Court allows Buganda clan heads join succession register petition

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The Constitutional Court has allowed Buganda clan heads to join a petition in which city lawyers Derrick Lufunya and Posiano Kyebuzibwa are seeking a declaration that the Attorney General’s directive stopping courts from issuing letters of administration to estates under the succession register is unconstitutional.

In a letter dated September 22, 2023, Attorney General Kiryowa Kiwanuka, acting on the advice of a joint working committee, advised the courts to stop issuing letters of administration for estates under the succession register.

He also advised the courts to halt the renewal of letters of administration that had previously been issued to such estates.

Consequently, Lufunya and Kyebuzibwa filed the petition, arguing that Kiryowa’s letter contravened Article 128 of the Constitution.

Taking interest in the matter, some Buganda clan heads led by Kasujja Kyesimba VIII Sheba Kakande, applied to the court to be added as parties to the case. On June 12, the court granted their request.

Jonah Kirumira, a lawyer involved in the case, welcomed the court’s decision, saying it was crucial to include the Buganda clan heads because they are custodians of culture in Buganda.

In their petition, Lufunya and Kyebuzibwa contend that the exclusion of the succession register, if fully enforced, will deprive many Ugandans, especially Baganda, of access to their forefathers’ estates, which were registered specifically for the benefit of descendants. They argue that this deprivation stems from the legislature’s omission of the Local Administration (Performance of Functions) Instrument of 1967 in the revised edition of the law.

The duo argues that this omission contravenes Articles 8A, 20, 26, 31 and 237 of the Constitution.

By directing courts on how to handle such estates, Lufunya and Kyebuzibwa argue that Kiryowa assumed authority not provided for under Article 119(4) of the Constitution, which stipulates the powers of the Attorney General.

In his affidavit, Lufunya states that he has interacted with many beneficiaries with estates under the succession register who have been unsuccessful in their efforts to obtain letters of administration following the Attorney General’s opinion.

He argues that the exclusion of the succession register is an insidious attempt by the state to deprive Ugandans of their property and amounts to the forceful acquisition of land by the government, contrary to Article 26 of the Constitution.

By rendering the opinion that the succession register is obsolete, Lufunya argues that Kiryowa exposes these records to destruction at the discretion of the Administrator General, even though they hold value for the Baganda and their respective clans.

He adds that many beneficiaries are still unaware of the existence of property listed under the succession register and sees this as an attempt to deprive them of their inheritance, much like previous regimes had done.

Lufunya further argues that the omission has given land grabbers an opportunity to access the registry and take possession of property that does not belong to them.

Lufunya and Kyebuzibwa are seeking a declaration that the omission of the succession register is not only unconstitutional but also violates the rights to property, family, and inheritance, all of which are guaranteed under the Constitution.

They also want the Attorney General’s opinion declared null and void, arguing that it offends the doctrine of separation of powers and undermines the independence of the courts in the administration of justice.

Additionally, they are seeking a declaration that the succession registers are the property of the people of Buganda and possess high historical, evidential, and cultural value worth preserving for future generations.

They further want an order allowing families who had applied to administer estates under the succession register to be issued certificates of no objection by the Administrator General, enabling them to proceed with estate administration.

In a paper presented by then-Administrator General Charles Kasibayo at the 19th Annual Judges’ Conference in 2017, he stated that the succession registers had been overtaken by events.

He noted that some predecessors had sold the land, but both sellers and buyers often failed to transfer the land officially. This led to numerous court cases in which great-grandchildren sued the land office or investors such as Madhvani, claiming that their land had been "stolen," even though records might exist showing that the first line of beneficiaries obtained certificates of succession between the early 1920s and 1966 and may have sold the land.

What are succession registers?

Succession registers are records containing details of deceased Baganda’s estates, including property descriptions, distribution and beneficiaries.

Upon the death of a person from the Buganda Kingdom, his or her will would be proved before the clan to which the deceased belonged.

If the deceased died intestate, the clan would distribute the property.

Proceedings from the clan would then be forwarded to the Lukiiko for debate and approval.

After approval, the reports were sent to the Kabaka for assent.

With the Kabaka’s assent, the records constituted the final distribution of a deceased Muganda’s estate and formed part of the succession register.

To implement the distribution, a beneficiary would be issued a certificate of succession by the Lukiiko, which functioned similarly to a land transfer.

The certificate of succession also had the same legal effect as a limited grant of letters of administration for that specific share of the deceased’s estate.

Following the abolition of kingdoms, including Buganda, in 1967, the Administrator General was given the authority to manage the succession registers containing the estates of deceased Baganda previously overseen by the Kabaka’s government.

The estate of any Muganda who died between the early 1900s and 1966 and owned land was almost always registered with the Kabaka’s government.