CONSTITUTIONAL HISTORY

NOTES

BRIAN KALENGE,
LECTURER
FACULTY OF LAW

Nature of the Constitution and Necessity to

Study Constitutional History
The constitution is a set of rules expressing the needs and aspirations of the people.
It is a legal and normative framework that regulates and governs a country. It often
addresses several aspects including the relations between the people and their
structures of government and the relationship between various organs of
government. It is often considered the supreme law of the land such that any other
law (or custom), which is inconsistent with that law or custom is to the extent of its
inconsistency treated as null and void, and the supreme law shall prevail. In legal
theory, the constitution has been described as the grand norm and that all other
laws derive their validity from this supreme norm.

Why we study constitutional

history
We study constitutional history because we want to look at how common society
evolved especially as regards its structures of government and the body of laws that
have existed over a period of time. Further in order to assess the present, we need
 to look at our past, learn from the failures and successes and be able to provide
reform for the future. The necessity of studying constitutional history is in fact
apparent from the preamble to the 1995 constitution which provides
inter alia, recalling our history which has been characterized by political and
constitutional instability committed to building a better future by establishing a
socio-economic and political structure through a popular and durable national
constitution based on principles of unity, peace, equality, democracy, freedom,
social justice and progress.

Since all laws derive from the constitution as the fundamental law, it is necessary to
examine the manner in which the constitution is itself derived and enacted.

We study constitutional history because the concepts and principles that are central
to constitutional law for instance separation of powers, independence of the
judiciary, parliamentary sovereignty, human rights can only be appreciated against
their origins in the Anglo-American tradition and their evolution and appreciation in
the history of Uganda as a modern state.

Origins of the Ideas of the

Constitution
The ideas of the constitution in the various forms have their origins traceable as
early as the antiquity, through the medieval era in Europe to the political thinking
and events of the 17th and 18th century. In the period of antiquity
ancient Greece with its scholars such as Aristotle, Socrates and Plato gave us the
idea of modern state and government. The city – state (polis) was in Aristotle’s view
to be of such a size that allowed participation of all citizens in government and thus
the concept of direct democracy is no longer possible in modern large states and
has been replaced by the concept of representative democracy.

Furthermore, in the open life of market squares, democratic ideas of freedom of

assembly and association expression and conscience and equality evolved.
Ancient Rome gave birth to several constitutional ideas including that of the
modern parliament and perhaps more significantly the idea of citizenship by
defining who was a citizen of Rome and the duties and rights that attached to
citizenship.

The medieval era in Europe was essentially a feudal one characterized by feudal
lords and noblemen and merchants and serfs and was basically founded on
agriculture and trade. It was a period of absolutism in the power of the noblemen
and feudal lords over the lives and liberties of serfs as well as taxation of trade. The
influence of Christianity during the period also saw the conflict between church and
the state. During this period, there were developments to restrain the absolutism in
the powers of noblemen and feudal lords. One of these developments occurred in
the 13th century in England in 1215 in the form of Magna Carta, which often
recognized as the first document in the process of establishment of constitutional
states in Europe. It contains several clauses but the most significant were.

i) The right of the individual to trial by the jury

ii) The writ of Habeas Corpus.

 These two clauses sought to restrain the power of the noblemen and feudal lords to
arbitrarily detain people by requiring a trial by jury, the Magna Carta gave birth to
the modern concept of due process or the right to a fair trial. On the other hand by
introducing the wit of Habeas Corpus, it guaranteed the right to personal liberty.

Evolution of a Constitutional State in Uganda

The scramble for Africa, which pitted the major European powers of the time
against each other, was eventually settled through an international conference
in Berlin in 1884. Prior to the Berlin conference, the powers had nonetheless
already secured spheres of influence through the activities of missionaries,
explorers and charted companies and the conference only served to give affirmation
to the demarcation of territories. In E. Africa, the source of the Nile and the
economic as well as strategic interests had already fuelled colonial rivalry. The
rivalry in Uganda was however on the outset in the character of religion and whose
intensities would threaten social order within the territory particularly Buganda.
The protestant and catholic missionary groups were engaged in a religious rivalry,
which defined the politics and the balance of power between Britain and France.
The religious group that emerged dominant was the Protestants and has since
remained a dominant force in the political evolution of the colonial and postcolonial
state in Uganda. The religious factor has permeated the political life (in particular
political parties) as well as socio-economic aspects (e.g schools, hospitals etc)
of Uganda’s history even up to the present day. It is to be noted that the Amin
influence itself gave birth to the minority religion of Islam and which in the Muslims
were to have a dominant role. It’s therefore evident that from the very beginning of
the emergence of Uganda as a constitution/state religion has permeated the socio-
economic and political digest of Uganda and have since been inter-related.
The religious factor was in its earliest from prominent in the attempt to raise counts
as well as wining favours of the Kabaka in Buganda. Eventually after the settlement
of religious conferences in Buganda and after a brief period of the administration of
the Imperial British East Africa Company and the subduing of Bunyoro’s Kabalega
and Buganda’s Mwanga. The British flag was erected in Uganda for the first time
on 1st April, 1893 at Fort Lugard, Old Kampala hill. The protectorate was declared a
year later and between 1894 and 1900, the British consolidated their dominion. In
1900, the British entered into an agreement with Buganda called the (B) Uganda
Agreement whose significance was to pervade Uganda’s colonial and post-
independence periods in both political and constitutional terms. The 1900
Agreement is largely significant to a number of respects.

i) It was the first of its kind in Uganda and consequently led to other agreements
with kingdom areas such as Toro (1900), Ankole (1901 and 1941) and Bunyoro
(1933 and 1937). In the latter part of the colonial period, another agreement would
be concluded with Buganda in 1955.

ii) It introduced indirect rule as a policy of colonial administration as it established

and confirmed British over rule over Buganda with the Kabaka as the political ruler
although in fact relegated to a status of a puppet.

iii) It tended to give Buganda a privileged status in comparison to the other parts of
the protectorate. This was in spite of provisions to the contrary.

iv) It confirmed the territory and boundaries of Buganda as a kingdom.

v) It introduced the first instances of formal political government and thus it is often
regarded as the first constitutional instrument in Uganda’s instrument.
The 1900 Buganda Agreement, its Provisions and their Significance.

The Buganda Agreement was signed on 10th March 1900 between Sir Harry Johnston
as His Majesty’s special commissioner and the regents (and chiefs) including sir Appollo
Kaggwa, Stansilas Mugwanya and Nuwa Mbogo on behalf of the infant king Chwa II.
The Agreement contained 22 clauses and the majority of which were to be of profound
significance of Buganda in particular and the protectorate of Uganda as whole.

Article 1 of the agreement demarcated the boundaries and laid out the territory of the
kingdom of Buganda. In so doing, it established the geographical, political and
administrative jurisdiction of the kingdom. This had a number of ramifications:

i) It placed a restraint on the expansionist tendencies of Buganda by clearly defining

the extent of its territory.

ii) It defined the extent to which the jurisdiction of the Kabaka’s government went in
terms of legislative, judicial, political and administrative competence.
Kazaraine v The Lukiiko [1963] E.A 472 nb highlights some of the problems of
jurisdiction.

Article 9 which laid out the administrative units /counties of Buganda. The agreement
confirmed the kingdom as the primary entry in Uganda for the control of the rest of the
protectorate territory. It is significant that within the boundary demarcated was territory
which belonged to Bunyoro and had been given to Buganda by the colonial government
for its assistance to the defeat and pacification of Bunyoro. This territory consisting of 7
of the counties of Bunyoro and remained a contentious issue particularly between
Buganda and Bunyoro throughout the political and constitutional existence of the
protectorate and the immediate post-independent Uganda. The lost counties issue would
be reflected on a number of events, judicial decisions and constitutional
developments including.

- The signing of the 1933 and 1937 Bunuyoro Agreement where Bunyoro raised the
question of the return of its territories.

- The Lancaster and Marlborough conferences in 1961 and 1962, Bunyoro raised the
issue and the Morrison Commission was formed.

- The Kazaraine case in 1963.

- 1964 referendum on lost counties

- Kabaka’s Government v AG of Uganda (1964)

(Challenged the constitutionality of the referendum)

- Constitution of Uganda Amendment Act No.36/1964.

Article 2 provided that the Kabaka and the Chiefs of Buganda agreed to forfeit the
collection of tribute form neighbouring provinces in favour of his majesty’s government.
In this provision and others, the agreement recognized the transfer of economic
rights as an objective of the colonial state (cross reference with article
4, 9, 12, 15, 16 and 17).

Article 3 stipulated that Buganda would rank as a province of equal standing with any of
the other provinces in the protectorate (to which it may be divided). Refer to article
1 of the 1902 Order in Council. The intention of article 5 was to ensure that
Buganda did not play any special or privileged status in the protectorate in
 comparison to the other parts or provinces while this was latter of the agreement,
the spirit of it was to in fact give Buganda an enhanced position which would
eventually lead to struggles and conflicts between Buganda and the rest of Uganda
which characterized the protectorate and immediate post-
independent periods. Buganda became involved in struggles to enhance its position
or even to assert its independence and these would become more apparent in the
period leading to independence and the post independence period.
- 1953 – 55 Kabaka crisis.
- The 1955 Buganda Agreement (gave Buganda a format of electing representatives
to the Leg co.)
- The 1958 memorandum by Buganda to her Majesty’s government.
- 1958 – 1991, boycott of Leg co elections.
- Katiikiro of Buganda v Ag. Of Uganda [1959] E. A 38.
- Lancaster and Marlborough conference 1961 and 1962.

Article 4 stipulated that the revenue of Buganda kingdom that was collected would be
merged with the general revenue of the protectorate. The implications of this provision,
was to undermine the economic independence of the Kabaka and his kingdom and is one
of the provisions in the Agreement that ceded economic power to the colonial
administration.

See AG v Kabaka’s Government [1965] E.A 305

Article 5 stipulated that the laws made for the general government of the protectorate
were applicable to Buganda except where they were a conflict with the terms of the
agreement in which case the terms of the agreement were to prevail. The significance of
this article lies in the fact that it laid down the law applicable as between the protectorate
laws and the agreement provisions. It was largely designed to appease the kingdom in
giving the impression of the supremacy of the terms of the agreement, but this would
eventually turn out to be an empty gesture as it did not stop the colonial administration
from overriding the terms of the agreement. When it suited the administration and several
cases would later demonstrate this fact.

See R. v Besweri Kiwanuka (1937)

Mukwamba v Mukubora (1954)
Nasanairi Kibuuka v Bartie Smith (1908)
Katozi v Kanizi (1907).

Article 6: Stipulated that His Majesty’s government would recognize the existence
of the Kabaka and give him protection, the Kabaka, chiefs and people
of Buganda would conform to the laws and cooperate with the colonial government.
This article is the crux of the entire agreement as it dealt with the essential
elements of the imposition of colonial rule in Buganda.

i) Indirect rule between the Kabaka and the native ruler of his people.

ii) Subordination of the kingdom to the authority and over rule of the colonial
administration.

iii) The failure to cooperate was to result in withdrawal of protection and recognition.

Mukwaba v Mukubira 1954: Issue related to legality of the withdrawal of recognition of

the Kabaka resulting in his deportation. There are other significant aspects to Article 6
including:
i) It attempted to address the issue of succession to the Kabakaship in Buganda by
placing the duty upon the lukiiko to nominate and elect a successor. Although the
colonial government would have the final say on who eventually became the
Kabaka.

ii) It spelt out the jurisdiction of the court in the Kabaka’s kingdom stipulating that
this jurisdiction would cover only cases involving natives (cross-reference to Article
8).

iii) It spelt out remuneration of the Kabaka and that he would be guaranteed a yearly
allowance of pounds 1,500 as well as pounds 650 for household needs during his
year of minority while the regent would get an annual salary of 460 pounds.

iv) It stipulated that the Kabaka would be addressed as His Highness and
receive a 9 gun salute at functions (while His Majesty of England got a 21 Salute).

It is clear from Article 6 that with overall authority was vested in the colonial government
and the Kabaka rule at its pleasure.

Article 7 provided that the Namasole mother of the Kabaka was to receive a lifetime
allowance of 50 pounds a year while this sum was designated during her life time, it was
one-off allowance that would not continue for the subsequent Namasoles.

Article 8 provided that in cases of a mixed nature cases involving natives and non-
Natives these were subject to the jurisdiction of the British Courts (cross reference 1902
Order-in-Council sec. 15).

Article 9 as already noted divided Buganda into 20 administrative units (counties) each
of which was to be headed by a chief appointed by the Kabaka’s government and
approved by the colonial administration. The chief were to receive an annual salary of
200 pounds and carry out a number of functions including :

i) Administering of justice (in effect the chiefs were the judicial officers in the
Kabaka’s courts).

ii) assessment and collection of taxes up keep and maintenance of roads.

iii) Overall supervision of native affairs with respect to all their functions, except
for the collection of taxes, the chief was to report to the Kabaka’s government. As
regards taxes, the chiefs were responsible to the colonial government.

If a chief failed to carry out his duties diligently, the colonial Government could call
upon the Kabaka to dismiss and replace him.

Article 10 stipulates that the Kabaka would be allowed three ministers (native officers of
state) including:

i) Prime minister (Katikiro)

ii) Chief Justice (Omulamuzi)
iii) Treasurer (Omuwanika)
who were to be approved by the colonial administration.

The three ministers were to receive an annual salary of 300 pounds (except where they
were regents for which they received 400 pounds). The native officers of state were to act
as a conduit for relations between Kabaka and the colonial administration. The P.M was
to be an ex-officio member and president of the lukiiko. While the Chief Justice was to
be the vice president.
Article 11 constituted the lukiiko as the native legislative body of the kingdom apart
from the three ministers, it was to comprise each county chief (who were also to be ex-
officio members and seven other persons nominated by the Kabaka.

Functions of the lukiiko were:

i) Discussion and legislation on all matters relating to the administration of the

kingdom.

ii) Act in certain instances as courts of appeal involving property and sentences of
imprisonment.

Notably the lukiiko had no power over the property belonging to Europeans.

iii) Membership of the lukiiko was confined to the natives of Buganda and on selecting
his representatives; the Kabaka was under a duty not to take into account the
religious affiliation of the person selected.

Article 12 provided for taxation as a means of raising finances and revenue towards the
administration of the kingdom and the protectorate. A system of taxation involved the
following taxes:

i) A hut tax of 3 rupees or 4 shillings per year imposed on every hut used as a
dwelling place.

ii) A gun tax of 3 rupees or 4 shillings per year to be paid by any person who
possessed a gun.

Article 12: However contained exemptions of certain persons from the payment of gun
tax in respect of a certain number of guns thus the Kabaka was granted 50 guns for 50
men in his household. The Namasole was to get 10. The ministers 20, county chief
10 and other membership of the lukiiko one.

The system of succession was however not to affect:

i) Exterior taxation i.e customs and port dues.

ii) Rates on things such as water, lightings, market dues.

Significantly Article 12 embodied the principle of no taxation without

representation or legislation. Given that no other tax was to be imposed except by
the majority of the lukiiko.

Article 13 dealt with the question of military service in Uganda by recognizing the
Kabaka’s preexisting right to conscript able bodied men for military service in the
defence of the kingdom were the need to arise. However this right was now to be
exercised under advice of the colonial administration. Article 13 as with other provisions
of the agreement affirm the laws of the Kabaka of his authority in the kingdom in this
regard in respect of military affairs.

Article 14 provided for the maintenance of roads in the Kingdom. It would give the
county chief labour and free able bodied men to compulsory work on the up keep and
maintenance of roads

Article 15 concerned with the distribution of land and was to be of great significance the
subsequent history of Buganda and the protectorate at all. The land was distributed as
follows:

i) 1,500 sq. mile of forest came under the control of the control of the colonial
administation

ii) 9,000 Sq. Miles of land was vested in her majesty’s government and under the
control of the colonial administration.

iii) 19,000 and 9,000 sq. miles came to constitute the crown land. (cf Article 18
compensation for the 10,500 sq. miles).

iv) 330 sq. miles of plantations and other private property for the Kabaka 16 sq. miles
for the Namasole, 10 sq. miles and other private property for the king’s mother.

v) 320 sq. miles for the 4 princes.

vi) 960sq. miles for the princesses, and other relatives of the Kabaka.

vii) 920 sq. miles for the county chief of which 160 sq. miles was held as private
property/ each chief and the other 160 sq. miles was the official estates of the
county.

ix) 96 sq. miles for the regents of which 48 sq. miles was private property each
regent 16 sq. miles and the other 48 sq. miles was official estate advanced to the
office of the regents.

xi) 24 sq. miles for Nuwa Mbogo, leader of the Muhandans.

xii) 20 sq. miles for the Kamuswaga the chief of (kooki).

xiii) 180,000 sq. miles for 1,000 chiefs and other private owners. There were mostly
estates already on possession and each was composed at an average of 8 sq. m.

xiv) 92 sq. miles for the three missionary societies.

xv) 50 sq. miles for the colonial government for its station and offices.

Because of distribution of land in sq. miles, it came to be known as mailo land, although
it is basically freehold.

Article 15 would have a significant impact on the political, socio-economic and cultural
destiny of Buganda and the protectorates.

i) It led the disposition of the Kabaka’s authority over the Butaka/customary

tribal land. It would ultimately lead to the demise of communal land ownership
in Buganda. This was made more apparent by the pressing of Buganda land law of
1908 which allowed for the alienation of land in Buganda.
See Mwenge v Migade (1933).

ii) Given that mailo land was free hold, it placed emphasis on individual ownership
and as such land became the basic unit of economic development of the
protectorate. The difficulties of the relations would emerge in the early period of
colonial rule.

Articles 16 and 17 dealt with the promulgation of Forest Regulations and rights over
ministers on private estates and further confirmed the colonial government’s grip and
control over economic and natural resources.

Article 20 stipulated the instances in which the colonial government would repudiate
(revoke) the agreement on account of the conduct or acts of the Kabaka or chiefs or
people’s of Buganda. One such instances was the failure to raise a minimum amount of
revenue or the taxation due.

Article 21: Although the agreement was written in English and Luganda, the English
version was the authoritative text to be used in its interpretation.

THE 1902 ORDERS– IN –COUNCIL

The 1902 order-in-council formalized colonial rule in Uganda and was the fundamental
Law of the protectorate. The order in council was in exercise of power granted to His
Majesty’s government under the Foreign Jurisdiction Act of 1890 to legislate with
regards to foreign territories of the United Kingdom. 1902 orders-in-council dealt with
several matters of constitutional significance ranging from the provincial and
administrative divisions, structures of government. Administration of justice and the
maintenance of law and order to the applicable laws. As the fundamental law of the
protectorate, the Order-in-Council provided for the following:

1) First and foremost, it defined the provinces and administrative divisions of the
protectorate under Article 1. In so doing it defined the extent of the applicability of
Order-in-Council as a constitutional instrument. As well as the extent of the
jurisdiction of the colonial government in the protectorate. The divisions originally
established by the Order-in-Council were five.

a) The Central province consisting of the districts of Elgon, Karamoja Busoga, Bukedi
and Labwor.

b) The Rudolf province consisting of the districts of Torkwed, Turkana and Dabossa.

c) The Nile province consisting of the districts of Ddinga, Bari and Shuli.

d) The western province consisting of the districts of Bunyoro, Toro and Ankole.

e) The kingdom of Buganda and the islands appertaining thereto (Article 3 of

Buganda government).

In 1926, a border adjustment took place to transfer a part of eastern Uganda to

the Kenya colony. This was undertaken by two Orders-in-Council that is
the Kenya Colony and Protectorate (Boundaries) Order-in-Council of 1926.
Proclamation under Article 6: Uganda Order-in-Council of 1926 as a result of
which what was referred to as a Rudolf province became part of Kenya. The
protectorate was divided into districts and sub-districts for the purposes of its
administration and this was a power conferred by Article 6 to the commissioner.

2) It provided for the office of the Commissioner under Article 4 and 5 who
was to take overall control of the administration of the protectorate as the chief
representative of His Majesty’s government. The commissioner would later become
the Governor under the provisions of the 1920 order-in-council.

3) The Order-in-Council provided for crown lands under Article 7 which were under
the control of the commissioner. The order-in-council defined crown lands to mean
all public land land in the protectorate that had been subject to the control of His
Majesty by virtue of any treaty convention or agreement and all land, which shall
have been acquired for public service (Article 2). Similarly minerals and mines were
 to vest in the colonial government, under Article 7 (clause 4). In effect the control
of the greater part of land and natural resources in the protectorate was vested in
the colonial government. The definition of crown land by reference to agreements
was intended to affirm the public lands acquired under Buganda, Ankole and Toro
agreements.

4) The Order-in-Council empowered the commissioner to make laws under

Article 8-10. In 1920, this function was placed in the hands of a legislative council.
However, by virtue of the 1902 order-in-council, the commissioner was able to
make laws for peace, order and good governance in the protectorate between 1902
and 1920.

5) The Order-in-Council established a system of exercise of judicial power comprising

of the Courts of Justice, in particular the High Court which was to have full civil and
criminal jurisdiction on all persons and matters in Uganda. This was provided for
under Article 15 (clause1). The court was referred to as His Majesty’s High Court
of Uganda.

6) The Order-in-Council contained a reception clause under Article 15 (clause

2). The reception clause essentially defined the law to be applied in the
protectorate and in particular in the judicial determination of disputes and matters
by court. The applicable law was to include in law, doctrines of equity and statutes
of general application of force. The reception date of Statutes of General
Application was legislation in force in England as of 11th August 1902. This is how
laws such as the Evidence Act, Contract Act, Sale of Goods Act, and Penal Code
came to be part of the laws of Uganda.

7) The Order-in-Council contained a repugnancy clause under Article 20. The clause
recognized the application of native laws and customs in disputes involving natives
as long as they were not repugnant to natural justice and morality.

Article 20 provided: in all cases, civil and criminal to which natives were parties, every
court shall:

a) be guided by native law so long as its applicable and is not repugnant to

justice and morality or inconsistent with any order-in-council or ordinance or any
regulation or rule made under any Order-in-Council/or ordinance.

b) Required the courts in such disputes between natives to decide all such cases
according to substantial justice without undue regard to technicalities of procedure
and without undue delay.

nb R v Yowasi K. Paulo et al (1922) is a forerunner to Article (d) & (e) of the 1995.

The repugnance clause was intended to remove those customs and laws that were
considered negative and repugnant to natural justice and good conscience. The major
problem with the clause was that the negative and repugnant aspects of a custom were
perceived in the eyes of the colonial judge. In other words, it was a subject test which
was applied according to the morals and standards of an English person. As a result of
this subjectivity, many native laws and customs which were fundamental to the social
fabric of the native communities were rendered inapplicable at the stroke of the English
man’s pen. The subjectivity of repugnance of native custom was reflected upon by Justice
Wilson in the case of Gwao Bin Kilimo v Kissunda Bin Ifuti (1928) 1 T42 403 in
which be admitted that the test is one of English morals and standards.

The most famous case on the repugnant clause was R. v Amkeyo (1917) KLR 14.
Amkeyo had been charged and convicted of possession of stolen property and the man
witness against him was a woman whom he claimed to have married according to native
custom.
On the basis of the law of evidence, the testimony of this woman should not have been
admitted given the desire to protect marital confidence. The issue by the court was
whether a woman married under native custom was a wife in the strict sense of the word
and in effect that the relationship between Amkeyo and the woman could be construed as
a marriage.

Hamilton C.J took the view that the relationship between Amkeyo and the woman in
question was for lack of a better phrase “wife purchase” and that it did not fit in the
idea of marriage as generally understood among civilized peoples and that the native
custom was supply repugnant to good conscience and morality. In holding that the
relationship under native custom was not a marriage, the C.J underscored the standards of
a marriage as understood among the English.

The rejection of a relationship under native custom as a marriage was founded on a

number of reasons:

i) There was no consent on the part of the woman as she was not a free contracting
party.

ii) The element of bride price or bargain made the woman to be rather in the nature of
a (chattel).

iii) Relationship under active custom was potentially polygamous.

Read these Cases

Abdulrahaman v R. (1962) E.A

Whether a relationship contracted under Mohammedan law was a marriage.
Uganda v Alai (1967) E.A 596

Alai was accused and charged with adultery. And his argument was that the woman was
married under customary law, so she was not a wife. Held: Udo Udoma C.J, held that
marriage under the laws of Uganda included relationship under civil, customary laws.

Nb After 1964, laws were made to recognize all forms of marriage.

The repugnance clause has survived beyond the colonial period and has been stipulated
under the various Judicature Acts since, that is the 1962, 19678 and 1996
Judicature Acts (now cap 13 Laws of Uganda 2000).

Qn. Is the Repugnance test really the suitable test for determining the validity and
continuity of custom or should the test be rather one of consistency with the
constitution, that is Article 2 (2), 33 (6) and 246 (2) among others.

Gwao Bin Kilimo v Kissunda Bin Ifuti (1928) 1 T42 403

A government tax clerk named Mange received 10 Shs. From Kisunda for poll tax
issued him with a false tax ticket and converted the money to his personal use. Mange
was charged and convicted in a criminal court. Subsequently Kisunda sued for the return
of his 10/= and obtained judgment in his favour thereafter, Kisunda went and took
possession of 2 heads of cattle, which wasn’t property of Mange but the father Gwao Bin
Kilimo unsuccessfully objected to the native and so brought the matter to the High Court.
The issues by the High Court were:
1) Whether there was an authentic Turu native law, which allows the taking of a
father’s property in compensation for a wrong done by a son.
2) Whether this native law is consistent with the repugnancy clause
By Article of 24 of the 1920 Tanganyika Order-in-Council. A British court may or
should be guided by native law. The court noted that the alleged native law was not
of universal application and so baraza of chiefs had never enforced the custom.

Nonetheless, Judge Wilson went on to reject such a custom as being repugnant

because it could never be expected that an individual should bear responsibility of
the conduct of another adult person and therefore the alleged Turu native law
was repugnant to justice and morality.

Mwenge v Migade (1933)

Migade wanted to sell land which was part of Butaka and Mwenge challenged his right to
do so on the basis that Butaka land was inalienable in native Buganda customs. The issue
before the court related to the instance and continuance of customary tenure in Buganda.
The court considered the provision of the 1900 agreement and the land legislation passed
by the Buganda government. (Buganda Land Law of 1908) and when not to hold that
the practice in Buganda showed that butaka tenure no longer existed and therefore, by the
provisions of the land law. The continued existence of the alleged custom was repugnant
and that the custom must be repealed as abrogated and destroyed.

Kajubi v Kabali (1944) 11 E.A.C.A

R. v Paito and others

In this case, the accused and 5 others were arrested for;

Proceedings in the court, the court adapted procedures peculiar to the native. The
procedure normally is for the complainant to prosecute since there is no designated
prosecutor under Buganda native laws – given that the Kabaka was the aggrieved person
and could not appear in his own courts to prosecute, the court acted as prosecutor putting
questions to the accused itself and finally convicting them. On appeal to the High Court,
the three accused that the procedure adapted was irregular. The High Court held that the
procedure of the lukiiko court is not expected to be the same as in a British Courts. But as
long as the procedure of the lukiiko allows for substantial justice being done, there are no
grounds for setting aside a decision of that court for irregularity.

8. The Order-in-Council provided for the power of the commissioner to order the
removal or deportation of any undesirable person from the protectorate, in order to
preserve peace, order and good governance. This favour was provided under Article
24 and 25. An order of removal or deportation was not subject to judicial appeal
before the courts as a result of the provisions of Article 24 and 25. The
commissioner made laws for removal and deportation:

1) Removal of Undesirable Natives Order 1907

2) Deportation Ordinance 1908

This was revised four times between 1908 and 1956.On the several occasions
during the colonial period, orders of removal and deportation were issued to deal
with art-colonial sentiments instances included:

Deportation of several members of the Bataka party after the riots in 1940s.
Deportation of Kabaka Mutesa II in 1953.

Re GL Binaisa (1959) E.A 997

Judicial inquiry pending deportation.
 The Deportation Ordinance would survive into post-independent Uganda as Cap 46
and its constitutionality would finally be challenged in Ibingira I in 1956.

Implications of Order-in-Council 1902 in terms of constitutionalism.

The Order-in-Council is important because it was the first legal instrument to

establish a framework of government for the whole of the protectorate. It put in
place the basic elements and structures of government, which would influence
politics and constitutional government through the colonial period as well as post
independent Uganda. On the other hand, the Order-in-Council tended in other
respects to negate the ideas of constitutionalism including those ideas, which had
developed in Britain at the time e.g.

i) It did not respect the doctrine of separation of powers given that the legislative
and exercise of powers were vested in the one person of the commissioner

ii) It did not recognize the rule of law by applying double standards an open
discrimination between the natives and the Europeans. For instance on terms of
adjudication of disputes.

The absence of the rule of law was also apparent in the denial of the right of
recourse to court by individuals in respect of the acts of the colonial authorities.

iii) It did not define the rights and freedoms of the individual in fact apart from a
casual reference to Habeas Corpus; the Order-in-Council does not mention human
rights whatsoever. The question that has been significant in Uganda’s constitutional
history has perhaps been on the relationship between the Order-in-Council and the
kingdom agreement, Article 5 stipulated that the agreement would have procedure
over other laws of the protectorate. The relationship between the Order-in-Council
and the kingdom agreement would be the subject of dispute in a number of cases.

Nasanairi Kibuuka v Benie Smith, (1903) 1U.P.L.R 34

The issue related to the legislative powers reserved the kingdom of Buganda
under the 1900 Order-in-Council. The court held that his Majesty’s government
did not acquire powers in Buganda which had not been granted by the 1900
agreement. Carter, J noted that “As I understand the agreement, it is not to be
regarded as taking away any right or power of the Kabaka except by its express
provisions. Therefore whatever powers had Kabaka before remained with
him except as far as they are expressly taken away or limited. A sovereign
state has undoubtedly the power of legislating which was the case prior to
the 1900 agreement, in so far as am aware which the agreement takes away this
right”.

Katozi v Kanizi (1907) 1 U.P.L.R.24

This case involved the conflicts between the 1901 Ankole agreement which
reserved certain judicial powers in Ankole native courts and the terms of the 1902
Order-in-Council which in establishing the High Court claimed to give it full
jurisdiction within the protectorate territory. The High Court held that the Order
in-Council did not alter existing kingdom agreements. The court’s decision was
supported by the secretary of state for the colonies who stated:

“The validity of Uganda Order-in-Council, 1902 is so far

as it nullified this reservation of judicial powers is
open to question. In these circumstances am advised
 that the Uganda-Order-in-Council of 1902 should be
construed in such a manner as not to impair the rights
and powers reserve”

These two early cases, indicate the courts giving prominence to the kingdom
agreement and bearing powers reserved to the native institutions under those
agreements. In the subsequent decade, the courts demonstrate a shift in approach
that would result in the virtual disrespect the kingdom agreements.

R. v Besweri Kiwanuka (1937)

The issue was whether the High Court established under the Order-in-Council had
jurisdiction over matters and persons in Buganda. The Buganda Agreement had
not explicitly stated whether or not this would be the case (Article 6). As in the
Katozi case, the issue was referred to the Secretary of State of the colony whose
reply was to affirm that the 1902 Order-in-Council was superior to the kingdom
Agreement. The court eventually held that the 1902 Order-in-Council, Her
Majesty’s government had made manifestions to the extent of his jurisdiction in
Uganda and further that such manifestation was to be regarded as an “act of
state” which was not challengeable before Her Majesty’s courts

Mukwaba and others v Mukubira and others (1954).

One of the issues raised before the court related to the validity of the withdrawal
of recognition and deportation of the Kabaka in 1953. The court held that the
withdrawal of recognition under Article 6 of the Buganda agreement was an Act
of State in which case, the court would not be able to inquire unto its validity.

Katikiro of Buganda v A.G (1959) E.A 382

The issue was whether the protectorate government in conducting the 1953
Buganda Agreement which provided for a format of indirect elections for
Buganda. The court held that the conclusion of the 1955 agreement was an Act of
state and therefore not challengeable before her Majesty’s court .

Daudi Ndibarema v Enganzi of Ankole (1960) E.A 47

The issue was the validity of the Ankole Land Regulations of 1958 in relation to
the 1901 Ankole Agreement. The conclusion between the Ankole Agreement
amounted to an Act of state upon which no inquiry could be brought before the
courts.

Shobuza II v Miller and others (1926) AC 518

These cases ended the debate about the superiority as between the Order-in-
Council and kingdom agents and the courts difference to the Act of state doctrine
was in the interest and political convenience of the colonial government. Most
significantly it demonstrated the fact that the colonial government did not respect
or feel itself bound by the provisions of those agreements.

IMPOSITION AND OPERATION OF COLONIAL RULE BETWEEN 1902 AND 1920

Once the Buganda agreement had been signed and 1902 Order-in-council enacted,
the British government spent the next two decades consolidating its authority and
over rule. In between the two instruments other kingdom Agreement had been
signed with Toro and Ankole with administrative structures set up under those
kingdom Agreement essentially similar to those of Buganda (counties, chiefs, native
 courts and legislative councils, officers of state etc) Outside the kingdom areas, or
addition to the 1902 Order-in-Council the primary instrument for the consolidation
of colonial rule was the Native Authority Ordinance of 1919 which made provisions
for the powers and duties of chiefs and for the enforcement of authority in their
areas of jurisdiction. The 1919 Ordinance, the chiefs had administrative duties
(collection of taxes, supply of labour for the maintenance of law and order,
prevention of crime, arrest and detention of people’s and animals etc).

In 1920, another Order-in-Council was promulgated and whose major significance

was the introduction of district organs of government. This was actually the primary
purpose of the Order-in-Council as was apparent in its preamble which refers to the
necessity of executive and legislative councils. The main changes introduced by the
1920 Order-in-Council:

1. It changed the nature of the head of the protectorate from commissioner to

governor. A term that would remain until 1962.

2. It established the Executive Council under Article 6 as a formal executive arm of

government and was to consist of such members as His Majesty’s government
would deride to appoint. In the subsequent years, the executive council would
consist of officers such as.

i) Director of Finance
ii) Director of Medical Services
iii) Director of Transport
iv) Attorney General
v) Director of Agriculture

3. It established the legislative council (Article 7) 10-17 as the formal legislative

organ of government and was to executive the legislative powers hitherto by the
commissioner. The commissioner hitherto exercised the legislative powers. The
legislation council was to consist of the governor and not less than two other
persons appointed by His Majesty’s government. The powers of the legislative
council were:

i) To make laws
ii) Constitute the courts
iii) General oversight of administration of justice and maintenance of peace, order and
good governance. Laws made by the legislative council were to be sent to the
governor for assent otherwise they lacked validity. The governor had a right of veto
on all matters legislative council.

4. Members of the Legislative and Executive Council sat at the pleasure of His
Majesty’s Government and therefore would be removed from office. (Article 6 and
7). The governor was also given power to suspend either members of the executive
and Legislative Council which suspension had to be confirmed by his Majesty’s
government and if so done, the particular individual must vacate membership on
either council (Article 16).

5. The judicial system put in place under the 1902 Order-in-Council remained largely
intact. The Eastern African Court of Appeal would be established a year later by the
1921 East Africa Court of Appeal Order-in-Council.

The Order-in-Council is significant in Uganda’s constitutional history as for the first

time; the best features of a typical constitutional state are seen to take shape. There
is more less a clear demarcation of the three powers under the 1902 Order-in-
Council. However, it was still designed to retain and reinforce colonial authority
 given to closer relationship on the powers of government such that there had not
been much of the transition in the actual distribution of power. In effect, the Order-
in-Council confirmed the reforms. This is evident from the membership of the
executive and legislative councils under the Order-in-Council. The ex-officio
members of the legislative council were largely drawn from the public service
including the Executive Council and there were the majority while official members
were a minority. Further, the governor’s right of veto and power of suspension of
members rendered irrelevant any demarcation of powers between the arms of
government.

In effect, while there were district organs of government and an increased number
of persons involved in the administration of government, the powers of the
government remained largely intact. Finally in spite of the creation of the executive
and legislative councils, the management would for sometime continue to exclude
Africans and other non-European community from their membership.

DEVELOPMENTS IN THE PROTECTORATE FROM 1920s – 30s

In the 1920 and 1930s, there were a number of developments but two in particular stood
out significantly.

i) The Asian question in terms of political representation and economic interest.

ii) The Bataka and peasant grievances in respect of relations on land in Buganda.

THE ASIAN QUESTION

After 1920, demands for participation in the protectorate government would be

made not by the native Africans but by the other non-European community, the
Asians. The Asians had come to E. Africa at the close of the C19th mainly to
construct the Uganda railway. After which most settled in Kenya and Uganda
carrying on trade and commerce as their main occupation. By the 1920s, the Asian
community was significant and because of their numbers, they argued for a political
and economic state in the protectorate. The Asian community put pressure on the
colonial government for representation in the legislative council and this would
bear fruit to the nomination in 1926 of the first Asian representative Chinubhai
Jethabai Amin to the legislative council. In effect, the first non-European
representative on the Legislative Council was Asian rather than African. It would
take another 19 years before African representative to the legislative council was
recognized. The Asian question would throughout the colonial period affect politics
and government in Uganda.

In terms of economic interest, the promotion of the Asian economic prosperity was
not by accident nor was it their doing for discriminatory and racist laws put in place
by the colonial government results economic privileges and ultimate domination of
trade and commerce by the Asian community. This domination was a result of laws
and policies, which excluded Africans trading within a specified radius of an urban
center. The Trading Ordinance of 1938 would prohibit Africans from trading within
a radius of 10 miles of an urban center or township. The Trading Amendment
Ordinance-1930 attempted to reduce the effects of the ordinance by reducing the
limitation of 1-mile radius. Similarly, Africans were prohibited from growing cotton,
processing coffee as well as engaging in export-import trade thus the foundation of
the economy of the protectorate was left largely in the hands of the Asians. This led
to friction and antagonism against the Asian community such that wherever there
 were uprisings and riots, as occurred in the Bataka uprisings of the 1930s and
1940s, the Asian community was a prominent target of expressions of Anti-colonial
sentiments as they were identified as part of the repressive colonial rule. One can
in fact say that the 1972 expulsions represented the culmination of the African
dissatisfaction with the Asian community.

GRIEVANCES OF THE BATAKA AND PEASANTS

The protectorate underwent significant developments between 1900-1930

particularly in Buganda. During that period, the power of the mailo land
beneficiaries was on the increase and this was set against the dissatisfaction of
those who had been disposed by the land redistribution under the 1900 Uganda
Agreement that is the Bataka clan leaders. When Kabaka Chwa II took over from
the Regents, the Bataka who had formed a quasi
political association, the Bataka Association in 1921 appealed to the Kabaka to ask
the Governor for a period of the agreement. They were joined in this appeal by the
peasants who were burdened by the rent (Busuulu and Evunjjo) paid to the mailo
land owners. Although Kabaka Chwa II was sympathetic, the Lukiiko which was
composed of the main beneficiaries of the land distribution rejected the demand.
Nevertheless, at this point in time, the colonial government had itself been
concerned about:

i) The relations between landlord and tenant in Buganda.

ii) The system of land tenure in Buganda was not delivering efficiently in economic
terms and

iii) The Bataka grievances which if not addressed threatened to been even more
problematic to the administration of the protectorate. Under these circumstances
the colonial government set up a commission of inquiry in 1925 and in 1928
wherefore the Busuulu and Envujjo Law was enacted to bringing to an end to the
previously unlimited amount of rent and tribute that the landlord could extract from
tenants. Given that the amount payable was often arbitrarily determined by the
landlord. The peasants had therefore felt oppressed by the system and the colonial
government admitted that the state of affairs was not economically productive. In
this regard in 1928, Busuulu and Envujjo law did:

1. That a limit in the amount of Busullu and Envujjo that landlords could extract from
tenants.

2. Guaranteed to Buganda peasants, complete and hereditary security of tenure that

is they could not be evicted for simply failing to pay rent and so allowed for the
continued cultivation of land.

Look at this particular part in Nabudere’s Imperialism & Revolution in Uganda.

The Busuulu and Envujjo law of 1928 represented a revolution in the socio-economic
relations in the protectorate. The law created new relations between landlord and
peasants by reducing the arbitrariness and insecurity in those relations. Economically
the tenants gained security of a use of the land and this ensured that cash crop
production
continued.

- look at Mwenge v Migade (1933)

On the part of the Bataka who had raised the peasants complaints, their own grievances
relating to the restoration of their cultural authority over communal land were not
addressed. In fact, the Busuulu and Envujjo law robbed them of their support base. The
case of the Kabaka was more complex. On the one hand, he was seen a sympathetic
listener to the plight of his people. On the other hand however, he was not actually able
to deliver any reform. His prestige and position was generally undermined. That he was
to lament

“My present position is so precarious that am no longer direct

ruler of my people. Am beginning to be considered by my
subject merely as one of the British government’s paid servants.
This is solemnly due to the fact that I do not real power
of over my people. Even the smallest chieftainship is under
the control of the provincial commissioner. Any order
given whether by the local chiefs or the Lukiiko is always
looked upon with contempt unless and until it is confirmed
by the provincial commissioner.”

Look at Yowasi K. Pailo (1922).

The Busuulu and Envujjo law was able for the time being to diffuse social and
economic tensions in the kingdom. However, the failure to address the grievances
of the Bataka would result in increased antagonism and protests. Most significantly,
the Bataka would eventually organize the most prominent early anti-colonial riots.

THE HUMAN FACE PERIOD: COLONIAL REFORMS AND POLITICAL

DEVELOPMENTS TOWARDS INDEPENDENCE:

The developments in the 1940s in Europe and domestically in the colonial gave way
to what tends to be referred to as the human face period of colonial administration.
This can be attributed to a number of factors.

i) The war in Europe had resulted in the weakening of the economies of most
European powers and so rendered it difficult to maintain the administration of the
colonies.

ii) Africa participation in the war in places such as Burma and India (for instance by
the King African Rifles) had awakened an upsurge of nationalistic feelings and
desires for self-government. This was given impetus by the UN’s emphasis on self-
determination under its charter and the 1952 General Assembly resolution on the
grant of independence to colonial territories and peoples. (Res. 1514(xx) (1960).
Further, the appearance of the labour government in U.K with policies more
inclined to the granting of self government to the colonies would gradually see the
grant of independence to the British colonies.

iv) Domestically, in the protectorate, the Bataka upsurge saw it emerge as a strong
political force turning the 1921 association into the Bataka Union in 1945 and
with a more nationalistic and political outlook. The Bataka Union would stage
strikes and riots in Buganda in 1945 and 1949. They did also submit a
memorandum to the colonial government in 1945 asking for social-economic and
political reforms (native election of their own chiefs, rights of natives to grow and
process cotton and coffee as well as engage in export trade. The Bataka union was
subsequently banned in 1961 as an unlawful society by the Penal Code Ordinance of
1951, but its legacy was to inculcate nationalistic feelings and the ultimate
emergence of nationalistic political organizations for instance the Uganda National
Congress.
 KABAKA CRISIS, 1953 – 55 (look at Kanyeihamba’s Constitutional History
of Uganda)

In January 1952, Sir Andrew Cohen arrived as governor and during his
governorship, he sought to reform colonial policy particularly as regards:

i) The creation and training of African administrators.

ii) Increment of African participation in the protectorate government.
iii) Placing of local government on a stable and democratic platform.

Significantly one of Sir Cohen’s first concerns was in regards to Buganda. In March
1953 Cohen issued a joint memorandum with the Kabaka on constitutional
development and reform in Buganda providing for:

i) 60 of the proposed 89 members of the Lukiiko were to be elected.

ii) The Kabaka was to consult the committee of the Lukiiko before selection of his
minutes.
iii) Increment of the responsibilities of the Buganda government and the devolution of
services as such local services, on primary and junior secondary, rural hospitals and
dispensaries, field services for soil conservation livestock breading and disease
control were to be transferred to the Buganda government.

The devolution of services appeared to be contrary to the promotion of the

protectorate unity as was regarded by Sir Cohen as essential to it. In fact the
reforms of March, 1953 were an attempt to forestall a federal system rather than an
essential step towards it. The memorandum in fact provided:

“The Uganda’s protectorate has been and will continue to be

developed as a unitary state.”

Significantly the 1953 reform would demonstrate the dependence of the colonial
government on the legal cooperation of the Kabaka with the ascendancy of Mutesa
II as Kabaka, his strength was bound to be the cause of friction between the
Buganda government and the colonial government. Educated at Cambridge and
already offended that he was not treated with honour at the coronation of Queen
Elizabeth II in 1952, the reliance on Mutesa II to promote colonial government
policy was unlikely to be a happy cirmustance. Nonetheless Mutesa II was keen to
support the March 1953 reform but where the Cohen policy in its strong belief that
Uganda must develop as a unitary state threatened the tribal loyalties. This would
result in tribal institutions including the Kabakaship declining in importance. This
factor and concern would spark off the crisis in Buganda that came to be known as
the Kabaka crisis of 1953 – 1955. The Kabaka crisis of 1953 – 1955 was sparked off
by a speech made on 30th June, 1953 by the Secretary of State for the colonies in
which he referred to the possibility.

“As time goes by of larger measures of unification

and possibly still larger measures of federation of
of the whole East African territories.”

This pronouncement caused adverse public reaction on Buganda. In a seriously

worded letter, Kabaka Mutesa II urged that the affairs of Buganda be transferred
from the colonial office to foreign office and that the time table be prepared for the
independence of Buganda. In particular, they later rated that;

“The Kabaka and his ministers could no longer feel

happy about Buganda’s position under 1900
 agreement. Apart from the danger of federation,
they considered the policy of developing a
unified system of government along parliamentary
lines which would result in Buganda becoming less
and less important in the future.”

The Kabaka’s and Buganda’s demands were for more than a challenge to any
proposed federation as they meant a complete break with governor’s Cohen’s vision
of a unitary state in Uganda. The Kabaka’s letter would only reaffirm Buganda’s
separatist tendencies and assertion of claims to a special status that were arguably
evident since 1902. During the proceedings of a case filed in 1994 to challenge the
deportation of the Kabaka (Mukwaba and 2 other v Mukubira and 4 other). The
treasurer is recorded as having stated:

“After some two or 3 years after the agreement, the

divisions (dependencies) into provinces to rank as being equal
to Buganda province. As regards administration we are of equal
rank but otherwise, we the Buganda kingdom is independent.”

On October, 27th, 1953 the lukiiko passed a resolution (directing) the advising the
Kabaka to refuse to name any representatives of Buganda to the legislative council.
By 1945, African representation was first admitted in the legislative council. They
were to be three representatives, one being the Katikiro of Buganda. Another to be
the Katikiro of the other three kingdoms, the other to be drawn from the other
districts. The Lukiiko resolution not only endangered the success of the newly
reformed Legislative Council but also rendered a unitary Uganda extremely
unlikely. After a series of unsuccessful negotiations, Sir Cohen put before the
Kabaka certain undertakings to which he was required to agree:

i) That the Kabaka would possibly cooperate in the future progress of Buganda as an
integral part of the Uganda protectorate in accordance with the March 1953
reforms.

ii) That the Kabaka would submit names of Buganda’s representatives for
appointment to the legislative council.

iv) That the Kabaka would cooperate loyally with her Majesty’s government in the
organ and administration of Uganda in accordance with the 1900 agreement. When
Kabaka Mutesa II refused this undertaking, the governor withdrew recognitions
from him, declared a state of emergency in Buganda and deported the Kabaka to
the United Kingdom.

In the aftermath of the deportation of the Kabaka, a case was filed by the High
Court, Mukwaba and 2 others v. Makubira and 4 others Civil case
No.50/1954. Three of the Kabaka’s nominees to the lukiiko (plaintiffs) contested
the right of the first four defendants who had been nominated to be members of the
lukiiko to take their place in the lukiiko since they had been nominated by the
Kabaka. The fifth defendant was the Attorney General of the protectorate who was
joined to the suit as some of the issues related to acts of the protectorate
government. The case eventually became an indirect attempt to challenge the
validity and legality of the withdrawal of recognition of the Kabaka. The issues
before the court:

i) Whether the one matter before the court was to justiciable.

ii) Whether the dispute between the Kabaka and the protectorate government related
to the organ and administration of the kingdom.

iii) Whether the acts of the Kabaka could justify the withdrawal of recognition in terms
of Article 6 of 1900 agreement.

iv) Whether appointment of the nominees to the lukiiko was valid.

On the first issue, the Attorney General had argued before the court that the matter
was unjusticiable. This argument was upheld by the court which noted that
although the 1900 agreement created legally enforceable rights and obligations
between the parties, these rights and obligations were not enforceable before the
court. The court therefore held that the withdrawal of the recognition of the Kabaka
was an act of state into which the court was unable to inquire as to its validity.

On the second issue the court held that the matter in respect of which the dispute
arose between the Kabaka and the protectorate government conerned the matter of
a federation and cooperation of Buganda with the reforms of March, 1953 and its
representation in the legislative council. There according to the court were not
matters affecting organs and administration of the kingdom within the meaning of
Article 6 of the 1900 agreement, the court held that therefore, no right to withdraw
recognition had arisen from Article 6 in November, 1953.

On the third issue, the court held that the lack of loyal cooperation must relate to
the phrase.

‘Kabaka, chiefs and people of Buganda’ in Article 6 of the agreement and this must
be read conjunctively. The court pointed out that neither the chiefs nor the people
of Buganda had shown any signs of disloyalty or failure to cooperate and therefore,
the Acts that were solely of the Kabaka could not justify withdraw of recognition
under Article 6 of the agreement.

On the fourth issue, the court noted that in the aftermath of the deportation of the
Kabaka, the protectorate government passed or enacted Emergence Powers
(Regents of Buganda) Regulations of 1953 and 1954 which in themselves were
superseded by the Regents Order-in-Council in 1954 (as an Act of State). The
court therefore held that the Regents Regulations were affective to give the regents
power to nominate members to the lukiiko including the first four defendants. The
court noted that the powers of nomination of members to the lukiiko were
previously those of the Kabaka and before withdraw of recognition did not lie
elsewhere than in the Kabaka. The fact that the case was decided on the basis of
the defence of ‘Act of State’ gave the impression that the colonial government did
not in fact respect the Buganda agreement or feel itself bound by its terms’(see D.A
Law & Pratt, Buganda and British Overrule 1955 p. 342).

The reaction to the deportation of Kabaka Mutesa II was overwhelming with

Buganda in particular angered by the deportation. Even the Uganda National
Congress which was hostile to traditional institutions and rulers joined the voices
agitating for the return of the Kabaka. In the aftermath, Sir Cohen set up a
committee under the chairmanship of Hancock to consider among other things the
constitutional reorganization in Buganda, continued participation of Buganda on the
protectorate and representation of Buganda in the legislative council. After several
meetings between the Hancock committee and the Buganda government (known as
the Namirembe negotiations). It was proposed to replace the traditional character
of the kingdom with structures of a modern representative government and
therefore a new Buganda Agreement of 1955 was conducted and shortly
thereafter, Kabaka Mutesa II was allowed to return. In the 1955 Buganda
 Agreement colonial government did make concessions to the Kabaka and Buganda
on the issue which had been the cause of his deportation, thus in the preamble to
the agreement , it was provided:

“Her Majesty’s government has no intention whatsoever

of raising the issue of the East African federation, either
at the present time which the local political opinion on the
issue remains as it is or in the future and recognitions
accordingly that the conclusion of the Uganda protectorate
in any such federation is outside the realm of practice
practical politics at the present time or while politic
opinion remains as it is.”

The colonial government also undertook to consult with the Buganda government
on the matter of federation of it were arise in the future. In effect the agreement
laid to rest to the question of federation and so upheld the Kabaka’s original
objection.

The other main features of the 1955 agreement were:

i) It constituted the constitution of Buganda and the Buganda government was

transformed into a constitutional monarchy in that the Kabaka had to appoint his
ministers in consultation with the lukiiko and not to the Kabaka.

ii) The participation of Buganda in the legislative council was clearly defined. The
election of Buganda’s representatives was to be undertaken through the lukiiko as
an electoral college thus the format of election Buganda’s representatives to the
legislative council was to be based on the form of indirect elections. The
composition and formation of Uganda’s representatives was under the agreement
not to be altered for 6 years.

In 1958, the government would conduct elections on the basis of direct elections,
which Buganda boycotted. In the following year a case was filed by the high
court, Katikiiro of Buganda v. Attorney General [1959] E.A. 382 in which the
Katikiro challenged the request by the colonial government that Buganda elect its
representatives on the promise that the 1958 elections had not been conducted in
accordance with the provisions of the 1955 agreement and that since the colonial
government was in breach of the agreement, they had no obligation to organize the
election of Buganda’s representatives.

In essence, the 1955 agreement established a framework within which Buganda

would exist as part of a united although not unitary Uganda and in which
parliamentary system of government is pursued.

Following the deportation of the Kabaka, Mutesa II was projected as a nationalist

for standing up to the colonial government but the reality was that he was only
protecting Buganda’s sub-nationalist interests. From 1955 onwards the Kabaka and
his government embarked on a course to ensure that protection of the interests of
Buganda and Buganda’s separatist tendencies heightened in the period after 1955
notwithstanding the formal arrangements in the 1955 agreement.

BIRTH OF POLITICAL PARTIES IN UGANDA AND COLONIAL REFORM

(1952-1958)

It was at the height of colonial reform that Uganda’s first genuinely nationalistic
party, the Uganda National Congress was formed by Ignatius Masaazi in March
1952. The party had a freedom charter and manifesto, which asserted its main
 priorities to the realization of national unity, freedom, peace and equality. The party
was driven by the desire to transfer power and authority from the colonialists to the
indigenous people and this desire was expressed in its slogan.

‘Self government now’

The second political party to be formed was the Democratic Party in 1954. It was
also a nationalistic party with the main objective of addressing what was perceived
to be the historical discrimination and marginalization of peoples of the catholic
faith under colonial rule and the Mengo administration. The Democratic Party
nonetheless shared a common vision with the Uganda National Congress that
Buganda’s sub-nationalism was incompatible with the notion of a unitary
independent Uganda. This particularly put D.P at loggerheads with the Buganda
government throughout the period preceding independence. Over the next eight
years the Uganda National Congress would disappear as the political parties
merged including the Progressive Party, Uganda People’s Union, Uganda’s People
Congress and the Kabaka Yekka Party. By 1962, only the Democratic Party and the
Uganda People’s Congress remained strong and steadfast as national parties while
the Kabaka Yekka was concerned with Uganda’s sub-nation as its interest. Political
parties were the major actors in the political and constitutional development of the
protectorate between 1952 and 1962 in several respects particularly:

i) African participation in the legislative council.

ii) Participation in the formation and constitution of government during the period of
self-government, 1961-1962.
iii) Participation in the debates and discussion of the constitutional proposals to a
framework of government for independent Uganda (during the Lancaster and
Marlborough conference).

The catchword of the colonial reforms during this period was that of africanisation,
that is the transfer of power into the hands of the Africans. In this regard Sir
Andrew Cohen expanded the representation of Africans in the legislative council
such that by 1954, Africans constituted fourteen as against 6 Europeans and 8
Asians in the legislative council. Sir Andrew Cohen also structured the ministerial
system and positions for Africans such that in 1955, 3 Ugandans became ministers,
that is:

i) Mungonya
ii) Nabeta
iii) Apollo Kironde

Thus for the first time during the colonial period, Ugandan’s would participate in
government administration and policy. After Sir Andrew Cohen left in 1957, the
new governor Sir Hedrick Crawford was faced with new demands for constitutional
reform.

i) That election to the legislative council should be direct.

ii) Districts and other kingdoms demanded equal treatment with Buganda. In this
regard the new governor organized for election at the end of 1958 with the
franchise of illegible voters based on:

a) The voter most be able to read and write in his own language and
b) The voter must be the owner of freehold or mailo land.

If the voter was not a land owner, he should have occupied the land for at least 3
years before registration or been regularly paying taxes for at least 2 years or
 earning an income for at least 100 pounds a year or owns property of at least 400
pounds. Although the franchise was meant for propertied individuals, the 1958
legislative council would for the first time in Uganda’s constitutional history be
made of Africans representatives who were directly elected. The only parts of the
protectorate in which the elections were not direct were Karamoja and Ankole
whose representative were chosen by the district councils and in Bugisu whose
representative was nominated by the governor. Buganda refused to send any
representatives to 1958 legislative council. The involvement of political parties
meant that the 1958 legislative council was made up of 5 members from UPC, 1
from D.P and 7 independents. The constitutional developments of the period
following the 1958 elections were characterized by reports of two commissions.

i) The 1959 report of the Uganda Constitutional Committee with J.B Wild as its
Chairman (referred to as the Wild Committee Report) and

ii) The 1961 report of the Uganda Relationship’s Commission chaired by the Earl of
Munster (referred to as the Munster Commission Report).

The commission and their reports were fundamental for Uganda’s constitutional
development at each point of time.

1) Report of the Wild Committee (1959)

i) To advise, the protectorate government and to recommend on the form of direct

elections on a common role for representative members in the Legco. In other
words, previously elections had been segregated along racial lines. The fear was
that this would continue and cover that European and Asian would give weighted
votes, the other concern was that conferring the right to vote for European and
Asians.

ii) To advise on the total number of seats to be filled by the electorate.

iii) To determine the mode of allocation between the deferent areas of the
protectorate.

iv) Consider and advise on the question of representation by the non-Africans.

v) To advise on the size and composition of the government.

The committee was nonetheless boycotted by Buganda who refused to submit its
views. The recommendations made by the Wild Committee were:

i) The next elections to be held in Uganda should be direct in all parts of the
protectorate and should take place not later than 1961.

ii) There should be a common electoral roll, which did not confer rights of citizenship
(to Europeans and Asians).

iii) The numbers of elected members should be increased and representation should
be as follows:

a) For urban areas 4 representatives

b) Northern Uganda 15
c) Western Uganda will have 12
d) Eastern Uganda will have 20
e) Buganda will have 20
 Meaning a total of 76 members. The Wild Committee also made certain
recommendation outside its mandate, amongst which were:

i) Apart from the elected members of the Legco, there should be specially elected
members chosen by the Lukiiko sitting as Electoral College, to elect members
representing different interests and they were to be 6 in number.

ii) The party with a clear electoral majority should form the government and the
losing party would be in the official position.

iii) The executive council should become a council of ministers with collective
responsibility to the national assembly and that members of the council of ministers
should be selected from the elected notional assembly members with selection of 3
members.

a) Chief Secretary
b) Attorney General
c) Minister for Finance

who were to be nominated by the Governor

iv) The governor should have litle power if necessary.

Further in light of the many views that had been expressed on the form of
government that Uganda should adopt and or the question of the relations between
various peoples of the protectorate, the committee recommended that by the 1961
relations, a conference should be called to examine the issues and make
comprehensive recommendations on these matters.

Hardening of Buganda as to its status 1958 on wards:

While the wild committee was making its constitution, Buganda kept on hardening
as to its perceived status in the protectorate. With the 1958 boycott, the hard-line
demands comprising of the Kabaka, Chiefs and Landlords began to embark on ways
of ensuring that Uganda’s autonomy was insecure. The boycott of elections had
itself been designed to put pressure on the colonial government to give in to the
demands of the kingdom. A movement began to grow in Buganda withits primary
goal to secure the protection of Buganda’s interests against the designs of the
nationalists. The administration of the movements function was the submission in
November 1960 of a memorandum to her majesty, the queen of England stating as
follows:

a) British protection over Buganda established by the 1900 agreement should be

terminated.

b) As a consequence of the termination of the stated plans should be immediately

made from an independent Uganda. Amongst other things, the plan would include:

i) Establishment of friendly relations between Buganda and her majesty’s

government and the exchange of Ambassadors and High Commissioners.

ii) Buganda would remain in the commonwealth and seek membership of the
UN

iii) All powers previously exercised by the governor were to be vested in the Kabaka
and his government.

iv) Buganda would have its own armed forces with the Kabaka as commander-in-chief.
v) All institutions of learning in Buganda with exception of Makerere College would
fall under Buganda jurisdiction.

v) Arrangements for the independence of Buganda should be complete by

31st December, 1960.

On 1st January, 1961, the lukiiko declared the independence of Buganda. Although
the declaration was never a reality, the message was very clear.

Neither the protectorate government nor the nationalist politicians could afford to
ignore Buganda in the move to independence and its demands and interest had to
be given respect and attention, failure of which the independence sentiment could
not be realized. This was sharply brought home with the preparations the 1961
elections. Although the colonial government went ahead with the elections, the
Kabaka’s government directed its followers not to register for the elections. Indeed
by the time, the registration was closed only a handful of mainly D.P supporters had
actually registered. In effect, Buganda had organized another boycott which was
successful. In political terms, the boycott marked the death of D.P in Buganda
because D.P had defied the boycott. Ben Kiwanuka was portrayed as an anti-
Buganda and as a man who did not respect the Kabaka. It was not helped that Ben
Kiwanuka was also a catholic. The propaganda that followed the boycott was that
catholics wanted to take over the protectorate. On the other hand, U.P.C gained
from the boycott because they had decided not to field candidates in Buganda. The
Buganda government therefore felt that there was a possibility of good relations
with U.P.C’s Apollo Milton Obote and marked the onset of the UPC – Buganda
alliance , (later cemented during the Lancaster conference).

2) The Report of the Minister Commission 1961

Set up in 1960 by the Secretary of State for the colonies, the report of the Uganda
relationship commission was given by the Earl of Munster. Its basic terms of
reference were to consider the official form government most appropriate for
Uganda and the relationship between the central government and other authorities
especially kingdoms:
The commission was to be guided by the following:

i) Her majesty’s government decision (resolution) to grant Buganda independence at

an appropriate stage.

ii) Development of sustainable institutions of government for Uganda.

iii) Incorporation of specific circumstances and needs of the people of Buganda as they
became independent.

iv) Consideration of the desire of the people’s of Uganda to preserve the existing
institutions and customs as to uphold the status and dignity of their King and rulers.

v) The commission was to bear in mind the special relationship between her majesty’s
government and the kingdom with whom an agreement had been made in the early
1900.

The commission had to make sure that all these aspects be accommodated. Thus
the 1961 Munster Commission Report together with the 1958 Wld committee report
would provide for the two constitutional conferences, of which the first was held in
1961 at Lancaster and the second in Jun 1962 at Marlborough. The Munster
commission made several recommendations
i) As regards trends for secession, it was unacceptable to allow Buganda to separate
from the rest of the protectorate. The protectorate must continue till Buganda has
reconciled itself with the rest of Uganda.

ii) The relation of Uganda and Buganda should be a federal one.

iii) The central government should have power over foreign affairs armed forces and
police.

iv) Buganda government should have power of over the institution of the Kabaka,
lukiiko and matters governing tradition aspects of the government. Any residual
powers (not allowed to either of the two) should be shared, but the central
government should have the overriding power in the final analysis.

v) Buganda should be given a guarantee that any laws made by the central
government which would affect the Kabakaship and Buganda’s exclusive interests
would be of any effect unless agreed to by the lukiiko such a guarantee would by a
law enforceable by the courts and Buganda should have the deciding voice in
determining the forms of guarantee.

vi) The Kabaka should withdraw from politics and become a genuine constitutional
monarch, perform just ceremonial non-executive functions.

vii) The lukiiko of Buganda should be directly elected. It would act as an electoral
college for the 26 of Buganda’s representatives to the national assembly.

viii) Voting in the future would be by universal adult suffrage.

With regard to the character of government, the commission stated

that Uganda should be a single democratic state with a strong central government.
Within this state, Buganda should stand in federal relations while the other 3
kingdoms would be in semi-federal status. With respect to the head of state,
until Uganda attained independence it would be the governor representing her
majesty the queen. Thereafter, it was appropriate to debate on the head of state.
Further, the head of the state would exercise prerogative powers of (the National
Assembly), make treaties etc.

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.
QUESTION:
Discuss the different constitutional principles that govern administrative law and analyze whether
they are a reality.
Introduction
Article 42 of The Constitution[1] states that;
“Any person appearing before any administrative official or body has a right to be treated justly
and fairly and shall have a right to apply to a court of law in respect of any administrative decision
taken against him or her.”
From this article, stems a branch of public law known as administrative law. Administrative law
can thus be defined as the law relating to the control of government power.[2] All administrative
authorities (that is public officials) are subordinated to this law; right from the cabinet members to
the local government authorities. Wade[3] submits that the primary purpose of subjecting them to
this law is to keep the powers of government within their legal bounds so as to protect the citizen
against their abuse. To meet this end, a couple of constitutional principles have developed over
time and these are believed, by many Jurists, to be the constitutional principles governing
administrative law. The purpose of this writing is to discuss these principles and examine
whether or not they are a reality. This task I believe I have ably executed below.
The Doctrine of Separation of Powers.
The modern day philosopher, Montesquieu[4] from whom this doctrine was developed described
government in this form;
“ In every government there three types of powers: the legislative, the executive and the
judiciary. The executive in respect of things dependant on the law of the nation and the judiciary
in regard to matters that depend on the civil law….. by virtue of the first , the prince or magistrate
enacts temporary or perpetual laws and amends and abrogates those that have been enacted.
By the second he makes peace or war, sends or receives embassies, establishes the public
security and provides against invasions. By the third he punishes criminals or determines the
disputes that arise between individuals, the latter, we shall call judicial powers and the other
simply the executive power of the state.”
Montesquieu in this same book[5] went on to define separation of powers as a principle whereby
the three organs of government as listed above are kept in separate compartments. This means
that no organ of government should exercise the functions of the other that is the judiciary should
not exercise the functions of the legislature or executive mutatis mutandis, no organ should be in
position to control the other most especially the executive controlling the legislature and judiciary
and that persons or agencies in one organ should not be permitted to hold posts in another.
It is imperative to note at this point that this doctrine in its extreme nature is just ideal and not
only unrealistic but also undesirable. Keeping the arms of government in such water tight
compartments would easily cause stagnation in the flow of government business because of the
rigidity of the doctrine. Rather, a more practical approach to this doctrine is applying a system of
checks and balances whereby each organ operates with the consent of the other two and the
consent ought to be spontaneous not coerced. This is the more practical approach and to a
great extent is alive in Uganda. A classic example of these checks and balances at work is the
case of Ssemwogere and Olum[6]. In this case, the petitioners challenged the validity of the
Constitutional amendment Act[7] which sought to amend articles 88-90 of the Constitution. The
bill for the Act was passed in two days which was inconsistent with the constitution. The
constitutional court held that the amendment had been in accordance with the law but this
decision was quashed by the Supreme Court that held that the Act was null and void because it
was passed in total disregard of the Constitution. In passing such a decision, the judiciary was
able to check on the legislature’s powers and those in the executive who pushed for this bill in
Parliament especially the President who had assented to it. However, despite advancements in
this area in Uganda, this system of checks and balances still has loop holes in Uganda for
example, despite the overwhelming evidence that the Security Minister AmamaMbabazi had
exerted undue influence in getting the National Social Security Fund to buy his land at
Temangalo at an inflated price, he was exonerated by the National Resistance Movement
caucus in Parliament and this largely believed to be because he is the Secretary General of the
National Resistance Movement. Since the government Members of Parliament are the most,
their exonerating him caused him to get away with corruption unscathed[8].

Independence of the Judiciary

Closely related to the doctrine of separation of powers above is the independence of the
Judiciary. Since disputes in administrative law involve public officials and public powers, an
independent judiciary is a great necessity. Independence of the judiciary means a judiciary that
makes decisions that are totally based on evidence before them and not extraneous matters.
Peter Oluyede[9], in expounding on this doctrine, explained that in criminal cases, the courts
should not convict or acquit because they believe a particular verdict will please the government
of the day and in civil cases, courts ought not to consider the relevant importance of parties or
even the political consequences of their decision rather, he says, that the courts only ought to
find the facts and apply the relevant principles of law in any particular situation. In Uganda, the
judiciary is enabled to be independent by Article 128[10] . This Article provides that in the
exercise of judicial power courts shall not be subject to the control or direction of any person or
authority. Subsection 4 of the same goes on to provide that a person exercising judicial power
shall not be liable to any action or suit for any act or omission by that person in the exercise of
judicial power. Subsection 6 of the Article provides that the judiciary will be self-accounting and
subsection 7 that the salary, allowances and priviledges of a judge are not to be varied to the
disadvantage of a judicial officer. These subsections and others under this Article ensure the
independence of the judiciary by providing for security of tenure, financial benefits and judicial
immunity.
However, despite all these measures to ensure the independence of the judiciary, the executive
in Uganda has many times been ‘caught’ trying to undermine the position of the judiciary. Very
fresh in the memory is the “Black mamba” incident[11]. According to Georgette Gagnon, deputy
director of Human Rights Watch, militia men draped in military fatigue and black T-shirts
surrounded the High Court to intimidate the judges and thwart the decision to release on bail the
22 men suspected to have been plotting treason. This siege in November 2005 of the High Court
was condemned by the Principal Judge of Uganda as “a despicable act” and a “rape of the
judiciary.” Such acts go to prove that despite the constitutional provisions in place, once in a
while the Executive tries to intimidate the judiciary but we can say on the whole that the judiciary
has stood courageous and is independent making the independence of the judiciary a reality in
Uganda.

Rule of Law.
Rule of law simply means that everything must be done according to the law[12]. Therefore,
every government authority that does not act which is otherwise wrong for example taking one’s
land (infringing on liberty) must justify its actions as authorized by law. Professor Dicey[13] put
forward that the rule of law entails absolute supremacy of regular law, equality of all before the
law and the rule according to the constitution. Rule of law is essentially meant to create an
atmosphere of law and order where the citizen can easily enjoy liberty and the pursuit of
happiness. In pursuance of this end, the International Commission of Jurists sitting at New Dehli
in 1995 suggested a code of conduct of eight clauses some of these are looked at briefly[14];
Clause I essentially deals with the executive or other like agencies such as public corporations
being able to make rules having legislative character. This is happening in Uganda as in Local
Councils formulating laws[15]. However, to ensure proper rule of law, this power has to be within
the narrow limits stipulated by the legislature and the extent to which must also be stipulated.
This is very evident in the case of IbingiraI[16] where it was held inter alia by the learned that the
Deportation Ordinance (put in place by the line minister) was void for being inconsistent with the
provisions of the then constitution of Uganda. Clause III says that judicial review of delegated
legislation maybe usefully supplemented by a procedure for supervision by legislature or by an
independent authority either before or after such legislation comes into effect. Clause V provides
that in general the acts of the executive when directly and injuriously affecting the person or
property or rights of the individual should be subject to review by the courts. This was seen
practically in the case of Shah V Attorney General[17] where the court compelled the government
to pay according to a government order which the government had ignored. The applicant had
obtained judgment against the government for Ushs 67,500.
The government refused\ failed to pay and the applicant brought this motion for an order
mandamus directed to the officers responsible for the payment. In light of the above, rule of law
is, to a great extent, a reality in Uganda. Needless to say at times the rule of law in Uganda is
abused by some individuals typified in the words of the Coordinator Security Services in reaction
to the High Court’s holding that the General Court Martial had no jurisdiction to hear cases of
terrorism[18]. He said,
“ … who are these fellows (the judges)? The judges have no power to order the army. The army
will not accept this business of being ordered by judges.[19]”
Such attitudes are some of the few things stifling the flourish of rule of law in Uganda.
Ministerial and Collective Responsibility.(Art.117)
Ministerial responsibility is a doctrine that provides that members of the Executive should be
responsible for their activities and should be accountable how they use their powers. This may
entail individual accountability to the President(Art.117) or individual to Parliament since
according to Article 118 of the Constitution Parliament can censure a minister. This doctrine
requires a minister to explain to parliament his own actions and the actions carried out on his
behalf.
For example, where a civil servant is believed to “misbehaving”, the line minister will be called to
account. His task then will be to investigate and take the appropriate disciplinary action if
necessary. The minister will lose the confidence of parliament for serious misconduct in his
administration, if this happens, he will be required to resign or will be dismissed. A good example
of this is the time former Finance, Planning and Investment minister Sam Kutesa was censured
for being found in a situation of conflict of interest contrary to the leadership code of conduct by
allowing ENHAS (Entebbe Handling Services) a company he chaired to buy the national carriers
shares in the cargo firm below market value and also writing off as a bad debt USD 400,000. In
dong this he caused Uganda Airlines great financial loss[20]. However, there times when this
doctrine fails to be realized because most times Members of Parliament are on the government
side unable to attack their own and at times they are compromised (corrupted) to adamantly look
on cabinet misconduct as was stated by one Member of Parliament, Odongo Otto[21].
Collective responsibility on the other hand means that all members of the executive are
responsible for all government decisions and are to support each other on policy matters.[22]
This principle essentially means cabinet solidarity and is meant to ensure that policies and
decisions are made in line with the requirements of good administration as provided for in Article
111 of the Constitution of Uganda. A celebrated depiction of collective responsibility in Uganda is
the clash between former President Milton Obote and his Minister of Planning and Economic
development, Hon. Obwangor[23]. Mr. Obwangor in a speech made in the National Assembly
criticized the government proposals for a new constitution for Uganda. This was contrary to
Section 43(2) of the then constitution of Uganda which provided for collective responsibility of
cabinet members. As a result of the speech, a couple of letters were exchanged between the two
and this culminated in the dismissal of Mr. Obwangor from cabinet. He also had to cross the floor
to the opposition side of parliament.
Key to note is that administrative justice demands some regular efficient and non-political system
of investigating individual complaints against the powers that be and this exactly what ministerial
responsibility does not provide because of its political nature. To deal with this , administrative
tribunals have been set up in Uganda and no minister is responsible for their decisions although
such decisions are subject to judicial review. Evidence of tribunals fully functioning in Uganda
with clear guidelines can be drawn from the different cases such as Equator Inn V Tomasyan[24]
where it was held inter alia that the chairman’s presence is necessary before a tribunal has
Coram and that a minister has power to appoint persons to a tribunal.
Human Rights and Civil Liberties.
Human Rights are the rights a person has simply because he or she is a human being[25].
These were adopted by the United Nations in 1948 observing them as the foundation of
freedom, justice and peace in the world. It is thus a generally agreed upon issue that a good
constitutional framework must have a Bill of Rights which declare rights available to all in the
country. This principle is very relevant to administrative authorities because through their
decisions can either let people enjoy their inherent God-given rights[26] or be denied of them. As
already mentioned they are God given and thus only declared in the Ugandan constitution in
Chapter four.
From a general point of view, the constitution declares equality and freedom from discrimination
in Article 21, right to life in Article 22, protection of personal liberty in Article 23, respect for
human dignity and protection from inhuman treatment in Article 24 a right to a fair hearing in
Article 28 and Article 29 provides for the protection of freedom of conscience, expression,
movement, religion, assembly and association. However, Article 43 provides that the enjoyment
of these rights may be limited where they prejudice the rights of others or in public interest.
Over the years, Human Rights abuse has been at deplorable levels in Uganda especially during
the Amin regime[27]. The courts however have tried to up hold these rights here and there as in
the case of Uganda V Commissioner of Prisons, Ex Parte Matovu[28] where the court defended
the rights of Matovu when it held inter alia that ;
“ the Sovereign State of Uganda would not allow anyone to be illegally detained and has the
prerogative right to enquire through its courts into anyone’s loss of liberty by issuing a writ of
habeas corpus, the procedure and nature of which was discussed.”
With the National Resistance Movement government in power, the Human Rights record in
Uganda has greatly improved but still leaves a lot to be desired as we have witnessed unlawful
killings by security forces, mob violence, torture by security agencies, abuse of suspects, poor
prison conditions and arbitrary arrests[29]. In a bid to curb the gross Human Rights abuse, the
National Resistance Movement government when it had the 1995 Constitution promulgated
established in Article 51 the Uganda Human Rights Commission and in Article 52 provided for
the roles of the commission which can be summarized as ensuring the observance of Human
Rights in Uganda.
In analysis, the constitutional principles governing constitutional law are; rule of law, separation
of powers, independence of the judiciary, human rights, ministerial and collective responsibility
and I would submit that drawing from the above discussion these principles are to a greater
extent a reality in today’s Uganda. Of course, due to the fact that they have to operate amongst
human beings who are very complicated and versatile beings, these principles cannot operate in
their entirety or strict form; a few compromises and balances have to be implemented to make
them not only practical but also of service in the administration of society.