FhTZK HO. PAT/615 u:i' tfLKS II t isftKEREHE INSTITUTEOFSOCIALRESE ARCH / IHTERMATIO rt ...

60 Pages·2012·3.33 MB·English

FhTZK HO. PAT/615
u:i' tfLKS II t
isftKEREHE INSTITUTE OF SOCIAL RESEARCH / IHTERMATIOrtAL ALERT
TOE CONSTITUTION AS A MEDIATOR
IN INTfcRNAL CONFLICT.
oy
Prof. A. KIAPI
Faculty of Law, -
ta'kerere University
Paper presented to the International Seminar on Internal Conflict,
21st - 25th Septembers lSli7; sponsored by International Alert, Londonj
riaicensre Institute of Social Research, hakerere Universityj
International taace Research Institute, Oslo; stid the United Nations
University, Tokyo.
Views and opinions in this paper Arc- th« sole responsibility
of the author, net tbs sponsors' nor those of Che organisation
the author comes froa.
- THE COBSgEBEIOH AS A MEDIATOR Off IHKBRHAI, COHESICg
SHE CASE IK ucaruA. ......
Hisjo-aoig. • 3ffgitQKr"?icw*
A constitution, as an instrument that lays do-on an agreed
arrangement to hou the framework and the principal functions
of a government End the principles governing the operation of
tbo?e organs, ha- fj.-oquont.ly boon used in conflict resolution
iii Uganda. The fir^t instrunente of constitutional iaportaice
were the so called native agreetaeats. It all started icroa t,ho
time the British begn noulfline fgrsnda into a country.
Tha .Eriti'.h imperial Bast African Croapany
The first European to arrive Uganda was J. H. Hpolco
viho erase "m 'ror.rch of tho source of the Silo", He rrrived at
the capital of the Kabqka of Jiuganda, Mutctat I, in 1862, S«t
it was really tho ai;-<donaries whose prer.enoe and aetivi-iies
led to the aocucption of colKrol of Uganda by the British, »2fa«»
the explorer- and journalists, H. H, Stanley, visited iiutecsa11
Court ih 1875, he persuaded .the Xabaka to allow niu^ioniiiifcs
to cone to fyjaftdu, 3ho ^rgt party Of BissionaHes rtpremn-
AJig tho Church His-ioanry Society arrived ia 1877, follow
soon after by Sanaa Sa'hqlie Hi anion axles. Religious eoupeti.-w.on
for mflucnoo rc-uVaad la conflicts and religious wisra whleh
pluacod Bugana-f. into a ,«rtate Of social disorder with ceoteowj.e
iiiash^t for tho trading eoiaponios tthioli pef-suadetl the Ei-itieh
1
government t6 f.- 'uLie polltical_control,
* By Ts&tQnsQV AbrahMi Kiapi, Keads Jjopcirtuent, of Public aid 4
CoDparatiVc L&n, noKarero University*
The British Inperial East Africen Company was printed o Charter
authorising it to develop the lfriffish_sj)hero oi_ Influence in
East Africa. In 1890 IfirdJlus^a^ja captain r;arvins. with the
Company» under-took to keep law end order in Ducanda. In order
to avoid possible conflict over jurisdiction, over D.iropoans,
jurisdiction over Europeans was resolved by an agreement which
viao of constitutional importance.-. ! The agreement:, gave. povjers to
the company's agent in: Bugandas •,'".. •
a) To be the sole arbitrator bf .disputes .between, Europeans
: resident in. Buganda with appeal to the highpr .authorities
of the country; .
b) be the sole administrator of European affairs in the
country.
c) To sanction'.anx.agr.eeuent or treaties between, the Kabaka
and- other European:, powers; and.
d)' To be responsible- for the collect ion j assesfjnent &nd
2
apportion of the-revenues of the Kingdom,
The Qompany ruled Buganda for. barely a year when financial
problems forced the British Governtaent to declare Uganda a
protectorate in 1892;.-'' The follov/ing year, Portal,who was
appointed Commissioner for Uganda, 'made an .agreement with Kabaka
- of Buganda which deprived the Kabalca of powers over external
aEfairs and .jurisdiction over non-Bagandn including the Eur0peans.
• The Commissioner was. granted the right to interfere with the •
administration of justioe* by- the' Kabalca'and .dccla red that the
court of the Cottmissioner vras to be .tbbjStapr.iime Court of Appeal.
Assessment of taxes and disposal ofrevonue was .to be subject, to
r '3 '
the control of the Comaiesioner-g This'Agreement did not, however,
provide sufficient foundation for. British rule in Buganda.,
The Ricon da Aty eencnt 1900
The reul foundation for the proteettoat.e govcrnnont. in Baganda
viae laid bjo the signing of the Bnpanda Agreement or 1900. In
ie99 Sir narry Johfi.rstcnc was appointed Special Commissioner for
Uganda and charges with the respons'ibillty of concluding an
agreement to.regulate more precisely the*relationship of Britain
with Buganda.
The main provisions of the Uganda Agreement wcre^th.-.t:
a) The Kabaka and Chief's agreed to renounce} in favour of
Britain,' any claias £ribute' they had been getting from
the tribes bocdering on B Uganda;
b) B Uganda was to Acnk as a province of equal rank with
any other provinces into which Uganda wouia be divided;
c^ The revenues 'of the Kingdom of Buganda would merge in
the general pEwri»canofr_thc\:-r7EoB.e Protectorate;
d) laws made for tha general administration of Uganda were
to be applicable to Bugande;
e) The Kabaka would continue to be recognised as ruler by
the British Government only as long as he and his Chiefs
and his subjectt conformed to the Jows and regulations
ma de for the administration of tho Kingdom by the
Protectorate Government;
f) The Kabaka was henceforth to be know as his highness the
Kabaka of Bugsin4a; his successor was to bo elected by the
with
Iukiko among thj members of tho royal fonily^the approval
of the British government ;
g) The Kabaka was -o exercise direct rule over hie subjects
but his courts were to" have no jurisdiction over any person
who was not a KiXgonda;
h) ndr. wac to be divided into twcn iy countics .-it the
head of -each was tobe a chief app&±fii»d by the Kabakds
t'overnnent with approval, of the ."Protectorate Government;
!)• .''.To assist the Kabc&a in the administration ocT- his Kingdom
he .would appoint a prime M inistcr to bo lmovfli p.s Katikiro^
• a Chie Justice, and a Treasurer;
j) The legislature of the Kingdom of Bu.'ianda v/as to bo knovai
as the lukiiko consisting of the KatikirOj the Chief
' Justice, the treasurer, all county, chiefs, three repre-
sentatives appointed }jy the Kabaka. The- functions of
the Iukiiko were to discuss all Bat-torn concerning the
administration fif the kingdom and forward to tho Kabaka
resolutions regarding measures to be adopted in the
administration of the kingdom. The Kabalca could not,
ho wevor, give -eff c-ct to su-ch; resolutions without the
consent of the Protectorate Government. :
k) In judicial matters the Iukiiko. was to be a Court of
Appeal, from decisions of courts of first instance held
by the chiefs of counties;
m) The right of tho Kabaka to. raise an army for tho defence-
of his kingdom was preserved hut it had t.o be exercised
on tho advice of,the cominisnioner and the arming and
equipping of. Kc:baka's«rrjy^v.'as to bo undertaken by
the Protectorate Government* .
,.;n) Hoaijty nil tho fertile land in Bugand.-< was allocated by
thd Agreement to. the Kabakc his family,,ministers, chiefs
and otheir well to do notables. . This is .wha;t. came to be
Jmown iater..as Mailo land, .
The right to minerals found in these estates was to belong to the
owner of the estate subject to a ten percent ad volorem duty.
Mineral rights outside private estates wore to belong to the
4 - • . .
central government.
King Kabalega of Bunyoro strongly resisted colonisation by
the British and fought herd to keep the British out of Bunyoro.
Nevertheless a large part of the Kingdom of Bunyoro was over-
run by British forces with the help fif the Kabaka df Buganda.
V/hen E.J.I. Berkeley was the Administrator in Uganda Protectorate
with the consent of the forei® office, all. terriio ries of
Bunyoro south of River Kafu were incorporated into Biganda.
The Kingdom of B unyoro thus lost s large part of its territory.
The Bugondp. Agreement of 1900 confirmed the territorial boundaries
between B Uganda and Bunyoro.
Because the Buganda Agreement, 1900, gave Bugartda a special
stsrtus in Uganda, it became the cause of con£liot0-to follow.
The Toro Agreement, 1900
The next deal was made wi-th tho Kingdom ef- To.ro. The
Agreement.with Toro was much more simpler n the Buganda
Agreement. It divided the Kingdom into a±8 -counties, and
recognised Chief Kr.sagama as the Omukamc or supremo chief over
all Toro, so long as ho had his chiefs artacstliijent^habiiigatby
the agreement. The Onukama'and all the chiefs were given the
right to nominate their sucdecsors. All waste and .uncultivated
lands;' forests, minesy minerals c fid sale deposits were to be
the property of the British Government. As with- tho -Buganda
the Btitoro wore to pay hut and guA taxes and no chifef was allowed
to levy on other cStinfs or on- hie subjects tribute of gifts of
any kind without the permission of the control government.
Justice? was to be administrered by the eh j^fs of the six counties.
The King of Toro, his ministers ana chiefs were granted estates
out of waste lands. Put what was granted to then was much less
than what was granted to their oounter-prrts in Buganda.
- - •
An agreement based on the -Toro model was concluded tilth
Ankole in the following yearr . The King, his ministers and senior
chiefs were given waste.lands and the reat of the kingdom was
declared Crown Land., ••.' . ..
The Uganda Order in Council:, 1902 . "
The Agreements established working.relationships between
•the British Government and the Kingdoms. Tho constitutional
franiwork for the administration of tho country was laid by
the Uftcjnda Order in Council, ,1902. - The- order in Council
(a) defined the boundaries of Uganda; (b) provided for the
administration of the Protectorate by a Commissioner; (c) empo-
wered the Commissioner to make laws by the promulgation of ordi-
nances; and (d) set up a High Court.with powers to administer
justice according tO: written 'laws, principles of common, law,
doctrines of eyiity and statutes of general application.
"Its .jurisdiction was to be eXc-reised in accordance with the
Penal code and ^e. Civil and Criminal Procedure Codes of India".
Uganda Order ..in Council 1920. ' . . - -.
The Ugnndg Ordtji; in Council, of 1920 introduced new constitutional
..changes. It created an. Executive Council consisting of .such
persons as the Imperir.l' Government appointed. It also crcnt-fed
:. a legislative Council <jt>ns±sting of; tho Governor, his executive
• Council and such persons',..not being less than two, as the
Imperial Government directed.-:' j-
_ 7 -
The Bugcnda Agreement. 1955
Another major constitutional development was the Buganda
agreement 1955. This Agreement was precipitated by a series
of ni' sunderstandings between the Kabaka, his lukiiko and
Ministers on one ha nd, and the Protectorate and the British
Governments, on the other hand. The British wanted to develop
Uganda ne one united country; the Bnganda wanted to have a
special status; the British Government wanted to give Uganda
independence as a unit, Buganda wanted to have her independence
separate from the rest of the country; the British Governnent
wanted national representation in tho legislative council,
the Baganda opposed tod boycotted it; British government
ministers tolkdd of an East African Federation, Buganda opposed
it. Matters came to a head in 1953 when the Kabaka refused to
sign a document prepared by Governor Six Andrew Cohen in which
he was required to undertake to cooperate with the protectorate
government and welcoming the British Government's decision not
to press ijhtihd with the issue of federation. The British
Government withdrew its Recognition of the Kabalca and the was
deported to Britain. It was only when he, his Bukiiko and
Ministers undertook to co-operate with the protectorate govern-
ment that he was allowed to return. The new relationship
between tho British Government and Buganda was la id in the
Bugnnda Agreement, 1955.
Under the Agreement, the British Government undertook to
recognise the Kabaka as o ruler so long as he ruled in accordance
with a constitution for Buganda (which was made an integral
part of the Agreement). Bugnnda agreed to be represented in the
Legislative Council by candidate submitted by.thfj Katiktro to
the Governor.
Under the Constitution of Bu~andr., which was Rchcdv.le • One of
the Agreement, the Knbaka was n-aJte a constitutional nonnreh..
• . r • '
She conduet of his goveqfaent was to he done by his ministers .
The Governor retained the power of •eetoing appoin tment of
ministers by the Kabaka and the power of approving draft laws
made by the Iukiko and the annual estimates of expenditure of
the Kingdom, The Agreement made.Bugandn virtually a federal
state viithin Uganda Protactorate. The Protectorate and British
GovernBSntB • breached the Agreement by requiring ajgrajdr. to
participate in country wide elections to the legislative Council*
Bugand?. boycotted botte tho elections and the constitutional ?
committee appointed to recommond the manner in which the elections
were to bo conducted and instituted a legal action in the High
Court, praying the Court to declare that the legislative Council
(Elections) ordinance, 1957, was co ntrary to thoAgreement,
The Court dismissed the suit when the Bisotectorr.te government
pleased that the Agreement .was an act of state wixich could «ot
6
be questioned in any court. The decision ot tho_High Court-
was confirmed 7
by both the Court of ApDeal for Eas* African and
8 .
the priljy Council.
As independence approached more conflicts called for reso-
lution through constitutional mediation. The first of these was
BASJWHBwhich wanted to secede unless its position in general
and that of.the Kabaka in.particular was clearly defined in an
independents Uganda. The other kingdoms made sinilar claims..
Membership of political parties reflected religious aliguents.
2here were boundary disputes between Buganda and Bunyoro relating
the counties lost by Bunyoro to Buganda at the beginning ofthe
century. Tho Bakonjo and Banha, the Sebci, and tho people of
EaBt Acholi district wanted separate districts. !?he town Mbale
was claimed by both Bucishu and Bukedi.
The Uganda Relationships Oonnisalcm. 1961.
In December, 1960, the Secretary of State for th eColonios,
Sir Ian Haoleod,' appointed a' ComnissionorunCor the Chairmanship
of the Right Honourable, -the Earl of Ilunatcr, to examine and
advise.ori the form of Government best suited to an independent
0 gonda. .••..•>.
The terns of reference of tho Commission wtjro!
"To consider the future forn of^government best suited to
Uganda and the question Of the relationship between the
Central Government cjad the other authorities in Uganda,
bearing in ninct:
(a)Her Majesty's Government's known resolve to lead Uganda
by appropriate stages to independence and to this end, to
develop stable institutions of government which will
Properly reflect the pa rticular circumstances and meet the
nedds of Uganda-'and;
(b) the desire of the people of Uganda.to preserve their existing
institutions and customs and the status and diginity of
their rulers and leaders; and
(c) the special relationship that already exists between hor
Majesty's Government and his Highness the Kabaka' £s Government
and the Native Governments of Bunyoro, Ankole and Toro
as set do m. in tho various Agreements that have been
made with the Traditional Rulers and peojbles of Buganda,
Bunyoro, Ankole, and 5oro, ifocl to make recommendations"
The Commission reported in'j196l, and it was mainly their
report' and the Wild Report of 1959, which laid- Sown principles
• upon which the foundation of the independence-eonirtitution
of Uganda was based. • •