The case for federalism in Uganda: Part I

In last week’s column, we reflected on the meaning of citizenship in contemporary Uganda. In this regard, we criticized Hon Robert Kyagulanyi, leader of the National Unity Platform (NUP) for challenging the citizenship of President Yoweri Museveni.

At the same time, a number of other statements Hon. Kyagulanyi made – especially at Luweero on Friday 8th September – deserve extended treatment, especially at this critical juncture in our country’s history. This week to propose to begin this engagement, through the prism of the larger issues implicated by the sentiments he expressed.

To fully comprehend the genesis and implications of the ‘Luweero speech’, we must turn to our country’s history. Once upon a time, there were several communities in the territory which has come to be known as Uganda. These included the Acholi, Langi, Basoga, Banyankore, Bagisu, Banyole, Bakiga, Baganda, Batooro, Banyoro and many others.

Some of these were organized in Kingdoms, others as chiefdoms, and others with even looser arrangements. The represented various forms of social, economic and political identity. Importantly, many of these communities were in fact states both in terms of their dealings with each other and in the strict sense of the international legal position (as it was then and now).

Under the terms of the 1933 Montevideo Convention on the Rights and Duties of States, whose provisions are generally understood to reflect the customary international law on the question, to qualify for statehood, an entity should have: i) a permanent population; ii) a defined territory; iii) government and iv) capacity to enter into relations with other states. Can anyone deny, for instance, that the Kingdom of Buganda met all these requirements in 1894, when the British declared a ‘Protectorate’ over Uganda?

The British themselves certainly acknowledged the sovereignty of several of the communities in present day Uganda, as evidenced by the language employed colonial officials and courts.

For instance, in the 1907 case of Katosi v Kahizi, which concerned the extent of judicial power reserved under the Ankole Agreement of 1901 vis-à-vis the 1902 Order-in-Council, the Secretary of State for the Colonies, expressed the view that: ‘the validity of the Uganda Order in Council in so far as it nullifies this reservation is consequently open to question’... In these circumstances, I am advised that the Uganda Order in Council should be construed in such a manner as not to impair the rights reserved.’ 

Similarly, in the 1908 case of Nasanairi Kibuka v Bertie Smith, which concerned the allocation of legislative power in Buganda as between the 1900 Buganda Agreement and the 1902 Order-in-Council, Judge Carter observed 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 were his before remain with him except as far as they are expressly taken away or limited. A sovereign state has undoutedly the power of legislating and there is no agreement prior to the 1900 Agreement, so far as I am aware which takes away this right’.  

A stronger framing of the position can hardly be imagined. Indeed, the British courts essentially acknowledged both Buganda and Ankole’s sovereignty before the 1900 and 1901 Agreements (respectively), and the survival of that sovereignty – except in so far as certain aspects of it had been expressly ceded – post the Agreements.

This legal and political history, which is often forgotten or ignored, is critical in terms of allowing for an appreciation of the foundation of the political entity now known as Uganda. 

There is, however, another crucial aspect of the ‘birth’ of Uganda which bears foregrounding – that Uganda was primarily established as an economic project – one initiated by the Imperial British East Africa Company (IBEAC).

When IBEAC run out of funds, it was the Anglican church (including through the work of Bishop Alfred Robert Tucker) which convinced the British government that Uganda could be a worthwhile commercial investment – that the British crown could, by investing more financial and human resources than IBEAC had been able to, get Uganda to generate more in revenue for the United Kingdom than its administration would cost. This was the true basis upon which the British eventually declared a ‘Protectorate’ over Uganda in 1894.

Evidence of this pecuniary motive can again be found in the fine print of those early documents of the British empire in Uganda. The famous Buganda Agreement of 1900, for instance, had a long provision (Article 12) which dealt with taxation, under which a range of new taxes upon the ‘natives’ were introduced for the stated purpose of contributing ‘to a reasonable extent towards the general cost of the maintenance of the Uganda Protectorate’.

In the same document, Buganda gave up to the British government its previous rights to tribute from its vassal states (Article 2) and also surrendered its tax collecting power to the British (Article 4). However, perhaps the most telling provision was that embedded in Article 20. In terms of that provision, if Buganda failed, within the first two years of the signing of the Agreement, to meet certain collection targets, the Agreement would essentially lapse.

Evidently, Buganda – and by extension Uganda – was a crude economic venture. It was around this venture that the whole paraphernalia of a new statehood for the Uganda project was carved: courts, a legislature (introduced belatedly in 1920), coercive apparatus (the police and the army) and others.

It was key to the maintenance of this extractive politico-economic entity (now known as Uganda), that the disparate ‘natives’ of the various communities remain resident in and answerable to the new Chiefs (the reconstituted and rather grotesque caricature reporting to the colonial State).

Movement between ‘provinces’ was to be discouraged, except in so far as it was in the furtherance of the interests of British imperialism in Uganda (see, for instance, Article 7 of the 1919 Native Authority Ordinance). Put simply, British colonial Uganda was not very different – in ideology or in practical terms – from apartheid South Africa.

The callousness of this approach was essentially this: that the political entities – states – which the British encountered were deliberately deprived of their political (and hence inclusive) character, and instead reduced into insular and parochial parodies of their former selves. Thus, under the Article 6 of the 1900 Agreement, the Buganda Kingdom was deprived of jurisdiction over ‘non-natives’ of Buganda. This was replicated in the Toro Agreement of 1900 (Article 6) and the Ankole Agreement of 1901. 

In addition, while these formerly political units were forced to cede their military power to the colonial state (see, for instance, Article 13 of the Buganda Agreement), the army of the Protectorate did not reflect the ethnic diversity of the Uganda Protectorate. Instead, as has been well documented, the peoples of Northern Uganda were recruited to the army.

As Mamdani noted in his 1983 text – Imperialism and Fascism in Uganda – ‘(e)very institution touched by the hand of the colonial state was given a pronounced regional or nationality character. It became a truism that a soldier must be a northerner, a civil servant a southerner and a merchant an Asian.’

It was this poisonous chalice which Uganda’s post-independence leaders would be forced to contend with. Indeed, the reality of what exactly they had done was not lost on the departing British. For instance, a Constitutional Committee (led by John Wild) established on 4th February 1959 by the then colonial governor, Sir Frederick Crawford, and which submitted its report on 5th December that year, observed that Uganda was ‘an artificial unit containing within its borders … very different tribes with different languages and customs… [I]t is argued that the policies followed in the administration of Uganda have done little to break down the barriers which exist, particularly between the various tribal units, but on the contrary have tended to foster them.

This is the source of the claim sometimes made that it has been the British Government’s aim to divide and rule in Uganda. It is also suggested that District Commissioners in their districts and Provincial Commissioners in their provinces tend to regard their regions as isolated units. The development of the District Councils and the powers given to them on a district (and hence tribal) basis are also quoted as examples of a policy which has perpetuated the divisions of the country.’

Is the Uganda of 20th September 2023 any different from that of 5th December 1959? It is to this question – and to the implications of any response to it – that we continue in the column next week.

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.