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By
Robert Sejjengo
This
is an abridged article that appeared in Uganda Review, a newsletter that
is published in the United Kingdom
Content
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
1.
Today Uganda is made up of 56 districts. In the federal framework they
will be replaced by internal states either on a regional level such as
the Northern State, Eastern state, Central state and Western State and a
central federal capital district for the seat of Federal Government of
Uganda or the Regional states will be broken into the traditional
African communities of Acholi, Ankole, Buganda, Bugisu, Bukedi, Bunyoro,
Busoga, Karamoja, Kigezi, Lango, Madi, Sebei, Teso, Tooro and West Nile.
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.
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