This is an abridged article that appeared in Uganda Review, a newsletter that is published in the United Kingdom
Dictatorial unitarism in Uganda
Confusing agents on the loose
A critical argument says no to Uganda's unitarism
The genesis of human rights
Self determination, federalism and unitarism
The colonial form of government and self determination
The role of agreements
Self-determination and the role of the constitutions of: 1962, 1967 and 1995
Outline of the unitary system
The transition from unitarism to federo
Dictatorial unitarism in Uganda
The dominant view of a powerful political minority, claims that federalism is bad for Uganda and, that when Buganda leads the way in campaigning for federalism, it is inciting tribalism. This is a view held by an illegitimately entrenched elite. This elite, like the colonial elite before it, is exploiting the vacuum created in Ugandan society by colonial and capitalist entry into African society. In terms of Ugandan political debate, this elitist view has come to be called "unitarism" and, the whole debate is referred to as "unitarism versus federo".
John Naggenda, a top Museveni follower and presidential adviser on media took an opportunistic view, first, he quoted another Musevenite, Prof. Gilbert Bukenya Minister for the Presidency, who accused the Mmengo leaders of exciting the public and creating all sorts of problems. He then advised the Baganda leaders that what is needed now is quiet kakuyege (lobbying) to convince an Acholi in Gulu and someone in West Nile that federo is good for them as well.
Bukenya is trying to say, that Acholis and West Nilers are the obstacle to federo. Yet the anti-federal mainly comes from the self appointed elite originating from many areas of Uganda including Buganda. Naggenda said it himself. "Bukenya, in mentioning the Gulu Acholi might have added a huge number of Baganda themselves, like this one. I am passionately anti-federoist at this stage. I am a Muganda wawu (through and through) and as such I know my fellow Baganda inside and out. I know that for every lover of federo for noble reasons, such as proper pride for a tribe or a region and the good competition that engenders, there are three or four others whose motives are merely inward-looking and sectarian."
Then he advised that if the Baganda thought that they can impress Museveni by coming out in big numbers: "they should know he is more sophisticated than that". In any case, he said, "that role belongs to parliament, or, in some cases, to two thirds of all the districts of Uganda voting in favour. Perhaps they might do so in thirty to fifty years, by which time Ugandans might have proved that they are one, and suspicions of one tribe against another is in the past. Thus federo will no longer be divisive. Roll on that happy day." That is Naggenda the opportunist who accuses the Acholi en masse of being anti-federo without providing any evidence and with contempt dismisses the right of people to demonstrate their support for a preference.
Confusing agents on the loose
It is quite clear that Naggenda is an agent of confusion. He wants to give the impression that Acholis are not convinced about federalism, when actually the Odoki report shows that they are among the most convinced. He wants the matter to be dealt with quietly, so that some people are bribed off and, the whole thing killed off by his master's machinations. Yet, even if we accorded him the argument that national unity should mean, that Uganda should not be broken into small tribal parts and, that Pan Africanism is the key to unifying African resources for development, like all unitarists in Uganda, his position is undemocratic and flies in the face of the human right of self-determination. In any case, why do they assume that Pan African policy can only proceed if Uganda is not federal? Why is a federal Uganda not capable being Pan Africanist Uganda?
A critical argument says no to Uganda's unitarism
My argument is that, Buganda's (and all other traditional nations) demand for a share in Uganda's state power is justified because Buganda, through a long history before colonialism, fought through blood and sweat to establish herself as an independent kingdom nation. It is this independence of Baganda as a people which is their human right of self-determination.
The 1894 British declaration of its rule over Buganda Kingdom did not take away the right of Baganda as a people to determine their destiny. The 1900 Agreement between Buganda and Britain did not take away and could not take away an inherent right of a people to determine their destiny. It could suppress it, as indeed it did but, it could not take it away, neither could it be signed away by some official claiming to represent Baganda.
The genesis of human rights
Human rights are the starting point in all issues of state power applications which claim to be legitimate. Federalism is a form of government that differs from the unitary form of government in the way state power is constructed to achieve national goals. In all these practices and debates, the main point should be the protection of human rights of the members of society to which a particular form of government is applied.
Why? Because to be human is not the gift you get from powerful fellow human beings. Therefore the rights that make you a human being are not a gift you get from powerful fellow human beings whether they are wealthy or technologically powerful than yourself. If this is the case, then colonialism would not have been wrong. Amin would not have been wrong because as a strong man he would have been perfectly within his rights to kill whoever he does not like.
If human rights are not inalienable but are given by the powerful in society, the state would be able to make legitimate laws that make rape right, not just illegal. Equally, everybody would be able to kill as they wish without it being wrong, let alone illegal. Above all, apartheid would have been right because, the whites of South Africa are more technologically advanced than the Africans. Indeed, Rwanda and Uganda should be rulers of Congo because their forces are more organised than the rag tug of Congolese military parties scattered across the big country.
The central issue in the debate on whether Uganda should be ruled under a federal form of government, or should continue under the unitary form of government that began in 1894 by the British imperialist state, is the fundamental human right of self-determination of traditional African communities which were independent countries before colonialism and, secondary, there is the whole raft of fundamental human rights that run from freedom of speech, freedom of association and subjection of government, particularly the military, to the will of the people from which all sovereign state power is derived.
Human rights do not start the day a dictatorial regime, under various pressures, realises that the best course is to stop violating a particular human right or rights. Human rights start with being human. This means that in prosecuting a case, whether it is that of removing an abusive system such as the unitary form of government as we have in Uganda or the Nuremberg trial against Hitler's crimes against humanity or Milosovic's human rights crimes committed in Serbia, currently proceeding in the Hague or the prosecution of genocide crimes of Rwanda, currently proceeding under the international court of justice in Tanzania, human rights are current, retrospective as well as prospective. They are universal both in the geographical and time dimensions. They are not a local issue but an issue of humanity as a whole. So Museveni cannot rely on the his usual diversionary tactic of form and substance, in which he claims that the Movement is a form of democracy holding the same substance as democracy in countries of multi-party democracy elsewhere.
Multiparty democracy did not emerge as a matter of cultural choice by Europeans or Americans or elsewhere as Museveni implies. It was the result of assertion of people's universal human rights for both self-determination and freedoms of various kinds including freedom of speech and freedom of association against dictatorial rulers and a dictatorial political culture such as the one we have in Africa in general and Uganda in particular.
Take the example of the female struggle to vote in United Kingdom, they lastly got it in 1928 but that was after women had rioted, unfairly imprisoned and violated in all sorts of manner by official organs and, one of the leaders had to take a suicidal approach when she threw herself in the horse carriage of the King and got killed. It is not a matter of cultural form or the choice by Europeans culture or Japanese or any other people, it is a matter of humanity and the consciousness and courage needed to force bullies out of the way in the running of public affairs of a country. It is however our duty to get this point through the thick skulls of dominant egotistic political leaders in the world, Africa and Uganda.
Dictators respond positively to a determined and courageous people who are united in their conception of the problem but they are very good in spotting those who misconceive their cause and take greater joy in contributing to that confusion.
The federal cause in Uganda and the assertion of our human rights is not yet clearly conceived in universal terms particularly by the so-called educated classes. This leads us into the assumption that dictatorship is only an internal matter yet some of the forces of dictatorship that keep us in dire straits are from international trade and politics.
Equally, the 1962 constitution or agreement, could not take away the right of Baganda to determine their destiny and indeed, this constitution recognised the right for all Ugandans for self-determination but, again, with special emphasis on Buganda Kingdom because, Kabaka, the traditional leader of the Baganda, rightly insisted that it should be the case.
Obote's dictatorship simply increased the suppression of self determination for Buganda and other peoples of Uganda and the 1967 constitution which, was a one-sided measure, could not and did not take away that right; it simply suppressed it by installing the one party dictatorship that gave birth to the brutal military party politics starting from Amin up to now under Museveni.
The 1995 constitution was made after wide consultations with the people of Uganda. The majority view was that, greater national unity of Uganda, which actually is a microsm of Pan Africanism, should be conducted within a federal framework for Uganda.
However the dominant elite who perpetuate versions of dictatorial unitarism, took over the constituency assembly process and made sure that the constitution did not include federalism but, gave some concession and provided for a half-hearted institution of Traditional Leaders (Article 246 of 1995 Constitution).
Self determination, federalism and unitarism
Self-determination is a human right for a people to rule themselves as opposed to being ruled by those from outside that community. Federalism is a form of government, which starts with the recognition of a people's human right of self-determination in self-government. Once the human right of self-determination has been recognised then it used as a base to construct a structure of administration that protects other human rights without violating self-determination. In terms of national unity federalism is a form of government, which seeks to unite communities that are in a position to give consent to the sharing of state power for specified purposes by remaining autonomous for the rest of its self-government.
An autonomous community recognises the autonomy of other neighbouring communities but by its own choice, it decides to share some, not all, of its state powers with these communities in order to achieve national goals of mutual interest.
It might be asked that what is state powers of self-ruling? Simple. A self-ruling community has control over its territorial boundaries. It has powers to make its internal laws, to set up its law courts, to manage its economic development by allocating resources and determining taxes for running of public institutions and government services. Above all, a self-governing community has power to determine its foreign relations with other neighbouring communities and beyond.
The colonial form of government and self determination
The external borders were not the result of existing communities coming together but the British negotiated it with fellow imperialists in Europe on the basis of the now historically famous Berlin West Africa conference 1884-85. This understanding between imperial powers was that, for any European state to claim sovereignty over a territory would be maintained if the territory had been acquired through a treaty, grant, usage, suffrance and other lawful means.
The agreements objectively stand as the clear evidence that these communities were autonomous and recognised as such by the British imperialist agents who acted as the second party to the so-called agreements. Agreements with the British were concluded with Buganda rulers, Ankole and Toro and with chiefs in Busoga and the northern part of the territory. Bunyoro had been defeated and Britain claimed sovereignty through conquest although later in 1933 an agreement was concluded with Bunyoro as well.
Human rights should be the starting point for all issues in which the application of state power is claimed to be legitimate. Equally, it should be the starting point in understanding the coming of Europeans to Africa and the subsequent controversial relationships in which we are the contemporary participants. In order to make sense of the developments that led to colonialism and thereafter we need to work the common thread between Europeans and Africans that is human rights. If we take to our own frolics, we might find ourselves running into absurdities even though we mean good.
The role of agreements
The Uganda Constitutional writer Prof G. Kanyaihamba (now a Judge) said that the analysis of some of these agreements would indicate that the rulers did not understand the treaties they were signing and even if they did, they did not have a choice to dictate their own terms. He observed Captain Lugard's agreement with King Mwanga (1890) in which the Company was to afford protection to the Kingdom and in return the Kabaka was to acknowledge the Company's suzerainty over this kingdom.
That it was stated that the agreements were made after due counsel and with the full consent of the chiefs of all parties of Mwanga's state. The Company was to afford protection to the Kingdom and in turn the Kabaka was to acknowledge the Company's suzerainty over his Kingdom. All Europeans resident in the Kingdom were to be subject only to the jurisdiction of the Company's agent. The Kabaka could not make treaties with or grant concessions to European powers without the agent's consent.
The agent was to be the ex-officio President of a Committee of Finance and Revenue which was responsible for the collection, assessment and apportioning of the revenue of the Kingdom. The Kabaka's army was to be organised by the Company's officials. The agent's advice and consent were necessary before Buganda could wage or undertake serious matters of state
H M Stanley was said to have made an agreement with Omugabe of Ankore's envoy and later Stanley gave the benefit of it to Lugard who represented the Company. The agreement said that "we (B) Uchunku, Prince of Ankori and Mpororo by authority and on behalf of my father Antari (Ntale) the King and the chiefs and elders of the tribe of Wanyankori occupying and owning the territory of Ankori and Mpororo do hereby cede to Bula Matari (H M Stanley), our friend, all rights of government of the said districts and do hereby grant him or his representative the sovereign right of government over our country for ever.
Kanyaihamba said that "it is apparent from the above examples that whatever the company and later on the British Government wanted, wished to procure by agreement from these rulers, it got without much difficulty. The rulers were not sophisticated enough to realise that in signing the so-called agreements and treaties they were giving away their birth rights and the rights of their subjects. At the time, said Kanyaihamba, they had no notion of what words like "ceding", "sovereignty" and "government" meant. Kanyaihamba then concludes that "in any case they were tricked by persons who called themselves their friends."
Kanyaihamba failed to distinguish two sides to the agreements and since we were all not present when these agreements were being made, like a court of law, we have to systematically decide how to interpret these agreements so that we discover whether they were agreements at all either through the meeting of minds of the parties or they can objectively be pronounced agreements on a rational evidence based foundation.
In assessing evidence of this kind we need to decide on the appropriateness of either of the two methods; the subjective method or the objective method. The subjective method, asks the question what did the parties think at the time when they were entering into the agreement, was there a meeting of the minds? If we take the case of Lugard and Mwanga to see at what point their minds met, we need to ask what each party intended. Mwanga intended to secure a working relationship with a group that appeared to and, had proved not only to have more sophisticated guns but had more organisational capacity in the emerging inflow of militaristic foreigners into the lake region.
The Kabaka could not give away the Kabakaship and then remain Kabaka. Lugard on the other hand, was an agent, not just of the company that financed his expedition but, he was a soldier of the British Imperial army. He had the served the empire in India and other places and when the capitalist William McKinnon wanted to enter the early multi-national trade into ivory and arms, who better to chose than this buccaneer. Lugard was also a patriotic imperialist of England and wanted to secure jobs and raw material for his country.
In subjective analysis it is what the subjects we are observing think or intended that we are interested in. What Mwanga understood by protection or later protectorate was not the ceding of his birth right or that of his people to self-determination but an alliance with Lugard the leader of a group with guns, materials and organisation capacity which can be relied on to maintain Mwanga's power in the Kingdom, in return for some trade and revenue sharing. What Lugard understood by the term protection was that Mwanga had ceded the human rights of his subjects to self-determination in self-government to him, because he is better equipment to rule and to turn this rule to the benefit of the British Empire. We can therefore see that there was no meeting of the minds between Lugard and Mwanga to the extent of ceding self-determination. The same analysis is likely to produce the same results in the case of Prince Buchunku of Ankole on behalf the Omugabe with the so-called Bula Matari Stanley.
The objective method of assessing evidence of this nature uses what is called "a reasonable by-stander" measure. First of all it has to be decided as to which part of the population to get the reasonable person. And what attributes that reasonable person should have before we rely on his judgment. A reasonable person in this case has to come from the Baganda and Banyankole population not the population from which Lugard and Stanley came from because what we are dealing with is that the Banyankole and Baganda through their leaders ceded their sovereignty to these imperialist agents.
A reasonable person in this context would be a matured Muganda or Munyankore who is familiar with the workings of the Kingship and the procedure of powers and duties in Kingship and how they relate to the subject population. Another attribute that a reasonable person to be included in the jury is that he or she must be fluent in Lunyankole or Luganda as the case may be. Once the attributes of a reasonable person are established, the question is what would a reasonable Munyankore or Muganda in the two respective cases have concluded as the intention of the Omugabe/Mwanga on one hand and Stanley/Lugard on the other hand?
A reasonable Muganda standing by at the time of Lugard/Mwanga agreement would have known that the Kabaka had no intention or the power to cede his sovereignty to Lugard to the extent of giving up his human right of self determination. He would have known that the power of Kabakaship is acquired in very elaborate traditional procedures that are started by the death of a previous King whose role of trustee and arbiter is hereditary. Also, that the holder of that office and that power in Kiganda terms has to be a descendent of the first King, Kintu.
Lugard was certainly not a descendent of Kintu and the agreement process was no where a traditional procedure of Buganda pertaining to how legitimate sovereignty is acquired. A reasonable Muganda or Munyankore would be one who does not read or write English to the standard of understanding international politics and treaties but would understand alliances and problematic situations of power when you are dealing with people who have more guns or spears than yourself.
On the other hand, a reasonable person in Lugard or Stanley's imperial communities in Europe would be one who understands that these Africans do not have guns and technological capacity to defend their property and land against European superior guns. Also, that the Africans could not have known the current international politics and treaties. Therefore an agreement with them was not one in which they expressed their free will to cede their sovereignty but it was simply a document for the convenience of European imperial designs and agreed methods at the Berlin West Africa conference 1884-5 in order to avoid armed conflict over Africa.
We can therefore conclude that whether we are talking about Buganda or Ankole in the above examples or the 1900 Agreement and other similar agreements with Chiefdoms and Kingdoms of Uganda, traditional leaders did not cede the sovereign rights of their people to self-determination because firstly, this is a human right and cannot be ceded.
A human right can be violated, that is why we need state power to protect these rights but, it is not given by the state or kingdom or the King as representative of the whole society. Unless, we are talking about dictatorial thinking, it is impossible for these traditional leaders to have given away what they did not have in the first place.
Secondly, it would be intellectual dishonest to say that the traditional leaders, even though they were the weaker parties, did not intend some sort of alliance for purposes of acquiring materials and guns to strengthen their powers. In return, they were willing to allow these imperialist agents to trade and do business in their Kingdoms.
Thirdly, the imperialist agents wanted to extract economic profit from these lands as cheaply as possible in order to meet the capitalist industrial society pressures in Europe. In order to do so effectively, they had to have state power so they created the colonial state using mainly deceit, fraud, intimidation and force. This meant that peoples human right of self-determination was violated. In principle, these tactics would render agreements or contracts null and void and deemed to be fraudulent. No doubt, we wouldn't want to dwell on that suffice to say that we should not let a wrong committed those many years continue to be perpetuated. My view is that a federo system would go a long way in addressing this wrong that generations have suffered.
In order to mitigate this violation, the 1900 Agreement provided a federal status for Buganda, a quasi-federal arrangement for Toro, Bunyoro, Ankole and Busoga while the remoter regions where ruled directly.
During the 68 years of colonial rule a cash crop economy was created and this brought about some fundamental changes to the traditional communities. The system of production, exchange and consumption was firmly put on a capitalist market framework. Insider this economy different classes were introduced. The Baganda became the class of smallholder farmers and local civil service chiefs and clerks. Northern communities and some southern communities became farm workers, military sentries. An Indian class was introduced to carry out middleman function in the colonial capitalist commerce. This is your modern connection and it is very much to do with international trade in which Uganda sales raw material of lower prices and has to import modern machinery of high prices thus permanently indebted. It is this modern section, which is blocking the development of federalism because the minority who control it extract the most lucrative booty.
Self-determination and the role of the constitutions of: 1962, 1967 and 1995
All constitutions that claim be legitimate are not above human rights but subject to the universally acclaimed rights of people. The 1962 constitution recognised the mixed constitution of federal and elements of unitarism.
The 1967 represented the spirit of totally disregarding of the human right of self-determination for the traditional communities and introduced a dictatorial form of unitarism.
The 1995 constitution recognised the institutional of Traditional leader but did not recognise the human right of self-determination of the traditional African communities of Uganda. It however introduced what is called unitary decentralisation. Yet as we have stated above the Constitutional Commission that preceded it, reported that 65% of all Ugandan preferred a federal form of government while 97% of Baganda preferred a federal form.
Outline of the unitary system
1. There is one constitution for Uganda, which includes the principles and powers and limitations of the local governments.
2. There is one parliament at the national level but local governments have councils with councillors and executive chairman.
3. Powers of local government and services can be changed by parliament and are not entrenched.
4. There is a Minister of Local Government to whom local governments are indirectly answerable.
5. Amendment of certain provisions in Chapter 11 of the constitution regarding whether local government should remain a district based structure will not be passed unless it has two-thirds of all members of parliament [Article 260 (1)(a)] and unless it has been ratified by at least two-thirds of the members of the district council in each of at least two-thirds of all districts of Uganda [Article 260 (1)(b)].
The transition from unitarism to federo
2. The report of the Uganda Constitutional Commission (1993) observed that it is possible to identify the commonly agreed upon characteristics which are essential to the federal form of government. We are going to state those common elements here as a guide to how the outline of the federal arrangement might be.
3. The central government will have some exclusive powers enshrined in the federal constitution and equally the federal states (northern, eastern, central and western) will have exclusive powers recognised and entrenched in the federal state. Entrenchment means they cannot be changed unilaterally by the central government or by federal states without going through, normally, a qualified majority procedure of the identified stakeholders.
4. Each federal state will have its constitution, which must not contradict or water down the provisions of the federal constitution.
5. Each federal state will have its fully-fledged government with its own leader of government, ministers, courts and state legislature.
6. Each federal state will raise its taxes both for its own finances and for the services of the federal government.
7. There might be an arrangement for two houses of parliament in the centre. One House will be for representing a population quota constituency and the other Upper House of Uganda might be for representing each federal state on an equal basis regardless of the size population size of the state.
8. To amend the national constitution there will be a clearly defined procedure requiring approval of the suggested amendment by either two-thirds of the federal states and/or the approval of any federal state being directly affected by the proposed amendment.
9. The Uganda Federal Supreme Court (Constitutional Division) will be set up under the Federation Constitution. It will be vested with the power of final decisions in settling constitutional disputes between the central government and the federal states.
10. The Federation's capital will have to be clearly defined in the constitution and its administration by the central government according to special provisions in the constitution.
Will be continued.
