorney General
[1959] E.A. 382 in which the Katikiro challenged the request by the
colonial government that Buganda elect its representatives on the promise that
the 1958 elections had not been conducted in accordance with the provisions of
the 1955 agreement and that since the colonial government was in breach of the
agreement, they had no obligation to organize the election of Buganda’s
representatives.
In essence, the 1955 agreement established a
framework within which Buganda would exist as part of a united although not
unitary Uganda and in which parliamentary system of government is pursued.
Following the deportation of the Kabaka, Mutesa II
was projected as a nationalist for standing up to the colonial government but
the reality was that he was only protecting Buganda’s sub-nationalist
interests. From 1955 onwards the Kabaka and his government embarked on a course
to ensure that protection of the interests of Buganda and Buganda’s separatist
tendencies heightened in the period after 1955 notwithstanding the formal
arrangements in the 1955 agreement.
BIRTH OF POLITICAL PARTIES IN
UGANDA AND COLONIAL REFORM (1952-1958)
It was at the height of colonial reform that
Uganda’s first genuinely nationalistic party, the Uganda National Congress was
formed by Ignatius Masaazi in March 1952. The party had a freedom charter and
manifesto, which asserted its main priorities to the realization of national
unity, freedom, peace and equality. The party was driven by the desire to
transfer power and authority from the colonialists to the indigenous people and
this desire was expressed in its slogan.
‘Self
government now’
The second political party to be formed was the
Democratic Party in 1954. It was also a nationalistic party with the main
objective of addressing what was perceived to be the historical discrimination
and marginalization of peoples of the catholic faith under colonial rule and
the Mengo administration. The Democratic Party nonetheless shared a common
vision with the Uganda National Congress that Buganda’s sub-nationalism was
incompatible with the notion of a unitary independent Uganda. This particularly
put D.P at loggerheads with the Buganda government throughout the period
preceding independence. Over the next eight years the Uganda National Congress
would disappear as the political parties merged including the Progressive
Party, Uganda People’s Union, Uganda’s People Congress and the Kabaka Yekka
Party. By 1962, only the Democratic Party and the Uganda People’s Congress
remained strong and steadfast as national parties while the Kabaka Yekka was
concerned with Uganda’s sub-nation as its interest. Political parties were the
major actors in the political and constitutional development of the
protectorate between 1952 and 1962 in several respects particularly:
i)
African
participation in the legislative council.
ii)
Participation
in the formation and constitution of government during the period of
self-government, 1961-1962.
iii)
Participation
in the debates and discussion of the constitutional proposals to a framework of
government for independent Uganda (during the Lancaster and Marlborough
conference).
The catchword of the colonial reforms during this
period was that of africanisation, that is the transfer of power into the hands
of the Africans. In this regard Sir Andrew Cohen expanded the representation of
Africans in the legislative council such that by 1954, Africans constituted
fourteen as against 6 Europeans and 8 Asians in the legislative council. Sir
Andrew Cohen also structured the ministerial system and positions for Africans
such that in 1955, 3 Ugandans became ministers, that is:
i)
Mungonya
ii)
Nabeta
iii)
Apollo
Kironde
Thus for the first time during the colonial
period, Ugandan’s would participate in government administration and policy.
After Sir Andrew Cohen left in 1957, the new governor Sir Hedrick Crawford was
faced with new demands for constitutional reform.
i)
That
election to the legislative council should be direct.
ii)
Districts
and other kingdoms demanded equal treatment with Buganda. In this regard the
new governor organized for election at the end of 1958 with the franchise of
illegible voters based on:
a)
The
voter most be able to read and write in his own language and
b)
The
voter must be the owner of freehold or mailo land.
If the voter was not a land owner, he should have
occupied the land for at least 3 years before registration or been regularly
paying taxes for at least 2 years or earning an income for at least 100 pounds
a year or owns property of at least 400 pounds. Although the franchise was
meant for propertied individuals, the 1958 legislative council would for the
first time in Uganda’s constitutional history be made of Africans
representatives who were directly elected. The only parts of the protectorate
in which the elections were not direct were Karamoja and Ankole whose
representative were chosen by the district councils and in Bugisu whose
representative was nominated by the governor. Buganda refused to send any
representatives to 1958 legislative council. The involvement of political
parties meant that the 1958 legislative council was made up of 5 members from
UPC, 1 from D.P and 7 independents. The constitutional developments of the
period following the 1958 elections were characterized by reports of two
commissions.
i)
The
1959 report of the Uganda Constitutional Committee with J.B Wild as its Chairman (referred to as the Wild Committee Report)
and
ii)
The
1961 report of the Uganda Relationship’s Commission chaired by the Earl of
Munster (referred to as the Munster Commission Report).
The commission and their reports were fundamental
for Uganda’s constitutional development at each point of time.
1) Report
of the Wild Committee (1959)
i)
To
advise, the protectorate government and to recommend on the form of direct
elections on a common role for representative members in the Legco. In other
words, previously elections had been segregated along racial lines. The fear
was that this would continue and cover that European and Asian would give
weighted votes, the other concern was that conferring the right to vote for
European and Asians.
ii)
To
advise on the total number of seats to be filled by the electorate.
iii)
To
determine the mode of allocation between the deferent areas of the
protectorate.
iv)
Consider
and advise on the question of representation by the non-Africans.
v)
To
advise on the size and composition of the government.
The committee was nonetheless boycotted by Buganda
who refused to submit its views. The recommendations made by the Wild Committee
were:
i)
The
next elections to be held in Uganda should be direct in all parts of the
protectorate and should take place not later than 1961.
ii)
There
should be a common electoral roll, which did not confer rights of citizenship
(to Europeans and Asians).
iii)
The
numbers of elected members should be increased and representation should be as
follows:
a)
For
urban areas 4 representatives
b)
Northern
Uganda 15
c)
Western
Uganda will have 12
d)
Eastern
Uganda will have 20
e)
Buganda
will have 20
Meaning a total of 76 members. The Wild Committee
also made certain recommendation outside its mandate, amongst which were:
i)
Apart
from the elected members of the Legco, there should be specially elected
members chosen by the Lukiiko sitting as Electoral College, to elect members
representing different interests and they were to be 6 in number.
ii)
The
party with a clear electoral majority should form the government and the losing
party would be in the official position.
iii)
The
executive council should become a council of ministers with collective
responsibility to the national assembly and that members of the council of
ministers should be selected from the elected notional assembly members with
selection of 3 members.
a)
Chief
Secretary
b)
Attorney
General
c)
Minister
for Finance
who were to be nominated by the
Governor
iv)
The
governor should have litle power if necessary.
Further in light of the many views that had been
expressed on the form of government that Uganda should adopt and or the
question of the relations between various peoples of the protectorate, the
committee recommended that by the 1961 relations, a conference should be called
to examine the issues and make comprehensive recommendations on these matters.
Hardening of Buganda as to its
status 1958 on wards:
While the wild committee was making its
constitution, Buganda kept on hardening as to its perceived status in the
protectorate. With the 1958 boycott, the hard-line demands comprising of the
Kabaka, Chiefs and Landlords began to embark on ways of ensuring that Uganda’s
autonomy was insecure. The boycott of elections had itself been designed to put
pressure on the colonial government to give in to the demands of the kingdom. A
movement began to grow in Buganda withits primary goal to secure the protection
of Buganda’s interests against the designs of the nationalists. The
administration of the movements function was the submission in November 1960 of
a memorandum to her majesty, the queen of England stating as follows:
a) British protection over Buganda
established by the 1900 agreement should be terminated.
b) As a consequence of the termination of
the stated plans should be immediately made from an independent Uganda. Amongst
other things, the plan would include:
i)
Establishment
of friendly relations between Buganda and her majesty’s government and the
exchange of Ambassadors and High Commissioners.
ii) Buganda would remain in the commonwealth and seek membership
of the UN
iii) All powers previously exercised by the
governor were to be vested in the Kabaka and his government.
iv) Buganda would have its own armed forces
with the Kabaka as commander-in-chief.
v) All institutions of learning in Buganda
with exception of Makerere College would fall under Buganda jurisdiction.
v) Arrangements for the independence of
Buganda should be complete by 31st December, 1960.
On 1st January, 1961, the lukiiko
declared the independence of Buganda. Although the declaration was never a
reality, the message was very clear.
Neither the protectorate government nor the
nationalist politicians could afford to ignore Buganda in the move to
independence and its demands and interest had to be given respect and
attention, failure of which the independence sentiment could not be realized.
This was sharply brought home with the preparations the 1961 elections.
Although the colonial government went ahead with the elections, the Kabaka’s
government directed its followers not to register for the elections. Indeed by
the time, the registration was closed only a handful of mainly D.P supporters
had actually registered. In effect, Buganda had organized another boycott which
was successful. In political terms, the boycott marked the death of D.P in
Buganda because D.P had defied the boycott. Ben Kiwanuka was portrayed as an
anti-Buganda and as a man who did not respect the Kabaka. It was not helped
that Ben Kiwanuka was also a catholic. The propaganda that followed the boycott
was that catholics wanted to take over the protectorate. On the other hand,
U.P.C gained from the boycott because they had decided not to field candidates
in Buganda. The Buganda government therefore felt that there was a possibility
of good relations with U.P.C’s Apollo Milton Obote and marked the onset of the
UPC – Buganda alliance , (later cemented during the Lancaster conference).
2) The Report of the Minister Commission
1961
Set up in 1960 by the Secretary of State for the
colonies, the report of the Uganda relationship commission was given by the
Earl of Munster. Its basic terms of reference were to consider the official
form government most appropriate for Uganda and the relationship between the
central government and other authorities especially kingdoms:
The commission was to be guided by the following:
i)
Her
majesty’s government decision (resolution) to grant Buganda independence at an
appropriate stage.
ii)
Development
of sustainable institutions of government for Uganda.
iii)
Incorporation
of specific circumstances and needs of the people of Buganda as they became
independent.
iv)
Consideration
of the desire of the people’s of Uganda to preserve the existing institutions
and customs as to uphold the status and dignity of their King and rulers.
v)
The
commission was to bear in mind the special relationship between her majesty’s
government and the kingdom with whom an agreement had been made in the early
1900.
The commission had to make sure that all these
aspects be accommodated. Thus the 1961 Munster Commission Report together with
the 1958 Wld committee report would provide for the two constitutional
conferences, of which the first was held in 1961 at Lancaster and the second in
Jun 1962 at Marlborough. The Munster commission made several recommendations
i)
As
regards trends for secession, it was unacceptable to allow Buganda to separate
from the rest of the protectorate. The protectorate must continue till Buganda
has reconciled itself with the rest of Uganda.
ii)
The
relation of Uganda and Buganda should be a federal one.
iii)
The
central government should have power over foreign affairs armed forces and
police.
iv)
Buganda
government should have power of over the institution of the Kabaka, lukiiko and
matters governing tradition aspects of the government. Any residual powers (not
allowed to either of the two) should be shared, but the central government
should have the overriding power in the final analysis.
v)
Buganda
should be given a guarantee that any laws made by the central government which
would affect the Kabakaship and Buganda’s exclusive interests would be of any
effect unless agreed to by the lukiiko such a guarantee would by a law
enforceable by the courts and Buganda should have the deciding voice in determining
the forms of guarantee.
vi)
The
Kabaka should withdraw from politics and become a genuine constitutional
monarch, perform just ceremonial non-executive functions.
vii)
The
lukiiko of Buganda should be directly elected. It would act as an electoral
college for the 26 of Buganda’s representatives to the national assembly.
viii)
Voting
in the future would be by universal adult suffrage.
With regard to the character of government, the
commission stated that Uganda
should be a single democratic state with a strong central government. Within
this state, Buganda
should stand in federal relations while the other 3 kingdoms would be in
semi-federal status. With respect to the head of state, until Uganda attained
independence it would be the governor representing her majesty the queen.
Thereafter, it was appropriate to debate on the head of state. Further, the
head of the state would exercise prerogative powers of (the National Assembly),
make treaties etc.
The legislature was to become the National
Assembly. Any amendments to be passed by ⅔ majority of the National Assembly.
The courts of law would have the power to declare the constitutional
legislation invalid.
In conclusion, the Wild and Munster reports laid out the broad
parameters for the debate on the constitution an independent Uganda. In
fact, in certain respects the two reports foreclosed debate while in others,
opened up issues to incorporate new dimensions. Indeed, it can be said
particularly of the Munster report that it provided a draft constitution for
Uganda. At the opening of the Lancaster conference in Sept 1961, the Secretary
of colonies expressed the view that the Munster report was useful and a solid
foundation. Further he gave the view that ass far as relations with Uganda were
concerned, the Munster proposals were so far the best if not the only way of
securing cooperation of the people of Buganda on the creation of an independent
Uganda.
UGANDA CHRISTIAN UNIVERSITY
CONSTITUTIONAL HISTORY NOTES
BRIAN KALENGE, LECTURER
FACULTY
OF LAW
Nature of the Constitution and Necessity to Study Constitutional History
The
constitution is a set of rules expressing the needs and aspirations of the
people. It is a legal and normative framework that regulates and governs a
country. It often addresses several aspects including the relations between the
people and their structures of government and the relationship between various
organs of government. It is often considered the supreme law of the land such
that any other law (or custom), which is inconsistent with that law or custom
is to the extent of its inconsistency treated as null and void, and the supreme
law shall prevail. In legal theory, the constitution has been described as the
grand norm and that all other laws derive their validity from this supreme
norm.
Why we study constitutional history
We
study constitutional history because we want to look at how common society
evolved especially as regards its structures of government and the body of laws
that have existed over a period of time. Further in order to assess the
present, we need to look at our past, learn from the failures and successes and
be able to provide reform for the future. The necessity of studying
constitutional history is in fact apparent from the preamble to the 1995
constitution which provides inter alia,
recalling our history which has been characterized by political and
constitutional instability committed to building a better future by
establishing a socio-economic and political structure through a popular and
durable national constitution based on
principles of unity, peace, equality, democracy, freedom, social justice and
progress.
Since
all laws derive from the constitution as the fundamental law, it is necessary
to examine the manner in which the constitution is itself derived and enacted.
We
study constitutional history because the concepts and principles that are
central to constitutional law for instance separation of powers, independence
of the judiciary, parliamentary sovereignty, human rights can only be
appreciated against their origins in the Anglo-American tradition and their evolution
and appreciation in the history of Uganda as a modern state.
Origins of the Ideas of the Constitution
The
ideas of the constitution in the various forms have their origins traceable as
early as the antiquity, through the medieval era in Europe
to the political thinking and events of the 17th and 18th
century. In the period of antiquity ancient Greece with its scholars such as
Aristotle, Socrates and Plato gave us the idea of modern state and government.
The city – state (polis) was in Aristotle’s view to be of such a size that
allowed participation of all citizens in government and thus the concept of
direct democracy is no longer possible in modern large states and has been
replaced by the concept of representative democracy.
Furthermore,
in the open life of market squares, democratic ideas of freedom of assembly and
association expression and conscience and equality evolved. Ancient Rome gave birth to several constitutional ideas including
that of the modern parliament and perhaps more significantly the idea of
citizenship by defining who was a citizen of Rome and the duties and rights that attached
to citizenship.
The
medieval era in Europe was essentially a
feudal one characterized by feudal lords and noblemen and merchants and serfs
and was basically founded on agriculture and trade. It was a period of
absolutism in the power of the noblemen and feudal lords over the lives and
liberties of serfs as well as taxation of trade. The influence of Christianity
during the period also saw the conflict between church and the state. During
this period, there were developments to restrain
the absolutism in the powers of noblemen and feudal lords. One of these
developments occurred in the 13th century in England in 1215 in the form of Magna Carta, which often recognized as
the first document in the process of establishment of constitutional states in Europe. It contains several clauses but the most
significant were.
i) The right of the
individual to trial by the jury
ii)
The
writ of Habeas Corpus.
These
two clauses sought to restrain the power of the noblemen and feudal lords to
arbitrarily detain people by requiring a trial by jury, the Magna Carta gave
birth to the modern concept of due process or the right to a fair trial. On the
other hand by introducing the wit of Habeas Corpus, it guaranteed the right to
personal liberty.
Evolution of a Constitutional State in Uganda
The
scramble for Africa, which pitted the major European powers of the time against
each other, was eventually settled through an international conference in Berlin in 1884. Prior to
the Berlin conference, the powers had nonetheless already secured spheres of
influence through the activities of missionaries, explorers and charted
companies and the conference only served to give affirmation to the demarcation
of territories. In E. Africa, the source of the Nile
and the economic as well as strategic interests had already fuelled colonial
rivalry. The rivalry in Uganda
was however on the outset in the character of religion and whose intensities
would threaten social order within the territory particularly Buganda. The protestant and
catholic missionary groups were engaged in a religious rivalry, which defined
the politics and the balance of
power between Britain and France.
The religious group that emerged dominant was the Protestants and has since
remained a dominant force in the political evolution of the colonial and
postcolonial state in Uganda.
The religious factor has permeated the political life (in particular political
parties) as well as socio-economic aspects (e.g schools, hospitals etc) of Uganda’s
history even up to the present day. It is to be noted that the Amin influence itself gave birth to
the minority religion of Islam and which in the Muslims were to have a dominant
role. It’s therefore evident that
from the very beginning of the emergence
of Uganda as a
constitution/state religion has permeated the socio-economic and political
digest of Uganda
and have since been inter-related.
The
religious factor was in its earliest from prominent in the attempt to raise counts as well as wining favours of
the Kabaka in Buganda.
Eventually after the settlement of religious conferences in Buganda and after a brief period of the
administration of the Imperial British East Africa Company and the subduing of Bunyoro’s Kabalega and Buganda’s
Mwanga. The British flag was erected in Uganda
for the first time on 1st
April, 1893 at Fort
Lugard, Old Kampala hill.
The protectorate was declared a year later and between 1894 and 1900, the
British consolidated their dominion. In 1900, the British entered into an
agreement with Buganda
called the (B) Uganda Agreement whose significance was to pervade Uganda’s
colonial and post-independence periods in both political and constitutional
terms. The 1900 Agreement is largely significant to a number of respects.
i) It was the first of its kind in Uganda and consequently led to
other agreements with kingdom areas such as Toro (1900), Ankole (1901 and 1941)
and Bunyoro (1933 and 1937). In the latter part of the colonial period, another
agreement would be concluded with Buganda in 1955.
ii) It introduced indirect rule as a policy of colonial
administration as it established and confirmed British over rule over Buganda
with the Kabaka as the political ruler although in fact relegated to a status
of a puppet.
iii) It tended to give Buganda a privileged status in
comparison to the other parts of the protectorate. This was in spite of
provisions to the contrary.
iv) It confirmed the territory and boundaries of Buganda as a kingdom.
v) It introduced the first instances of formal political
government and thus it is often regarded as the first constitutional instrument
in Uganda’s
instrument.
The 1900 Buganda Agreement, its Provisions
and their Significance.
The Buganda Agreement was
signed on 10th
March 1900 between Sir Harry Johnston
as His Majesty’s special
commissioner and the regents (and chiefs) including sir Appollo
Kaggwa, Stansilas Mugwanya and
Nuwa Mbogo on behalf of the infant king Chwa II.
The Agreement contained 22
clauses and the majority of which were to be of profound
significance of Buganda in particular and the protectorate of Uganda
as whole.
Article 1 of the agreement demarcated
the boundaries and laid out the territory of the
kingdom of Buganda. In so doing, it established
the geographical, political and
administrative jurisdiction of
the kingdom. This had a number of ramifications:
i) It placed a restraint on the expansionist tendencies of Buganda
by clearly defining the extent of its territory.
ii) It defined the extent to which the jurisdiction of the
Kabaka’s government went in terms of legislative, judicial, political and
administrative competence.
Kazaraine v The Lukiiko [1963] E.A 472
nb highlights some of the problems of jurisdiction.
Article 9 which laid out the
administrative units /counties of Buganda. The agreement
confirmed the kingdom as the
primary entry in Uganda
for the control of the rest of the
protectorate territory. It is
significant that within the boundary demarcated was territory
which belonged to Bunyoro and
had been given to Buganda
by the colonial government
for its assistance to the defeat and pacification of Bunyoro. This
territory consisting of 7
of the counties of Bunyoro and
remained a contentious issue particularly between
Buganda and Bunyoro throughout the
political and constitutional existence of the
protectorate and the immediate
post-independent Uganda. The lost counties issue
would
be reflected on a number of
events, judicial decisions and constitutional
developments including.
- The signing of the 1933 and 1937 Bunuyoro Agreement where
Bunyoro raised the question of the return of its territories.
- The Lancaster and Marlborough conferences in 1961 and
1962, Bunyoro raised the issue and the Morrison Commission was formed.
- The Kazaraine case in 1963.
- 1964 referendum on lost counties
- Kabaka’s Government
v AG of Uganda
(1964)
(Challenged the constitutionality of the referendum)
- Constitution of Uganda Amendment Act No.36/1964.
Article 2 provided that the Kabaka and
the Chiefs of Buganda agreed to forfeit the
collection of tribute form
neighbouring provinces in favour of his majesty’s government.
In this provision and others,
the agreement recognized the transfer of economic
rights as an objective of the
colonial state (cross reference with article
4, 9, 12, 15, 16 and 17).
Article 3 stipulated that Buganda
would rank as a province of equal standing with any of the other provinces in
the protectorate (to which it may be divided). Refer to article 1 of the 1902
Order in Council. The intention of article 5 was to ensure that Buganda did not
play any special or privileged status in the protectorate in comparison to the
other parts or provinces while this was latter of the agreement, the spirit of
it was to in fact give Buganda an enhanced position which would eventually lead
to struggles and conflicts between Buganda and the rest of Uganda which
characterized the protectorate and immediate post-independent periods. Buganda
became involved in struggles to enhance its position or even to assert its
independence and these would become more apparent in the period leading to
independence and the post independence period.
-
1953
– 55 Kabaka crisis.
-
The
1955 Buganda Agreement (gave Buganda
a format of electing representatives to the Leg co.)
-
The
1958 memorandum by Buganda
to her Majesty’s government.
-
1958
– 1991, boycott of Leg co elections.
-
Katiikiro
of Buganda v Ag. Of Uganda
[1959] E. A 38.
-
Lancaster
and Marlborough conference 1961 and 1962.
Article 4 stipulated that the revenue of
Buganda
kingdom that was collected would be
merged with the general revenue
of the protectorate. The implications of this provision,
was to undermine the economic
independence of the Kabaka and his kingdom and is one
of the provisions in the
Agreement that ceded economic power to the colonial
administration.
See
AG v Kabaka’s Government [1965] E.A 305
Article 5 stipulated that the laws made
for the general government of the protectorate
were applicable to Buganda
except where they were a conflict with the terms of the
agreement in which case the
terms of the agreement were to prevail. The significance of
this article lies in the fact
that it laid down the law applicable as between the protectorate
laws and the agreement
provisions. It was largely designed to appease the kingdom in
giving the impression of the
supremacy of the terms of the agreement, but this would
eventually turn out to be an
empty gesture as it did not stop the colonial administration
from overriding the terms of
the agreement. When it suited the administration and several
cases would later demonstrate
this fact.
See R. v Besweri Kiwanuka
(1937)
Mukwamba v Mukubora (1954)
Nasanairi Kibuuka v Bartie
Smith (1908)
Katozi v Kanizi (1907).
Article
6: Stipulated
that His Majesty’s government would recognize the existence of the Kabaka and
give him protection, the Kabaka, chiefs and people of Buganda would conform to the laws
and cooperate with the colonial government. This article is the crux of the
entire agreement as it dealt with the essential elements of the imposition of
colonial rule in Buganda.
i) Indirect rule between the Kabaka and
the native ruler of his people.
ii) Subordination of the kingdom to the authority and over rule
of the colonial administration.
iii) The failure to cooperate was to result in withdrawal of
protection and recognition.
Mukwaba v Mukubira 1954: Issue related to legality of
the withdrawal of recognition of
the Kabaka resulting in his deportation. There are other
significant aspects to Article 6
including:
i) It attempted to address the issue of succession to the
Kabakaship in Buganda
by placing the duty upon the lukiiko to nominate and elect a successor.
Although the colonial government would have the final say on who eventually
became the Kabaka.
ii) It spelt out the jurisdiction of the court in the Kabaka’s
kingdom stipulating that this jurisdiction would cover only cases involving
natives (cross-reference to Article 8).
iii) It spelt out remuneration of the Kabaka and that he would be
guaranteed a yearly allowance of pounds 1,500 as well as pounds 650 for
household needs during his year of minority while the regent would get an
annual salary of 460 pounds.
iv) It stipulated that the Kabaka would be
addressed as His Highness and receive a 9 gun salute at functions (while His
Majesty of England got a 21 Salute).
It is clear from Article 6 that
with overall authority was vested in the colonial government
and the Kabaka rule at its
pleasure.
Article 7 provided that the Namasole
mother of the Kabaka was to receive a lifetime
allowance of 50 pounds a year
while this sum was designated during her life time, it was
one-off allowance that would
not continue for the subsequent Namasoles.
Article 8 provided that in cases of a
mixed nature cases involving
natives and non-
Natives these were subject to
the jurisdiction of the British Courts (cross reference 1902
Order-in-Council sec. 15).
Article 9 as already noted divided Buganda
into 20 administrative units (counties) each
of which was to be headed by a
chief appointed by the Kabaka’s government and
approved by the colonial
administration. The chief were to receive an annual salary of
200 pounds and carry out a
number of functions including :
i) Administering of justice (in effect the chiefs were the
judicial officers in the Kabaka’s courts).
ii) assessment and collection of taxes up keep and maintenance of
roads.
iii) Overall supervision of native affairs
with respect to all their functions, except for the collection of taxes, the
chief was to report to the Kabaka’s government. As regards taxes, the chiefs
were responsible to the colonial government.
If a chief failed to carry out his duties diligently, the
colonial Government could call upon the Kabaka to dismiss and replace him.
Article 10 stipulates that the Kabaka
would be allowed three ministers (native officers of
state)
including:
i) Prime minister (Katikiro)
ii) Chief Justice (Omulamuzi)
iii) Treasurer (Omuwanika)
who were to be approved by the
colonial administration.
The three ministers were to
receive an annual salary of 300 pounds (except where they
were regents for which they
received 400 pounds). The native officers of state were to act
as a conduit for relations
between Kabaka and the colonial administration. The P.M was
to be an ex-officio member and
president of the lukiiko. While the Chief Justice was to
be the vice president.
Article 11 constituted the lukiiko as the
native legislative body of the kingdom apart
from the three ministers, it
was to comprise each county chief (who
were also to be ex-
officio members and seven other
persons nominated by the Kabaka.
Functions of the lukiiko were:
i) Discussion and legislation on all matters relating to the
administration of the kingdom.
ii) Act in certain instances as courts of appeal involving
property and sentences of imprisonment.
Notably the lukiiko had no power over the property
belonging to Europeans.
iii) Membership of the lukiiko was confined to the natives of Buganda
and on selecting his representatives; the Kabaka was under a duty not to take
into account the religious affiliation of the person selected.
Article 12 provided for taxation as a
means of raising finances and revenue towards the
administration of the kingdom
and the protectorate. A system of taxation involved the
following taxes:
i) A hut tax of 3 rupees or 4 shillings per year imposed on
every hut used as a dwelling place.
ii) A gun tax of 3 rupees or 4 shillings per year to be paid by
any person who possessed a gun.
Article 12: However contained exemptions of certain
persons from the payment of gun
tax in respect of a certain
number of guns thus the Kabaka was granted 50 guns for 50
men in his household. The
Namasole was to get 10. The ministers 20, county chief
10 and other membership of the
lukiiko one.
The system of succession was
however not to affect:
i) Exterior taxation i.e customs and port dues.
ii) Rates on things such as water, lightings, market dues.
Significantly Article 12 embodied the principle of no
taxation without representation or legislation. Given that no other tax was to
be imposed except by the majority of the lukiiko.
Article 13 dealt with the question of
military service in Uganda
by recognizing the
Kabaka’s preexisting right to
conscript able bodied men for military service in the
defence of the kingdom were the
need to arise. However this right was now to be
exercised under advice of the
colonial administration. Article 13 as with other provisions
of the agreement affirm the
laws of the Kabaka of his authority in the kingdom in this
regard in respect of military
affairs.
Article 14 provided for the maintenance
of roads in the Kingdom. It would give the
county chief labour and free
able bodied men to compulsory work on the up keep and
maintenance of roads
Article 15 concerned with the
distribution of land and was to be of great significance the
subsequent history of Buganda
and the protectorate at all. The land was distributed as
follows:
i) 1,500 sq. mile of forest came under the control of the
control of the colonial administation
ii) 9,000 Sq. Miles of land was vested in her majesty’s
government and under the control of the colonial administration.
iii) 19,000 and
9,000 sq. miles came to constitute the crown land. (cf Article 18 compensation
for the 10,500 sq. miles).
iv) 330 sq. miles of plantations and other private property for
the Kabaka 16 sq. miles for the
Namasole, 10 sq. miles and other private property for the king’s mother.
v) 320 sq. miles for the 4 princes.
vi) 960sq. miles for the princesses, and other relatives of the
Kabaka.
vii) 920 sq. miles for the county chief of which 160 sq. miles was
held as private property/ each chief and the other 160 sq. miles was the
official estates of the county.
ix) 96 sq. miles for the regents of which 48
sq. miles was private property each regent 16 sq. miles and the other 48 sq.
miles was official estate advanced to the office of the regents.
xi) 24 sq. miles for Nuwa Mbogo, leader of the Muhandans.
xii) 20 sq. miles for the Kamuswaga
the chief of (kooki).
xiii) 180,000 sq. miles for 1,000 chiefs and other private owners.
There were mostly estates already on possession and each was composed at an
average of 8 sq. m.
xiv) 92 sq. miles for the three missionary societies.
xv) 50 sq. miles for the colonial government for its station and
offices.
Because of distribution of land
in sq. miles, it came to be known as mailo land, although
it is basically freehold.
Article 15 would have a significant impact
on the political, socio-economic and cultural
destiny of Buganda and the protectorates.
i) It led the disposition of the Kabaka’s
authority over the Butaka/customary tribal land. It would ultimately lead to
the demise of communal land ownership in Buganda. This was made more
apparent by the pressing of Buganda
land law of 1908 which allowed for the alienation of land in Buganda.
See Mwenge
v Migade (1933).
ii) Given that mailo land was free hold, it placed emphasis on
individual ownership and as such land became the basic unit of economic
development of the protectorate. The difficulties of the relations would emerge
in the early period of colonial rule.
Articles 16 and 17 dealt with the promulgation of
Forest Regulations and rights over
ministers on private estates
and further confirmed the colonial government’s grip and
control over economic and
natural resources.
Article 20 stipulated the instances in
which the colonial government would repudiate
(revoke) the agreement on
account of the conduct or acts of the Kabaka or chiefs or
people’s of Buganda. One
such instances was the failure to raise a minimum amount of
revenue or the taxation due.
Article 21: Although the agreement was
written in English and Luganda, the English
version was the authoritative
text to be used in its interpretation.
THE 1902 ORDERS– IN –COUNCIL
The 1902 order-in-council
formalized colonial rule in Uganda
and was the fundamental
Law of the protectorate. The
order in council was in exercise of power granted to His
Majesty’s government under the Foreign Jurisdiction Act of 1890 to
legislate with
regards to foreign territories
of the United Kingdom.
1902 orders-in-council dealt with
several matters of
constitutional significance ranging from the provincial and
administrative divisions,
structures of government. Administration of justice and the
maintenance of law and order to
the applicable laws. As the fundamental law of the
protectorate, the
Order-in-Council provided for the following:
1) First and foremost, it defined the provinces and
administrative divisions of the protectorate under Article 1. In so doing it
defined the extent of the applicability of Order-in-Council as a constitutional
instrument. As well as the extent of the jurisdiction of the colonial
government in the protectorate. The divisions originally established by the
Order-in-Council were five.
a) The Central province consisting of the
districts of Elgon, Karamoja Busoga, Bukedi and Labwor.
b) The Rudolf province consisting of the
districts of Torkwed, Turkana and Dabossa.
c)
The
Nile province consisting of the districts of
Ddinga, Bari
and Shuli.
d)
The
western province consisting of the districts of Bunyoro, Toro and Ankole.
e)
The
kingdom of Buganda and the islands appertaining
thereto (Article 3 of Buganda government).
In 1926, a border adjustment
took place to transfer a part of eastern Uganda to the Kenya colony.
This was undertaken by two Orders-in-Council that is the Kenya Colony and Protectorate (Boundaries)
Order-in-Council of 1926. Proclamation
under Article 6: Uganda
Order-in-Council of 1926 as a result of which what was referred to
as a Rudolf province became part of Kenya. The protectorate was divided
into districts and sub-districts for the purposes of its administration and
this was a power conferred by Article 6 to the commissioner.
2) It
provided for the office of the Commissioner under Article 4 and 5 who
was to take overall control of the administration of the protectorate as the
chief representative of His Majesty’s government. The commissioner would later
become the Governor under the provisions of the 1920 order-in-council.
3) The Order-in-Council provided for crown lands under Article 7 which were under the control of
the commissioner. The order-in-council defined crown lands to mean all public land land in the protectorate that
had been subject to the control of His Majesty by virtue of any treaty
convention or agreement and all land, which shall have been acquired for public
service (Article 2). Similarly minerals and mines were to vest in the colonial
government, under Article 7 (clause 4). In effect the control of the
greater part of land and natural resources in the protectorate was vested in
the colonial government. The definition of crown land by reference to
agreements was intended to affirm the public lands acquired under Buganda, Ankole
and Toro agreements.
4) The Order-in-Council empowered the
commissioner to make laws under Article 8-10. In 1920, this function was placed
in the hands of a legislative council. However, by virtue of the 1902
order-in-council, the commissioner was able to make laws for peace, order and
good governance in the protectorate between 1902 and 1920.
5) The Order-in-Council established a system of exercise of
judicial power comprising of the Courts of Justice, in particular the High
Court which was to have full civil and criminal jurisdiction on all persons and
matters in Uganda.
This was provided for under Article 15 (clause1). The court was referred
to as His Majesty’s High Court of Uganda.
6) The Order-in-Council contained a reception clause under Article
15 (clause 2). The reception clause essentially defined the law to
be applied in the protectorate and in particular in the judicial determination
of disputes and matters by court. The applicable law was to include in law,
doctrines of equity and statutes of general application of force. The reception
date of Statutes of General Application was legislation in force in England as of 11th August 1902.
This is how laws such as the Evidence Act, Contract Act, Sale of Goods Act, and
Penal Code came to be part of the laws of Uganda.
7) The Order-in-Council contained a repugnancy clause under
Article 20. The clause recognized the application of native laws and customs in
disputes involving natives as long as they were not repugnant to natural
justice and morality.
Article 20 provided: in all cases, civil
and criminal to which natives were parties, every
court shall:
a) be guided by native law so long as its
applicable and is not repugnant to justice
and morality or inconsistent with any order-in-council or ordinance or any
regulation or rule made under any Order-in-Council/or ordinance.
b) Required the courts in such disputes between natives to
decide all such cases according to substantial justice without undue regard to
technicalities of procedure and without undue delay.
nb R v Yowasi K. Paulo et
al (1922) is a forerunner to Article (d) & (e) of the 1995.
The repugnance clause was
intended to remove those customs and laws that were
considered negative and
repugnant to natural justice and good conscience. The major
problem with the clause was
that the negative and repugnant aspects of a custom were
perceived in the eyes of the
colonial judge. In other words, it was a subject test which
was applied according to the
morals and standards of an English person. As a result of
this subjectivity, many native
laws and customs which were fundamental to the social
fabric of the native
communities were rendered inapplicable at the stroke of the English
man’s pen. The subjectivity of
repugnance of native custom was reflected upon by Justice
Wilson in the case of Gwao Bin Kilimo v Kissunda Bin Ifuti (1928) 1 T42 403 in
which be admitted that the test
is one of English morals and standards.
The most famous case on the
repugnant clause was R. v Amkeyo (1917)
KLR 14.
Amkeyo had been charged and
convicted of possession of stolen property and the man
witness against him was a woman
whom he claimed to have married according to native
custom.
On the basis of the law of
evidence, the testimony of this woman should not have been
admitted given the desire to
protect marital confidence. The issue by the court was
whether a woman married under
native custom was a wife in the strict sense of the word
and in effect that the
relationship between Amkeyo and the woman could be construed as
a marriage.
Hamilton C.J took the view that
the relationship between Amkeyo and the woman in
question was for lack of a
better phrase “wife purchase” and that it did not fit in the
idea of marriage as generally
understood among civilized peoples and that the native
custom was supply repugnant to
good conscience and morality. In holding that the
relationship under native
custom was not a marriage, the C.J underscored the standards of
a marriage as understood among
the English.
The rejection of a relationship
under native custom as a marriage was founded on a
number of reasons:
i) There was no consent on the part of the woman as she was
not a free contracting party.
ii) The element of bride price or bargain made the woman to be
rather in the nature of a (chattel).
iii) Relationship under active custom was potentially polygamous.
Read these Cases
Abdulrahaman v R.
(1962) E.A
Whether a relationship contracted under Mohammedan law
was a marriage.
Uganda v Alai
(1967) E.A 596
Alai was accused and charged with
adultery. And his argument was that the woman was
married under customary law, so
she was not a wife. Held: Udo Udoma C.J, held that
marriage under the laws of Uganda included
relationship under civil, customary laws.
Nb After 1964, laws were made to
recognize all forms of marriage.
The repugnance clause has
survived beyond the colonial period and has been stipulated
under the various Judicature
Acts since, that is the 1962, 19678 and 1996
Judicature Acts (now cap 13
Laws of Uganda 2000).
Qn. Is the Repugnance test really the suitable test for determining
the validity and continuity of custom or should the test be rather one of
consistency with the constitution, that is Article 2 (2), 33 (6) and 246 (2)
among others.
Gwao
Bin Kilimo v Kissunda Bin Ifuti (1928) 1
T42 403
A government tax clerk named
Mange received 10 Shs. From Kisunda for poll tax
issued him with a false tax
ticket and converted the money to his personal use. Mange
was charged and convicted in a
criminal court. Subsequently Kisunda sued for the return
of his 10/= and obtained
judgment in his favour thereafter, Kisunda went and took
possession of 2 heads of
cattle, which wasn’t property of Mange but the father Gwao Bin
Kilimo unsuccessfully objected
to the native and so brought the matter to the High Court. The issues by the
High Court were:
1) Whether there was an authentic Turu native law, which allows
the taking of a father’s property in compensation for a wrong done by a son.
2) Whether this native law is consistent with the repugnancy
clause
By Article of 24 of the 1920 Tanganyika Order-in-Council. A
British court may or should be guided by native law. The court noted that the alleged
native law was not of universal application and so baraza of chiefs had never
enforced the custom.
Nonetheless, Judge Wilson went on to reject such a custom
as being repugnant because it could never be expected that an individual should
bear responsibility of the conduct of another adult person and therefore the
alleged Turu native law was
repugnant to justice and morality.
Mwenge
v Migade (1933)
Migade wanted to sell land
which was part of Butaka and Mwenge challenged his right to
do so on the basis that Butaka
land was inalienable in native Buganda
customs. The issue
before the court related to the
instance and continuance of customary
tenure in Buganda.
The court considered the
provision of the 1900 agreement and the land legislation passed
by the Buganda
government. (Buganda Land Law of 1908)
and when not to hold that
the practice in Buganda showed
that butaka tenure no longer existed and therefore, by the
provisions of the land law. The
continued existence of the alleged custom was repugnant
and that the custom must be
repealed as abrogated and destroyed.
Kajubi v Kabali
(1944) 11 E.A.C.A
R. v Paito and others
In this case, the accused and 5
others were arrested for;
Proceedings in the court, the
court adapted procedures peculiar to the native. The
procedure normally is for the
complainant to prosecute since there is no designated
prosecutor under Buganda native
laws – given that the Kabaka was the aggrieved
person
and could not appear in his own
courts to prosecute, the court acted as prosecutor putting
questions to the accused itself
and finally convicting them. On appeal to the High Court,
the three accused that the
procedure adapted was irregular. The High Court held that the
procedure of the lukiiko court
is not expected to be the same as in a British Courts. But as
long as the procedure of the
lukiiko allows for substantial justice being done, there are no
grounds for setting aside a
decision of that court for irregularity.
8. The Order-in-Council provided for the power of the
commissioner to order the removal or deportation of any undesirable person from
the protectorate, in order to preserve peace, order and good governance. This
favour was provided under Article 24 and 25. An order of removal or deportation
was not subject to judicial appeal before the courts as a result of the
provisions of Article 24 and 25. The commissioner made laws for removal and
deportation:
1)
Removal of Undesirable Natives
Order 1907
2)
Deportation Ordinance 1908
This was revised four times
between 1908 and 1956.On the several occasions during the colonial period,
orders of removal and deportation were issued to deal with art-colonial
sentiments instances included:
Deportation of several members
of the Bataka party after the riots in 1940s.
Deportation of Kabaka Mutesa II
in 1953.
Re
GL Binaisa (1959) E.A 997
Judicial inquiry pending
deportation.
The Deportation Ordinance would
survive into post-independent Uganda
as Cap 46 and its constitutionality would finally be challenged in Ibingira I
in 1956.
Implications of
Order-in-Council 1902 in terms of constitutionalism.
The Order-in-Council is
important because it was the first legal instrument to establish a framework of
government for the whole of the protectorate. It put in place the basic elements
and structures of government, which would influence politics and constitutional
government through the colonial period as well as post independent Uganda. On the
other hand, the Order-in-Council tended in other respects to negate the ideas
of constitutionalism including those ideas, which had developed in Britain at the
time e.g.
i) It did not respect the doctrine of
separation of powers given that the legislative and exercise of powers were
vested in the one person of the commissioner
ii) It did not recognize the rule of law by
applying double standards an open discrimination between the natives and the
Europeans. For instance on terms of adjudication of disputes.
The absence of the rule of law was
also apparent in the denial of the right of recourse to court by individuals in
respect of the acts of the colonial authorities.
iii) It did not define the rights and freedoms
of the individual in fact apart from a casual reference to Habeas Corpus; the
Order-in-Council does not mention human rights whatsoever. The question that
has been significant in Uganda’s
constitutional history has perhaps been on the relationship between the
Order-in-Council and the kingdom agreement, Article 5 stipulated that the
agreement would have procedure over other laws of the protectorate. The
relationship between the Order-in-Council and the kingdom agreement would be
the subject of dispute in a number of cases.
Nasanairi
Kibuuka v Benie Smith, (1903) 1U.P.L.R 34
The issue related to the
legislative powers reserved the kingdom
of Buganda
under the 1900
Order-in-Council. The court held that his Majesty’s government
did not acquire powers in Buganda which
had not been granted by the 1900
agreement. Carter, J noted that
“As I understand the agreement, it is not to be
regarded as taking away any
right or power of the Kabaka except by its express
provisions. Therefore whatever
powers had Kabaka before remained with
him except as far as they are
expressly taken away or limited. A sovereign
state has undoubtedly the power
of legislating which was the case prior to
the 1900
agreement, in so far as am aware which the agreement takes away this
right”.
Katozi v Kanizi
(1907) 1 U.P.L.R.24
This case involved
the conflicts between the 1901 Ankole agreement which
reserved certain
judicial powers in Ankole native courts and the terms of the 1902
Order-in-Council
which in establishing the High Court claimed to give it full
jurisdiction
within the protectorate territory. The High Court held that the Order
in-Council did not
alter existing kingdom agreements. The court’s decision was
supported by the
secretary of state for the colonies who stated:
“The
validity of Uganda
Order-in-Council, 1902 is so far
as it nullified this reservation of
judicial powers is
open to question. In these
circumstances am advised
that the Uganda-Order-in-Council of
1902 should be
construed in such a manner as not to
impair the rights
and powers reserve”
These two early
cases, indicate the courts giving prominence to the kingdom
agreement and
bearing powers reserved to the native institutions under those
agreements. In the
subsequent decade, the courts demonstrate a shift in approach
that would result
in the virtual disrespect the kingdom agreements.
R. v Besweri
Kiwanuka (1937)
The issue was
whether the High Court established under the Order-in-Council had
jurisdiction over
matters and persons in Buganda.
The Buganda Agreement had
not explicitly
stated whether or not this would be the case (Article 6). As in the
Katozi case, the
issue was referred to the Secretary of State of the colony whose
reply was to
affirm that the 1902 Order-in-Council was superior to the kingdom
Agreement. The
court eventually held that the 1902 Order-in-Council, Her
Majesty’s
government had made manifestions to the extent of his jurisdiction in
Uganda and further
that such manifestation was to be regarded as an “act of
state” which was
not challengeable before Her Majesty’s courts
Mukwaba and
others v Mukubira and others (1954).
One of the issues
raised before the court related to the validity of the withdrawal
of recognition and
deportation of the Kabaka in 1953. The court held that the
withdrawal of
recognition under Article 6 of the Buganda agreement was an Act
of State in which
case, the court would not be able to inquire unto its validity.
Katikiro of
Buganda v A.G (1959) E.A 382
The issue was
whether the protectorate government in conducting the 1953
Buganda Agreement
which provided for a format of indirect elections for
Buganda. The court
held that the conclusion of the 1955 agreement was an Act of
state and
therefore not challengeable before her Majesty’s court .
Daudi Ndibarema v
Enganzi of Ankole (1960) E.A 47
The issue was the
validity of the Ankole Land Regulations of 1958 in relation to
the 1901 Ankole
Agreement. The conclusion between the Ankole Agreement
amounted to an Act
of state upon which no inquiry could be brought before the
courts.
Shobuza
II v Miller and others (1926) AC 518
These cases ended
the debate about the superiority as between the Order-in-
Council and
kingdom agents and the courts difference to the Act of state doctrine
was in the
interest and political convenience of the colonial government. Most
significantly it
demonstrated the fact that the colonial government did not respect
or feel itself
bound by the provisions of those agreements.
IMPOSITION
AND OPERATION OF COLONIAL RULE BETWEEN 1902 AND 1920
Once
the Buganda agreement had been signed and 1902 Order-in-council enacted, the
British government spent the next two decades consolidating its authority and
over rule. In between the two instruments other kingdom Agreement had been
signed with Toro and Ankole with administrative structures set up under those
kingdom Agreement essentially similar to those of Buganda (counties, chiefs,
native courts and legislative councils, officers of state etc) Outside the
kingdom areas, or addition to the 1902 Order-in-Council the primary instrument
for the consolidation of colonial rule was the Native Authority Ordinance of 1919
which made provisions for the powers and duties of chiefs and for the
enforcement of authority in their areas of jurisdiction. The 1919 Ordinance,
the chiefs had administrative duties (collection of taxes, supply of labour for
the maintenance of law and order, prevention of crime, arrest and detention of
people’s and animals etc).
In
1920, another Order-in-Council was promulgated and whose major significance was
the introduction of district organs of government. This was actually the
primary purpose of the Order-in-Council as was apparent in its preamble which
refers to the necessity of executive and legislative councils. The main changes
introduced by the 1920 Order-in-Council:
1. It changed the nature of the head of the protectorate from
commissioner to governor. A term that would remain until 1962.
2. It established the Executive Council under Article 6 as a
formal executive arm of government and was to consist of such members as His
Majesty’s government would deride to appoint. In the subsequent years, the
executive council would consist of officers such as.
i)
Director
of Finance
ii)
Director
of Medical Services
iii)
Director
of Transport
iv)
Attorney
General
v)
Director
of Agriculture
3. It established the legislative council (Article 7) 10-17 as
the formal legislative organ of government and was to executive the legislative
powers hitherto by the commissioner. The commissioner hitherto exercised the
legislative powers. The legislation council was to consist of the governor and
not less than two other persons appointed by His Majesty’s government. The
powers of the legislative council were:
i)
To
make laws
ii)
Constitute
the courts
iii)
General
oversight of administration of justice and maintenance of peace, order and good
governance. Laws made by the legislative council were to be sent to the
governor for assent otherwise they lacked validity. The governor had a right of
veto on all matters legislative council.
4. Members of the Legislative and Executive Council sat at the
pleasure of His Majesty’s Government and therefore would be removed from
office. (Article 6 and 7). The governor was also given power to suspend either
members of the executive and Legislative Council which suspension had to be
confirmed by his Majesty’s government and if so done, the particular individual
must vacate membership on either council (Article 16).
5. The judicial system put in place under the 1902
Order-in-Council remained largely intact. The Eastern African Court of Appeal
would be established a year later by the 1921 East Africa Court of Appeal
Order-in-Council.
The Order-in-Council is significant in Uganda’s
constitutional history as for the first time; the best features of a typical
constitutional state are seen to take shape. There is more less a clear
demarcation of the three powers under the 1902 Order-in-Council. However, it
was still designed to retain and reinforce colonial authority given to closer
relationship on the powers of government such that there had not been much of
the transition in the actual distribution of power. In effect, the
Order-in-Council confirmed the reforms. This is evident from the membership of
the executive and legislative councils under the Order-in-Council. The
ex-officio members of the legislative council were largely drawn from the
public service including the Executive Council and there were the majority
while official members were a minority. Further, the governor’s right of veto
and power of suspension of members rendered irrelevant any demarcation of
powers between the arms of government.
In effect, while there were district organs of government
and an increased number of persons involved in the administration of
government, the powers of the government remained largely intact. Finally in
spite of the creation of the executive and legislative councils, the management
would for sometime continue to exclude Africans and other non-European
community from their membership.
DEVELOPMENTS IN THE PROTECTORATE FROM 1920s – 30s
In the 1920 and 1930s, there
were a number of developments but two in particular stood
out significantly.
i)
The
Asian question in terms of political representation and economic interest.
ii)
The
Bataka and peasant grievances in respect of relations on land in Buganda.
THE ASIAN QUESTION
After 1920, demands for
participation in the protectorate government would be made not by the native
Africans but by the other non-European community, the Asians. The Asians had
come to E. Africa at the close of the C19th
mainly to
construct the Uganda railway. After which most settled in Kenya and Uganda
carrying on trade and commerce as their main occupation. By the 1920s, the
Asian community was significant and because of their numbers, they argued for a
political and economic state in the protectorate. The Asian community put
pressure on the colonial government for representation in the legislative
council and this would bear fruit to the nomination in 1926 of the first Asian
representative Chinubhai Jethabai Amin to the legislative council. In effect,
the first non-European representative on the Legislative Council was Asian
rather than African. It would take another 19 years before African
representative to the legislative council was recognized. The Asian question
would throughout the colonial period affect politics and government in Uganda.
In
terms of economic interest, the promotion of the Asian economic prosperity was
not by accident nor was it their doing for discriminatory and racist laws put
in place by the colonial government results economic privileges and ultimate
domination of trade and commerce by the Asian community. This domination was a
result of laws and policies, which excluded Africans trading within a specified
radius of an urban center. The Trading Ordinance of 1938 would prohibit
Africans from trading within a radius of 10 miles of an urban center or
township. The Trading Amendment Ordinance-1930 attempted to reduce the effects
of the ordinance by reducing the limitation of 1-mile radius. Similarly,
Africans were prohibited from growing cotton, processing coffee as well as
engaging in export-import trade thus the foundation of the economy of the
protectorate was left largely in the hands of the Asians. This led to friction
and antagonism against the Asian community such that wherever there were
uprisings and riots, as occurred in the Bataka uprisings of the 1930s and
1940s, the Asian community was a prominent target of expressions of
Anti-colonial sentiments as they were identified as part of the repressive colonial rule. One
can in fact say that the 1972 expulsions represented the culmination of the
African dissatisfaction with the Asian community.
GRIEVANCES OF THE BATAKA AND PEASANTS
The
protectorate underwent significant developments between 1900-1930 particularly
in Buganda. During that period, the power of the mailo land beneficiaries was
on the increase and this was set against the dissatisfaction of those who had
been disposed by the land redistribution under the 1900 Uganda Agreement that
is the Bataka clan leaders. When Kabaka Chwa II took over from the Regents, the
Bataka who had formed a quasi
political
association, the Bataka Association in 1921 appealed to the Kabaka to ask the
Governor for a period of the agreement. They were joined in this appeal by the
peasants who were burdened by the rent (Busuulu and Evunjjo) paid to the mailo land owners. Although
Kabaka Chwa II was sympathetic, the Lukiiko which was composed of the main
beneficiaries of the land distribution rejected the demand. Nevertheless, at
this point in time, the colonial government had itself been concerned about:
i) The relations between landlord and
tenant in Buganda.
ii) The system of land tenure in Buganda was not delivering
efficiently in economic terms and
iii)
The
Bataka grievances which if not addressed threatened to been even more
problematic to the administration of the protectorate. Under these
circumstances the colonial government set up a commission of inquiry in 1925
and in 1928 wherefore the Busuulu and Envujjo Law was enacted
to bringing to an end to the previously unlimited amount of rent and tribute
that the landlord could extract from tenants. Given that the amount payable was
often arbitrarily determined by the landlord. The peasants had therefore felt
oppressed by the system and the colonial government admitted that the state of
affairs was not economically productive. In this regard in 1928, Busuulu and
Envujjo law did:
1. That a limit in the amount of Busullu and Envujjo that
landlords could extract from tenants.
2. Guaranteed to Buganda peasants, complete and hereditary
security of tenure that is they could not be evicted for simply failing to pay
rent and so allowed for the continued cultivation of land.
Look at this particular part in Nabudere’s Imperialism
& Revolution in Uganda.
The Busuulu and Envujjo law of
1928 represented a revolution in the socio-economic
relations in the protectorate.
The law created new relations between landlord and
peasants by reducing the
arbitrariness and insecurity in those relations. Economically
the tenants gained security of
a use of the land and this ensured that cash crop production
continued.
- look at Mwenge v Migade (1933)
On the part of the Bataka who
had raised the peasants complaints, their own grievances
relating to the restoration of
their cultural authority over communal land were not
addressed. In fact, the Busuulu
and Envujjo law robbed them of their support base. The
case of the Kabaka was more
complex. On the one hand, he was seen a sympathetic
listener to the plight of his
people. On the other hand however, he was not actually able
to deliver any reform. His
prestige and position was generally undermined. That he was
to lament
“My present position is so precarious that am
no longer direct
ruler of my people. Am
beginning to be considered by my
subject merely as one of the
British government’s paid servants.
This is solemnly due to the fact that I do
not real power
of over my people. Even the
smallest chieftainship is under
the control of the provincial
commissioner. Any order
given whether by the local
chiefs or the Lukiiko is always
looked upon with contempt unless and until it
is confirmed
by the provincial commissioner.”
Look
at Yowasi K. Pailo (1922).
The
Busuulu and Envujjo law was able for the time being to diffuse social and
economic tensions in the kingdom. However, the failure to address the
grievances of the Bataka would result in increased antagonism and protests.
Most significantly, the Bataka would eventually organize the most prominent
early anti-colonial riots.
THE
HUMAN FACE PERIOD: COLONIAL REFORMS AND POLITICAL DEVELOPMENTS TOWARDS
INDEPENDENCE:
The
developments in the 1940s in Europe and domestically in the colonial gave way
to what tends to be referred to as the human face period of colonial
administration. This can be attributed to a number of factors.
i) The war in Europe had resulted in the weakening of the
economies of most European powers and so rendered it difficult to maintain the
administration of the colonies.
ii) Africa participation in the war in places such as Burma and
India (for instance by the King African Rifles) had awakened an upsurge of
nationalistic feelings and desires for self-government. This was given impetus
by the UN’s emphasis on self-determination under its charter and the 1952
General Assembly resolution on the grant of independence to colonial
territories and peoples. (Res. 1514(xx) (1960). Further, the appearance of the
labour government in U.K with policies more inclined to the granting of self
government to the colonies would gradually see the grant of independence to the
British colonies.
iv)
Domestically,
in the protectorate, the Bataka upsurge saw it emerge as a strong political
force turning the 1921 association into the Bataka Union in 1945 and
with a more nationalistic and political
outlook. The Bataka Union would stage strikes and riots in Buganda in 1945
and 1949. They did also submit a memorandum to the colonial government in 1945
asking for social-economic and political reforms (native election of their own
chiefs, rights of natives to grow and process cotton and coffee as well as
engage in export trade. The Bataka union was subsequently banned in 1961 as an
unlawful society by the Penal Code Ordinance of 1951, but its legacy was to
inculcate nationalistic feelings and the ultimate emergence of nationalistic
political organizations for instance the Uganda National Congress.
KABAKA CRISIS, 1953 – 55 (look
at Kanyeihamba’s Constitutional History of Uganda)
In January 1952, Sir Andrew
Cohen arrived as governor and during his governorship, he sought to reform
colonial policy particularly as regards:
i)
The
creation and training of African administrators.
ii)
Increment
of African participation in the protectorate government.
iii)
Placing
of local government on a stable and democratic platform.
Significantly one of Sir
Cohen’s first concerns was in regards to Buganda. In March 1953 Cohen issued a
joint memorandum with the Kabaka on constitutional development and reform in
Buganda providing for:
i)
60
of the proposed 89 members of the Lukiiko were to be elected.
ii)
The
Kabaka was to consult the committee of the Lukiiko before selection of his
minutes.
iii)
Increment
of the responsibilities of the Buganda government and the devolution of
services as such local services, on primary and junior secondary, rural
hospitals and dispensaries, field services for soil conservation livestock
breading and disease control were to be transferred to the Buganda government.
The
devolution of services appeared to be contrary to the promotion of the
protectorate unity as was regarded by Sir Cohen as essential to it. In fact the
reforms of March, 1953 were an attempt to forestall a federal system rather
than an essential step towards it. The memorandum in fact provided:
“The Uganda’s protectorate has been and will continue to be
developed
as a unitary state.”
Significantly
the 1953 reform would demonstrate the dependence of the colonial government on
the legal cooperation of the Kabaka with the ascendancy of Mutesa II as Kabaka,
his strength was bound to be the cause of friction between the Buganda government
and the colonial government. Educated at Cambridge and already offended that he
was not treated with honour at the coronation of Queen Elizabeth II in 1952,
the reliance on Mutesa II to promote colonial government policy was unlikely to
be a happy cirmustance. Nonetheless Mutesa II was keen to support the March
1953 reform but where the Cohen policy in its strong belief that Uganda must
develop as a unitary state threatened the tribal loyalties. This would result
in tribal institutions including the Kabakaship declining in importance. This
factor and concern would spark off the crisis in Buganda that came to be known
as the Kabaka crisis of 1953 – 1955. The Kabaka crisis of 1953 – 1955 was
sparked off by a speech made on 30th June, 1953 by the Secretary of
State for the colonies in which he referred to the possibility.
“As time goes by of larger measures of unification
and possibly still
larger measures of federation of
of the whole East
African territories.”
This
pronouncement caused adverse public reaction on Buganda. In a seriously worded
letter, Kabaka Mutesa II urged that the affairs of Buganda be transferred from
the colonial office to foreign office and that the time table be prepared for
the independence of Buganda. In particular, they later rated that;
“The Kabaka and his ministers could no longer feel
happy about Buganda’s
position under 1900
agreement. Apart from
the danger of federation,
they considered the
policy of developing a
unified system of
government along parliamentary
lines which would result
in Buganda becoming less
and less important in
the future.”
The
Kabaka’s and Buganda’s demands were for more than a challenge to any proposed
federation as they meant a complete break with governor’s Cohen’s vision of a
unitary state in Uganda. The Kabaka’s letter would only reaffirm Buganda’s
separatist tendencies and assertion of claims to a special status that were
arguably evident since 1902. During the proceedings of a case filed in 1994 to
challenge the deportation of the Kabaka (Mukwaba and 2 other v Mukubira and 4 other).
The treasurer is recorded as having stated:
“After
some two or 3 years after the agreement, the
divisions (dependencies) into
provinces to rank as being equal
to Buganda province. As regards
administration we are of equal
rank but otherwise, we the Buganda kingdom is independent.”
On
October, 27th, 1953 the lukiiko passed a resolution (directing) the
advising the Kabaka to refuse to name any representatives of Buganda to the
legislative council. By 1945, African representation was first admitted in the
legislative council. They were to be three representatives, one being the
Katikiro of Buganda. Another to be the Katikiro of the other three kingdoms,
the other to be drawn from the other districts. The Lukiiko resolution not only
endangered the success of the newly reformed Legislative Council but also
rendered a unitary Uganda extremely unlikely. After a series of unsuccessful
negotiations, Sir Cohen put before the Kabaka certain undertakings to which he
was required to agree:
i) That the Kabaka would possibly cooperate in the future
progress of Buganda as an integral part of the Uganda protectorate in
accordance with the March 1953 reforms.
ii) That the Kabaka would submit names of Buganda’s
representatives for appointment to the legislative council.
iv)
That
the Kabaka would cooperate loyally with her Majesty’s government in the organ
and administration of Uganda in accordance with the 1900 agreement. When Kabaka
Mutesa II refused this undertaking, the governor withdrew recognitions from
him, declared a state of emergency in Buganda and deported the Kabaka to the
United Kingdom.
In the aftermath of the deportation of the Kabaka,
a case was filed by the High Court, Mukwaba and 2 others v. Makubira and 4
others Civil case No.50/1954. Three of the Kabaka’s nominees to the
lukiiko (plaintiffs) contested the right of the first four defendants who had
been nominated to be members of the lukiiko to take their place in the lukiiko
since they had been nominated by the Kabaka. The fifth defendant was the
Attorney General of the protectorate who was joined to the suit as some of the
issues related to acts of the protectorate government. The case eventually
became an indirect attempt to challenge the validity and legality of the
withdrawal of recognition of the Kabaka. The issues before the court:
i)
Whether
the one matter before the court was to justiciable.
ii)
Whether
the dispute between the Kabaka and the protectorate government related to the
organ and administration of the kingdom.
iii)
Whether
the acts of the Kabaka could justify the withdrawal of recognition in terms of
Article 6 of 1900 agreement.
iv)
Whether
appointment of the nominees to the lukiiko was valid.
On the first issue, the Attorney General had argued
before the court that the matter was unjusticiable. This argument was upheld by
the court which noted that although the 1900 agreement created legally
enforceable rights and obligations between the parties, these rights and
obligations were not enforceable before the court. The court therefore held
that the withdrawal of the recognition of the Kabaka was an act of state into
which the court was unable to inquire as to its validity.
On the second issue the court held that the matter
in respect of which the dispute arose between the Kabaka and the protectorate
government conerned the matter of a federation and cooperation of Buganda with
the reforms of March, 1953 and its representation in the legislative council.
There according to the court were not matters affecting organs and
administration of the kingdom within the meaning of Article 6 of the 1900
agreement, the court held that therefore, no right to withdraw recognition had
arisen from Article 6 in November, 1953.
On the third issue, the court held that the lack
of loyal cooperation must relate to the phrase.
‘Kabaka, chiefs and people of Buganda’ in Article
6 of the agreement and this must be read conjunctively. The court pointed out
that neither the chiefs nor the people of Buganda had shown any signs of
disloyalty or failure to cooperate and therefore, the Acts that were solely of
the Kabaka could not justify withdraw of recognition under Article 6 of the
agreement.
On the fourth issue, the court noted that in the
aftermath of the deportation of the Kabaka, the protectorate government passed
or enacted Emergence Powers (Regents of Buganda) Regulations of 1953 and 1954
which in themselves were superseded by the Regents Order-in-Council in 1954 (as
an Act of State). The court therefore held that the Regents Regulations were
affective to give the regents power to nominate members to the lukiiko
including the first four defendants. The court noted that the powers of
nomination of members to the lukiiko were previously those of the Kabaka and
before withdraw of recognition did not lie elsewhere than in the Kabaka. The
fact that the case was decided on the basis of the defence of ‘Act of State’ gave the impression that
the colonial government did not in fact respect the Buganda agreement or feel
itself bound by its terms’(see D.A Law & Pratt, Buganda and British
Overrule 1955 p. 342).
The reaction to the deportation of Kabaka Mutesa
II was overwhelming with Buganda in particular angered by the deportation. Even
the Uganda National Congress which was hostile to traditional institutions and
rulers joined the voices agitating for the return of the Kabaka. In the
aftermath, Sir Cohen set up a committee under the chairmanship of Hancock to
consider among other things the constitutional reorganization in Buganda,
continued participation of Buganda on the protectorate and representation of
Buganda in the legislative council. After several meetings between the Hancock
committee and the Buganda government (known as the Namirembe negotiations). It
was proposed to replace the traditional character of the kingdom with
structures of a modern representative government and therefore a new Buganda
Agreement of 1955 was conducted and shortly thereafter, Kabaka Mutesa
II was allowed to return. In the 1955 Buganda Agreement colonial government did
make concessions to the Kabaka and Buganda on the issue which had been the
cause of his deportation, thus in the preamble to the agreement , it was
provided:
“Her Majesty’s government has no intention
whatsoever
of raising the issue of
the East African federation, either
at the present time which
the local political opinion on the
issue remains as it is or
in the future and recognitions
accordingly that the
conclusion of the Uganda protectorate
in any such federation is
outside the realm of practice
practical politics at the
present time or while politic
opinion remains as it
is.”
The colonial government also undertook to consult
with the Buganda government on the matter of federation of it were arise in the
future. In effect the agreement laid to rest to the question of federation and
so upheld the Kabaka’s original objection.
The other main features of the 1955 agreement
were:
i)
It
constituted the constitution of Buganda and the Buganda government was
transformed into a constitutional monarchy in that the Kabaka had to appoint
his ministers in consultation with the lukiiko and not to the Kabaka.
ii)
The
participation of Buganda in the legislative council was clearly defined. The
election of Buganda’s representatives was to be undertaken through the lukiiko
as an electoral college thus the format of election Buganda’s representatives
to the legislative council was to be based on the form of indirect elections.
The composition and formation of Uganda’s representatives was under the
agreement not to be altered for 6 years.
In 1958, the government would conduct elections on
the basis of direct elections, which Buganda boycotted. In the following year a
case was filed by the high court, Katikiiro of Buganda v. Attorney General
[1959] E.A. 382 in which the Katikiro challenged the request by the
colonial government that Buganda elect its representatives on the promise that
the 1958 elections had not been conducted in accordance with the provisions of
the 1955 agreement and that since the colonial government was in breach of the
agreement, they had no obligation to organize the election of Buganda’s
representatives.
In essence, the 1955 agreement established a
framework within which Buganda would exist as part of a united although not
unitary Uganda and in which parliamentary system of government is pursued.
Following the deportation of the Kabaka, Mutesa II
was projected as a nationalist for standing up to the colonial government but
the reality was that he was only protecting Buganda’s sub-nationalist
interests. From 1955 onwards the Kabaka and his government embarked on a course
to ensure that protection of the interests of Buganda and Buganda’s separatist
tendencies heightened in the period after 1955 notwithstanding the formal
arrangements in the 1955 agreement.
BIRTH OF POLITICAL PARTIES IN
UGANDA AND COLONIAL REFORM (1952-1958)
It was at the height of colonial reform that
Uganda’s first genuinely nationalistic party, the Uganda National Congress was
formed by Ignatius Masaazi in March 1952. The party had a freedom charter and
manifesto, which asserted its main priorities to the realization of national
unity, freedom, peace and equality. The party was driven by the desire to
transfer power and authority from the colonialists to the indigenous people and
this desire was expressed in its slogan.
‘Self
government now’
The second political party to be formed was the
Democratic Party in 1954. It was also a nationalistic party with the main
objective of addressing what was perceived to be the historical discrimination
and marginalization of peoples of the catholic faith under colonial rule and
the Mengo administration. The Democratic Party nonetheless shared a common
vision with the Uganda National Congress that Buganda’s sub-nationalism was
incompatible with the notion of a unitary independent Uganda. This particularly
put D.P at loggerheads with the Buganda government throughout the period
preceding independence. Over the next eight years the Uganda National Congress
would disappear as the political parties merged including the Progressive
Party, Uganda People’s Union, Uganda’s People Congress and the Kabaka Yekka
Party. By 1962, only the Democratic Party and the Uganda People’s Congress
remained strong and steadfast as national parties while the Kabaka Yekka was
concerned with Uganda’s sub-nation as its interest. Political parties were the
major actors in the political and constitutional development of the
protectorate between 1952 and 1962 in several respects particularly:
i)
African
participation in the legislative council.
ii)
Participation
in the formation and constitution of government during the period of
self-government, 1961-1962.
iii)
Participation
in the debates and discussion of the constitutional proposals to a framework of
government for independent Uganda (during the Lancaster and Marlborough
conference).
The catchword of the colonial reforms during this
period was that of africanisation, that is the transfer of power into the hands
of the Africans. In this regard Sir Andrew Cohen expanded the representation of
Africans in the legislative council such that by 1954, Africans constituted
fourteen as against 6 Europeans and 8 Asians in the legislative council. Sir
Andrew Cohen also structured the ministerial system and positions for Africans
such that in 1955, 3 Ugandans became ministers, that is:
i)
Mungonya
ii)
Nabeta
iii)
Apollo
Kironde
Thus for the first time during the colonial
period, Ugandan’s would participate in government administration and policy.
After Sir Andrew Cohen left in 1957, the new governor Sir Hedrick Crawford was
faced with new demands for constitutional reform.
i)
That
election to the legislative council should be direct.
ii)
Districts
and other kingdoms demanded equal treatment with Buganda. In this regard the
new governor organized for election at the end of 1958 with the franchise of
illegible voters based on:
a)
The
voter most be able to read and write in his own language and
b)
The
voter must be the owner of freehold or mailo land.
If the voter was not a land owner, he should have
occupied the land for at least 3 years before registration or been regularly
paying taxes for at least 2 years or earning an income for at least 100 pounds
a year or owns property of at least 400 pounds. Although the franchise was
meant for propertied individuals, the 1958 legislative council would for the
first time in Uganda’s constitutional history be made of Africans
representatives who were directly elected. The only parts of the protectorate
in which the elections were not direct were Karamoja and Ankole whose
representative were chosen by the district councils and in Bugisu whose
representative was nominated by the governor. Buganda refused to send any
representatives to 1958 legislative council. The involvement of political
parties meant that the 1958 legislative council was made up of 5 members from
UPC, 1 from D.P and 7 independents. The constitutional developments of the
period following the 1958 elections were characterized by reports of two
commissions.
i)
The
1959 report of the Uganda Constitutional Committee with J.B Wild as its Chairman (referred to as the Wild Committee Report)
and
ii)
The
1961 report of the Uganda Relationship’s Commission chaired by the Earl of
Munster (referred to as the Munster Commission Report).
The commission and their reports were fundamental
for Uganda’s constitutional development at each point of time.
1) Report
of the Wild Committee (1959)
i)
To
advise, the protectorate government and to recommend on the form of direct
elections on a common role for representative members in the Legco. In other
words, previously elections had been segregated along racial lines. The fear
was that this would continue and cover that European and Asian would give
weighted votes, the other concern was that conferring the right to vote for
European and Asians.
ii)
To
advise on the total number of seats to be filled by the electorate.
iii)
To
determine the mode of allocation between the deferent areas of the
protectorate.
iv)
Consider
and advise on the question of representation by the non-Africans.
v)
To
advise on the size and composition of the government.
The committee was nonetheless boycotted by Buganda
who refused to submit its views. The recommendations made by the Wild Committee
were:
i)
The
next elections to be held in Uganda should be direct in all parts of the
protectorate and should take place not later than 1961.
ii)
There
should be a common electoral roll, which did not confer rights of citizenship
(to Europeans and Asians).
iii)
The
numbers of elected members should be increased and representation should be as
follows:
a)
For
urban areas 4 representatives
b)
Northern
Uganda 15
c)
Western
Uganda will have 12
d)
Eastern
Uganda will have 20
e)
Buganda
will have 20
Meaning a total of 76 members. The Wild Committee
also made certain recommendation outside its mandate, amongst which were:
i)
Apart
from the elected members of the Legco, there should be specially elected
members chosen by the Lukiiko sitting as Electoral College, to elect members
representing different interests and they were to be 6 in number.
ii)
The
party with a clear electoral majority should form the government and the losing
party would be in the official position.
iii)
The
executive council should become a council of ministers with collective
responsibility to the national assembly and that members of the council of
ministers should be selected from the elected notional assembly members with
selection of 3 members.
a)
Chief
Secretary
b)
Attorney
General
c)
Minister
for Finance
who were to be nominated by the
Governor
iv)
The
governor should have litle power if necessary.
Further in light of the many views that had been
expressed on the form of government that Uganda should adopt and or the
question of the relations between various peoples of the protectorate, the
committee recommended that by the 1961 relations, a conference should be called
to examine the issues and make comprehensive recommendations on these matters.
Hardening of Buganda as to its
status 1958 on wards:
While the wild committee was making its
constitution, Buganda kept on hardening as to its perceived status in the
protectorate. With the 1958 boycott, the hard-line demands comprising of the
Kabaka, Chiefs and Landlords began to embark on ways of ensuring that Uganda’s
autonomy was insecure. The boycott of elections had itself been designed to put
pressure on the colonial government to give in to the demands of the kingdom. A
movement began to grow in Buganda withits primary goal to secure the protection
of Buganda’s interests against the designs of the nationalists. The
administration of the movements function was the submission in November 1960 of
a memorandum to her majesty, the queen of England stating as follows:
a) British protection over Buganda
established by the 1900 agreement should be terminated.
b) As a consequence of the termination of
the stated plans should be immediately made from an independent Uganda. Amongst
other things, the plan would include:
i)
Establishment
of friendly relations between Buganda and her majesty’s government and the
exchange of Ambassadors and High Commissioners.
ii) Buganda would remain in the commonwealth and seek membership
of the UN
iii) All powers previously exercised by the
governor were to be vested in the Kabaka and his government.
iv) Buganda would have its own armed forces
with the Kabaka as commander-in-chief.
v) All institutions of learning in Buganda
with exception of Makerere College would fall under Buganda jurisdiction.
v) Arrangements for the independence of
Buganda should be complete by 31st December, 1960.
On 1st January, 1961, the lukiiko
declared the independence of Buganda. Although the declaration was never a
reality, the message was very clear.
Neither the protectorate government nor the
nationalist politicians could afford to ignore Buganda in the move to
independence and its demands and interest had to be given respect and
attention, failure of which the independence sentiment could not be realized.
This was sharply brought home with the preparations the 1961 elections.
Although the colonial government went ahead with the elections, the Kabaka’s
government directed its followers not to register for the elections. Indeed by
the time, the registration was closed only a handful of mainly D.P supporters
had actually registered. In effect, Buganda had organized another boycott which
was successful. In political terms, the boycott marked the death of D.P in
Buganda because D.P had defied the boycott. Ben Kiwanuka was portrayed as an
anti-Buganda and as a man who did not respect the Kabaka. It was not helped
that Ben Kiwanuka was also a catholic. The propaganda that followed the boycott
was that catholics wanted to take over the protectorate. On the other hand,
U.P.C gained from the boycott because they had decided not to field candidates
in Buganda. The Buganda government therefore felt that there was a possibility
of good relations with U.P.C’s Apollo Milton Obote and marked the onset of the
UPC – Buganda alliance , (later cemented during the Lancaster conference).
2) The Report of the Minister Commission
1961
Set up in 1960 by the Secretary of State for the
colonies, the report of the Uganda relationship commission was given by the
Earl of Munster. Its basic terms of reference were to consider the official
form government most appropriate for Uganda and the relationship between the
central government and other authorities especially kingdoms:
The commission was to be guided by the following:
i)
Her
majesty’s government decision (resolution) to grant Buganda independence at an
appropriate stage.
ii)
Development
of sustainable institutions of government for Uganda.
iii)
Incorporation
of specific circumstances and needs of the people of Buganda as they became
independent.
iv)
Consideration
of the desire of the people’s of Uganda to preserve the existing institutions
and customs as to uphold the status and dignity of their King and rulers.
v)
The
commission was to bear in mind the special relationship between her majesty’s
government and the kingdom with whom an agreement had been made in the early
1900.
The commission had to make sure that all these
aspects be accommodated. Thus the 1961 Munster Commission Report together with
the 1958 Wld committee report would provide for the two constitutional
conferences, of which the first was held in 1961 at Lancaster and the second in
Jun 1962 at Marlborough. The Munster commission made several recommendations
i)
As
regards trends for secession, it was unacceptable to allow Buganda to separate
from the rest of the protectorate. The protectorate must continue till Buganda
has reconciled itself with the rest of Uganda.
ii)
The
relation of Uganda and Buganda should be a federal one.
iii)
The
central government should have power over foreign affairs armed forces and
police.
iv)
Buganda
government should have power of over the institution of the Kabaka, lukiiko and
matters governing tradition aspects of the government. Any residual powers (not
allowed to either of the two) should be shared, but the central government
should have the overriding power in the final analysis.
v)
Buganda
should be given a guarantee that any laws made by the central government which
would affect the Kabakaship and Buganda’s exclusive interests would be of any
effect unless agreed to by the lukiiko such a guarantee would by a law
enforceable by the courts and Buganda should have the deciding voice in determining
the forms of guarantee.
vi)
The
Kabaka should withdraw from politics and become a genuine constitutional
monarch, perform just ceremonial non-executive functions.
vii)
The
lukiiko of Buganda should be directly elected. It would act as an electoral
college for the 26 of Buganda’s representatives to the national assembly.
viii)
Voting
in the future would be by universal adult suffrage.
With regard to the character of government, the
commission stated that Uganda
should be a single democratic state with a strong central government. Within
this state, Buganda
should stand in federal relations while the other 3 kingdoms would be in
semi-federal status. With respect to the head of state, until Uganda attained
independence it would be the governor representing her majesty the queen.
Thereafter, it was appropriate to debate on the head of state. Further, the
head of the state would exercise prerogative powers of (the National Assembly),
make treaties etc.
Thank you for this blog it is actually very helpful and has very good information concerning the History of this Great Republic.
ReplyDeleteBut my greatest concern is about the two cases in the Kabaka Crisis of 1953-1955.(Mukwaba and 2 others v. Makubira and 4 others Civil case no.50/1954) I`m kindly requesting for your review of these cases to me since I`ve failed to get them via the ULII. Your response to this would be of great help. Thank you. (juliusrenik@gmail.com)
....and Katikiiro of Buganda v. Attorney General 1959 E.A 382
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