“The role of Buganda in the constitutional development

of Uganda from 1900 to 1962”

BY; Ssemugenyi Jamil

Registration No: 20/U/4946/PS
Bachelors of Laws (LLB)
MAKERERE UNIVERSITY

Outline
 INTRODUCTION: Defining the role of Buganda in relation to constitutional
development.

 Buganda’s role in the circumstances surrounding the evolution of the Uganda

protectorate.

 The agreement that shaped the foundations of colonial rule; the winners and loosers

 Buganda’s role regarding the pending questions during the colonial period(1900 to
1950)

 Buganda’s role regarding the evolution of nationalism and its influence on political
party formations(1940 to 1962)

 Bibliography and references

Note; in my submissions I will analyse Buganda’s role in the circumstances that guided constitutional
developments, with an insight to their relevance to events that define the rule of law in Uganda during those
periods of time. I will also submit recommendations and conclude with a realistic opinion in context with my
research. I intend to use pointing questions to give directions to themes under discussion in my research.
THE ROLE OF BUGANDA IN THE CONSTITUTIONAL
DEVELOPMENT OF UGANDA FROM 1900 TO 1962

BY;

SSEMUGENYI JAMIL
REGISTRATION NO: 20/U/4946/PS
STUDENT NO: 2000704946
BACHELORS OF LAW (LLB)
MAKERERE UNIVERSITY

FOR

COURSE WORK: L1110 – CONSTITUTIONAL HISTORY

TO
DR. DANIEL RUHWEZA
INTRODUCTION: Defining the role of Buganda in relation to
constitutional development

Buganda is a Bantu kingdom within Uganda and the largest of the traditional kingdoms in present
day East Africa, consisting of Uganda‟s central region including Uganda‟s capital Kampala. 1
Buganda has had a long and extensive history from its establishment in the 13th century by Kintu and
grew to become one of the most powerful empires in Africa by the 19 th century. After the scramble
for Africa and partition of Africa and following unsuccessful attempts to regain its independence
against British imperialism, Buganda Became the centre of the Uganda protectorate in 1894 and the
2
name Uganda which is a Swahili term for Buganda was adopted by British officials. Among
Buganda‟s historical Kabaka‟s include Mutesa 1 who welcomed civilization, Daudi Chwa who over
saw the signing of Buganda agreement and Mutesa II who was controversial in the struggle for
independence and also in post – independence Uganda acting as the first President of Uganda not
until the calamitous 1966 Buganda crisis that sent him to exile.

Following Uganda‟s independence in 1962, the Kingdom was abolished by Prime Minister Milton
Obote in 1966 but was officially restored in 1993 by President Yoweri K Museveni. Buganda is now a
traditional kingdom and thus occupies largely a ceremonial role. In analysing Buganda‟s role in the
constitutional development, it is of relevance we first define Constitutional development;

Constitutional development refers to the historical struggles through which constitutionalism has
under gone to recognise and enshrine a constitutional order of rule of law in a country. For us to
comprehend constitutional development, we must define related concepts like;

A Constitution refers to a set of rules and principles that define the nature and extent of
government. It can also be defined as an aggregate of fundamental principles or established
precedents that constitute the legal basis of a polity, organisation or other type of entity and
commonly determine how that entity is to be governed3. Constitutions are classified into two
categories, which include the codified constitutions that are contained in a single document and

1
Wikipedia, Buganda.
2
See Wikipedia article on Buganda, page one.
3
The New Oxford American Dictionary, 2005
the uncodefied constitution which are a product of the evolution of laws that are both written and
unwritten. The process by which a country adopts a constitution is tied to the historical and political
context driving this fundamental change.

Constitutionalism is a compound of ideas and patterns of behaviour elaborating the principle that
the authority of government derives and is limited by a body of fundamental law. Constitutionalism
describes and prescribes both the sources and limits of government power derived from the
fundamental law. When used descriptively it refers to the historical struggle for constitutional
recognition of the people‟s right to freedom. While the prescriptive approach addresses those
features of government seen as the essential elements of a constitution as defined by the Canadian
philosopher Wil Waluchow who suggests that constitutionalism embodies;

“the idea… that government can and should be legally limited in its powers, and that its authority
depends on its observing these limitations. This idea brings with it a host of vexing questions of
interest not only to legal scholars, but to anyone keen to explore the legal and philosophical
foundations of the state.”4
Thus in analysing the role of Buganda in the constitutional development of Uganda, one ought to
inquire into Buganda‟s contribution in shaping the historical struggles through which constitutionalism
evolved over time to recognise and enshrine a constitutional order of rule of law in Uganda.

Buganda‟s role in the circumstances surrounding the evolution of

the Uganda protectorate

The concept of a defined form of government among the African societies in Uganda was present but
what legal scholars contend was the issue of a constitutional order in existence. Existence of a
constitutional order can be asserted on claims that their existed a kind of social order encompassing
a kind of unwritten code of conduct. However what we all agree is that there was no rule of law and
clear checks and balance on the misrule by heads of society. Assertions of existence of an informal
constitutional order can be supported with evidence from Buganda that had a centralised system of
administration.

Stanford Encyclopaedia of philosophy, Wil Waluchow “Constitutionalism”

44
In 1894, the Uganda protectorate was established and the territory was extended beyond the borders
of Buganda to an area that corresponds to that of present day Uganda. It was not until then, that the
country consisted of a collection of over 50 diverse chiefly and non-chiefly societies 5which were
altogether grouped to form the Uganda Protectorate.6 The establishment of the Uganda protectorate
ignited the loss of independence and sovereignty of entities like Buganda who were merged to form
the Uganda Protectorate.
The role of Buganda on constitutional development at this stage can be traced in the following ways;
i) The actions of the British in using Buganda as an instrument of imperialism to create
the Uganda protectorate. The British duped the Baganda with a desire of maintaining peace
and security in Buganda and to further expand the territory of Buganda. Yet in reality, they
wanted to establish a unitary colonial empire to be governed as the Uganda Protectorate.
However, it should be noted that societies like Bunyoro strongly rejected Buganda‟s sub
imperialism colonial style. In terms of constitutional development, a state called Uganda came
to exist.
ii) The fact that the name Uganda evolved from the Swahili reference to Buganda, also
established a constitutional entity to be known later on as the Uganda protectorate,
Sovereign state of Uganda and later on The Republic of Uganda. The name Uganda
generally became acceptable and the British used this trick to often silence Buganda‟s
separatist demands by pretending to emphasize Buganda‟s supremacy over other territories.
In terms of constitutional development, this was among the reasons that managed to keep
Buganda as part of Uganda

The Agreement that shaped the foundations of colonial rule: the

winners and losers.

The Kingdom of Buganda being the most powerful political entity in the region and being the primary
contact of foreigners to Uganda was used by the colonialists to plant seeds of imperialism across
Uganda. The signing of Buganda Agreement created a constitutional foundation for the

5
Thomas Pakenham: The Scramble for Africa, Abacus 1991, chapter 23.
6
G.W Kanyeihamba: Constitutional and Political history of Uganda, chapter one page 1
establishment of British rule in Uganda as observed that the next step the British took was to declare
and consolidate what territories came to constitute the Uganda protectorate.7

Prof Kanyeihamba observes that;

“that African rulers were not sophisticated enough to realise that by signing the so called agreements and
treaties they were giving away their birth rights and rights of their subjects . At the time they had no notions of
what words like „ceding‟, „sovereignty and „government‟ meant. In any case, they were tricked by persons who
called themselves friends when they arrived in their respective territories.”8

Hence this emphasizes the political statecraft employed by the British imperialists in negotiating the
provisions of the Buganda Agreement which later came to contribute to constitutional development of
Uganda in the following ways;

i) Buganda agreement defined the boundaries of Buganda which expanded Buganda’s

size and also recognised it as a geographical entity in Uganda.9 The politics behind this is
that Buganda was rewarded with more territory for its cooperation with the British and also it
was done to stop its expansionist policy that would destabilise the protectorate. In terms of
constitutional development, this generated the question of the lost counties that was never
resolved not until during the 1964 lost counties referendum and was later incorporated into the
third amendment of the 1962 Uganda Independence constitution.

ii) The agreement also equated Buganda’s status to other territories in the Uganda
protectorate. The politics behind this was to make Buganda submissive to a future unitary
government with an aim of building a multi- cultural Ugandan state. Hence it is not surprising
that Governor Andrew Cohen would later utilize article 2 of Buganda Agreement to improvise
for an East African Federation. It can be further argued that Article 2 set precedent for Milton
Obote to justify his actions of constitutionally outlawing monarchism and introducing a
republican constitutional order in 1966 with a need to equate Buganda‟s status with other
territories of Uganda so as to create a unitary state.

7
G.W Kanyeihamba; Constitutional and Political history of Uganda , see page 7
8
G.W Kanyeihamba : Constitutional and Political history of Uganda, see page 5
9
See Article 1 of 1900 Buganda Agreement
iii) The Buganda agreement provided for its supremacy in future relations.10 The British
used this trick to soften the hearts and minds of Buganda rulers to accept colonial rule, yet the
significance of Article 5 of the Buganda Agreement never stopped the colonial administration
in overriding terms of the agreement that were not in the colonial interests. In terms of
constitutional development, this gave rise to the case of Mukwaba v Mukubira (1954), where
it was held that the Agreement had not created contractual relations to which the colonial
administration was bound.11Hence this established a practise that was later adopted by post-
Independence leaders of undermining the established constitutional order.

iv) The Buganda agreement recognised the Kabaka as the legitimate ruler of Buganda but
subjected him to British rule.12 In other words, it confirmed that the Kabaka had consented
and surrendered his powers to British rule in pretext that he was a kind of British servant. The
British achieved their aim by first of all confirming the lineage of the Kabaka to Mutesa‟s
descendants, which calmed tensions that there would be no power struggle. Article 6 of
Buganda agreement illustrates that the Kabaka was coerced with money , which made the
British achieve their aim of making the Kabaka submissive because they threatened to
withdraw recognition from him in case he disobeyed. In terms of constitutional development,
this would later on lead to the 1953 Kabaka crisis, resulting into suits like Mukwaba v
Mukubira (1954) where it was held that the legality of the deportation of the Kabaka could
not be challenged because the Agreement could not be cited as a treaty binding on the
colonial government. Obote would later on apply similar techniques in addressing the 1966
Kabaka crisis.

v) The Agreement also established a legislative assembly for Buganda which would later
influence Buganda’s position in Uganda.13 Article 11 of the Buganda agreement
established a „Lukiiko‟ as the native legislative organ for Buganda. In terms of constitutional
development, the Lukiiko would influence National politics because Buganda‟s representatives
to the National assembly would be appointed by the Lukiiko. Hence , it can be argued that the
existence of the Lukiiko encouraged Buganda‟s demand for a federal status which would later
be granted under the 1962 Uganda Independence Constitution. The Lukiiko is also

10
See Article 5 of 1900 Buganda Agreement.
Dr Henry Onoria notes that “ In other words, the people of Buganda could not invoke the agreement as a treaty creating rights
11

and obligations which could be binding on the colonial administration.”

12
See Article 6 of 1900 Buganda Agreement.
13
See Article 11 of 1900 Buganda Agreement
 responsible for fuelling the 1966 constitutional crisis, because its mandate rivalled that of the
National assembly.

vi) Buganda Agreement also introduced the concept of taxation which would later also
contribute to constitutional development14. The primary interest of the British was financial
and that is why Sir Harry Johnson had orders to establish an efficient administration that
would levy taxes as soon as possible.15 The British would rely on this article to introduce
16
future tax legislations such as the Busulu and Envujjo law, 1928 and Uganda Poll tax
agreement, 1920. Added to this would be the Trading Ordinances of 1938 and 1950. The
concept of taxation would later be incorporated in post –independence constitutions as the
primary source of government revenue and it was further formalised by establishing a treasury
for Uganda. Hence article 12 of Buganda agreement can be seen as the pillar behind the
evolution of the monetary economy in Uganda.

vii) Buganda Agreement also distributed land which became critical factor that contributed
to constitutional development. Article 15 of the agreement divided land into Crown land
(Public land) and Mailo Land. The crown land would later be inherited by the Uganda
Government after independence while the Mailo land remained in the hands of Buganda
Kingdom. This would establish a land tenure system for Uganda and set a precedent for future
legislations on land issues. Post- Independence constitutions would recognise and maintain
this land tenure systems leading to future legislations on land.17 Buganda would often rely on
this article to emphasize her demand for the 9000 square miles commonly known as „mailo
akenda’

Buganda‟s role regarding the pending Questions during

the colonial period (1900 to 1950)

14
See Article 12 of 1900 Buganda Agreement.
15
Wikipedia, Uganda Protectorate
16
The Busulu and Envujjo Law, 1928 was legislated with a view of restricting the exploitation of peasants by land lords who usually
requested for exorbitant feudal dues. Feudal rates were high in Buganda which led to the rise of the Bataka movement that rallied
for reforms in land distribution and also reduced the exploitation of Bibanja holders by land lords.
17
Legislations on land in Uganda Include; Land Act, 1998(as amended) & The Busulu and Envujjo laws, 1938
After the signing of the Buganda agreement, the British assumed full control over Uganda but it
should be noted that a lot of changes took place, resulting into events that came to change the
course of Uganda‟s history. The changes that occurred were to influence political, social and
economic circumstances experienced in Buganda as a result of colonial rule. Buganda‟s reaction to
the pending questions during colonial rule contributed to constitutional development in the following
way;

i) Buganda’s reaction to the introduction of British Legal instruments in Uganda also

contributed to constitutional development. The British introduced the 1902 order in council
as a kind of constitutional instrument to guide the colonial administration of Uganda, which
later on came to impact on the legal and constitutional history of Uganda. The British would
use the Order In Council to undermine the Buganda Agreement and justify their misrule
because they would cite it as the supreme law of the Uganda Protectorate. This would result
into suits like Mukwaba v Mukubira (1954) in which the legality of nomination of Buganda‟s
representatives to the National assembly was questioned because it had not been authorised
by the Kabaka as empowered by the Buganda Agreement. .18 Above all, the 1902 Order in
Council contained the reception clause that became operational on 11th August 1902
subjecting Uganda to foreign legislation under common law.19 This would create a binding
pact on the jurisprudence of Uganda because judicial notice could be taken on principles of
criminal law that were consistent with Post-independence constitutions.20

ii) Buganda raised the issue of African representation during the colonial period which
also contributed to constitutional development. The Order In Council established a
legislative council which was empowered to make laws and regulations for the administration
of justice, order and good governance of Uganda. Professor G W Kanyeihamba notes that;
“all the members of the legislative council were European. Naturally, this state of affairs was
greatly resented by the African and Indian communities” 21

Buganda claimed a right to be represented in the legislative council but the colonialists
insisted that, “natives were still too backward to contribute much to the development of their

18
Where the court took the view that the agreement had not created contractual relations to which the colonial administration was
bound. Dr .Onoria Henry emphasizes that , “ the people of Buganda could not invoke the agreement as a treaty creating rights and
obligations which could be binding on the colonial administration.
19
See Section 15(2) of the Uganda Order in Council, 1902.
20
This is portrayed from the court ruling in Uganda v Commissioner of prisons, Exparte Matovu (1966) where the court applied the
Kelsen’s Theory on law and State, like it was held in the Supreme Court ruling of Pakistan in the Case of State v Dosso.
21
G.W Kanyeihamba: Constitutional and Political history of Uganda, see page 12.
 country.” The cries for Buganda‟s representation would be addressed in 1945 by Governor
Hall when he appointed the first African representatives to the legislative council. 22 This was
an important event in the constitutional development of Uganda as it established a foundation
for Uganda‟s parliament since 1921.

iii) Buganda also raised the issue of economic inequality during the colonial period which
contributed to constitutional development. Buganda resisted the injustice by the colonial
administration of restricting trading and economic activities in urban areas to only Asians and
whites. These grievances led to the rise of the Bataka movement that staged riots and
demonstrations demanding for elimination of price controls on Agricultural products and end to
monopoly of trade affairs by Asians and whites. The significance of Buganda‟s role in the
23
struggle for economic equality paved way for the rise of the Bataka movement which was a
quasi – political party , something that encouraged establishment of future interest oriented
movements like political parties that came to demand for the rights and freedoms of
Ugandans, contributing to constitutional development.

iv) Buganda’s reaction to the 1953 Kabaka Crisis also contributed in the Constitutional
development of Uganda. The 1953 Kabaka Crisis was sparked off by a speech in which
Governor Andrew Cohen intended to federate East Africa. The Kabaka of Buganda refused
the attempted federation which the Governor interpreted as disobedience and withdrew
recognition from the Kabaka with justification of authority under Article 6 of the 1900 Buganda
Agreement. The Kabaka‟s objection was based on fear that Buganda‟s special status would
be eroded in a federation; as a result he called on his supporters to demonstrate leading to his
exile to London. This created a constitutional crisis in Buganda due to the absence of the
Kabaka which led to establishment of a constitutional committee headed by Keith Hancock
that drafted the 1955 Namirembe agreement, which introduced an indirect mode of choosing
Buganda‟s representatives to the National assembly. As a result, the 1955 Namirembe
Agreement 24amended provisions of the 1900 Buganda Agreement. This contributed to
constitutional development as aspects of the 1955 Namirembe Agreement such as indirect

22
These included Kawalya Kaggwa representing Buganda, Petero Nyangabyaki representing Western Uganda and Yekonia
Zirabamuzale representing Eastern Uganda.
23
The Bataka movement was a kiganda inspired led organisation comprised of Buganda intellectuals who wished to rally peasants,
workers and landlords. It demanded for economic justice for Africans and reduced Asian Monopoly of trade, demanded for
conversion of the Lukiiko into an elected body.
24
See 1954 Namirembe Agreement.
 elections to the National assembly and confirmation of Buganda‟s federal status were to be
incorporated into the 1962 Uganda Independence Constitution.
Furthermore, Buganda negotiated the 1955 Namirembe Agreement that became a
constitution for Buganda but also provided for Buganda‟s participation in the legislative
council. This laid a foundation onto which Buganda‟s composition as a constitutional
monarchy was later recognised and incorporated into the 1962 Uganda Independence
Constitution.
Buganda’s response to the Kabaka Crisis also introduced the Buganda question in the
subsequent politics of Uganda which contributed to constitutional development. It can
be argued that from then onwards Buganda would pursue a policy of non-compromise on her
interests which led to circumstances like election boycotts of 1958 and 1961 Legislative
Council elections. All this would later on be consolidated in the formation of the Kabaka Yekka
party whose aim was to champion and advocate for Buganda‟s interest by constantly raising
the Buganda question.

Buganda‟s role regarding the evolution of nationalism and

its influence on political party formations (1940 to 1962)

Buganda must be given credit for being the home ground for most political activities within the
protectorate because it found herself accommodating most of the assets that politicians are wont to
shout about. 25 Professor Kanyeihamba notes that during the colonial period political parties
existed but the people, who founded them,

“ were considered dangerous agitators since only the colonial power had arrogated to itself the right
and prerogative to determine what was and was not in the national interest.”26

Buganda‟s role in the height of Nationalism, desire for reforms and quest for political independence
influenced the formation of political parties 27in Uganda which contributed to Constitutional
development in the following ways;

25
Garaner Thompson: Governing Uganda, Fountain Publishers, Kampala , 2003 , Chapter 15
26
G.W Kanyeihamba: Constitutional and Political History of Uganda, see chapter two page 0ne.
i) Buganda led to the rise of the Bataka Movement which contributed to the constitutional
development of Uganda. The Bataka Movement was a Kiganda inspired led organisation
comprised of Buganda Intellectuals who wished to rally peasants, workers and land lords who
were against colonialism.28 It demanded for economic justice for Africans which reduced the
Asian monopoly of trade. The Bataka Movement also demanded for the conversion of the
Lukiiko into an elected body. The aspirations of the Bataka Movement paved way for the
transformation of the Lukiiko into an elected body that was later on to become the basis for
electing Buganda‟s representatives to the National assembly. The same party was also at the
front in opposing the proposed East African federation which fuelled the Kabaka crisis of
1950‟s. it can also be taken that the 1972 expulsion of Asians and the economic war was a
direct answer to the historical struggles for economic justice that the Bataka Movement had
prophesied.

ii) Buganda also inspired the formation of the Democratic Party which contributed to
Constitutional development. Democratic Party was formed as an alternative to address the
historical imbalance suffered by the Catholics in Buganda under the Mengo administration.
The existence of DP energised the struggle for independence by rallying the catholic base in
Buganda leading to the formation of Uganda‟s Self Internal Government between 1961 and
1962 that was led By Benedicto Kiwanuka a Muganda. DP played a critical role in the
development of multi- party democracy in Uganda through its competition for power with the
UPC, as observed that it served as the first Shadow Government of Uganda led by Basil
Bataringaya as Leader of Opposition.

iii) Buganda formed the Kabaka Yekka party whose role was to champion Buganda’s
interest which contributed to Constitutional development. The desire for Buganda to
maintain her interests in Uganda led to the formation of the Kabaka Yekka Party as Buganda‟s
political machine. It is against this background that KY was able to win all the 21 seats to the
National assembly of Uganda and enter into a coalition with the UPC government, resulting
into political favours that saw Kabaka Mutesa elected the first president and head of state of
Uganda between 1962 to 1966. Kabaka Yekka‟s agenda of advocating for Buganda‟s

27
A political party is an organisation that seeks to attain and maintain political power with an intention of influencing government.
(Source: Wikipedia, Politics.)
28
Dr. Henry Onoria, Constitutional History Lecture notes for Makerere University
 interests caused havoc leading to the 1966 Crisis, as observed that it side lined with Buganda
on the issue of the lost counties.

iv) Buganda’s role in creating the political alliance between KY and UPC also contributed
to constitutional development. The marriage of convenience between UPC and KY ushered
in an era of coalitional politics in Uganda which contributed to subsequent constitutional
developments. The unity with the aim of capturing power established lessons for partnerships
that political parties in Uganda have applied in forming coalitions like IPC and TDA whose aim
was to block NRM from being elected to power. The disastrous effects that arose from this
coalition were addressed in future constitutional developments like in the 1995 Uganda
constitution were Article 83(g) prohibits change of political party while in parliament.29

Conclusion

Conclusively, Buganda‟s role in the constitutional development of Uganda from 1900 to 1962 cannot
be under estimated because at all occasions it was at the fore front in the struggle for a constitutional
order as reflected in its role in the circumstances surrounding the evolution of the Uganda
Protectorate and also the 1900 Buganda Agreement contributed a resounding legacy to Uganda
constitutionalism. Added to this, Buganda‟s response to colonial events made it continuously relevant
to constitutional developments and also its ability to accommodate Nationalistic movements that
culminated into political parties which were led by Baganda politicians effectively kept in in
discussions regarding constitutional development in Uganda. Generally, Buganda‟s role in the
constitutional development of Uganda was both positive and negative as discussed above.

29
See Article 83(g) OF THE 1995 Uganda Constitution( as amended)
BIBLIOGRAPHY & REFERENCES
G W Kanyeihamba: Constitutional and Political history of Uganda, 2010 (2nd Edition)

M S M Semakula Kiwanuka (1972). History of Buganda: From the foundation of the

Kingdom to 1900.

1900 Buganda Agreement

1955 Namirembe Agreement

1902 Uganda Order in Council

1920 Uganda Order in Council

The New Oxford American Dictionary, 2005

Stanford Encyclopaedia of philosophy, Wil Waluchow “Constitutionalism”

Wikipedia, Constitutionalism

Wikipedia, Constitution.

Wikipedia, History of Uganda.

Wikipedia, Uganda Protectorate.