KENNETH COMPILED

PERSONAL NOTES

CONSTITUTIONAL HISTORY NOTES

FACULTY OF LAW

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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

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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

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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 1 st 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

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 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 10 th 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

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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).

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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

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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.

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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.

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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.

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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.

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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.

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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.

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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

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 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

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 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.

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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

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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

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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.

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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.

20
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.

21
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

22
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

23
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-

24
 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

25
 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

26
 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

27
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.

28
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

29
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.

30
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.

31
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 30 th 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;

32
 “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.

33
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

34
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

35
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.

36
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

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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

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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.

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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.

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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.

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 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.

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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.

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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.

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