1902 0rder in council

Like many other countries in Africa, Uganda, is a melting pot of many tribes and religions. In
the Southern part of present-day Uganda lived people who, for centuries, had been welded into
centralised states with highly sophisticated policies. 

According to historian Phares Mutibwa, these states had kings and the equivalent of a
parliament (Lukiiko, in the case of Buganda), a hierarchy of chiefs and laws that set the rules
of engagement between the rulers and their subjects. 

The British took advantage of these systems and signed agreements with kingdoms of
Buganda, Ankole, Toro and later belligerent Bunyoro (1933) to establish the rules of
engagement between the protectorate administration and these centralized polities.
On the other hand, in the north and eastern Uganda, the societies were not centralized and led
nomadic lives. 
The British opted to sign pacts with chiefs in Busoga and the north, who accepted British
sovereignty in exchange for protection. However, these pacts were later deemed illegitimate
because none of the chiefs fully wielded authority over their respective tribes. 

The agreements the British made with kings and chiefs Uganda gave birth to some form of
constitutional order in pre-independence Uganda. These agreements were aimed at
incorporating these areas within the Uganda protectorate declared in 1894. 
In his book; Constitutional and Political History of Uganda, from 1894 to the Present, in which
he chronicles Uganda’s constitutional evolution, Prof. George Kanyeihamba notes that an
Order-in-Council promulgated in 1902 was the first constitution of the Uganda protectorate.
 
What kind of constitution was the Order-in-Council? Did it have the checks and balances
preserved in most modern constitutions to bar those in power from being high handed
with those under their jurisdiction? 
According to Kanyeihamba, the Order-in-Council in effect turned the Commissioner, the then
head of the protectorate, into a virtual dictator. 

How? Article 12 vested the commissioner with powers to “make ordinances for the
administration of justice, the raising of revenue and generally for the peace, order and good
governance of all persons in Uganda”. 

Under Article 15, a High Court of Uganda known as His Majesty’s High Court of Uganda was
established with civil and criminal jurisdiction in all cases, with judges of this court appointed
or dismissed by the king of England. 
The commissioner also had the power to control the crown land, mines and minerals, appoint,
discipline as well as dismiss public officers, magistrates and judges except those of the High
Court.

Besides having powers to deport persons, he deemed undesirable to the peace of Uganda, the
commissioner, could decree those laws of England, India or any other colony be applied in
Uganda subject to stated exceptions.
While performing his duties, the commissioner was only subject to the colonial secretary of
state and he was accorded personal and proprietary immunity from any legal process.  

However, the Order-in-Council whittled down the role of native customary laws by providing
that, “in all cases, civil or criminal to which natives are parties, every court shall be guided by
native laws so far as it is applicable and is not repugnant to justice and morality or inconsistent
with any Order-in-Council ordinances.”

And according to Kanyeihamba, the period between 1902 and 1920 may be described as
“dictatorial and despotic, if not in practice, at least in law.” In effect, the commissioner was the
head of the protectorate, executive officer and lawmaker. 
And he explains: “While it’s true that other public officials assisted him, since he exercised full
patronage over them, made them mere tools for the implementation of the Commissioner’s
policies rather than Government officers with separate functional roles.”
Protectorate’s second constitution. Perhaps, the need to create checks and balances occasioned
the promulgation of the protectorate’s second constitution in 1920, which was the new
consolidating Order-in-Council. 

This made provision for the establishment of executive and legislative councils.
However, just like the Commissioner in the first constitution, the Governor’s freedom of action
remained unlimited under the new constitutional dispensation. 
For example, the Executive Council could only transact business when summoned by the
Governor; was not bound to act in accordance with its advice and could veto its decisions as
long as he explained to the king of England his grounds for doing so. 

Composed of the Governor and any such other persons not less than two as directed by the
king of England, the legislative council, on the other hand, was empowered to enact laws and
regulations for the administration of justice, law and good governance. 
However, all bills had to be assented to by the Governor to become law, while he could be
ordered by the King of England not to assent to bills that were deemed repugnant or
inconsistent with any provisions of royal instructions.

The rules adopted in 1926 to govern the legislative council proceedings continued to be used
with minor amendments until 1949. 
Membership to the legislative council remained a preserve of Europeans until 1926 when an
Indian, Chunibhai Jethabhai, was admitted as an unofficial member. 
However, it was not until December 1945 that three indigenous Ugandans; Kawalya Kagwa, P.
Nyangabyaki and Y. Zirabamulale, were admitted to the legislative council.
The colonial constitutional order, therefore, seems to have been tailored to anchoring British
colonial rule in Uganda.