The case for federalism in Uganda (Part II)

Last week, this column engaged with the political and legal status of the various communities which were conscripted into the contemporary Ugandan polity – noting that many of them were indeed states as understood under international law.

We made the further point that part of the colonial project was to deliberately undermine the political character of these entities – to reduce political (and necessarily inclusive) communities into insular ‘tribal’ enclaves.

Thus, while at independence in 1962, there was a country called Uganda, this was acknowledged to be an ‘artificial unit’ by the Wild Committee Report of 1959, one composed of ‘very different tribes with very different languages and customs’.

There is, however, one additional element of our colonial history which must be foregrounded before we can proceed to assess the best way of living together within the borders of this artificial unit – that this is the historical place of Buganda within Uganda.

The very names of the two entities betray the inextricable link between them. Indeed, by all indications, the very name ‘Uganda’ was from Swahili and literally meant ‘land of the Ganda’. In fact, for a long time, the two words – ‘Buganda’ and ‘Uganda’ – were used by the British interchangeably.

This is evident in the descriptions of the 1893, 1894 and 1900 Agreements as ‘Uganda’ Agreements, when they were essentially treaties between the British and the Buganda kingdom. Perhaps the root of this can be traced even further to the 14th April 1875 letter from Kabaka Mutesa I to Queen Victoria. In that letter, and all subsequent ones, the Kabaka was described as ‘King of Uganda’.

It is also a legal fact – although one which is somewhat not very well known – that, strictly speaking, the declaration of the Protectorate on 18th June 1894 (published in the London Gazette on 19th June 1894) related only to Buganda, not Uganda as it exists today.

For avoidance of all doubt, that declaration was in the following terms: “It is hereby notified, for public information, that under and by virtue of the Agreement concluded on the 29th May, 1893, between the late Sir G. Portal and Mwanga, King of Uganda, the country of that ruler is placed under the Protectorate of Her Majesty the Queen. This Protectorate comprises the territory known as Uganda proper, bounded by the territories known as Usoga, Unyoro, Ankoli, and Koki.’’

These facts are significant. They place in context the long-standing, and in many ways quite legitimate, claims made by Buganda for autonomy and self-determination. Buganda historically asserted its independence – even as it entered into the ‘arrangement’ with the United Kingdom that turned out to be one of colonialism and domination rather than the partnership and cooperation it originally envisaged.

Arguably, Buganda brought upon all of us the ‘British problem’ – from Kabaka Mutesa I’s letter, to the Agreements that followed, and the ensuing cooperation between Buganda and the British in the conscription of other communities into the ‘Uganda’ Protectorate.

The reality of this British-Buganda partnership is evident in the form and substance of the Buganda Agreement of 1900, especially as compared with contemporaneous ones – the Toro Agreement of 1900 and the Ankole one of 1901. The Buganda Agreement was particularly elaborate, with 22 articles.

The Toro and Ankole Agreements had only about seven articles each. Basically, it was as though the British took the Buganda Agreement, severely truncated it, and gave the shabby remnants of the same to the Toro and Ankole kingdoms. The stipulations in the Buganda Agreement were also more complex and reflected the greater care taken with their negotiation and drafting.

Perhaps the most telling giveaway in this regard was Article 5, which stipulated that laws made for the general governance of the Protectorate would apply to Buganda, except where they might conflict with any term of the Buganda Agreement, in which event the terms of the Agreement would “constitute a special exception in regard to the Kingdom”.

The special nature of the British-Buganda relationship, pre and post-1894, could not have been articulated in starker terms. If any additional evidence were required as to the special status of Buganda vis-à-vis the other kingdoms (not to mention the non-kingdom areas with whom no such agreements were concluded) one need only to consider the ways in which the kings of Toro and Ankole were referred to in their Agreements – as the ‘Kabaka of Toro’ and the ‘Kabaka of Ankole’.

It is not surprising, therefore, for Buganda to have expected that the end of British colonialism would come with the resumption of the Kingdom’s own pre-1894 independence. It is important to recall, in this regard, the explicit reference to, and acknowledgment of, this sovereignty in the 1908 case of Nasanairi Kibuka v Bertie Smith (which we cited in last week’s column).

In the aftermath of the Second World War, it was clear that the end of British colonialism was near – a reality confirmed by the achievement of Indian independence in 1947. Crucially, that independence was accompanied by a separate statehood for Pakistan – with the partition of 14-15th August 1947.

In other words, a precedent had already been set, in 1947, that independence for a colony could come with its division into separate states.

As such, it was not out of the realm of possibility for Buganda to seriously think about, and work towards, the achievement of independence – as Buganda – as soon as possible. One can thus understand the absolute consternation with which Buganda received the news that the British Secretary of State for the Colonies, Oliver Lyttelton, had – in a speech delivered in London on 30th June 1953 – referred to the possibility of ‘still larger measures of unification and possibly still larger measures of federation of the whole East Africa territories’.

Far from moving towards discussions around a separate independence for Buganda, the British seemed to be planning to further bury Buganda within a larger and even more artificial political unit to be known as the East African Federation. As might have been expected, Buganda opposed this move, with a series of protestations which culminated in a 6th August 1953 letter from Kabaka Mutesa II to the then Governor of Uganda, Sir Andrew Cohen.

Significantly, in paragraph 9 of that letter, Kabaka Mutesa noted: “It is hardly necessary to remind Your Excellency that from history we learn that the kingdom of Buganda was a self- governing Sovereign State, and record at the time of the advent of Europeans, almost 100 years ago testifies to this that they found Buganda an established Kingdom, independent, and with its own dependencies.”

In the same letter, the Kabaka asked for the affairs of Buganda to be transferred from the Colonial Office to the Foreign Office (paragraph 10) and for the British to effect a plan for Buganda’s independence ‘within a short stated space of time’ (paragraph 11).

Seen in this light, Buganda’s position has always been broadly consistent – that the kingdom viewed itself right from the beginning and through the colonial period, as an autonomous entity rather than as a part of the artificial entity that was Uganda. The key historical reality is that the idea of Uganda was one forced on Buganda.

Admittedly, at some point, Buganda actively participated in the creation of the new ‘Uganda’ – apparently based on the sincere but evidently mistaken belief that the political entity being created was a temporary one, which did not, and would not, compromise Buganda’s sovereignty.

At the same time, it is also a reality that Buganda gained – directly and indirectly – from its role in this regard, including most famously, the inclusion within its territorial boundaries (under Articles 1 and 9 of the 1900 Buganda Agreement) of a number of counties which traditionally belonged to the Bunyoro Kingdom. For their part, in the fog of the end of the colonial season, the British appeared to be unwilling to permit another ‘independence-with-partition’ as had happened with India and Pakistan in 1947.

The very position of Buganda at the heart of the Uganda Protectorate must inevitably also have complicated matters. The stage was thus set for a conflict which would consistently pit Buganda nationalism – for it is a sort of patriotism of its own – against Ugandan nationalism.

The first major conflict in this sense was that which followed Kabaka Mutesa II’s 1953 letter to Governor Cohen, resulting in the Kabaka’s exile to London on 30th November of that year. Buganda was ultimately successful in that contestation, which ended in a political settlement – the Namirembe Conference resolutions of September 1954 – whose terms were reduced into a new Buganda Agreement of 1955, signed by Kabaka Mutesa II on 18th October 1955, a day after the end of his exile.

In the Agreement, a Constitution was imposed on Buganda (as the first schedule to that document) which committed the kingdom to some notion of a constitutional monarchy. However, Buganda knew that this was only the start of a more protracted struggle to achieve its ultimate objective – an independence separate from that of Uganda.

This would explain Buganda’s continued rejection of a closer union to the other parts of Uganda – represented by the kingdom’s insistence on indirect, rather than direct, elections for the Buganda’s representatives to the national Legislative Council. This stance eventually paid off somewhat in 1962 with a major concession being made for Buganda alone to have full federal status under the independence Constitution.

The other kingdoms (Ankole, Toro and Bunyoro) – as well as Busoga – managed to obtain a semi-federal status, while the rest of Uganda was to be governed under a unitary arrangement. This is the complex foundation of what would eventually morph into the unwieldy ‘Uganda’ of the present day.

Buganda was forced into Uganda reluctantly – and appeared to have only postponed, not given up, its struggle for independence following the initial attempt at this in 1953. This partly explains the confidence with which Mutesa II faced his second confrontation with the administration of Uganda, in 1966.

Writing from his second exile in London – his 1967 book The Desecration of my Kingdom ends with the following haunting passage at pages 171-172: ‘‘All this has a familiar ring. Obote is behaving much as the British did when they exiled me, and making the same mistakes, though he has added violence and chaos.

He has not yet offered to negotiate with me, but just as I was supported by my faith in the loyalty of my people in the dark years of exile, now I believe utterly that the Baganda will show their devotion, though it demands great courage and perseverance. In the end I shall return to the land of my fathers and to my people.’’

We know that Kabaka Mutesa II did not return to Uganda alive. In next week’s column, we address this and other wounds of post-1962 Uganda, and reflect upon how a federal arrangement might be the best possible way to manage ethnic and other forms of diversity within the artificial political unit that is Uganda.

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.