Uganda: The Case for Federalism in Uganda - Part Iv

The first three parts of these series have tried to describe the building blocks which constitute the rather rickety structure that is contemporary Uganda.

We have attempted - above all - to make the point which the current Minister of Justice and Constitutional Affairs, Hon. Norbert Mao, has sometimes asserted - that no community filled out an application form to be a part of this political unit now called 'Uganda'.

This is an important consideration, because it underscores a critical reality - that, for the time being at least, we are all stuck together and must try to find a way to make this relationship work. It could perhaps be argued that there is one exception to this notion - the Buganda Kingdom, which could be said to have filled some kind of 'application form' - by way of Kabaka Muteesa I's letter to Queen Victoria in 1875 (and the subsequent 1900 Buganda Agreement).

However, even in this regard, as Part II of these series sought to demonstrate, Buganda was not thereby signing up to the 'Uganda' project - but rather seeking to preserve and protect its own independence and sovereignty - in the wake of overwhelming British force.

In our view, federalism provides an important mechanism by which the constituent societies of Uganda can live together peacefully - through recognizing, and managing, ethnic and other forms of diversity which are our historical and contemporary realities. However, there must be a very different kind of approach to federalism from that which was previously tried from 1962 to 1966 - one which is informed by the entirety of Uganda's history (from 1894 to present).

In the first place, the federalism which was attempted in 1962 was a piece-meal one, which only fostered, rather than assuaged, the wounds of the colonial period.

The grant of full federal status only to Buganda, with other kingdom areas (Ankole, Toro and Bunyoro) and the territory of Busoga only being granted 'semi-federal' status - combined with a unitary arrangement for the rest of Uganda could only send one message: that in Uganda there was a hierarchy - in which Buganda sat on top (Buganda ku ntiko), with the other kingdoms and Busoga occupying a middle tier position, and the rest of Uganda at the very bottom.

If federalism (or a loose approximation of pre-colonial sovereignty) was the prize in the run-up to independence, then the 1962 Constitution reflected winners, losers and 'also-rans'. This messaging could only be further reinforced by the seeming insistence that the ceremonial Ugandan presidency be occupied by royalty - with the first ceremonial president being Kabaka Muteesa II and his vice president being the Kyabazinga of Busoga William Wilberforce Nadiope III. This was a problematic start to our post- independence story.

If federalism is to work for Uganda in the post-2023 moment, it must be a federalism for all and not for a few. A formula must be worked out which organizes Uganda into federal units that broadly reflect the ethnic diversity of the country, and then fairly distributes power and responsibilities in ways which generally satisfy the interests and aspirations of Ugandans as a whole.

Incidentally, this principled position was early on articulated by the Uganda People's Congress (UPC) in a memorandum of entitled 'The Status of the Kingdoms of Toro, Ankole, Bunyoro and Other Districts Like Busoga', issued ahead of the 1961 Uganda Constitutional Conference at Lancaster House in London. In that document, UPC observed that: 'It is a fact of political life that the psychology and feeling of a country matter to no mean degree.

It is understandable that the term "semi-federal" is undignified and indicates a status lost between the worlds of federalism and unitary rule ... the prefix "semi" should be dropped to make way for federal status and this should be manifested not merely in name but - to some degree - in substance.

It is a reality of constitutional law that a country can have a strong unifying central government and, at the same time, have its component parts (or some of them) federally related to the centre. It could not be argued that granting federal status to these kingdoms and Busoga would inevitably weaken the central legislature.

The crux of the matter rests with the form of the division of powers between the centre and the component units ...'

Secondly, and this is very critical - the federalism of our time should be one which comes with two explicit conditions - expressed in the federal Constitution: i) that the federal units must be governed according to democratic principles (including the most basic of all - one person, one vote); and ii) that all human rights, as guaranteed in the federal Constitution, must be recognized and protected by the federal units.

The failure to entrench respect for democratic values was another major failing going into the pre-independence constitutional arrangements, and was one which would inevitably be reflected in the post-1962 moment. Buganda, it must be said, conspicuously failed on this point, pre and post 1962.

One of the lowest points in this regard was the intimidation of intending voters by the Buganda Kingdom in the run up to the March 1961 elections, aimed at discouraging voter registration and ultimately frustrating elections in that part of the country. In fact, so vicious was this campaign - which included burning of houses and other properties, destruction of crops, injuring of livestock and other acts - that the Protectorate government was compelled to enact the Elections, 1961 (Prevention of Intimidation) Bill, which empowered the Governor to detain anyone who found scaring people from registering to vote.

Of this unhappy episode, Professor Samwiri Rubaraza Karugire wrote in his A political history of Uganda (2010 edition), at p.178: 'Thus in Uganda one had the rare, if not unique, spectacle of a colonial government framing a law to protect African voters against the violence of their fellow Africans seeking to prevent them from exercising a democratic right that colonial government usually granted most reluctantly.

This is one of the saddest commentaries on Uganda's political development.' After independence, another low point in this regard were the actions of the Buganda Kingdom in the run up to the 1964 referendum scheduled to be held in the two 'lost counties' of Buyaga and Bugangaizi.

The referendum was an important political event - one directly aimed at providing the people in these counties an opportunity, democratically, to determine whether to remain in the Buganda Kingdom (under which they had been placed by the terms of the 1900 Buganda Agreement) or to move to the Bunyoro Kingdom (which they had been a part of prior to 1900).

It represented a peaceful means by which to redress a great historical question. Unfortunately, as Professor Phares Mukasa Mutibwa notes at p.192 of his 2016 book, A history of Uganda: The first 100 years 1894-1995, the Buganda Kingdom sought to subvert the exercise of the right to self-determination of these people, including through resettling several Baganda World War II veterans in those lands and, at least on one occasion, burning a village where a pro-Bunyoro meeting was scheduled to be held.

If federalism is to work in Uganda in this day and age, it must be conditioned upon a respect for democratic values in the federal units - and Buganda, given its unique place in the history and politics of our country, should show leadership in this respect. As Professor Oloka Onyango noted in his keynote address at the 7th Annual Conference of Buganda (Ttabamiruka), held on 18th December 2013: '...Buganda itself needs to discuss the issue of internal democracy; what is Buganda's constitution?

Throughout Uganda's colonial and post-colonial history, constitutions have been imposed on Buganda, starting with the 1900 Agreement; but what is Buganda's constitution today? ... [W]e need to ask: What are the powers of the Katikiro and of his ministers; how far does the power of the Lukiiko extend? What is the power of the Bataka, and finally, how can the Bakopi and the Bazzukulu ba Kintu be heard? ...

Buganda has been at its strongest when it has embraced democratic and transparent methods of governance; Buganda has been at its weakest (and thus open to exploitation and abuse) when it has tried to subvert democracy: Buganda needs a firm foundation of democracy if it is to effectively contribute to the wider struggle for democratic change and consolidation in Uganda at large.'

A similar call was echoed by Professor Apolo Robin Nsibambi, that great son of Buganda and Uganda, in the 2014 book National integration in Uganda 1962-2013 - his last major academic work before his death in 2019. At p.330 of that book, he observes that: 'The second persistent problem of integrating Buganda into Uganda is the failure to democratize Buganda so that its political leaders may be accountable to the people of Buganda by being directly elected by the people.

The Baganda must acquire civic competence by electing their political leaders.' To Nsibambi's wisdom I might only add that the expression of 'people of Buganda' should be broad enough to include persons who are not ethnically Baganda but who, like myself, have such ties - by birth, residence and other genuine links - as to qualify for 'Buganda citizenship'.

In other words, Buganda - and other constituent societies of Uganda - should return to their original identities as political units as opposed to the more insular 'tribal' formations which were favoured by colonial law and policy (see Part I of these federalism series).

Incidentally, the need for internal democracy is one Buganda itself appears to have recognized as early as 1960. In the famous 1960 Memorandum issued by the Lukiiko to the British Crown, that body recognized the need for critical adaptation as required by international legal and political consensus.

The Memorandum noted in part that: 'Our ancient institutions of the Kabakaship and the Lukiiko have adapted themselves to change in order to fit themselves into the modern world. Since the 1900 Agreement the tendency of the Lukiiko has been to democratize itself.

Today, of the ninety-two members of the Lukiiko sixty are elected by the people, through electoral colleges, a method which has so far proved itself as democratic as any other.' To its credit, in the same document, Buganda also committed to 'strictly observe' what were referred to as 'the fundamental rights of man, and the rule of law as understood in the free world'.

In particular, the Lukiiko noted that there would be 'freedom of worship, freedom of speech, and freedom of assembly in Buganda regardless of race, colour or creed.' These early commitments can, of course, be significantly improved, but in them we have the kernel of a federalism which respects the history and identity of communities, without compromising the rights and citizenship of all.

We end this final part of our federalism series by stressing that the greatest task which faces Ugandans of our generation is that of (re)imagining, (re)building and, indeed, (re)constituting a Uganda which reflects our collective values and aspirations.

It is a difficult task, but it is not one we can delegate or outsource. For our part, as we at the Human Rights and Peace Centre (HURIPEC) of the School of Law, Makerere University, celebrate 30 years of our existence on 1st December this year, we shall also be rededicating ourselves to the dream that inspired our establishment - a peaceful Uganda in which human rights for all are recognized and protected.

On that occasion, we shall launch a 5-year programme of action - under the theme (Re)Constituting Uganda - aimed at fostering, perhaps even forcing, the much-needed conversation around remaking Uganda in a way that responds to the aspirations of its various constituent parts. We invite all Ugandans to come along with us on this critical journey of state, and nation, building.

The writer is senior lecturer and acting director of the Human Rights and Peace Centre (HURIPEC) at the School of Law, Makerere University, where he teaches Constitutional Law and Legal Philosophy.

Uganda: The Case for Federalism in Uganda - Part Iv

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