FhTZK HO.

PAT/615

u:i' tfLKS I I t

isftKEREHE I N S T I T U T E O F S O C I A L RESEARCH / IHTERMATIOrtAL ALERT

TOE CONSTITUTION AS A MEDIATOR

IN INTfcRNAL CONFLICT.

oy

Prof. A. KIAPI

Faculty of Law, -

ta'kerere University

Paper presented to the I n t e r n a t i o n a l Seminar on I n t e r n a l Conflict,

21st - 25th Septembers lSli7; sponsored by I n t e r n a t i o n a l Alert, Londonj

riaicensre Institute of Social Research, hakerere Universityj

International taace Research Institute, Oslo; stid t h e United Nations

University, Tokyo.

V i e w s and o p i n i o n s in this paper Arc- t h « sole responsibility

of the a u t h o r , net tbs sponsors' nor those of Che organisation

t h e a u t h o r comes froa.
 - THE COBSgEBEIOH AS A MEDIATOR Off I H K B R H A I , COHESICg

SHE CASE IK ucaruA. ......

H i s j o - a o i g . • 3ffgitQKr"?icw*

A constitution, as an i n s t r u m e n t that lays do-on a n agreed

arrangement to hou the framework and the principal functions

of a government End the principles governing the operation of

tbo?e organs, ha- fj.-oquont.ly boon u s e d in conflict resolution

iii U g a n d a . The fir^t instrunente of constitutional iaportaice

were the so called native agreetaeats. It all started icroa t,ho

time the British begn n o u l f l i n e fgrsnda into a country.

Tha .Eriti'.h imperial Bast African Croapany

The first European to arrive Uganda was J. H. Hpolco

viho erase " m 'ror.rch of tho source of the S i l o " , He rrrived at

the capital of the Kabqka of Jiuganda, Mutctat I, in 1862, S«t

it was really tho ai;-<donaries whose prer.enoe and aetivi-iies

led to the aocucption of colKrol of Uganda by the British, »2fa«»

the explorer- and journalists, H. H, Stanley, visited iiutecsa11

Court ih 1875, he persuaded .the X a b a k a to allow niu^ioniiiifcs

to cone to fyjaftdu, 3ho ^ r g t party Of BissionaHes rtpremn-

AJig t h o Church His-ioanry Society arrived ia 1877, follow

soon after by Sanaa Sa'hqlie Hi anion a x l e s . Religious eoupeti.-w.on

for mflucnoo rc-uVaad la conflicts and religious wisra whleh

pluacod Bugana-f. i n t o a ,«rtate Of social disorder with ceoteowj.e

iiiash^t for tho trading eoiaponios tthioli pef-suadetl the Ei-itieh

1
government t6 f.- 'uLie polltical_control,

4
* By Ts&tQnsQV AbrahMi Kiapi, Keads Jjopcirtuent, o f Public aid

CoDparatiVc L&n, noKarero University*

The British Inperial East Africen Company was printed o Charter

authorising it to develop the lfriffish_sj)hero oi_ I n f l u e n c e in

East Africa. In 1890 IfirdJlus^a^ja captain r;arvins. with the

Company» under-took to k e e p law end order in Ducanda. In order

to a v o i d possible conflict over jurisdiction, over D.iropoans,

jurisdiction over E u r o p e a n s was r e s o l v e d by an agreement which

viao o f constitutional importance.-. ! T h e a g r e e m e n t : , g a v e . povjers to

the company's agent in: Bugandas •,'".. •

a) To be the sole arbitrator b f . d i s p u t e s .between, E u r o p e a n s

:
resident in. B u g a n d a w i t h appeal to the highpr .authorities

of the country; .

b) be t h e sole administrator of E u r o p e a n affairs in the

country.

c) To sanction'.anx.agr.eeuent or treaties between, the Kabaka

and- o t h e r European:, p o w e r s ; and.

d)' To be r e s p o n s i b l e - f o r the collect ion j assesfjnent &nd

2
apportion of the-revenues of the Kingdom,

The Qompany r u l e d Buganda for. b a r e l y a year when financial

problems forced the British Governtaent to declare Uganda a

protectorate in 1892;.-'' The follov/ing y e a r , Portal,who was

appointed Commissioner for Uganda, 'made an .agreement with Kabaka

- of Buganda which deprived t h e Kabalca of powers over external

aEfairs and .jurisdiction over non-Bagandn including the Eur0peans.

• The C o m m i s s i o n e r was. g r a n t e d the r i g h t to interfere with the •

administration of j u s t i o e * by- t h e ' K a b a l c a ' a n d . d c c l a r e d that the

court of the Cottmissioner vras to be .tbbjStapr.iime Court of Appeal.

Assessment of taxes and d i s p o s a l ofrevonue was

.to be s u b j e c t , t o
r '3 '
the control of the Comaiesioner-g This'Agreement did n o t , however,

provide sufficient foundation for. B r i t i s h r u l e in Buganda.,

 The Ricon da Aty e e n c n t 1900

The reul foundation for the proteettoat.e govcrnnont. in Baganda

viae laid bjo t h e signing of the Bnpanda Agreement or 1900. In

ie99 Sir narry Johfi.rstcnc was appointed Special Commissioner for

Uganda and charges with the respons'ibillty of concluding an

agreement to.regulate more precisely the*relationship of Britain

with Buganda.

The main provisions of the U g a n d a Agreement wcre^th.-.t:

a) The Kabaka and Chief's agreed to renounce} in favour of

B r i t a i n , ' any claias £ribute' they had been getting from

the tribes bocdering on B Uganda;

b) B Uganda was to Acnk as a province of equal rank with

any other provinces into which Uganda wouia be divided;

c^ T h e r e v e n u e s 'of the Kingdom of Buganda would merge in

the general pEwri»canofr_thc\:-r7EoB.e Protectorate;

d) laws made for tha general administration of U g a n d a were

to be applicable to Bugande;

e) The Kabaka would continue to be r e c o g n i s e d as r u l e r by

the British Government only as long as he and his Chiefs

and his subjectt conformed to the Jows and regulations

ma de for the administration of tho Kingdom by the

Protectorate Government;

f) The Kabaka was henceforth to be know as his highness the

Kabaka of Bugsin4a; his successor was to bo elected by the

with

Iukiko among t h j members of tho r o y a l fonily^the approval

of the British government ;

g) The Kabaka was -o e x e r c i s e direct rule over hie subjects

but his courts were to" h a v e n o jurisdiction over any person

who was not a KiXgonda;

 h) ndr. wac to be divided into t w c n iy countics .-it t h e

head o f -each w a s tobe a chief app&±fii»d by t h e Kabakds

t'overnnent with a p p r o v a l , of t h e ."Protectorate Government;

! ) • .''.To a s s i s t the Kabc&a in the administration ocT- h i s Kingdom

h e .would a p p o i n t a prime M i n i s t c r to bo lmovfli p.s Katikiro^

• a Chie J u s t i c e , and a Treasurer;

j) The legislature of the Kingdom of Bu.'ianda v/as to bo knovai

as the lukiiko consisting of the KatikirOj the Chief

' Justice, the t r e a s u r e r , all county, chiefs, three repre-

sentatives appointed }jy t h e K a b a k a . The- f u n c t i o n s of

the Iukiiko were to discuss all Bat-torn concerning the

administration fif the kingdom and forward to tho Kabaka

resolutions regarding measures to be adopted in the

administration of the kingdom. T h e Kabalca could not,

ho wevor, give -eff c-ct t o su-ch; r e s o l u t i o n s without the

consent of the Protectorate Government. :

k) In judicial matters the I u k i i k o . was to be a Court of

Appeal, from decisions of courts of first instance held

by the chiefs of counties;

m) The r i g h t of tho Kabaka to. r a i s e an army f o r tho defence-

of his kingdom was preserved hut it had t.o b e exercised

on tho advice of,the cominisnioner and the arming and

equipping of. Kc:baka's«rrjy^v.'as to bo undertaken by

the Protectorate Government* .

,.;n) Hoaijty nil tho fertile land in Bugand.-< w a s allocated by

thd Agreement to. the Kabakc his family,,ministers, chiefs

and otheir w e l l to do n o t a b l e s . . This i s .wha ; t. came to be

Jmown iater..as Mailo land, .

The right to minerals found in these estates was to belong to the

owner of the estate subject to a ten percent ad v o l o r e m duty.

Mineral rights outside private estates wore to belong to the

4 - • . .
central government.

King Kabalega of Bunyoro strongly resisted colonisation by

the British and fought herd to keep the British out of Bunyoro.

Nevertheless a large part of the Kingdom of Bunyoro was over-

run by B r i t i s h forces with the help fif the Kabaka df Buganda.

V/hen E . J . I . Berkeley was the Administrator in Uganda Protectorate

with the consent of the forei® office, all. terriio ries of

Bunyoro south of R i v e r Kafu were incorporated into Biganda.

The Kingdom of B unyoro thus lost s large part of its territory.

The Bugondp. A g r e e m e n t of 1900 confirmed the territorial boundaries

between B Uganda and Bunyoro.

Because the Buganda Agreement, 1900, gave Bugartda a special

stsrtus in Uganda, it became the cause of con£liot0-to follow.

The Toro Agreement, 1900

The next deal was m a d e wi-th t h o Kingdom ef- T o . r o . The

Agreement.with Toro was much more simpler n the Buganda

Agreement. It divided the Kingdom into a±8 - c o u n t i e s , and

recognised Chief Kr.sagama as the Omukamc or supremo chief over

all Toro, so long as ho had his chiefs artacstliijent^habiiigatby

the agreement. The Onukama'and all the chiefs were given the

right to nominate their sucdecsors. All waste and . u n c u l t i v a t e d

lands;' forests, minesy minerals c fid s a l e deposits were to be

the property of the British Government. As with- tho -Buganda

the Btitoro w o r e to pay hut and guA taxes and no chifef was allowed

to levy on other cStinfs or on- h i e subjects tribute of gifts of

any kind without the permission of the control government.

Justice? was to be administrered by the eh j ^ f s of the six counties.

The K i n g of Toro, his ministers ana chiefs were granted estates

out of waste lands. Put what was granted to t h e n was much less

than what was granted to their oounter-prrts in Buganda.

- - •

An agreement based on t h e -Toro m o d e l w a s concluded tilth

Ankole in the following yearr . The King, his ministers and senior

chiefs were given waste.lands and the r e a t of the kingdom was

declared Crown Land., ••.' . ..

The U g a n d a Order in Council:, 1902 ."

The Agreements established working.relationships between

•the B r i t i s h Government and the Kingdoms. Tho constitutional

franiwork for the administration of tho country was l a i d by

t h e Uftcjnda O r d e r in C o u n c i l , , 1 9 0 2 . - The- o r d e r in Council

(a) defined the boundaries of Uganda; (b) provided for the

administration of the Protectorate by a Commissioner; (c) empo-

wered the Commissioner to make laws by the promulgation of ordi-

nances; and (d) set up a High Court.with powers to administer

justice according tO: w r i t t e n ' l a w s , principles of common, l a w ,

doctrines of eyiity and statutes of general application.

"Its .jurisdiction was to be eXc-reised in accordance with the

Penal code and ^e. Civil and Criminal Procedure Codes of India".

Uganda O r d e r ..in C o u n c i l 1 9 2 0 . ' . . - - .

The Ugnndg Ordtji; i n Council, of 1920 introduced new constitutional

..changes. It created an. E x e c u t i v e Council consisting of .such

persons as the Imperir.l' Government appointed. It also crcnt-fed

:. a l e g i s l a t i v e Council <jt>ns±sting of; t h o Governor, his executive

• C o u n c i l and such persons',..not being less than two, as the

Imperial Government directed.-:' j-

 _ 7 -

The Bugcnda Agreement. 1955

Another major constitutional development was the Buganda

agreement 1955. This Agreement was precipitated by a series

of ni' sunderstandings between the Kabaka, his lukiiko and

Ministers on one h a n d , and the Protectorate and the British

Governments, on the other hand. The British wanted to develop

Uganda ne one u n i t e d country; the Bnganda wanted to have a

special status; the British Government wanted to give Uganda

independence as a unit, Buganda wanted to have her independence

separate from the r e s t of the country; the British Governnent

wanted n a t i o n a l representation in tho legislative council,

the Baganda opposed tod boycotted it; British government

ministers tolkdd of an East African Federation, Buganda opposed

it. Matters came to a head in 1953 when the Kabaka refused to

sign a document prepared by Governor Six Andrew Cohen in which

he was required to u n d e r t a k e to cooperate with the protectorate

government and welcoming the British Government's decision not

to press ijhtihd w i t h the issue of federation. The British

Government withdrew its Recognition of t h e Kabalca and the was

deported to B r i t a i n . It was only when he, his Bukiiko and

Ministers undertook to co-operate with the protectorate govern-

ment that he was allowed to r e t u r n . The new relationship

between tho British Government and Buganda was la id in the

Bugnnda Agreement, 1955.

Under the Agreement, the British Government undertook to

recognise the Kabaka as o ruler so long as he ruled in accordance

with a constitution for Buganda (which was made an integral

part of the Agreement). Bugnnda agreed to be r e p r e s e n t e d in the

Legislative Council by candidate submitted by.thfj Katiktro to

the Governor.
Under the Constitution of Bu~andr., which was Rchcdv.le • One of

the Agreement, the Knbaka was n-aJte a c o n s t i t u t i o n a l nonnreh..

• .r • '
She conduet of his goveqfaent w a s to he done by his ministers .

The Governor retained the power of •eetoing appoin tment of

ministers by the Kabaka and the power of approving draft laws

made by the Iukiko and the annual estimates of expenditure of

the Kingdom, The Agreement made.Bugandn virtually a federal

state viithin Uganda Protactorate. The Protectorate and British

GovernBSntB • breached the Agreement by r e q u i r i n g ajgrajdr. to

participate in country wide elections to the legislative Council*

Bugand?. boycotted botte tho elections and the constitutional ?

committee appointed to recommond the manner in which the elections

were to bo conducted and instituted a legal action in the High

Court, praying the Court to declare that the legislative Council

(Elections) ordinance, 1957, was co n t r a r y to thoAgreement,

The Court dismissed the suit when the Bisotectorr.te government

pleased that the Agreement .was an act of state wixich could «ot
6
be questioned in any court. The decision ot tho_High Court-
was confirmed 7
by both the Court of ApDeal for Eas* African and
8 .

the priljy Council.

As independence approached more conflicts called for reso-

lution through constitutional mediation. The first of these was

BASJWHBwhich wanted to secede unless its position in general

and that of.the Kabaka in.particular was clearly defined in an

independents Uganda. The other kingdoms made sinilar claims..

Membership of political parties reflected religious aliguents.

2here were boundary disputes between Buganda and Bunyoro relating

the counties lost by B u n y o r o to B u g a n d a at the beginning ofthe

century. Tho Bakonjo and Banha, the Sebci, and tho people of

EaBt Acholi district wanted separate districts. !?he town Mbale

was claimed by both Bucishu and Bukedi.

 The Uganda Relationships Oonnisalcm. 1961.

In December, 1960, the S e c r e t a r y of State for th eColonios,

Sir Ian Haoleod,' appointed a' C o m n i s s i o n o r u n C o r the Chairmanship

of the R i g h t Honourable, -the E a r l of Ilunatcr, to examine and

advise.ori the form of Government best suited to an independent

0 gonda. . • • . . • > .

The terns of reference of tho Commission wtjro!

"To consider the future forn of^government best suited to

Uganda and the question Of the relationship between the

Central Government cjad t h e other authorities in Uganda,

bearing in ninct:

(a)Her Majesty's Government's known resolve to lead Uganda

by appropriate stages to independence and to this end, to

develop stable institutions of government which will

Properly reflect the pa rticular circumstances and meet the

nedds of Uganda-'and;

(b) the desire of the people of Uganda.to preserve their existing

institutions and customs and the status and diginity of

their rulers and leaders; and

(c) the special relationship that already exists between hor

Majesty's Government and his Highness the K a b a k a ' £s G o v e r n m e n t

and the N a t i v e Governments of Bunyoro, Ankole and Toro

as set do m . in tho various Agreements that have been

made w i t h the Traditional Rulers and peojbles of Buganda,

Bunyoro, Ankole, and 5 o r o , ifocl t o m a k e recommendations"

The Commission reported in'j196l, and it was mainly their

report' and the W i l d Report of 1959, which laid- S o w n principles

• upon which the foundation of the independence-eonirtitution

of Uganda was based. • •

 The Report took into consider-tion the peculiar position of

Buganfla and the other Kingdoms in the country and tho need to

keep the country one, -within a federal and semi-federal structure'.

The m i n recommendations of the Commission were thrts

(a) As far ns claims for succession by Bu^anda w er e concerned,

it was unacceptable,to allow Buganda t° separate from the

rest of the country.

(b) Bhgonda's relationship w i t h Uganda should be federal.

. .(oj The Central government should have exclusive powers over

:
n '

a few special natters such as.foreign affairs, the armed

forces and the central police. Buganda should have exclusive

K
power* over other natters such as the abakachip, the lukiko

and traditional institutions, The r e s i d u a r y powers shall

be shared, subject to the central legislature's over

-riding power in the last resort.

•-- -(d) B u g a n d a should be given a guarantee that Uganda laws

affecting the Knbakaship and Bugahda's- other exclusive

subjects should be of no effect unless agreed to by

the Kabaka a n d -the I u k i k o . This guarantee would be by

lav;, which the courts would enforce. Bu^raida should

have the deciding voice in Settling the form of guarantee.

(e) The Kabaka should become. a genuine .constitutional monarch

and withdraw fron politics..

(f) If one of tho Bugaiida. n e n b e r s of the central legislature

became a Minister o.r.Paliarnent Secretary of the Uganda

Government he should cease to be a member of the I/ukiiko

•and thdre should be a by-eleotion for his lukiiko seat.

A directly elected Mdciiko, if it so wished, could choose

to act as an electoral college to elect the representatives

from BuganO.a to R a t i o n a l Assenbly.

(h) The IJdkiUco should use a system of .propi^ional representa-

tion to elect the Buganda representatives in the CetttftaJ

legislative, so t h a t "various bodies, of. o p i n i o n should be

;• represented,

(i) Adults of either sex resident in Bugonda should be allowed,

to vote in Iukiiko elections. The n a t i o n a l electoral regi-

ster should be. u s e d ,

(j) Subject to the u s a l disqualifications,.all voters should

be allowed to stand as candidates for election to the

lukiiko.

(k) The life of the Iukiiho should be three years.

(l) The power of dissolution should be vested in the Kabaka

acting on h i s Prime Minister's adv.ioe.

The report then addressed itself to the framework of the indepe-

ndeflce constitution and suggested the f o l l o w i n g .s

(a) Uganda should be a single democratic state with a strong

government at the oentre. Within this state Biganda should

in a (

fetani^/federal relationship and the ttaee other agreement

kingdoms in a semi-federal relationship. . ..

(b) The law r e q u i r i n g direct elections to the Iukiiko and

specifying the franchise should be ensh Sned in the Uganda

constitution. The constitution should require Buganda to

be represented in the N a t i o n a l Assembly.either by diredt

or by indirect elections, at her option. JThe c h o i c e should

be sipiified by the Kabaka acting on advice after a resolution

by ther Iukiiko.

The National Assembly should have no power to make laws onthe

tt
following subjects without the cons/t of Buganda, signified as above;
K
i* The abakaship.

ii. The Kabaka1s government, including the public

service and local government.
 • (iii) Tho lukiilro, no to its powtrn and procedure ..

S. (iv) Traditional or cuetonayy natters t o toe d e f i n e d .

Iukiiko should have no power to soke laws conflicting with the.,

nflfcionol constitution; or laws on foreign affairs, nationality,

the armed forces, the na tional police force, and about central

government taxes.

On other n a t t e r s , both the National Assembly and the Iiukiiio

have power to make laws but in case of conflict the National

Assembly's l e g i s l a t i o n should prevail.

(o) The other Kingdoms should have the some guarantee as

Buganda for their monarchies, the constitutional power

of 'theix rulers and ceremonies and traditions connected

with their "monarchies and their cultures. The KingdOTte'

rights to appoint Ministers should be r e c o g n i s e d in

the constitution. legislation passed by the Kingdom

councils should legally be bye-laws, but should be

called "laws".

(d) The constitution should provide for thee c o u r t s , t o

decide dispute about its meaning and operation,

(e) Until independence, the Head of . s t a t e was to be the

Governor representing the Queen. Afterwards it nay

may be best to appoint a Governor General at first, to

allow tine to defcate the problem, ... .

(f) The legislative Council was to io become the National

AsBenblj:-,' lA£tefi: ± m i e p e n d e n c e it would become ESQ..

sovereign legislature, subject to the restrictions

of the constitution.
Constitutional amendments should require a -two-thirds nnjoftity.

The courts of la»v s h o u l d have power to declare unconstitutional

legislatilon invalid, Universal adult suffcage and a common

roll were recommended, The Central Government should maintain

a single electnoal register for tho n a t i o n a l Assembly, the

district councils and the Buganda Iukiiko, The Assembly should

be elected for a five year tern subject to earlier dissolution

by the Head of State on the Prime Minister's advice. The consti-

tution should provide for the resignation of the government if

defeated on a vote of confidencej for the post of Leader of the

opposition; and for the r i g h t of parliamentary opposition. There

should be no ex-official nominated members. The system of

specially elected members should continue for ten years, but

thereafter only if the assembly s o resovc-s by a-two-thirds majority.

British cabinet conventions should be followed.

The H e a d of State should exercise the prerogative powers

of the Crown on m i n i s t e r i a l advice (e.g. to declare war and peace,

• " 9

summon and dissolve the N a t i o n a l Assembly and mgke treaties).

The tfaanda Constitutional Conference. 1961.

Soon after the publication of the report of the Uganda relat-

ionships Commission, a constitutional conference took place in

London to decide upon the constitutional structure of an independent

Uganda. - The R e p o r t formed the basis of discussion at the conference

and the main question was which recorjnendations were Aot to be

adopted. In this opening speech the Secretary of state for the

Colonies expressed his c o n v i c t i o n ..that the R e p o r t of the Relation-

chips Commission provided a framework within which the Conference

could reach agreement on a constitutional .which, would take Uganda

to the final stage before independence, and that the proposals

placed before the c o n f e r r.ncc war. b:ici.-d u n o n the CorLuicion'g
t

recommendations. He went on to suggest that the recommendations

of the Commission, with regard to Buganda provided the best" and

perhaps the only way of securing the co-operation of the people

of Bugcnda in the creation of an independent Uganda.

The Conference was a momentous occasion for Uganda because

it was agreed upon, formed Shfe b a s i s of the independence

constitution. The principal conclusions reached were as followss-

3 1. The legislative of Uganda was to be single chancer styled

' the N a t i o n a l Assembly, composed of eighty-two

members and n i n e special elected members. All the elected

members were to be elected by u n i v e r s a l adult suffrage.

The boundaries of constituencies were to be reviewed.

. from time to time by an E l e c t r o l Boundary Commission.

2. The leader of the m a j o r i t y party in the N a t i o n a l Assembly

was to form a Government and become Prime Minister.

5. There was to be public and Judicial Service Commission

to make appointments to the Public Service and the

. judiciary respectively.

4. The posts of Provincial Commissioners were to be abolished

but those of district Commissioners were to be retained.

5. There was to be a High Court for Uganda consisting of

the Chiefs Justice and other judges. The r e t i r i n g age

* of a judge was to be sixty two. Appeals were to lie

from the High Court to the Court of Appeal for Eastern

Africa. Hit appeals were to lie direct to the Privy

Council on questions of interpretation of the

Constitution,
 6, Bugonda was to have c- s p e c i a l status

t was to be r e p r e s e n t e d in the Rational Assembly

by twenty-one members elected either directly bj:

the people or indirectly by the lukiiko.

b) The lokiiko was to have sixty-eight directly electgd

members and n o t more than t&irty two n o m i n a t e d or

ex-official members.

c) The Iwkiiko was to have exclusive powers to make

laws for Buganda on the ICabakaship including the

powers, duties and obligations of the Kabaka and

his ministers, the public service of Bugando, rail

traditional and customary matters relating to

Bugnnda.

d) There was to be H i g h Court for Buganda which would

administer justice in the name of the Kabaka and

having the same jurisdiction with respect to Buganda

as the High Court of Uganda was to h.-rvij i n respect

of the whole of U gandn«

7, Justice was to be administered in Ankole, iJonyoro and

Toro in the name of the respective ruler,

8, Each district administration was to be given the right

to appoint a constitutional head,

9, The constitution of U g a n d a was to contain a chapter

protecting the fundamental rights of the individuals

enforceable in ;the High Court.

The Business of the 1961 Conference was to decide the form

constitution providing for internal self-government. -The Constitutional

Coni'ergnce sought, so far/' a s was possible, ^ ensure that they

would form a suitable basis for Uganda's constitution after independence.,

 • 9 16 - •

The soli'— e n v c r n n o n t constitution war. i r t r e d u c e d in n;vrc!'J

1962. Responsibility for the conduct of U g a n d a ' s internal affairs

passed to a Cabinet of H i n i s t e r a drawn exclusively from the

National.Assembly, The leader of the majority party in the National

Assembly, Eendicto Kiwanuka, becane Uganda's first prime Minister,

The Uganda Independence Conference, 1962.

In April, the H u l e r s of Ankole, Bunyoro end Toro, and delegations

representing their governments, in discussions with the Secretary

of S-tate, put forward a demand for federal statue for their

Kingdoms,

They w e r e a c c o m p a n i e d by the Kyabazinga (ele eted Constitutional

Head) of Sisoga, a district which had traditional institutions

of its own, and a delegation from the Buooga district Council,

who associated themselves with the demand f o r federal status.

In these discussions the Secretory of State agreed that,

provided that detailed provisions could be worked out and embodied

in new Agreements, the three kingdoms, should be accorddd certain

exclusive legislative powers, together with safeguards fqr their

Rulers and traditional institutions. He also agreed the approp-

riate revenue should be s e c u r e d to the Kingdoms in tho Ugqnda

constitution but added that the details of this would have to

be worked out later in the light of the f i s c a l commission.'s

recommendations. Finally,, he s t a 'ted that if agreement could

be r e a c h e d on these matters they would becntrgnchea in the Cons-

titution and.would be expressed in the new Agreements as a federal

relationship. The Secretary of State was, however, unable to agree

that the United Kingdom Government should enter , i n t o an Agreement

with Busoga (which talike the Kingdoms had no existing Agreement

with the U n i t e d Kingdom Gbvernment) j an^ the question of the

future position of Busoga was left for further consideration.

It was announced on 10th May, 1962 that a Conference would

open in london on 12th June ,to r e s o l v e those matters requiring

decisions before independence. The r e l a t i o n s h i p between Uganda

and the Kingdoms (including Busoga) was still defined in Agr-eements

with the United K i n g dom Government, which could not pe-sict after

independence.

Meanwhile, a general election was held in Uganda on 25th April

1962, which resulted in a change of Government. New registers

of electors had been prepared to give effect to the decision of

the 1961 Conference that universal adults suffrage should be

introduced throughout Uganda. In the elections in the constituencies

the Uganda Peoples Congress secured thirty seven sgats and the

Democratic Party twenty two (but two subsequently by elections ;

increased their strength in the National Assembly to twenty-four)*

Twenty one r e p r e s e n t a t i v e s of B r n nda were elected by the Bugnnda

Lukiiko, the majority of whose members had themselves been directly

elected at an election in Febusry. All the Buganda members were

members of the Kabaka tfekka m o v e m e n t . Mr. A. M. Obote, leader

of the Uganda Peoples Congress, then succeeded Mr. B. Kiwanuka as

Prime Minister at the head of the. coalition Government comprising

his own party and the Kabaka Yokka.

The Uganda Independence Conference opened at Marlborough House

in london on Tuesday, 12th June, 1962, lrnder the chairmanship of

the Secretary of State for the Colonies, the Rt, Hon Reginald

Maudling, M.P. _2he work of the Conference was largely undertaken

in three committees - A Constitutional Committee, a Fiscal

Committee and a Citizenship Committee.

In addition, there were nony infrixmal m e e t i n g s between various

groups ana i n d i v i d u a l s : talcing part in the Conference. The-

reconmendations the Committees and t h e outcome of these

informal meetings were cossidered by_ t h e conference in plennary

session. The conclusions reached at the Independence Conference

amended the provision of the self-goverrssent constitution and

the final result was the Uganda Constitutional Snstruments, 1962,

On October 9, 1962 the;Uganda (independence) OrdeE in Council,

1962, was laid before the British Parliament and the formal

Constitutional Instruments were handed to the Prime Minister ,

Milton Obote, by the Duke of Kent representing the Queen on

.October 9, 1962, and Uganda became an independent member of the

British Commonwealth of Nations,

THE CONSTITUTION OP UGANDA, 1962.

Federation:

There were two f e a t u r e s of the independence constitution

which were distinctive and tailored to the circumstances of the

country. I t - . was here ihat the constitution acted as a

mediator at its best. Uganda was forged into a united country

from a collection of tribes with varying history, tradition and

customary institutions. Ctae o f these distinctive fea&ures was

the federal status given to Buganda within U ganda. Though

the constitution formally declared that Uganda was to consist

of the federal K i n :dons of Ankole, Buganda, Bunyoro and Toro

and the t e r r i t o r y ofBusoga in addition to the "republican" districts

it was only Buganda which had any substantial degree of autonomy

within Uganda. In practise the other kingdoms and Busoga continued

to be controlled by the central government like any other district

of Uganda.
Powers given exclusively to them weic limited to the position

and the status of their rulers.'" But'^the' relationship of Buganda

to the rest of the country was really federal.

Hatters with respect to which the Buganda Lfikliko had

exclusive powers ares

a) The Kabakaship;

b) The powers, obligations and duties of the Kabaka as

such;

o) the status of the Kabaka's minister? as such and their

powers, obligations and duties in addition to those

r

conf^£ed by or arising under a law pjiueed by t h e P a l i a '-

ment of Ugania;

d) the public service of Buganda;

e) matters relating to taxation agreed to between the

Kabaka's Government and the Central Government}

f) Buganda's public debt, public holidays and festival;

g) traditonal and customary matters relating to Buganda

10
alone.

Hatters reserved for the Central Government included foreign

affairs, immigration, national defence, internal security, penal

law, the judicial system, public finance, public health and the

public service of Uganda. Matters ov.cr v w i c h the legislature

of Btaor "federal states".had exclusive powurs to make laws were

limited to the office of the ruler, his powurs, obligations, and

duties, public holidays and festivals, traditional and customary

matter^ relating to that state alone, They could exercise juris-

diction over other matters only after ai-rangeiaent with the cen-

tral Goveittipeat.' •
11
before a joint parliamentary Commission investigating the desi-

rability and the feasibility of closer union in East Africa,

a prominent Munyoro complained to the secretary of State for

the colonies about the lOss of Bunyoro territory. But. the

Colonial gecretary refused to go into tho question, maintaining

that it had long been settled. " When- a i g n i n g the 1933 and 1955

Agreements with the B r i t i s h Governemnt the King of Bunyoro made

formal public statements reserving Bunyoro's claims to the lost

counties. His olr.ims w-rc n o t heeded. But the Banyoro did not

give up. His claims wore rcififoreed by five petitions addressed,

to the Secretary of 7'*ate for the Colonies between 1945 and 1954.

Several representations were also made by the Hubendo-Bunyoro

;
Committee between 1951 and 1955, But all were tumed down.

In 1958 the Omukama or King of Bunyoro asked the Colonial

Secretary to fefer the dispute to the Judicial Committee of

the Privy Council. ?his was also rejected on the ground that

there wore n o justiciable legal issues which could properly be

considered by the P r i v y Council, " The Uganda Relationshipp

h

Commission recommended thj.t a referendum ^5uld be held in tvio

of the disputed counties: - B u y a g a and Bugangazi - and 6he other

county to b e made by B u n y o r o . The Commission nd-Eifeefi-'tllat if

the people of the counties chose to join Bunyoro, the counties

should be handed over at independence. The recommendation o f

the Commission was rejected by the Kabaka's g(5wernment and the

Constitutional Conference of 1961." The Colonial Secretary acc-

ordingly appointed a Commission of Privy Councillors to investigate

the dispute. 'The terms oS reference if the Commission were:

"Having rcgnd to the paramount need fot the people of

Uganda including, Buganda to move together into independence
in conditions; which will ensure peace and contentment,
Tiie questions to'Be submitted."to a voter i n the referendum i n

each county was to be such as to ascertain whether the votfcr

wishCB it i s country to form part of the Kingdom of Buganda, or to

form part of Kingdom of Bunyoro or to be established as a separate

district of Uganda, The referendum was to be organised and conducted

in such manner as parliament would prescribe. The ehiice of the

majority ofthe voters in the referendum was to be. implemented

by amending the independence'.Constitution by a simple majority

in the National Assembly, These measures were implemented in

1964 when a referendum was-held. Two. o f the disputed counties ,

Buyaga and Nugangazi, voted for their re-union with Bunyoro and
13

Parliament passed the necessary Bill fior their transfer.

Another victory for -fee C o n s t i t u t i o n as a mediator in internal

conflict in Uganda,

THE SOVTACISN STATE OP UGANDA.

The Constitution of Uganda (Pjrnt Amendment) Aot. 1963.

We have already seen that the Independence Constitution made

the Queen of Britain the Head of ntato as an interim treasure .

The question that was. debated viaB: who should succeed the Queen

as Head of State? The Baganda insisted that no Commoner '; w a s •

to take precedence over the Kabaka, Consequently the qaastion

of the Headship of State become c. h o t issue.

Uganda broke her constitutional links with tho British Crown

one year after independence, on 02to'oor, 9 1963. This was done

by the enactment of the constitution of Uganda (First Amendment)

Act, 1963. The Aot established the office of President, who was

to be the Supreme Head of State and Commander-in Chief of the

Anaed Forces.
 - 29 -

The Lulciikp opted for the latter alternative. The 1966

constitution chnnged this situation. Members of the National

Assembly representing constituencies in Bugandn had to be

i dire°tly elected ju<>t a s in the rest of Uganda,

g) The powers of the Lukiiko were also reduced nith regard

to he appointment of the Katikiro

(the Kabaka's Prime I'inister)

and Kabaka's Hini-ters, The 1962 constitution provided that

any person could be nominated Katikiro, even if he war not a

member of the lukiko. The lukiko had also a say i n the appoint-

• ment of ministers in the Kabakais government. It wa3 ihco

to submit '
Lukiko which^n. " to the Katikiro a list of fifteen persons from

which the Katikiro could name his cabinet. The 1966 constitution

provided that the ICabaka wag to appoint the Katikito from amongst

the members of the Lukiko and a person could not be appointed

a Katikiro unle- he was the leader of the party having a numerical

strength which consisted of a majority of all the . embers of

the Lukiko, The ICahaka was also required to appoint hi-: uinisters

from among the members of the Lukiko and it fcss only the Katikiro

who was to submit to him a list of persons to be appointed ministers.

The lukiko was thus compeletly divested of powers to appoint

the Katikiro and Ministers.

h) in ord r to ensure that the constitution was interpreted

impartially and away from tho heat of local controversies, the

1962 constitution provided that appeals had to lie direct to

tho P r i v y Council from the decisions of the High Court of^,

Uganda in natters affecting the interpretation of th<j constitution.

This was reversed by the 1966 constitution. Ho appeals were

allowed from the H i g h Court to any other appellate court on issue

involving the interpretation of the Constitution, The court of

 interests of, among other things, "economic development and the

running of essential services".' This was aimed at trade unions!.:.

primarily. It was designed to enable the Government to pass

laws regulating the right of collective bargaining, :•?:'.'

' -V
n) V/e h a v e noted the fact that under the Buganda Agreement,

•I
1900 and the Agreements made with the Kingdoms of Toro and ijikole i .

In-
land was granted to cheifs and other officials by virjue of their

office. The Bative

(Offi cial Estates) Ordiance, 1919} nadc i:h e

holder ot an official estate by the name of the officd oi which

he was f o r the time being a holder. Subsquent amendenents

to the Ordianec gave the right to the holder o£ an official

estate to lease such e-t-te with the approval of the commissioner

for lands. The rent to be paid for the lease was paid to the

person for the time being holding the office to which the p-art

of official estate was attached. This right remained unaffected

by the 1962 constitution. The position was, there.."fore, that

a chief or an official to whose office an estate was attached

received not only h i s salary, but also rents. The 1966 constitution

" reserved this ppsition as it was part of the feudal organisation

of the kingdoms, Official estates were vested in district land

boards. All rights, interests and other estates in such land

- was vested in the district land boards of the Kingdom, All

rents and other dues accruing from the land had to be paid into

the public funds of that kingdom as part of its revenue.

The validity of the 1966 constitution was challenged in Uganda

14

v. Commissioner of Prisons, Jix P a r t e Matovu.

Michoal Matovu was one of three Baganda Soza (County) Chiefs arrested

and detained under the Emergency regulations. He applied for

a wrjt of habeus corpus on the ground that his detention was
unlawful,
One of the issues considered by the constitutional court mas the

validity of the 1966 constitution. It wa<- h e l d that the 1966

constitution mas effectively abolished as a-result of" a victorious

revolution. The 1966 constitution fomed a new legal q.rder f o r ... >
"•y.

Uganda,

THE EPCTIilC Qj' U C . a -/

Section 145 of the 1966 Constitution provided tint it mas, to

rer.ain in forde until such tine as a Constituent Assembly,

established by Parliament, enacted another com titution *in its • \

place. The Parliament of Ugond a constituted itself into a

Constituent Assembly by the Constituent Assembly Act, 1967. The

Act gave the Constituent Assembly full^ powers to adopt a constitution

for Uganda by providing that any proposals £or new constitution

if adopted by the Constituent Assembly >:a«" to become law and

constitute the constitution of Uganda without Presidential

assent.

The Government made proposals for a constitution for Uganda

in April 1967 and were widely debated in the country before

presenting to the Constituent Assembly for adoption. The

ConBtituont Assembly debated the proposal? for eight weeks end

finally adopted them on Oth September, 196;'.

In tho 1967 Constitution Obote's Government sought to achieve

what WS.B desirable but could not bo R.chcived in 1962 due to the

compromise that had to bo ns.de on boh i f of traditionalism and

Bug:-ida. The Independence Constitution entrenched the position

of the Kingdoms, created a soul-federal " t r u e tuve- a n d duplicated

institutions for the soke of accomodating the rival claims of

the difforent parts of the country. Tho nu.i constitution v.as

disigned to acheivc national unity arid do away with traditionalism.

 - 35 -

Whereas previously, though the-e districts existed Buganda had

only one government, one legislature and one Ruler, tho Kabakau

The effectof the changes was to dismantle Buganda a.'.i a. tribal

enti:-tfy f o r purposes of local government and ccntrl government

control,

ARMY ASSUMPTIOH OF POWER

The Constitution of the Republic of Uganda was not given

sufficient time to test its workability and resilience. Some

of its Provisions were suspended by the Ug-.ndc Anicd Borees on

January 25th, 1971, when Obote was toppled, from power as a

result of mi - u n d e r s t a n d i n g s between Obote and hie Army Commander,

Major General Iddi Amin Dado,

Eighteen reasons were given for outing Obote from power.

But some of these reasons were rationalisations. The eighteen

Points enumerated in their radio message to the people of Uganda

are so h i s t o r i c that they deserve to be reproduced.in full.

The Eighteen Points.

"It has been necessary to take notion to save a bad situation

from grating worse. ,V/e g i v e here below examples of matters that

have left thcpooplc angry, worried and very unhappy,

1. The unwarranted detention without trial and for lfong. periods

of large number of people, many of whom are totally innocent

of any ch rges.

2. The continuation of a state of emergency over the ./hole

country, for an indefinite period which is no.jiinglepr to

everybody.

3. The lack of freedom in the airing if different vieWB on

political and social matters.

 - 36 - . - • 5 1 - i;r

4, The frequent I03'- of life and property ".rising fron Jjjost Tho big nen om always escape these taxes or p a s s then on

doily cr.se of robbery with violence and ISondilis^ without ±0 -^ho c o n n o n nan.

strong ueanure- being tolcett t o stop then. The people f e d -Jotslly 10, The prices which the connon nan gets for his crops like

insecure and yet kondoisu inere.--.ses overday, • cotton and coffee hav.c n o t gone, up and sonetines they have gone

5, -he proposcls' f o r N a t i o n a l Service w^ich will '-.ake e v e r y able down whereas the costs of good, education, etc. has always gon 0

bodic! person frou his hone to work in a camp for two ye ry could up? ,

only lead t o rjorc robbery and general crine when n o n c e ore abandoned. 11, Tendency to isolate tho country fron East Africa Unity, e.g

6, ./idospread corruption in high places, especially r-j . o n g .by sending away workers fron Kenya and Tanzania, b y p l y v c n t i n g -o

Ministers lad top civil servants has left the people v/itli very tho uso of UgrsLan n o n c y in Kenya and Tanzania, by discour sing

little confidence, ii any, in the government. Most ISinia'tors imports f.ron K e n y a an/J T a n z a n i a by stopping the use in Uganda

own fleets of cr-.tn cr buses fnany big houses and 30j.10ti.1ci- even and Kenyan or Taapahi&i noney,

aeroplanes, IS, l'n a d c a t i o n , the Defence council of which the Prosidoat-A-B

7, 'The failure by tho _olitical authorities to organioe any Chairman, has net nft. since 196.9 and this h a s made administration

oloo'lions for i.Ue l a s t eight years whereby the people' u f .00 in the Amed ^orcc^ Very, d i f f i c u l t , . As a result Amed forces

will could be expre-'-od, It should bo n o t e d thr.t ho lact elections personnel lacjt . a e f c o d n d a t i o n , vehicles and cquipnont, Also general

within the ruling party wore dominated by big fellows uith lots recruitment aubnifrted to the Chaiman of the defence Council

a
of iioiiey whfich -hoy n o r a to bribe their way into "winning1' cUo long tine agf> h a v n o t been put into effect,

elections. '.f'.;i« b r i b e r y , together with threats a-, in--'.- ' h o people, 13, -The c r q a t i b p of a wealthy class of leaders who are g

entirely faltii.tod :ho re=-ul^3 of the so called elec ions. talking of eoc^alisn while they grow richc} and the common uan

Propo.-.ed n o w ae'-hod;; of election requiring a candidate to s : .nd poo rer.

in four con-tituencie- will only favour the rich and 'he noil !:nown, 14. The cabinet office, by training large punbers of people

8, Econouic policies have loft nany people unenplo od even (largely £rou thf Akoko ro County in lango district where Obote

norc insecure. and 1 .eking in -i-.hu b a s i c heeds of life like food, and Akena Adokpj tho Chief General Servicf pfficor, cone frou)

clo'.hingjueuieihe an.'; -helter. in amed narfai'i has been turned into a second amy. Uc.jnda1'

9, High taxes h vo left the comuon n a n of this country poorer ••-horeforo has Kad two amies* one in tho yabinet, fhc other

than over before, Ileio are soue of the taxes which thv. coriion regular.

nan has to bear: Mcvelopnent tax.

Graduated Tax.

lales Tax. • j

"locial Fund Tax,

 - 39 -

15. The Lango dovelopnent cantor plan, written in 1967 decided

that nil key positions in Uganda's political, connercial, amy

and industrial life had to be occupied and controlled by people

fron Aklikoro county, Lango Dontiict, Also the =aae n a s t e r plan

decided that nothing of itaport^ice n u s t be done for other districts

especially Acholl listrict. Enpharts was put on developing Akokoro

county in Lango Bistrict at the expense of other areas of Uganda,

16, Obote on t h e " a d v i c e ""of Alcena Adoko has sought to divide

fche U g a n d a Amed Forces and the ro-t, o f Uganda by picking out

his own tribeeiien aiid p u t t i n g then i«i k e y positions in the Atay

and every where, Excnples: -The C h i ' i f General SerJice Officer,

the Export and laport Corporation, Uganda ^eat Packers, the

Public Sertice Coauirsion, llyanza iexciles and a Russian Textile

•factory to be situated in lango,

17. Pron t h e -tine O b o t e took o y e r pow'or i n 1962 his greatest

and n o s t loyal supporter has been the Amy, The amy has always

tried to be a n ' casauple to .the whole of Africa b y ndit taking

over the Goveiiment and we have always followed that principle.

It is, therefore, now a shock to us to see that Obote wants to

divide tad downgrade tha amy by turning the cabinet office into

another a m y. In doing ^his, Obotc ar.d Aken Adoko have bribed,

and u s e d soae seal or officers who h a . e tutned against their

fellow soldier^i

18, ¥,'e a l l want only unity in Uganda and we do n o t want

bloodshed. Everybody in Ugrinfla k n o w s thats. The n a t t e r s nentioned

above appear to UP to lead to bloodshed only.

For the reasons kiven above vio ; ; e n of the Uganda Amed Forces

have this day decided to take over power fron Obote and h.md it

to our fellow Boldior Major General Idi Anin Dado.

 39 '

The Pro d o n a t i o n

In his subsqnuelV- qV-.-enent M a j o r General Anin accepted the

aDpointnont by the Amed Jorcos and on February 2nd, 1971 he imucd

15

a proelnnntion to localise his position. The Proclarir.tion suspended

Chapter? IV a'nd V of •'-ho 1 9 6 7 constitution, disbanded the National

i:
Assembly and disnisred all ninist'erc , and continued:- 2, All

the title?, privileges, prerogatives, powers, functions wid oxenptions

fomerly enjoyed or exercised by one fomer President of tho

Republic of ^srjadn under the Constitution arc hereby vested in

ne with effect fron +.ho 2 5 t h day of January, 1971, and accordingly

the Military Head of -;V.te shall be tho C o n n a n d e r lti C h j _ u f o:-. tho

Amod forces.

"3. Parliament is herbby dissolved and all legislative power"

referred to in '-lie C o n s t i t u t i o n are hereby Vested in uc,

,;
4. -J-l l e g i s l a t i v e powers shall bo exercised by no through the

pronulgation of decrees evidence in writing under uy hand und

sealed with the Publj c ".col,

5, '.Ohero shall be a Council of Ministers which shhll be appointed

by uc and ulii o h s h a l l r.dvino a e in the oxorcisc of executive „id

logirl.itive powers,

6, Gufejoct to this Proclamation, all liabilities and obli^r-tions

incurred by J;ho Goverruient of the R e p u b l i c of Ugraia b e f o r e the 25th

day of January, 1971, r-hall continue in full forco and ci'f«.ct,

7, Ho a ction or other 1 proccddings whatsoever, ylhcti u r civil

or criiiin.-J., bhr.ll bo inititutcd in any court for or on account

of or in respect of any aot, natter or thing done during '-.he

continuation of operations consequent upon or incidental to tho

Baid fOco-ovor of tho po'jorn of the Government if done in good

faith nr.d done or purported 'o be done in the execution of Iiir;

This announcement waB given effect to by the Constitution
17
(Modification) Decree 1971. Tho Deoroe restylcS the "Council
to -
of Ministers" Aha "Cabinet" and the "Military Head of fit a t e " to

"the President'", The Constitution (Modification) Decree also

i

riade -provisions f o r the appointment' and responsibility of

ministers and deputy ministers, It- c r e a t e d tho post of Attorney

General who "shall be the principal^ legal advirer to tho Government

and responsible to the Government far matters of policy relating

to the administration of juptice", ! He mas to represent Uganda

in all legal proceedings beforei the; courts,

ary !
Vesting of Parliament/Powers.

Another Decrco of constitutional importance was the Parliamentary

powers (Ve ting) Decree, 1971, It provided that whore the

Constitution or any Act of P a r l i a m e n t provided f o r ;pny matter,

act or thing to be .authorised, approved or determined by

Parliament or tho National Assembly, such authorisation, approval

or determination was to be exercised by resolution of the

Cabinet. This Decree was designed to fill a lacuna in the

Constitution of Uganda, Many acts of Parliament and the

Constitution itself provide for certain matters t{> b o dealt

with by tho Assembly, Subsidiary legislation and reports of

public corporations may aj^o bo required to bo J. i d beforo the

Hationc-1 Assembly. In thp absence of a national Assembly

Assembly Cabinet has to ^ k e r c i s e such powers*

It was throggh the*jj and other Constitutional instruments

that Amin entrenched hiafcelf in power and ruled Uganda for eight

years. His conflict witji O b o t e was thus solved not only militarily

but also constitutionally.

 , - — 42 -

However, he did not rule in accordance with the constitution.

Indeed his proclamation abolished the suprenacy of the constitution

by declaring void Article one, which provides that the Constitution

is suproae law end any l a w inconsistent vJith i t is null and void

to thcextent of the incpnsistency. ThiB enabled his to pass

decrees which derogated fron the provisions of the constitution.

To sunn a r i s e , it is noticed that the nain chance brought

about by tho Military government' a f f e c t e d the status and tho

J
funjttuentality of .he 1 9 6 7 constitution, its sanctity and uothod

of anendnent, the abolition of popular government, the vesting

of all executive and legislative powers £f the State in the

President and the powers of the President to appoint ninintcrg

without being restricted by qualification requirenents. Otherwise

the other aain provisions of the 1967 Constitution the Ijill

of Bights, citizenship, the judiciary, public finance,, the public

service and public land have not been affected, and the adainictr .tion

of the country was conducted in aecordanoe with the 1967 constitution,

.tain's brutal rule was brought to an end by conbine-d forccs

of T a n z a n i a and Ugandan exile troops in April 1979, following

the exanplo of Anin tho now govemnnt.of the Uganda taiional

liberation Front also unshered in itri rule by a proclamation .

suspending the very chapters Anin Suspended, wjtth tJie exception

that laws nr.de by the now govemnent done with a novel philosophy

requiring nil najor policy decisions nade by the goVernnent,

including political appointnents, to be. t a t i f i e d by tho national

Consultative Counoil, its legislature. When P r e s i d e n t l u l o

was

refused to act in accordance with this principle he .^rcuoved

fron office by the Council. • .-1.

 — - - 47 —

The Legislature.. . i .
This ir the type of governnientestablishod by the Constitution of
The constitution anst make it clear tho can. make laws for the
the Republic of Uganda, 1967, It, is therefore, not very easy
. country; what could be the composition of the legislature; how
to distinguish be'ween the parliamentary and presidential foms

, m u s t .the representatives, of the people be elected; in what manner

of governments.

. they must make laws)', and to what extent the government must be
She presidential fom of government, :\c i t exists in the

answerable to the representatives of h e people, ,

Uni'ed means that the executive tjrid t h o legislative branches

Legislatures may either be unicameral pr bicameral, it

of the gove-nment are separately electcd, oach with its own clearly

is unicameral when i t i 8 composed-bf one chamber only. It is

defined powers. The executive consists of .ii independent President

bicameral when it i 0 composed of two chambers, m the latter

whose M i n i s t e r s are not members of Congresi-(Parli.iiont) and who

.system, power shared by two m o r e or less co-ordinate legislative

cannot bo dismissed by the legislature by a. v o l e of no confidence
18 organs. Normally, the lower house is more directly representative
or by loss of support in the legislature, '.'his f o m of government
19 of the people, .elected on a wider. frnncfi?se. The u p p e r house,
also operates in Tanzania,
the seoond chamber, is either elected on a restricted or derivative
To avoid degenerating into dictators, constitution curtail
franchise o r may contiln njanlnated or h e r e d i t a i y elements or
tho powurs of the president or hi- tenure of office. Under the
direct representatives of certain classes, interests or geogra-
constitutions of the U n i t e d states, Nigeria :nd Ghana, politioal
phical divisions of the.nation, as in tftp U n i t e d States, The
appointments by the president are subject to ratification by the
two. h o u c e ^ u a y o r may n o t be of equal authority.
legislature. Ho president can serve f o r more than eight years,
Thp creation of a seoond chamber is due to the belief that
in Switzerland Supreme Executive and govoittin_ authority is the
it is desirable to have.a body, less directly controlled by
federal Council composed, of s e ven m e b e r s , She function of the
popular opinion which may exercise, delaying and supervisory
Pro"idon': is to chair meetings of the Federal jouncil, . The
20 powers over legiElattreproposals. They are also created to
President serves only a one year term, in tho Soviet Union the
ensure that in a federal state, the constituent states have an
Council of Ministers is the "highest executive nd administrative
equal voice in national affairs. This is bcoause the lower
authority of the USSR". They are formed bv She -'Jupremo Soviet
21 house, represents the population of the Union rather than the

and are responsible and accountable to it.

state. It, is therefore, possible for the states to b e under-
'./hen a President id elected directly by tho -people h o is cognate
represented and outvoted in the :lower. chanber. Tho u p p e r chamber
with ••ho l g i s l a t u r c . He cannot be dismissed from office by a tote
is designed to off-sot this disadvantage. The upper chamber is
of no confidence. But if he commits a serious crime, he can be
composed of equal representatives from each st&tc thus giving
lmplenched, and if the impleachemont la succceuful, he stands removed
tho voice of the rdaller states equal weight to that of the
This- i ^ , for example provided by the constitutions of Nigeria,. G hana
the bigger states.
and the U n i t e d States.
 _ 48-

la the United States, tho oenate., or the upper, h o u s e , is

representative. Each sta'e is represented by two senators elected

by the people of that state. In the United Kingdom, tho membership

of the upper house, the House of Lords, was originally hereditary,

Sons of the nokility who succeeded to their fathers 1 titles could

become ncmbon, Creation of life descendants succeeding to 'he

title is noyi c o m m o n . •

Upper houses can be p. c a u s e a: d e l a y and deadlock in the

legislatntive process. For this reason, some constitutions provide

for Joint sessions in case of a deadlock,. Tho constitutions of

some countries give the u p p e r house sole powers with regard to

certain matters, For example, in the United States, tho Senate

has the solo power of ratfying treaties and the appointment of

Benior public officers by the President. In Britain, until 1910

the House of Lords was on.par with the House of Commons in matters

of ordinary legislation. It had full powers of initiation and

rejection. There was no arran oment for breaking deadlocks. The

Parliament Act, 1911, took away the powers of the Lords. It

provides that when a money bill has been passed by the Commons, ±±

must bo sent up to the Lords, If the Lords do n o t pass it within

one month, the royal assent nu«-t b e given to it regardless of tho

views of the Lords. Thus, they lost all powers over taxation

and appropriations for expenditure. In the case of other bills,

they must hlso become law and the royal assent must be gitren to them

if they have been passed by the Commons three times in three sceceo-jsive

sessions within two years. Their extreme power is thus limited

So h o l d i n g up a. b i l l for two years.

 - 49 -

The reouring question is always: what to do w i t h a representa-

tive who loses the confidence of his constituents? Before

they beeane de jure one party states, Kenya and Znnbia had

constitutional provisions requiring an i n c u m b e n t member o f the

National Asgcmbly to resign his aaot and seek a fresh mandate

from his constituents if he crossed from one political party *

to another. In other words "crossing the floor' entxiled resig-

nation from the parliament.

Under Article 107 of the Con-titution of USSR "Seputies

who h a v e not justified the confidence of thie-eron'-tituents may

be recalled at any time by decision of a majority of the electors "

The cons+itulion of the German Democratic Kepublic provides

that a deputy who grossly infringes his duties crh be recalled

by his electors,

in he past political opportunism tempted come m e m b e r s of

the National Assembly to cross from the opposition to the ruling

party, Ugan.'.ans have therefore, lecsohs to loam fron the above

cited, constitutional provisions.

Rights of the Individuals.

Government is t-e, o p l l e c t i v c power of the people. Gover-.

nnent exists as a service institution in order to e n s u r e that

the li£o. of each individual in society is .safe :-nd t h a t there

isno unauthorised interference with his personal liberty,

property and other rights. Consequently, it is '-he function

of every constitution to strike a balance between the power of

the state rind t h o right cufthe individual. Mo'-t oSnstitutfions

accordingly guarantee the fundamental rights of the individual

and give him access to the courts if these right-.- a r e infringed

by tho government.
 - . 50 -

However, -the r i g h t s guaranteed by various con-titutions

vary from oountry to country. Gone entrench more rights than

others. For example, the constitution;; of tho socialist states

guarantee 6Uch rights as the right nhalter, food, work, education

to vote, participate in making political decisions, leasure time

and recreation, social care in pld ago, and to encourage mother

22
tongue and culture, Shis include the duty to aer»c in military

service, respect for the right oif o t h e r s , observance of the

constitution and other laws protection of public property, etc.

The African Chapter ofi H u m a n and Peoplee Sights also enumerates

23

such duties.

The Judiciary

Settlement of disputes between one citizen and mother and

the contuiment of anti-30cial elements inthe community one of

the most important functions of every• government. Public

^a'titutions must exist to dispose of trouble case-- a n d deal with

criminals, These institutions are usually "the courts. The courts

are so fundamental in any organised soceity th.\ the constitution

must lay down fthat they will consist of their personnel -nd their

hierarchy. The fundamental law of the land must also lay down-.

unequivocally the relationship of tho courts with the other organs

of the government - the legislature and the executive, Tho rule

of. l a w and national stability depend on this relationship.

Somo constitutions provide that the members of the judiciary

are to be appointed by the President acting alone or in accordance

with the advicc of. a judicial service commission. In United

ment

States appoint^/ of judges of the supreme Court must bo ratified

by Senate.
 - "51 -'

For lower cou*4w»-in =one of the state- people elect their own

judges and n a g e s t r a t . e s . All constitutions give judge- security

of tenure. They aay be removed Only for cause and after a thorough

investigation by a judicial tribunal. In Britain a judge nay

r »

be renobed if both Houses of P a r l i a m e n t address a p^.yer to' t h e

Queen for his rehoval. Even a Ch' .f Justice appointed by one

govemnent is not renoved by another govemnent.

Citizenship . • -''

General principles relating to citizenship are also included

in most constitutions. Citizenship ic an important «-tatu(^to any

individual. The rights he will enjoy and the duties expected of

him depend on his citizenship status. It is, therefore, essential

:
that the constitution nust lay down the rules for the acquisition

of citizenship and the circunstances under which it will be lost

or renounced.

In acquiring citizenship two' p r i n c i p l e s are allied.

Nationality is conferred at birth by the fact either a:'birth

within tho territory (jus soli) or descent from one of it? national

(jus aanguinis), A conbinntion of the two in various way^is

found in the constitutions or domestic legislation of n o s t states.

Federal or U n i t a r y . f
I

Another throny issue for the people of Uganda to consider

is whether we should have a unitary or federal constitution,

A unitary state is organised under a single central government,

The constituent districts hoJ.d p o w e r at tho discretion ofsrthe

central government, The essentials of unitary state are:

a) the suprenery o f the central government and (b) the absence

of subsidiary BOvoroign bodies. This' nfnns that all or most

powers of government are coAoetttrated in one central government.

 Good examples of unitary B t..te arc the 33c.st A f r i c a n countries,

''Britain and Prance,

In a federal constitution, the powers of government are di vidcd

between the central government and the contituent governments

in such a way that tho government of each constituent part is legally

independent within its own sphere, The Central government has

its 0>>n a r e a of powers and exercise them without any control

from the governments of the constituent parte of the country.

The constituent parts of tho country on their part exorcise their

powers without being controlled by the central government. The

legislature of the central government and of the parts have

limited powers, Tho indispensable quality of the federal state

is, therefore, the distribution of the powers of the government

between the federal authority and f e d e r a t i n g units. Tho country

is organised under a single, independent central government for

some purposes and under roni-independent regional, state, or

provincial governments, for other purposes. In the United States

of America and N i g e r i a , the. p a r t s a o referred to as 'states',

in Canada, they are referred to. R 'provinces', in Kenya they

were called 'regions' and Switzerland, they arc called 'cantons'.

The question is: when should a coun-ry have a unitary or a

federal constitution? Rcgardlcs of its -ise, where the country

is populated by a homogoniou.s people having a common language,

culture, history and background, there i(- n o n e e d for a federation,

A good example is afforded by j'-.he R e p u b l i c of Prance, Federation

is usually preferred where -there i n fet.r of domination of a

seotion of the population by large tribe. Tliis was the position

in Kenya, at independence, L
Sinilary where widely disimilar peoples and tribes are grouped

together under a single administrative system, federation may be

desirable. Switzerland is a tiny country but bcoause each of the

twenty two cantons regiru« itself as separate and distinct, it

is a federal ittate. Again where the favour for intergration and

Beperation have been at odds with each other, the fedral solution

is a popular formula. This is partly why N i g e r i a is a federation.

Bach state enjoys autonomy within unity, Mother situation that

calls for flederntion is where the different pnrtn of a country

have beeii enjoying autonomy for a long-timo but decide to unite

into a single state. The United ota/es, Canada, Australia and

the Federal Republic of Germany arc fenerations for this reason ,

Some states, such as Kalysia, are federation because each federating

unit wants to preserve its traditional oulturos, that is the

kingship system. Federation provides a solution for winning

politioai support for political rind e c o n o m i c intergration for a

hcteriogenous population.

There is a middle way b e t w e e n v. floderation and a unitary state

This alternative combines devolution of power to regional government

with an over-riding authority exorcised by the central Government,.

This was •the f o r m u l a used to k e e p l.'igeria one at independence,

and it is Still the position in USSR, Yugoslavia and Federal

Republic of Germany, ^

Another choice i"s co-oporative federalism where the central

rnd regional governments co-operate to carry out functions jointly

such as m.aintanance of law and order, regulation of the economy

i
and transport. This system op o r a t e s in the United States, Oaandd,
• 24
and Australia,
 - .54 ... -

Accomodation of Traditional Bulers

Should tho Kings be restored is another natter to consider.

The question of traditional rulers in a touchy issae. By the tine

of colonisation these rulers existed. They vioro rceo;piised by the

colonial powers. 'When independence cones what role are they to

play? §0ue countries such os India and Uganda abolished the^i.

Countries such as Malaysia, Zonbia and Botswana preserved

then. In Malaysia rulers play eorcnoniul roles in their areas.

The 'iuprene Head of 5+ate is elected by the Conference of Rulers

25
fo.- a p e r i o d of five years. In Znnbia, and Botswana tho

respective constitutions establish a parallel chabcr of Parliament,

callcd the House of Chio^s. In Botswana all noney bills and bills

if enacted, would affect any provisions of the constitution, the

status of chiefs, African Courts, African cu-toniry law or tribal

organization or tribal property, nust be referred to the House

of chiefs. The House entillcd to pass resolutions on the bills

. 2 6

and have then submitted to tho National Assembly.

The Zambian House of ChdcS'c ac ts through the President of the

Republic, Its fuction is to consider and discuss any bill

introduced into or proposed to be introduced into the National

Assembly that is referred to it by the President. The President

may S.IBO refer any other natter totho House of chicfs. The House

submits its resolutions on any matter referred to it by the

President and the President causes the ro«olutlon to be laid before

27

the National Assembly,

In Nigeria, there are two typos of "tr .ditional" rulers: the

Emirs of tho North and the Chiofs of Bant, -.test a n d South. Tho

Emirs ruled Muslin Northern Nigeria before colonisation. The

British used them to inplenont tho policy of indirect rule.

After independencetheir powers wore slowly whittled away.

These days they ac£ as the symbol of their respective tribes and

perfom purely traditional functions. Other parts of Nigeria

did not have trauitional ruler. Chiefs were created by the

British to implement the policy of indirect rule.

Article 20 of the Constitution of the Federal Republic of Nigeria

provides that the "State shall protect and enhance Nigerian

culture". One aspect oi . N i g e r i a n culture is the existence of

the Emir... and chiefs, .The constitution accordingly establishes

a council of c h i e f s in each state whose function is to adviso

the Governor on any matter, r e l a t i n g to customary law or culturol

affairs, inter-communal relations and chieftainship matters,

Bhenever requested to do so: it- n a y also advise the Governor

28
on the matters as the Eovernor may di rect.

Constitutional Amendments.

One of the. r e a j o n u why the C o n s t i t u t i o n is referred to as

fundamental law is that ±t 1" expected to enjoy a maximum degree

of sanctity and respect. It should not be changed, nodfied or

i
abrogated to suit tho policies of successive governments; lit is
to

not/be ri m n d e d Jo often th it loses its peculiar character

of being the' source of all laws and governmental powers. That

is why in rone countries, the: constitution is more difficult

to amend or change than other laws,

A special procedure mu-t be followed before it is amended ,

In other words some con-'itu'ions are rigid, Tho constitution

of the United States affords the besj: example of rigid con-jtitution.

Under Article V of the con titution of the United States, consti-

tutional auendeuentc must be proposed and ratified on national

basis. The process that either two-thirds of both houses

propose amendments or the legislatures of two-thirds of the

 fifty states petition Congress to call c convention for proposing

amendment, In both cases, ratification nust take place by

either throe fourths of the, l e g i s l a t u r e s or by conventions of

three-fourths og the fifty States.

Normally amendments have been done by proposal by Congress

and ratification by legislatures of the statds. The United ttates

Constitution hs b e a n made deliberately rigid for the purpose of

making Constitutional changc difficult. This ensures that

certain fundamental institutions of the American Union are not

tempered with by succesEive Aduinistration8or Congresses,

These include the fedr;il structure, the constituent states, the

central management o f m -'/tors l i k e interstate and foreign connercc

and tho rights of the individuals.

In some other countries, proposal for the amendment of the

constitution is referred to the people for approval in a referendum.

The people are given t h e -lower t o reject ar ratify proposed amend-

29 30
nentB, In Australia and Switzerland, ' for'exanple, it is'mandatory

for amendment peoposoln to "e placed before the people for their

approval or ratification, Inal'ederation where the interests of

the stater, and federal governments are set against each other,

agreed arrangements entrenched in the con titutionx must be prote-

cted from rash or sectarian alterations. The constitution accor-

dingly requires special majorities and procedures for amendments.

This avoids the possibility of a legislature de-troyfcng the

whole fabric of the constituion by a single enactment.

This work is licensed under a
Creative Commons
Attribution - Noncommercial - NoDerivs 3.0 Licence.

To view a copy of the licence please see:

http://creativecommons.Org/licenses/by-nc-nd/3.0/