A national constitution is a far cry from a local one
Sep 23, 2009
LAST Saturday, listeners to a certain radio station were taken by surprise when the former Katikkiro of Buganda, Daniel Muliika, stated that he was not aware of the details of the negotiations between his predecessor, Joseph Mulwanyamuli Ssemwogerere and
By Peter Mulira
LAST Saturday, listeners to a certain radio station were taken by surprise when the former Katikkiro of Buganda, Daniel Muliika, stated that he was not aware of the details of the negotiations between his predecessor, Joseph Mulwanyamuli Ssemwogerere and the Government which led to the introduction of regional governments in the constitution.
Mulika’s revelations confirm what many people have been suspecting that the current impasse between the Government and Mengo is rooted in the transition from Ssemwogerere to Muliika. Although Ssemwogerere’s team had reached agreement on a broad range on issues with the Government which were first approved by the Buganda Lukiiko, things changed afterwards when the Lukiiko rejected what had been agreed upon.
When Muliika took over, the first thing he did was to draft a new set of demands to the Government which ran counter to his predecessor’s position.
It is therefore safe to conclude that the present standoff which has generated a lot of political emotions and the spilling of blood arise from the contradictory positions Mengo has presented to the Government. It is also to be regretted that the situation has been complicated by the many different players who have exploited the differences between Mengo and the central Government for their own benefit.
But behind all the political excitement lies what has come to be known as the Buganda problem which has dogged various regimes since colonial times. In simple terms, the Buganda problem has to do with the position and status of Buganda within a wider Uganda. To understand its ramifications in its historical context we have to trace the constitutional development of the kingdom since 1900.
The Buganda agreement with the British of that year provided in Clause 4 that Buganda was to rank as a province of equal status with any other province before the protectorate was formed four years later. The agreement also set up a provincial government at Mengo in contrast with the rest of the country which was administered at the district level.
Unfortunately, there was no formal linkage between Buganda and the rest of the country until a new agreement was made in 1955 in which Buganda was brought under the national fold for the first time when it agreed to be represented in the Legislative Council (the Legico) together with representatives from the rest of the country. The agreement also introduced major changes in the internal administration of the kingdom. Among these changes were that the Kabaka was made a constitutional monarch while the office of the Katikkiro became elective for the first time. The powers and responsibilities of the Mengo government were vastly increased which widened its difference with the district administration.
Another major provision in the 1955 agreement was that the status of Buganda was to be reviewed in 1961. At a conference which was held in London in 1961, a new agreement was reached under which it was specifically provided that after independence, Buganda would be united in a federal relationship with the rest of Uganda and that Her Majesty’s government would take steps to give the Buganda constitution the force of law as part of the constitution of Uganda. The import of this was that the kingdom was to enjoy an autonomous status in an independent Uganda and that the British government was morally bound to ensure the attainment of this position regardless of the feelings of the rest of the country.
The independence constitution conference which was also held in London in 1962 drew representatives from all parts of the country roundly opposed the idea of Buganda’s federal status and the conference nearly ended in a stalemate because of this issue. The knot was only broken due to the British government’s moral burden to deliver on its promise and the sudden change of mind of the UPC delegation which decided to support Buganda’s position in exchange of a loose electoral compact.
As a result, the kingdom got its federal status but rather grudgingly and ominously. Contrary to what we have heard in recent debates over the issue, five elements underpin federalism wherever it is practised. First, there must be two or more autonomous entities which agree to come together under an overarching government which is normally known as the federal government. Secondly, there is always dual sovereignty in the sense that the national government rules by constitutionally enumerated powers only and each government unit i.e. federal and regional or state is sovereign within its sphere. Thirdly, executive, legislative and judicial functions are shared between three tiers of government. To this may be added the fact that the constitution normally entrenches the arrangements so that they cannot be easily altered at the expense of others.
With the above in mind, Buganda’s federal status in 1962 was achieved through four ways. First, the kingdom was given independence on October 8, 1962 so that it would join Uganda in a federal relationship the following day. Secondly, the Lukiiko was given powers under the constitution to the exclusion of parliament to make laws for peace, order and good governance of the kingdom in respect of matters which were specified in Part 1 of schedule 7 to the constitution. Thirdly, the executive power of Buganda was to extend to the maintenance and execution of the constitution of Buganda and all matters over which the Lukiiko had power to make laws. Lastly, there was a High Court of Buganda with the same jurisdiction in Buganda as the High Court of Uganda.
There has been a lot of debate whether this arrangement which was abolished in 1967 is tenable today. In a booklet dated January 28, 2003 which the Ssemwogerere administration submitted to the Uganda Constitution Review Commission at page 72 it was stated that a federal system which was suitable in 1962 certainly needs modification to make it work in the year 2003.
The document states: “Under this arrangement, a federal status was given to only kingdom states. Every region in Uganda should have the right to pursue a federal status and every region should enjoy the same rights and privileges as the other federal regions of the country.â€
In order to move forward, we should appreciate two important things. First, you cannot talk of federalism where the three branches of government, namely the executive, the legislature and the judiciary are not replicated at the three layers of government—federal, regional and local and no one has suggested that judicial power should be so shared.
We should distinguish what goes in a national constitution and what belongs to a local constitution. A lot of the problems we are facing revolves around these two points.
The writer is a lawyer
LAST Saturday, listeners to a certain radio station were taken by surprise when the former Katikkiro of Buganda, Daniel Muliika, stated that he was not aware of the details of the negotiations between his predecessor, Joseph Mulwanyamuli Ssemwogerere and the Government which led to the introduction of regional governments in the constitution.
Mulika’s revelations confirm what many people have been suspecting that the current impasse between the Government and Mengo is rooted in the transition from Ssemwogerere to Muliika. Although Ssemwogerere’s team had reached agreement on a broad range on issues with the Government which were first approved by the Buganda Lukiiko, things changed afterwards when the Lukiiko rejected what had been agreed upon.
When Muliika took over, the first thing he did was to draft a new set of demands to the Government which ran counter to his predecessor’s position.
It is therefore safe to conclude that the present standoff which has generated a lot of political emotions and the spilling of blood arise from the contradictory positions Mengo has presented to the Government. It is also to be regretted that the situation has been complicated by the many different players who have exploited the differences between Mengo and the central Government for their own benefit.
But behind all the political excitement lies what has come to be known as the Buganda problem which has dogged various regimes since colonial times. In simple terms, the Buganda problem has to do with the position and status of Buganda within a wider Uganda. To understand its ramifications in its historical context we have to trace the constitutional development of the kingdom since 1900.
The Buganda agreement with the British of that year provided in Clause 4 that Buganda was to rank as a province of equal status with any other province before the protectorate was formed four years later. The agreement also set up a provincial government at Mengo in contrast with the rest of the country which was administered at the district level.
Unfortunately, there was no formal linkage between Buganda and the rest of the country until a new agreement was made in 1955 in which Buganda was brought under the national fold for the first time when it agreed to be represented in the Legislative Council (the Legico) together with representatives from the rest of the country. The agreement also introduced major changes in the internal administration of the kingdom. Among these changes were that the Kabaka was made a constitutional monarch while the office of the Katikkiro became elective for the first time. The powers and responsibilities of the Mengo government were vastly increased which widened its difference with the district administration.
Another major provision in the 1955 agreement was that the status of Buganda was to be reviewed in 1961. At a conference which was held in London in 1961, a new agreement was reached under which it was specifically provided that after independence, Buganda would be united in a federal relationship with the rest of Uganda and that Her Majesty’s government would take steps to give the Buganda constitution the force of law as part of the constitution of Uganda. The import of this was that the kingdom was to enjoy an autonomous status in an independent Uganda and that the British government was morally bound to ensure the attainment of this position regardless of the feelings of the rest of the country.
The independence constitution conference which was also held in London in 1962 drew representatives from all parts of the country roundly opposed the idea of Buganda’s federal status and the conference nearly ended in a stalemate because of this issue. The knot was only broken due to the British government’s moral burden to deliver on its promise and the sudden change of mind of the UPC delegation which decided to support Buganda’s position in exchange of a loose electoral compact.
As a result, the kingdom got its federal status but rather grudgingly and ominously. Contrary to what we have heard in recent debates over the issue, five elements underpin federalism wherever it is practised. First, there must be two or more autonomous entities which agree to come together under an overarching government which is normally known as the federal government. Secondly, there is always dual sovereignty in the sense that the national government rules by constitutionally enumerated powers only and each government unit i.e. federal and regional or state is sovereign within its sphere. Thirdly, executive, legislative and judicial functions are shared between three tiers of government. To this may be added the fact that the constitution normally entrenches the arrangements so that they cannot be easily altered at the expense of others.
With the above in mind, Buganda’s federal status in 1962 was achieved through four ways. First, the kingdom was given independence on October 8, 1962 so that it would join Uganda in a federal relationship the following day. Secondly, the Lukiiko was given powers under the constitution to the exclusion of parliament to make laws for peace, order and good governance of the kingdom in respect of matters which were specified in Part 1 of schedule 7 to the constitution. Thirdly, the executive power of Buganda was to extend to the maintenance and execution of the constitution of Buganda and all matters over which the Lukiiko had power to make laws. Lastly, there was a High Court of Buganda with the same jurisdiction in Buganda as the High Court of Uganda.
There has been a lot of debate whether this arrangement which was abolished in 1967 is tenable today. In a booklet dated January 28, 2003 which the Ssemwogerere administration submitted to the Uganda Constitution Review Commission at page 72 it was stated that a federal system which was suitable in 1962 certainly needs modification to make it work in the year 2003.
The document states: “Under this arrangement, a federal status was given to only kingdom states. Every region in Uganda should have the right to pursue a federal status and every region should enjoy the same rights and privileges as the other federal regions of the country.â€
In order to move forward, we should appreciate two important things. First, you cannot talk of federalism where the three branches of government, namely the executive, the legislature and the judiciary are not replicated at the three layers of government—federal, regional and local and no one has suggested that judicial power should be so shared.
We should distinguish what goes in a national constitution and what belongs to a local constitution. A lot of the problems we are facing revolves around these two points.
The writer is a lawyer