Buganda's Ghost

Exorcising
The Inexorcible Buganda Ghost

Hoodwinked, Dumped, Used and Re-Dumped
A Quest for Buganda's Cause for Buganda's
Independence.
Isaac Christopher Lubogo

Exorcising the Inexorcible Buganda Ghost: Hoodwinked,
Dumped, Used and Re-Dumped; A Quest for Buganda's Cause
for Buganda's Independence.
© 2022 Isaac Christopher Lubogo.
The right of Moses Ali to be identified as the author of this book has been
asserted by him in accordance with the Copy right and Neighboring Rights
Act, 2006.
All rights reserved. No part of this publication may be reproduced or

transmitted in whole or in part in any form or by any means, electronic or
mechanical, including photocopy, recording or any information storage and
retrieval system, without permission in writing from the author.
First Edition 2022

ISBN: 978-9913-633-28-4
First published in Uganda by:

Jescho Publishing House
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Luwum Street, Kampala (U), East Africa.
Tel: +256 393 256 545, +256 782 395 293
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Table of Contents
Exorcising
The Inexorcible Buganda Ghost
Dedication..............................................................................................ix
About the Book ...................................................................................... x
Buganda Anthem ................................................................................. xiv
Luganda lyrics ................................................................................................ xiv

English translation ......................................................................................... xvi
CHAPTER ONE .................................................................................... 1

Buganda the Magnificent....................................................................... 1
Role of Chartered Companies in the Early Demarcation of Spheres of

Influence had the Following Influence. ...........................................................7
The Origins of the Buganda Kingdom ......................................................... 10
(B)Ugandas and Her “Visitors”..................................................................... 15
European Invasion of Buganda ..................................................................... 17
The Berlin Conference .................................................................................. 20
Capt. Fredrick Lugard ................................................................................... 24
Gerald Portal .................................................................................................. 30
Henry Edward Colville .................................................................................. 33
Religious Wars in Buganda 1885-1900 ......................................................... 35
Causes of Religious Wars .............................................................................. 36
The Course of the Battle of Mengo in 1892 ................................................. 38
Effects of the Battle in Mengo in 1892 ......................................................... 38
iii
Exorcising the Inexorcible Buganda Ghost: Hoodwinked, Dumped, Used and Re-Dumped;
A Quest for Buganda's Cause for Buganda's Independence.
CHAPTER TWO ................................................................................ 41

The 1900 Buganda Agreement............................................................ 41
A Break-Down of the 1900 Buganda Agreement and its Legal Implications

.........................................................................................................................48
Hardening of Buganda as to its status and interests from 1958 onwords on
aspect of federalisim tendencies. ....................................................................71
Origins of the Buganda Land Board. .............................................................91
The Crown Lands Ordinance, 1903 ........................................................... 101
Red Flags of the 1900 Buganda Agreement ............................................... 107
The Ugandan Legal Meaning of a Contract............................................... 107
Applicability of The Tests of a Valid Contract on The Buganda

Agreement Of 1900 ........................................................................... 109
Offer (Was there an offer between Buganda and the British) ................... 109
Capacity to contract (did the parties have the capacity to contract) ......... 111
Applicability Of The Test Of Capacity To Buganda ................................ 114
Mistake as a vitiating factor as regards to the 1900 buganda agreement ... 119
Misrepresentation as a vitiating factor in the singing of the 1900 buganda
...................................................................................................................... 125
Duress and undue influence as the vitiating factor rendering the 1900
buganda agreement a voidable agreement. ................................................. 135
Unconscionable burgain in the Buganda agreement as a vitiating factor. 139
CHAPTER THREE ........................................................................... 142

Uganda Order- In- Council, 1902 ..................................................... 142
iv
Application of the 1902 o-i-c in terms of constitutionalism ..................... 146

The imposition and operation of colonial rules/administration 1902-1920
...................................................................................................................... 148
CHAPTER FOUR ............................................................................ 154

Developments in the Protectorate from 1920-1930s ...................... 154
The Asian question – political representation and economic interests .... 154
The bataka/ peasantry grievances over land provisions under the 1900
agreement ..................................................................................................... 156
CHAPTER FIVE ............................................................................... 158

Un Masking of Colonial Rule, 1945-1960....................................... 158
The 1955 Namirembe Agreement .............................................................. 163

The Paradox: Uganda Versus Buganda ...................................................... 168
The Kabaka Yekka (‘The King Alone’) Movement, 1961–196 ................ 172
Movement towards independence representation and commissions. ...... 175
Hardening of Buganda as to its status and interests from 1958 onwards. 179
Report of the minister commission, 1961 .................................................. 181
Chapter six ......................................................................................... 184

The First Kabaka Crisis in Uganda 1953 To 1955 ......................... 184
CHAPTER SEVEN ........................................................................... 188
Constitutional Development in the Uganda Protectorate from 1961-
62 ........................................................................................................ 188
First constitutional conference at Lancaster ............................................... 188

Independent Uganda- grappling with the constitution (1962-1965) ....... 192
v
CHAPTER EIGHT ............................................................................ 198

Second Kabaka Crisis of 1966 ........................................................... 198
The immediate causes and events underlying in 1966 Uganda crisis ........ 198
The salient features of the 1966 interim constitution................................ 200
The impact of the 1966 Uganda (kabaka) crisis ......................................... 200
CHAPTER NINE .............................................................................. 202

Understanding the history and the facts about the Buganda agreement
of 1900, whether it was a valid agreement. ...................................... 202
Indirect consequences of the 1900 Buganda agreement on Buganda and unto

Uganda ......................................................................................................... 206
The 1900 Buganda Agreement ................................................................... 207
Reinstitution of traditional rulers ............................................................... 209
The estimated rights that would have been given to the restored traditional
leaders ........................................................................................................... 221
Buganda Agreement: A check on pre-colonial powers. ............................. 222
The Agreement: A check on reinstitution of rulers. .................................. 225
Condoning of Kampala (Kampala in Buganda not for Buganda) ............ 230
The relationship of Kampala city to Buganda kingdom ............................ 231
Reasons Why Kampala district be part of Buganda ................................... 231
Pre-colonial and Colonial Kibuga (City) .................................................... 233
The Fall of Mengo (Rise of Kampala) ........................................................ 235
Kampala after Independence ...................................................................... 237
1900 Buganda Agreement: A check on Kampala....................................... 239
vi
CHAPTER TEN ............................................................................... 242

The Third Kabaka Crisis (The 2009 Kayunga Crisis, Burning of
Kasubi Tombs, Kabakas Birthday)................................................... 242
The Kayunga-Bugerere Kabaka crisis 2009 ................................................ 245

The burning of Kasubi tombs ..................................................................... 249
The Kabaka 66th Birthday- Coffin Cake Debacle ..................................... 250
The Birthday Coffin Cake Saga. ................................................................. 253
The Federo Question Of Buganda.............................................................. 256
Distinguishing Federo From Federalism..................................................... 256
The legal basis of Buganda’s demand for federo ........................................ 282
Some reflections on the way forward .......................................................... 288
Restitution of assets and properties (Ebyaffe) ............................................ 290
A distinction between the Kabaka as an entity and as a person ................. 302
The consequences of the 1900 Buganda agreement unto Buganda land as per
article 15 ....................................................................................................... 303
CHAPTER ELEVEN ........................................................................ 321

The Legality of the Buganda Land Board ........................................ 321
Legal variation of mailo land ....................................................................... 326

Customary land tenure system .................................................................... 327
Mailo Tenure System................................................................................... 328
Leasehold Tenure System ............................................................................ 329
Free Hold Tenure ........................................................................................ 330
Pre-Colonial ................................................................................................. 340
Colonial Period ............................................................................................ 343
Post-Colonial Period ................................................................................... 348
vii
Land tenure in colonial and Post Colonial Uganda ................................... 350

The Land Reform Decree, 1975 – Influence on Customary tenure system
...................................................................................................................... 356
CHAPTER TWELVE ........................................................................ 367

A check on the Indispensability of the Kabaka: A fallacy .............. 367
The position of the Kabaka during the Post-Colonial era “before 1894” . 371
The position of the Kabaka in the” Colonial era” ...................................... 372
The position of the Kabaka in the” Post-Colonial era” ............................. 373
Demystifying the over wielding powers of the Kabaka.............................. 374
CHAPTER THIRTEEN ................................................................... 378

Buganda Agreement Void Ab Initio or Voidable in Law ................ 378
Whether the 1900 Buganda agreement is void abnitio or vioidable .......... 378
Vitiating factors in the 1900 agreement ...................................................... 382
Remedies taunting the inexorcible Buganda ghost .................................... 386
REFERENCE ..................................................................................... 390
viii
Exorcising the inexorcible Buganda ghost: Hoodwinked, Dumped, Used and re-dumped; A
quest for Buganda's cause for Buganda's independence.
Dedication
Oh God, Even my God my Hish Tower, my refuge, my Redemeer,my only

source of hope. This and many more is for you Oh God of the mighty
universe.
ix
Isaac Christophher Lubogo
About the Book
Exorcising the inexorcible Buganda ghost: Hoodwinked, Dumped, Used and

re-dumped; A quest for Buganda's cause for Buganda's independence.
Buganda in response to their proposals, were invariably faced either cynical
deception.
What went wrong? Where did this insolent manner of talking down from the
height of their exceptionalism, infallibility and all-permissiveness come from?
What is the explanation for this contemptuous and disdainful attitude to
Buganda interests and absolutely legitimate demands?
Buganda has grown weaker and subsequently broken apart. That experience
should serve as a good lesson for Buganda because it has shown us that the
paralysis of power and will is the first step towards complete degradation and
oblivion. Buganda lost confidence for only one moment, but it was enough
to disrupt the balance of forces in the Uganda.
As a result, this book will argue that the old treaties and agreements are no
longer effective. Entreaties and requests do not help. Anything that does not
suit the dominant state, the powers that be, is denounced as archaic, obsolete
and useless. This redivision of the world, and the norms of international law
that developed by that time and the most important of them, the
fundamental norms that were adopted following WWII and largely
formalised its outcome came in the way of those who declared themselves the
"bread servers" under the scramble and partition of Africa.
Of course, practice, international relations and the rules regulating them had
to consider the changes that took place in the world and in the balance of
forces, especially the 1900 Buganda agreement, should have been done
professionally, smoothly, patiently, and with due regard and respect for the
x
interests of all states and one’s own responsibility. Instead, we see a state of
euphoria created by the feeling of absolute superiority, a kind of modern
absolutism, coupled with the low cultural standards and arrogance of those
who formulated and pushed through decisions that suited only themselves.
The situation takes different turn.
These Western colleagues (and their cronies) prefer to forget what they did,
and when we mention the event, they prefer to avoid speaking about
international law, instead emphasising the circumstances which they
interpret as they think necessary.
This so called 1900 buganda agreement has pushed Uganda towards a

humanitarian catastrophe and into the vortex of a civil war, which has
continued up today.
The type of colonial con-artist behaviour was contrary not only to the
principles of international relations but also and above all to the generally
recognised norms of state sovereignty they used devide and rule.
This book offers no illusions in this regard and is extremely realistic in my

assessment, further expansions of the Chinese influence deepen the Buganda
question even more. For the colonialist it was obvious geopolitical dividends,
for our country, it is a matter of life and death, a matter of our historical
future as a nation.
The Buganda question is not an exaggeration; this is a fact; it is not only a very
real threat to our interests but to the very existence of our state Uganda and
to its sovereignty.
No doubts several red lines have been stepped over on numerous occasions.
The cause and effect are that there should be no "staged coup" like the
backfired " coffin cake " saga and third Kabaka crisis only and only
ornamental election procedures towards the path of peace should be pursued.
Buganda all must and should be done by peaceful political means.
xi
It is Buganda's it is their aspirations, the feelings and pain of the people that
is the main motivating force behind their decision to recognise the
independence of Buganda.
Although Buganda may have accepted the new geopolitical territorial gains
and loses, it should never lose its sovereignty and independence. We need to
respect the will sovereignty of Buganda. Buganda has faced tragic events and
a challenge in terms of its statehood and integrity.
Buganda cannot feel safe, develop, and exist while facing a permanent threat
of its terrorial rights and sovereignty. The purpose of this book is to protect
and remind the people of Buganda who, for over 700(seven hundred) years
now, have been facing humiliation and genocide perpetrated by colonial
legacy.
To this end, they as a people will seek to redeem, find and take back their "
righteous God given sovereignty." It is not my desire plan to advocate for a
Buganda territory. I do not intend to impose anything on anyone by force.
At the same time, but history has it of a number of statements coming that
what ever " documents" particularly the 1900 agreement was a mere puff from
the colonialist and there is no need any more to abide by the documents
setting forth the outcomes of World War I and II, as signed by the totalitarian
western fascist, racial regimes, this book asks that magic question... How can
Buganda respond to that?
A nation like Buganda should enjoy the right to self-determination, which is

enshrined in Article 1 of the UN Charter. Freedom guides our policy, the
freedom to choose independently our future and the future of Bugandas
children, Buganda must be able to enjoy this right to make a free choice.
In this context I would like to address the unsettled Buganda question,

Buganda is obliged to protect her sovereignty from those who stole it from
them, their choice is in favour of being with their historical homeland,
asoveign independent Buganda. The current events in Buganda and Uganda
generally have everything to do with a desire to excorsize this in settled
xii
"Buganda ghost" in quest for its independence which has existed for over
700(seven hundred) years. Those who took Buganda hostage and used it
against them and Uganda, played a very unfair "game" used legal social
contracts like the order in council, inception clauses, reception clauses and
particularly the 1900 Buganda agreement which for all intent and purposes
were done with a Minor, (Daudi Chwa) and compromised reagents with no
legal authority and therefore no contractual capacity, biased, taintated with
malafide, frivolous and vexatious only to serve their own selfish ends. To use
Kabaka Frederick mutesa words "we are acting to defend ourselves from the
threats created for us and from a worse peril than what is happening now"
(emphasis added)
By allowing buganda to be used as a staging force to corce uganda and allign

british intrest along the nile basin valley led to interfere in Bugandas affairs
while strengthing Buganda from within as a single whole, but weakening
Buganda from outside, the British exploited Buganda's best weakness "
expansionist " tendency and prayed on Buganda's desire to extend its boarders
from mere three counties to its present almost 20 but at the expense of its
sovereignty and independence.
The book also addresses the loss of military force of the Bambowa, reducing
the once best naval force in the interlacustrine area into mere " Byoya by a
nswa" The Buganda fathers, grandfathers and great-grandfathers did fight the
occupiers and did defend their common Motherland to allow today’s
continued neocolonialism to seize power in Buganda is to hoodwink, use,
dump, use re-dump Buganda.
The Kabaka swore the oath of allegiance to the Buganda people and not to
the colonial government, the people’s adversary which plundered Buganda
and humiliated the Baganda people. I want to emphasize again that all
responsibility for the possible loss of independence of Buganda will lie fully
and wholly with the leaders of the time.
xiii
Buganda Anthem
Uganda achieved independence on 9 October 1962 with the Kabaka of

Buganda, Sir Edward Mutesa II, as its first president. However, the monarchy
of Buganda and much of its autonomy was revoked, along with that of the
other four Ugandan kingdoms.
L U G AN DA LY R IC S
Chorus
Twesiimye nnyo, twesiimye nnyo
Olwa Buganda yaffe
Ekitiibwa kya Buganda kyava dda
Naffe tukikuumenga
Verse 1
Okuva edda n'edda eryo lyonna
Lino eggwanga Buganda
Nti lyamanyibwa nnyo eggwanga lyaffe
Okwetoloola ensi yonna
Verse 2
Abazira ennyo abatusooka
Baalwana nnyo mu ntalo
xiv
Ne balyagala nnyo eggwanga lyaffe
Naffe tulyagalenga
Verse 3
Ffe abaana ba leero ka tulwane
Okukuza Buganda
Nga tujjukira nnyo bajjajja baffe
Baafirira ensi yaffe
Verse 4
Nze naayimba ntya ne sitenda
Ssaabasajja Kabaka
Asaanira afuge Obuganda bwonna
Naffe nga tumwesiga
Verse 5
Katonda omulungi ow'ekisa
Otubeere Mukama
Otubundugguleko emikisa gyo era
Bbaffe omukuumenga
xv
E N G LI SH TR AN S LA T I ON
Chorus
We are blessed, we are blessed
For our Buganda
Buganda's pride dates back in time
Lets also uphold it forever
Verse 1
Since time immemorial,
This country Buganda
Was known by all countries
The world over
"Verse 2" The brave who came before us Fought a lot of wars and loved this
country a lot So we should also love it
"Verse 3" Let the current generation fight to uphold Buganda as we remember
our ancestors Who died for this country
"Verse 4" How will I sing and not praise The King He deserves to rule the
whole of Buganda So let's trust him
"Verse 5" Lord God of kindness Help us Lord And pour your blessings And
keep our king
xvi
xvii
CHAPTER ONE
Buganda the Magnificent

Buganda just like the Zulu kingdom was abuetiful, organized centralized
state, infact so orgnised was it that it had the best naval army around the Lake
Victoria, it had acentral head figre in form of the Kabaka, a person who
wielded a lot of authority in this kingdom that has been exixtent for over
700(Seven Hundred years)
In his interview1 with prof. Afuna Adhula, seasoned scholar Mahiri

Balunywa argues that Prof Mukandala (2003) described Kings as stationary
bandits. He argued that Kings were individual actors who usurped people
power, property and all the factors of production. They suppressed the weak,
dominated them and forced them into submission. The subjects became
providers of wealth and all the basic necessities to the Kings. Thus, Kings
became stationary bandits to grab whatever they wished. Mukandala said the
other category of bandits are the roaming bandits. These once in a while raid
the wealth and properties of the weak, which they amass and then start
1
Interview of Oweyegha-Afunaduula (OA), a Conservation Biologist and burgeoning
academic, Mahiri Balunywa (MB), an Admnistrative Management Executive by profession
and Political Scientist.
1
boasting that they are rich. That is what Marx and Angels describe as
"Primitive accumulation of wealth". Today we call them kleptocrats.
in scholarship we respect all shades of thoughts, whether this is true or not

perphaps the better question is how did Kings acquire wealth and acquire
properties, including land, since they don't work? Where do they get power
to dominate the weak? These people historically have imposed themselves
onto the subjects and coined theories to justify their hegemony.
There seems to be some grain of truth in what he says. However, we need to

distinguish between divine Kings and Earthly Kings,
One would argue that “Divine Kings” If there is any thing like it were
crowned by God with a special message to humanity. They never ruled but
managed society on behalf of God. The few moments they attempted to go
contrary to God's mission, God dethroned and punished them.
Earthly Kings fabricated theories of indispensability, royalty and heredity.

Our current Kings to the centrally are more of business entrepreneurs and the
chiefs they appoint are more of agents of primitive accumulation of wealth.
On this note Vaughan (1980) argues that in some societies king’s ascent to
Kingdoms through slaying previous kings. He says there two accepted ways
in which Kings are made or replaced. First, through institutional regicide.
Second, through ritual regicide. Institutional regicide is when members of
society accept the leader as King. Ritualistic regicide is where the King accepts
his fate and descends from the throne.
Civilization according to mahiri balunywa2 there fore becomes

fundamentally a process, not an event, which society goes through as it
progresses from one stage of social development to another. It is a way of life
2
Interview between Oweyegha-Afunaduula (OA), a Conservation Biologist and burgeoning
academic, Mahiri Balunywa (MB), an Admnistrative Management Executive by profession
and Political Scientist.
2
that humanity adopts at any one epoch to meet its greatest social
development and organizational needs.
He further argues that the ancient civilization of China dates back to 4000
years and has been ranked as one of the four great ancient civilizations of the
World and orthers like Egyptian Civilization, Babylonian Civilization and
Indian Civilization.
Balunywa Mahiri further argues that Archaeological facts by Dr. Leakey and
his wife, using carbon dating of fossil rocks excavated not far from the Busoga
Basin over the years, support their view that Africa, in this case Eastern Africa,
was the cradle of humanity and civilization. he adds that civilization does not
begin with Man himself but with what he does. Remember that Man is part
of the Mammalian, a subgroup of group of the Animal Kingdom, Animalia.
This means Man was there in the past and continued in the present. Man,
only entered into the civilization discourse when he began doing things that
distinguished him from other animals; things like making tools to do work.
This is what Darwin describes as man's transition from Home erectus to
Homo sapiens, Darwin has described Man's original use of 4 legs and his
transition to using two legs to walk and releasing the front two former legs to
do work and manipulate things to make other things, taking advantage of his
big brain. We now call those former legs hands. We refer to this transition as
the beginning of human civilization.
Joseph, Needham, a historian of Chinese Science and Technology, and

professor at Cambridge University, notes that Chinese civilization was ahead
of Western civilization in every discipline of science and technology. He
argues that Western civilization began recently as an offshoot of Babylonian
Civilization during the era of Columbus. I want you to note that Babylonian
civilization is a construction of European Civilization. This, therefore, means
that, going by Needham's argument, Chinese civilization came before
Babylonian civilization.
3
Mahiri argues that he tempted to believe that China's civilization is much

older than Babylonian civilization. This is because archaeological studies
reveal that about 500 years ago the Chinese entered the age of patriarchialism,
which saw the emergence of villages, cities and agricultural pre-production in
China. In this augment Shenong tested many types of plants for food and
herbal medicines to cure diseases. He adds that ancient Egyptian civilization
dates way back to the emergence of humankind, which demonstrated how
the ancient Egyptian Pharaohs long discovered how their bodies could be
preserved for 1000 years or more. Archeological studies revealed that their
ancient tools of production were far more ancient than those of the other
civilizations.
Civilization was basically associated with the level of knowledge achieved and
the wisdom with which human society progressed. Today, civilization has
been deconstructed to mean hegemony, dominance, repression, suppression
and oppression of the weaker human societies. What used to be vices in the
past are now pursued as virtues. When the Europeans made effort to improve
their social development and progress they engaged in forced labor, which
you have rightly described as slave trade, they came to Africa and suppressed
African civilization, imposed Western civilization and plundered the
Continent's resources. They did the same in other parts of the World. They
destroyed African Kingdoms and societies and glorified primitive
accumulation of wealth, which is robbery.
Therefore, European civilization is associated with all the vices of global

capitalism, its creation, and manufacture of deadly weapons for emasculation
of humanity. Using the level of capitalist development in the different parts
of the World, Western Civilization refers to itself as the First World and those
of Asia as the Second World. Africa, where human civilization started, is put
in the Third World, or sometimes, Developing World.
Mahari postulates this with one small book he read some 20 years ago by
George Orwell. This book has the title -Animal Farm. In this book animals
resisted the farm manager because of his inhuman rules. The pig was elected
4
as head of animals and was subsequently appointed as a leader in a revolt,

which saw the farm manager thrown off the farm. Unfortunately, the pig
began doing exactly what the farm manager was doing. This confirmed the
common phrase of the Bourbons in France having leant nothing and
forgotten nothing.
The postcolonial leaders fought against European Civilization and

colonialism. However, when they came to power they used Europeans, not
only to kill fellow Africans, but also plunder the way Europeans did and
suppress African culture. Today they are the agents of European ideas such
as globalization, modernization, westernization, privatization and
commodification. They are facilitating recolonization of Africa and
reinventing slave trade, under the facade of getting jobs for their people they
have failed to employ. They are looting their countries the way Europeans
did.
Individuals are part of the greater social structure. As people come together,
they set customs and laws, which govern them. This is what we call private
relations among members of the community. In the legal profession, this is
what they describe as the private law, which concerns relations among people
who live together. This is different from public law, which regulates relations
between individuals and the State-Government.
We have seen that Man is part of the mammalian subgroup of Kingdom

Animalia. What makes Man different from other mammals is his capacity to
be civil; which means being part of the social order and social cohesion. Man
should think and act for the betterment of society. If any member of the
Species of Man does not contribute to the betterment of society, then it
means he or she is not civilized and needs to be civilized. He must undergo a
process of civilization too. This is particularly important for those who are
leaders of others because they must serve as the examples of who civilized
people are.
5
The African setting was in of extreme diversity with structures of government

reflecting the different levels of development. There were centralized and
decentralized structures of society, and while some of the societies are
developed class-based systems, most of them were communalistic; it’s the
layer future that defines the forms and structures of governance as well as
relationships between individuals. Social values placed the individuals within
the family. Kinship, clan, tribe (historically incorrect term) national, from
which all his/her life revolved (land, marriage, penalties.) at the simplest of
structures of governance was leadership based on age-sets and the council of
elders and clan system. The more complex forms of political organization
were evident in the more centralized societies ruled as kingdoms and
chieftaincies (prominent in the interlacustrine region) where the kings
exercised absolute power in appointments, land distribution, judicial
decisions, etc. (e.g., Buganda). It was these kingdoms that given the developed
state of structures of government, that the colonial power could apply the
policy of ‘indirect rule’
The pre-colonial societies that occupied geographical entities today known as

Uganda, Tanzania and Kenya basically existed as autonomous and semi-
autonomous institutions of governance. The process by which these entities
were transformed new states created under colonial rule caused serious
destruction of the social and political of these entities. This coupled with the
introduction of new (alien) forms of government was to have a lasting impact
on the structures and substance of government in the colonial and post
colonial periods (evident even to present day)
The scramble for Africa at the dawn of the 19th century, which pitted the
major European powers against each other, was eventually settled through an
international conference in Berlin in 1884. However, prior to the Berlin
conference, the powers had already effectively secured spheres of influence
and the conference only served to give effect to demarcation of territories.
The major actors in the partition were Britain, France, Germany, Portugal,
and Belgium and to an extent Spain and Italy.
6
East Africa was invariably one of the main spheres of influence where hitherto
relations that had developed with the sultan of Zanzibar and subsequently
through the activities of the missionaries. Explorers and chartered companies.
The early colonial history of the three territories (Buganda, Kenya, and
Tanganyika) is largely similar in several respects, although there are also
certain distinctions. The imposition of colonial rule and authority bore
certain features:
ROLE OFC H AR TE R E D C O M P AN IE S IN TH E E AR LY
D E MAR C AT ION O F S P H ER E S OF I N F LU EN CE H AD TH E
F OL LO W IN G I N F LU EN CE .
Imposition of colonial rule (powers, phases of administration, mode of

administration, indirect rule agreements, legislation, O-I-Cs) nature of
administration; harsh taxation, forced labor – structures (commissioners,
governors, local chiefs, executive’s co, leg co, courts e.t.c. Civilization
character of rule (repugnancy doctrine and African social values, missionaries
and religion) conflicts, education- schools, health- dispensaries, hospitals,
commerce and trade. Cash crop economy – banks, loan- schemes, local
administration. Land question (settlers and alienation, crown land and
Butaka, etc. Political and constitutional developments (instruments and
constitutional ‘ideas, political parties, African representation and preparation
for self-government).
For the country today referred to as Tanzania, its constitutional history

began with the establishment of German rule, in mainland Tanganyika and
kingdoms of Ruanda- urundi. Germany rule was basically established
between 1886- 1890, and would last until 1914 – 1916. The mechanism used
to establish the rule was by use of a chartered company (Germany east Africa
co.) under the GEAC rule, life was harsh and administration was ruthlessly
affected. The labor policy was based on force and land was alienated from the
local people as the basic economic being of the territory moved from
7
traditional subsistence farming top commercial plantations. Because of the

harshness of the company administration, the Germany government stepped
in indirectly and established its own over rule. The colonial administration
was represented by a governor, assisted by an advisory council, whose main
role was making laws and financial appropriations.
The territory as divided into 21 districts with each of them under a district
commissioner. The DCs were assisted by the Akidas who had control and
responsibility for maintenance of law and order and resolution of
cases/disputes (magisterial powers under pockets of villages). The Akidas
were likewise assisted by the jumbes who were basically the village head men
and they performed the same functions (this represents the Germany version
of indirect rule). Direct rule was imposed on all districts except the district of
Bukoba, which together with Ruanda- urundi, more less retained their pre-
colonial methods of authority and a system of indirect rule despite Germany
efforts to crush this.
When the German rule ended in Tanganyika, soon after the hostilities started
in 1914, part of the territory was placed under military administration by hoes
byatt. In 1917, he was appointed administrator of the liberated parts of the
territory, and by 1919, he took over the whole of the territory. Subsequently,
Tanganyika was placed under a mandate with Great Britain as a mandatory
power, under which it remained until independence in 1961. British as
formalized in 1920 via the Tanganyika order- in council 1920(legislation by
the queen)
On the other hand, Uganda has many similarities with the history that
characterized the birth of Tanzania and Kenya. The source of the Nile and
economic –strategic interests had already ignited colonial rivalry over East
Africa. But the rivalry in Uganda probably was fostered initially in the
character of religion, whose very intensity would threaten social order within
the territory, particularly in Buganda. The Protestants and catholic
missionary groups were engaged in a religious rivalry which in underlying
tones political rivalry was given the backing powers- Britain and France. It’s
8
pertinent to say that from the outset of the existence of Uganda ads a state,
politics and religion was inter-related as early through the missionary
influence in Uganda.
The religious groups that emerged dominant were the protestant and it
would also become the dominant force in the political evolution of the
colonial and post-colonial state in Uganda. The religious factor would
permeate the social life (schools, hospitals, etc) and political parties of
Uganda’s history even up to the present day (although the Arab influence
itself gave birth to the minority religion of Islam, and which in the Amin
political period gave the Muslims a dominant role). The struggle among the
religions in Uganda’s political and constitutional development has thus been
a salient feature of our country.
The religious factor was in its early form prominent in the seeking of favors
of the kabaka by the missionary groups in Buganda. Eventually after the
resolution of the religious conflict in Buganda and after a brief period of
administration by the IBEACO, and the wars of resistance (especially in
Kabalegas’ Bunyoro and Mwanga’s Buganda) had been subdues, the British
flag was erected in Uganda for the first time on 1st April 1893 at fort Lugard
(old Kampala hill). The protectorate was declared a year later, and between
1894-1900, the British consolidated their administration and overrule over
the protectorate. In 1900, the British entered into an agreement with
Buganda (ruling faction) Buganda agreement) whose significance was to
pervade most of our colonial and post-independence period in both political
and constitutional terms.
Being a subject to oral history, being passed down to generations by the elder
groups of society, it is rather not surprising how these major two stories
among others have happened to take shape in several other different versions
of history. During the 16th century, Buganda began its 300years of territorial
expansion annexing and conquering a number of chiefdoms and expanding
from three provinces to twelve by the 1800s.
9
Buganda however had not always been the dominant power in that area as
many have preached and believed. Although written history before the 1800s
is scanty, archaeological evidence suggests that humans lived in the present-
day Uganda from between 50,000 and 100,000 years.
These should have been organized in three political organizations. A caste

Based Hima system in what would become South west Uganda and Rwanda-
Burundi, a Bito system in Bunyoro in which power was accessible to all, and
the rotary albeit centralized system that evolved in Buganda.
Even with the conquering theories of how Buganda as a kingdom primarily

came into existence, the kingdoms ghost of expansion and political as well as
economic
T H E O R IG IN S O F TH E B U G AN DA K IN G D OM
Today, Buganda is located in the South-Central region of the country

Uganda bordering the northern shoreline of Lake Victoria. Being the largest
traditional kingdom in the country, Buganda has an estimated population of
over 8 million people called the Baganda and speak Luganda as their native
language. The kingdom is currently headed by Kabaka Ronald Muwenda
Mutebi II with its capital in Bulange, Mengo.
Buganda has an extensive history dating back to long before the 12century
when it was still referred to as Muwaawa- a sparsely populated area. Unified
in the mid 13th century (1300AD) under the first kings, Buganda continued
to grow becoming one of the largest and most powerful states in East Africa
during the 18th and 19th centuries.
There are various schools of thought that explain the origins of Buganda, the
commonest being the Kiganda and Bunyoro Tradition theories. According
to the Kiganda theory, the kingdom was established by Ssekabaka Kaita-
Kintu who is widely said to have come from the direction of mountain Elgon
1314 AD via Bugisu, Budama, Busoga and finally the shores of Lake Victoria
10
where he faught and defeated the last indegineous ruler Bemba Musota
seizing power, annexing land and crowning himself the head of all clans -
Ssaabataka.
Kintu, in all of his glory is said to have arrived with 13 or 14 clans which he
ordered to intermarry with the native people, the Bannansangwawo thus
giving rise to the Kintu-based Buganda ethnicity. With the mysterious
dissaperance of Ssekabaka Kintu, 36 kings followed in his footsteps breeding
the present-day Buganda Kingdom.
The Bunyoro tradition theory explains Buganda to have been founded by

Kato Kimera, a twin brother to Isingoma Rukidi Mpuuga the founder of the
boot dynasty in Bunyoro. This school suggests that after Isingoma had
established himself as a king in the areas of Bunyoro, he sent his brother
Kimera to govern the outposts but on reaching the area, the young brother
essentially broke away from Bunyoro creating his own kingdom which came
to be known as the Buganda Kingdom.
Being a subject to oral history, being passed down to generations by the elder
groups of society, it is rather not surprising how these major two stories
among others have happened to take shape in several other different versions
of history. During the 16th century, Buganda began its 300years of territorial
expansion annexing and conquering a number of chiefdoms and expanding
from three provinces to twelve by the 1800s.
Buganda however had not always been the dominant power in that area as
many have preached and believed. Although written history before the 1800s
is scanty, archaeological evidence suggests that humans lived in the present-
day Uganda from between 50,000 and 100,000 years.
These should have been organized in three political organizations. A caste

Based Hima system in what would become South west Uganda and Rwanda-
Burundi, a Bito system in Bunyoro in which power was accessible to all, and
the rotary albeit centralized system that evolved in Buganda
11
Even with the conquering theories of how Buganda as a kingdom primarily

came into existence, the kingdoms ghost of expansion and political as well as
economic independence is inevitably portrayed and cannot be overlooked as
one endeavors to study the history of the same
The kingdom of the Baganda is the largest of the traditional kingdoms in

present-day East Africa, consisting of Buganda's Central Region, including
the Ugandan capital Kampala. The 14 million Baganda (singular Muganda;
often referred to simply by the root word and adjective, Baganda) make up
the largest Ugandan region, representing approximately 26.6% of Uganda's
population.
The Baganda claim to be a people of mixed stock who migrated to their

present habitat over the past six hundred years.! Their history is that of a small
struggling kingdom amid tribal enemies, the most aggressive of which was the
neighbouring kingdom of Bunyoro Kitara. Later, the picture is of a rapidly
expanding kingdom successfully bringing into its orbit bigger and bigger
areas of territory at the expense of its neighbours.
It was at the zenith of its power during the reign of Mutesa I (1857-1884) and
it was at this time that the Europeans first arrived in the country. The British
established their overall political power and protection in the next reign.3
Baganda villages, sometimes as large as forty to fifty homes, were generally

located on hillsides, leaving hilltops and swampy lowlands uninhabited, to be
used for crops or pastures.4 Early Baganda villages surrounded the home of a
chief or headman, which provided a common meeting ground for members
of the village.5The chief collected tribute from his subjects, provided tribute
to the Kabaka, who was the ruler of the kingdom, distributed resources
among his subjects, maintained order, and reinforced social solidarity
3
The Uganda Journal Vol.IV No.2 Septembe r 1950. 9
4
Donald Anthony Low The mind of Buganda; Documents of the modern history of African
kingdom
5
Christopher Wrigley kingship and state
12
through his decision-making skills. During the late 19th century, Ganda
villages became more dispersed as the role of the chiefs diminished in response
to political turmoil, population migration, and occasional popular revolts.
Buganda currently is divided into 26 districts as of 2021. These are:
1.Buikwe
2.Bukomansimbi
3.Butambala
4.Buvuma
5.Gomba
6.Kalangala
7.Kalungu
8.Kampala
9.Kassanda
10.Kayunga
11.Kiboga
12.Kyankwanzi
13.Kyotera
15.Luwero
16.Lwengo
17.Lyantonde
18.Masaka
13
19.Mityana
20.Mpigi
22.Mubende
23.Mukono
24.Nakaseke
25.Nakasongola
26.Rakai
27.Ssembabule
28.Wakiso
Buganda is a constitutional monarchy. The current Head of State is the

Kabaka, Muwenda Mutebi II who has reigned since the restoration of the
kingdom in 1993. The Head of Government is the Katikkiro (Prime
Minister) Charles Mayiga, who was appointed by the Kabaka in 2013. The
Parliament of Buganda is the Lukiiko.
Before the arrival of Europeans in the region, Buganda was an expanding,

"embryonic empire". It built fleets of war canoes from the 1840s to take
control of Lake Victoria and the surrounding regions and subjugated several
weaker peoples. These subject peoples were then exploited for cheap labor.
The first Europeans to enter the Kingdom of Buganda were British explorers
John Hanning Speke and Captain Sir Richard Francis Burton while searching
for the headwaters of the Nile in 1862. They found a highly organized
political system which was marred, however, by the ongoing practice of mass
human sacrifice estimated at 800 persons annually.
14
(B)U G AN D AS AN D H E R “V I SI T OR S ”
Buganda received her very first foreign visitors in the year 1843 and these were
the Arab traders. In early 1843, the first caravan of Arab trades led by Ahmed
Bin Ibrahim widely believed to have been the first non-African to set a foot
on (B)Uganda’s soil, arrived in the court of Kabaka Ssuuna 11. He was later
followed by Siney Bin Amir who also made his way into Buganda in 1844
alongside other caravans.
Financed by money lenders in Zanzibar, a thriving trade in ivory had existed

for many years with tribes near the coast but the dwindling elephant numbers
and the advent of guns which offered protection against warrior tribes
encouraged traders like Bin Ibrahim to venture further into the interior in
search for ivory.
It is unlikely that Bin Ibrahim, the Kabaka or any of the chiefs would have
known the significance of the arrival of the trade caravan and, in particular,
the guns that were carried to Buganda and her neighbors around the great
lake’s region.
Bin Ibrahim’s caravan had brought along cloth, mirrors, beads, jewelry and
spices to trade but it was the guns – Oh the Guns! That caught Kabaka
Mutesa’ s eye the most, and of course for a good reason. Although Buganda
was the major power at this point in time, its spirit was still locked in a contest
for supremacy contest with Bunyoro Kingdom in the west.
Needless to mention, the two Bantu kingdoms were the dominant centers of
power in the region above Lake Victoria but Buganda’s sphere of Influence
gradually extended beyond through military raids and the installation of
vassals. The other groups in the east and north west were mainly pastoralists
and their normadic life style only supported lose political organization unlike
the Hima, Bito and Baganda. This therefore did not encourage the formation
and maintenance of standing armies as in the areas dependent on settled
agriculture and the rearing of livestock.
15
In the case of Buganda, fertile soils and good climate allowed for a settled
agriculture-based lifestyle, which allowed the keeping of regular armies. To
Muteesa therefore, the guns offered a new piece of military technology which
could shift the dynamic and give Buganda the upper hand in the contest for
supremacy with Bunyoro. Kabaka Mutesa 1 therefore warmly welcomed Bin
Ibrahim and became actively interested in supplying the trade caravans with
ivory, and later slaves in exchange for cloth, trinkets and in particular, guns
and gun powder.
Bin Ibrahim and his company were able to bring something else with them
that would radically shape the politics and culture of religion in Buganda and
Uganda as a whole. Islam was first taught in Buganda in the year 1844 during
the reign of Kabaka Ssuuna116. However, while Kabaka Ssuuna allowed the
Arab preachers to teach Islam at his Court, he himself did not convert to
Islam and neither did he encourage for it to be taught outside his court even
if he is reported to have learnt portions of the Quaran.
The Baganda, like other African tribes practiced their own traditional
religious beliefs with several deities but the Islam that the Arabs practiced,
and which they spoke about during their time in Buganda so much intrigued
Ssuuna’s son and successor Kabaka Mutesa1, especially its teachings that
greatly appealed to him in that he is said to have converted to Islam by 1869
alongside some of his chiefs and officials. Kabaka Mutesa 1 learnt the Arabic
language and mastered the Quran and also directed all of his relatives to study
and learn it. His palace at Banda was also made an Islamic Education Centre.7
This imposition of foreign religion would go on to alter not just the value and
belief system but would have far-reaching consequences for the politics and
survival of Buganda as a Kingdom, other power centers that existed at that
time and the country as a whole. But such fears were still a number of years
away and with the military superiority provided by the guns, Buganda
6
See: A brief history of Islam in Uganda, Uganda Islamic Museum and Research Centre
7
Also see Islam in Uganda; A situational Report by Dr Abasi Kiyimba
16
continued with its expansionist tendencies that had started at the turn of the
century.
This kind of adventure was looked upon with legitment concern by the
Omukama of Bunyoro who, seeking to acquire his own guns through
international trade looked North when the adventurers and traders had
started emerging many sponserd by the Khedive Ismail Pasha of Egypt. The
Egyptians southern adventures were informed and inspiredby the need to
establish and take absolute control over the origins of the river Nile whose
waters gave life to the dry Egyptian empire.
E U R OP EAN I N V AS ION OF B U GAN D A
Privileged as self regarded, Buganda unlike the other parts of the country was
able to interact with the very first Europeans to come to East-Africa as was
with the Arabs; as early as 1862. On a quest to find the source of the Nile,
Speake together with Augustus James Grant left Zanzibar in October 1960.
On reaching Uganda, Grant travelled North and Speake continued with his
journey to the west and was able to land into (B)Uganda as the first white men
in 1862.
These were followed by Samuel White Baker and Charlse George Gordon.
Soon enough, the explorer Henry Morton Stanley was also welcomed by
Kabaka Muteesa1(1852-1884) in 1875.
From the arrival of Stanely we see a foundation for the coming of the
Christian missionaries in construction. In his famous letter to the daily
Telegraph, Stanely painted an overly romanticized picture of Muteesa. He
presented the Kabaka as a great enlightened Despot eager to hear the gospel
and propagate it all over his kingdom. However, the reality was quite different
as the missionaries were yet to discover as they arrived into Buganda.
17
It should be noted that for ten full years (1867-1876) Muteesa had strongly
patronized \Islam, learnt Arabic, attended and led prayers and ordered for the
observation of Ramadhan fast.
Muteesa had a genuinely intellectual curiosity in the teachings of Islam but

inevitably as a ruler, his concern was largely maters of state. He saw Islam as a
religion which, under his patronage could enhance his own power but by
1876 this basis for the encouragement of Islam had been undermined by the
forces of Muslim Egypt who were striving to incorporate the head waters of
the Nile (including Buganda) into an Egyptian empire. There visit to
Buganda in 1876 further precipitate the crisis in Muteesa’s relation to Islam.
These Egyptian Muslims criticized the Quibla (direction of the court
mosque) and the fact that the uncircumcised king led prayers on Fridays.
They also encouraged the Baganda Muslims to strictly observe the \Islamic
food laws by not eating any meat slaughtered by Kabaka’s butchers. This seed
of defiance sown by the Egyptians saw a number of Muslims executed at
Namugongo. For Muteesa, it was not simply a matter of insubordination,
serious as that was, but a confirmation of fears that Islam was becoming a
politically subversive creed. So it was around this time that H.M Stanley
visited Muteesa. For him, the advent of the Muzungu was a welcome
opportunity to counteract the Egyptian threat as well as get in contact with
the actual source of technological innovations which the Muslims had
introduced but did not originate.
The letter did produce a speedy response in Britain. The Anglican Church
missionary Society (CMS) hastily assembled a band of enthusiastic
missionaries and the first two representatives of this group arrived at Mutesa’s
court on June 30th 1877 having travelled from Zanzibar on a route pioneered
by Swahili trades. On 17th Feb 1879 a group of French Catholic White
Fathers also arrived by the same East Coast route. With time Muteesa had
come to realize that a complete alliance with any one of the Christian groups
was neither practicable nor desirable and had decided that he should identify
18
with none of the new “dini” while allowing them to stay and extracting
whatever advantages he could from each.
Reports from the explorers and missionaries painted a picture of hospitable

and worthy colony that Buganda was with a well-defined system of
governance which Muteesa 2 in his book Desecration of My kingdom
decscribes to be in a pyramid shape with the Kabakas position secured at the
apex (with no rivalry) and the common people at the base. There was a
Katikiro (Prime Minister), Omuwanika (The Chief treasurer) and the
Omulamuzi (Chief Justice) and a hiercahy of chiefs. It was also characterized
by a standing army which was headed by Omujaasi (army general).
According to Prof. Apollo N Makubuya, Buganda had reported a great deal

of advancement in the medical field in respect to diagnosis and treatment
with midwives, orthopedics and effective herbalists with international
recognition from an observation that was made by Dr. Robert Felkin in 1879
concerning the success of Buganda surgeons in conducting Cesarean births.
“The influence of the Arabs was strong. They warned Muteesa that the white
men would ask to change his customs particularly concerning wives and slaves,
and, if he did not do so, send an army to compel him. Mutesa listened and was
willing to believe, but welcomed missionaries all the same, as he wished for their
help and presents. Also, they might be useful a hostage. He recognized Queen
Victoria as a great monarch but he had never seen anyone as powerful as
himself, hew was not expect to have to fight, but was not afraid to do so”8
Muteesa should be believed to have been a consummate master at political

balancing; keeping other factors constant, unlike his successor; Mwanga, who
succeeded his father in October 1884 at the age of 18 years, coming up to
history in a more difficult international climate of the late 80s.
8
Descretion of my \kingdom, Kabaka Edward Muteesa 2, Crane Books Pg.24
19
During the early reign of Kabaka Mwanga, the Kingdom had been divided
into four religious’ fractions; Adherents of the native religion, the Muslims,
Catholics and protestants. Each of these vying for political control. In 188
Mwanga was ousted in a coup led by the Muslim fraction which installed
Kalema, His brother. The following year, the protestant and catholic
coalition forced to remove Kalema and reinstall. Mwanga II to power. This
coalition secured an alliance with the Imperial British East African Company
(IBEACO) and succeded in ousting Kalema and re installing Mwanga in
1890. The naked imposition of colonial rule in Uganda therefor kicked off
in 1890 when IBEACO sent Fredrick Lugard to Uganda as its chief
representative in the name of helping to maintain peace between the
conflicting religious fractions.
Upon arrival in December, Lugard found that Mwanga had already signed a
treaty of friendship with Karl Peters on behalf of the Germans who intended
to extend their East African sphere of influence but this was no hindrance to
(B)ugandas already decided fate as dictated by the 1884-1885 Berlin
Conference.
T H E B ER LIN C ON FE R EN C E
“The Berlin Conference gathered a bunch of Europeans to plot ways to divide

up Africa. It might not have been the start of colonialism, but it sure
accelerated the process”9.
The Berlin Conference can be best understood as the formalization of the

scramble and partition Africa. THE British coined this this sometime in
1884, and it has since then been used to describe the 20-plus years when the
various European powers explored, divided, conquered, and began to exploit
virtually the entire African continent. The European power scan be said to
have been slow in the realization of there greedy need to claim land in Africa
9
Trevor R Getz, Apicture worth a thousand words, Khan Academy
20
as they had kept to coastal areas for the most part prior to the idea of slicing
up the entire African soil to themselves.
However, in 1884, this partitioning began when thirteen European countries

and the United States met in Berlin to agree to the rules of dividing Africa.
The United States however, did not actually participate in the conference
both because it had an inability to take part in territorial expeditions as well
as a sense of not giving the conference further legitimacy.
Before the idea of Scramble and Partition had been set into place, European
Diplomacy treated African indigenous people in the same manner as which
they treated the new world natives forming trade relations with tribal chiefs
as was with the Portuguese and the people of Congo kingdom. With
exception of the trading posts along the coast, the continent was essentially
ignored.
This changed later on as a result of King Leopold’s desires for personal glory
and riches and by the mid 19thcentury, African was now considered ripe for
exploration, settlement and exploitation. From 1876, Belgium’s king
Leopold II announce his intent to fund an exploration of the Congo region
and in 1879 sent H.M Stanley to the area with a secret mission to organize
what would become the Congo Free State, a Mercantile enterprise in Congo.
Generally, European interest in Africa had increased dramatically by the early
1800s.
The Berlin conference lasted almost four months from 15th November 1884
to 26th February 1885 in Berlin, Germany on the later date, Italy, France,
German, Portugal, Spain and Britain along with King Leopold concluded the
negotiations on the Partition of the black soil without African engagement
and with absolutely no concern whatsoever of the African’s on the same.
21
By the end of this conference, the European powers had neatly divided Africa
amongst themselves with over thirty new colonies and protectorates10.
“A conference about Africa but happening in a room in Berlin, Germany!
With zero Africans and only two of the attendees of that conference had ever
stepped a foot on the continent-which, is about three times Larger than Europe.
Instead, it was bunch of European men, representing twelve countries in Europe,

plus an American representative and one from the Ottoman Empire with a
giant Map of Africa. Why? Because the job that the men at the conference had
taken upon themselves was to divide up Africa between their respective
countries”-Trevor Getz11
Uganda among other African countries such as Malawi, Nigeria, Lesotho,

Swazi-Land, South Africa, Rhodesia, Malawi, the gold coast, Sudan, Egypt,
Somali land, Sierra Leon and Kenya; fell prey to the British side of the
scramble and because of the vastness of Britain’s area of influence estimated
to have coved over 412 million people, Britain was able to emerge as the
leading colonial ruler in Africa. By the 1920s, Britain’s area of influence is said
to have been covering 24% of the Earth’s total land area.
Even though at this point in time Mwanga had already fallen for Karl Peters
charms and signed treaty with the later on behalf of the German East African
Company on 29th February 1890, this was no reason enough to intimidate the
British invasion of Buganda. Could one be right to conclude that Mwanga
had foreseen the age of colonial hegemony and his choice to bring the
GEACO closer to himself having been a preventative mechanism of defense
or his cause for signing the treaty was to secure aid to solve the pre-existing
religious trifles in Buganda?
10
General Act of the Berlin Conference, 26th February 1885 \z\
11
Article by TrvorGetz, Khan academy Autthor of a Primer for teaching African History
22
Either way, the treaty Subjected Mwanga to the principles of the Congo Act
which guaranteed Europeans free access and the right to settle in Buganda.
This treaty also entailed Mwanga’s rights to settle in Germany as the
Europeans in Buganda.
Despite the existence of the treaty between Mwanga and the Germans,
Lugard was yet to find solace in the Anglo German treaty which; for all intent
and purposes was to serve the British Justice in their disentanglement of
Buganda and Germany.
The Anglo German Agreement signed in July 1890 was Also referred to as
the Heligoland treaty. In it, the Brutish Prime Minister Lord Salisbury
exchanged the Heligoland Isand for influence in Uganda. In this agreement,
Britain was to be allowed access to areas between Lake Tanganyika and
Buganda as well As the Lake Nyasa region.
This treaty clearly defined the Undeniable influence that Britain had over
Uganda and in an instant IBEACO had it all figured out for the
commencement of its rule by sending Captain Lugard to oversee the
foundation that had been laid by the earlier explorers and missionaries in the
now “ripe enough to eat”, (B)Uganda.
23
C AP T . F R E DR I C K L U GAR D
Capt. Fredrick Lugard
Set up by the Scottish shipping magnate; William Mackinnon in 1877, the

IBEAC had been granted the royal chatter to over the areas of East Africa’s
interior of which Buganda was part of the “British sphere of influence”
While the term sphere of influence did not necessarily have mean total
ownership over the territory, Fredrick Jackson of the IBEACO tried to
unsuccessfully enforce such claims on Mwanga after Karl Peters had signed
an agreement with the former.
Karaka Mwanga’s refusal to sign an agreement brandished to him by Fredrick

Jackson was his first act of defiance against the imperialists and this would
surely not be his last. Having failed to convince Mwanga, Jacksons tour of
duty would soon come to an end.
24
His replacement, Fredrick John Dealtry Lugard, a Sandhurst-trained British

soldier and mercenary with a take-no-prisoners approach to resolving conflict
would play a crucial role in the colonization of Buganda and Uganda at large.
Unlike the previous visitors who would arrive on the outskirts of the kingdom
and send in gift-carrying messengers to seek permission to visit, Lugard
arrived unannounced. He was clearly on no quest to appease. On 18th
December 1890, Lugard arrived in company of 50 Sudanese soldiers, 70
Somali soldiers and 270 porters.
He did not carry the Customary prsents for the Kabaka but instead had with
him an old and functional Maxim gun which could fire 500 rounds per
minute and dhad changed the dynamics of warfare where ever it had been
introduced to conflicts on the continent.
Where other foreign visitors had politely asked the Kabaka for permission and
land on which to set up their homes, Lugard picked a spot of his choice on
the present day Old-Kampala hill and set up his camp, overlooking and in a
perfect view of Mwanga’s Palace at Mengo. It was then after this that he sent
in his word (not a request for permission) across the valley to Mengo that he
was now ready to see the king.
The IBEACO had chosen to tread lightly in Buganda and one of its directors,
George Mackenzie had advised Lugard to offer the Maxim Gun to Mwanga
as an inducement to get him to sign the treaty however Lugard chose to defy
this and play by his own rules.
He had crept up on Buganda through the sensitive Eastern route through

Busoga without waiting for the guides that Mwanga had sent him. Then he
had had the nerve to evict occupants of the old Kampala hill, an endeared spot
and now just after a week of his arrival wanted Mwanga o sign an agreement
handing over his kingdom to the IBEACO. Mwanga must have been
impressed by Lugards confidence but not moved by his implied might.
25
On 24th December of the same year Lugard was almost shot by some of
Mwangas men in a heated discussion over the treaty but was saved by Zakaria
Kisingiri, who would later become his Major-domo father-in-law and a key
collaborator of the crown.
The history of Buganda and Uganda might have been different had Lugard
been shot dead that day. Despite his braggadocio, Lugard’s position was not
as strong as it appeared. He only had 11 bullets for each of his 120 soldiers
and his maxim gun wasn’t really as reliable as his confidence portrayed it to
have been as he impatiently waited for the arrival of his assistant, Capt.
Williams who was carrying ammunition.
On 26th December 1890, Lugard presented an agreement for Mwanga to sign.

Lugard’s proposal entailed threats directed straight up to the Kabaka and
Mwanga was in no position to differ from Lugard’s proposal.
Kabaka Mwanga signed this agreement but under duress. This agreement was
clear and unambiguous declaration of a war against Buganda’s Independence.
This treaty was to b valid for two years. This treaty denied Mwanga command
of his own army, and required him to seek guidance from the company in all
matters relating to the state, it restricted trade of arms directing it strictly into
the control of the IBEACO.
After a year and about 3 months of signing this treaty, Lugard was now
convinced of the survival and thrival of colonial rule in Uganda and it was for
this mater that he needed to procure an eve more permanent treaty with
Mwanga.
By 1892, Mwanga had already secured this second treaty and he was no doubt
pleased with himself. According to Apollo N. Makubuya, the CMS and the
French priests were astonished by Lugard’s success and could not believe how
easily he had accomplished so much in such a short period.
26
One of their biographers commented on Mwanga’s humiliation, wondering

how he had “put all the thousands of subjects and people from his vassal states
under the protection of a simple commercial company.”
He asserts that Lugard himself was impressed at the success of his trickery,
writing in his diary:
“No man if he understood would sign it, and to say that a savage chief has been
told that he cedes all rights to the Company in exchange for nothing is an
obvious untruth. If he had been told that the Company will protect him against
his enemies, and share in his wars as an ally, he has been told a lie, for the
Company has no idea of doing any such a thing and no force to do it with if they
wished”
Lugard was certain that the Kabaka did not understand what he accented to.
Meanwhile, the religious rift in Uganda had continued deepen, worsening
with the linings created by both the kabaka and Lugard. On one hand, Lugard
who was a protestant enjoyed support from the protestants right from the
time of his arrival where as Mwanga was backed by the Catholic Faction.
With time and grace, Mwanga had started to feel the plight of colonial
hegemony and he knew that this was never a place for him to be. The spirit
for Buganda’s independence had hovered over him so He became rebellious
and defiant; choosing to fly his own flag instead of the IBEACO flag.
Before long, Lugard had certainly had enough of Mwanga’s spirit of

Independence and self determination and this sparked off the Mengo war of
January 1892. This was a result of Mwangas deliberate refusal to hand over a
catholic convert that had been accused of murdering a protestant man.
Lugard had sent in numerous letters asking the kakaba to hand over the
murederer which Mwanga was not willing to do. Mwanga is also quoted for
having responded that if Lugard wanted war, he was ready to fight. This
27
annoyed Lugard who with the support of Protestants drove Mwanga

together with the Catholics out of Mengo.
In the Discretion of my Kingdom, Muteesa II describes the happenings in his

grandfather’s kingdom as follows;
“Then a Catholic shot a protestant and was acquitted by Mwanga. Lugard

demanded to be given the man to try. Mwanga refused. Lugard gave out guns
to the Ingelesa and Mwanga distributed gun powder among the Fransa.
Another Protestant was shot. Mwanga was now flying a Flag of his own.
Clearly the conditions were ripe for violence and on 24th January 1892, the
fransa attacked. Lugard had some success with his Maxim gun. The Inglesa
meanwhile swept over Rubaga hill and burnt the mission and the half-finished
church. Mwanga and Many other Fransa escaped to the Islands”12
A Week after this attack on the Lubiri, Lugard this time in person attacked
Mwanga at the island where he had been hiding and this attack saw the death
of over a hundred Catholics. The King was able to escape together with a few
of his officials’ surving the ‘protection’ of Capt. Lugard.
Initially the British East African Company had estimated its annual expenses
in maintaining a presence in Buganda at 40,000 Pounds annually a sum that
hadn’t always garanted a frofit. At the climax of Lugard’s irrational
exhibition of might and strength to rob Buganda of its sovereignty, a lot more
expenses were realized and before long the company had registered a major
financial set back and on 31st December 1892, IBEAC publicized its
intentions to leave Uganda. Obviously, this news couldn’t have reached
Lugard with a smooth tone having had invested so much time, commitment,
determination and more so finances in the realization of the company’s
objectives.
Lugard took a flight to London where he launched a sympathy-game kind of

campaign in the name of ‘saving Uganda’ and putting into account the lives
12
Deacreation of my Kingdom, Sir Edward Muteesa II Pg.
28
of the missionary communities had had established themselves in Buganda

thus painting a picture of the blood-bath that Buganda was to become with
the white mans evacuation.
Lugard’s crafty and persuasive nature managed to secure him some audience
which praised him to be an intelligent and brave man. It also enabled him to
defend himself against the allegations of excessive brutality and harshness as
he pointed out to the Kabaka’s shortcomings instead. Lugard pressed on
Britain’s need to retain Buganda which idea was warmly welcomed by H.M
Stanely and Bishop Alfred Robert Turker.
Turker, Stanely and Lugard went around England campaigning for the
declaration of a colony but since these were not backed by any black interest,
some power hands had mixed feelings concerning the idea while others totally
resented it. These few voices of dissent in England caused enough lack of
consensus which led Britain’s Foreign Secretary Lord Roseberry to send
Gerald Portal (a man who would clatter give name to the Western town of
Uganda, Fort Portal) to Buganda to try and find agadnswer to the Questions
of what to do with (B)Uganda.
Even before he had arrived into Uganda, Portal had received instructions
from Lord Rosebery turning the whole inquiry mission into a predetermined
affair. Apollo N. Makubuya in his book, describes the actual intent as;
“Portal’s mission was to take over the country from the IBEACO and
administer it for the British Crown. The broader mission was for Britain to
take over the source of the river Nile, recapture Sudan, keep out the Germans
and French, and rule Egypt”
Captain McDonald arrived in Kampala having completed a survey of the rail

line to the coast.
Meanwhile, Lord Rosebery is said to have intended to delay the announcing

of Britain’s decision of its future policy in Uganda until he received a report
from the newly appointed commissioner, Sir Gerald Portal.
29
G ER A LD P OR T AL
Gerald Portal
In March 1893, Portal arrived in Buganda but this one history can prove that
unlike Lugard and his immediate predecessor Capt. Macdonald wasn’t a man
of independent will and act. He relied so much on the advice of Bishop
Tucker who went ahead to note in his book the role that he had played on the
commission of inquiry.
“I had several conferences with Sir Gerald portal and had stated plainly what
my views were. I did not disguise from him my opinion that wide spread
disaster and ruin must inevitably result from any abandonment of the
position, which in so formal a fashion had been taken up by Captain Lugard
in the treaty of December 1890”.
The said treaty which an intimidated but also reluctant Mwanga had signed
after Lugard threatened war- had put Buganda under the “protection” of the
IBEACO but in reality, this was all a scam.
30
Several historians have questioned how a motley force of less than 300 armed
soldiers could protect an entire Buganda Army which had over 700 riffles and
an estimated 20,000 spear-wielding extras not to motion the ease that came
along with recruitment for Buganda in particular!
On First April, 1893 only a few weeks after his arrival, Portal took down the
IBEACO flag that was flying over the Kabaka palace in Mengo and replaced
it with the British Union Jack. For the first time, the union Jack had been
flown in Uganda and it was to go on for the next 70 years.
Although he had been sent to establish whether Britain could declare a

protectorate over Buganda, Portal had the nerve to fly the British flag with
out requisite Parliamentary approval setting assail Uganda for the next 70
years of exploitation.
Soon enough, Portal had also entered into an agreement with the Mwanga
and his trusted chiefs Apollo Kagwa and Stanslas Mugwanya on 29th May
1893. In this treaty, the British government was to take up (B) Uganda as a
protectorate taking up all of the rights of the British East African Company.
In this agreement the once again excited Mwanga, this time even more
desperate for British protection pledged to stop slave trading and slave
raiding, to allow the queen to impose export and import duties on all goods
leaving or entering Uganda, 13 to leave all of the matters pertaining to
Uganda’s foreign affairs into the hands of the queen, to always consult the
Queens government on all serious matters concerning the state be it political,
social or economic, To desist from engaging into any European treaties
without the consent of the Queens government, Mwanga also pledged never
to declare war without the approval of the Queen and lastly to always be
bound to all International obligations to which Britain may be party.
13
(With duties to be fixed in accordance with the provisions of the General Acts of Berlin
and Brussels of 1885 and 1890
31
For the second time, Mwanga and his Ministers did not understand the
agreement they had signed. They had been Duped and Hoodwinked by Britain
naming Mwanga the king of Buganda but the conditions of the agreement were
by far different. Once again, Mwanga had been made a powerless puppet to the
British to the extent of being arrested twice for illegal trafficking of goods within
his own Kingdom and indeed the ghost of Buganda’s independence was yet to
be displeased with such occurrences.
“What was meant to be a commission of inquiry had simply become a white

wash for Britain’s Imperial agenda in Buganda, supported by the protestant
factions who for all intent and purposes were politicians in Cassocks14”
Portal reportedly left two and a half months after signing the agreement to
present his report to the Crown. He later died from typhoid while he was in
London.
In order to officialise the matter, Lord Rosebery appearing before the British
Parliament in August 1894 declared that;
“After considering the late Sir Gerald Portals Report and weighing on the
consequences of withdrawing from Uganda on the one hand and on the other
hand maintaining their interests other, Her Majesty’s government ha
determined to establish a regular administration and for that purpose to
declare Uganda to be a British protectorate”
Roughly, it had taken over 20 years from the coming of the missionaries in
Buganda to when the kingdom was finally declared a protectorate.
14
See Article; Uganda @50, Monitor Ug. March 24th 2012
32
H EN R Y E DW AR D C OL V I LL E
Henry Edward Colville
Following the official pronouncement of Buganda as a protectorate, Colonel

Henry Edward Colville was appointed commissioner. Upon appointment
Colville signed a treaty with Mwanga
Once again protection was promised, however this time by the crown15 and
Mwanga once again pledged to be bound by terms that weren’t significantly
different from those of the previous agreements. Kabaka Muteesa II describes
the time there after as that where the trouble that had been threatening for a
long period of time finally erupted between Buganda, the Muslims and
15
Not the Imperial British East African company
33
Kabalega of Bunyoro. This marked the first operation of the joint forces of
Buganda and Britain.
This took place in December 1893 against Bunyoro Kitara kingdom when
Col. Collville led a full military campaign against Kabalega and his kingdom.
After suffering a series of defeats, Kabalega surrendered and had to flee to
Lango in 1894. Buganda was awarded by E.J.L. Berkely16 for its assistance to
Col. Colville as he had earlier promised. Buganda’s spirit of greatness and
supremacy was further enhanced when the Bunyoro territory south of River
Kafu was incorporated onto her. This area comprised of the Bunyoros
scounties of Buyaga and Bugangaizi which in Buganda turned out to be
Northern Singo, Buruli and Northern Bugerere (this was Previously a no
man’s land)
Before his departure, Colville had severely fallen out with Mwanga. After
numerous failed attempts to attack the British, Mwanga decided to camp in
Buddu where he rallied up his armies against the British administration for
his long-existed dissatisfaction. Unfortunately, he was defeated and forced to
flee to Tanzania where he was later captured and imprisoned. Given a chance
to escape from Bukoba where he had been imprisoned, Mwanga came back
to Buganda only to face the same fate as he earlier had. He was again forced
to go back into exile where he met up with Kabalega.
These two were found and arrested in April 1899 and were deported first to
Somalia in a place called Kismayu and later to Seychelles. This deportation
was legally in line with the terms of the agreements that Mwanga himself had
previously settled with the British which provided that, “the right of
confirming or otherwise the choice of the people of the successor to chiefship,
and of deposing any ruler for misrule or other adequate cause” was reserved
for the Governor17.
16
By this time Col. Colville had left Uganda due to sickness and had been succeded by E.J.L.
Berkely.
17
Lugard, The Dual Mandate, p. 207.
34
While in Seychelles, Mwanga breathed his last in 1903.
“Mwanga faught to free himself and his country of the intruders for all of his
reign. He did not like or want them; He was impressed by their power but not
in their ideas. He could not recover the old way of life nor adapt himself to the
new…18”
R E LI G I OU S W A R S IN B U G AN D A 1885-1900
These were also known as the Wa-Ngereza Wa-Fransa Wars in Uganda.

They were fought between four different religious groups in Buganda
protestants Catholics traditionalists and moslems
The missionaries had arrived in 1877 and another group in 1879.The

European missionaries together with Moslems and traditionalists in Buganda
wanted to increase their influence over the kabaka and the whole kingdom.
By the time kabaka Mwanga gained or came to power in 1884, that was the
situation he inherited. The Arabs and moslems took advantage of their
position and warned the king about the presence of missionaries, that they
wanted to take over the kingdom and since some of the converts had already
started disobeying the king’ orders. In order for the king to safe guard his
position, he decided to take action.
In January 1885, Bishop Hannington was murdered when he tried to enter

Buganda from the East. This was an act followed by the prophecy to the king
that the people who would take over his kingdom, would come from the East.
In June 1886, 30 converts were burnt at Namugongo when they refused to
denounce their Faith. Mukanjanga was charge of the execution. Sensing the
continuity instability, the kabaka planned to chase away all the religious
leaders both Christians and Moslems but they discovered his plan.
18
Muteesa II, Descration of my kingdom, Page 43
35
In 1888, both the Moslems and Christians combined forces and over threw
kabaka Mwanga and installed Kiweewa. When Kiweewa refused to be
circumcised by the Moslems, he was over thrown and Kalema was installed.
DuringKalema’leadership, Moslems influence increased and Moslems started

persecuting the Christians. They killed the converts burnt churches and the
Bible and so Christians fled for their lives to Kabula in Ankole.
The Christians then mobilized forces and returned to Buganda where they
overthrew Kalema AND REINSTATED Mwanga in October 1888 with a
lot of Catholic support. In 1890, Captain Fredrick Lugard was sent by the
Imperial British East African Company (IBEACO) to Buganda and he used
protestant missionaries to influence Kabaka Mwanga to sign a treaty in 1891
January. Lugard then armed the protestant Christians to fight against the
moslems who were concentrated on Buganda- Bunyoro boarder.
Lugard then moved west wards towards Toro then Ankole but in January
1892, conflicts between Catholics and protestants rose again and this resulted
into the Battle of Mengo where Lugard armed the protestants and defeated
the Catholics
C AU SE S OF R EL IG IOU S W A R S
The killing of the Uganda martyrs’ group of 22 catholic and 23 Anglican

converts to Christianity. Same also Muslims in the history kingdom of
Buganda, now part of Uganda, who were executed between 31st January 1885
and 27 January 1887. They were killed on orders of Mwanga II, Kabaka
(King) of Buganda. The martyrs who were killed, it was alleged that they were
disloyal to the King who was Kabaka Mwanga by then hence ordering his
chief Mukanjanga to execute them hence killed. some the martyrs in include
Anatoli Kiriggwajjo, Antanansio Bazzekuketta, Charles Lwanga, Gonza
Gonzaga, Balikudembe, Ssebugwawo Denis, kizito, Andrew Kaggwa. Etc. the
killing of the Martyrs annoyed other Christians which created tension and
suspicions making the religious wars in Buganda inevitable.
36
The struggle for political control between the Catholics and Protestants at
the king’ court led to the outbreak of religious wars. The Moslems and
Christians and traditionalists wanted to retain the political influence over the
king and the entire kingdom.
Kabaka Mwanga’ struggle to maintain his position and power contributed to

the outbreak of religious wars. This is because the missionaries had proved to
be a threat to his position.
The differences in teaching whereby each missionary group had a different

approach and principle used in order to get more converts. The local people
became divided and this led to conflicts causing war.
Lugard’ desire to show the British position of superiority in Buganda led to

religious wars in 1892 Lugard’ misunderstanding of the Kiganda law and
tradition made him challenge the authority of the king and this contribute to
the outbreak of the war.
Each of the Christian groups wanted their home countries to dominate the
political influence in Buganda. The British missionaries (CMS) could not
allow the two religious groups which eventually led to the war.
Lugard’ desire to undermine the powers of the Kabaka through the

protestant Christian chiefs and the pages made them disobey the king who
decided to execute some leading to the outbreak of the war.
Kabaka Mwanga’s favor for the Catholics in attempt to reduce the British
threats on his power and position contributed to the outbreak of the wars.
Each of the European groups represented an important European power and

these powers were rivals back in Europe. The Catholics represented the
French and Protestants, the British. The transfer of the traditional rivalry
between the British and French led to religious wars.
37
T H E C OU R SE OF TH E B A T TL E OF M EN G O IN 1892
In January 1892, Mugoloba, a catholic leader killed a protestant in self

defence. Kabaka Mwanga tried the case according to the traditional Kiganda
law and acquitted Mugoloba.
The Protestants were not happy because they thought the Catholics were
using the kabaka against them. The Protestants appealed to captain Fredrick
Lugard who then ordered for Mugoloba’ execution.
The kabaka refused and so Lugard sided with Protestants, issued them with
guns and added Sudanese troops. Together with his superior maxim gun, the
protestants stormed the king’ palace at Mengo on 24TH, January 1892
The Catholics and the supporters of the kabaka were defeated and the palace
was then taken by Protestants while the king together with his catholic chiefs
and supporters fled to Bulingugwe island o Lake Victoria.
From this, there was a lot of instability in Buganda and so Lugard re-instated
kabaka Mwanga in March, 1892.
In April 1892, Lugard forced kabaka Mwanga to sign a treaty affirming the
treaty of 1891. Also, Lugard made a new agreement with catholic chiefs and
protestant chiefs in Buganda.
E F FE C TS O F TH E B A T TL E IN M EN G O IN 1892
There was loss of lives where converts were killed e.g Martyrdom at
Namugongo, while others were killed in the due course of the fighting.
There was increased disunity among the people of Uganda and this made it
easy for the British to colonize them.
The wars resulted into rivalry in the establishment of schools and churches
which led to the wastage of resources and even made it hard for people from
38
the same ethnic groups to unite for social, political and economic
developments.
The wars undermined the incredibility of the missionaries among the

Baganda. The religious conflicts which begun in Buganda in form of religious
wars spread to other areas in Uganda causing differences among the people.
The catholic and protestant rivalries which started during the religious wars
have continued up to today hindering national unity. After the wars, the
powers of the kabaka were greatly reduced. He could not declare war or take
decisions on serious matters without the consent of the British Resident.
The wars led to discrimination in the civil service where most of the jobs were
given to the Protestants in the colonial government creating more disunity
among the people. From that time, the Catholics remained disgruntled and
even in the days towards independence.
The Catholics were not willing to work with Protestants. In the 1950s, up to
1962, political parties were formed on religious basis e.g. The Uganda
National Congress (UNC) was Protestant based, the Progress Party was also
formed by Protestants and DP was catholic based meaning “Dini ya Paapa”
(religion of the pope) and this formed the basis of the Democratic Party.
The wars resulted into instability in Buganda. The wars also reduced the
spread of Islam because the Moslems were not favored by the British political
arrangements. It enabled the British to secure collaborators especially
Christian chiefs and converts whom the British used to extend their control
over all parts of Buganda.
Buganda was divided between Catholics, Protestants and Moslems. The

Protestants got the central counties e.g Kyagwe, Kyadondo, Mawokota and
Busiro. The Catholics were given Buddu and the Moslems Gomba and
Butambala but traditionists were not given anything.
39
From 1893, Buganda was to have two katikiros, one from the Protestants and
the other from Catholics. The British also decided to give some catholic chiefs
some land. The new land settlements led to the migrations of thousands of
people and reduced the social unity which existed.
40
CHAPTER TWO
The 1900 Buganda Agreement

InJune,1894(following an agreement made in 1893) Uganda was placed “un
der the Protectorate of Her Majesty Queen Victoria” and, by the Buganda
Agreement 1894, made on behalf of Her Majesty and the Kabaka, Kabaka
pledged himself to certain conditions. It’s worth of note that the Agreement
which conferred British protection on Buganda in 1893 was confirmed by a
notification in the London gazette of 19th June 1894. Previous to the signing
of the Buganda Agreement on 29th May 1893, two other Agreements which
had been entered into by King Mwanga of Buganda and the Imperial British
East African Company in 1890 and 1892 were not honoured by that Kabaka.
Unfortunately, also the 1893 (1894) Agreement was also dishonored by the
same King, thus leading to the making of the 1900 Buganda Agreement.
On 18 June 1894, the British government declared Uganda a British

protectorate. Prior to 1894, the local African political entities consisted of
either chieftainships or kingdoms. The area that has been known as Uganda
since the reign of King Sunna, was inhabited by many ethnic groups with
distinct languages, cultures, traditions, and socio-political systems, the
Kingdom of Uganda being the most powerful political entity in the region.
41
The first direct contact between Uganda and the outside world came with the
arrival of Arab Muslim traders from Zanzibar in 1884. In 1877, the first
missionaries from the Anglican Church of England arrived in Buganda,
followed by the Roman Catholics two years later. It was notable that the
British colonial officials entered Uganda through a centralized kingdom
rather than through a succession of disconnected societies, as they had
elsewhere in eastern Africa.
Their arrival in Uganda was complicated by the presence of Catholic and

Protestant missionaries and the ensuing Buganda succession war of 1888-
1892. This religious-inspired civil war coincided with the imperial ambitions
of Britain, which was trying to secure Uganda as its colony because of its
importance with regard to access to the Nile. During the war, British colonial
officials, following chief agent Captain Frederick Lugard of the Imperial
British East Africa Company (IBEACO), lent their support to the Protestant
faction led by chief minister (Katikiro) Apollo Kagwa. Soon, the IBEACO
relinquished its control over Uganda after the wars had driven it into
bankruptcy.
At the request of Sir Gerald Portal, Alfred Tucker, Bishop of Eastern

Equatorial Africa and later Bishop of Uganda, urged the British authorities to
take over Uganda. On May 29, 1893, a treaty between Portal and Kabaka
Mwanga informally ensured Uganda as a British Protectorate. On August 27,
1894, Mwanga was compelled to sign another treaty with Colonel H.E.
Colvile, who encouraged conventional takeover of the territory. Though the
1893 and 1894 treaties had been undertaken because, as stipulated by
the Berlin Conference, Uganda happened to fall within the British sphere of
influence, Britain lacked the sanctity of traditional rulers and their peoples. It
was important that an agreement, as opposed to a treaty, be undertaken so
that British rule would become de jure as opposed to being de facto
42
Earlier on in 1897, even before the death of Kabaka Mwanga, the self-seeking
British for all intent and purposes of reducing Buganda to a mere
Constitutional Monarchy. Buganda” s then top three heads, Apollo Kaggwa,
Stanislas Mugwanya and Zakaria Kisingiri Kizito were able install and later
enthrone the infant kabaka Daudi Chwa.II
By this time. Buganda had been put under the patronage of Henry Hamilton
Johnson who had ariived in 1899 as Her Majesty’s special commissioner,
Consul General and Commander in chief of the British protectorate.
Johnson who did not differ a lot from Lugard, was also able to lure Buganda
into a new treaty which was signed in 1900.
It can be urged that the 1900 Buganda agreement sealed off any hopes for
Buganda's independence as a nation state. Starting from this statement ". In
the Berlin conference the superpowers sent their explorers to Africa who
looked out to occupy all everything in Uganda and therefore the baganda
43
signed an agreement which they didn't even understand since Buganda was
used as an access way for the colonial masters to colonies Buganda. 19
The agreement was negotiated by Alfred Tucker, Bishop of Uganda and was
signed on the 10th of march 1900 between two antagonistic camps and these
include Buganda and the British , the Buganda Agreement was signed
between Harry Johnson the new Commissioner of Uganda on behalf of the
Queen of England and the Chiefs of Buganda, that is; Stanslaus Mugwanya,
Zakariya Kisingili and Apollo Kaggwa acting on behalf of the infant king
Kabaka Chwa II of Buganda who had then attained the age of four years.
Kabaka Daudi Chwa II with the regents, Apollo Kagwa, Zakariya Kisingiri, Nuwa
and other chiefs after signing the 1900 buganda aggrement
To compound the matters even more, Buganda lacked an independent and

self taking King. Daudi Chwa was too young to understand a yet his regents
had a while back openly displayed their support for colonial rule when they
19
Low and Pratt, Buganda and British Overrule 1900 -1955, two studies (Oxford, 1960),
p.52-60
44
betrayed and sold Mwanga to the British. The Brutish had put in enormous
work to buy the attention and support of these chiefs whereby Sir Apollo
Kagwa had even been helped to fulfill his dream of reaching Britain.
It is therefore right to state that this was a “one mans agreement”. Low and
Prat describe the agreement as one where Buganda’s signatories were
presented with the agreement at time when they had no choice. Besides, the
terms of the agreement were only understood by the regents by as far as the
missionary translators had chosen to highlight which leaves questions on the
legality of this agreement as we ought to doubt if there was a meeting of minds
between the two parties over an agreement that was presented in an alien
language to Buganda’s signatories.
The Agreement was initially termed the Uganda Agreement of 1900 but was
later renamed the Buganda Agreement of 1900, under the second Schedule of
the Uganda Order in Council, 1902, by Henry Hesketh Bell, the Governor
of the Uganda protectorate acting under the powers conferred upon him by
Article 6 (1) of the same Order. This Agreement has been variously described
as “Buganda’s Charter of Rights” the “Magna Carta”, “Buganda’s
constitution” among others and was a landmark in British’s relationship with
Buganda. Apart from the Buganda Agreement, the British signed the 1900
Toro Agreement and the 1901 Ankole Agreement with the rulers of those
two kingdoms. Similarly, the British were only able to conclude an
‘Agreement’ with Bunyoro in 1933, ten years after the death of Omukama
Kabalega, who had mounted a serious and sustained challenge to colonial rule
in his region. Although the latter Agreements were important in their own
ways, they however did not achieve the prominence of the Buganda
Agreement. Suffice to say, British colonial jurisprudence, through a
consistent chain of judicial decisions dating from 1926 in Swaziland, declared
throughout the African dependencies that the British crown could never be
bound by any treaty concluded with indigenous rulers, because such treaties
had no force of law. In effect, such treaties strictly speaking were not worth
the paper on which they were written.
45
It can be efficiently argued that this agreement between Buganda and the
British was signed in the odd most manner and timing. It was signed, at a time
when Buganda had not fully recovered from the religious and political wars.
Buganda can be said to have been in desperate “want" for British intervention
in its recovery and keeping the flag of its superiority over the rivals in Uganda,
high.
To compound the matters even more, Buganda lacked an independent and

self taking King. Daudi Chwa was too young to understand a yet his regents
had a while back openly displayed their support for colonial rule when they
betrayed and sold Mwanga to the British. The British had put in enormous
work to buy the attention and support of these chiefs whereby Sir Apollo
Kagwa had even been helped to fulfill his dream of reaching Britain.
It is therefore right to state that this was a “one mans agreement”. Low and
Pratdescribe the agreement as one where Buganda’s signatories were
presented with the agreement at time when they had no choice. Besides, the
terms of the agreement were only understood by the regents by as far as the
missionary translators had chosen to highlight which leaves questions on the
legality of this agreement as we ought to doubt if there was a meeting of minds
between the two parties over an agreement that was presented in an alien
language to Buganda’s signatories.
In relating to the 1900 Buganda aggrement to international law standard its

fraudulent because, although a treaty wasn’t concluded with real consent of
the parties .it is nevertheless not binding if the consent was given in error, or
under a delusion or produced by a fraud of the other contracting party.
It is pertinent to give a broad categorization of the provisions of the Buganda

Agreement in order to acutely assess its place in the changes that were brought
by colonial rule in Buganda in particular and Uganda as a whole. It is better
to segment this Agreement into four categories, briefly these are:
(a) the provisions which defined Buganda’s subordination
46
(b) provisions dealing with the new administrative arrangements of the

kingdom
(c) financial provisions
(d) Provisions of a general nature, falling outside the categories which, I have
already enumerated.20
Buganda would henceforth be a province of the Protectorate, and would be

transformed into a constitutional monarchy with the power of
the Lukiiko (advisory council) greatly enhanced and the powers of the
Kabaka were reduced. The British also gained the right to veto future choices
of the Kabaka and control of numerous other appointments These
provisions concerning the roles of the Kabaka and Lukiiko were largely
reversed by the Buganda Agreement of 196121.
The agreement stated that the Kabaka should exercise direct rule over the
natives of Buganda administering justice through the Lukiiko and his
officials. It also solidified the power of the largely Protestant Bakungu client-
chiefs, led by Kagwa. The British sent only a few officials to administer the
country, relying primarily on the Bakungu chiefs. For decades they were
preferred because of their political skills, their Christianity, their friendly
relations with the British, their ability to collect taxes, and the proximity
20
The Uganda Agreement, 1900 (See Native Agreement and Buganda Native Laws, Laws of
the Uganda Protectorate, Revised Edition 1935 Vol. VI, pp. 1373–1384; Laws of Uganda
1951 Revised Edition, Vol. VI, pp. 12–26)
We, the undersigned, to wit, Sir Henry Hamilton Johnston, K.C.B., Her Majesty's Special
Commissioner, Commander-in -Chief and Consul-General for the Uganda Protectorate and
the adjoining Territories, on behalf of Her Majesty the Queen of Great Britain and Ireland,
Empress of lndia, on the one part; and the under mentioned Regents and Chiefs of the
Kingdom of Uganda on behalf of the Kabaka (King) of Uganda, and the chiefs and people
of Uganda, on the other part: do hereby agree to the following Articles relative to the
government and administration of the Kingdom of Uganda.
21
Evolution of constitutional law, public and Government by. Prof. G.W. Kanyeihamba
47
of Entebbe to the Uganda capital. By the 1920s the British administrators

were more confident, and had less need for military or administrative
support.
By fixing the northern boundary of Uganda as the River Kafu, the agreement
formalized Colvile's 1894 promise that Uganda would receive certain
territories in exchange for their support against the Bunyoro. Two of the 'lost
counties' (Buyaga and Bugangaizi) were returned to the Bunyoro following
the Ugandan lost counties referendum of 1964.
Buganda can rightly be said to have been a ‘protected State’ in the Uganda
Protectorate as seen in the diverse provisions of the Buganda Agreement,
1900 (herein after referred to as the agreement). The agreement acutely
demarcated the geographical boundaries of Buganda and laid down its
territory and also therein established its administrative, judicial and political–
military jurisdiction
A B R E AK -D OW N OF THE 1900 B U G AN DA A GR E EM EN T AN D
IT S L E G AL I M P L IC A TI ON S
The 1900 Buganda had stipulated numerous articles which constituted

various constitutional measures that caused many Baganda to be left
Usufrucunt and sealing off their hopes for federalism and these included.
Article 1 of 1900 Buganda agreement demarcated the boundaries of the

kingdom and therefore Buganda was stopped from fighting wars with the
neighbors so that they can colonise her very well , in linage to article 9 of the
1900 Buganda agreement that stipulated two counties of Buyaga and
Bugangayizi which were given to Buganda as a gift after helping the British
to defeat Bunyoro.Buyaga and bugangayizi they where added together to the
territories among which it was demarcated as stipulated in article 1 as stated.
The demarcation of Buganda was of great significance as it clearly defined,

established and protected its territory as a state within the Uganda
48
Protectorate. Together with Article 9 which set out the twenty administrative
units (counties) of Buganda, the agreement confirmed the kingd om as the
primary entry point of the control of the rest of the protectorate. The
demarcation of the territory of the kingdom was of great significance because;
it placed a restraint upon the expansionist tendencies of Buganda Kingdom,
as its territory was now clearly demarcated and defined.
Also, within the boundary demarcation was the territory of 40 percent of

Bunyoro’s population and both its capital and the burial sites were given to
Buganda for her assistance in the defeat and pacification of Bunyoro. This
territory constituting 7 of the 20 counties would later be dubbed the ‘lost
counties’, and remained contentious issue throughout the political and
Constitutional development of the protectorate and the immediate
independent State of Uganda.
The boundaries of the Kingdom of Uganda shall be the following: starting

from the left bank of the Victoria Nile at the Ripon Falls, the boundary shall
follow the left bank of the Victoria Nile into Lake Kyoga, and then shall be
continued along the centre of Lake Kyoga, and again along the Victoria Nile
as far as the confluence of the river Kafu, opposite the town of Mruli.
From this point the boundary shall he carried along the right or eastern bank
of the river Kafu, upstream, as far as the junction of the Kafu and Embaia.
From this point the boundary shall be carried in a straight line to the river
Nkusi, and shall follow the left bank of the river Nkusi downstream to its
entrance into the Albert Nyanza. The boundary shall then be carried along
the coast of the Albert Nyanza in a south-western direction as far as the
mouth of the river Kuzizi, and then shall be carried up stream along the right
bank of the river Kuzizi and near its source.
From a point near the source of the Kuzizi and near the village of Kirola (such
point to be finally determined by Her Majesty's Commissioner at the time of
the definite survey of Uganda) the boundary shall be carried in a south-
western direction until it reaches the River Nabutari, the left bank of which
49
it will follow down stream to its confluence with the River Katonga; The
boundary shall be carried in a southwestern direction until it reaches the
River Nabutari, the left bank of which it will follow down stream to its
confluence with the River Katonga; The boundary shall then be carried up
stream along the left confluence of the Chungaga, after which, crossing the
Katonga, the boundary shall be carried along the right bank of the said
Chungaga river, up stream to its source; and from its source the boundary
shall be drawn in a south-eastern direction to the point where the Byoloba
River enters Lake Kachira; and shall then be continued along the centre of
Lake Kachira to its south-eastern extremity, where the River Bukova leaves
the lake, from which point the boundary shall be carried in a south-eastern
direction to the Anglo-German frontier.
The boundary shall then follow the Anglo-German frontier to the coast of
the Victoria Nyanza and then shall be drawn across the waters of the Victoria
Nyanza in such a manner as to include within the limits of the Kingdom of
Uganda the Sese Archipelago (including Kosi and Mazinga), Ugaya, Lufu,
Igwe, Buvuma, and Lingira Islands. The boundary, after including Lingira
Islands, shall be carried through Napoleon Gulf until it reaches the starting
point of its definition at Bugungu at the Ripon Falls on the Victoria Nile. To
avoid any misconception, it is intended by this definition to include within
the boundaries of Uganda all the islands lying off the north-west coast of the
Victoria Nyanza in addition to those specially mentioned. One of the
significances of article 1 included
It established the geographical, political and administrative jurisdictions of

the Buganda kingdom at large. It also placed restrainants on the expansion
tendencies of Buganda by clearly defining the extent of its territory.
Thirdly it defined the extent to which the jurisdiction of kabakas government

when in term of legislative judicature political and administrative
competence. This was brought out in the case of Kazaraine v The Lukiko
50
22
where the applicant Kazaraine was convicted for inciting the people of
Buyaga and bugaizi not to pay taxes to the kabaka government and for
obstructing the chiefs from carrying out their rightful duties of revenue
collection. This was brought before the high court and the jurisdiction was
to whom the two counties and vested in either the central government or the
Buganda government. The agreement also confirmed the kingdom as the
primary entry in Uganda for the control of the rest of the protectorate
territory.
Article 1 of the 1900 Buganda agreement made numerous effects that made
the Baganda to consider it a voidable contract of agreement and these include;
The question of Lost counties of Buyaga and Bugangayizi, this was sparked
off by the Case of Kazaraine v The Lukiko, that caused tension and
suspicition on who is supposed to own Buyaga and Bugagaiyizi “kibale
region”23. On account of these two factors, Bunyoro succeeded in driving the
Baganda back, only to find that their final victory was frustrated by the arrival
of the British who protected the Baganda with riffles and Maxim guns. The
Baganda, who were being seriously pressurised by the Banyoro, had gone into
alliance with the British who had come to colonise the Nile valley and were
looking for an ally. The first operation the Anglo-Ganda alliance mounted
was against their most serious threat, the Bunyoro-Kitara Kingdom. This was
in December 1893 when Col. Colville led a full military campaign against
Kabalega and the Kingdom of Bunyoro. After suffering a series of defeats,
Kabalega was driven from his kingdom and forced to take refuge in LangoS
in 1894.
As a reward for assistance against the Bunyoro, Col. Colville in the early part
of 1894 promised the Baganda chiefs that all Bunyoro territory south of River
Kafu would be incorporated into Baganda
22
[1963] E.A 472
23
EA1963
51
This was roughly the area comprising Buyaga and Bugangazi (or Bugangaizi
as Bunyoro call it) northern Singo, Buruli and the formerly semi-independent
area of northern Bugerere, which had been part of Bunyoro territory. Col.
Colville was forced by illness to leave Uganda before implementing this
promise.
However, when E.J.L. Berkely, who succeeded Colville was in 1896
appointing a Munyoro to be chief of this area, the Ganda chiefs present
reminded him that his predecessor had pledged the area to be part of
Buganda. Berkely consulted the Foreign Office, which instructed him to
implement the promise.24
The incorporation into the Buganda Kingdom of this territory, which was
clearly part of Bunyoro with Banyoro inhabiting, was so blatantly unjust that
two British officers then serving in Bunyoro, Pulteney and Foster, resigned
their posts in protest against the decision.
Banyoro never accepted the situation and the loss was to become the festering
“lost counties” issue that was a subject of many deputations by the Kingdom
of Bunyoro to the British throughout the colonial period.
This is what Berkely wrote to the Colonial Secretary on 19th November

1896: “The annexed provinces in becoming part of the Kingdom of Buganda,
must of course recognise the sovereignty of the king of Buganda, the
supremacy and authority of the chiefs selected to govern them and they must
understand that henceforth they are subject to all laws, regulations,
obligations as to local taxation and tribute, etc that are in force in the other
parts of the kingdom.25
At the same time, however, that these provinces became part of the Kingdom
of Buganda so would their native inhabitants become Waganda, and as such,
24
Gariyo Zie: the Press and Democratic Struggles in Uganda, 1900 – 1962 in Uganda FEP
Book 12, Vienna, 1999, page 405.
2525
Gariyo Zie: the Press and Democratic Struggles in Uganda, 1900 – 1962 in Uganda FEP
Book 12, Vienna, 1999, page 405.
52
entitled to all public and private rights of Waganda in any other part of the
kingdom.”
The obvious interpretation of Berkely’s words is that since these Banyoro had
been transferred into the administrative sphere of Buganda, they were now
Baganda. The Banyoro could not accept this and began putting up resistance.
Matters did not get any better for the colonial administrators when they
found out afterwards that the lost counties were home to all the tombs of all
dead kings of Bunyoro. They dealt with this embarrassment by allowing the
Bunyoro Native Government to appoint a special salaried chief (the
Mugema) to reside in Buganda and take care of the tombs.
The Banyoro in the lost counties were subjected to various forms of cultural
oppression. They were not allowed to engage in Kinyoro dances. This kind
of oppression was brought into the open by the area Member of Parliament,
Mr N.K. Rugemwa, before the Uganda Constitutional Conference in 1961.
He claimed that “if the Banyoro do anything in a way different from and
practiced by Baganda, they are liable to be prosecuted for breach of Ganda
customary law. These breaches included dancing and singing in their Kinyoro
traditional style.”
About this, Omukama Tito Winyi expressed himself in the following words:
“Dancing in Kinyoro style is illegal, and all dancing must be in Kiganda style,
which is foreign to the Banyoro people.”
The use of Lunyoro, the language of Banyoro, was discouraged. In 1960, the
Mubende Bunyoro Committee (MBC), a pressure group, noted: “The
suppression of our mother tongue, Lunyoro, hurts beyond imagination. Our
children are taught in a foreign language in the very first year of their
education, and our language has been banned in courts, offices, and churches
in addition to schools.”
53
The Banyoro were being forced to register the births of their children with
Kiganda names. In 1958, the Omukama addressed this issue thus: “…when
the Banyoro go to register births at Gombolola (sub-county) offices, they are
compeleld to enter in the register Luganda names for their children, and
register their clans according to the Kiganda clan system. The Banyoro were
also discriminated against in the award of scholarships.
A British MP, Eirene White, who went to the area in 1957, reported to the
House of Commons and it was recorded in the House of Commons Hansard
of May 6, 1957, page 738-739 that the only way a Munyoro from the lost
counties would get a scholarship is declare himself/herself a Muganda.
The following year, in a petition to the Queen, Omukama Winyi claimed that
only “pure Baganda” could be considered for a bursary or scholarship. “If an
applicant for such a scholarship state on his application form that he is a
member of any other tribe than Baganda, his application is not considered,”
he said.
Between 1931 and 1958 various Bakama of Bunyoro petitioned the British
government nine times to have the matter investigated but their petitions
were simply ignored. Prior to that in 1921, the MBC had been formed to: To
fight for the return of Omukama Kabalega, to recover Banyoro land from
Buganda which was registered as Mailo, Crown and Estates land, to reinstate
socio-cultural freedom to Bunyoro society and to resist non-Banyoro rule,
exploitation and other forms of subjugation.26
The group petitioned the Colonial Secretary in 1951, 1953 and 1955. The
Legislative Council member for Bunyoro, Mr George Magezi, also petitioned
in 1955. The British responses to the petitions took rather standard forms as
exemplified by the response of two officials.
In 1957 Governor Crawford, for instance, said: “...nothing can be done about
that now” and later in 1931 the Secretary for the Colonies argued “it is a long
26
Garaner Thompson: Governing Uganda, Fountain Publishers, Kampala, 2003
54
time [since the lost counties were incorporated into Buganda] and this matter
was settled during the time of fighting, so we can not now do anything further
in the matter. The persistence of the petitions annoyed some British officials.
In 1955 C.H. Hartwell, the Chief Secretary, was exasperated enough to burst
out “...in a matter of this kind there must be a finality, and in this case, it must
be accepted that the final decision has been taken. Eventually the matter came
before the Constitutional Conference, which was preparing for
independence in London in 1962.27
The matter was discussed and on June 27, as the Buganda delegation was
walking out of the Conference, having sensed the dominant mood, the
Colonial Secretary, Mr Maudling, delivered the verdict of the British
government.
Buyaga and Bugangazi were to remain part of Buganda while being

administered by the Central Government, and “after not less than two years,
the National Assembly shall decide on the date for a referendum - in which
the people of the counties will say whether they prefer to be in Buganda or
Bunyoro, or remain under the Central Government.” After giving Buyaga
and Bugangayizi “Bunyoro’s territories” to Buganda as agift, for helping
the British to defeat Bunyoro. this tus called for the1961 Lacaster and 1962
Marlborough conference was formed to solve the question of the lost
counties but in vain, only talked about how Uganda was going to attain the
independence on 9th October 1962. 28
The Ugandan Constitutional Conference, held at Lancaster House in the

autumn of 1961, was organised by the British Government to pave the way
of Ugandan independence
27
Evolution of constitutional law, public law and Government by Prof. Dr. G.W.
kanyeihamba
28
See: Nsibambi AR: the Monarchisation of the Kyabazinga and the passing away of
Traditional Rulers in Uganda. In Nigeria, Behavioural Sciences Journal, 2, 1979.
55
The Conference opened on 18 September 1962 and concluded on 9

October. It was convened to discuss the Report of the Uganda Relationships
Commission, which had been tasked with "considering the future form of
government best suited to Uganda the question of the relationship between
the Central Government and the other authorities in Uganda" 29and had
reported in June. 30In addition to UK Government Ministers (including the
Secretary of State for the Colonies, Ian Macleod), the conference was
attended by representatives of the colonial administration (headed by
Sir Frederick Crawford, then Governor of Uganda), Baganda,
the Democratic Party, the Uganda People's Congress (UPC) and
others. Milton Obote and the honourable A.G. Mehta were the lead
representatives for the UPC.31 The Uganda government led by DP leader,
Ben Kiwanuka, strongly opposed the suggestion by the minister Commission
arguing that indirect elections were against the franchise of the people of
Buganda. In a very lengthy discussion, Ben Kiwanuka noted that not only
was the provision a recipe for instabilityand unpopular government, but that
it was only intended to appease the kabaka and Buganda delegation.
The main issue facing the conference was the status afforded to the different
historic kingdoms of Uganda (and in particular the Kingdom of Buganda) in
exchange for them recognising the existence of the new state of Uganda, of
which they would only be one part. In addition, the Kingdom of Bunyoro
only agreed to participate in the Conference if the disputed status of the "lost
counties" was discussed. When, during the Conference, Macleod suggested
that the referendum envisaged by the Relationships Commission could not
29
Apter, David E. (3 April 2013). The Political Kingdom in Uganda: A Study in Bureaucratic
Nationalism. Routledge. p. 403. ISBN 978-1-136-30757-7
30
Mukholi, David (1995). A Complete Guide to Uganda's Fourth Constitution:
History,Politics, and the Law. Fountain Publishers. pp. 10–11, Appendix 1. ISBN 978-
9970-02-084-3.
31
England), Uganda Constitutional Conference (1961: London (1961). Uganda: Report of
the Uganda Constitutional Conference, 1961 and text of the agreed draft of a new Buganda
agreement initialled in London on 9th October, 1961. H.M.S.O. OCLC 14210279.
56
proceed given the lack Bugandan support, instead proposing the

establishment of a further Commission of Privy Councillors (the Molson
Commission), Bunyoro's delegates walked out.32 Finally, the delegates were
informed that a commission of the Privy Council would be appointed to
advise on how the issue could be resolved. In Jan. 1962, a commission was
appointed with Lord Molson as its chairman to investigate and make
recommendations on the matter.
Apart from these contentious issues, the conference was able to decide most
of the issues involving the constitutional make up the executive legislature
and judiciary and the operation of these organs. The conference ended on 8th
October 1961 with an agreement that independence would be granted
exactly a year later on 9th October 1962. Aside the constitutional matters that
were resolved, the conference also produced several interesting developments.
The most important was the alliance [marriage of convenience] between
UPC and Buganda. The merger came mainly because UPC had supported
the kingdom on the issue if ‘indirect ‘elections leading it to believe that it had
UPC on its side stemming from this development was the realization by
Buganda that the only way to secure its interest would be the creation of a
political movement devoted to promotion of such interest. The movement
was born and came to be known as kabaka yekka [king alone]. 33This KY
movement would be mobilized for the next elections in 1962 with Buganda
this time fully participating, and did in effect register success for UPC with
37 to DP’s 24 and KY’s. UPC and KY would form a coalition government
which guaranteed UPC a firm majority in the National Assembly.
Second constitution conference opened on 2ndJune 1962 under the secretary

of state [Maudling] with the governor of Uganda, delegation from UK,
32
Dumbar, A. R. (1965). "A History of Bunyoro-Kitara" (PDF). Oxford University Press.
pp. 189–193. Retrieved 17 June 2017
3333
kanyeihamba
57
representatives of kingdoms, districts, urban authorities and the opposition

DP. The work of the conference was mainly done by three committees: -
(a) The constitutional committee;
(b) Citizenship committee, and
(c) Fiscal committee deal with matters of taxation and finance.
By this time, the minister committee had submitted its report and a new
constitution had been prepared on 1st march 1962. Nonetheless, the matters
that had not been settled a lancaster were stilloutstanding that is:
(a) Status of the three other kingdoms; Ankole, Bunyoro, and Toro.
Only the question of Buganda had been addressed. These too wanted
a federal status. They were also accompanied by the delegation from
Busoga [led by kyabazinga] who argued that they too had traditional
institutions and so should similarly get federal status.
(b) The ‘lost counties’ issue. The minister commission had visited from
jan- may1962 to make recommendations on the counties [the seven
were buyaga, bugangayizi, buruli, bulemezi, bugerere, buwekula, and
ssingo]. the commission recommended that two of these counties [
buyaga and bugangayizi] be transferred to Bunyoro before
independence with the five remaining with Buganda
At the Marlborough house, outstanding matters including the framework of

an independent Uganda were generally settled. The problematic issued would
remain however that of the ‘lost counties. The Bunyoro delegation argued
that there was no reason why only two of these counties should be returned.
On the other hand, the Buganda delegation argued that the peoples of these
counties were settled, happy with Buganda and there was no need therefore
to upset the states affairs. This caused statement and because of this, the
governor was compelled to take a stand on the issue as;
(a) There would be no immediate transfer of authority;
58
(b) Administration of the two counties (in question) would be

transferred to the central government.
(c) After not less than 3years from the date of transfer, would decide
onthe date for holding the referendum for the two counties in which
the electorate would be asked to make a choice amongst;
The referendum would in effort be the deciding factor on the fate of these
counties. The Prime Minister Obote accepted responsibility for
administering the referendum. On the last day of the conference, the
delegation of Bunyoro declared that the decision made was unacceptable and
withdrew. The report was therefore drafted in their absence. 34Although
Buganda did not withdraw, it also declared that the decision was
unacceptable. In effect, the lost counties issues remained outstanding. The
conference ended on 29thJune 1962 with the various parties of delegations)
agreeing that the decisions that had been made provided a firm foundation
for progress towards independence. The legal instruments that gave effect to
the Marlborough decisions were;
1) Independence act if august 1962 which stipulated that Uganda

would become independent on 9th October 1962.
2) Uganda independence order in council of 2nd October 1962 which

had the independence constitution appendix as a schedule.
Thus, on 9th October, the union jack was lowered for the last time and the
new flag for the independence of Uganda was raised. The1962 constitution
had been subject of debate, with some politicians arguing that it emphasized
divisions, parochialism at the expense of national unity. Scholars like Prof.
kanyeihamba consider the 1962 constitution as having hampered the power
of government by placing many obstacles in its path. Others have argued that
34
kanyeihamba
59
the constitution did not go far enough in decentralizing power and authority
and that its problem was too much power in central government. 35Joseph
kasaraine vs. the lukiiko [1963] EA 472. The applicant mr. kazaraine was
convicted for inciting the people of buyaga and bugangaizi not to pay taxes
to Kabaka’s government and abstracting the chiefs from carrying out their
rightful duties of revenue collection. The issue was to whom the jurisdiction
over the 2 counties was vested as between the central government and
Buganda government. Reference may be made to the second constitutional
conference which had directed that the 2 counties should be vested in the
central government and so it would obviously follow that the later was
entitled to exercise the jurisdiction over the territory. The court would let
Buganda emerge jurisdiction more out it seems of a desire not to upset the
political set up given the volatile character of the matter, and in any event a
referendum was scheduled that would resolve the issue, kazaraine’s case is
important for a number of reasons.
i) It underpinned the tensions in the relations between Buganda

and the 2 counties
ii) It portrayed the confusion which the 1962 constitution had

brought about with respect to an issue that was not resolved and
independence
iii) It demonstrated the phobias which the fatal arrangements of the

1962 constitution.
Referendum of the lost counties, 1964. Between 1962, the Kabaka’s

government had labored to justify why the counties should remain in
Buganda.36
35
kanyeihamba
36
kanyeihamba
60
i) The endowment of Buganda than Bunyoro that the 2 counties

would benefit more under Buganda
ii) The benevolence and non-sectarianism which had characterized

the Kabaka’s rule.
iii) The undesirability of upsetting the admin. Arrangement that had

existed for such a long period
iv) The development of the counties had been secured under

Buganda’s rule. Further, there were concerns that a change of
admin. Would adversely affect Buganda and owners. The central
government nonetheless went ahead with the referendum which
was held on 4th November 1964. The 2 counties overwhelmingly
voted to return Bunyoro. Kabaka Muteesa II as president was
supposed to sign the instruments confirming transfer but refused
to do so. Obote as the prime minister put the issue before the
national assembly amends through the constitution of Uganda,
the territorial transfer was confirmed.37 The Buganda
government appealed to both the high court and Privy Council
and lost. The referendum was the final nail in the upc- ky coffin
marketing the death of the coalition.
v) There was widespread hostility between Buganda which would

gain magnitude. For Obote and UPC, the referendum was boost,
and show that they would no longer be held a ransom on
Buganda’sdemand. Several KY mps were in factpersuaded to
cross to UPC undermining the strength KY. Similarly, several
members of the opposition DP also crossed over and the biggest
coup in this regard was Basil Bataringaya (who became minster
See: Proceedings of the Report of the Hancock Constitutional Commission, Government

37
Archives, Entebbe.
61
for internal affairs). UPC was thus stronger than ever to enable
the government to control national assembly.
vi) The problem of governance and autocratic tendencies would

become a feature of the early years of independence the partner
of leadership during the colonial period had emphasized the
omnipotence of the ruler and the insubordination of the ruled.
That legacy would manifest its self after attainment of
independence. The post-independence rulers merely stepped
into the shoes of their predecessors leading to a new form of
autocratic rule. Apollo Obote exemplified this kind of new
African leadership that even from the earliest days of
independence autocratic tendencies had gradually begun to crip
into government both in terms of disrespect of the constitution
of the exercise of excessive powers. In the regard, where the
constitutional president obstacles, it was then simply bypassed
and this tendency was illustrated in a number of cases.
In the recommendation of Muster Commission that was chaired by Munster

Earl in 1962, Buganda had refused to accept the referendum as had been
recommended by Munster commission. The Munster Commission’s Report
contrasts greatly with an earlier Report of the Constitutional Committee
headed by Professor Hancock.38 The former recommended a federal and
semi-federal form of government. The latter basing their opinion on the
findings of their report recommended that a unitary form of government
would be more suitable for the country. The Constitutional Committee,
which comprised representatives of all communities in Uganda saw and
interviewed more Ugandans than the Munster Commission did. Therefore,
there can be little doubt that in appointing the Commission, the British had
already made up their minds as to the form of government they intended to
introduce in Uganda. Munster’s recommendations are only interesting for
See: Proceedings of the Report of the Hancock Constitutional Commission, Government

38
Archives, Entebbe.
62
their contradictions. 39On the one hand, Uganda was to be a single democratic
state with a strong central government. On the other, Buganda was to be a
federal state within Uganda. Buganda was not only to have the same semi-
autonomy she enjoyed then but she would enjoy more privileges come
independence. The members of the Buganda Lukiiko were to be directly
elected but once elected, Buganda would decide whether Buganda
representatives to the Legislature Council were to be directly elected as well
or appointed by the kingdom.40 One good thing the Munster Commission
recommended was the holding of a referendum in two of the “Lost Counties”
where the evidence had showed that the majority of the population were
Banyoro.41 The two were Buyaga and Bugangaizi. The ‘lost counties’ were
formerly part of the Bunyoro territory which the colonial government
transferred to Buganda as a gift for the assistance it received from Buganda in
the war against and defeat of King Kabalega of Bunyoro. For years Bunyoro
had tried to have the lost counties returned to it without success. 42 In
accordance with the agreement reached at the previous conference, a
Commission under Lord Molson had been appointed to study and report on
the situation in the Lost Counties. The Commission did its work from
January 1962 and reported in May the same year. The Commission’s
recommendation was that two of the “lost counties,” Buyaga and Bugangaizi
should be transferred to Bunyoro before independence and that the
remainder of the counties should remain part of Buganda.43 Neither Bunyoro
nor Buganda was willing to accept this recommendation. The conference had
no visible solution either. In the end, the British Secretary of State advanced
39
Incidentally, the majority of Ugandans lived outside the areas whose indigenous leaders
had signed these agreements.
40
See: Correspondents Mawagi and Kizito’s letters in the Uganda Argus, 11 March 1959.
41
kanyeihamba
42
See: Kwebiha’s (former Bunyoror Prime Minister) letter to the Governor of 27 November
1961 protesting about the New Agreement of that year purported to keep the lost counties
in Bugand
43
Uganda Argus. 6 November 1964
63
his own solution. There would be no transfer of the two counties to Bunyoro.
Instead, they would be transferred to the Uganda Central Government which
would administer them, provided that after two years, the National Assembly
would decide, on a date for a referendum, to be held in the two counties, so
that the inhabitants there would determine their future. The Prime Minister
Milton Obote duly accepted this responsibility on behalf of the Uganda
Government amid protests from both the Bunyoro and the Buganda
delegations. Buganda persisted in her refusal to accept a referendum, the
referendum was eventually held and its results on 5 November 1964 showed
that the two counties had decided overwhelmingly to rejoin Bunyoro. In the
jubilation that followed the transfer, Bunyoro appeared to have forgotten
that the two were not the only “lost counties.” On the other issues, the
conference reached general agreement and an outline of the Independence
Constitution was formulated and agreed upon. Uganda was to attain
independence on the 9 October 1962.
Buganda refused to accept a referendum as had been recommended by the

Munster Commission and, accepted by the British Government. The
Secretary of State then proposed a compromise. He suggested that a
Commission of Inquiry, composed of Privy Councillors be appointed to
investigate and study the problem specifically. On her part, the Bunyoro
kingdom, insisted that the problem be solved by the Conference, and when
she realised that the Conference was undecided, her delegation walked out in
protest.44
In their absence, the British compromise was accepted. However, most other
delegates expressed the view that the fate of the “Lost Counties” must be
determined, by the British, before the granting of selfgovernment. But as
events were later to show, this did not happen. At the end of the Conference,
it appeared that all parties except Bunyoro and the Democratic Party, were
44
See: Kwebiha’s (former Bunyoror Prime Minister) letter to the Governor of 27 November
1961 protesting about the New Agreement of that year purported to keep the lost counties
in Buganda
64
satisfied with the Conference’s conclusions. Buganda got her federal status;
the other three kingdoms and Busoga got a semi-federal status and the rest
were to be unitary in relation to the central government. The Uganda
People’s Congress came out satisfied because her friendship with Buganda
was growing and would soon blossom into a political marriage of
convenience.45
The lost counties were left in the hands of the central government control.
The 1962 constitution granted Buganda a federal autonomy, but it did not
provide a resolution to a territorial dispute surrounding the counties of
Buyaga and Bugangaizi. The two regions had been annexed by Buganda from
the Kingdom of Bunyoro around the turn of the 20th century with the
United Kingdom's consent. Bunyoro had demanded the return of the "lost
counties" before independence, but this did not occur. On 25 August 1964,
Obote submitted a bill in Parliament that called for the matter to be settled
through a referendum.Mutesa and Obote held opposing stances on the issue;
the former wished for the territories to remain with Buganda, while the latter
wanted them to be returned to Bunyoro. In an attempt to sway the vote,
Mutesa arranged for large numbers of his subjects to settle in the counties.
Obote foiled his plan by decreeing that only persons registered in the area for
the 1962 elections could participate in the referendum. Mutesa then vainly
attempted to bribe the electorate. The referendum was held on 4 November
1964, and the voters chose by a wide margin to return to Bunyoro.
The result of the vote bolstered Obote's support in Bunyoro and created
outrage in Buganda. Baganda rioted and attacked ministers of their
kingdom's government. On 9 November Michael Kintu,
the Kattikiro (Prime Minister) of Buganda, resigned and was replaced
by Jehoash Mayanja Nkangi Conservative Baganda chiefs such as Amos
Sempa increasingly encouraged Mutesa to resist Obote. When Obote
45
It was decided that the matter would be decided by referenda in the lost counties after the
attainment of independence.
65
presented the necessary documents officiating the transfer of jurisdiction for

Mutesa to sign as President, the latter refused, declaring, "I can never give
away Buganda land." Obote signed in his place, but relations between the two
men were strained by the ordeal. The transfer took effect on 1 January 1965,
the question of Buganda’s position in relation to Uganda is without doubt
traceable to the period leading up to independence – the minister report 1961
and the conferences. The federal status of Buganda as a major aspect of the
1962 constitution created a tension in which the demarcation of authority
becomes all too confused. The potential to flare-up was always manifest in
particular as regards to matters of jurisdictionand finance and revenue.Cf.
Kabaka’s government and anor vs. AG of Uganda and anor PC app no. s.6 of
1964, AG of Uganda vs. Kabaka’s government [1965] 291 coming up in 1965
in the wake of the lost counties referendum a year earlier. The case highlighted
how fragile the constitutional framework of 1962 constitution the federal
relations of Buganda in a unitary Uganda law was if the lost counties largely
marked the end of the upc-ky alliance, this case damned the 1962
constitutional arrangements and spelt its doom. 46The case involved the
distribution of finances between the central government and Buganda
government, and how much in a block grant Buganda entitled from the
central government. The fact that the matter would up in court and could
not be amicably solved between the 2 parties demonstrates how hostile their
relationship had become. Thus, leading to the 1966 kabaka crisis
Note until the land commission of 1992 that was chaired by the former chief
Justice Benjamin Odoki, the Baganda’s interenst was still in the lost counties
that inturn brought the aspect of the Kibaale “ghost landlords” , who were
compensated and thus the Baganda where removed completely from the lost
counties.
Article 2 of the 1900 Buganda agreement. The Kabaka and Chiefs of

Uganda hereby agree henceforth to renounce in favour of Her Majesty the
46
Mugaju J: The Illusion of Democracy in Uganda – 1955-1966, op.cit. page 6.
66
Queen any claims to tribute they may have had on the adjoining provinces of
the Uganda Protectorate.
Pursuant to Article 2 of the Buganda Agreement, 1900, Buganda lost the

right to collect tribute from vassal kingdoms with the British not only taking
over but also introducing taxes such as a Hut and Gun Tax and later Bicycle
Registration Tax among others. The Kabaka was restricted to only fifty guns
compared to Mwanga who as a Kabaka mobilized over two thousand guns in
his revolt. It is not in dispute that up to and including the year 1961, the
Protectorate Government controlled the expenditure of all Governments,
administrations and other authorities in Uganda, and that, with
certain exceptions with which we are not immediately concerned, all revenues
were collected by the Protectorate Government. Financial provision in aid of
the activities of the Governments, administrations and other authorities was
made by the Protectorate Government by means of recurrent grants made for
specific purposes which, generally speaking, were to be applied only for those
purposes. The court broadly noted in the case of The Attorney General of
Uganda v The Kabaka’s Government47 that, it may be said that the
Protectorate Government had therefore complete control over the revenues
and expenditure of all subordinate Governments and administrations. Thus,
the Buganda Government, no less than the other governments, was subject
to that control.
In addition to that, looking at Article 3 which stipulated that Buganda would

rank as a province of equal standards with any other provinces in the
protectorate this was intended to give Buganda an enhanced position that could
eventually lead to struggles between her and the rest of Uganda and this can be
evidenced from 1953 when Buganda bacame involved in struggles to enhance
her position and defend her Interests or assert her.
47
EA1963
67
Buganda was not ready to be equal as other provinces like Busoga, Toro
which were economically backward and hence started claiming for federalism
by Muteesa II making the 1953 – 55 Kabaka crisis inevitable. Significantly the
1953 reform would demonstrate the dependence of the colonial government
on the legal cooperation of the Kabaka with the ascendancy of Mutesa II as
Kabaka, his strength was bound to be the cause of friction between the
Buganda government and the colonial government. Educated at Cambridge
and already offended that he was not treated with honour at the coronation
of Queen Elizabeth II in 1952, the reliance on Mutesa II to promote colonial
government policy was unlikely to be a happy cirmustance. Nonetheless
Mutesa II was keen to support the March 1953 reform but where the Cohen
policy in its strong belief that Uganda must develop as a unitary state
threatened the tribal loyalties. This would result in tribal institutions
including the Kabakaship declining in importance. This factor and concern
would spark off the crisis in Buganda that came to be known as the Kabaka
crisis of 1953 – 1955.
The Kabaka crisis of 1953 – 1955 was sparked off by a speech made on 30th
June, 1953 by the Secretary of State for the colonies in which he referred to
the possibility.48 “As time goes by of larger measures of unificationand
possibly still larger measures of federation of the whole East African
territories.”
This pronouncement caused adverse public reaction on Buganda. In a

seriously worded letter, Kabaka Mutesa II urged that the affairs of Buganda
be transferred from the colonial office to foreign office and that the time table
be prepared for the independence of Buganda. In particular, they later rated
that; “The Kabaka and his ministers could no longer feel happy about
Buganda’s position under 1900 agreement. Apart from the danger of
federation, they considered the policy of developing aunified system of
government along parliamentar lines which would result in Buganda
becoming less and less important in the future.” The Kabaka’s and Buganda’s
48
Constitutional history and politics of East Africa: Pro. G.W. Kanyeihamba
68
demands were for more than a challenge to any proposed federation as they
meant a complete break with governor’s Cohen’s vision of a unitary state in
Uganda. The Kabaka’s letter would only reaffirm Buganda’s separatist
tendencies and assertion of claims to a special status that were arguably
evident since 1902. During the proceedings of a case filed in 1994 to challenge
the deportation of the Kabaka (Mukwaba and 2 other v Mukubira and 4
other). The treasurer is recorded as having stated: “After some two or 3 years
after the agreement, the divisions (dependencies) into provinces to rank as
being equal to Buganda province. As regards administration we are of
equalrank but otherwise, we the Buganda kingdom is independent.”
The 1955 Buganda Agreement (gave Buganda a format of electing

representatives to the Leg co.) be until May 1955 that Muteesa II was allowed
to return, with a new Buganda agreement of 1955 in place. By the time the
kabaka was deported and deposed, his popularity had suffered mainly as a
result of the 1940s uprisings in which chiefs and ministers had been targets.
The Kabaka’s stand was thus not only a challenge or British policy, but an
effort to consolidate loyalties of this own people. Paradoxically, buy taking a
stand against the colonial government Muteesa II was perceived with in and
outside Uganda as nationalist. The heroism was further enhanced by virtue
of the fact that in settling the kabaka crisis and drawing up of a new
agreement, the Buganda agreement of 1955, in which the colonial
government made a major concession to the kabaka on the issue which had
been the cause of his deportation. thus, in the preamble of the agreement, it
was provided;
“her majesty’s government has no intention whatsoever of raising the issue of

east African federation either at the present time while the local public
opinion on this issue remains as it is at the present day of signing and
recognizes accordingly that the intrusion of Buganda protectorate in any such
confederation is outside the realm of practice politics at the present time or
while public opinion remains as it is” Her majesty’s government also
undertook to consult with the government of Buganda on the issue of
69
federation. in this way, the 1955 agreement put to rest the question of
federation, thus upholding the Kabaka’s original objection. The main feature
of the 1955 agreement was;
a) It was the constitution for Buganda. The Buganda government was

transformed in structure, if not in spirit, into a constitution
monarchy. The framework was thus established within which the
objective of a united, if not unitary Uganda government along
parliamentary lines was to be pursued.
b) B) it provided for the participation of Buganda in the legislative

council, with Buganda’s representatives elected on a formal of
indirect elections with the lukiiko acting as an electoral college. The
composition was not to be altered for 6 years49
Muteesa II was projected as a nationalist for standing up to the colonial

government; in fact, he was only protecting Buganda’s sub-nationalist
federalist interests. From 1955 onwar5ds, the kabaka and his government
embarked on a course to ensure protection of the interests of Buganda. The
separatist’s tendencies of Uganda became heightened notwithstanding the
formal constitutional arrangement the 1955 agreement. When the Kabaka
was restored to the throne in 1955, the Buganda traditionalists under Michael
Kintu won power and composed the biggest number of supporters in the
Lukiiko. Leading opponents of the traditionalists were expelled from the
Lukiiko and less enthusiastic chiefs were summarily dismissed from their
posts. Political parties were declared alien to Kiganda customs and the clan
leaders issued a statement condemning any Muganda who joined political
parties. The ‘Kintu’ administration refused to co-operate with the
Protectorate government and demanded that powers exercised by the
Governor be transferred to the Kabaka. It has been noted that in 1958, the
49
See especially article 7 and the 2nd schedule (which provides for regulations on elections
anciliary to of the agreement
Katikiiro of Buganda vs. AG of Uganda [1959] EA 182.
70
Buganda Lukiiko rejected direct elections for the Legislative Council. As a

result, from that year until 1961, Buganda was not represented in the
Council. The question arose as to whether, in rejecting direct elections for the
Legislative Council, Buganda had broken the 1955 Agreement by which the
Kabaka had been restored to the Kingdom. The Agreement provided, inter
alia, that Buganda had to be represented in the Legislative Council by
representatives of whom at least a quarter were directly elected. It was further
provided that Buganda’s future representation would be under a system of
direct elections.
In 1958 and 1961 legislative council election – boycott and demand for
indirect method of election. Demand for independent Buganda as a state and
the federal status and indirect elections to national assembly at the Lancaster
conference, 1961.
H A R D EN IN G OF B U G AN D A AS T O I T S ST A T U S AN D IN TER E ST S
FR OM 1958 ON W O R D S ON A SP E CT O F FE DE R A LI SI M
TEN DEN C I E S .
While the wild committee was making its consultations, Buganda kept on
hardening as its perceived status in the protectorate. With the 1958 boycott,
the hardliner elements comprising the kabaka, chiefs and landlords began to
map ways of ensuring that Buganda’s autonomy was secured. The boycott of
elections had its self been signed to put pressure on the colonial government
to give into the demands of the kingdom. A movement began to grow in
Buganda with its primary goal to secure the protection of Buganda’s interests
against the designs of the nationalists. The culmination of the movement’s
function was the submission Ist November 1960 of a memorandum to her
majesty, the queen of England stating as follows;
a) British protection over Buganda by the 1900greemnet should be

terminated and
71
b) As a consequence of the termination of the status, plans should be

immediately made for an independent Buganda. Amongst other
things the plan would include;
i) Establishment of friendly relations between Buganda and HMG

and the exchange of ambassadors and high commissioners.
ii) Buganda would remain in the common wealth and seek

membership of the UN;
iii) All powers previously exercised by the governor to be vested in

the kabaka and his government;
iv) Buganda would have its own armed forces with the Kabaka as
commander in chief.
v) All institutions of learning in Buganda with the exception of

Makerere College would fall under Buganda jurisdiction.
vi) Makerere College would fall under the jurisdiction of Buganda.
vii) Arrangements for the independence of Buganda should be

complete by December 1960. On 1stJanuary 1961 the lukiiko
declared the independence of Buganda. Although the declaration
was never a reality, the message was very clear.
This was sharply brought home with the preparations for the 1961 elections.
Although the colonial government went ahead with the elections, the
Kabaka’s government directed its follower not to register for the elections.
Indeed, by thetime registration was closed, only a handful of mainly dp
supporters had actually registered. In effect, Buganda had organized another
boycott which was successful. In political terms, the boycott marked the
death of Dp in Buganda because dp had defied the boycott. Ben kiwanuka
was portrayed as anti- Buganda luganda and as a man who did not respect the
kabaka. It was not helped that Ben kiwanuka was also of catholic faith.
72
On the other hand, UPC gained from the boycott because they had not
decided not to fill in candidates in Buganda. The Buganda government
therefore felt that there was a possibility of good relations with Upc’s Apollo
Milton Obote, and marked the onset of the UPC – Buganda alliance later
cemented during the Lancaster conference.
The wild 1961 and minister report 1962 laid out the broad parameters for the
debate on the constitution for the independent Uganda. In fact, in certain
respects, the 2 reports foreclosed debate, while in others they opened up issues
to incorporate new dimensions. Indeed, it can be said particularly of the
munster report that it provides a draft constitutional report for Uganda. At
the opening of the Lancaster conference in September 1961, the secretary of
state for colonies expressed the view that as far as relations with Buganda were
concerned, the minister proposals were so far the best of not the only way of
securing the co-operation of the people of Buganda in the creation of an
independent Uganda.
The question of Buganda’s position in relation to Uganda is without doubt

traceable to the period leading up to independence the munster report 1961
particular as regards to matters of jurisdictionand finance and revenue.
Kabaka’s government and anor vs. AG of Uganda and anor PC app no. s.6 of
1964, AG of Uganda vs. Kabaka’s government50coming up in 1965 in the
wake of the lost counties referendum a year earlier. The case highlighted how
fragile the constitutional framework of 1962 constitution the federal
relations of Buganda in a unitary Uganda law was if the lost counties largely
marked the end of the upc-ky alliance, this case damned the 1962
constitutional arrangements and spelt its doom. The case involved the
50
[1965] 291
73
central government. The fact that the matter would up in court and could
not be amicably solved between the 2 parties demonstrates how hostile their
relationship had become.
UPC-KY coalition,In 1960, Milton Obote helped to establish a political

party in Uganda, known as the Uganda People's Congress (UPC). The UPC
aimed to erode the power and influence of the "Mengo Establishment", a
group of traditionalist Baganda that led the sub-national kingdom
of Buganda.[1] The Mengo establishment was plagued by rivalries and
infighting, but most of its members, as Protestant Christians, were united by
their dislike of the Democratic Party (DP), which was dominated
by Catholics.
The DP won a majority in Uganda's first free national elections in 1961, and
formed a government. The UPC and traditionalist Baganda both disliked the
Catholic orientation of the DP, but were diametrically opposed to each
others' ideals. Despite this, the UPC gave Grace Ibingira, a conservative
member of its ranks, the responsibility of making contact with the Baganda
to establish an alliance to unseat the DP. The UPC chose him for the role
because he was personally acquainted with the Kabaka (King) of
Buganda, Mutesa II. After several negotiations, the UPC and Baganda leaders
held a conference whereupon an agreement was reached. Soon afterwards the
Baganda created the Kabaka Yekka (KY), a traditionalist party that entered an
alliance with the UPC.
Following the UPC's victory in the April 1962 general elections, Obote was
tasked with forming a government. He became Prime Minister of a UPC-KY
coalition government. The KY held mostly insignificant portfolios, while
Obote obtained control of the security services and armed forces. Ibingira
was made Minister of Justice. Uganda was granted independence from
the United Kingdom on 9 October 1962. In 1963 Mutesa was elected
President of Uganda, a largely ceremonial post. Obote supported his election
with the intention of appeasing the Baganda population.
74
In 1964 Ibingira initiated a struggle to gain control of the UPC with the
ultimate goal of deposing Obote from the party presidency. At a party
conference in April he challenged the left-leaning John Kakonge for the
secretariat-general of the UPC. He convinced Obote that Kakonge posed a
threat to his leadership of the UPC. With Obote's support, Ibingira ousted
Kakonge by two votes. He used his new position to purge the party of a
number of leftists. Meanwhile, Mutesa increasingly feared that the UPC
would deny his kingdom its traditional autonomy and concluded that in
order to retain power he would have to garner influence in national politics.
He proceeded to instruct Baganda members of Parliament to join the UPC
with the goal of bolstering Ibingira's position and unseating Obote, thus
allowing for a reorientation of the UPC-KY alliance that would be more
favorable to Buganda. As his working relationship with Mutesa improved,
Ibingira amassed a coalition of non-Baganda southerners, dubbed the "Bantu
Group". Meanwhile Obote began appealing to DP MPs to defect and join his
party in Parliament. He successfully convinced several to do so, including the
DP floor leader. On 24 August 1964 Obote, with the UPC having
consolidated a majority in Parliament, declared that the coalition with KY
was dissolved.
unitarism aspect of Milton Obote and Federalism of Mutesa, this brought the
aspect of relationship of Buganda and Uganda due to unanswered accrim by
the 1962 constiution, this in turn made Milton Obote to attack Bulange
Mengo to caputer the Kabaka Mutesa who escaped to exile .it was the
Catholic oriest that made him to escape from the army of Idi Amin and thus
annoyed Baganda making the first stone to the crisis of 1966
Article 4. The revenue of the Kingdom of Uganda, collected by the Uganda

Administration, will be merged in the general revenue of the Uganda
Protectorate, as with that of the other provinces of this Protectorate.this
annoyed the Baganda who wanted the tax collected in Buganda to benefit
Buganda region because they were collecting the lion share on the total tax,
75
thus made Baganda to cause the 1953-55 crisis with grounds of federalism
tendencies same also the 1966 crisis.
Article 5 of the Buganda aggrement. The laws made for the general
governance of the Uganda Protectorate by Her Majesty's Government will be
equally applicable to the Kingdom of Uganda, except in so far as they may in
any particular conflict with the terms of this agreement, in which case the
terms of this Agreement will constitute a special exception in regard to the
Kingdom of Uganda. Article 5 of the agreement was to the effect that
although the general laws governing the protectorate would equally apply to
Buganda, however, were they in particular conflicted with the terms of the
Agreement; the Agreement would constitute a special exception with regard
to Buganda. As a matter of fact, the reports of the Commissioners who later
got to be baptized as governors could not supersede the Agreement.
The intention of article 5 was to ensure that Buganda did not play any special
or privileged status in the protectorate in comparison to the other parts or
provinces while this was latter of the agreement, the spirit of it was to in fact
give Buganda an enhanced position which would eventually lead to struggles
and conflicts between Buganda and the rest of Uganda which characterised
the protectorate and immediate post-independent periods. Buganda became
involved in struggles to enhance its position or even to assert its independence
and these would become more apparent in the period leading to
independence and the post independence period.
Under the ordinary rules for the construction of statutes the reports of
commissioners are not admissible for the purposes of directly ascertaining the
intention of the Legislature, though they may perhaps be looked at as part
of the surrounding circumstances for the purpose of seeing what was the
evil or defect which the Act under construction was designed to remedy. And
as such, the white papers prepared by commissioners or the reports therewith
were inadmissible for the purpose of construing the native treatise. This
provision certainly gave the Buganda Agreement in particular a prominent
76
position in the shelves of the space of law in Uganda, thus showcasing the
greatness of Buganda above other regions and their respective agreements.
It’s of great importance to note that the First and Second Schedules to the
Buganda Agreement of 1955 were given the force of law by a
proclamation made under s. 2 (2) of the Buganda Agreement, 1955 and the
Order-in-Council, 1955. On July 29, 1955, the Buganda Agreement, 1955
and Order-in-Council, 1955, were made. On October 18, 1955, the 1955
Agreement was entered into between the Governor on behalf of Her Majesty
the Queen and the Kabaka on behalf of the Kabaka, chiefs and people of
Buganda. This provided inter alia for the administration of Buganda in
accordance with the Constitution set out in the First Schedule and that those
provisions should have effect from the date when the Agreement was
executed. The Second Schedule of the 1955 Agreement is ancillary to art. 7
of the 1955 Agreement, and contains regulations for the election of persons
for recommendation to the Governor for appointment as representative
members from Buganda of the Legislative Council of the Uganda
Protectorate. Seeingthat the Second Schedule has been given the force of law,
the court is entitled to look at, and to construe, that Schedule. If authority is
needed for this proposition, it will be found in the case of Stoeck v. Public
Trustee
Article 6 of this agreement stipulated, for the Kabaka to be recognized as

the native ruler of his people “His Majesty” and to be given protection by the
colonial government, saluted with10 gun shots at every ceremony, paid a
salary monthly, given house hold needs and was given approximately 50 guns
for protection. The Kabaka , chiefs and the people of Buganda will have to
conform to the laws of his majesty the queen of England and so this acted as
a tool to indirect rule and failure to cooperate with them could lead to
withdraw of protection as it was seen in the case of Mukabwa V Mukubira
1954 and very many other significances of this article even in the other cas of
Nasanairikibuuka V Bertie Smith .There fore this article meant that the
Kabaka had to become a worker of the colonialists any any disagreement
77
could lead to his displacement hence sealing off any hopes for
independence.So long as the Kabaka, chiefs, and people of Uganda shall
conform to the laws and regulations instituted for their governance by Her
Majesty's Government, and shall cooperate loyally with Her Majesty's
Government in the organisation and administration of the said Kingdom of
Uganda, Her Majesty's Government agrees to recognise the Kabaka of
Uganda as the native ruler of the province of Uganda under Her Majesty's
protection and over-rule. The King of Buganda shall henceforth be styled His
Highness the Kabaka of Uganda. On the death of a Kabaka, his successor shall
be elected by a majority of votes in the Lukiko, or native council. The range
of selection, however, must be limited to the Royal Family of Uganda, that is
to say, to the descendants of King Mutesa.
The name of the person chosen by the native council must be submitted to
Her Majesty's Government for approval, and no person shall be recognised as
Kabaka of Uganda whose election has not received the approval of Her
Majesty's Government. The Kabaka of Uganda shall exercise direct rule over
the natives of Uganda, to who he shall administer justice through the Lukiko,
or native council, and through others of his officers in the manner approved
by Her Majesty's Government. The jurisdiction of the native Court of the
Kabaka of Uganda, however, shall not extend to any person not a native of
the Uganda province.
The Kabaka's Courts shall be entitled to try natives for capital crimes, but no
death sentence may be carried out by the Kabaka, or his Courts, without the
sanction of Her Majesty's representative in Uganda. Moreover, there will be
a right of appeal from the native Courts to the principal Court of Justice
established by Her Majesty in the Kingdom of Uganda as regards all sentences
which inflict a term of more than five years' imprisonment or a fine of over
£100.
In the case of any other sentences imposed by the Kabaka's Courts, which
may seem to Her Majesty's Government disproportioned or inconsistent
with humane principles, Her Majesty's representative in Uganda shall have
78
the right of remonstrance with the Kabaka, who shall, at the request of the
said representative, subject such sentence to reconsideration.
The Kabaka of Buganda shall be guaranteed by Her Majesty's Government

from out of the local revenue of the Uganda Protectorate a minimum yearly
allowance of £1,500 a year. During the present Kabaka's minority, however,
in lieu of the above-mentioned subvention, there will be paid to the master of
his household, to meet his household expenditure, £650 a year, and during
his minority the three persons appointed to act as Regents will receive an
annual salary of £400 a year. Kabakas of Uganda will be understood to have
attained their majority when they have reached the age of I8 years. The
Kabaka of Uganda shall be entitled to a salute of nine guns on ceremonial
occasions when such salutes are customary.
Even though Kabaka was given all the benefits The Kabaka of Buganda
Mutesa felt embarrassed when he was studying in England, he wasn’t
recognised as the Kabaka or a Mornach. Same also the gunshots that where
ladite to the kabaka at any ceremony was an insult because the Queen of
England was saluted with 21-gun shots, Kabaka’s decision was not final
without the assent of the governor Andrew Cohen who was representing Her
Mergesty Queen of England, thus made Mutesa to raise up with federalism
affiliation hence causing the 1953-55 kabaka crisis, thus also the same factor
leading to the formation of the 1966 crisis.
Article 7. The Namasole, or mother of the present Kabaka (Chua), shall be

paid during her lifetime an allowance at that rate of £50 a year. This allowance
shall not necessarily be continued to the mothers of other Kabakas.
Article 8. All cases, civil or criminal, of a mixed nature, where natives of the
Uganda province and non-natives of that province are concerned, shall be
subject to British Courts of Justice only.
Article 9. For purposes of native administration, the Kingdom of Uganda

shall be divided into the following districts or administrative counties:
79
(1) Kiagwe (11) Butambala (Bweya) (2) Bugerere (12) Kiadondo (3) Bulemezi
(13) Busiro (4) Buruli (14) Mawokota (5) Bugangadzi (15) Buvuma (6)
Bwekula (16) Sese (7) Singo (17) Buddu (8) Busuju (18) Koki (9) Gomba
(Butunzi). (19) Mawogola (10) Buyaga (20) Kabula
At the head of each county shall be placed a chief who shall be selected by the
Kabaka's Government, but whose name shall be submitted for approval to
Her Majesty's representative. This chief, when approved by Her Majesty' s
representative, shall be guaranteed from out of the revenue of Uganda a salary
at the rate of £200 a year. To the chief of a county will be entrusted by Her
Majesty's Government, and by the Kabaka, the task of administering justice
amongst the natives dwelling in his county, the assessment and collection of
taxes, the up-keep of the main road, and the general supervision of native
affairs.
On all questions but the assessment and collection of taxes the chief of the
county will report direct to the King's native Ministers, from whom he will
receive his instructions. When arrangements have been made by Her
Majesty's Government for the organization of a police force in the province
of Uganda, a certain number of police will be placed at the disposal of each
chief of a county to assist him in maintaining order.
For the assessment and payment of taxes, the chief of a county shall be
immediately responsible to Her Majesty's representative, and should he fail in
his duties in this respect, Her Majesty's representative shall have the right to
call upon the Kabaka to dismiss him from his duties and to appoint another
chief in his stead. In each county an estate, not exceeding an area of 8 square
miles, shall be attributed to the chieftainship of a county, and its usufruct
shall be enjoyed by the person occupying, for the time being, the position of
chief of the county.
By the Buganda Agreement, 1900, made on behalf of Her Majesty and on

behalf of the Kabaka; the relationship between Her Majesty’s Government
and the Kabaka, chiefs and people of Buganda was further defined and
80
cemented. This Agreement was notably extended by various supplementary

agreements. By the Uganda Order-in-Council, 1902, the Governor was made
the Legislative authority for the Uganda Protectorate.
Article 10. To assist the Kabaka of Uganda in the Government of his people
he shall be allowed to appoint three native officers of state, with the sanction
and approval of Her Majesty's representative in Uganda (without whose
sanction such appointments shall not be valid)- A Prime Minister, otherwise
known as Katikiro; a Chief Justice; and a Treasurer or Controller of the
Kabaka's revenues.
The Buganda’s Charter of Rights also provided for the appointment of three
native officers; that is the Katikiro (Prime Minister), a Chief Justice
(Omulamuzi) and a Treasurer (Omuwanika) or controller of the Kabaka’s
revenue; to assist the Kabaka in the governance of his people. And it further
to laid out how the Lukiiko (native Council) was to be constituted and how
its members were to be appointed along with its legislative functions which
included the making of resolutions in matters concerning the administration
of Buganda subject to the consent of the Kabaka and the Governor. Suffice
to say, the Kabaka was recognized as the ‘supreme ruler’ of the Kingdom. I
find it of paramount importance to delve through the case of Nasanairi
Kibuuka vs. A.E. Bertie Smith. In that case, the defendant a European, agreed
to buy certain land from the plaintiff a Muganda chief. The defendant was
willing to carry out his contract. But although the Governor had given his
consent to the transaction, the consent of the Lukiiko was necessary before
the land could be conveyed. Court held that under the Buganda Agreement,
1900, the Lukiiko had legislative powers and therefore in a case where, under
the native law, the consent of the Lukiiko was necessary to the transfer of
land, specific performance would not be enforced of a sale of land when such
consent was shown not to have been given. This landmark decision
unquestionably portrayed Buganda as a protected state in the Uganda
protectorate.
81
These officials shall he paid at the rate of £300 a year. Their salaries shall be
guaranteed them by Her Majesty's Government from out of the funds of the
Uganda Protectorate. During the minority of the Kabaka these three officials
shall be constituted the Regents, and when acting in that capacity shall receive
salary at the rate of £400 a year. Her Majesty's chief representative in Uganda
shall at any time have direct access to the Kabaka and shall have the powers of
discussing matters affecting Uganda with the Kabaka alone or, during his
minority, with the Regents; but ordinarily the three officials above designated
will transact most of the Kabaka' business with the Uganda Administration.
The Katikiro shall be ex-officio the President of the Lukiko, or native council;
the VicePresident of the Lukiko shall be the native Minister of justice for the
time being; in the absence of both Prime Minister and Minister of Justice, the
Treasurer of the Kabaka's revenues, or third minister, shall preside over the
meetings of the Lukiko.
The kabaka’s position was to appoint and the Governor to vet and same also
to dismiss this made the king to lack control of his own minister, thus leading
to the out break of the 1953-55 kabaka crisis on grounds of federalism.
Article 11. The Lukiko, or native council, shall be constituted as follows:
In addition to the three native ministers who shall be ex-officio senior

members of the council, each chief of a county (twenty in all) shall be ex-
official. Before the colonial era, Buganda was an autonomous State socially,
economically and politically with a king who was vested with supreme
powers. However, upon the signing of the Agreement, Buganda was stripped
of its independence; for example, its revenue was to be collected in the general
revenue of the protectorate. Pursuant to Article 11 of 1900 agreement, the
Kabaka had to share his powers of decision making with his chiefs pursuant
to the Native Authority Ordinance, which vested some administrative
mandate to the chiefs. Needless to say, all the powers exercised by the Kabaka
were now subject to the Protectorate Government. In the case of Rex vs
Crewe Ex. P. Sekgome the British Court of Appeal held that by virtue of the
82
Foreign Jurisdiction Act, the crown’s powers in one of its protectorates could
not be legally challenged because it was an Act of state. These judicial
pronouncements propelled the Kabaka at one time to lament during the
Bataka- peasant grievances, that his position was so precarious that he was no
longer the direct ruler of his people.
In addition, the Kabaka shall select from each county three notables, whom
he shall appoint during his pleasure to be members of the Lukiko or native
council- The Kabaka may also, in addition to the foregoing, appoint six other
persons of importance in the country to be members of the native council.
The Kabaka may at any time deprive any individual of the right to sit on the
native council but in such a case shall intimate his intention to Her Majesty's
representative in Uganda, and receive his assent thereto before dismissing the
member.
The functions of the council will be to discuss all matters concerning the
native administration of Uganda, and to forward to the Kabaka resolutions
which may be voted by a majority regarding measures to be adopted by the
said administration. The Kabaka shall further consult with Her Majesty's
representative in Uganda before giving effect to any such resolutions voted
by the native council, and shall, in this matter, explicitly follow the advice of
Her Majesty's representative.
The Lukiko, or a committee thereof, shall be a Court of Appeal from the

decisions of the Courts of First instances held by the chiefs of counties. In all
cases affecting property exceeding the value of £5, or imprisonment exceeding
one week, an appeal for revision may be addressed to the Lukiko. In all cases
involving property or claims exceeding £100 in value, or sentences of death,
the Lukiko shall refer the matter to the consideration of the Kabaka, whose
decision when countersigned by Her Majesty's chief representative in Uganda
shall be final.
The Lukiko shall not decide any questions affecting the persons or property
of Europeans or others who are not natives of Uganda. No person may be
83
elected to the Lukiko who is not a native of the Kingdom of Uganda. No

question of religious opinion shall be taken into consideration in regard to
the appointment by the Kabaka of members of the council. In this matter he
shall use his judgment and abide by the advice of Her Majesty's representation
of assuring in this manner a fair proportionate representation of all
recognised expressions of religious beliefs prevailing in Uganda.
Article 12. In order to contribute to a reasonable extent towards the general

cost of the maintenance of the Uganda Protectorate, there shall be established
the following taxation for Imperial purposes, that is to say, the proceeds of
the collection of these taxes shall be handed over intact to Her Majesty's
representative in Uganda as the contribution of the Uganda province towards
the general revenue of the Protectorate.
The taxes agreed upon at present shall be the following:
A hut tax of three rupees, or 4s per annum on any house, hut, or habitation,
used as a dwelling-place.
A gun tax of three rupees, or 4s per annum, to be paid by any person who
possesses or uses a gun, rifle, or pistol.
The Kingdom of Uganda shall be subject to the Pursuant to Article 2 of the

Buganda Agreement, 1900, Buganda lost the right to collect tribute from
vassal kingdoms with the British not only taking over but also introducing
taxes such as a Hut and Gun Tax and later Bicycle Registration Tax among
others. sThe Kabaka was restricted to only fifty guns compared to Mwanga
who as a Kabaka mobilized over two thousand guns in his revolt. It is not in
dispute that up to and including the year 1961, the Protectorate Government
controlled the expenditure of all Governments, administrations and other
authorities in Uganda, and that, with certain exceptions with which we are
not immediately concerned, all revenues were collected by the Protectorate
Government. Financial provision in aid of the activities of the Governments,
administrations and other authorities was made by the Protectorate
Government by means of recurrent grants made for specific purposes which,
84
generally speaking, were to be applied only for those purposes. The court
broadly noted in the case of The Attorney General of Uganda v The Kabaka’s
Government that, it may be said that the Protectorate Government had
therefore complete control over the revenues and expenditure of all
subordinate Governments and administrations. Thus, the Buganda
Government, no less than the other governments, was subject to that control.
Same Customs Regulations, Porter Regulations, and so forth, which may,

with the approval of Her Majesty, be instituted for the Uganda Protectorate
generally, which may be described in a sense as exterior taxation, but no
further interior taxation, other than the hut tax, shall be imposed on the
natives of the province of Uganda without the agreement of the Kabaka, who
in this matter shall be guided by the majority of votes in his native council.
This arrangement, however, will not affect the question of township rates,
lighting rates, water rates, market dues, and so forth, which may be treated
apart as matters affecting municipalities or townships; nor will it absolve
natives from obligations as regards military service, or the up-keep of main
roads passing through the lands on which they dwell. A hut tax shall be levied
on any building which is used as a dwelling place. A collection of not more
than four huts however, which, are in separate and single enclosure and are
inhabited only by a man and his wife, or wives, be counted as one hut.
The following buildings will be exempted from the hut tax: temporary
shelters erected in fields for the purpose of watching plantations; or rest
houses in the fields for the purpose of watching plantations; or rest houses
erected by the roadside for passing travellers; buildings used solely as tombs,
churches, mosques. or schools, and not slept in or occupied as a dwelling; the
residence of the Kabaka and his household (not to exceed Fifty buildings in
number); the residence of the Namasole, or Queen Mother (not to exceed
twenty in number); the official residences of the three native ministers, and
of all the chiefs of counties (not to exceed ten buildings in number); but in
the case of dispute as to the liability of a building to pay hut tax, the matter
85
must be referred to the Collector for the province of Uganda, whose decision
must be final.
The Collector of province may also authorise the chief of a county to exempt
from taxation any person whose condition of destitution may, in the opinion
of the Collector is meant the principal British official representing the
Uganda Administration in the province of Uganda. The representative of
Her Majesty's Government in the Uganda Protectorate may from time to
time direct that in the absence of current coin, a hut or gun tax may be paid
in produce or in labour according to a scale which shall be laid down by the
said representative. As regards the gun tax, it will be held to apply to any
person who possesses or makes use of a gun, rifle, pistol, or any weapon
discharging a projectile by the aid of gunpowder, dynamite, or compressed
air.
The possession of any Canon or machine gun is hereby forbidden to any

native of Uganda. A native who pays a gun tax may possess or use as many as
five guns. For every five or for every additional gun up to five, which he may
be allowed to possess or use, he will have to pay another tax. Exemptions from
the gun tax will, however, be allowed to the following extent:
The Kabaka will be credited with fifty-gun licences free, by which he may arm
as many as fifty of his household. The Queen Mother will, in like manner, be
granted ten free licences annually, by which she may arm as many as ten
persons of her household; each of the three native ministers (Katikiro, Native
Chief Justice, the Treasurer of the Kabaka's revenue) shall be granted twenty
free gun licences annually; by which they may severally arm twenty persons
of their household.
Chiefs of counties will be similarly granted ten annual free gun licences; all
other members of the Lukiko or native council not chiefs of counties, three
annual gun licences, and all landed proprietors in the country with estates
exceeding 500 acres in extent, one free annual gun licence.
86
Article13. Nothing in this Agreement shall be held to invalidate the pre-

existing right of the Kabaka of Uganda to call upon every able-bodied male
among his subjects for military service in defence of the country; but the
Kabaka henceforth will only exercise this right of conscription, or of levying
native troops, under the advice of Her Majesty's principal representative in
the Protectorate.
In times of peace, the armed forces, organised by the Uganda Administration

will probably be sufficient for all purposes of defence; but if Her Majesty'
representative is of the opinion that the force of Uganda should be
strengthened at the time, he may call upon the Kabaka to exercise in a full or
in modified degree his claim on the Baganda people for military service. In
such an event the arming and equipping of such force would be undertaken
by the administration of the Uganda Protectorate.
Article 14. All main public roads traversing the Kingdom of Uganda, and all
roads, the making of which shall at any time be decreed by the native council
with the assent of her Majesty's representative shall be maintained in good
repair by the chiefs of the saza (or county) through which the road runs.
The chief of a county shall have the right to call upon each native town,
village, or commune, to furnish labourers in the proportion of one to every
three huts or houses, to assist in keeping the established roads in repair,
provided that no labourers shall be called upon to work on the roads for more
than one month in each year. Europeans and all foreigners whose land abut
on established main roads will be assessed by the Uganda Administration and
required to furnish either labour or to pay labour rate in money as their
contribution rewards, the maintenance of the highways. When
circumstances permit, the Ugandan Administration may further make grants
from out of its Public Works Department for the construction of new roads
or any special repairs to existing highways, of an unusual expensive character.
Article 15. The land of the Kingdom of Uganda shall he dealt with in the
following manner: It cannot be over stated that the agreement laid down
87
measures of the distribution of land in miles which came to be known as the

‘mailo land’51 from the English word mile; but this tenure of land was
basically freehold. The Agreement divided the land in Buganda between the
chiefs and notables in private estate and the remainder was to become crown
land fully owned by Her Majesty’s government. The land allotted amounted
to over 9,000 square miles. According to The Land in Buganda (Provisional
Certificates) Ac, the Copies of provisional certificates of claims issued under
the Uganda Agreement, 1900, to land owners in Buganda were to be filed in
the department of lands and surveys of the Government, and those copies
were, at such times as the commissioner for lands and surveys would direct,
be open to be searched and examined by any applicant. In many areas,
agricultural production was placed in the hands of Africans. Cotton was the
crop of choice largely because of pressure by the British Cotton Growing
Association Textile Manufacturers, who urged the colonies to provide raw
materials for British mills. This was done by cash cropping the land and
Buganda with its strategic location on the lakeside reaped the benefits of this,
the advantages of which were quickly recognized by the Buganda chiefs who
had newly acquired freehold estates. This helped improve Buganda’s
economy as a state. However, the remaining pieces of lands, including the
forests, swamp, bush, and unused land; was declared Crown land.
Assuming the area of the Kingdom of Uganda, as comprised within the limits
cited in the agreement, to amount to 19,600 square miles, it shall be divided
in the following proportions:
Forests to be brought under control of the Uganda Administration 1500

square miles. Waste and uncultivated land to be vested in Her Majesty's
Government to be controlled by the Uganda Administration 9,000 square
miles
Plantations and other private property of His Highness the Kabaka of

Uganda 350 square miles
51
Article of land management by Prof.Anthony Okuku
88
Plantations and other private property of the Namasole 16 square miles

(NOTE: - If the present Kabaka died and another Namasole were appointed,
the existing one would be permitted to retain as her personal property 6
square miles, passing on 10 square miles as the endowment of every
succeeding Namasole.)
Plantation and other private property of the Namasole, mother of Mwanga

10 square miles To the Princes: Joseph, Augustine, Ramazan, and Yusufu-
Suna, 8 square miles each 32 square miles
For the Princesses, sisters, and relations of the Kabaka 90 square miles
To the Abamasaza (chiefs of counties) twenty in all, 8 square miles each

(Private property) 160 square miles
Official estates attached to the posts of the Abamasaza, 8 square miles each
320 square miles
The three Regents will receive private property to the extent of 6 square miles
each 48 square miles
And official property attached to their office, 16 square miles, the said official
property to be afterwards attached to the posts of the three native ministers
48 96
Mbogo (the Muhammedan chief) will receive for Himself and his adherents
24 square miles. Kamuswaga, chief of Koki with receive. 20 square miles
One thousand chiefs and private landowners will receive the estates of which
they are already in possession, and which are computed at an average of 8
square miles per individual, making a total of 8,000 square miles
There will be allotted to the three missionary societies in existence in Uganda

as private property, and in trust for the native churches, as much as 92 square
miles
89
Land taken up by the Government for Government stations prior to the

present settlement (at Kampala, Entebbe, Masaka etc. etc.) 50 square miles
Total 19,600 square miles
After a careful survey of the Kingdom of Uganda has been made, if the total
area should be found to be e less than 19,600 then the portion of the country
which is to be vested in Her Majesty's Government shall be reduced in extent
by the deficiency found to exist in the estimated area. Should, however, the
area of Uganda be established at more than 19,600 square miles, then the
surplus shall be dealt with as follows:
It shall be divided into two parts, one-half shall be added to the amount of
land which is vested in Her Majesty's Government and the other half shall be
divided proportionately among the properties of the Kabaka, the three
Regents or native ministers, and the Abamasaza, or chiefs of counties.
The aforesaid 9,000 square miles of waste or cultivated, or uncultivated land,

or land occupied without prior gift of the Kabaka or chiefs by bakopi or
strangers, are hereby vested in Her Majesty the Queen of Great Britain and
Ireland, Empress of lndia, and Protectress of Uganda, on the understanding
that the revenue derived from such lands shall form part of the general
revenue of the Uganda Protectorate.
The forests, which will be reserved for Government control, will be, as a rule,
those forests over which no private claim can be raised justifiably, and will be
forests of some continuity which should be maintained as woodland in the
general interests of the country.
As regards the allotment of the 8,000 square miles among the 1,000 private
landowners, this will be a matter to be left to the decision of the Lukiko, with
an appeal to the Kabaka.52 The Lukiko will be empowered to decide as to the
validity of claims, the number of claimants and the extent of land granted,
premising that the total amount of land thus allotted amongst the chiefs and
52
Principles of land law by John. T. Mugambwa
90
accorded to native landowners of the Country is not to exceed 8,000 square

miles.53 Europeans and non-natives, who have acquired estates, and whose
claims thereto have been admitted by the Uganda Administration, will
receive title-deeds for such, estates in such manner and with such limitations,
as may be formulated by Her Majesty's representative. The official estates
granted to the Regents, native ministers, or chiefs of counties are to pass with
the office, and their use is only to be enjoyed by the holders of the office.
Her Majesty's Government, however, reserves to itself the right to carry

through or construct roads, railways, canals, telegraphs, or other useful public
works, or to build military forts or works of defence on any property, public
or private, with the condition that not more than 10 per centum of the
property in question shall be taken up for these purposes without
compensation, and that compensation shall be given for
O R I G IN S OF TH E B U G AN D A L AN D B OAR D .
As per the result of Article 15 of the 1900 Buganda agreement divided the
land of Buganda and Uganda after the signing of the agreement by a
premature king that was represented by reagents. The Buganda agreement
created changes to the land ownership in Buganda and Uganda. It provided
that;
With the division of land in Buganda, The Baganda started noticing the
consequences of their signing of the 1900 Buganda agreement that they
entered into incompetently. With the once owned land of the kabaka
partitioned there came a need for a creation of a body that was responsible for
governing the land of the kingdom on behalf of the kabaka. Prior to the treaty
the king had absolute power and just delegated some power chiefs and clan
leaders in various parts of Buganda to manage the land on his behalf.
53
Evoluton of Constitutional History by Prof. G.W. Kanyeihamba
91
One can therefore say the Buganda Land Board has its genesis in the signing
of the 1900 Buganda Agreement that divided the land in Uganda and this laid
a need for a body to manage the land in the kingdom and saw the birth of the
Buganda Land Board in 1962 constitution.
Buganda Land Board (BLB) is a professional body set up by His Majesty the
Kabaka of Buganda to manage land and properties of Buganda that was
returned under the reinstitution of the Assets and properties Act 1993 cap
247 which included the 350 square miles and 300 square miles returned in
the agreement signed between the president of Uganda and His majesty the
kabaka of Buganda in August 2013 and has branches in all 18 counties of
Buganda.
This body was set up under Chapter X11 of the 1962 Constitution to
54
manage public land in Buganda. Its roots are in the 1900 Agreement
(Uganda/Buganda Agreement) under which various chunks of land of
varying sizes were grabbed from natives and given away to various individuals,
chieftains and religious groups.
The chunks of land given away were neither surveyed nor did they have any
known tenancy category in the Kiganda culture. The colonial authorities
eventually regularized this land grabbing and in 1908 enacted a legislation
known as The Land Law of June 15, 1908. This law created two tenancies.
Under Section 2 thereof, a tenancy known as Mailo was created.
The section specifically stated to hold land in a manner described in that

section "will be known as holding Mailo, and land of this description will be
called Mailo". Section 5 created a second tenancy which was described as that
land which a chieftainship shall hold for the time, he shall hold the
chieftainship. It stipulated that he shall be entitled to take all the profits from
that land, but when he leaves that chieftainship, the successor chief will take
over the land.
54
The 1962 Constitution
92
In the words of Section 5(c) "to hold land in this manner, will be called to
hold official mailo." The actual demarcation of both the mailo and the official
mailo tenancies was not done until five years later when the Buganda
Agreement (Allotment and Survey) Law of 1913 was enacted
Since the mailo was under the control of individuals, or bodies to which it
was allocated, it was necessary to put in place a statutory public body to
manage the official mailo and herein lay the origin of the Buganda Land
Board.
The chieftainships holding official mailo were diverse, covering saza chiefs,
gombolola chiefs, land held under chieftainships of the Katikiro,
Omulamuzi, Omuwanika and others described in the 1900 Agreement and
elsewhere in the subsequent laws as official mailo. Indeed, even the chunk of
land allocated to the Kabaka under the 1900 Agreement was converted to
official mailo under Section 2(b) of the June 15, 1908 Land Law.
The Buganda Land Board under whose authority the administration of the
official mailo was placed was a statutory body of the Uganda Protectorate. It
should be noted that at the conclusion of 1900 Agreement, the Uganda
Protectorate consisted of only one province and that was the Buganda
Kingdom. The 1900 Agreement in Article 3 envisaged "other Provinces"
which were in future to be added to the Province of Buganda Kingdom and
indeed when the final demarcations of the Uganda Protectorate were made,
three other provinces namely; the Western Province, the Eastern and the
Northern provinces had all been created and the four formed the Uganda
Protectorate which eventually emerged into the current independent
Republic of Uganda.
When the Uganda Protectorate gained Independence, the Constitution of

the newly independent State of Uganda, so fit to dedicate the whole chapter
on the administration of Public Land. This was Chapter XII and under
Article 118, Public Land in Uganda was to be administered by three sets of
bodies. The areas of Uganda which were administered under federo units,
93
public land was under Land Boards, while those under districts; public land
was administered by District Land Boards.
The Uganda land commission was established by the 1995 Constitution Art.
238. The Uganda Land Commission was created by the Ugandan Parliament
in 1995. The mission of the ULC is to hold and manage all land in Uganda
legally owned or acquired by Government in accordance with the
Constitution of Uganda. The Commission is also responsible for holding and
managing 55land owned by Uganda, outside of the country. However, that
second mandate may be delegated to Uganda's Missions abroad. The
Commission is governed by a full-time Chairperson, assisted by up to eight
part-time Commissioners.
The 1995 Constitution cannot be construed to resituate public assets to

institutions by whatever name called which never owned them in the first
place, from whom they have never been confiscated and by whom no official
public accountability is exacted by the Constitution. Public assets can only
be managed by individuals or body of individuals or corporations which can
be scrutinized by the Auditor General and, therefore, accountable to the
Public.
The Constitution has vested the administration of public land in the Uganda
Land Commission, District Land Boards, or Regional Land Boards and all
these public bodies are scrutinisable by the Auditor General and, therefore,
accountable to the public. Under the 1967 Constitution, when all public land
had been put under the Land Commission, any monies accruing from the
Land so vested under the commission had to be paid to such authority as
Parliament may prescribed.
The Buganda land board is a body that represents the kabaka and it is
56
delegated to carry out land matters in Buganda this is stressed in the case of
55
THE LAND ACT CAP
HAND BOOK ON LAND RIGHTS AND INTRESTS
56
www.ulii.com
94
Buganda Land Board v Wampamba (Miscellaneous Cause 622 of 2013)

[2014] UGHCLD 91 (20 February 2014). The application was brought by
chamber summons under Order 7 rule 11 and 19 of the Civil Procedure
Rules SI 71-1 and Section 98 CPA for orders that the plaintiff’s plaint be
rejected and struck out for suing a non-existent party and for being
misconceived, incompetent, frivolous and vexatious, bad in law as it does not
disclose a cause of action and costs of the application
Article 16 of the 1900 Buganda aggrement. Until Her Majesty's

Government has seen fit to devise and promulgate forestry regulation, it is
not possible in this Agreement to define such forest rights as may be given to
the natives of Uganda; but it is agreed on behalf of Her Majesty's
Government, that in arranging these forestry regulations, the claims of the
Baganda people to obtain timber for building purposes, firewood, and other
products of the forests or uncultivated lands, shall be taken into account, and
arrangements made by which under due safeguards against abuse these rights
may be exercised gratis.
Article 17 of the 1900 Buganda aggrement. As regards mineral rights.

Pursuant to Article 17 of the Agreement, the rights to minerals found on
private estates were vested in the owners of those estates subject to a ten per
centum advalorem duty which was to be paid to the Uganda Administration
when the minerals were worked. Matters relating to land and minerals in
Buganda provided more evidence that the 1900 Buganda Agreement was
regarded as a legal constraint upon the crown’s powers in Buganda. While in
the rest of the Protectorate, all land and minerals were by virtue of the
Protectorate declared property of the crown, in Buganda it was otherwise.
Under the Agreement, land in Buganda was divided between the crown and
the notables Of great note is the idea that, were the revenue collected from
the hut and gun tax by Buganda exceeded two years running from a total
value of forty-five thousand pounds, the Kabaka and chiefs of the counties
had the right to appeal to Her Majesty’s Government for an increase in the
subsidy given to the Kabaka, native ministers and chiefs as long as the increase
95
was proportional to the increase in revenue. It’s a position of the law however
as noted in the case of R. v. Anselmi Kiimba, that under the Buganda
Agreement a chief was bound to give information to the British authorities

in respect to the Hut and Poll Tax. Be that as it may, Article 12 of the Buganda
Agreement, 1900 exempted Buganda from any further interior taxation
without the consent of the Kabaka. So, the Kabaka had a voice in respect of
interior taxation matters. On a bad note, though, in the case of Rex v. The
Buganda Cotton Co., where the question of interior, as distinct from
exterior, taxation in relation to art. 12 of the Uganda Agreement was
considered; the judgment of Chief Justice Griffin in that case concluded with
an important obiter dictum that the terms of a treaty are not part of the
municipal law unless and so far as a statute contains an express reference to a
treaty so as to incorporate it therein. This position seems to tickle the heart of
the dominance and primacy of the Buganda Agreement. Suffice to note, it
was a statement made merely obiter. Candidly, Udo Udoma CJ, Jones and
Slade JJ lwere right on the point of law in the case of Joseph Kazaairne v the
Lukiko when they said that it is implicit in the Buganda Graduated Tax Law,
1954 and the Uganda (Independence) Order in Council 1962 that the
taxation levied forms part of the revenues of the Kabaka’s Government, and
the assessment and collection of tax is expressly a matter for officials of the
Kabaka’s Government. It is nevertheless a factual assertion that the British
government treated the rest of the regions differently from Buganda in regard
to taxation. For instance, for the Arms License Tax, the Banyoro paid ten
shillings whereas the Baganda paid four shillings. This was beyond proof that
persons in other regions were classified as foreigners in their own country.
Even the graduated tax did not take into account the poor conditions of living
of the peasants, yet still they were made to pay relatively higher taxes than the
Baganda. Unfortunately, nothing in the Independence Order, in any way
affected the operation or even tried to rectify the anomaly of either law which
was indubitably discriminatory. As a result of this, exploitation by the British
was at a wide scale in other regions; it was conversely not common in
96
Buganda. Thus, it can be rightly justified that Buganda was a protected state
within the Protectorate Uganda.
The rights to all minerals found on private estates shall be considered to

belong only to the owners of those estates, subject to a 10 per centum ad
valorem duty, which will be paid to the Uganda Administration when the
minerals are worked. On the land outside private estates, the mineral rights
shall belong to the Uganda Administration, which, however, in return for
using or disposing of the same must compensate the occupier of the soil for
the disturbance of growing crops or building, and will be liable to allot to him
from out of the spare lands in the Protectorate an equal area of soil to that
from which he has been removed. On these waste and uncultivated lands, the
Protectorate, the mineral rights shall be vested in Her Majesty's Government
as represented by the Uganda Administration. In like manner the ownership
of the forests, which are not included within the limits of private properties,
shall be henceforth vested in Her Majesty's Government.
Article 18 of the 1900 Buganda aggrement. In return for the cession to

Her Majesty's Government of the right of control over 10,550 square miles
of waste, cultivated, uncultivated, or forest lands, there shall be paid by Her
Msajesty's Government in trust for the Kabaka (upon his attaining his
majority) a sum of £50O, and to the three Regents collectively, £600, namely,
to the Katikiro £300, and the other two Regents £150 each.
Article 19 of the 1900 Buganda aggrement. Her Majesty's Government

agrees to pay to the Muhammedan Uganda chief, Mbogo, a pension for life
of £250 a year, on the understanding that all rights which he may claim
(except such as are guaranteed in the foregoing clauses) are ceded to Her
Majesty's Government.
Article 20 of the 1900 Buganda aggrement. Should the Kingdom of

Uganda fail to pay to the Uganda Administration during the first two years
after the signing of this Agreement, an amount of native taxation, equal to
half that which is due in proportion to the number of inhabitants; or should
97
it at any time fail to pay without just cause or excuse, the aforesaid minimum
of taxation due in proportion to the population; or should the Kabaka, chiefs,
or people of Uganda, pursue, at any time, a policy which is distinctly disloyal
to the British Protectorate; Her Majesty's Government will no longer
consider themselves bound by the terms of this Agreement. On the other
hand, should the revenue derived from the hut and gun tax exceed two years
running a total value of £45,000 a year, the Kabaka and chiefs of counties shall
have the right to appeal to Her Majesty's Government for an increase in the
subsidy given to the Kabaka, and the stipends given to the native ministers
and chiefs, such increase to be in the same proportional relation as the
increase in the revenue derived from the taxation of the natives.
Article 21 of the 1900 Buganda aggrement. Throughout this

Agreement the phrase "Uganda Administration" shall be taken to mean that
general Government of the Uganda Protectorate, which is instituted and
maintained by Her Majesty's Government; " Her Majesty's representative"
shall mean the Commissioner, High Commissioner, Governor, or principal
official of any designation who is appointed by Her Majesty's Government to
direct the affairs of Uganda.
Article 22 of the 1900 Buganda aggrement. In the interpretation of this

Agreement the English text shall be the version which is binding on both
parties.
The Uganda Agreement (alternatively the Treaty of Mengo) of March 1900

formalized the relationship between the Kingdom of Uganda and the
British Uganda Protectorate. It was amended by the Buganda Agreement of
1955 and Buganda Agreement of 1961.57
The Buganda Kingdom relies primarily on agriculture and commerce for its
economic sustainability. These sectors form about 70% of the Kingdoms’
GDP. These sources are heavily dependent on land. The social and cultural
organization of the society as reflected in the systems of property ownership,
57
Constitutional History and politics of East Africa by Prof.G.w. Kanyeihamba
98
Kingship, and lineage are inextricably linked to land. Land thus covers every
facet of life in Buganda. The efficiency with which land is managed
determines the level of social harmony, economic progress and living
environment.
Prior to the Buganda Agreement of 1900, Buganda was an almost absolute

monarchy. Under the Kabaka, there were three types of chief: bakungu
(administrative) chiefs, who were appointed directly by the Kabaka;
traditional bataka chieftains; and batangole chiefs, who served as
representatives of the Kabaka, charged with "maintaining internal security,
supervising royal estates and military duties".The 1900 agreement, however,
greatly enhanced the power of the Lukiiko (which had previously been simply
an advisory council) at the expense of the Kabaka While Buganda retained
self-government, as one part of the larger Uganda Protectorate, it would
henceforth be subject to formal British overrule. The Buganda Agreement of
1955 continued the transition from absolute to constitutional monarchy.
Following Uganda's independence in 1962, the kingdom was abolished by

Uganda's first Prime Minister Milton Obote in 1966 declairing Uganda a
republic. Following years of disturbance under Obote and dictator Idi Amin,
as well as several years of internal divisions among Uganda's ruling National
Resistance Movement under Yoweri Museveni, the President of Uganda
since 1986, the kingdom was officially restored in 1993. Buganda is now a
traditional kingdom and thus occupies a largely ceremonial role. Since the
restoration of the kingdom in 1993, the king of Buganda, known as the
Kabaka, has been Muwenda Mutebi II. He is recognized as the 36th Kabaka
of Buganda. The current queen, known as the Nnabagerekaor Kaddulubale
is Queen Sylvia Nagginda.
During Uganda independence, the constitutional position of Buganda (and

the degree to which it would be able to exercise self-government) was a major
issue. Discussions as part of the Uganda Relationships Commission resulted
in the Buganda Agreement of 1961 and the first Constitution of Uganda
99
(1962), as part of which Buganda would be able to exercise a high degree of

autonomy. This position was reversed during 1966–67, however, before the
Kabakaship and Lukiiko were disestablished altogether in 1967 before being
restored in 1993.
By the terms of the 1900 Agreement between the British Special

Commissioner and the chiefs and people of Buganda 1,003 square miles of
land were allotted to the King and his family and to the big chiefs, both in
their political capacity and in private ownership. Another 8,000 square miles
were ailottd to about 1,000 chiefs and land owners at the discretion of the
Lukiiko.
The framers of the agreement worked, as regards its land allotment clauses,
on the assumption that they were only conferring in a permanent form the
ancient rights and privileges possessed by the allottees of the square miles. In
practice they soon found that the rights so conferred on individuals
constituted a fundamental change in the traditional system. Therefore, both
to legalise and to regularise these rights, and to differentiate them from those
of freeholders in English law, a name was found for the system of land tenure
and a law defining it was enacted in 1908.
The name is the word 'mailo' and the law is the Land Law of 1908. The main
provisions of this law are:
(i) that an individual can own up to 30 square miles without special

sanction of the Governor; (ii) that a mailo owner can transfer land
by sale, gift or will to another person of the Protectorate but cannot
transfer land or lease it to anyone who is not of the Protectorate
without the special permission of the Lukiiko and the Governor;
(ii) that where a person leaves no will, succession will be ascertained by

customary rules of succession;
(iii) that customary rights of the people to the use of roads, running
waters and springs are preserved. The effects of both the Agreement
100
and the Land Law were, on the one hand, to confer proprietary
rights which were no longer associated with political functions on a
small section of the community, the then office-holders, and to
confer them in perpetuity; and on the other hand, to free the
peasants from all obligations to the land-owner except those involved
in the relationship between tenants and landlords. In other words,
the relationship was removed from the basically political to the
mainly economic sphere.
T H E C R OW N L AN D S O R D IN AN CE , 1903
The difference between the total land area of Buganda and the land covered
by the mailo estates is 8,292 square miles. This land is administered under the
Crown Lands Ordinance of 1903. It appears that Sir Harry Johnston's
original intention was, after giving the King and the chiefs estates of 'a fair
size', to secure control of the rest, part of which was to be placed under the
control of a Board of Trustees, and the other part under the control of the
Crown for free disposal.
The Trusteeship land was to be administered for the benefit of natives. In the
end however no distinction was made between Crown land and Trusteeship
land. Under the above ordinance some few grants of freehold were made to
non-natives till all sales in freehold were suspended by order of the Secretary
of State in 1916. The whole position has been clarified by a recent declaration
of policy.
Part of General Notice No. 551 of 1950 reads as follows: "his excellency the
Governer” wishes all the people of Uganda to understand the policy of His
Majesty's Government and the Protectorate Government which has been
followed in the past and will be 58followed in the future, in respect of Crown
(2) (1) J. V. WILD, op. cit„ p. 78. (2

58
The Registration of Titles Ordinance 1922 •
101
land outside townships and trading centres in the provinces other than
Buganda. The provisions of the declaration would in Buganda apply to the
Crown land and not mailo land. Firstly, these rural lands were being held in
trust for the use of the African population. Secondly, although the right
under the Laws of the Protectorate is reserved to the Governor as representing
the King to appropriate areas which he considers are required for forests,
roads, townships or for any other public purposes, yet it has been agreed with
the Secretary of State that the Governor shall in every such case consult the
African Local Government concerned and give full consideration. Moreover,
the Governor will not alienate land to non-Africans except:
(a) for agricultural or industrial or other under takings which will in the
judgment of the Governor-in-Council promote the economic or social
welfare of the inhabitants of the territory; and
(b) for residential purposes when only a small area is involved.
Thirdly, it is not the intention of His Majesty's Government and the

Protectorate Government that the Protectorate of Uganda shall be developed
as a country of non-African farming settlement," On most of the Crown land
Baganda tenants live in some what the same conditions as on the mailo estates
of private owners. The numbers of the tenants on Crown land are not
available but in the gombolola of Mumyuka of Busiro in 1950 there were no
tenants on Crown land. And in the gombolola of Musale in Buddu in 1950
there were only 1,038 tax-payers on Crown land out of a tax-paying
population of 7,411. This is only about 14.0%.
From its inception the mailo system was associated with documents in the
minds of the owners. In the first instance Provisional Certificates were issued
to all mailo. The conditions under whic h tenants on Crown compare with
the conditions of tenants on the mailo estates. owners whose allotted claims
had been roughly marked out on actual ground. In the event of sale or gift a
certificate of ownership was normally issued by the Lukiiko as an instrument
of transfer.
102
In 1908 a short Registration of Land Titles Ordinance was enacted and this
therefore covered the registration of the first mailo grants issued in 1909. This
was a provisional measure, but it was based on what is known as the Torrens
system, and it established both the system of registration of title with a
guarantee of indefeasibility, and also the principle that all land upon
registration must be indentifiable by a proper plan.
When a comprehensive Registration of Titles Ordinance was enacted in 1922

on the same principles as the Land Titles Ordinance 1908, it was easy to bring
the mailo titles into the system of registration. Section 9(2) of the Ordinance
reads : "All land included in any final mailo certificate shall after the
commencement of this Ordinance be subject to the operation of this
Ordinance and shall be deemed to have been registered thereunder, " This
would not be possible in any form of tribal or clan tenure because the exact
rights would not be amenable to such succinct definition, nor would the
owners be as easily identifiable without, in some cases, exhaustive inquiries,
and in other cases, without decisions.
In the case of the mailo system the rights were part of a statutory form of
tenure, the owners were registered and the surveys were in advanced stages of
completion. Another feature of the Buganda system is that in 1939 the
Buganda Government passed the Land (Sale and Purchase) Law which not
only extinguishes legal rights arising from such documents as are not
registered within a statutory period of two months, but also makes it illegal
both to sell and to buy land, unless the person selling the land is:
(a) the registered proprietor of such land or
(b) the purchaser or donee of an unsurveyed part of mailo land, and a

memorial of his interest in such land has been entered in the mailo register.
(d) The Kabaka's Prerogatives When the Uganda Agreement was made the
Kabaka was a minor, and partly owing to this fact, and partly owing to the
bitter memories of the previous reign, the drafters of the Agreement
103
intentionally emphasized the rights of the individual chiefs as Signatories of

the Kabaka.
The overlordship of the Kabaka in relation to the land was not recognised.
Although nothing was specifically included in the Agreement, it was part of
the understanding that the chiefs would secure permanent rights to their
estates from which the Kabaka had no more power to remove them. Again, it
was enacted in the Land Law, 1908 that "the owner of a mailo will not be
compelled to give a chief who is superior to him any portion of the produce
in money or kind". This has been interpreted to apply to the mailo owners in
relation to the Kabaka. All that has remained of the Kabaka's prerogatives is
the custom of presenting to him all the successors to the mailos before they
are confirmed in their rights.
The legality of this in cases where proper wills have been made is dubious, but
the custom is so entrenched that it has not so far been challenged. What is
required by the Land Succession Law of 1912 is that any one who has land
left to him shall first obtain from the Lukiiko a certificate of succession signed
by the President of the Lukiiko and six other members. But where there is no
will the safest procedure would be, in any case, to seek the approval of the
Kabaka since his rights as final arbiter in cases of succession where the
successors are ascertained according to native custom, were secured in an
agreement with the Protectorate Government called The Clan Cases
Agreement, 1924. Further, all the mailo owners consider themselves as
possessing recognised rights and powers as unpaid local administrators of the
people on their land.
It is believed that these rights are acquired through the formal presentation
to the Kabaka. The anomaly is that anyone who acquires land by purchase
assumes the same rights without being presented to the Kabaka. In a recent
law the overlordship of the Kabaka was partially revived and he was
empowered compulsorily to acquire land for purposes beneficial to the
Nation. This law was greatly resented when it was made and the then Prime
Minister of Buganda was assassinated for forcing it through the Lukiiko. It
104
was argued either that the Kabaka had not, and could not, have such power
over private property, or that the Kabaka would be forced by the Europeans
to dispossess the Baganda of their land.
A recent amendment, made at the Kabaka's request, makes his powers of

compulsory acquisition subject to a resolution of the Lukiiko.
The Busulu and Envujo Law, 1928 The relationships between the mailo
owners and the peasants were not defined in either the Uganda Agreement
1900 or the Land Law, 1908. The position of the peasant holders in the new
scheme of land relations took some time to crystallize into what might be
called a legal form. The peasants continued to assume exactly the same feudal
relationships to the mailo owners as they were used to assume under the old
type of kinship or political chiefs. This was not particularly difficult because
the same individuals who either were or might have become chiefs before,
were now the mailo owners. The mailo owners ruled and dispensed justice in
the traditional manner and in return they expected, and received, the same
type of services and dues from their tenants as previously were commonly
accepted. A new situation, not provided for by law or custom, arose with the
introduction of cotton as an economic peasant crop especially after the 1914-
18 war when the price of cotton rose to Sh. 33, /- per 100 lbs. The peasants
began to derive economic gain from their holdings and the mailo owners
began to exploit the peasants for economic reasons.
Busulu is a commutation in money of the labour obligations by a tenant to

the landlord. Nvujo is a commutation in money of the customary present of
a part of the produe or a calabash of beer. The exploitation took the form of
either demanding the use of the customary labour due from the peasants on
the cotton fields of the mailo owner, or of demanding a portion of the cotton
produced or its money equivalent. Some of the mailo owners were definitely
rapacious in their demands and it caused great discontent among the peasants
on their estates. At about the same time the dissatisfied sections of the
community organized themselves into what was known as the Bataka
105
Association. This association consisted of a number of kinship heads, and a

far greater number of political malcontents, who were driven together mainly
by opposition to Sir Apolo Kagwa, the Prime Minister, and his government.
The chief complaint of the association was that the allotment of mailos was
unfair in so far as it favoured the chiefs as against the other claimants to the
control of land. But the greatest injustice was considered to be the way the
paper claims were converted into rights over actual land. The big chiefs,
whose claims were naturally considered first, came into possession of the
biggest and the best villages in complete disregard of the rights of occupation
and cultivation of the minor chiefs and of traditional associations to certain
villages by certain people.
59
In other cases, the rightful claimants to clan lands were passed over because
they were either not Christians or because they had not the necessary political
influence. A redistribution was therefore considered justified, but in practice
this was found impossible owing to the great number of interests involved.
The Government instead decided to initiate legislation to protect the peasants
on their holdings. The Busulu and Envujo Law. 1928 was therefore enacted.
The main effect of this law was to consolidate whatever customary rights were
covered by it into a legal form. But where the law is silent, and it is silent on
many points, ancient custom, or whatever is considered ancient custom by
the judges, has been followed. Where, on the other hand, the law and the
customary rights conflict, the law is paramount.
For example, in Kiwanuka vs Ntwatwa where customary rights were

supposed to be in conflict with the law, the Judicial Adviser stated as follows:
"Whatever may have been the rights of the appellant by ancient custom to
claim that the piece of land occupied by his relatives reverted to him when
they ceased to use the land, that ancient custom has been done away with by
the Busulu and Envujo Law."
59
(1) Principal Court, Civil Appeal. No. 46 of 1947.
106
R E D F LA G S O F TH E 1900 B U G AN DA A GR E E MEN T
The Buganda agreement of 1900 was not a suitable contract because of the
numerous vitiating factors that renders a contract voidable, and this is a
reason why very many baganda never considered it to be a good agreement as
cleary analysed below.
Note: even though we stipulate the vitiating factors but also the principle of
Non Est. Factum ‘it is not my deed’can also be implemented on grounds that
the Kabaka of Buganda Daudi Chwa II being so young he was represented
by the regents who didn’t seek his guidance nor delegation , but they signed
on terms they didn’t know for their benefits thus rendering the Buganda
agreement of 1900 voidable hence considering the Namirambe agreement of
1955 a valid contract on grounds that the Kabaka of Buganda Mutesa II was
in the capacity of signing the agreement.
NB: Was also the 1955 Namirembe agreement a valid contract? Because it
was implemented for the Kabaka to come back to Buganda from exile
meanwhile it was also signed on grounds of duress and undue influence.
Is the 1900 Buganda Aggrement a True Agreement?
Agreement means a promise/commitment or a series of reciprocal promises

which constitutes consideration for the parties to contract60
T H E U G AN D AN L E G A L M E AN IN G OF A C O N TR AC T
Section 261agreement” means a promise or a set of promises forming

the consideration for each other and to determine whether an agreement
amounts to a contract, section 10(1)62 must be made with the
60
https://businessjargons.com
61
Contracts Act 2010
62
Contracts Act 2010
107
free consent of parties with capacity to contract, for a

lawful consideration and with a lawful object, with the intention to be legally
bound.In the case of Printing and Numerical Registering Co v
Sampson 63MR Sir George Jesse noted that; “If there is one thing more
than the other which public policy requires, it is that men of full age and
competent understanding shall have the at most liberty in contracting
and that their contract when entered into freely and voluntarily shall be
held sacred and shall be enforced by the courts of justice.”
Also, In the case of Greenboat Entertainment Ltd Vs City Council of

Kampala64 a contract as was defined as; - “In law, when we talk of a
contract, we mean an agreement enforceable at law. For a contract to be valid
and legally enforceable there must be: capacity to contract; intention to
contract; consensus and idem; valuable consideration; legality of purpose;
and sufficient certainty of terms. If in a given transaction any of them is
missing, it could as well be called something other than a contract”
Whether the 1900 Buganda Agreement Pass the Test of a Valid

Contract or Agreement in the Ugandan Law?
A person will not properly understand as to whether the 1900 Buganda

Agreement passed the validity of a valid contract in Uganda unless he or she
knows what makes a contract valid in Uganda
Byamugisha CK in the case of William Kasozi Vs DFCU Bank.65 Stated

that for a contract to be valid and enforceable the following prerequisites
must exist.
1. Offer and acceptance of the offer
2. Capacity to contract
63
(1875) 19 Eq 462
64
C.S No. 0580 of 2003
65
H.C.C.S NO 2326 OF 2000
108
3. Intention to create legal relationship
4. Consent
5. Consideration
Applicability of The Tests of a Valid Contract

on The Buganda Agreement Of 1900
O F FE R (W A S TH E R E A N OF F ER BE T W E EN B U GAN DA AN D TH E
B R I T ISH )
According to66A promise to do or refrain from doing something in exchange

for something else. The contracts Act 201067 defines an “offer” to means
the willingness to do or to abstain from doing anything signified by a person
to another, with a view to obtaining the assent of that other person to the act
or abstinence. The definition of the contracts Act was adopted in the case of
Ssempa v Kambagambire68
Nature of an offer
An offer may be made to an individual, to a group of persons or to the public

at large. An offer may be general or specific. That is, it may direct to a
particular person, class of persons or the public at large. An example of an
offer made to the public was in the famous case of Carllil v Carbolic Smoke
Ball Co.69
An offer may be oral, written or implied from the conduct of the offeror.
66
https://www.law.cornell.edu/
67
Section 2
68
(Civil Suit 408 of 2014) [2017] UGCommC 133 (03 July 2017);
69
[1893]1 QB 256
109
An offer must be communicated to the intended offeree or offerees. An offer

remains ineffective until it is received by the offeree. To have the mutual
assent required to form a contract, the offeree must have knowledge of the
offer he cannot agree to something of which he has no knowledge.
Accordingly, the offeror must communicate the offer, in an intended
manner, to the offeree.
An offer must be clear and definite i.e.; it must be certain and free from
vagueness and ambiguity. And in Sands v. Mutual Benefits Ltd70 the
Plaintiff a tenant sued the Landlord for unlawful eviction from premises
which were being held on a 3yr lease, part of the tenancy agreement stated
that the premises were being rented at such rent initially agreed. The
Landlord argued that this Agreement was void for uncertainty but the Court
disagreed.
An offer may be conditional or absolute. The offeror may prescribe

conditions to be fulfilled by the offeror for an agreement to arise between
them
Offer must be communicated to the offeree. Section 3(1)71 provides that

communication of an offer is made by an act or omission of a party who
proposes the offer by which that party intends to communicate the offer or
which has the effect of communicating the offer.
Was there an offer that was made in the Buganda agreement and who
made it?
In this aspect, the British that made offers to Buganda, so the British were
represented by Sir Harry Johnson “offeree” made the offer the to the king of
Buganda with various terms as seen in the 1900 aggrement as per the terms of
Article 2 where the Kabaka and chiefs were offered and agreed to forfeit
collection of tribute from neighboring provinces in favor of His
70
(1971) E.A 156,
71
Contracts Act 2010
110
Majesty’sgovernment. Article 6 which offered to recognize the Kabaka as

the native ruler of his people nd so give him protection so long as the Kabaka,
chiefs and the people of Buganda will conform to the laws (and overrule) of
His Majesty Article 7 offered to the Namasole mother of the Kabaka to
receive a lifetime allowance of 50 pounds a year while this sum was designated
during her life time, it was one-off allowance that would not continue for the
subsequent Namasoles.Among other provisions such as Article 15 on land
However, the the offer was directed to the King of Buganda but it was
assented by the representatives because the kabaka chwa II was still young
C AP A CI TY T O C ON TR AC T ( DI D TH E P AR T IE S H A V E TH E
C AP AC IT Y T O C ON TR AC T )
What is capacity to contract?
The presumption is that all parties to a contract have the power to enter into
a contract
Who are those people that have capacity to contract in Uganda?
Section 1172 provides that a person has capacity to contract where that
person is;
(a) eighteen years or above;
(b) of sound mind;
(c) not disqualified from contracting by any law to which he or she is

subject
72
Contracts Act 2010
111
Though there are many special categories of people that I would want to give
a clear analysis in capacity to contract, I will only concentrate on minors for
a reason
Contracts by Minors
A minor is defined by the contract Act as a person who hasn’t attained the
age of 18 and the same is the provision under Article 257(c)73.Contracts
entered into by a minor may be Valid (binding), void or voidable. It has been
stated that for purposes of contracting, a minor is a person who is under the
age of 18 years.
Contracts made by a minor are voidable at his option, the options available
to the minor in such a contract are twofold;
a. To repudiate the contract within a reasonable time upon attaining a

majority age. These types of contracts are valid until upon attaining
the. Valid majority age.
b. To ratify the contract notwithstanding the contractual capacity

which is provided for in Section 11 of the contract Act where there
are contracts which are generally held to bind an infant.
1) Contracts of service
These are contracts of a beneficial nature to the minor. They are also binding.
These include contracts for education, those enabling a minor to earn a living
or improve his skills, occupation or profession. The contract must be
beneficial to the minor. This is illustrated in Roberts Vs Grey74 the infant
defendant had agreed to go on a world tour with the plaintiff a professional
player, competing against each other in matches. The plaintiff made all the
necessary arrangements but the defendant refused. The plaintiff sued and
court observed that the contract was for the infant’s benefit, as he would gain
73
The 1995 constitution of Uganda as ammended
74
(1913)
112
experience and fame by his association with the outstanding player like the
plaintiff. However, if a contract as a whole is not beneficial to the minor, it
will not be binding on him.
2) Contracts for necessaries;
In defining necessaries for the purpose interpretation of infants the

authorities have applied a more general interpretation. It should not be
restricted to things which are but may include articles which are reasonably
necessary to the minor having regard to his station in life. The goods must be
suitable to the condition in life of the infant to his actual requirement at the
time of the sale and time of delivery.
A minor is liable on these contracts of necessities of life. Therefore, minor is

not bound to pay for items that are deemed luxurious. Whether a particular
commodity falls within the category of “necessaries” depends on the
circumstances of each case. And in Nash v Inman75 The Defendant upon
being sued for clothes supplied to him while still a minor
Goods were not necessaries as he was already well supplied with clothes.
Court held that the clothes were not necessaries within the act and the
defendant was not liable to pay for them. There must be things without
which the infant cannot reasonably exist. These are not restricted to goods,
shelter, and clothes. It extends to cover things which will cultivate the mind
positively.
75
(1908-10) ALL ER REP 317.
113
A P P L IC AB I LI TY O F T H E T E S T O F C AP ACI T Y T O B U G AN DA
A photo of Kabaka Daudi Chwa II
The kabaka of Buganda Daudi Chwa was a minor so he had no capacity to

contract since this was not a contract of necessaries nor service. So, it was right
in law that the kabaka not to sign the agreement since she was still minor
A question now goes in what capacity did the likes of Apollo Kaggwa,
Stanslas Mugwanya among others sign the Buganda Agreement of
1900?
The answer is obvious they signed as agents. Now a question goes who is an
agent and who appoints an agent?
Definition of agency
Agency may be defined as the relationship which exists whenever one-person

(called the agent) acts on behalf of another person (the principal). Where such
114
relationship exists, the acts of the agent are said to be the acts of the principal,
therefore in case of any liability arising from such acts, the principal will be
liable.
An agent is a person who is employed to do work on behalf of another

person known as a principal. The law of contract generally applies to the
agency relationship. However, agency itself forms one of the exceptions to
the doctrine of privity of contract.
Capacity of an Agent and Principal
Any person with legal capacity to enter into a contract can appoint or be
appointed as an agent.
Section 11976 Contract Act provides that a person may employ an agent,
where that person is eighteen years or more, is of sound mind and is not
disqualified from appointing an agent by any law to which that person is
subject
How is agency created?
Agency can be created in a number of ways and these include;
1) By Express Agreement
Section 122(1) & (2) 77 This is where an agent is expressly appointed by the
principal. The appointment may be oral, or in writing (agreement in writing).
In other words, a person is appointed in clear terms by the principal to act as
his agent. E.g. if the principal wants the agent to execute/sign a
deed/agreement on his behalf for the sale or purchase of land, he will execute
a document called a power of attorney. This document is a formal document
whose format is laid out in the Registration of Tittles Act.
76
Contracts Act 2010
77
Contracts Act 2010
115
2) Agency by Implied Agreement
Section 122 (2)78 This kind of agency arises by operation of the law. In other
words, the law implies its existence from the circumstances of a particular
case. It arises in a situation where by although there is no express agreement
appointing a person as an agent, the law will imply the existence of an agency
relationship from the circumstances of the case or from the conduct of the
parties.
3. Agency by Estoppel
This kind of agency arises from the doctrine of estoppel which is to the effect
that where a person by words or his conduct willfully leads another to believe
that a certain state/set of circumstances or facts exists and that other person
acts on that belief, the person who made the statement of facts will be
precluded/estopped from later on denying the truth of such statements even
if such state of affairs did not in fact exist.
4.Agency by Necessity/ authority of agent in an emergency
This kind of agency is also conferred by law. Section 124 of the Act
provides that in an emergency, an agent has authority to do any act for the
purpose of protecting a principal from loss, as would be done by a person of
ordinary prudence, under similar circumstances.
5) Agency by ratification
Section 130 (1) provides that where an act is done by one person on behalf
of another but without the knowledge or authority of that other person, the
person on whose behalf the act is done may ratify or disown the act.
Section 130 (2) states that, where person on whose behalf an act is done,
ratifies the act, the same effects shall follow, as if the act was performed under
his or her authority. Section 131 provides that ratification may be express
78
Contract Act
116
or implied by the conduct of the person on whose behalf an act is done. Not
do so, since it was not in existence when the contract was made.
Authority of the Agent
Authority of an agent means his capacity to enter into a particular transaction

and bind the principal by such transaction. The agent can only bind the
principal if he acts within the scope of his authority.
Section 123 (1) 79 states that an agent with authority to do an act has
authority to do anything which is necessary to do the act, which is lawful.
agent with authority to carry on a business has authority to do anything
which is necessary for the purpose of carrying on the business or which is
usually done in the course of conducting the business.
Duties of Agents in contracts
a. Duty of Good faith
The agent must act in good faith. This entails three things:
(i) The agent must not let his own interests’ conflict with his
duty to the principal. The reason for the rule is to prevent the
agent from being tempted not to do the best for his principal. In
the case of Igben & Oke v. Etwarie80 (1971) 1 NCLR 85 the
High Court of Benin held that it was a rule of general application
that an agent should not be allowed to enter into agreements in
which he has or can have a personal interest conflicting with his
principal.
(ii) The agent must not make a secret profit the agent must not
use his position to secure a benefit for himself. Where an agent
Contracts Act
80
(1971) 1 NCLR 85
117
makes a secret profit, he must disclose and account for it to the

principal. In the case of Lucifero v. Castel 81 an agent
appointed to purchase a yacht for his principal bought the yacht
for himself and then sold it to his principal for a profit, the
principal being unaware that he was buying the agents own
property. Court held that the agent had to pay the profit to the
principal even if the principal could not have earned the profit
himself.
(iii) The agent must disclose to the principal any opportunity

or information which he comes across in his position as
agent.
There was capacity to contract by the regents of the kabaka based on the law
of agency them being agents by necessity and under the constitution of
Buganda82 though as per the analysis that is yet to be discussed below, we
shall see these regents failed in their duty of acting in good faith
Consent
The Buganda agreement of in 1900 which was signed between two

antagonistic camps and this include the British represented by the
commissioner sir Harry John stone and the Kabaka regents who represented
the infant king Daudi Chwa II. The question is, was the Agreement based on
the true mentalities of a valid contract? The answer is provided below as
regards to the vitiating factor of mistake as to fact that renders a contract
voidable hence rescinding as a remedy. In order to appreciate this vitiating
factor in aspect of the 1900 Buganda agreement, we need to know what
mistake entails.
In conclusion therefore having analysed the essential ingredients of a contract

“offer, capacity, intetion, acceptance, and consideration” towards the 1900
81
(1887)
82
Article 3
118
Buganda. There was offer“British represented by sir Harry Johnson as the

offeror and Buganda represented by regents as offeree”,there was no capacity
because Kabaka Daud Chaw II was still a minor and acceptance was their
because it was made by the regents not the king him self, consideration was there
because the King and chiefs where given Land . Thus, this makes a contract
voidable hence in turn making not a good contract. And this is why Kabaka
Muteesa rose up in 1953 to make the 1953-55 crisis inevitable in order to revive
back the aggrement for amendment because it was out of fraud measures and
selfish intrest
M I ST A KE A S A V I T IA T IN G FA C TOR A S R EG A R D S T O TH E 1900
BU G AN DA A G R E EM EN T
The Buganda agreement of in 1900 which was signed between two

antagonistic camps and this include the British represented by the
commissioner sir Harry John stone and the Kabaka regents who represented
the infant king Daudi Chwa II. The question is, was the Agreement based on
the true mentalities of a valid contract? The answer is provided below as
regards to the vitiating factor of mistake as to fact that renders a contract
voidable hence rescinding as a remedy. In order to appreciate this vitiating
factor in aspect of the 1900 Buganda agreement, we need to know what
mistake entails.
Mistake is sometimes considered to be a difficult area of law. There are

certainly a number of reasons for this. It is quite closely related to the area of
agreement since agreement is said to depend on a consensus ad idem, a
voluntary arrangement mutually agreed by both parties. If a party enters a
contract on the basis of a mistake, then this is said to negate the consensus ad
idem, since any consensus could not be genuinely held in that case. Mistake,
certainly common mistake, is also closely related to misrepresentation, since
a party might claim that they are mistaken owing to the misrepresentation of
119
the other party, however innocent. In consequence, a claimant sometimes

pleads both claims. 83
The first distinction to make in mistake, whether it is the common law or

equity that provides the remedy. For the common law to have any effect the
mistake must have been an ‘operative’one. It must have been a mistake
fundamental to the making of the contract such that the contract was only
formed because of the mistake. If the mistake is recognised as being ‘operative’
then the contract will be void abinitio. Not only will the parties be returned
to their pre-contract position, but also any further rights coming out of the
contract will have no effect, because the contract is as though it had never
existed. If the court cannot accept that the mistake is operative, in other words
the mistake was not the reason that the contract was formed, then common
law rules can not apply but a solution in equity is possible, subject to the
discretion of the court and the normal maxims. Recent case law, however,
casts some doubt on this. If equity can be applied then the effect is for the
contract to be voidable. The contract could continue but a party to the
contract who has been the victim of the mistake can avoid his/her obligations
and the contract may be set aside. There are basically three classes of mistake,
although these themselves sub-divide to cover more specific circumstances.
• A ‘common mistake’s one where both parties have made the same
mistake. The mistake can concern either the existence of the subject
matter of the contract, or its quality, with different consequences
depending on which it is.
• A ‘mutual mistake ‘again involves both parties being mistaken, but at
cross-purposes over the nature of the agreement rather than making
the same mistake.
• A ‘unilateral mistake’s one where only one of the parties is mistaken.
By implication the other party will usually know of the other party’s
mistake and be set to take advantage of it.
83
Introduction to law of contract by Prof. Ben Twinomugisha
120
Common mistake.
Res extincta This involves a mistake about the existence of the subject matter
of the contract at the time that the contract was formed. If at that time the
subject matter of the contract did not exist then the mistake is an operative
one, because clearly neither party to the contract would contract for
something that did not exist, and the contract will be void as per the case of
Cooper v Phibbs (1867) The House of Lords agreed to this but also granted
Phibbs a lien in respect of the considerable expense he had gone to in
improving the property. Although the case was decided on equitable rather
than common law principles, law Lord Atkin in Bell v Lever Brothers refers
to it as an example of res sua. The case can be seen as res sua. Equity was
applied and the contract declared voidable rather than void because firstly
Cooper had only an equitable interest in the property, and secondly Phibbs
had spent money on it.
Mutual mistake
A mutual mistake occurs where the parties to the contract are at cross-
purposes over the meaning of the contract. One of the problems here is that
it is doubtful whether any meaningful and sustainable agreement has ever
been reached. What the courts will do is to try to make sense of the agreement
that does exist in order that it can continue. To do this they will implement
an objective test and will try to identify a common intent if one exists. If,
however, the promises made by the two parties so contradict one another as
to render any performance of the agreement impossible then the court will
deem that an operative mistake exists and the contract will be declared void.
Raffles v Wichelhaus (1864), court held that the contract could not be
completed and was declared void. So, ambiguity surrounding the subject
matter of the contract may well make a mistake operative and result in the
contract being declared void.
121
Unilateral mistake
Introduction The cases in unilateral mistake show two particular lines: the
mistake will either be as to the terms of the contract or will be as to the identity
of the other party to the contract. In either case the significant point is that
only one of the parties to the contract is actually mistaken, hence unilateral
mistake.
Mistaken terms, if one party to the contract makes a material mistake in

expressing his/her intention and the other party knows, or is deemed to
know, of the mistake then the mistake may be operative, with the result that
the contract may be void. Hartog v Colin & Shields (1939) court declared
the contract void for the mistake.
• One party to the contract is genuinely mistaken over a material detail

that had the truth been known would have meant (s)he would not
have contracted on the terms stated. (This was clearly the position of
the sellers in the above case.)
• The other party to the contract ought reasonably to have known of
the mistake. (Again, the court accepted in the above case that the
buyers were taking advantage of a situation that they would have been
aware of because of usual custom in the trade.)
• The party making the mistake was not at fault in any other way.
Sybron Corporation v Rochem Ltd (1984) The Court of Appeal held that it
was the manager’s breach of duty that had induced the company to believe
that it was obliged to grant him the pension. It had done so under a mistake
of fact. Kings Norton Metal Co. Ltd v Edridge, Merrett & Co. Ltd (the
Kings Norton Metal case) (1897), The court was not prepared to void the
contract for mistake. The Metal Co.was not so much mistaking the identity
of Wallis, since Hallam & Co.did not exist, as mistaking the creditworthiness
of Wallis with whom it had in fact contracted.
Cundy v Lindsay (1878), On appeal the House of Lords held that the
contract was void for mistake. The mistake was operable because If the one
122
party is to be able to claim that the mistake is to be considered material then

the other party to the contract must have known of it.
Mistaken identity and face-toface dealing Where a party negotiates a contract

in person then the party is deemed to be contracting with the other party who
is physically present at the negotiations, whatever the identity that the other
party assumes. In this way the mistake is not as to the identity but as to the
creditworthiness of the other party. This is not material to the forming of the
contract so the mistake is not operative and the contract cannot be void.
One case actually cast doubt on this principle and caused some confusion.
The case is seen as being either decided on the particular facts or indeed
wrongly decided, andLindsay’s were able to show that the identity of the
party trading from 37 Wood Street was material to the formation of the
contract. Unlike the Kings Norton Metal case, there was a party here with
whom the claimants wished to contract. The third party acquired the goods
from Blenkarn without any title.
Ingram v Little (1960) The Court of Appeal, strangely, accepted that the
mistake as to identity was material to the contract, as it was shown that the
ladies initially rejected the cheque, and so relied on the identity of the
important local figure
The case is seen as being either decided on the particular facts or indeed
wrongly decided, and Lindsay’s were able to show that the identity of the
party trading from 37 Wood Street was material to the formation of the
contract. Unlike the Kings Norton Metal case, there was a party here with
whom the claimants wished to contract. The third party acquired the goods
from Blenkarn without any title.
Cundy v Lindsay since the finance company never saw the rogue, dealt only
with documentation, and the salesman in the showroom was not their agent,
123
but only an intermediary.The rogue gained no title that he could pass on,and
the innocent purchaser had to bear the loss.The House of Lords agreed.
If a mistake has been shown to be operative then the common law rather than
equity may apply. If it is not an operative mistake and therefore not void, then
an equitable solution may be sought in one of three ways:
• rescission of the contract, with the contract being set aside and new
terms substituted
• a refusal to grant the other party’s claim for specific performance of
the contract
• rectification of a document containing a mistake which is material
If the party claiming rescission can show that it is against conscience to allow
the other party to take advantage of the mistake then the court may allow
rescission, though usually at the same time substituting more equitable terms
as an alternative.
In appretiatiating the law brought by mistake as a vitiating factor to the aspect

of 1900 Buganda agreement, there was mistake as to identity basing on the
principle of Delegation “Deligatus non deligee”, on grounds that the Kabaka
regents where not delegated by the king to sign the 1900 Buganda agreement.
In linage to the case of Ingram vs. Little the British intended to sign with the
Kabaka of Buganda not the regents, same also basing on the law of Capcity as
per section 10 of the contract act 2010 they couldn’t contract with the minor
Kabaka Daudi Chwa 11 thus inturn makes the contract voidable. This why
the Kabaka MutesaII refused to honour the 1900 Buganda agreement
because it created more harm than good, it involved fraudulent measures of
representation of the Regents i.e Stanslus Mugwanya, Apollo Kagwa, Zakaria
Kisigili etc who signed the agreements for their benefits other than
representing Buganda kingdom.
It was the mistake as to identity where the regents signed the agreement
without the consent of the King that made the Mutesa II to reject the
agreement calling for recession hence leading to the 1953 – 55 Kabaka crisis.
124
Significantly the 1953 reform would demonstrate the dependence of the

colonial government on the legal cooperation of the Kabaka with the
ascendancy of Mutesa II as Kabaka, his strength was bound to be the cause of
friction between the Buganda government and the colonial government.
Educated at Cambridge and already offended that he was not treated with
honor at the coronation of Queen Elizabeth II in 1952, the reliance on
Mutesa II to promote colonial government policy was unlikely to be a happy
circumstance. Nonetheless Mutesa II was keen to support the March 1953
reform but where the Cohen policy in its strong belief that Uganda must
develop as a unitary state threatened the tribal loyalties. This would result in
tribal institutions including the Kabakaship declining in importance. This
factor and concern would spark off the crisis in Buganda that came to be
known as the Kabaka crisis of 1953 – 1955.
In conclusion therefore the I900 Buganda agreement was not a good

agreement because of the British mistakenly contracted to the regents other
than the king himself making the contract voidable hence causing the 1953-
55 crisis leading to the 1955 Namiremmbe agreement that interpreted,
innovated some clauses in the 1900 Buganda agreement hence rescinding it.
M I SR EP R E SEN T AT I ON AS A V I TI A TIN G FA CT OR I N TH E
SIN G IN G O F TH E 1900 BU GAN DA
in so relating to the law of misrepresentation as vitiating factor to the 1900

Buganda agreement that was signed by the British represented by Sir Harry
Johnson and Buganda represented by the regents on behalf of the infant king
Kabaka Daudi Chwa II, the principle of vitiating factor is need to be first
discussed in full and thus relating it to the Buganda aggrement of 1900 hence
in turn rendering it voidable.
A misrepresentation is a false statement of fact made that has the result of

inducing the other party to enter a contract. If a misrepresentation is shown
to have occurred, the effect will be that the contract becomes voidable. This
125
means that the party who was induced into the contract as a result of the
misrepresentation may choose to rescind the contract, but does not
necessarily have to. Misrepresentation is based mainly in contract law, and has
a relationship with other areas of contract that this module guide will explore,
such as terms and mistake. There is also the negligent element of
misrepresentation, which is based in tort. Therefore, an understanding of
tortious principles will be helpful in understanding the law.84
A misrepresentation is a form of statement made prior to the contract being

formed. There are two types of statement that can be made before a contract
forms, these will either Form part of the contract or not form part of the
contract, therefore becoming a representation.85
The importance of this distinction has been explained in the chapter relating
to terms, so for a full understanding it is recommended that you have studied
that chapter. But to recap, if a statement is made that is considered to be a
term, in the event of this statement being breached, the aggrieved party would
have a remedy under a breach of contract. However, if a statement is not
considered to be a term, it will be held to be a representation, meaning if that
representation is not true, the remedy will be under the law of
misrepresentation. In order to distinguish between the two, the courts will
consider the intentions of the party.
Intention: The courts will attempt to give effect to the parties’ intention
insofar as this is possible. This will be an objectively applied standard. There
are a number of presumptions related to when or how a statement is made
which will help the courts when they are attempting to ascertain whether a
statement is a term or a representation (Heilbut, Symons & Co v
Buckleton86). These factors were covered in detail in the chapter on terms,
84
introduction of law of contract by Ben twinomugisha
85
Law of contract by Bakibinga
86
[1913] AC 30
126
therefore this chapter will provide a simple overview of the factors. For more
information on this you should refer to the chapter on terms.
Statement is reduced to writing, if a statement has been reduced to

writing, there will be a strong presumption that this will form a term of the
contract, as opposed to a representation. The courts are unreceptive to such
claims, as per the ‘parole evidence’ rule. Therefore, when there is a statement
which has not been reduced to writing, the presumption may be that it is a
representation. Be careful, as oral statements can still form a term of the
contract; you should still consider the other factors alongside this one.
Specialist skill or knowledge: If the statement is made by a party who has,

or claims to have, specialist skill or knowledge, there will be a presumption
that this statement is a term. The cases of Dick Bentley Productions Ltd v
Harold Smith (Motors) Ltd [1965] 1 WLR 623 and Oscar Chess v Williams
[1957] 1 WLR 370 are good authorities for this. In Dick Bentley, the
statement was held to be a term because it was made by a car dealer who
would claim to have specialist skill or knowledge. However, in Oscar Chess,
the statement was made by a private seller who had no real specialist skill or
knowledge.87
In order for a representation to become a misrepresentation, it must be first

proven that it was an unambiguous, false statement of fact. In order to prove
this misrepresentation is actionable, it must be shown that this representation
induced the claimant to enter the contract.
Unambiguous, false statement: False and unambiguous Ascertaining

whether a statement is false in the context of misrepresentation is not as
straightforward as a question of whether the statement is true or false. The
degree of falsity is a relevant consideration. The case of Avon Insurance plc v
Swire Fraser Ltd 88ruled that the test to apply is whether or not the statement
87
Introduction to contract law by Prof. Ben Twinomugisha
88
[2000] 1 All ER (Comm) 573
127
is “substantially correct”. This involves a consideration of the inducement of

the individual to the contract. If a statement is made that was technically false,
but most of the statement was true, the statement would hold to be true so
long as the true part of the statement induced the claimant into the contract,
as opposed to the false part. Whether or not the false statement is
unambiguous refers to how the claimant interpreted the statement. If, on a
reasonable construction, the statement was true, however, the claimant
interpreted the statement in a different way which rendered the statement
false, the statement would not be unambiguously false, and the claim would
fail.
Statement: The word ‘statement’ has been broadly interpreted. ‘Statement’

does not just refer to a verbal statement; it has been held that conduct can
amount to a statement for the purpose of misrepresentation. The case of
Curtis v Chemical Cleaning & Dyeing co Ltd [1951] 1 KB 805 outlined this
fact. An example of this can be found in Gordon v Selico (1986) 278 EG 53,
where the concealment of some dry rot during an inspection of a property
was held to be a statement which misrepresented the fact that the property
was free of dry rot.
Silence or non-disclosure will not amount to a statement, it is clear that there

must be some kind of positive conduct to constitute a statement. Therefore,
although in Gordon v Selico the party was silent as to the existence of dry rot,
the conduct went beyond merely remaining silent; there were active steps to
conceal this fact.
Half-truths: A misleading half-truth will amount to a misrepresentation. A

misleading half-truth is a true statement which is misleading due to all
relevant information not being revealed. Take the case of Nottingham Patent
Brick & Tile Co v Butler (1885) LR 16 QBD, where a solicitor was asked
whether any restrictive covenants burdened some land. The solicitor
answered that he was not aware of any, which was technically true, as he had
not yet checked. Of course, when he checked, there was some restrictive
128
covenants. Therefore, the statement was technically true, but only half-true
and misleading, meaning it would be construed as false.
In contracts which are negotiated over a long period of time, any statements
made of a volatile nature can be considered “continuing statements”, with
which extreme care should be taken.
Contracts of utmost good faith: Certain types of contracts will impose a

higher duty of disclosure than under normal circumstances. This is due to the
nature of the relationships between the parties. The most common example
of such a relationship is that between an insurer and the insured. It is the
insured’s duty to disclose all material facts at the time of the formation of the
contract for insurance and failure to do so will result in any form of claim
under that insurance contract failing. This differs greatly from the usual
duties of contracting parties, whereby there is no positive duty to disclose any
facts (Keates v The Earl of Cadogan (1851) 10 CB 591).
False statement of fact: This section will be concerned with whether or not
the statement was of fact. This is a key component of misrepresentation, as a
claim for misrepresentation will not be actionable if the statement made was
merely an opinion or a suggestion. Statements of opinion: As mentioned
above, the general rule is that a statement of opinion is not a fact.
Statements of intention: A misrepresentation as to future intention is

usually not actionable for misrepresentation, as it will not amount to a
statement of fact. The statement of future intent will not be held to be a fact
even if the defendant intentionally changes their mind as to their intentions
(Inntrepreneur Pub Co v Sweeney [2002] EWHC 1060 (Ch)). A statement
of future intention made with absolutely no intention at the time of the
statement, however, will amount to a misrepresentation, as seen in Edgington
v Fitzmaurice (1885) 24 Ch D 459.
Statements of law A statement of law which is incorrect will amount to a false

statement of fact for the purpose of misrepresentation. Pankhania v Hackney
129
London Borough [2002] NPC 123 concerned the purchase of a property to

be used as a car park. There was a statement that the occupier of the car park
could be evicted within three months under law. This was incorrect, and
therefore classified as a false statement of fact.
The representation must be known to the representee. A representation

will not be actionable and will not have induced the representee unless the
representee was aware of the representation. Horsfall v Thomas (1862) 1 H
& C 90. It was held it could not amount to a representation as the representee
never inspected the product and was therefore never aware of the
misrepresentation.
What type of misrepresentation has been made?
Categorising the type of misrepresentation made is one of the most complex

parts of the law of misrepresentation, as there are four different types:
Fraudulent Misrepresentation - Common Law Tort of Deceit
Negligent Misstatement - Common Law via Hedley Byrne v Heller
Negligent Misrepresentation - Statutory under the Misrepresentation Act

1967
Innocent Misrepresentation - Statutory under the Misrepresentation Act

1967
The importance of these distinctions will become clear when each one is
assessed, as they have differing burdens of proof and remedies. The
distinctions are based upon the intention of the statement maker when the
misrepresentation is made. Types 2 and 3 will be dealt with under the one
heading of “Negligent misrepresentation”, the common law and statutory
differentiation affect the remedies available.
Fraudulent misrepresentation, the significance of a misrepresentation being

classified as a fraudulent one is that the measure of damages may be greater
130
under certain circumstances. There are two remedies available for fraudulent
misrepresentation: recession and damages.
Representees should attempt a claim for fraudulent misrepresentation with

caution, as the courts impose a much higher standard of proof due to the
serious allegations. There may also be penalties in the event the claim is not
made out. A fraudulent misrepresentation was defined in Derry v Peek
(1889) 14 App Cas 337 as a false statement which is ‘made knowingly, or
without belief in its truth, or recklessly, careless whether it be true or false’.
In order to assess whether a statement has been made fraudulently, you

should consider whether:
• The statement maker knows that the statement he has made is

false
• The statement maker has reasonable grounds to believe his

statement is true even if it is false
• In the case of a, there will clearly be a fraudulent statement
Thomas Witter Ltd v TBP Industries Ltd [1996] 2 All ER 573 clarified that
where a statement is made where the statement maker has no idea whether or
not it is true or false, this statement would be fraudulent due to the
recklessness asserting it is true when it may not be.89
True statements which become false, as we have discussed earlier in this

section, some statements made may be true at the time of the statement, but
later become false. In those situations, it was established that there is a duty
for the statement maker to make the representee aware of this change.
However, for the purposes of ascertaining the type of misrepresentation,
would a failure to update the representee be classed as a fraudulent
misrepresentation? In With v O’Flanagan [1936] Ch 575 it was suggested
89
Law of contract by Prof. David Bakibinga
131
that misrepresentation as a result of a change of circumstances might result in

either a fraudulent misrepresentation or a negligent one. Here are the
circumstances in which this can happen:
Fraudulent: The statement maker is aware there is a duty to notify the

representee of a change in circumstances (Banks v Cox (No 2) unreported)
Negligent: The statement maker is not aware there is a duty to notify the
representee of a change in circumstances. A negligent misrepresentation is
made out where the statement maker has belief in his statement, but has been
careless in reaching this conclusion. in the case of Hedley Byrne & Co Ltd v
Heller & Partners Ltd [1964] AC 465. As per Caparo Industries plc v
Dickman [1990] 2 AC 605, in order for a claim in negligence to be successful,
there must be a special relationship between the parties so that there would
be a duty of care which arises. Subsequent case law which considered
negligence of misrepresentations in the context of duty of care concluded
there would be a duty of care owed if there was an ‘assumption of
responsibility’ on the part of the statement
Innocent misrepresentation, With the development of the Misrepresentation

act the claim for innocent misrepresentation is extremely limited. A claim for
innocent misrepresentation will arise when a claim for negligent
misrepresentation under the Misrepresentation act has failed. The remedy for
an innocent misrepresentation will usually be rescission of the contract.
In March 1900, this agreement formed the basis of British relations with
Buganda, the Kabaka (King) was recognised as ruler of Buganda as long he
remained faithful to her Majesty, the Lukiko (council of chiefs) given
statutory recognition. This was following another agreement signed in 1894
in which the Kingdom of Buganda, then known as Uganda, was declared a
British Protectorate.This agreement is also known as the Buganda Charter of
Rights and was upheld for more than 50 years. The undersigned, to wit, Sir
Henry Hamilton Johnston, K.C.B., Her Majesty's Special Commissioner,
Commander-in -Chief and Consul-General for the Uganda Protectorate and
132
the adjoining Territories, on behalf of Her Majesty the Queen of Great

Britain and Ireland, Empress of lndia, on the one part; and the mentioned
Regents and Chiefs of the Kingdom of Buganda on behalf of the infant
Kabaka (King) of Buganda, APOLLO KAGWA,STANSLUS
MUGWANYA, , MBOGO NOHO, ZAKARIA KIZITO, KANGAWO,
SEBAUA, POKINO. YAKOBO, KAGO. PAULO, MUKWENDA,
KAMUSWAGA OF KOKI, and the chiefs and people of Uganda, on the
other part: do hereby agree to the Articles relative to the government and
administration of the Kingdom of Buganda.
The 1900 Buganda Agreement was not a suitable agreement on

grounds of misrepresentation that renders it voidable agreement, the Kabaka
of Buganda by that time was young and thus all the regents signed it on
promise of Land and other benefits. Not only that, also signed it on the infant
king recognition plus the Namasole as seen in article 6 and 7of the 1900
Buganda agreement, hence in turn made the regents to sign it on behalf of
Kabaka Daudi Chwa II. Per those statement induced the regents to enter into
the contract which in turn made the Baganda to call it the Agreement of
benefit of Whites and the Regents but not the affiliations of Baganda hence
caused the 1953 crisis on grounds of interpreting and rescinding the 1900
Buganda agreement which in turn called the 1955 Buganda Agreement to
recede and interpreted various articles of 1900 Buganda agreement
Between 1953 and 1955 there was major unrest and discontent in Uganda,
part of the British-administered Uganda Protectorate, following a speech in
which the British Secretary of State for the Colonies made a "passing
reference" to the possibility of East African federation. The incident
prompted widespread calls for Bugandan independence as the only
protection against British overreach.
In order to force a resolution to the deepening political crisis, the Governor

of Uganda, Sir Andrew Cohen, invoked the Uganda Agreement (1900) and
demanded that the Kabaka (Mutesa II) fall into line British government
133
policy which favoured the continuation of a single, unitary, Ugandan state.

The Kabaka refused. As a result, the British Government withdrew its
recognition of Mutesa II as Uganda's native ruler under Article 6 of the 1900
Uganda agreement and forcibly deported Mutesa to Britain. News about
Mutesa's deportation severely shocked the Baganda, leading to a
constitutional crisis. Cohen's preference was for a new Kabaka to be installed
immediately, but this proved impossible, necessitating a fuller negotiated
outcome.
The Buganda Agreement, 1955 was made on 18 October 1955 between

Andrew Cohen, the governor of the Uganda Protectorate, and Mutesa II,
Kabaka of Buganda. The agreement facilitated Mutesa II's return as a
constitutional monarch, ending the Kabaka crisis that began when the
Kabaka was exiled to England by Cohen in 1953. It amended the earlier 1900
Uganda Agreement. The final text reflected the agreed outcomes of the
Namirembe Conference.
Following a successful Bugandan delegation to London, new negotiations on

the future of Baganda took place in June to September 1954 at Namirembe,
with the Australian Sir Keith Hancock (Director of the Institute of
Commonwealth Studies in London) acting as the mediator and Stanley
Alexander de Smith as Secretary. Initially, Hancock met solely with a
constitutional committee selected by the Lukiiko. The four main issues
considered by the committee were the degree to which Buganda was
'independent' under the 1900 Agreement; the balance between federalism
versus the need to preserve a unitary Ugandan state; the role of the Kabaka;
and the participation of Buganda in the Uganda Legislative Council
(LEGCO). Discussions were lengthy, and while there was some progress, it
was clear to Hancock that the Committee in particular held firm views in
favour of a federal model for Buganda that would be at odds with the British
emphasis on a unitary state.
The Namirembe Conference proper opened on 30 July, with both the

Committee and Cohen represented. On the crucial issue of federalism,
134
Cohen produced a paper in early August arguing for greater devolution to

Buganda, without going as far as federalism. At the same time, the non-
African members of LEGCO agreed to give up one European and one Asian
representative seat and transfer these to African members.
By the time the conference closed in early September, it had agreed a number
of recommendations, including that "the Kingdom of Buganda... should
continue to be an integral part of the Protectorate; that the conduct of public
affairs in Buganda should be in the hands of Ministers; and that, while all the
traditional dignities of the Kabaka should be fully safeguarded, Kabakas in
future should be constitutional rulers bound by a Solemn Engagement to
observe the conditions of the Agreements regarding the Constitution and not
to prejudice the security and welfare of the Buganda people and the
Protectorate". A number of constitutional changes to the Governments of
Uganda and Buganda and to LEGCO were agreed at the same time,
increasing African representation, and progressing Cohen's reformist goals.
As a result of these changes, Buganda would end its boycott of the reformed
LEGCO. Strictly speaking, the return of Mutesa himself to Uganda was
outside the conference's terms of reference. However, the Kampala High
Court's finding that the British Government's reliance on Article 6 of the
Buganda agreement was "mistaken" – coming shortly after news of the
agreement at Namirembe, but before the Agreed Recommendations could
be published – put pressure on Cohen to concede. In November, he reversed
the British Government's position and agreed to Mutesa's return, contingent
on the adoption and implementation of the Namirembe recommendations.
DURESS AN D U N DU E I N FL U EN C E AS TH E V I TI A TI N G F A CT OR
R EN D ER IN G TH E 1900 BU G AN DA AG R E EM E N T A V OI DA B LE
AG R EE M EN T .
Duress is a common law area which was traditionally associated with

intimidation that was real or at least sufficiently real and threatening to vitiate
135
the consent of the other party, and mean that (s)he acted not by free will.
Cumming v Ince (1847) An inmate in a private mental asylum was coerced
into signing away title to all of her property or she was threatened that the
committal order would never be lifted. The contract was set aside. It was not
made of her free will. The law developed so that the threat vitiating the
contract was associated with violence or even death. Barton v Armstrong
(1975) A former chairman of a company threatened the current managing
director with death unless the managing director paid over a large sum of
money for the former chairman’s shares. It was shown in the case that the
managing director was actually quite happy to buy the shares and would have
done so even without any threat being made. Nevertheless, threats had been
made and were therefore sufficient to amount to duress, vitiating the
agreement they had reached as a result90
Threats to carry out a lawful action,however, cannot amount to duress

Williams v Bayley (1866) A young man had forged his father’s signature on
promissory notes (IOUs) which he then gave to the bank,causing it to lose
money.The bank then approached the young man’s father and demanded
that he should mortgage his farm to it to cover son’s debt or it would
prosecute the son.The threat was for lawful action and so could not amount
to duress.However,the court was disturbed by the manner of the threats and
accepted that they did amount to undue influence.
D.C. Builders v Rees (1965) In this case, as we have already seen, the Reeses
forced the small firm of builders to accept a cheque of £300 in full satisfaction
of the actual bill of £462 or take nothing. They had no choice in the
circumstances but to accept. Lord Denning considered the issue of inequality
of bargaining strength and felt that coercion in such circumstances justified
avoidance of the agreement
Lord Scarman then also accepted the basic doctrine in Pao On v Lau
Yiu Long (1980) ‘there is nothing contrary to principle in recognising
90
136
economic duress as a factor which may render a contract voidable provided

always that the basis of such recognition is that it must always amount to a
coercion of will which vitiates consent’.Lord Scarman also outlined the test
for coercion ‘whether the person alleged to have been coerced did or did not
protest ...did or did not have an alternative course open to him ...was
independently advised ...took steps to avoid it’. The doctrine and the tests
deriving from it have been subsequently and satisfactorily applied.91
Allcard v Skinner (1887) A woman belonging to a religious sect was

persuaded to join a closed order and to give all of her property up to the order.
When she later left the order, she then tried to recover railway stock that she
had owned. While it was accepted that she had been subjected to undue
influence her action failed because she waited until five years after leaving the
order before claiming, and ‘delay defeats equity’.92 Royal Bank of Scotland
plc v Etridge (No 2) and other appeals (2001).The Lords appear to have
decided that there are not two types of undue influence.93Presumed undue
influenceis merely an evidential‘lift’in helping prove undue influence.They
also expressed dislike with the words ‘manifestly disadvantageous’and
preferred instead the 19th-century language‘transactions which are not to be
accounted for on terms of charity,love or affection’.They considered that it
was out of touch with life to presume that every gift from a child to a parent
was undue influence.They also thought that most cases where a spouse
guarantees a husband’s business debts would be explicable and are reasonably
accountable.This view might lead to fewer cases being successful.The Lords
issued general guidelines as follows:
1. A bank should be put on enquiry whenever a wife offers to stand surety for
her husband’s debts or vice versa, or even in the case of unmarried couples
where the bank was aware of the relationship.
91
92
Law of contract by Ben Twinomugisha
93
cc
137
2. A bank should take reasonable steps to satisfy itself that a wife had been
fully informed of the practical implications of the proposed transaction. This
need not mean a personal meeting if a suitable alternative was available and
the bank could rely on confirmation from a solicitor acting for the wife that
he had advised her appropriately. But if the bank knew that the solicitor had
not properly advised the wife or ought to have realised that the wife had not
received appropriate advice then it was risk of being fixed with notice.
In appreciating the law of undue influence basing on the case of Hassanali vs

Issa where the contract was redenderd voidable on grounds of a party
dominating a will over the other party .The Buganda aggrement that was
signed signed on the 10th of march 1900 between two antagonistic camps
and these include Buganda and the British , the Buganda Agreement was
signed between Harry Johnson the new Commissioner of Uganda on behalf
of the Queen of England and the Chiefs of Buganda, that is; Stanslaus
Mugwanya, Zakariya Kisingili and Apollo Kaggwa acting on behalf of the
infant king Kabaka Chwa II of Buganda who had then attained the age of
four years. The agreement had the element of undue influence on grounds
that the British government of her Majesty knew that the king was infant,
utilised this chanced and forced the regents who where chiefs that time to sign
the agreement on behalf of the Buganda kingdom hence in turn rendering it
voidable on grounds of duress as afore mentioned and on grounds of undue
influence ,one party dominating a will over the other party to enter into a
contract “it was the British who dominated a will over the Baganda Regents
to sign the agreement without knowing or seeking advise” thus renders it a
voidable contract. This was the reason why the Kabaka Mutesa II refused to
accept the agreement because of the aspect of undue influence and duress,
thus making the 1953 -55 Kabaka crisis inevitable.
The Namirembe agreement of 1955 that was made in Mengo it was there to
rescide to the law’s innovation of the 1900 Buganda agreement thus
rendering it a voidable contract.
138
U N C ON S CI ON A B LE B U R G A I N IN TH E B U G A N DA A GR E EM EN T
AS A V I TI A TIN G FA CT O R .
An unconscionable bargain is a harsh transaction where one person is in a

much stronger position than the other. The court may exercise equitable
powers to vary or set aside the transaction. It must be shown that the stronger
party knew that the innocent party was at a disadvantage.
Unconscionability is a field of contract law and the law of trusts, which

precludes the enforcement of voluntary (or consensual) obligations unfairly
exploiting the unequal power of the consenting parties. "Inequality of
bargaining power" is another term used to express essentially the same idea for
the same area of law, which can in turn be further broken down into cases
on duress, undue influence and exploitation of weakness. In these cases,
where someone's consent to a bargain was only procured through duress, out
of undue influence or under severe external pressure that another person
exploited, courts have felt it was unconscionable (i.e., contrary to good
conscience) to enforce agreements. Any transfers of goods or money may be
claimed back in restitution on the basis of unjust enrichment subject to
certain defences.
Considerable controversy is still present over whether "iniquitous pressure"

must actually be exercised by a defendant in order for a voluntary obligation
to be voidable. While it seems clear that in cases of undue influence the
pressure need not come from the person who may lose the contract, it is open
to debate whether circumstances exist where an obligation should be voidable
simply because the person was pressured by circumstances wholly outside a
defendant's control.
One of the most prominent cases in this area is Lloyds bank ltd v
bundy, where Lord Denning MR advocated that there be a general principle
to govern this entire area. He called the concept "inequality of bargaining
power", while the American case espousing an equivalent doctrine, Williams
v. Walker-Thomas Furniture Co. (1965), termed the issue one of
139
"unconscionability". Note that even though it is accepted that an "inequality

of bargaining power" is relevant to the doctrine of undue influence, Lord
Denning's broader dictum on a general equitable principle of an "inequality
of bargaining power" was later rejected by the House of Lords in the 1985
case National Westminster Bank plc v Morgan.94
What are the three elements of an unconscionable contract?
If a court determines a contract is unconscionable, the court may do one of

three things95:
• Void the contract;

• Void part of the contract; or.
• Modify the contract
In so reflecting to the 1900 Buganda agreement of 1900, that was signed

between the two antagonistic camps of Buganda and the British. The British
was represented by sir Harry Johnstone who brought harsh transaction policy
to the regents to sign the contract i.e., Apollo Kagwa was taken abroad to
fulfill his dream, same also persuading the reagents to sign and get land as per
article 15 entail. This bargain was unconsociable because the Kabaka who is
referred to as the Land owner didn’t know any thing hence Buganda land
became defacto in share oriented hence naming it milo because every one who
got the share was in square miles.
The mailo Land that was distributed per article 15 of the 1900 Buganda
agreement left many Baganda’s misery with the effects of Busuulu and
Evunjo laws. Kabaka Edward Muteesa wasn’t satisfied upon the 1900
Buganda agreement because it was on a mentality of who is in stronger
position than the other hence declaring it a harsh agreement which in turn
caused tension and suspicion making the 1953-55 Kabaka crisis inevitable.
94
National Westminster Bank plc v Morgan [1985] UKHL 2, [1985] AC 686, [1985] 1 All
ER 821 (via BAILII
9595
Law of contract by Chris Turner
140
The 1900 Buganda agreement, there was a harsh transaction unto the regents
which made them to sign the agreement however much they didn’t have
authority to sign the agreement. Following the Namirembe agreement of
1955 also there was a harsh transaction, it was signed for Kabaka of Buganda
to return back to Buganda. Per the analysis all agreements that are signed with
Buganda always there is unconscionable bargain
141
CHAPTER THREE
Uganda Order- In- Council, 1902

1902 order in council formalized colonial rule in Uganda, and was the
fundamental law of the Uganda protectorate. The order-in-council was an
exercise of [power granted to his majesty’s government under foreign
jurisdiction act 1890 with respect to its foreign territories. The 1902 O-I-C
dealt with several matters of constitutional significance ranging from
provincial and administrative divisions, structures of governance,
administration of justice and maintenance of law and order, to the applicable
laws. As the fundamental law of protectorate, the O-I-C dealt with the
following: -
First under section 1, it defied the territorial boundaries and provincial

divisions of the protectorate. The divisions originally established by the O-I-
C were 5;
a) Central province (districts of Elgon, Karamoja, Busoga, Bukedi)
b) B) Rudolf province (districts of turwel, turkana and dabossa)
c) Nile province (districts of doddinga, bar and shuli)
d) Western province (districts of Bunyoro, Tooro and ankole) and
142
e) Kingdom of Buganda and the islands pertaining thereto.
Second, under section 4-5, it provided for the office of the commissioner
assisted by the deputy commissioner who was to take overall control, of the
administration of the protectorate. He was the chief representative of his
majesty’s government (harry Johnston). The commissioner would later
become the governor under the provisions of the 1920 O-I-C.
Third, under section 7, the O-I-C vested crown land in the commissioner.
Under section 11, it defined crown land to mean all public land been
subjected to the control of her majesty’s government by virtue of any treaty,
convention, or agreement and all land that might have been acquired for
public service. Thus, the control of the part of land in Uganda was vested o\in
the colonial government.
Fourth, under sections 8-10, the O-I-C empowered the commissioner to

make laws and raise revenue subject only to special instructions of the state.
The commissioner was under a duty to make laws for the peace, order and
good governance of all persons in Uganda. By this power the commissioner
was able to establish a regime of laws governing all the aspects of political,
social, and economic life.
Fifth, under section 15(1), the O-I-C established a system of judicial power
comprising of justice, in particular the high court with unlimited civil and
criminal jurisdiction over all cases and all persons in Uganda. This court was
called her majesty’s court of Uganda. The o-i-c conferred upon the
commissioner the power to appoint and dismiss officers of the high court,
which power was vested directly in HMG.
Sixth, under section 15(2), the o-i-c contained a reception clause which
empowered the commissioner to apply any law of the United Kingdom in
Uganda. This sis how the Evidence Act capp.43, contracts act cap. 75,
companies act cap. 85, penal code act cap. 106 from India came to Uganda.
The reception clause is of legislation as 11 august 10902.
143
Seventh, under section 20, the o-i-c, contained a repugnancy clause’. Section
20(a) of the o-i-c provided; “in all cases, civil and criminal, to which the native
are parties, every court shall be guided by native laws so far as it is applicable
and is no repugnant to justice and morality or inconsistent with any order-in-
council, or any legislation or rule made under any ordinance.”
The clause recognized native laws and customs subject only to whether they
were in confirm with the rules of good conscience, natural justice and
morality. It was intended to remove those native laws and customs that ere
considered backward and uncivilized. The major problem was that the
negative aspects were as perceived in the eyes of the colonial power. In other
words, it was a subjective test that was applied to the moral and standard of
the English person. The problem with the subjectivity is that many customs
which were central to the social fabric of the natives’ communities in the
British colonies were rendered void by the stroke of the English pen.
An assurance of an implied application of the clause was in Kenyan case of R

vs. Amkeyo [1914], where the question was whether the relationship between
the accused and a certain woman in native custom was one of marriage in the
strictest sense of the word. Chief justice Hamilton considered the features of
the relationship as follows;
A woman was not a free contracting person in the relationship.
The woman was treated more in the form of a chattel
The relationship was potentially polygamous.
The other case on the repugnancy clause, from Tanzania, was Gwao bin
kilimo vs. kisunda bin ifuti [1938]. A government tax Clarke named maange,
in the ordinary cpurse of his duty collected shs1o= from the respobndent for
poll tax, issued him with a false tax ticket, and converted the money to his
personal use. Mange was tried in a criminal court and duly punished. The
respondents then sued him in a civil court for the return of 10/= and obtained
a decree in his favor. In execution of that decree the respondent caused to be
144
attached by court process two heads of cattle which was not property of the
judgment debtor, mange, but his father, gwao, the applicant. Gwao
successfully objected to the attachment in a lower court and appealed to the
high court in order for his cattle to be returned to him. The issues before the
high court were;
a) Whether there was an authentic true native law which allows the
seizure of a father’s property in compensation for a wrong done by a
son and
b) This native law was one, by virtue of s.24 of the 1920 Tanganyika o-
i-c.
The Tanganyika high court held that although there was a custom to that
effect, it was not of universal application and no Baraza of chiefs had ever
enforces custom. Judge Wilson referred to art 24 of the o-i-c to reject such
custom (restoration of cattle).
Another case from Uganda, that lends interpretation to this clause is Mwenge
vs. Migadde [1933], where the question related to the existence and
continuation of customary tenure in Buganda and the inalienability of such
Butaka in ancient customs of Buganda, judge Gary considered the provisions
of the 1900 Buganda agreement and legislation passed by the Buganda
government [1908] land law to hold that the practice showed that Butaka
tenure no longer existed. 96 The British court and as long as substantial justice
is achieved, there was o good ground for overturning the decision of the
native court.
Eighth, under sections 24-25, the o-i-c provided fir the commissioner to order
the removal or deportation of any undesirable person from the protectorate
96
Its to be noted that the repugnancy clause survived into post- colonial period in form of
the judicature act of 1962 qand 1967 and the judicature statute of 1966. See the case of best
kemigisha vs. Mable komuntale [1998]. The question is whethrethe validiy of customs
should be determined agaimst the retest of thje repugnancy doctrine.
145
in order to preserve peace, order and good governance. This was a power that
was used on general occasions in order to deal with anti-colonial sentiments
in the protectorate, including prominently, the bataka agitators. In order to
give effect to this power, the commissioner enacted the removal of
undesirable native’s ordinance, 1907 and the deportation ordinance, 1908.
The removal and deportation laws did now allow for the appeal against or
review of the order of the commissioner.97
A P P L IC A TI ON O F TH E 1902 O - I - C IN TER M S O F
C ON ST I TU T I ON A LI S M
The o-i-c is very important not only because it is the first legal instrument to
establish a frame work for the governance of the whole of the protectorate,
but also because of the elements it put in place. Many of those elements
influenced politics and government throughout the colonial period and the
post-independence period. The legacy of the o-i-c is very important. At the
same time the o-i-c represented a negation of the idea of constitutionalism,
even those ideas which had developed in the UK at the time. e.g.
• It didn’t respect the doctrine of separation of powers- the

executive officers of the government exercised both legislative
and judicial powers;
• -it didn’t recognize the rule of law applying double standards
and open discrimination b between indigenous people and
the Europeans.
• The o-i-c gave prominence to state power, and did not define
the rights of the individual. It was also highly coercive as it did
not allow for the alteration of state power especially officer-
bearers of elections up to 1962.
97
Deportation ordinance was amended four times between 1908 and 1956 binaaisa qho
would not be until 1996 that the deportation law(in post 196 as cap 46_ was successful
challenged and declared it constitutional; ibingira and ors verses Uganda [1966].
146
Probably the question that has been significant in Uganda’s constitutional

history has been the relationship (primacy and supremacy) of the o-i-c and
the kingdom agreements. We noted, in respect of the Buganda agreement,
that the agreement would have such primacy over other laws of the
protectorate.
In Nasanairi kibuka vs. Bertie smith [1908] where the issue related to
the legislative powers reserved to the kingdom under Buganda agreement vis
a vis the o-i-c. The judge carter j, held that the crown could not acquire
powers in Buganda which had not been granted by the 1900 agreement.
“As I understand the agreement, it is not to be regarded as taking away any

right or power of the kabaka except by its express provisions, therefore whatever
powers were his before remain with him except as far as they expressly taken
away of limited. A sovereign state has undoubtedly the power of; legislating and
thereof is no agreement prior to the 1900 agreement, so far as am aware which
takes away this right”
Thus because of the element, Buganda was at that time regarded as retaining
still a measure of her original sovereign which not even the o-i-c issued under
the 1890 FJA could not take from her.
• Katozi vs. kahizi [1907] involved a conflict between the terms of the
1901 ankole agreement which reversed certain judicial powers in their
native courts, and the terms of the o-i-c which on establishing the
high court claimed to give it full jurisdiction within the territory. The
high court ruled that the o-i-c could not alter the existing agreements.
this judgment was supported by secretary for state for the colonies
who wrote that:
• “The validity of the Uganda o-i-c 1902 is no far as it nullifies this
reservation is consequently open to question. In these circumstances,
I am advised that the Uganda o-i-c 1902 should be construed in such
a manner as not to impair the rights reserved.”
147
• R vs Besweri kiwanuka [1937] where the issue at hand was whether

the high court set up under the o-i-c had jurisdiction over Buganda.
The Buganda agreement had not explicitly stated whether or not this
would be the case. As the katozi case, the issue was referred to
secretary of state for the colonies who would reply asserting that the
1902 o-i-c was superior to the agreement. The high court held that by
the 1902 o-i-c, her majesty’s government had made manifest the
extent of her jurisdiction in Uganda such manifestation was to be
regarded as an act of state which was unchallengeable in any British
courts
• In Mukabwa and Mukubira and others [1954], the nomination of4
persons to the Buganda lukiiko was challenged since the kabaka had
been deported and in exile in the UK. The case was a disguised
challenge of the legality of the deportation under the agreement. The
court took the view that the agreement had not created contractual
relations to which HMG was bound. In other words, the people of
Buganda could not invoke the terms of the agreement as a treaty
creating rights and obligations which could be binding on her
majesty’s government before her courts.
The cases sealed the debate about the superiority of the two instruments with
agreement construed in the interests and political convenience of the colonial
government. Their significance upon the political and government in
Uganda is the legacy the provided of disregard of constitutional instruments/
idea in our subsequent history.
THE I MP O SI T ION AN D OP ER AT I ON O F CO L ON I AL
R U L ES / A D M IN IS TR A T ION 1902-1920
Once the Buganda agreement had become concluded and the 1902 o-i-c
promulgated the colonial government spend the next two decades
consolidating its power and rule. Agreements similar to BA had been signed
in between the two instruments (toro-26/6/1900 and ankole – 25/10/1900).
148
The administrative structures set up under the kingdom agreements were

essentially similar to those in Buganda.
Outside the kingdom areas, in addition to the 1902 o-i-c the main instrument
for the provision for the power and duties for the enforcement of authority
in their areas of jurisdiction. The 1919 ordinance-:
a) Defined the powers, duties ad privileges of chiefs which were

extremely extensive. The chief was a complete autocrat
endowed with powers of an executive, legislative, prevention
of crime, maintenance of law and order.
b) Subjected the chiefs took over all control and supervision of

the colonial DC. The Ultimate authority was the colonial
government. The DC had the power to hire and fire chiefs at
will and were absolute rulers in own right (concern-
insubordination, neglect of office then abuses of chiefly
powers affecting the natives.
c) Enforced the office of chiefs with coercive instruments,

designed to ensure loyalty, payment of taxes, and growth of
cash crops on part f the subjects. In this respect, the colonial
military and police apparatus paid scant regard to the
protection of the people. The role of these traditional
instruments was:
• Army too prevents foreign aggression and,

• Police to protect citizen’s lives and property were not
used in this regard and instead designated to suppress
the natives.
Basic unit; local administration was divided along ethnic lines as part of the
policy of divide and rule. Indeed, by different ethnic communities the
nationalistic (inter tribal) contacts was minimized by the colonial
149
government. Outside the kingdoms, the mode of pacification often took a

sub-imperialistic mode the most prominent in the person of semei
kakungulu. While a favorite mode of colonial penetration, it served to
ethicize and polarize relations between Buganda and these communities.
The two decades of early colonial rule, mechanisms of government and

administration had been set up virtually throughout the protectorate. Those
mechanisms duplicate the pattern which had been laid in the BA and o-i-c.
Thus, so many principles of constitutionalism were negated in these early
instruments; the same would be the cause in the legislating passed during this
period to govern the protectorate.
The legacy of this process was to create omnipotent’s chiefs whose powers
permeated virtually all aspects of social lives of their subjects. This process of
localization of colonial autocracy had even more profound effects on the
structures of government but also at a local level. For the two decades, the
governor was an absolute at the center level, parallel by the DC at the district
level and the chief at the local level. It has been argued that it would have been
impossible for the British to have established and consolidated itself as a
colonial power and to have recognized the basic rights and freedoms to have
survived as a power in Uganda.
Thus, despite the reforms that took place from 1920 onwards, the early
modus operandi set in place the colonial system of government left a marked
impact on the evolution of the constitution state in Uganda and that impact
was much more profoundly felt at the local level of government and indeed
it took over 8 years to achieve what could be described as a fundamental
reform in the operation of local government in Uganda-NRM. In addition,
the powers and privileges and character of authority established in the early
colonial period continued to exert its influence over the future ways in
Uganda government was approached in Uganda. To date we continue to be
haunted by the legacy of autocratic government set in place during this
period.
150
Uganda order in council, 1920
Between the year 1900 and 1920, the commissioner’s powers were absolute
and was largely a period of complete autocracy. The 1920 o-i-c introduced
significant developments especially as regard the organs of government. The
preamble stated inter alia:
“Where it is expedited that there should be an executive council and legislative

council, and that the legislative council should have power to make ordinances
for the peace a, order and good governance of all persons and that the same
council should exercise such powers as hereto before have exercised by the
commissioner.”
The main changes introduced by the 1920 order in council are:
It formally changed the name of the head of the protectorate form from
commissioner to governor (title would remain till 1962) It created an
executive council constituting of such members as his MG would decide to
appoint. The members could be suspended by the governor upon sufficient
cause being shown. Upon the suspension of such member, the governor was
to inform HMG who was to confirm or reject the suspension, if confirmed
the position would become vacant. The ex.co would subsequently become
the formal executive organ or the colonial government and its cabinet with
officers. It established a legislative council; the leg co was made up of the
governor and not more than two more persons’ and who served at the
pleasure of her majesty. The leg co was for the very first time a separate organ
of government, although its inclusion of members of the ex.co in its
composition militated against the principle of separation of powers.
The powers of the leg co were to;
• make laws
• constitute the court and general oversight of administration,
justice and maintenance of peace, order and good government.
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The leg co was chaired by the governor who had a veto on all matters legislated
on by the council. An overall power to respect or reject the veto only in his
MG, any bills passed by the leg co had to be transmitted to the governor to
assent.
Where he refused to assent to a bill, it was then passed to his MG as to whether

it should be assented to and become law. The judicial system put in place
under the 1902 o-i-c remained intact.
The order in council was signed in Uganda’s constitutional history for

a number of reasons.
• For the very first time, the basic feature of a topical state is
seen to take shape. There is less clear demarcation of the three
arms of government, even though the separateness and
independence were defeated under the 1902 o-i-c.
• It was however still clear that it was designed to retain and re-
enforce colonial power and reign, give closer relations of the
powers of government was still considerate such that there
had been not that much of transition in the distribution of
power, it confirmed the executive authority of government
while introducing a few cosmetic reforms. A critical look at
the membership of the organs created under the o-i-c reveals
this.
• The official members of the leg co wren largely drawn from
the public service, the executive who were majority with the
unofficial members were a minority. With the governor’s
power of veto these numbers were rendered irrelevant.
• There were other aspects in the o-i-cc which were delimiting
first; only the governor could call for meeting and the corum
of both bodies- ex.co and leg co was 3 (governor and 2 others)
• The governor had the power to operate independently of
both executive and legislative councils. (No checks and
balances on top of the fusion of powers) in effect, while the
152
number of people involved in administration of government

powers of the governor remains largely intact.
• The arrangement continued to exclude both Africans and
Asians with the exco and legco. Manned exclusively by
Europeans.
153
CHAPTER FOUR
Developments in the Protectorate from

1920-1930s
T H E A SI AN QU E S TI O N – P OL I TI C A L R EP R E SEN T AT ION AN D
EC ON O M I C IN T ER E S T S
In 1920 and 1930’s demand fro political participation in the protectorate

government would be made not by the native Africans, but the other non-
European communities, the Asians. The Indians had come to east Africa at
the close of the 19th century mainly to construct the Uganda railway, after
which most settled in Kenya and Uganda carrying out trade and commerce as
their main occupation. By 1920s, the communality was significant in
numbers and they therefore argued for political economic stake in the
protectorate. The Asian community pressurized the colonial government for
representation in the legislative council. This would bear fruit with the
domination in 1926 of the first Indian representative chinubhai jethabai
amin to the legco. In effect, the first non-European representative on the
legco was Asian rather than African. The Asian question has for long time
affected politics and government in Uganda.
Further, discrimination and racist laws and policies led to the dominance of
trade and commerce by the Asian community. This was achieved through
154
laws which excluded the Africans from trading within a certain radius of an
urban center- thus the trading ordinance 1938 prohibited natives from
trading within 10 miles radius of the urban trading that reduced limitation
on native trading to one mile distance from municipal boundary. Similarly,
Africans were prohibited from ginning cotton and processing coffee and
engaging in export-import trade. Thus, the foundation of the economy of the
protectorate was in the hands of Asians. This led to friction and antagonism
against the Indian community such that whatever there was an uprising and
riots, the Indian community was a prominent target for anti-colonial
sentiments.
The Asians did take advantage of the discriminatory laws and policies and
consolidated their economic position, and just like the Europeans looked
only to their affairs. In analyzing this issue, an oxford Indian scholar, remkrish
murkerjhee, problem of Uganda (1956) made this observation of the relations
between Africans and the Asians and Europeans.
“in Uganda, the Indian community grew as an off-shoot of a poisonous tree

because the tree does not need further sustenance from the off-shoot and the
soil has had it from the start. Therefore, when the present economic growth
for the Indian sin this country is over, nobody will lament their
disappearance. The tragedy will however remain that they were forced from
the sea by the connivance of those who so clearly affected the anger of the
people on this scapegoat.”
The Indian community has featured as prominent factor in Uganda’s

political and economic life both in its colonial and independent periods. The
triangle of European –Indian- African relations often saw the Indians
identified as part of the repressive colonial rule. Most of anti-colonial
sentiments would be expressed against them, and on one can say that the 1972
expulsion represented the culmination of the African dissatisfaction with the
Indian community.
155
THE BA T AK A / P E AS A N TR Y G R I EV AN C E S O V ER L AN D
P R OV IS ION S U N DE R T H E 1900 AG R E EM EN T
The protectorate underwent significant developments between 1900 and

1920 particularly in Buganda. During this period n Buganda, the power of
the mailo land beneficiaries was on the increase and this was set against
dissatisfaction of those who were disposed by the land redistribution under
the Buganda agreement. When the kabaka Chwa II took over from the
regents, the bataka who had formed a quasi- political association in 1921,
appealed to the bataka ask the governor for a review of the agreement. They
were joined in its appeal the peasants who were aggrieved by the rent (busulu
and envujo laws) payable to the mailo land owners. While kabaka Chwa I was
sympathetic, the lukiiko rejected the demands. Nonetheless, by this time, the
colonial government to become concerned about;
• colonial government between landlord and tenants in Buganda;

• the bataka grievances which if unaddressed threatened to become
even more problematic to administration of the protectorate;
• the overall system of land tenure in Uganda in Uganda was nit
delivering efficiently in economic terms.
Colonial government set up a commission of inquiry in 1925 and this

resulted in the passage of the Busulu and Envujjo laws 1928 to regulate the
rent that was to be paid by the peasant’s land in Buganda. The law was
promulgated basically because there was no limitation on amount of rent
tribute that the landlord could extract from tenants and the amount was
arbitrary determined by the landlord. As a result, the landlord could extract
as much as possible from tenants, peasants felt oppressed by the system and
the colonial government concluded that this state of affairs was
unproductive. The Busulu- Envujjo law;
a) Placed a limit on n the amount of Busulu and Envujjo that a landlord

could extract from tenants,
156
b) B) guaranteed to Buganda peasant’s complete and hereditary security

of tenure, i.e, they could not simply be failing to pay rent.
c) The Busulu and envujo laws represented a revolution in the relations

in Buganda. In social terms, the law created new relations between the
landlords and tenant’s peasants in reducing the arbitrariness and
insecurity in those relations. It also reduced the material basis and
power of landlords. Economically, the tenants gained security of use
of land and this ensured that cash crop production continued in
effect, the system of capital production benefited from these new
legal relations (guaranteed of raw materials). For the bataka who had
raised the complaint there was no gain/ benefit. The case of the
kabaka was more complex. On the one hand, he was seen as a
sympathetic listener to the plight of his people, on the other hand
however, was not actually able to deliver any reform or solution to
their problems/ grievances. Its prestige and position were generally
undermined that he was to lament thus.
“My present position is so precautions that I’m no longer the direct ruler of
my people. Oil beginning to be considered by my own subjects merely as one
of the British governments paid servants. This is sorely due to the fact that
I’m posses no real power per my people. Even the smallest chieftainship is
under the control of the provincial commissioner. Evan order given whether
by local chiefs or the lukiiko serfs is always looked upon with contempt unless
and until it is confirmed by the provincial commissioner...”
The Busulu and Envujjo law was able for a time being social and political
confusion in the kingdom. However, it failed to address the grievances of the
bataka who would eventually organize the most significant anti-colonial
movement. The failure to address their grievances was to lead to increased
antagonism and protests.
157
CHAPTER FIVE
Un Masking of Colonial Rule, 1945-1960

The kabaka crisis of 1953-1955 and its impact on national politics in the
protectorate. Sir Andrew coven arrived as governor in January 1952. As a
governor he sought:
• Education and training of Africans administrators

• to increment the African participation in central government
and
• placing of local government on a stable, democratic and
viable foundation.
• Significantly, one of Cohen’s first concerns was in regard to
Buganda. In march 1953, sir coven issued a point
memorandum with the kabaka on constitutional
development and reform providing for;
• sixty of eighty-nine lukiiko members were to be elected;
• the kabaka to consult a lukiiko committee before selection of
his ministers;
• increase of responsibility of the Buganda agrgovernment
local services such as those involving primarily and junior
secondary schools, rural hospitals, dispensaries, field services
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for soil conservation livestock breeding and disease control

were to be transferred to the Buganda government.
The devolution of services, rather than being contrary to the promotions of

protectorate unity, was regarded as essential to it. In fact, the reforms of
March 1953 were an attempt to forestall as deferral system rather than an
initial step towards it. In fact, the 1953 memorandum stated expressly that:
‘The Uganda protectorate has been and will continue to be developed as a

unitary state’98
Later in 1953, sir Andrew coven introduced changes in composition of the

leg co to increase the total number of representatives was increased from
sixteen to 28 with the 14 of them Africans.
Notably, the 1953 reforms would underline the dependence of colonial

government on the loyal co-operation of the kabaka. With the ascendancy of
Muteesa II as kabaka, was bound toucan’s friction. Educated at Cambridge
and already offended that he was not treated with honor at the coronation of
Queen Elizabeth II in 1952, the reliance on Muteesa to promote colonial
government policy was unlikely to be a happy circumstance. None the less,
he was teen to support the March 1953 reforms. But where the coven policy
threatened the tribal loyalties, this would have rendered tribal institutions,
including the kabakaship to decline in importance. The factor and concern
would spark of the crisis in Buganda that came to be known as the kabaka
crisis (1953-1955)
The kabaka crisis of 1953 was sparked off by a speech made on the 30 th June
1953 by the secretary of state for the colonies in which he referred to
possibility ‘as time goes on of still larger measures of unification and possible
98
Memorandum on constitutional development and reform in Buganda, Entebbe.
159
still larger measure of federation of the whole east African territories99. This
pronouncement caused adverse public reaction without Buganda. In a
seriously worded letter, kabaka muteesaII argued that the affairs of Buganda
be 6trasnferred from the colonial office to the foreign office and a time table
be prepared for the independence of bugmnada.
The kabaka and his ministers could no longer feel happy about Buganda’s
position under the agreement; apart from the danger of federation, they
considered the policy of developmening a unified system of government
along parliamentary lines must inevitably result bin Buganda becoming less
and less important in the future. The Kabaka’s demands were far more than
a challenge to any proposed federation, as it means a complete break with
governor sir Andrew Cohen’s vision of a unitary Uganda state. The kabaka
had re affirmed in his letter Buganda’s separatist tendencies and assertion of a
claim to a special status that had apparently been under. After 3- 4 years, our
dependants were changed into provinces to rank as equal as Buganda
province. As regards administration, was of equal rank but otherwise the
Buganda kingdom is independent100.
27th October 1953, the lukiiko passed a resolution requesting that the kabaka
refuse to name any Buganda to the legislative council. This not only
endangered the success of the newly reformed legislative council but also
render a unitary Uganda extremely likely. After a series of unsuccessful
negotiations, Sir Cohen placed before the kabaka certain undertaking to
which he was required to agree.
• That the kabaka would positively co-operate in the future

progress of Buganda as an integral part of the Uganda
protectorate (march 1953 memorandum)
99
Withdraw of recognition from kabaka Muteesa II of Buganda, cmnd 9028 London, 1953,
p.7
100
Mukabwa & ors. Vs. Mukubira & ors. Civil case no. 50 of 1954-1956 URL 74
160
• that the kabaka submit the names of Buganda members to the

legislative council; and
• That the kabaka co-operate loyally with her majesty’s
government in the organization and administration of
Buganda in accordance with the 1900 agreement.
When kabaka Muteesa II refused to heed to those undertakings, governor

Cohen withdrew recognition from him under article 6 of the Buganda
agreement, declared a state of emergency and swiftly deported him in the Uk
(under emergency deportation and exclusion). Following the deportation,
with the lukiiko refusing to select a successor kabaka, the affairs of the
kingdom were placed under regents. In a subsequent court case of Mukabwa
vs. Mukubira [1954], the exercise of those emergency powers was challenged.
In the end, the case was a disguised challenge of the validity of the withdrawal
of recognition and deportation of the kabaka. In the case, three of the
Kabaka’s nominees to the lukiiko members to take their place in the lukiiko
as they had not been nominated by the kabaka. The case was essentially
dismissed on the ground of non-justifiability. It was a nonetheless, a defense
that according to low Pratt, gave the impression that the government did not
in fact respect the agreement or feel itself bound by its terms.
Reaction to the deportation of Muteesa II was nearly unanimous with the

agenda angered by the deportation. Even the UNC which was hostile to
traditional rules joined the agitating for the Kabaka’s return. Sir Andrew
Cohen set up a committee (Hancock committee) to consider;
Constitutional reorganization in Buganda
Continued participation of Buganda in the protectorate and representation

of Buganda in the leg co. At the end of the namirembe negotiations, it was
agreed that;
There was a need to replace tribal autocracy with structure of modern

representative government.
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• The ministers were to be responsible to lukiiko not to the

kabaka.
• The appointments and dismissal of chiefs to be surrendered to
Buganda government.
However, it would not be until May 1955 that Muteesa II was allowed to
return, with a new Buganda agreement of 1955 in place. By the time the
kabaka was deported and deposed, his popularity had suffered mainly as a
result of the 1940s uprisings in which chiefs and ministers had been targets.
The Kabaka’s stand was thus not only a challenge or British policy, but an
effort to consolidate loyalties of this own people. Paradoxically, buy taking a
stand against the colonial government Muteesa II was perceived within and
outside Uganda as nationalist. The heroism was further enhanced by virtue
of the fact that in settling the kabaka crisis and drawing up of a new
agreement, the Buganda agreement of 1955, in which the colonial
government made a major concession to the kabaka on the issue which had
been the cause of his deportation. Thus, in the preamble of the agreement, it
was provided;
“Her majesty’s government has no intention whatsoever of raising the issue

of east African federation either at the present time while the local public
opinion on this issue remains as it is at the present day of signing and
recognizes accordingly that the intrusion of Buganda protectorate in any such
confederation is outside the realm of practice [politics st the present time or
while public opinion remains as it is”
Her majesty’s government also undertook to consuls with the government of

Buganda on the issue of federation. in this way, the 1955 agreement put to
rest the question of federation, thus upholding the Kabaka’s original
objection. The main feature of the 1955 agreement was;
c) It was the constitution for Buganda. The Buganda government was

transformed in structure, if not in spirit, into a constitution
monarchy. The framework was thus established within which the
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objective of a united, if not unitary Uganda government along

parliamentary lines was to be pursued.
d) B) it provided for the participation of Buganda in the legislative

council, with Buganda’s representatives elected on a formal of
indirect elections with the lukiiko acting as an electoral college. The
composition was not to be altered for 6 years101
T H E 1955 N AM IR EM B E A GR E EM EN T
Between 1953 and 1955 there was major unrest and discontent in Uganda,
part of the British-administered Uganda Protectorate, following a speech in
which the British Secretary of State for the Colonies made a "passing
reference" to the possibility of East African federation. The incident
prompted widespread calls for Baganda independence as the only protection
against British overreach. In order to force a resolution to the deepening
101
See especially article 7 and the 2nd schedule (which provides for regulations on elections
anciliary to of the agreement Katikiiro of Buganda vs. AG of Uganda [1959] EA 182.
163
political crisis, the Governor of Uganda, Sir Andrew Cohen, invoked

the Uganda Agreement (1900) and demanded that the Kabaka (Mutesa II)
fall into line British government policy which favored the continuation of a
single, unitary, Ugandan state. The Kabaka refused. As a result, the British
Government withdrew its recognition of Mutesa II as Uganda's native ruler
under Article 6 of the 1900 Uganda agreement and forcibly deported Mutesa
to Britain. News about Mutasa’s deportation severely shocked the Baganda,
leading to a constitutional crisis. Cohen's preference was for a new Kabaka to
be installed immediately, but this proved impossible, necessitating a fuller
negotiated outcome.
The Buganda Agreement, 1955 was made on 18 October 1955

between Andrew Cohen, the governor of the Uganda Protectorate,
and Mutesa II, Kabaka of Buganda
under Article 2 of the Buganda Agreement of 1955, and the term “the
Government of Kabaka” means the Government established for Buganda by
this Constitution. After the adoption of the new agreement, Mutesa duly
returned to Buganda and the main agreement was duly signed on 18 October.
The signatures of the Kabaka, the Governor and other witnesses appear at the
end of the treaty. Strictly speaking, Mutasa’s return to Uganda was not within
the mandate of the conference. However, the Kampala Supreme Court`s
finding that the British government relied on Article 6 was “wrong” – shortly
after news of the Namirembe agreement, but before the agreed
recommendations could be published – pressured Cohen to back down. In
November, he reversed the British government`s position and accepted the
return of Mutesa, subject to the adoption and implementation of
Namirembe`s recommendations. In order for the new rules to be well
established before the decision, Grand Lukiko`s decision to return as an
Indian from Kabaka Mutesa II or to elect a new Kabaka would have to be
made nine months after the new rules came into force. However, Her
Majesty`s Government will be happy to shorten the time limit if, before its
end, it is satisfied that the constitutional rules are well established and
164
functioning satisfactorily. Her Majesty`s Government will do everything in

its power to bring it into force on 31 March next year.
IT was the bitter pill for Muteesa to swallow the solemn commitment. “I
promise to be faithful to Her Majesty Queen Elizabeth II, who enjoys the
protection of Buganda, to govern her heirs and successors and Buganda well
and honestly in accordance with the law, and to abide by the terms of the
agreements with Her Majesty and the Buganda Constitution,” he said, in
accordance with the Bible at the affirmation ceremony. The 1955 agreement
of 18 October 1955, one day after Muteesa`s return from exile, and. A body
shall be established to be called Buganda Appointments Board. On 1 March,
it was announced that Sir Keith Hancock, Director of the Institute of
Commonwealth Studies at the University of London, at the invitation of the
Right Honourable Oliver Lyttelton, now Lord Chandos, and Governor of
Uganda, has agreed to visit the Protectorate to consult with representatives of
Baganda and the Protectorate Government on various constitutional issues
relating to Buganda. For three months, from June 24 to June 17. In
September, Sir Keith Hancock chaired the talks, first with the Constitutional
Commission appointed by Buganda Lukiko, then with the Committee and
the Governor. Subject to the provisions of this section, the Lukiko shall be
formed in accordance with section 5 of the Buganda Agreement of 1955 in
the manner provided for in the Grand Lukiko (Election of Representatives)
Act of 1953. SIGNED on this eighteenth day of October 1955. For and on
behalf of Her Majesty Queen Elizabeth, II A.B. COHEN Governor The
conference was held in Namirembe, near Kampala, and resulted in a
comprehensive agreement.
The conference recommended, inter alia, that the Kingdom of Buganda

under the Kabaka government continue to be an integral part of the
protectorate; whereas the management of public affairs in Buganda should be
in the hands of ministers; and that the kabakas, while all the traditional
qualities of the kabaka should be fully protected, in the future should be
constitutional leaders committed by a solemn commitment to respect the
165
terms of the constitutional agreements and not to endanger the security and
well-being of the people of Buganda and the Protectorate. If there are
differences of opinion between the Protectorate Government and the Kabaka
Government, and such disagreement cannot be resolved by a discussion
between the representative of the two Governments, and the Governor is
satisfied that the matter undermines the interests of peace, order or good
government of the Protectorate of Uganda, the Governor may formally
advise ministers on this matter. The constitutional powers of the Kabaka are
exercised, as far as possible, through the promulgation of written documents
signed by the Kabaka and countersigned by a Minister. To sign the final
adoption, the laws adopted by the Grand Lukiko are signed by the Kabaka.
After further negotiations in London, Namirembe`s recommendations (with
minor amendments) were adopted in July 1955 in the form of a new Buganda
Agreement, which would “supplement and, if necessary, amend the 1900
Agreement” rather than replace it. The main delay was caused by a conflict
between Mutasa’s desire to sign the final agreement in Buganda and the
British view that his agreement was a precondition for his return.
The solution found was “a transitional agreement that will run until the
main agreement in Buganda is signed by the Kabaka upon its return. This
transitional agreement will respect the same conditions as the main
agreement, with the exception of the transitional provisions, and will be
signed by the personal representatives of the Kabaka after approval by the
Lukiko. Six weeks after the appointment of Buganda ministers and Buganda
representatives to the Legislative Council under the new arrangements, the
British government] would allow the Kabaka to return to Buganda, where it
will sign the main agreement. The Transitional Agreement was translated
into Luganda and adopted on August 15, 1955.
“Buganda Agreements” means the Buganda Accords from 1894 to l955 and
any other agreements hereinafter concluded on behalf of His Majesty with
the Kabaka, the Chiefs and People of Buganda or the Government of Kabaka,
but do not contain the laws or rules of procedure of Buganda made in
accordance with this Constitution; The Buganda Agreement of 1955 was
166
concluded between Andrew Cohen, Governor of the Protectorate of

Uganda, and Mutesa II, Kabaka of Buganda. The tasks entrusted to the
Government of Kabaka are formally defined in a document that will enter
into force at the same time as the Agreement Amending or Supplementing
the Uganda Agreement of 1900, which will be negotiated after the adoption
of the recommendations of this Conference by His Majesty`s Government
and the Great Lukiko. Initially, these functions were those currently
performed by the Kabaka government, as well as those listed in paragraph 2
of the Memorandum on the Development and Reform of the Constitution
in Buganda, issued in March 1953. Local government in the Sazas is the
responsibility of the Buganda government with the advice and support of the
protectorate government; the situation in municipalities and shopping
centres shall be examined in accordance with Article 47. In community
development, the Government of Buganda and its officials work in
collaboration with the Protectorate`s Community Development
Department. The list of functions may be amended at a later date by
agreement between the Government of the Protectorate and the Government
of Buganda. (3) If a function under this Constitution may be exercised by the
Kabaka, that function shall be exercised by him, unless apparently intended
otherwise, by means of a written document signed by him in the presence of
a minister, who shall sign him as a witness. On that day, the Kingdom of
Nkore was incorporated into the British protectorate of Uganda by the
signing of the school agreement. Each minister is politically responsible for
the management of affairs in his own main department, and the ministers are
jointly responsible as a ministry within the framework of the tasks assigned to
the Kabaka government. 5. For the purposes of this Article, the term
“African” means the meaning conferred on it by the interpretative
regulations and general clause of the protectorate of Uganda, as amended, or
by a regulation replacing these regulations.
167
T H E P AR A D OX : U G A N DA V ER SU S B U GAN DA
The paradox was that although Muteesa II was projected as a nationalist for
standing up to the colonial government; in fact, he was only protecting
Buganda’s sub-nationalist federalist interests. From 1955 onwar5ds, the
kabaka and his government embarked on a course to ensure protection of the
interests of Buganda. The separatist’s tendencies of Uganda became
heightened notwithstanding the formal constitutional arrangement the 1955
agreement. In 1958 and 1961 legislative council election – boycott and
demand for indirect method of election.
Demand for independent Buganda as a state and the federal status and
indirect elections to national assembly at the Lancaster conference, 1961. The
birth of political parties in Uganda and colonial reforms from 1952 to 1958.
It was at the height of the human face reforms that Uganda’s first recognized
genuinely nationalistic parties; the Uganda national congress (UNC) was set
up on the 2nd March Gby Ignatiuts Musaazi.
Ignatius Kangave Musaazi was its first President of UPC, and Abubaker
Kakyama Mayanja the party's first Secretary General. Apollo K. Kironde was
the legal advisor to the party. The six men who founded the party were:
Ignatius Kangave Musaazi (Buganda), Abubakar Kakyama Mayanja
(Buganda), Stefano Abwangoto (Bugisu), Ben Okwerede (Teso), Yekosofati
Engur (Lango) and S.B. Katembo (Toro)102. A freedom charter and manifesto
were published. The UNC claimed its main priorities the realization of
national unity, peace \, freedom and equality. Its driving forces were the
desire to transfer power and authority from the colonialists to indigenous
black Africans. The second political party to be established was the
democratic party (DP) set up in 1956. The DP was also established as a
Kavuma-Kaggwa, J. M., “The UNC was the pioneer of Uganda's independence”, Daily
102
Monitor Newspaper (Uganda), 12 Oct 2021
168
national party with the main aim and objective of addressing what was
perceived to be historical discrimination suffered by people’s catholic faith
under colonial rule and mengo administration. This had led to a feeling of
marginalization among the catholic elite. The DP and UNC did nonetheless
share a common vision that Buganda’s sub-nationalism was incompatible
with the notion of a united independent Uganda. This particularly put the
DP at logger-heads with the interests of Buganda. The manner in which the
2 parties approached this issue was to shape the history of the immediate
independence era.
The catch word of colonial reforms of the period 1952-1961 had become
Africanisation, i.e. the transfer of power into African hands which process
was to cover political and socio-economic spheres. Thus, the colonial
government embarked on the process of recruitment and training and
promotion of Africans to higher positions in the civil service. A sum of BPS
200,000 from the east African development fund was allocated for
scholarship to Ugandans to take up studies overseas. By the 1953 plans were
in place for establishment of a unified civil service and principles of equal pay.
Further BPS 10 million, came from the EADF for purposes f education with
1/5 of this sum allotted to technical education and further BPS 1 million set
aside for community development with a similar amount for expansion of
medical services, while bps 2 million was directed at agriculture. In the
political arena, the colonial government expanded the representation of
Africans in the legislative council. By 1954, the composition of the legislative
council was as follows;
• Governor
• 27 representatives
• 9 Officials
• 11 Cross- benchers
• 9 Ex-officio
169
The new category of cross benchers was made up the government nominees
allowed to freely debate and express views on any matter but when it came to
voting had to vote with the government, ensuring that on all matters in the
house, government was always able to maintain a majority (2 members) in
other words, despite the expanded representation, the colonial powers in the
state remained intact.
The second major reform ninth political arena was the introduction of
ministerial position for the Africans for the first time with 3 Ugandans
becoming ministers, mungonya, D. nabeta and A kironde. Thus, for the first
time in the colonial period, Ugandans would participate in government,
administration and policy. The governor felt out the functions that the new
representative’s members from districts and kingdoms would perform as:
They were to represent the African rural and act as the voice of the Africans
in articulating their views/ grievances.
They were to act as a check in the government and scrutinize [polices of the
state they were to provide leadership for the African community in the
protectorate- they were tour the constituencies and spread understanding of
the changes under way in the protectorate and prepare the people for
transition to a new nationalistic system of governance.
It can be said that at this point in time, the colonial government had finally
come around to accepting that change was inevitable and the colonial system
would not last forever. In spite of all these changes, so many problems
remained, amongst of which was;
a) Full participating of Africans remained largely minimal. The

ministerial allotment was nominal (and confined to very insignificant
portfolios).
b) Draconian laws remained (e.g., deportation ordinances) and practices

such as detention without trial, bandings, restrictions on freedom of
170
expression and deportation continued well to the eye of

independence (of Muteesa II 1953). Re binaisa 1959.
c) Discriminatory deferential treatments in hospitals, residence and

schools continue right up to and even after independence.
d) Encouragement of functionalism and ethnification of political

activities by the colonial government, by fostering religious and
ethnic concerns.
e) African recruitment into the civil service was extremely slow with
high positions still dominated by European and Asians throughout
the years up to independence.
f) Encouragement by the colonial government of in fact turned a blind

eye to; the separatists tendencies growing in Buganda (in after math
of the kabaka crisis of 1953- 1955) leading to an even more functional
politics up to independence.
Therefore, the legacy of this period was a pragmatic one. On the one hand, it
set the stage for African representation while on the other; it undermined and
neglected the gains to be made by truly nationalistic struggle. The questions
thus posed of the prime colonial actor of this period- sir Andrew cohen
(i) Was the agreed reformer of ultimately a disaster for Uganda?
(ii) What was the impact of his tenure in constitutional and political
history of Uganda?
Following the birth of the UNC, other political parties were formed. In
1956, DP (Democratic Party) “ known for Catholics was formed by Bendicto
Kiwanuka”.In March 1960, UPC - Uganda People's Congress party “known
for protestant “was formed by Milton Obote. After the 1958 general election
in Uganda, seven unaffiliated members of the Uganda Legislative
Council (which was in effect Parliament in those colonial days), formed the
171
Uganda People's Union. In 1960 there was a split in the UNC party: there
was a Musaazi faction and an Apollo Milton Obote-led faction. The Uganda
People's Union together with the Obote-led faction of the UNC, got together
and formed a new party, the Uganda People's Congress (UPC) in March
1960. The DP and UPC parties became major political parties in Uganda.
The UNC became less of a force, mainly because DP became popular and a
new party emerged: Kabaka Yekka party (KY)103
T H E K A B AK A Y E KK A (‘T H E K IN G A L ON E ’) M OV E MEN T ,
1961–196
In May 1961 a small group of men formed the Kabaka Yekka movement in
the Kingdom of Buganda. Their simple objective was to unite the Baganda
behind the throne, the symbol and guarantee of Buganda's separate identity.
The great fear was that the election of a national Democratic Party
government in the previous March had marked a decisive stage in the
destruction of Buganda's special position within Uganda. Kabaka Yekka's
appeal to Ganda loyalty was instantly successful, but it was not until the
Kabaka's ministers agreed to accept membership of independent Uganda,
and to support Kabaka Yekka in Buganda, that Kabaka Yekka could win
popular support and deal effectively with the Democratic Party. But when
Kabaka Yekka became an ‘official’ movement, its whole nature and function
was changed. There had been differences at the beginning, but now the
simple objective barely disguised the contradictions within the movement,
while Kabaka Yekka became a means to personal promotion as well as the
guardian of the ‘national’ interest. Above all, Kabaka Yekka now included the
chiefs, who wanted to preserve the existing political and social arrangements
within Buganda. The DP won a majority of the seats in the National
Assembly in Uganda's first free national elections in 1961, and formed a
government. The UPC and traditionalist Baganda both disliked the Catholic
103
Kavuma-Kaggwa, J.M. (9 Oct 2019). "Road to Uganda's Independence: A view from a
witness". PML Daily.
172
orientation of the DP, but were diametrically opposed to each other's

ideals.104 Despite this, the UPC sounded out a political alliance with the
Baganda leaders and the Kabaka (King) of Buganda, Mutesa II. After several
negotiations, the UPC and Baganda leaders held a conference whereupon an
agreement was reached. Soon afterwards the Baganda created the Kabaka
Yekka and entered an alliance with the UPC.105 Historian Ian Hancock
attributes the formation of the KY to Sepiriya Kisawuzi Masembe-Kabali,
with support from John Bakka, Latimer Mpagi and Antoni Tamale.
So, by February 1962 Kabaka Yekka had become the party for the Baganda
and for the status quo within Buganda. It was a party which, because it was
identified with the Kabakaship, was able to destroy the Democratic Party in
elections for the Buganda Lukiko, and a party which, although in alliance
with Dr Obote's Uganda People's Congress in national politics, had aroused
sentiments and interests pointing ultimately, if not irrevocably, to Ganda
separation.106
In 1962 Kabaka Yekka allied with Uganda People's Congress and the reason
is Bendicto Kiwanuka a leader of Democratic party (DP) , muganda had an
alliance with Kabaka Yekka and by that time KY was silent and wasn’t
registered ,Kabaka Muteesa told all the Baganda to boycott the elections of
1958 but Bendicto Kiwanuka refused and was declared anti Buganda hence
Kabaka allying with UPC under Obote . In the Lukiko elections of 22
February 1962, it won 65 of the 68 seats, with a vote share of more than
90%.107The Lukiko duly elected 21 KY members to the National Assembly. [
The UPC won a majority in the April 1962 general elections for the National
Assembly, so Obote was tasked with forming a government. He became
Prime Minister of a UPC-KY coalition government, with the KY holding
104
Karugire 1980, pp. 179–181.
105
Karugire 1980, pp. 182, 186.
106
The Journal of African History , Volume 11 , Issue 3 , July 1970 , pp. 419 - 434
107
Hancock 1970b, pp. 431–432.
173
mostly insignificant portfolios.108 Obote subsequently undermined the

alliance with the KY by establishing UPC offices in Baganda in contravention
of the inter-party agreement, and by encouraging KY members of the
assembly to defect to his party through offers of patronage.
In 1964 a conservative in the UPC, Grace Ibingira initiated a struggle to gain

control of the party with the ultimate goal of deposing Obote. Meanwhile,
Mutesa increasingly feared that the UPC would deny his kingdom its
traditional autonomy and concluded that in order to retain power he would
have to garner influence in national politics. He proceeded to instruct
Baganda MPs to join the UPC with the goal of bolstering Ibingira's position
and unseating Obote, thus allowing for a reorientation of the UPC-KY
alliance that would be more favourable to Buganda. On 24 August Obote,
with the UPC having consolidated a majority in Parliament, declared that the
coalition with KY was dissolved.109
In 1980 Mayanja Nkangi founded the Conservative Party, which is

considered to be a de facto successor of Kabaka Yekka. Abu Mayanja, "a
leading spokesman for the KY-dominated government of Buganda, described
how "we in Kabaka Yekka hold than only a government based on the
institution of Kabakaship can be stable in Buganda... [we believe] that the
first duty of government is to maintain and uphold the institution of
monarchy as the foundation of order, security, unity and patriotism in
Buganda"110.
In conclusion therefore the Kabaka Yekka party per its alliance with UPC
made it to be on board and with the elections of 1962 presidential sit.
108
"Brief Political History of Uganda". ottawa.mofa.go.ug. Retrieved 1 June 2021.
109
Provizer, Norman W. (1977). "The National Electoral Process and State Building:
Proposals for New Methods of Election in Uganda". Comparative Politics. 9 (3): 305–
3126. doi:10.2307/421321. JSTOR 421321
110
Earle 2017, p. 174
174
According to the 1962 constitution only traditional monarchs where the only
allowed to contest for presidentship of Uganda thus Muteesa II under KY
and Nadiope the King of Busoga. Mutesa won Nadiope and became the
President.
The alliance with UPC made Milton Obote to be appointed as a prime

minister of Uganda which in turn caused tension and suspicion from
numerous facts for example the Lost counties"1964 referendum”, difference
in ideology when Milton Obote wanted Unitarisim government while
Muteesa the President wanted Federalism government, illegal mining of gold
from Congo Zaire etc. Hence sparked off the 1966 crisis with the first stone
when Iddi Amin went to bomb Bulange Mengo with the orders of Milton
Obote. kabaka Muteesa I escaped in clothes of Priest in the bathroom hence
going to exile where he died from thus caused the 1966 crisis.
The 1966 Kabaka crisis was the last stone to the grave of Kabaka Yekka party,
till to date Kabaka Yekka party refused to resurrect and even can’t be allowed
to resurrect because they will bring up ideologies of federalism which the
central government can’t allow. But however, the Kabaka of Buganda on his
66th Birthday Ceremony advised the Baganda to go for numerous posts in
order to protect its affiliations which is just a say.
M OV E MEN T TO W A R D S IN D E P EN DEN CE R EP R ES EN TA T ION AN D

C O M M IS SI ON S .
With the reforms introduced by sir Andrew Cohen and the emergence of
political parties, the period from 1955 to 1962 was basically characterized by
2 features;
a) Massive polarization of political parties and organizations. Political

parties were formed almost every day often collapsed as soon as they
appeared. There was a great interest in their formation, but only to
remain strong and steadfast.
175
• Dp led by bendicto kiwanuka,

• Upc (a merger of upc of john magezi and an Obote splinter
faction of UNC).
b) Increasing entrenchment of the interests of Buganda which were

interested in the preservation of the status quo- and embarked on a
policy of no compromise with the colonial government. Interests of
Buganda had been given attention to the 1955 agreement.
By the time of expiration of Sir Cohen’s governorship in 1957, there were a

number of outstanding problems. The expansion of infrastructure had
paradoxically resulted in an increase in expansion of staff. But 1957 is
sufficient for another event for African constitution, with Ghana becoming
the first African colony to achieve independence and this spread a worldwide
momentum for the decolonization of the continent.
Against this background, Sir Fredrick Graford as the new governor was faces
with demands for constitutional reform.
• Election to the leg co should be direct

• District demanded equal treatment with Buganda in
disrespect, the new governor organized for elections at the
end of 1957 with the franchise based on eligible votes to be;
• 21 years
• Able to read and write in their own language and
• Owners of freehold or of mailo land- if not land owners, have
occupied the land for at least 4 years before registration of
regularly paying taxes of at least 4 years and earning income
of at least PS 100 a year or own property (movable or
immovable) of at least PS 400.
1958 leg.co would for the first time in the Uganda’s constitutional history be
made of African representatives who were directly elected, even few
references were for property and land persons. The only parts of the
protectorate in which elections were:
176
Karamoja,
Ankole (representative’s chsen by district council)
Bugisu (representatives nominated by the governor).
Buganda refused to send any representatives to the legco (direct 1955 BA).
The 8th legco was made up of five members from upc, 1 from dp and 7
independent)
Constitutional development of the perid following the 1958 elections was

characterized by reports of 2 commissions.
1959 report of the Uganda constitutional committee by JB wild as its

chairman referred to as the wild report.
1961 report on Uganda relationships by earl of minister (referred to as the

minister report)
Together, the commissions and their reports were fundamental for Uganda’s
constitutional development at this point in time.
a) The report of the wild committee, 1959- The term of reference for
the wild committee were:
a) To advise the protectorate government and recommend on the form

of direct elections on a common roll for representative members in
the leg co in other words, because previos elections had been
segregated along racial line, the fear was that this would continue amd
further that euro and Asians would be given weighted votes. The
other concern was that conferring rights to vote on euro and Asians
would lead to their demand for citizen rights which the nationalists
were opposed to.
b) To advise on the total number of seats to be filled by the electorate
177
c) To determine the mode of allocation between the different areas of

the protectorate.
d) To consider and advise on the question of representation by the non-

Africans.
e) To advise on the size and composition of the government. The

committee was boycotted by Buganda who refused to avail its views.
The recommendations made by the world committee were:
• The next elections to be held in Uganda in all parts of the

protectorate and should take place not later than 1961.
• There should be a common electoral role which did not confer

rights of citizenship (to euro and Asians).
• The numbers of elected members should be increased and the

representation should be as follows;
a) Urban areas (4)
b) Northern Uganda (15)
c) Western Uganda (17)
d) Eastern Uganda (20) and
e) Buganda (20) making a total of 76 members.
The world committee also made certain recommendations outside its

mandate, amongst which were;
i) Part from the elected members of the leg co there should also be
specially elected members chosen by the leg co as an electoral
college (to elect members representing different interests)
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ii) The party with a clear electoral majority in the elections should
form the government (and the losing party would be the official
opposition)
iii) The ex.co should become a council of ministers with collective

response to the national assembly and that members of the
council of ministers should be selected from the elected members
with the exception of 3 positions
• Chief secretary
• AG and
• Minster for finance who were to be nominated by the
governor. The governor should have the veto powers if
necessary.
Further, in light of the many views, that had been expressed on the form of
government that Uganda should adopt, and on the question of the relation
between the various people of the protectorate, the committee recommended
that before the 1961 elections, a conference should be called to examine the
issues and make comprehensive recommendations (on these matters).
H A R D EN IN G OF B U G AN D A AS T O I T S ST A T U S AN D IN TER E ST S
FR OM 1958 ON W A R D S .
While the world committee was making its consultations, Buganda kept on
hardening as its perceived status in the protectorate. With the 1958 boycott,
the hardliner elements comprising the kabaka, chiefs and landlords began to
map ways of ensuring that Buganda’s autonomy was secured. The boycott of
elections had its self been signed to put pressure on the colonial government
to give into the demands of the kingdom. A movement began to grow in
Buganda with its primary goal to secure the protection of Buganda’s interests
against the designs of the nationalists. The culmination of the movement’s
179
function was the submission I November 1960 of a memorandum to her

majesty, the queen of England stating as follows;
c) British protection over Buganda by the 1900greemnet should be

terminated and
d) As a consequence of the termination of the status, plans should be

immediately made for an independent Buganda. Amongst other
things the plan would include;
viii) Establishment of friendly relations between Buganda and HMG

and the exchange of ambassadors and high commissioners.
ix) Buganda would remain in the common wealth and seek

membership of the UN;
x) All powers previously exercised by the governor to be vested in

the kabaka and his government;
xi) Buganda would have its own armed forces with the kabaka as
commander in chief.
xii) All institutions of learning in Buganda with the exception of

Makerere College would fall under Buganda jurisdiction.
xiii) Makerere College would fall under the jurisdiction of Buganda.
xiv) Arrangements for the independence of Buganda should be

complete by December 1960. On 1st January 1961 the lukiiko
declared the independence of Buganda. Although the declaration
was never a reality, the message was very clear.
This was sharply brought home with the preparations for the 1961b
elections. Although the colonial government went ahead with the elections,
the Kabaka’s government directed its follower not to register for the elections.
Indeed, by the time registration was closed, only a handful of mainly dp
supporters had actually registered. In effect, Buganda had organized another
180
boycott which was successful. In political terms, the boycott marked the
death of dp in Buganda because dp had defied the boycott. Ben kiwanuka was
portrayed as anti- Buganda luganda and as a man who did not respect the
kabaka. It was not helped that Ben kiwanuka was also of catholic faith.
On the other hand, UPC gained from the boycott because they had not
decided not to fill in candidates in Buganda. The Buganda government
therefore felt that there was a possibility of good relations with upc’s Apollo
Milton Obote, and marked the onset of the upc – Buganda alliance later
cemented during the Lancaster conference.
R EP OR T OF TH E M IN I ST E R CO MM I SS ION , 1961
Set up in the 1960 by the secretary of state for colonies, the report of Uganda
relationship commission was given by the earl of minister. Its basic terms of
reference were to consider the official form of government most appropriate
for Uganda and the relations between the central government and other
authorities in Uganda particularly kingdoms. The commission was supposed
to be guided by the following;
i) HM government’s decision to grant Uganda independence

through appropriate stages.
ii) Development of stable institutions of government for Uganda.
iii) Incorporation of specific circumstances and needs of people of

Uganda as they become independent.
iv) Consideration of the desire of people of Uganda to preserve

existing institutions and customs as well as to uphold the status
and dignity of their kings and rules.
The commission as supposed to bear in mind the special relations between

HM government and the kingdoms with whom agreement had made in the
181
early 1900sw. the commission had to make sure that all these aspects were
accommodated. Thus the 1961 minister commissioner report and together
with the 1959 wild committee report would provide the framework for the 2
constitutional conferences, of which the first was held in September 1961 at
Lancaster and the second inn June 1962 at Marlborough.
The minister commissioned made several recommendations:
i) As regards trends for succession, it was unacceptable to allow

Buganda to separate from the rest of the protectorate. The
protectorate that had been in existence since 1894 must continue
till Buganda has reconciled itself with the rest of Uganda.
ii) The relations of Buganda and Uganda should be a federal one
iii) Buganda should be given a guarantee that any laws made to the
central government which would affect the kabakaship and
Buganda’s other exclusive interests would be of no effect unless
agreed to by the lukiiko. Such a guarantee would be by law
enforceable by courts and Buganda should have the deciding
voice in determining the form of guarantee.
iv) The kabaka should withdraw from politics and become a genuine
constitutional monarch to perform just ceremonial non-
executive functions.
v) The lukiiko of Buganda should be dejectedly elected. It would be

as, Electoral College for the 20 seats of Buganda’s representatives
to the national assembly (indirect elections) this would be very
controversial during the constitutional conferences.
vi) Voting in the future would be by universal adult suffrage.
With regard to the character of government, the commission stated that

Uganda should be a single democratic state with a strong central government.
Within this state, Buganda should stand in federal relations while the other 3
182
kingdoms would be in semi-federal relations. With respect to the head of

state, until Uganda attained independence it would be the government
representing H,M the queen, therefore it was appropriate to appoint a
governor-general to allow time for debate on the head of state. Further, the
head of state would exercise prerogative owners of the crown-summoned and
dissolve parliament, made treaties etc.
The legislature was to become the national assembly. Any amendments to the
constitution up independence were to be passed by 2/3 majority of the
national assembly. The courts of law would have the power to declare the
constitutional legislation invalid.
In conclusion, the wild and minister report laid out the broad parameters for
the debate on the constitution for the independent Uganda. In fact, in certain
respects, the 2 reports foreclosed debate, while in others they opened up issues
to incorporate new dimensions. Indeed, it can be said particularly of the
minister report that it provides a draft constitutional report for Uganda. At
the opening of the Lancaster conference in September 1961, the secretary of
state for colonies expressed the view that as far as relations with Buganda were
concerned, the minister proposals were so far the best of not the only way of
securing the co-operation of the people of Buganda in the creation of an
independent Uganda.
183
CHAPTER SIX
The First Kabaka Crisis in Uganda 1953

To 1955
Due to the unfair terms of the 1900 Buganda agreement Kabaka Mutesa
wasn’t satisfied and referred the “1900 agreement as the game of politics for a
white man’s control”. thus, this made him to be with a liberal idea of
federalism and Andrew Cohen’s idea was of Unitarisim which created
tension and suspicion making the 1953 -55 Kabaka Crisis. The first stone to
the Kabaka crisis, was set into motion when Mutesa was taken to exile which
annoyed the Baganda “nkabiilla Mutesa” hence making it inevitable and the
kabaka crisis was buried when the Namirembe agreement was formed in 1955
at Namirembe hill “a hill of peace”, “Mirembe” when Kabaka was returned
from exile.
The Kabaka crisis was a political and constitutional crisis in the Uganda
Protectorate between 1953 and 1955 wherein the Kabaka Mutesa II pressed
for Bugandan secession from the Uganda Protectorate and was subsequently
deposed and exiled by the British governor Andrew Cohen. Widespread
discontent with this action forced the British government to backtrack,
resulting in the restoration of Mutesa as specified in the Buganda Agreement
of 1955, which ultimately shaped the nature of Ugandan independence.
184
In 1893 the Imperial British East Africa Company (IBEAC) transferred its
administration rights over its territories in modern-day Uganda to the British
Government. At that time, the IBEAC's territory consisted mainly of the
Kingdom of Buganda, which had been acquired in 1892. In 1894 the Uganda
Protectorate was established, and, with Bugandan assistance the territory was
rapidly extended beyond the borders of Buganda to an area that roughly
corresponds to that of present-day Uganda. The Buganda Agreement of 1900
formalised Buganda's place as a constitutional monarchy (headed by the
Kabaka) within the broader British-led Protectorate. Following the creation
of the Crown Colony of Kenya and Trust Territory of Tanganyika the British
grew increasingly interested in the idea of the provision of 'common services'
to the three territories.[2] This resulted, among other things, in the creation
of the East Africa High Commission and Central Legislative Assembly in
1948, with competence in certain areas (such as integration of the various
railway networks). From 1952 further constitutional reforms were proposed
by the new Governor of Uganda, Sir Andrew Cohen. Cohen proposed
devolving greater functions from the Protectorate to Buganda, but
conditional on Buganda formally accepting its status as a "component part"
of the wider Protectorate. Kabaka Mutesa II agreed to this offer, and a joint
memorandum was duly published in March 1953.
On 30 June 1953, Oliver Lyttelton, the Secretary of State for the Colonies,
gave a speech in London in which he made a "passing reference" to the
possibility "...of still larger measures of unification and possibly still larger
measures of federation of the whole East Africa territories". Lyttelton's
remarks were reported by the East African Standard on 2 and 3 July,
prompting the Ministers of the Bugandan Government (headed by Paulo
Kavuma) to write to Cohen on 6 July to stress their opposition to such a plan.
The Baganda people, who always valued their autonomy and independence,
were alarmed by the idea of a broader federation on the model of the Central
African Federation. They felt that such a move would result in the integration
185
of different cultures which would ultimately destroy and engulf their own
culture and way of life.
Cohen responded by assuring the Baganda that there was no reason for
concern, and that no decision pertaining to the formation of an East African
federation would be made without first consulting them. There was a residual
feeling in Buganda, however, that Lyttelton had let the cat out of the bag. The
incident served to crystallise animosity and apparent slights dating back to the
1900 Agreement, and prompted widespread calls among the Baganda for
Bugandan independence as the only protection against British overreach. A
reply from the Secretary of State attempting to reassure Mutesa and his
Ministers that "the inclusion of the Uganda Protectorate in any such
federation is outside the realm of practical politics at the present time" served
only to fan the flames. The Bakamas of Bunyoro and Toro, and the Omugabe
of Ankole, also wrote to Cohen to express their own fears.
In order to resolve the spiralling crisis, Cohen took a direct approach,

choosing to meet Mutesa in person, but a series of six private meetings at
Government House did not result in a resolution on the issue of Bugandan
independence and the political unrest continued. Frustrated, Cohen told
Mutesa that continuing to agitate against the British vision of a single
Ugandan state constituted a breach of the 1900 Agreement, as well as a
repudiation of the joint declaration of March 1953, and that he had five
weeks to reconsider.
Despite the apparent ultimatum, Mutesa, supported by the Bugandan

Lukiiko (Parliament) and other neighbouring Kingdoms, continued to push
for Buganda secession. This intransigence prompted Cohen to hand him a
letter at a final meeting on 30 November 1953 confirming that, under the
provisions of Article 6 of the 1900 Agreement, the British Government was
withdrawing its recognition of him as the legitimate ruler of Buganda.
Cohen was fearful that this action would incite violent protest by the
Baganda and declared a state of emergency. Mutesa was arrested and rapidly
186
exiled to London, much to the shock of the Baganda. He would be permitted

to live freely, anywhere in the world, but not to return to Uganda. While his
supporters lobbied strongly on his behalf, Mutesa himself behaved "as if on
vacation", staying primarily at the Savoy Hotel.
Cohen's preference was for a new Kabaka to be installed immediately, but

this proved impossible. Exiling the Kabaka, far from resolving the situation,
fuelled it. Resistance in Buganda itself was nevertheless mostly peaceful,
including public displays of "weeping, mourning and collapsing in grief...
Ganda, and especially Ganda women, declared loyalty to the king and
denounced Britain's betrayal of its alliance with Buganda", This emotional
response, rooted in the centrality of the Kabaka to Bugandan life rather than
the personal popularity of Mutesa, took Cohen by surprise and the British
struggled to find a way to counter-act it.
Following a well-received Bugandan delegation to London, new negotiations

took place in June to September 1954 at Namirembe between Cohen and a
constitutional committee selected by the Lukiiko, with Keith Hancock, then
Director of the Institute of Commonwealth Studies in London, acting as the
mediator. Although an attempt to get the Kabaka's deportation declared ultra
vires was unsuccessful, the High Court in Kampala suggested that the use of
Article 6 was improper. The British subsequently accepted the return of
Mutesa, in exchange for a commitment that he and future Kabakas would
make a "solemn engagement" to be bound the 1900 Agreement. A number of
constitutional changes within the Government of Buganda and to the
national Legislative Council were agreed at the same time, progressing
Cohen's reformist goals. Following further negotiations, held in London, the
Namirembe conference recommendations were adopted as the Buganda
Agreement of 1955 and Mutesa returned triumphant to Buganda.
187
CHAPTER SEVEN
Constitutional Development in the Uganda

Protectorate from 1961-62
F IR S T CON S TI TU TI ON AL C ON F ER EN CE A T L AN C AS T ER
The first constitutional conference was held in September (8 th October

1961). There were delegates from HM Government, the governor of Uganda
in the own capacity, the Uganda Government led by Ben Kiwanuka (as chief
minister), the opposition UPC, members of the districts and urban
authorities. The stakes at the conference were extremely high. Each of those
attending was desirous of ensuring that its interest was fully accommodated
especially as the primary objective of the conference was the promulgation of
a constitution providing for internal self government. [In working out the
provisions of the constitution, the objective was to secure that a suitable
framework for Buganda’s interests was in place].
The conference emerged with many recommendations with the most

difficult issue being the relations between the different entities of the
protectorate and especially the question of Buganda. In fact, in two instances
at Lancaster, the discussions broke down due to these relations in particular
are regards;
188
(a) The issue of the ‘lost counties ‘and
(b) Issue of elections as to whether they should be ‘direct’. The background;

to the latter was clear. In1961, the Buganda government had boycotted the
leg. Co. elections for among other things the decision that the elections be
‘direct’ [through the mechanism of indirect elections Buganda would be able
to secure representation by candidates who would completely be loyal and
dedicated to the interests]. The Uganda government led by DP leader, Ben
Kiwanuka, strongly opposed the suggestion by the minister Commission
arguing that indirect elections were against the franchise of the people of
Buganda. In a very lengthy discussion, Ben Kiwanuka noted that not only
was the provision a recipe for instability and unpopular government, but that
it was only intended to appease the kabaka and Buganda delegation.
In regard to the lost counties issue the matter concentrated the 7 counties
then in north-west Buganda which had been transferred to Buganda as a
reward for her assistance in vanquishing Bunyoro]. The matter had always
been of concern to Bunyoro because the majority of the populace in the
counties was Bunyoro. As for Bunyoro was concerned, it wanted a return of
the 7 counties. The matter was not resolved and the Bunyoro delegation
walked out. Finally, the delegates were informed that a commission of the
Privy Council would be appointed to advise on how the issue could be
resolved. In Jan. 1962, a commission was appointed with Lord Molson as its
chairman to investigate and make recommendations on the matter.
Apart from these contentious issues, the conference was able to decide most
of the issues involving the constitutional make up the executive legislature
and judiciary and the operation of these organs. The conference ended on 8th
October 1961 with an agreement that independence would be granted
exactly a year later on 9th October 1962. Aside the constitutional matters that
were resolved, the conference also produced several interesting developments.
The most important was the alliance [marriage of convenience] between
UPC and Buganda. The merger came mainly because UPC had supported
189
the kingdom on the issue if ‘indirect ‘elections leading it to believe that it had
UPC on its side stemming from this development was the realization by
Buganda that the only way to secure its interest would be the creation of a
political movement devoted to promotion of such interest. The movement
was born and came to be known as kabaka yekka [king alone]. This KY
movement would be mobilized for the next elections in 1962 with Buganda
this time fully participating, and did in effect register success for UPC with
37 to DP’s 24 and KY’s 21. UPC and KY would form a coalition government
which guaranteed UPC a firm majority in the National Assembly.
Second constitution conference opened on 2nd June 1962 under the secretary
of state [Maudling] with the governor of Uganda, delegation from UK,
representatives of kingdoms, districts, urban authorities and the opposition
DP. The work of the conference was mainly done by three committees: -
(d) The constitutional committee;
(e) Citizenship committee, and
(f) Fiscal committee [deal with matters of taxation and finance.
By this time, the minister committee had submitted its report and a new
constitution had been prepared on 1st march 1962. Nonetheless, the matters
that had not been settled a lancaster were still outstanding that is:
(c) Status of the three other kingdoms; Ankole, Bunyoro, and Toro.
Only the question of Buganda had been addressed. These too wanted
a federal status. They were also accompanied by the delegation from
Busoga [led by kyabazinga] who argued that they too had traditional
institutions and so should similarly get federal status.
(d) The ‘lost counties’ issue. The minister commission had visited from
jan- may1962 to make recommendations on the counties [the seven
were buyaga, bugangayizi, buruli, bulemezi, bugerere, buwekula, and
ssingo]. the commission recommended that two of these counties [
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buyaga and bugangayizi] be transferred to Bunyoro before

independence with the five remaining with Buganda
At the Marlborough house, outstanding matters including the framework of

an independent Uganda were generally settled. The problematic issued would
remain however that of the ‘lost counties. The Bunyoro delegation argued
that there was no reason why only two of these counties should be returned.
On the other hand, the Buganda delegation argued that the peoples of these
counties were settled, happy with Buganda and there was no need therefore
to upset the states affairs. This caused statement and because of this, the
governor was compelled to take a stand on the issue as;
(d) There would be no immediate transfer of authority;
(e) Administration of the two counties (in question) would be

transferred to the central government.
(f) After not less than 3years from the date of transfer, the NA would
decide on the date for holding the referendum for the two counties
in which the electorate would be asked to make a choice amongst;
The referendum would in effort be the deciding factor on the fate of these
counties. The Prime Minister Obote accepted responsibility for
administering the referendum. On the last day of the conference, the
delegation of Bunyoro declared that the decision made was unacceptable and
withdrew. The report was therefore drafted in their absence. Although
Buganda did not withdraw, it also declared that the decision was
unacceptable. In effect, the lost counties issues remained outstanding. The
conference ended on 29th June 1962 with the various parties of delegations)
agreeing that the decisions that had been made provided a firm foundation
for progress towards independence. The legal instruments that gave effect to
the Marlborough decisions were;
191
3) Independence act if august 1962 which stipulated that Uganda

would become independent on 9th October 1962.
4) Uganda independence order in council of 2nd October 1962 which

had the independence constitution appendix as a schedule.
Thus, on 9th October, the union jack was lowered for the last time and the
new flag for the independence of Uganda was raised. The1962 constitution
had been subject of debate, with some politicians arguing that it emphasized
divisions, parochialism at the expense of national unity. Scholars like Prof.
kanyeihamba consider the 1962 constitution as having hampered the power
of government by placing many obstacles in its path. Others have argued that
the constitution did not go far enough in decentralizing power and authority
and that its problem was too much power in central government.
I N DEP EN D EN T U G AN DA - G R AP P LIN G W I TH TH E
C ON ST I TU T I ON (1962-1965)
The structures And Arrangements under the 1962 constitution
The promulgation of the 1962 constitution was a landmark event in

Uganda’s constitutional history. For the first time, the framework of
government was o be undertaken within specific rules that attempted to
observe the basic principles of constitutionalism (including separation of
power, independence of the judiciary, human rights etc). Never the less the
constitutional framework together with the political situation obtaining in
Uganda at the onset of independence meant that a number of problems
remained. The major of these were;
a) The question of the head to state- not addressed by the

constitution.
b) The question of the federal- unitary relations between Buganda

and Uganda.
192
c) The question of the relations between Buganda and Bunyoro

over the ‘lost counties.
d) Overall problems of governance-its rode and relations between

the government and the governed of Lyagoba).
e) Opportunistic tendencies on the part of personalities at the helm

of government and political power.
Invaluably, there were other minor problems but these were the most
outstanding.
1) The independence constitution had maintained the queen as the

head of state and so necessitated the determination of a proper head
of state for an independent Uganda. These rose different opinions
between the parties, kingdoms and the masses. (With the matter
eventually bowing down to two major concerns while the KY and the
kingdom of Buganda posed the question as to whether the
commoner could rule over royalty.UPC asked whether the Buganda
could be trusted).
2) The board membership of UPC opposed the idea that the party
should not provide the head of state. However, the several decisions
and (debate), it was resolved to give the office of the state to one of
the traditional rulers (and specifically to kabaka Muteesa II). when
the debate was thus later conducted in the national assembly, the
majority vote was in the favor of the traditional ruler as being the only
person eligible to be a constitutional head of state. Thus, by the
constitution of Uganda (first Amendment) act No.61 of 1963, it was
stipulated that the president and the vice president of Uganda would
be elected for period of 5years by the national assembly and further
that only traditional rulers would be eligible for the offices.
Therefore, on 4th October 1963, Sir Edward Fredrick Muteesa II (the
kabaka of Buganda) and sir. William Nadiope (the kyabazinga of
193
busoga) became the first president and vice president of Buganda

respectively.111
Rather than solving the lacuna in the constitutional framework, the question
only to new dimensions and bred new problems. Although the office was
largely formed and non-executive (constitutional monarch in west minister-
styled government), tensions would begin to surface in the relations between
the head of state and prime minister who had the precedence as between the
HOS and PM? Who could appear on TV to address the nation? whether
Muteesa II should be allowed in the police band. But perhaps more
significant (as opposed to these rather petty concerns) was question of
allegiance of Muteesa II to both office of HOS and KOB (test would come
during referendum on the lost counties) the situation was made worse
because the Muteesa and Obote would not stand each other (marriage of
convenience turned sour) the tension between these 2 personalities was
nonetheless underlined by the broader opposition of Buganda in relations to
the rest of Uganda.
The question of Buganda’s position in relation to Uganda is without doubt

traceable to the period leading up to independence – the minister report 1961
particular as regards to matters of jurisdiction and finance and revenue.
Cf. Kabaka’s government and anor vs. AG of Uganda and anor PC app no.
s.6 of 1964, AG of Uganda vs. Kabaka’s government [1965] 291 coming up
in 1965 in the wake of the lost counties referendum a year earlier. The case
highlighted how fragile the constitutional framework of 1962 constitution
the federal relations of Buganda in a unitary Uganda law was if the lost
counties largely marked the end of the upc-ky alliance, this case damned the
1962 constitutional arrangements and spelt its doom. The case involved the
111
Cf. Jowett lyagoba vs. bakasonga & ors [1963] EA 57, busoga validation act no. 9 of 1963.
194

central government. The fact that the matter would up in cpourt and could
not not be amicably solved between the 2 parties demonstrates how hostile
their relationship had become.
The questions of the lost counties had been the control of the 2 nd
constitutional conference (Marlborough of 1962) but the under-living
tensions that underpinned the matter remained and severed throughout the
early years of independence. By 1961 drum magazine depicted that at least ¾
of the people of bugangangaizi were Bunyoro not withstanding 60 years of
Buganda rule. In buyaga, the situation was even much more striking with 15
Bunyoro for every muganda. Even sir tito whiny (omukama of bunyoro)
maintained that the case for the restoration of these 2 counties on his
kingdom could not be logically denied. The tense relations between the 2
kingdoms and the aspirations of the peoples of the counties would be
underpinned by the 2 developments in 1963 and 1964.
Joseph kasaraine vs. the lukiiko [1963] EA 472. The applicant mr. kazaraine
was convicted for inciting the people of buyaga and bugangaizi not to pay
taxes to Kabaka’s government and abstracting the chiefs from carrying out
their rightful duties of revenue collection. The issue was to whom the
jurisdiction over the 2 counties was vested as between the central government
and Buganda government. Reference may be made to the second
constitutional conference which had directed that the 2 counties should be
vested in the central government and so it would obviously follow that the
later was entitled to exercise the jurisdiction over the territory. The court
would let Buganda emerge jurisdiction more out it seems of a desire not to
upset the political set up given the volatile character of the matter, and in any
event a referendum was scheduled that would resolve the issue, kazaraine’s
case is important for a number of reasons.
195
iv) It underpinned the tensions in the relations between Buganda

and the 2 counties
v) It portrayed the confusion which the 1962 constitution had

brought about with respect to an issue that was not resolved and
independence
vi) It demonstrated the phobias which the fatal arrangements of the

1962 constitution.
Referendum of the lost counties, 1964. Between 1962, the Kabaka’s

government had labored to justify why the counties should remain in
Buganda.
vii) The endowment of Buganda than Bunyoro that the 2 counties

would benefit more under Buganda
viii) The benevolence and non-sectarianism which had characterized

the Kabaka’s rule.
ix) The undesirability of upsetting the admin. Arrangement that had

existed for such a long period
x) The development of the counties had been secured under

Buganda’s rule. Further, there were concerns that a change of
admin. Would adversely affect Buganda and owners. The central
government nonetheless went ahead with the referendum which
was held on 4th November 1964. The 2 counties overwhelmingly
voted to return Bunyoro. Kabaka Muteesa II as president was
supposed to sign the instruments confirming transfer but refused
to do so. Obote as the prime minister put the issue before the
national assembly amends through the constitution of Uganda,
the territorial transfer was confirmed. The Buganda government
appealed to both the high court and Privy Council and lost. The
196
referendum was the final nail in the upc- ky coffin marketing the
death of the coalition.
xi) There was widespread hostility between Buganda which would

gain magnitude. For Obote and UPC, the referendum was boost,
and show that they would no longer be held a ransom on
Buganda’s demand. Several KY mps were in fact persuaded to
cross to UPC undermining the strength KY. Similarly, several
members of the opposition DP also crossed over and the biggest
coup in this regard was Basil Bataringaya (who became minster
for internal affairs). UPC was thus stronger than ever to enable
the government to control national assembly.
xii) The problem of governance and autocratic tendencies would

become a feature of the early years of independence the partner
of leadership during the colonial period had emphasized the
omnipotence of the ruler and the insubordination of the ruled.
That legacy would manifest its self after attainment of
independence. The post independence rulers merely stepped into
the shoes of their predecessors leading to a new form of autocratic
rule. Apollo Obote exemplified this kind of new African
leadership that even from the earliest days of independence
autocratic tendencies had gradually begun to crip into
government both in terms of disrespect of the constitution of the
exercise of excessive powers. In the regard, where the
constitutional president obstacles, it was then simply bypassed
and this tendency was illustrated in a number of cases.
197
CHAPTER EIGHT
Second Kabaka Crisis of 1966
The attack of mengo “Bulange “in 1966
THE I MM E DI AT E C AU SE S AN D EV EN TS U N D ER L Y IN G IN 1966
U G AN D A C R I SI S
On 4th February 1966, the prime minister Apollo Obote was on a tour in
northern Uganda where Daudi Ocheng, and Ocholi KY MP members,
moved a motion in parliament demanding that there should an inquiry into
allegations that the then deputy commander of the army colonel IDDI
198
AMIN and 2 cabinet ministers Adoko Nekyon and Felix Onama and the pm
were involved in the illegal acquisition of gold in the then Congo Kinshasa
(later Zaire). It was alleged that the purpose of the smuggling of the gold was
to aid the Sudanese rebels (present day SPLA) FIGHTING A WAR of
repression against the government in the northern Sudan.
On 9th February 1966, (5 days later), brigadier Shaban Opolot, the then
commander of the army proposed the arrest of Idd Amin, but the plan was
not executed. On 15th February 1966 following the pm’s return to Kampala
he set up a commission of inquiry headed by a judge of east Africa and assisted
by a judge each from Kenya and Tanzania with William wambuzi as secretary
but its report would remain unpublished until Amin came to power in 1971.
On 22nd February 1966, one week after setting up of the commission, Mp
Obote announced the suspension of 1962 constitution on the grounds that
the country had lost stability and curtain people whom he did not name were
plotting to overthrow the legal government using foreigners. On the same
day, in the afternoon, during a cabinet meeting in Entebbe, 5 cabinet
ministers were arrested and detained. The army commander was dismissed
and replaced with Colonel Idd Amin. On 2nd march 1966, by way of a special
declaration, the officers of president and vice president were terminated with
the PM assuming all powers of government on the advice and consent of the
cabinet. The incumbent president, kabaka Muteesa II, protested strongly and
Obote for the first directly accused him of a plot to over throw the lawful
government of Uganda.
On 16th April 1966, the 1962 independence constitution was declared

abolished and, in its place, promulgated the 1966 interim constitution
(passed by a vote of 65 in favor to 5 against). This interim constitution is
known as the pigeon hole constitution since members were assembled in
parliament with troops surrounding the parliamentary buildings, and Obote
forced them to sign and agree to its promulgation. The members only found
copies of it later in their pigeon holes.
199
THE S A LI EN T F EA TU R ES O F TH E 1966 IN T E R IM
C ON ST I TU T I ON
a) Uganda was declared a republic
b) Buganda government was deprived of privileges accorded to her by

tge 1962 constitution
c) Parliament was vested with the more powers as was the prime
minister.
Otherwise, the provisions basically remained the same. At the end of April,
1966, a stormy session at Bulange (parliamentary seat of Buganda), the
lukiiko resolved not to obey the 1966 constitution and passed the resolution
demanding that the central government withdraw themselves from Buganda
soil by 30th may 1966. It is also alleged that the preparations were made for
the secession of Buganda on 23rd may 1966 several chiefs suspected of
influencing the decision of the lukiiko were arrested and disturbances were
prevalent throughout the kingdom. On the same day (23rd may) the minister
of internal affairs promulgated the emergency regulations with inter alia;
i) Prohibited the holding of meetings and consultations.
ii) Prevented the publication of alarming reports.
iii) Imposed several directions measures for the purpose of extraction

of information from the suspect
iv) Granted the police powers of such, arrest and detention with
condition of deportation and exclusion.
THE I MP A C T O F TH E 1966 U G AN D A ( KA B A KA ) CR IS I S
The most prominent impact is with regard to the introduction of elements of

militarism into the realm of politics and government in independent Uganda.
The introduction for the time gave the military forces an inordinate degree of
200
direct influence in Uganda’s constitutional history. This would also lead a

culture of resolving conflicts through military force rather than by peaceful
means. This would characterize the politics in Uganda till the present day
(e.g., Amin, UNLF, NRA. e.t.c). In other words, our political leaders are
much more comfortable resorting to force than to political means to
resolving conflicts. The legacy in the Latin maxim ‘inter armes leges silent’ (in
the face of arms, the law is silent) (does not speak) is the more apparent in our
history. In effect the military is incompatible with the law (cf Exparte Matovu
1966).
201
CHAPTER NINE
Understanding the history and the facts

about the Buganda agreement of 1900,
whether it was a valid agreement.
In history, the term protectorate may be defined as an autonomous territory
that is protected diplomatically or militarily against third parties by a stronger
state or entity. In exchange for this, the protectorate usually accepts specified
obligations, which may vary greatly depending on the real nature of their
relationship. However, it retains formal sovereignty and remains a State
under international law. A territory subject to this type of arrangement is
known as a protected state.112
On the 1st of April 1893, Sir Gerald Portal raised the Union Jack formally to
establish a British protectorate over Buganda and declared it a British
Protectorate on Monday 18th June 1894.113 Two years later the immediate
neighboring territories; the Kingdoms of Ankole, Bunyoro and Toro, and the
Chieftaincies of Busoga, were incorporated in the Uganda Protectorate.114
112
kanyeihamba
113
Morris and Read, The British Common wealth, series NO. 13, 1966
114
Sir John Milner Gray Early Treaties in Uganda (1888 – 91). Uganda journal, 12 (1948)
202
The declaration of Uganda as a British protectorate followed the many varied

pressures coming from explorers like Morton Stanley who had been
impressed by the Kabaka’s court in 1875 to mention but a few. However, it
was not until 1914 that Uganda as we know it today, with its ethnic groups,
finally took shape as a colonial protectorate.115
Before the British and Germans contended for control over the territory,
Uganda had three different indigenous political systems, namely; the Hima
caste system, the Bunyoro Royal Clan system and the Buganda Kingship
system. Buganda, the largest of the medieval kingdoms in present-
day Uganda, became an important and powerful state during the 19th
century. Established in the late 14th century along the shore of Lake Victoria,
it evolved around its founding kabaka (king) Kintu, who came to the region
from northeast Africa. Kintu, who arrived as the leader of multiple clans,
conquered the area, defeating the last indigenous ruler, Bemba Musota, to
establish his new state. Kintu, however, ordered the new clans to intermarry
with the indigenous people creating the Buganda ethnic group.
Thirty-six kabakas or kings followed Kintu, who mysteriously disappeared

after laying Buganda’s foundation. While in the early centuries the kings
ruled at the mercy of the clan heads, by 1700 they gained more centralized
authority over the kingdom.
During the 16th century, Buganda began 300 years of territorial expansion,
annexing or conquering a number of chiefdoms and expanding from three
provinces to twelve by 1890. Buganda’s expansion came as a result of its
military superiority over its neighbors. Nonetheless the expansion cost the
lives of many of Buganda’s kabakas who died in battle with neighbors.
Although it faced no significant military threat from its weaker neighbors,

Buganda suffered numerous civil wars because it never developed a system of
orderly succession to the throne. Clans often battled for the privilege of
115
Thomas Pakenham. The Scramble for Africa Abacus 1991 chap. 23.
203
placing their leaders on the throne. Often kabakas had multiple wives from
differing clans to help maintain their power. Upon the death of the kabaka,
sons, backed by their clans, made claims on the throne, plunging the nation
into frequent civil wars which ravaged the kingdom. By the 19th century,
most Buganda kabaka’s gained the throne after murdering their brothers who
were potential rivals.
Buganda became part of the British sphere of influence in 1894 when

that European power backed a successful claimant to the throne,
Mwanga. By 1900 the Uganda Agreement with representatives of Mwanga’s
infant son, who was now Kabaka, made it formally a British
protectorate. The 10,000-man Buganda army was disbanded and British
courts and colonial officials were placed over indigenous courts and the
Buganda bureaucracy.
Today three million Buganda comprise the largest ethnic group in Uganda,
representing approximately 17% of the population. Ronald Muwenda
Mutebi II is the present king although he has no formal authority in the
Ugandan government116
The term ‘Uganda’ was derived from Buganda. Uganda in Swahili means
‘Land of the Baganda’. Like most African Countries, Uganda is a creature
of European imperialism.117 The first Europeans to set foot in the Country
were accompanied by Swahili speaking Arabs, Nubians and Zanzibaris from
the East Coast of Africa.118 Both the early European adventurers and their
aids were unfamiliar with the local languages used and therefore had
problems with the nomenclature of some personalities and places they visited.
For example, they misspelt and mispronounced certain Bantu words like
Buganda hence earlier referring to it as Uganda and when it together with its
116
https://www.blackpast.org/global-african-history/buganda-c-late-14th-century-present
117
HISTORY OF East Africa (Oxford, 1963)
118
204
surrounding areas were brought under the British Colonial rule, the whole
country was named Uganda.
Before examining the core aspect of this piece of writing, it is desirable to

make an abridgement of certain stages in the constitutional history of
Uganda. As was rightly observed by the Privy Council in the case
of The Katikiro of Buganda v The Attorney-General.119
In the mid 1880s, the Kingdom of Uganda was divided between four
religious’ factions; Adherents of Uganda's Native Religion, Catholics,
Protestants and Muslims; each vying for political control.
In 1888, Mwanga II was ousted in a coup led by the Muslim faction, who
installed Kalema as leader. The following year, a Protestant and Catholic
coalition formed to remove Kalema and return Mwanga II to power. This
coalition secured an alliance with the Imperial British East Africa Company,
and succeeded in ousting Kalema and reinstating Mwanga in 1890. The
IBEACO sent Frederick Lugard to Uganda in 1890 as its chief representative
and to help maintain the peace between the competing factions. In 1891,
Mwanga concluded a treaty with Lugard whereby Mwanga would place his
land and tributary states under the protection of the IBEACO.120
“The little I have got from here tells a lot about the book. I take this opportunity
to congratulate and thank Appollo Makubuya for coming up with this well
researched book,” said Kadaga.
Kadaga, in agreement with the book, informed the audience filled mainly by
Buganda kingdom officials led by Katikiro, Peter Mayiga that she ever
witnessed someone killed in the Naguru estates for breaching the British
imposed curfew.
119
(1965) E.A 305
120
1.h speke, Journal of the Discovery of the source of Nile (1863)
205
Many things happened during the colonial rule and some or many were not
documented. My first time to see a dead body was at Naguru estates. We were
told that he was killed for going against the curfew,” added Kadaga.
Makubuya told his rich spectator who included former principal judge,
justice James Ogoola, former Attorney General, Prof. Khidu Makubuya,
Makerere University Law professor, Oloka Onyango that the declassified
material unearthed a lot about the hidden colonial history.
“Based on newly de-classified records, this book reconstructs a history of the

machinations underpinning British imperial interests in (B)uganda and the
personalities who embodied colonial rule. It addresses Anglo-Ugandan
relations, demonstrations how Uganda’s politics reflects its colonial past, and
the forces shaping is future.”
Adding; it is a far-reaching examination of British rule in (B)uganda,

questioning whether it was designed for protection, for protection for
patronage or for plunder.
I N DIR EC T C ON SE QU E N C E S O F TH E 1900 B U GAN DA

AGR EE M EN T ON B U G AN D A AN D U N T O U G AN D A
One would not be much in error to say that the 1900 Buganda agreement and
its impact on Uganda today is one of the controversial questions that has been
given little attention despite its continuous indirect effect on the Pearl of
Africa. Its deep-rooted buttress roots continue to haunt Uganda as a whole
and Buganda as a kingdom thus one drawing a conclusion that the persistent
ongoing silent muscled conflict between Buganda and the central
government has been due to the remarkable significance of the 1900 Buganda
Agreement.
As a political tool used then by the British to control Buganda, the agreement
was a detailed instrument nonetheless referred to as Bugandas Magna Carta,
a Constitution of Buganda. It was to regulate the relationship between the
206
colonial masters and the leaders of the region. It had diverse effects and
changed the situation that had existed quite a fiber of years before
colonization.
While it is certainly the oldest agreement in the Pearl of Africa, its significance
cannot be undermined. Though buried in history, its head still holds and
roars out of the history embedded ground. At such a time of the signing, no
one would forecast its impact on the region after independence. The
agreement that was signed by the kingdom of Buganda and the British
Colonial government was later to form a significant idea on the
administration of Uganda as a whole. Its significance holds more water from
the period after independence reflecting deep to current events in Modern
Uganda.
Accordingly, this topic seeks to analyze the consequences of the agreement to

Uganda. It presents a systematic, well examined and detailed analysis of how
it has indirectly featured in the art of Uganda’s administration by the various
leaders of the territory mainly focusing on the central government and the
Kingdom of Buganda. I thus hope to demonstrate that the agreement was not
a temporary compromise designed to short live but rather hold the heart of
administration for the territory. I shall start this topic by explaining the
agreement, highlighting its key terms that were to become a normal practice
then. One task which will further these ends will be a discussion of its impact
on Uganda today mainly focusing on Buganda Kingdom and the central
government.
T H E 1900 B U G AN D A A GR EE MEN T
The agreement was signed in March 1900 between the kingdom of Buganda
and the Protectorate government. It formed the basis of British relations with
Buganda; the kabaka was recognized as the ruler of Buganda as long as he
remained faithful to her majesty. It as well recognized the Lukiiko (council of
chiefs).
207
The chiefs of Buganda signed it on behalf of the kabaka a minor by then

Daudi Chwa II on one side and Harry Johnston on the other side signed it on
behalf of the Queen of England. This agreement was mediated by the Bishop
of Uganda by then Alfred Tucker.121 This agreement formalized the
relationship between the British government and Buganda. It consisted of a
number of provisions pertaining different aspects.
Historians have referred to it as “Bugandas Bill of Rights” and others the

“Margna Carta of Buganda” or “Buganda Constitution.” 122 It was a great and
land mark achievement in the relationship between the protectorate
government and Buganda. One can vehemently argue that with all the
agreements signed then, the agreement has been more effective than others.
It has had a lasting effect on Buganda and Uganda in its entirety something
that one could not foresee.
The agreement was indeed a comprehensive legal document that virtually

covered three aspects that is taxation, administration and land. These
provisions shall be expounded later in my further discussion.
On the matters of taxation, the Baganda were to pay a hut and gun tax which
was to be contributed to the protectorate government. However noteworthy
is that it was agreed that no other taxes would be imposed in Buganda without
consent of their government or except as provided by the agreement.
On matters of land, it was divided among the King or Kabaka, the family and
his chiefs. Over 9000 square miles estimated to make half of the land in
Buganda was to be shared among them while the rest to the British
Protectorate government or the Queen of England.
On the avenues of administration, the agreement created a court system

“Buganda court system”. Under this system, the Kabaka acting through the
See Hertslet, Commercial Treaties 23: 167

122
John Tamukedde Mugambwa. The legal Aspects of the 1900 Buganda Agreement
Revised. Available on https://www.tandfonline.com
208
Lukiiko (council) was the highest court. As history has it, the kabaka being
the traditional ruler was supreme and had unlimited jurisdiction over all
Baganda. Thus, the Kabaka under the court system was the highest Court.
Worth noting is that appeals were mandated but only under rare
circumstances could they occur and these were only to be made to the
Protectorate courts provided procedure was complied with. But the Kabaka
courts had no jurisdiction on matters involving a white. In such a situation,
the appropriate court was the British court.
On matters of legislation, all laws made by the protectorate government were

to apply to Buganda and could be void only if were inconsistent with the
terms of the agreement in which event the latter would prevail.123 It was
indeed a detailed document, very elaborative on policy and administration.
As Pratt asserts, despite the number of treaties that were concluded with
other regions such as the 1900 Tooro agreement and the 1901 Ankole
agreement that the British made with the rulers of these two kingdoms, they
did not achieve the prominence of the Buganda Agreement.124 It had a
political influence that its effectiveness can be witnessed to influence the
Constitutionality of modern Uganda with its consequences discussed herein
under.
R E IN S T ITU T ION O F T R A D I TI ON A L R U L ER S
Originally a vassal state of Bunyoro, Buganda grew rapidly in power in the

eighteenth and nineteenth century becoming the dominant kingdom in the
region. Buganda started to expand in the 1840s, and used fleets of war canoes
to establish "a kind of imperial supremacy" over Lake Victoria and the
surrounding regions. Subjugating weaker peoples for cheap labour, Buganda
123
Articles 5, 6, 8 and 10
124
Low and Pratt, Buganda and British Overule 1900-1955. Two Studies. (Oxford, 1960)
p.56.
209
grew into a powerful "embryonic empire". The first direct contact with
Europeans was established in 1862, when British explorers John Hanning
Speke and Captain Sir Richard Francis Burton entered Buganda and
according to their reports, the kingdom was highly organized.
Muteesa I of Buganda, who had been visited by explorers, like John Hanning
Speke, James Augustus Grant and Henry Morton Stanley, invited
the Church Missionary Society to Buganda. One of the missionaries from the
Church Missionary Society was Alexander Murdoch Mackay. Muteesa I
never converted to any religion, despite numerous attempts. In 1884,
Muteesa died and his son Mwanga II took over. Most of what is known about
Muteesa comes from primary sources from various Kiganda researchers and
some foreign explorers, notably John Henning Speke, and the Church
Missionary Society. Mwanga was overthrown numerous times, but was
reinstated. Mwanga signed a treaty with Captain Lord Lugard in 1892, giving
Buganda the status of protectorate under the authority of the British East
Africa Company. The British saw this territory as a prized possession.
Muteesa I was Kabaka from October 1856 until his death in 1884.
The twentieth-century influence of the Baganda in Uganda has reflected the

impact of eighteenth- and nineteenth-century developments. A series
of Kabaka amassed military and political power by killing rivals to the throne,
abolishing hereditary positions of authority, and exacting higher taxes from
their subjects. Ganda armies also seized territory held by Bunyoro, the
neighboring kingdom to the west. Ganda cultural norms also prevented the
establishment of a royal clan by assigning the children of the Kabaka to the
clan of their mother. At the same time, this practice allowed the Kabaka to
marry into any clan in the society.
One of the most powerful appointed advisers of the Kabaka was

the Katikkiro, who was in charge of the kingdom's administrative and judicial
systems – effectively serving as both prime minister and chief justice. The
Katikkiro and other powerful ministers formed an inner circle of advisers
who could summon lower-level chiefs and other appointed advisers to confer
210
on policy matters. By the end of the nineteenth century, the Kabaka had
replaced many clan heads with appointed officials and claimed the title "head
of all the clans".
The sophisticated structure of governance of the Baganda so impressed

British officials, but political leaders in neighboring Bunyoro were not
receptive to British officials who arrived with Baganda escorts. Buganda
became the centrepiece of the new protectorate, and many Baganda were able
to take advantage of opportunities provided by schools and businesses in their
area. Baganda civil servants also helped administer other ethnic groups, and
Uganda's early history was written from the perspective of the Baganda and
the colonial officials who became accustomed to dealing with them At
independence in 1962, Buganda had achieved the highest standard of living
and the highest literacy rate in the country.
Armed war-party of Baganda
The prospect of elections in the run up to independence caused a sudden

proliferation of new political parties. This development alarmed the old-
guard leaders within the Uganda kingdoms, because they realized that the
Centre of power would be at the national level. The spark that ignited wider
opposition to Governor Sir Andrew Cohen's reforms was a 1953 speech in
London in which the secretary of state for colonies referred to the possibility
of a federation of the three East African territories (Kenya, Uganda and
Tanganyika), similar to that established in central Africa.
Many Ugandans were aware of the Central African Federation of Rhodesia

and Nyasaland (later Zimbabwe, Zambia, and Malawi) and its domination
by white settler interests. Ugandans deeply feared the prospect of an East
African federation dominated by the white settlers of Kenya, which was then
in the midst of the bitter Mau Mau Uprising. They had vigorously resisted a
similar suggestion by the 1930 Hilton Young Commission. Confidence in
Cohen vanished just as the governor was preparing to urge Buganda to
211
recognize that its special status would have to be sacrificed in the interests of
a new and larger nation-state.
The kings of Uganda around 1960; Mutesa II of Buganda is In the above

picture.Kabaka Mutesa II of Buganda, nicknamed "King Freddie", who had
been regarded by his subjects as uninterested in their welfare, now refused to
cooperate with Cohen's plan for an integrated Buganda. Instead, he
demanded that Buganda be separated from the rest of the protectorate and
transferred to Foreign Office jurisdiction. Cohen's response to this crisis was
to deport the kabaka to a comfortable exile in London. His forced departure
made the kabaka an instant martyr in the eyes of the Baganda, whose latent
separatism and anticolonial sentiments set off a storm of protest. Cohen's
action had backfired, and he could find no one among the Baganda prepared
or able to mobilize support for his schemes. After two frustrating years of
unrelenting Ganda hostility and obstruction, Cohen was forced to reinstate
Kabaka Freddie.
The negotiations leading to the kabaka's return had an outcome similar to the
negotiations of Commissioner Johnston in 1900; although appearing to
212
satisfy the British, they were a resounding victory for the Baganda. Cohen
secured the kabaka's agreement not to oppose independence within the larger
Uganda framework. Not only was the kabaka reinstated in return, but for the
first time since 1889, the monarch was given the power to appoint and
dismiss his chiefs (Buganda government officials) instead of acting as a mere
figurehead while they conducted the affairs of government.
The kabaka's new power was cloaked in the misleading claim that he would
be only a "constitutional monarch," while in fact he was a leading player in
deciding how Uganda would be governed. A new grouping of Baganda
calling themselves "the King's Friends" rallied to the kabaka's defense. They
were conservative, fiercely loyal to Buganda as a kingdom, and willing to
entertain the prospect of participation in an independent Uganda only if it
were headed by the kabaka. Baganda politicians who did not share this vision
or who were opposed to the "King's Friends" found themselves branded as the
"King's Enemies," which meant political and social ostracism.
The major exception to this rule were the Many Catholics had felt excluded
from the Protestant-dominated establishment in Buganda ever
since Frederick Lugard's Maxim machine gun had turned the tide in
1892. The kabaka had to be Protestant, and he was invested in a coronation
ceremony modeled on that of British monarchs (who are invested by
the Church of England's Archbishop of Canterbury) that took place at the
main Protestant church. Religion and politics were equally inseparable in the
other kingdoms throughout Uganda. The DP had Catholic as well as other
adherents and was probably the best organized of all the parties preparing for
elections. It had printing presses and the backing of the popular
newspaper, Menno, which was published at the St. Mary's Kisubi mission.
Elsewhere in Uganda, the emergence of the kabaka as a political force

provoked immediate hostility. Political parties and local interest groups were
riddled with divisions and rivalries, but they shared one concern: they were
determined not to be dominated by Buganda. In 1960 a political organizer
213
from Lango, Milton Obote, seized the initiative and formed a new party,
the Uganda People's Congress (UPC), as a coalition of all those outside the
Roman Catholic-dominated DP who opposed Buganda hegemony.
The steps Cohen had initiated to bring about the independence of a unified
Uganda state had led to a polarization between factions from Buganda and
those opposed to its domination. Buganda's population in 1959 was 2
million, out of Uganda's total of 6 million. Even discounting the many non-
Baganda resident in Buganda, there were at least 1 million people who owed
allegiance to the kabaka – too many to be overlooked or shunted aside, but
too few to dominate the country as a whole. At the London Conference of
1960, it was obvious that Buganda autonomy and a strong unitary
government were incompatible, but no compromise emerged, and the
decision on the form of government was postponed. The British announced
that elections would be held in March 1961 for "responsible government,"
the next-to-last stage of preparation before the formal granting of
independence. It was assumed that those winning the election would gain
valuable experience in office, preparing them for the probable responsibility
of governing after independence.
In Buganda the "King's Friends" urged a total boycott of the election because
their attempts to secure promises of future autonomy had been
rebuffed. Consequently, when the voters went to the polls throughout
Uganda to elect eighty-two National Assembly members, in Buganda only
the Roman Catholic supporters of the DP braved severe public pressure and
voted, capturing twenty of Buganda's twenty-one allotted seats. This artificial
situation gave the DP a majority of seats, although they had a minority of
416,000 votes nationwide versus 495,000 for the UPC. Benedicto Kiwanuka
became the new chief minister of Uganda.
Shocked by the results, the Baganda separatists, who formed a political party
called Kabaka Yekka, had second thoughts about the wisdom of their election
boycott. They quickly welcomed the recommendations of a British
commission that proposed a future federal form of government. According
214
to these recommendations, Buganda would enjoy a measure of internal

autonomy if it participated fully in the national government. For its part, the
UPC was equally anxious to eject its DP rivals from government before they
became entrenched. Obote reached an understanding with Kabaka Freddie
and the KY, accepting Buganda's special federal relationship and even a
provision by which the kabaka could appoint Buganda's representatives to
the National Assembly, in return for a strategic alliance to defeat the DP.The
kabaka was also promised the largely ceremonial position of head of state of
Uganda, which was of great symbolic importance to the Baganda.
This marriage of convenience between the UPC and the KY made inevitable
the defeat of the DP interim administration. In the aftermath of the April
1962 final election leading up to independence, Uganda's national parliament
consisted of forty-three UPC delegates, twenty-four KY delegates, and
twenty-four DP delegates. The new UPC-KY coalition led Uganda into
independence in October 1962, with Obote as prime minister and the kabaka
as head of state.
Uganda achieved independence on 9 October 1962 with the Kabaka of

Buganda, Sir Edward Mutesa II, as its first president. However, the monarchy
of Buganda and much of its autonomy was revoked, along with that of the
other four Ugandan kingdoms.
At this time, the kingship controversy was the most important issue in
Ugandan politics. Although there were four kingdoms, the real question was
how much control over Buganda the central government should have. The
power of the king as a uniting symbol for the Baganda became apparent
following his deportation by the protectorate government in 1953. When
negotiations for independence threatened the autonomous status of
Buganda, leading notables organized a political party to protect the king. The
issue was successfully presented as a question of survival of the Baganda as a
separate nation because the position of the king had been central to Buganda's
precolonial culture. On that basis, defense of the kingship attracted
215
overwhelming support in local Buganda government elections, which were

held just before independence. To oppose the king in Buganda at that time
would have meant political suicide.
In 1967, the prime Minister Apollo Milton Obote changed the 1966
constitution and turned the state into a republic.125 On 24 May 1966 the
federal Ugandan army attacked the royal compound or Lubiri in Mmengo.
They shelled the palace with the king Mutesa II trapped inside. The king
fought his way out of the burning building and with the assistance of the
priests at a seminary in Lubaga escaped Uganda and found exile in London
where he died in mysterious circumstances (blamed on alcohol poisoning)
three years later.[citation needed] The Ugandan army turned the king's palace
into their barracks and the Buganda parliament building into their
headquarters. It was difficult to know how many Baganda continued to
support the kingship and how intensely they felt about it because no one
could express support openly.
On 25 January 1971, Obote was deposed in a coup by the head of the

army, Idi Amin. After a brief flirtation with restoration, Idi Amin also
refused to consider restoration of the kingdoms. By the 1980s, Obote had
once again returned to power, [citation needed] and more than half of all
Baganda had never lived under their king. The Conservative Party, a marginal
group led by the last man to serve as Buganda's prime minister under a king,
contested the 1980 elections but received little support.
In 1986, the National Resistance Movement (NRM), led by Yoweri

Museveni, would take power in Uganda. While fighting a guerrilla war
against Obote, the NRA government upon the completion of the five-year
guerrilla war fair staged by the former defense minister and presidential
candidate; Yoweri Kaguta Museveni following his allegations that the 1980
election had been rigged by Uganda People’s Congress. The war was ragged
in the northern district of Buganda (Luwero) and it was highly supported by
125
Constitutional history and politics of East Africa: Prof. G.W. Kanyeihamba
216
people in the area who had hope in Museveni of restoring their kingdom and
besides he was getting rid of Obote Bugandas lasting enemy from the time of
independence.126
As Prof Oloka Onyango notes, restoring the traditional rulers was a hard step
in the political sphere at a time. It required a determined leader with a highly
focused mentality as to its ramifications.127 Buganda had been at the center of
Uganda’s politics before and after independence thus had fixed a buttress
root in the heart of Uganda’s politics and sidelining it as a leader was a
formidable challenge. Therefore, the question of Buganda in Uganda had to
be treated with at most due care for one to successfully lead Uganda.
One had first to establish a gigantic friendly relationship with the Baganda
and secondly, they had to adopt mechanisms of controlling the kingdoms
influence in the politics of the central government.128 For this had formed the
basis for political scuffle in the post-independence period and therefore
failure to control Buganda could pose a challenge to Ugandas leader at a time.
One could arguably say that Museveni had appreciated the mechanisms of
British control over Buganda adopted in the 1900 Buganda agreement. These
included reducing on the power of the Kabaka to form a military force,
checking on the kingdoms financial base by limiting its revenue base among
others. These among other powers had been enjoyed by the traditional rulers
in the pre-colonial era before signing the agreement. But in order to control
Buganda and its supremacy, the British employed mechanisms that restrained
and checked on the powers of the traditional rulers.
The restoration of the Buganda Kingdom Government 1986-004: Culture, contingencies,

126
constraints. Nelson Kafir. The Journal of Modern African Studies.

127
128
Apter, David Ernest (1997). The Political Kingdoms in Uganda: a study of bureaucratic
nationalism.
217
NRM leaders could not be sure that the Baganda would accept their
government or their Ten-Point Programme. The NRA was ambivalent in its
response to this issue. On the one hand, until its final year, the insurgency
against the Obote regime had been conducted entirely in Buganda, involved
a large number of Baganda fighters, and depended heavily on the revulsion
most Baganda felt for Obote and the UPC.
On the other hand, many Baganda who had joined the NRA and received a
political education in the Ten-Point Programme rejected ethnic loyalty as the
basis of political organization. Nevertheless, though a matter of dispute,
many Ugandans reported that Museveni promised in public, near the end of
the guerrilla struggle, to restore the kingship and to permit Ronald Mutebi,
the heir apparent, to become king. Many other Ugandans opposed the
restoration just as strongly, primarily for the political advantages it would give
Buganda.
Controversy erupted a few months after the NRM takeover in 1986, when
the heads of each of the clans in Buganda organized a public campaign for the
restoration of the kingship, the return of the Buganda parliament building
(which the NRA had continued to use as the army headquarters), and
permission for Mutebi to return to Uganda. Over the next month, the
government struggled to regain the political initiative from the clan
heads. First, in July 1986 the prime minister, Samson Kisekka – a Muganda –
told people at a public rally in Buganda to stop this "foolish talk".
Without explanation, the government abruptly ordered the cancellation of

celebrations to install the heir of another kingdom a week later. Nevertheless,
the newspapers reported more demands for the return of Mutebi by Buganda
clan elders.129 The cabinet then issued a statement conceding the intensity of
public interest but insisting the question of restoring kings was up to the
forthcoming Constitutional Assembly and not within the powers of the
interim government. Then, three weeks later, the NRM issued its own
129
The Uganda Journal Vol.IV No.2 1950
218
carefully worded statement calling supporters of restoration "disgruntled

opportunists purporting to be monarchists" and threatening to take action
against anyone who continued to agitate on this issue.
At the same time, the president agreed to meet with the clan elders, even
though that gave a fresh public boost to the controversy. Then, in a surprise
move, the president convinced Mutebi to return home secretly in mid-
August 1986, presenting the clan elders with a fait accompli. Ten days later,
the government arrested a number of Baganda, whom it accused of a plot to
overthrow the government and restore the king. But while Museveni
managed to take the wind from the sails of Buganda nationalism, he was
forced to go to inordinate lengths to defuse public feeling, and nothing was
settled. The kingship issue was likely to re-emerge with equal intensity and
unpredictable consequences when the draft for a new constitution was
presented for public discussion.
The monarchy was finally restored in 1993 130, with the son of Mutesa
II, Ronald Muwenda Mutebi II as its Kabaka. Buganda is now
130
With the formation of the tradition rulers act
219
a constitutional monarchy, with a parliament called Lukiiko that sits in

parliamentary buildings called Bulange. 131The Lukiiko has a sergeant-at-
arms, speaker and provisional seats for the royals, 18 county chiefs, cabinet
ministers, 52 clan heads, invited guests and a gallery. The Kabaka only attends
two sessions in a year; first when he is opening the first session of the year and
second, when he is closing the last session of the year.132
The NRM government allowed and facilitated the return of the

traditional leaders, and the revival of traditional, cultural and social
aspirations of the people of Uganda
Although this was feared by many opponents as a return to the "dark ages",
and all kinds of imaginary fears were predicted by the ever-present prophets
of doom, we have all seen that these traditional institutions have enabled
Uganda to continue its peaceful journey of revival.
The traditional leaders have contributed tremendously to the unity,

happiness and development of their various peoples in Uganda. Under
federalism, their potential as mobilisers for development would even be
greater.
Valuable lessons have obviously been learnt from the History of Uganda, and
the 1966 Crisis. The people of Buganda, just as the Central Government,
appreciate the great need to iron out the areas of controversy that led to the
1966 crisis and the collapse of federalism. The people of Buganda, and we
believe many other people from other parts of Uganda, would like the
question of the federal system of Government to be revisited and re-
introduced with necessary modifications to bring the system in line with
today’s prevailing social, economic and other conditions and circumstances.
The restored tradition leaders that where restored in 1993 among which
131
M S N Semakla Kiwanka 1972 Histoy of Buganda from the foundation of the kingdom
to 1900
132
Miscellaneous Application No 74 of 1993.aslo See Mutebi Coronation Hit by Injunction
New Vision 29th May 1993
220
include the king of Busoga(Kyabazinga), King of Buganda (Kabaka), king of

Bakongyo (Rwezururu),king of Toro(Omukama) , King of Bunyoro(Iguru)
,chief doms such Omukuka of Bugishu , Imorimori of Iteso etc. the restored
leaders restoration was just left on form than of a substance ,there powers was
reduced on grounds of the sbenefits of services rendered to them among
which include the lead car, security of the UPDF .Thus the restored
traditional leaders are more of benefiting than doing the cultural leadership
i.e. the appointing of the king of Busoga as the ambassador ,this created a
loophole of the king having to offices to manage as per the issue of Muteesa
when he was the President same also the King thus causing the Kabaka Crisis
of 1966 causing the collapse of the Buganda kingdom. The restoration of
traditional rulers in Uganda is just political oriented as to govern Uganda but
not service delivery. In so analyzing per article 3 of the Buganda agreement
when kabaka’s powers where reduced, in resolving to the current affairs the
Kabaka’s power were not adjusted but tightened them the more, and this why
Kabaka can be stopped to attend functions “Kayunga -Bugerere saga”.
THE E S TI M A T ED R I G H TS TH A T W OU L D H A V E BE EN GIV EN TO
TH E R E S TOR E D T R A D IT I ON A L L E AD ER S
Tax Exemption for Traditional Leaders: The Kabaka and other

traditional leaders should be exempted from paying tax in recognition of their
developmental, mobilising, cultural and leadership roles. This had been the
position in 1993 when these institutions were restored. The law restoring the
traditional institutions also provided that they should be exempt from
taxation. Through an inadvertent omission, when the provisions relating to
restoration of the traditional institutions were imported into the 1995
Constitution, the provisions relating to tax exemption were repealed with the
rest of the 1993 Statute.
Immunity from Criminal Prosecution: The traditional Leaders should

also be exempted from criminal prosecution. This is the position in many
221
countries such as Ghana, where Traditional Leaders similar to ours, exist.in

Uganda traditional rulers don’t have immunity, the recent scenario in 2016,”
the detaining of King of Bakongyo in Luzira prison”
Protocol: The people of a particular area hold their traditional Leader in high
esteem. They therefore view it as a humiliation that the Traditional Leader
should be relegated to the current low protocol ranking on state functions
taking place in his area. We propose that the Traditional Leader in whose area
a state function is held should take precedence over all people except the
President and Vice President. This was the position under the 1962
Constitution and was respected by all Ugandans
B U G AN D A A G R E EM E N T : A C H EC K ON P R E - C OL ON I A L
P OW E R S .
Upon their first landing in the region, most of the territory’s population was
organized into chiefdoms that were headed by cultural rulers. These provided
effective administration for these chiefdoms and thus the subjects were
obedient to them not because they had to but because they felt it true to be
loyal and obedient to their rulers. These could set the rules that complied with
their customs. Thus, customs formed a driving instrument for their
relationship and wellbeing.
Originally, Buganda grew rapidly in power in the eighteenth and nineteenth

century becoming the dominant kingdom in the region. The Kingdoms
expansion is noted by historians to have started in 1840s where it used fleets
of war canoes to establish an imperial supremacy near and around the great
Lake Victoria shores and the surrounding region. Thus, having expanded, it
became easy for Buganda to subjugate weaker people to cheap labour, thus
grew into a powerful “embryonic empire”.133
Sogan, Eli. (1985). At the Dawn of Tyranny: The Origins of Individualism, Political
133
Oppression and the State. NYC, USA: Vintage Books/Random House. Pp3.
222
Buganda’s first contact with Europeans is noted to have been in 1862 when
British explorers John Hanning Speke and Captain Sir Richard Francis
Burton landed in Buganda. These were amazed and their minds overtaken by
the well-organized system that they found not expected of such a society of
Africans. By that time, Buganda was under the leadership of Muteesa I that
had an upper hand in the invitation of the missionaries that laid grounds for
colonial rule in Buganda.134
In 1884, Muteesa I died and his son Mwanga II took over being a norm and
custom among the Baganda. Mwanga was over thrown numerous times but
was reinstated. It was Mwanga that signed a treaty with Captain Lord Lugard
in 1892, giving Buganda the status of protectorate under the authority of the
British East African Company.135 After Kabaka Mwangas exile, it’s the
regents that signed the agreement on behalf of his successor son Daudi Chwa
which came to be known as the 1900 Buganda Agreement.
The agreement had an impact and perhaps checked on the powers of the
Kabaka and the autonomous nature of the kingdom for instance; the kabaka
was referred to as Ssabataka i.e., head of Bataka, Ssabasajja i.e., head of all men.
Thus, he being the Ssabataka was the owner of the land in Buganda being
vested in him by the Baganda to protect it on their behalf. Thus, his control
and ownership of the Buganda land was not limited. However, with the
signing of the Buganda Agreement, his control over land was limited.
Article 15 of the agreement provided for the division of land that is into
crown land and mailo land. Crown land was to be long to her majesty under
the British Protectorate government while mailo land is one that was given to
the kabaka, family and the chiefs. This was a limitation on the powers of the
kabaka over land.
Mackay, A.M. Pioneer Missionary in Uganda.

134
Perham, M. The Diaries of Lord Lugard: East Africa 1889-1892, vol 1-3. Evanston: North
135
Western University Press, 1959.
223
Furthermore, the kabaka was the source of power; he could appoint,

discipline and dismiss any official of the kingdom at his will. This helped in
inspiring a lot of loyalty not only in the subjects but also his chiefs. This was
a sign of obedience to the kabaka. As it had been with land, the 1900
agreement limited and checked on the powers of the kabaka nonetheless, he
was as well made a subject of the British authority which weakened him
politically. Article 6 provided that “so long as the kabaka, chiefs and people
of Uganda shall conform to the laws and regulations instituted for their
governance by her majesty’s government and shall cooperate loyally with her
majesty’s government in the organization and administration of the said
kingdom of Uganda, her majesty’s government agrees to recognize the kabaka
of Uganda as the native ruler of the province of Uganda under her majesty’s
protection and over rule.”
The impact of this was that the Kabakas powers as a ruler of Baganda were
not recognized but were subject to his obedience and loyalty to her majesty’s
government. Further, the Kabaka had powers to punish anyone that
conducted himself in a manner contrary to t norms and customs of the
Baganda. This was a superior power vested in him and in him alone. Not
known to many, this was checked by the agreement in order to make him a
subject of British authority.
Though he was to remain the highest, a new idea of appeals was introduced
where any one aggrieved by the decision of the Kabaka through the council
could appeal to the protectorate courts.136
A further analysis of the agreement was the limitation of the kabakas powers
over collection and determination of revenues. The Kabaka could instruct the
chiefs to collect revenue for the general administration and welfare from all
the natives around the kingdom. This like land and powers over punishment
was checked on under Article 12 where the new taxes were introduced and
payable to the protectorate government.
136
Low and Pratt, Buganda and British Overule 1900-1955, Two Studies. Oxford, 1960.
224
One can ably note that all the terms of the agreement were intended to
control Buganda agreement and its rulers for the effective administration of
the whole protectorate of Uganda. The agreement thus limited the rulers’
powers over taxation, revenue and land which turned them into mere
puppets to the protectorate government.
It’s in no doubt that it’s the laid down limitations for the control of the region
that were invoked by president Apollo Milton Obote thus ending up
partying ways with the then president Kabaka Muteesa II over Ugandas
administration leading to the 1966 kabaka crisis. As George William
Kanyeihamba notes, the 1962 independence Constitution had failed to
distinguish the powers of the president and the prime minister. Muteesa II
was the kabaka of Buganda and the president of the country at a time thus
failed to separate the cultural powers from the presidential powers.137 Because
president Obote intended to check on the powers of Muteesa having noted
its constitutional effect thus the outcome was the 1966 Kabaka crisis.
This having formed the basis of controversial misunderstanding between the

leaders of the central government and Buganda, for one to maintain peace
and ably lead Uganda, they had to formulate mechanisms that could check
on the powers of the Kingdom and the cultural rulers and their influence in
politics of Uganda. These and other mechanisms are what were adopted by
the NRM government before the reinstoration of the traditional rulers and
all these were as a consequence of the 1900 Buganda Agreement.
T H E A GR E E M EN T : A C H EC K ON R EIN S TI TU T I ON OF R U L ER S .
It’s worth noting that indeed the agreement was not in existence as an
effectively operating instrument at the time of reinstitution of these rulers but
its check on their reinstitution was through its constitutional impact fixed in
the 1995 Constitution of Republic of Uganda. Thus, a well drafted
137
George William Kanyeihamba. Constitutional Law and Government in Uganda.
225
conclusion would say that it checked on the reinstitution through the

Constitution as shall be discussed in the coming paragraphs.
In early 1990s, the reinstitution was a daily discussion in every corner of

Uganda by the natives and leaders. Excitement was an everyday program
especially to the Baganda who saw kabakas reinstitution as a defeat to Obote
and other opponents of the kingdom and perhaps a start of the long-awaited
autonomy status attained at independence.
It is in no doubt that majority of the people of Buganda had supported NRA

guerilla war fair with a view of having their traditional rulers restored to their
thrones. Besides this, Ronald Muwenda Mutebi the kabaka of Buganda had
himself indulged in supporting the war fair having been promised the
restoration of the kingdom. In many times, he was seen visiting the NRA
areas liberated from Obotes regime.138 Ideally speaking, there was nothing
behind the alliance of Buganda with NRA than the restoration of Buganda.
As Kasfir remarks, the restoration of the monarchy and the return of

“ebyaffe” led to the unlikely tacit alliance between the kingdom supporters
and the NRM.139 Upon the completion of the guerilla war most of the
traditional cultural leaders returned to Uganda and among these was Kabaka
Ronald Muwenda Mutebi who returned in 1986. Many of his strongmen like
Samson Kissekka and Abu Mayanja had been inculcated into the central
government as vice president and Attorney General. These were later to play
pivotal roles in the eventual restoration of the kingship.
However, though it was to earn the president more support from the masses,
the reinstitution of these rulers proved a puzzle in his mentality. The biggest
challenge was on how they were to be controlled to check on their influence
in the political affairs as a mechanism of deviating from the past nasty history
of endless blood shade and political crisises due to their influence. Indeed,
much attention had to be drawn on the exact nature of regime or system the
138
See Karugire 1988. pp.76-77
139
See Kasfir 1995 at p.154.
226
restored Kabaka was to operate. Besides, the other question that the
government faced was on how the monarch would fit into the overall
operation and governance of the country and how to raise funds to support
its activities.
That said, NRM stood firm on its idea that the cultural rulers were not to be
allowed to establish armed forces as well as indulging in political affairs if
peace and firm administration was to be attained. This meant that they were
to be restored as constitutional monarchies that would be purely cultural.
In order to achieve this, the government through the promulgated 1995

Constitution provided laws that could guide on the reinstitution and
operation of the rulers and the traditional kingdoms. This was enumerated
under Chapter 16.140 Article 246 (1) provides that subject to the
provisions of this constitution, the institution of traditional leaders
or cultural leaders may exist in any area of Uganda in accordance with
the culture, customs and traditions or wishes and aspirations of the
people to whom it applies.
Other provisions are as well clear, their institution would make them
corporation sole with perpetual succession and with capacity to sue or be
sued but the most important was paragraph (e) which provides that a
person shall not while remaining a traditional leader or cultural
leader, join or participate in partisan politics and paragraph (f) which
provides that a traditional or cultural leader shall not have or exercise
any administrative, legislative or executive powers of government or
local government.141
From the mentioned constitutional provisions, it was clear that the

institution of these leaders was bound to happen on condition that they do
not indulge in the political matters. Museveni once remarked that “I have
140
1995 Constitution of Republic of Uganda as amended
141
1995 constitution of Republic of Uganda as amended
227
been emphasizing to them that it would be better if they confined

their activities to culture without trying to get involved in politics or
administration. Some have listened but others have not.”142
It would be happiness everywhere though it would not be fully attained

happiness. The institutions like Buganda Kingdom had been deprived of the
autonomous nature which they had acquired during independence as an
appreciation for its efforts towards the colonization of Uganda. The kabaka
was not to legislate on anything as all legislative duties were to be clothed onto
the government. The kingdom was not to form an army of its own thus
defeating the powers the kabaka enjoyed in the pre-colonial period and lastly
was the idea that they would not achieve the federalism that they had for long
desired. The traditional ruler’s powers were thus restrained and limited to just
honorary men with no such powers as held at pre-colonial period.
However, as earlier noted Bugandas influence in Uganda’s political arena was

one of dog and born. Though the law was in force to check on their powers
as cultural or traditional rulers, no one could defend an argument that the
question of Buganda in Uganda had been solved. The Kingdom continued
to pursue its interests as per independence though the central government
was to continue suppressing them. This was to later culminate into a series of
clashes between the central government and most of the traditional rulers.
The most commonly remarkable conflict was one in 2009 when the kabaka
and his prime minister were denied access to Bugerere by the Banyara in
conjunction with the central government forces.
Indeed, Thursday 10th September 2009 marked the beginning of three dark
days of riots within Kampala city and other parts of Buganda. One would say
that the two parties had learnt nothing and forgot nothing from the history
of Buganda. As usual, business was at a normal point in the country when the
day for the Buganda Youth Celebration was almost clocking. The kabaka had
portrayed interest in his ambition to celebrate the day from Bugerere a county
142
Yoweri Kaguta Museveni 1993.
228
of Buganda in Kayunga district. A group of Banyara led by retired UPDF

captain Kimezze declined the visit of kabaka alleging that he had not sought
permission from him.143 This was a clear indicator that they had proven a
point of wanting to secede from Buganda and that the Kabaka had no control
over them.
The outcome of this was a series of riots that filled the entire central region of
Uganda as the Baganda objected this as an insult from the central government
that sent forces to stop the kabaka from accessing Bugerere. This was the first
clear manifestation that the control of powers of these leaders would form a
formidable challenge to the government.
Later on, 26 November 2016, the central government clashed with yet
another kingdom; Rwenzururu kingdom led by Charles Wesley Mumbere.
This happened after allegations of planned secession by the kingdom to join
another country. It saw the UPDF forces and police raid the government
offices of Rwenzururu kingdom, killing eight Rwenzururian royal guards
and arresting others. On 27th November, a mob of civilians had attacked and
killed two policemen. The police together with the UPDF arrived at the
Rwenzururu royal palace. Brigadier Peter Elwelu who was in charge of the
UPDF soldiers and policemen was ordered to storm the police in an hour if
conflict had not been resolved peacefully.144 President Museveni issued an
ultimatum to Charles Mumbere, the omusinga (king) of Rwenzururu,
demanding that he surrenders his guards and their weapons within two hours
which he declined thus the attack that left over 87 royal guards dead and at
least 16 injured.145 These and others were to be continuously witnessed as the
central government tries to control the influence of the cultural leaders.
143
Charles Juuko. Uganda: Banyara choose army officer as King. New Vision.
144
Rwenzururu King arrested after shoot out with UPDF in Kasese. NTV Uganda 27 th,
November 2016.
145
Uganda Rwenzururu: King Charles Mumbere Charged with murder. BBC News. 29 th
November 2016
229
Buganda kingdom having been at the heart of Uganda in the struggle for
independence, it has proved that sidelining it from political affairs of Uganda
by the central government is next to impossible. This is so because the
political decision of the central government directly affects the affairs and
administration of the kingdom. Thus, the Buganda cannot settle if the central
government is continuously weakening its existence.
Thus, the concluded 2021 general elections saw the kingdom indirectly
involved in the elections through rallying behind the muganda candidate
Robert Kyagulanyi Ssentamu the flag bearer and principle of National Unity
Platform. This saw majority of the NRM candidates lose in central
Uganda.146 “Buganda kingdom has been campaigning for the leaders
who have interests of Buganda at heart”147 This was attributed to the fact
that the kingdom intended to check on the suppression of the central
government that is aimed at completely weakening it.
Thus, a well drafted conclusion would state that the reinstitution of

traditional rulers and cultural leaders with a constitutional limit on the
conduct of their affairs and governance was a clear manifestation of the
indirect impact of the 1900 Buganda agreement that influenced
Constitutionalism in the 1995 Constitution. As a result of this, traditional
leaders and cultural leaders have lost their autonomous powers, stature and
dominance that were once owned in the pre-colonial period.
C ON D ON IN G OF K A M P AL A (K AM P AL A IN B U GAN DA N O T FO R
B U G AN D A )
Since the restoration of traditional leaders in Uganda around 1993, the

Buganda Kingdom has developed unusually effective institutions, financing
146
Monitor. Saturday, January 23, 2021. Government blames NRM Buganda loss on
sectarianism but Mengo attributes it to corruption, killings. Available on
https//www.monitor.co.ug
147
ibid
230
mechanisms and policy tools, re-building itself as a quasi-state.148But amidst

all this, the monarch is finding it difficult to translate the king’s symbolic
appeal into actual mobilization for development, shedding doubts on one of
the main justifications for the kingdoms rebirth. On top of this is Bugandas
claims to political participation which clash with the competing notion of
sovereignty of the post-colonial state. Its capital is Mengo located in Kampala
which once belonged to Buganda but with colonial dominance and political
influence after independence, it was turned into Ugandas capital thus slipped
off Buganda’s shoulders to date. But nonetheless Buganda continues to
silently reclaim the capital through its indirect political participation where it
supports the opposition members of government with a view of obtaining its
long-desired objective, “Federalism.”
THE R E L AT I ON SH IP O F K A M P AL A C I TY TO B U G AN D A
KIN G D OM
Kampala District consists of the most important and most cherished

traditional and cultural sites, which actually make Buganda. Among these
are: the Kasubi Tombs where several Buganda kings are entombed; Lubiri,
Kabaka’s traditional official residence; Bulange, the seat of Buganda
administration; the Butikkiro; Kabaka’s Lake, an important traditional
site; Mujaguzo Palace at Kabowa; Kalinda Well an important traditional
water fountain for the Kabaka and several traditional functions in Buganda.
R E A SON S W H Y K AM P AL A DI S TR I C T BE P AR T O F B U GAN DA
The current constitution omitted to include Kampala district among the

districts that make up the Kingdom of Buganda. To omit the Kingdom’s
most important and sacred traditional ancestral institutional sites, is viewed
148
Pierre, E. Born –Again Buganda or the limits of Traditional Resurgence in Africa. The
Journal of Modern African Studies (Vol 40 N0.3(Sep.,2002) pp.345-368. Cambridge
University Press.
231
by Baganda as illogical, unfair and an unnecessary humiliation and mockery

of their culture and disrespect for their cultural institutions. Some regard it as
occupation.
Several Central Government institutions such as State Houses and Lodges,

Military Barracks, Research Centres, airports are situated in various areas in
Buganda and the rest of Uganda. None of these have had to be declared to be
outside their traditional Districts. We propose that Kampala should be part
of Buganda as it has always been, and the Capital and other Central
Government institutions should continue to be in Kampala like they
continue to be in all other areas of Buganda and Uganda.
However, federalism does not exclude or negate Decentralisation. The two

must co-exist. In all countries where there is a federal system, there is also a
decentralisation system. The federal system is only between the central
government and the regional government. The arrangement between the
region and the village level is a decentralised system.
Decentralisation is a system which takes services down to the people. It

cannot be left out or ignored. It is an effective local government system under
federal regional governments. All federal systems around the world also have
a decentralisation system under the federal system. Even Uganda’s history
with federalism bears this out clearly. From 1900, although Buganda was a
federal state, its local administration was done through a system of
decentralisation. This was crystallised and is reflected in the Buganda Local
Government Councils Law, 1965, which is in many respects similar to our
current Local Government Statute, and the Great Lukiiko (Election of
Representatives) Law, 1953, of the Kingdom of the time that provided for
election of local government officials in Buganda. The Masaza system down
to Batongole is a decentralised system.
Decentralisation becomes a viable system of local government administration

at the regional level and co-exists effectively with federalism in Uganda.
232
The introduction of the Federal system of government will not significantly

alter the current decentralisation system. Districts or Masaza or by whatever
names called, will continue with virtually the same rights and responsibilities
except that they will no longer be directly controlled by the Central
Government but by their respective regional governments.
Under the Federal system of government, MPs representing Districts in the

National Parliament will continue to do so. It does not have to affect the LC
system or LC leaders. Parliament will still be able to create new districts. The
Federal system arrangement is only there to enhance development based on
ECONOMICALLY VIABLE units. It is not about disenfranchising anyone.
P R E - C OL ON I A L AN D C OL ON IA L K I BU G A (C IT Y )
The word “Kibuga” is a Luganda notion for “City.” The Kibuga was the
epitome of their pride, military life and political administration. It was also a
symbol of a cultural center. The place was co-culturally important to them
that non-Baganda were not allowed to enter without permission.149 In the
pre-colonial times before the kingdom could get exposed to the outside
world, it owned its Kibuga. But noteworthy is that this Kibuga moved
according to the wishes of the king. This means that every King could build
his own city.
From the time of Suuna IIs death in 1856 up to when Fredrick Lugard arrived
in Buganda, the Kibuga had moved to 10 different locations. When he first
arrived, John Speke, the city of the kingdom of Buganda was in
“Bandabarogo” presently known as “Banda” a city surbab in Kampala from
where he met Muteesa I while Rev C. T Wilson met him at Rubaga in 1875.
Besides this, Muteesa had constructed another palace in Nabulagala. But
since 1885, Mengo has been the seat or Kibuga of the kingdom.
149
Monitor. Saturday, March 21, 2015. The Kibuga: Bugandas lost Capital. Available on
https://www.monitor.co.ug
233
This city was located in Kyadondo one of the counties created by the 1900
Buganda agreement. The Kibuga had wide and well swept roads... “The
principal roads were about 20 yards wide. Others were narrower while the
small branch roads were not more three yards wide.”150 In their
administration as kings, they could send instructions to the various people of
Buganda in the different counties inviting them to come and repair sweep
and clear these roads. This was a “bulungi bwansi” practice among them. R.F.
Burton tried to describe the tangible size of the city (Kibuga). In his book, he
relied on information collected by Snay Bin Amir an Arab trader, who
described the Kibuga as “…the settlement is not less than a day’s journey in
length, the buildings are of cane and the circular huts neatly arranged in line
are surrounded by a strong fence which has only four gates.”151
However, in 1907-1908, the first survey of the Kibuga (city) was done by H.B
Thomas and A.E. Spence who put the kibugas size at 20 sq. miles. It covered
areas of Natete to the west of Mengo, Kibuli areas of current Kampala, East
Mulago and Kabowa to the South. Indeed, it was a huge city that fit within
the supremacy of the kingdom at a time. It was not until 1890 that future of
the Kibuga was threatened by the coming of Lugard and the setting up of
what he describes in his book “The Rise of an Empire.” He described it as
“He (Mwanga) gave the little knoll on which my camp was pitched named
Kampala, also the plantation at the foot of the shortest slope which i greatly
desired to acquire as it was owned by the rowdy set belonging to the Fransa
(French) who were continuously creating a disturbance.”152
In 1899, the Council General signed a notice under Article 99 of the

Queens Regulation which provided for sanitary rules for an area with a
radius of three miles of Mengo but this was declined by the Kingdom
administration that greatly objected the idea.153 According to a letter dated
150
Roscoes Book. The Baganda.
151
R.F. Burton. The Lake Region of the East Africa. (1860)
152
Fredrick Lugard. The Rise of an Empire. 1890
153
The Queens Regulations.
234
22nd February, 1900, from the katikkiro to Sir Harry Johnston, expressed the
Bugandas fears that the passing of the ordinance was going to greatly be a
threat to their pride. He thus remarked “Our very great fear is that this
notice will give the Europeans in their place a great power over our
Kibuga.”154 To express togetherness on this matter, most of the Baganda
supported sir Apollo Kagwa and among these were chiefs. “i fear very much
what has happened, and the Europeans must not eat our land which has
belonged to our kings and our forefathers.”155
Peter C.W. Gutkind tried to demonstrate the divide between the two by
comparing the distance between the two seats of government, one in Entebbe
and the other Mengo when he notes that, “The degree of formality is very
considerable down to such details as official letters bearing the stamp on the
service of his highness the kabaka.”156
T H E F A LL OF M EN G O (R I S E OF K AMP AL A )
Not much anticipated, the fall of Mengo (Kibuga) the capital of Buganda
started with the arrival in Uganda of Lugard who was the representative of
the imperial British East African Company, the precursor to British
colonialism in Uganda, that sowed the seeds of the kibugas downfall in what
he termed “The little Knoll” was where he pitched his camp and became the
government station outside Entebbe where the official protectorate office
was located. It also housed the Swahili and Sudanese soldiers he came with.
Lt Col Sadler in 1902 made a further step and announced the creation of a
board to define the boundaries of the new city of Kampala. This ended up
providing for compensation of the land owners that were West and South of
Lugards original knoll for the expansion of Kampala. Further, in his detailed
154
Buganda archives file S.12/00
155
Ssekiboobo of Kyagwe. A local chief.
156
Peter C.W. Gutkind. The African Administration of the Kibuga of Buganda.
235
later on February 18th 1902, Sadler expressed his view to the principal medical
officer expressing why he had acquired that land which was for settlement of
Europeans. Despite continuous protests by the Baganda through its Katikiro,
the Europeans declined this.
In 1903, the Uganda Township Ordinance was declared. This provided that
the commissioner had powers to declare and define the limits of the
township.157 This seems to have left the Buganda administration sadder and
more continued to express disgruntlement. Kampala’s boundaries were
increasingly expanded to cover almost three miles radius from Nakasero Fort
but not worth is that all these new boundaries included the Kibuga “mengo”.
When continuous protests of this were occurring, Sir Hesketh Bell noted that
“due to the increased influx of labour into Kampala and the insanitary
conditions in the Kibuga, this was a measure to right to be taken.
After the expiry of 4 years, some Baganda land owners that settled in the
Southwest of Kampala agreed to sell some of their land to the protectorate
government. The government was in desire or need of this land to construct
a prison and barracks as a detaining facility for those proving stubborn. This
was again protested by the mengo administration. As this was still
outstanding, in 1916, another group of Baganda sold their land to the
township authority for the construction of a police line, an Asian
commentary and two oil storage tanks. This was followed by the declaration
of Namirembe as part of the township in 1920158
Noteworthy is that, the boundaries of Kampala kept on changing. This was

intended to widen the capital as a tacit means of handling the increased
population and provision of services fit of a standard city/ Kibuga. When
three acres on the slopes of Kibuli, south-east of the government station were
purchased by the colonial administration, the boundaries stretched further.
157
Section 2 of the Uganda Township Ordinance.
158
Monitor. Saturday, March 21, 2015. The Kibuga: Bugandas lost Capital. Available on
https://monitor.co.ug
236
In a year later, the town planning made a report in which it recommended

that areas like Nsabya, Namirembe, Mulago and Katwe be incorporated into
the township authority.159 The report further noted that the limits of
jurisdiction should be extended to include certain portions of land at present
outside the boundaries and native land in close proximity to the town should
have their development brought under some form of control. However, this
report was not so much supported by the provincial commissioner who
rather recommended that Mulago and Makerere areas to be brought under
the township authority, proposing that any further extension of the township
should be to the East on the crown land.
As the British influence in the region increased, ordinances were made to

govern the city (Kampala) but noteworthy is that these were later turned into
laws such as the land law which barred non-Africans from owning land in
Buganda. This land was only to be owned solely by the natives and the
colonial offices on behalf of the Protectorate government. Thus, Kampala
became such a firm city but in the heart of Buganda and on the protectorate,
land purchased during administration but continuously claimed by Baganda.
In depth, one would contribute the creation of Kampala to the protectorate
government that laid foundation for its existence amidst contention from the
Mengo administration that saw it as a defeat of their Mengo Kibuga.
K AM P AL A AF T ER I N D EP EN DEN CE
Settling on square miles of land in Buganda next to Buganda’s capital Mengo,

Kampala was the capital city of Uganda at independence. Just like Rome, it
was built on seven hills and to Ugandans each had its special significance. 160
Worth noting is that out of these seven hills, none of them held more
significance than Mengo hill where a rambling brick palace on the peak is an
159
A.E. Mirams.Town Planning and Development Report 1930.
160
Uganda: The Battle of Mengo Hill. Friday, June3, 1966. Available on
https://www.content.time.com.
237
object of universal awe. It is noted that not even the British could make a step
to undermine its significance. It was where the Kabaka king of Buganda lived.
Thus, in the heart of Kampala Mengo was of such a significant existence.
When the terms under which Uganda would become independent were
being negotiated, Kampala being the capital of the new state was never
disputed. Dr. Audrey Richards, in the forward to Peter C.W. Gutkinds book
“The Royal Capital of Buganda: A Study of Internal Conflict and External
Ambiguity” states that if it had been mooted to put the capital elsewhere, the
Baganda would have been the first to protest. The situation of contiguous
capitals and parallel control, therefore, continued after independence.
Article 125 of the Constitutional Report161 stated quite unequivocally that

Kampala itself shall be recognized as part of Buganda territory and the
kabakas government should have a special association with its administration.
The special association took the form of a Special Joint Advisory Council
with three members appointed on the advice of the Uganda government,
three on the advice of the Buganda government and three nominated by the
Kampala municipal council. Thus, the Kampala or central ministers were
obliged to consult the Joint Advisory Council on all matters affecting
Kampala. After a while, there was a great expansion of the Kampala City
boundaries in all directions to a radius of seven miles from the city center thus
incorporating an area far larger than the original city.162
However, this was to stand until 1967 when Dr Milton Obote abolished the
independence constitution and established himself as the executive president
with Uganda becoming a Republic. Before independence, Buganda was
granted semi-autonomous authority on 8th August 1962 and Uganda’s
general independence the following day. Since Kampala was in Buganda and
a more developed area than any other part of Uganda. It proved a challenge
161
Uganda Constitutional Conference 1961.
162
Joseph Bossa. Kampala Citys Troubles. Nov. 24th, 201 ``112. Available on
https://www.independent.co.ug
238
to Buganda as a kingdom and Uganda as a state that held Kampala as a capital

city but located in Buganda.
When a clash happened between the Prime Minister, Dr Apollo Milton

Obote and the president Fredrick Edward Muteesa II over the lost counties,
Mengos misunderstandings with the central government increased. The
trouble had been boiling up since February when Ugandas ambitious Prime
minister deposed king Freddy as president and seized full powers for himself.
Hardly had he declared himself president than he promulgated a new
constitution giving Uganda a powerful central government and erasing most
of Bugandas cherished autonomy.
This proved too much for Muteesa II. Declaring the new Constitution was
nothing less than an act of secession from Uganda. He thus ordered Obote
and his regime to transfer their government from Kampala to Lango. This
marked the beginning of an attack on Mengo that saw Muteesa flee to exile.
Shooting broke out in Kampala and bands of wild-eyed Baganda, shouting
war cries and waving machetes overturned buses and trucks a major
intersection. But as Kanyeihamba noted, this was all due to the 1962
Constitution which failed to distinguish the powers of the prime minister
and the president thus the question of who had more powers led to the
crisis.163
1900 B U G AN D A A G R EE M EN T : A CH E CK O N K AMP AL A
Historians agree that the 1900 agreement had a great influence or significance
on the constitutionality of Uganda. Its existence though settled in history, is
greatly felt in the 1995 Constitution. This constitution was promulgated by
the NRA government after taking over power in 1986. Its preamble provided
for an objective which was to attain economic stability and peace. Thus, in
163
George William Kanyeihamba. Constitutional Law and Government in Uganda.
239
order for this to be achieved, firm administrative structures had to be

established.
After independence, a misunderstanding had arisen between Mengo and

administration and the central government of Obote on which side had more
powers to control Kampala. As a capital city, it was located in Buganda but
unknown to mengo administration; it was for the entire Uganda. This
perhaps explains why Muteesa II ordered Obote to transfer his
administration off Buganda soil and leave Buganda’s capital Kampala which
seemed important for Obote for all developments were high in Kampala and
Buganda at large. Mengo claimed that all property including land on which
Kampala settles was Bugandas land.
Thus, after coming to power in 1986, there was need to restrain Buganda’s
claims over Kampala if the central government was to effectively administer
Uganda. There had to be adopted a mechanism that could check on the
kingdoms claims over Kampala in Buganda. It could be done either by
promoting a friendly relationship with the kingdom after its restoration or
adopting other mechanisms but calm to that point. Whatever mechanisms
were adopted has continued to increase a clash between the central
government and the mengo government.
In 1995, the government disseminated a constitution with the provision on

decentralization under Article 176(2) (b)164 that acted shortly before the
rebirth of the local government Act in 1997 which saw devolution as a form
of decentralization transferred both political and administrative powers from
the center to lower local councils not until the Kampala Capital City
Authority Act of 2010 was approved that the administration went back to
the central government.165 The Act provided that the city was to compose of
the technical and the political arm. The technical arm was to constitute the
1995 Constitution of Republic of Uganda as amended.

164
Nabukeera Madinah. Recentralization of Kampala City Administration in Uganda:

165
Implications for Top and Bottom Accountabiliy.
240
executive director’s office and 10 other directorates whereas the political arm
was to constitute the Lord Mayor and the divisional mayors. This was later to
be complimented with the ministry of Kampala thus having minister of
Kampala. Thus, Kampala has been fully put under the realms of the central
government and Buganda cannot thus claim control over the capital. One
would agree that Buganda would have claimed for a share of the revenue from
the Kampala but this seems next to impossible apart from the kingdom
claiming for rent from the central government.
The kingdom has always advocated for federalism a system that would see
Kampala under the control of Buganda but this seems unlikely. Federalism
would mean self-governing states working with the central government.
Under federalism, Uganda’s three active kingdoms and other areas would
become states and, in the south, the kabaka would govern the state of
Buganda including the capital city of Kampala but this, the government
cannot entertain.166 Thus despite its location on Buganda soils, the great
capital has been put under the central government with strict laws that check
on the kingdoms influence over the city as a mechanism of deviating from the
nasty past history.
Gwen Thompkins. Kingdom, Government clash in Uganda. February, 4th 2010. Available
166
on https://www.npr.org
241
CHAPTER TEN
The Third Kabaka Crisis (The 2009 Kayunga

Crisis, Burning of Kasubi Tombs, Kabakas
Birthday)
As earlier noted, in the late 19th century, Buganda was a powerful East African
kingdom running along the northwest shore of Lake Victoria in present day
South-central Uganda.167 The signing of the 1900 agreement not only
reduced its influence in socio-economic and political spheres but rather
granted it a degree of internal autonomy within the British-ruled Uganda
protectorate. This agreement was later to be modified in 1955 in what history
terms as 1955 Buganda Agreement. The new agreement resolved an impasse
between the governor, who wanted Uganda to develop as unitary state and
the kabaka who had wanted Buganda to become a separate entity to protect
its identity. Thus, the two seemingly agreed to corporate where the Kabaka
stood firm and offered to share tables with the governor and to secure the
British protectorate, assist and guide himself, his people and dominions.
Thus, their signatures were finally to appear on the end of the agreement.
The Buganda Agreement, 1955. Library of Congress. Retrieved on 2nd July 2022.
167
Available on https://www.loc.gov
242
The Baganda could not witness themselves being part of other regions and
subject to the control of one person not a muganda. They enjoyed their
supremacy without being subject to any regions control. How could their
desires be taken into consideration by the leaders of Uganda had they
accepted to be part of Uganda without clash? Their concerns were later to
reflect in the countries journey of existence beginning from the day of
independence. Thus, a series of cold war and clashes between the central
government and the kingdom were to make bulletin headlines.
The first litmus test after independence was the 1966 Kabaka crisis. The
immediate events that led to the crisis can be traced to the loss in the
referendum on the lost counties in 1964. The lost counties were those which
had been awarded to Buganda by the British for its support towards the
subdue of Bunyoro. As Hancock observes, this loss was indeed very painful
to the Baganda.168From then on words, Muteesa that doubled as kabaka of
Buganda and president of Uganda began the hunt for allies outside against
Obote who had signed the transfer of the counties back to Bunyoro. Among
those obtained allies included Grace Ibingira, the UPC secretary general who
was working on recruiting allies to join and penetrate the UPC with the aim
of out voting Obote.
The increased enemy climate ended up with the overthrow of Muteesa II

from office by Obote ending up declaring himself the executive president in
1967. Everyone seemed to have blamed Obote but none found fault in
Muteesa. None saw wisdom in Obotes move. Muteesa had been at crossroads
since independence. Being the kabaka of Buganda and president of Uganda
required him to balance the interest of both sides especially in such situations.
This seemed to be a hard nut for Muteesa. He could not front the interests of
Uganda first at the expense of Buganda. This could a betrayal to his people.
Hancock, I.R. “The Buganda Crisis. 1964. African Affairs: Vol 69. Number 279, April
168
1970.
243
Thus, Obote did such a move to remedy the outcomes of such leadership.
Thus, to Obote the prevention was better than cure.169
But this didn’t solve what he desired to cure. Did this mean that the question
of Buganda in Uganda had been settled by Obote when he decided to abolish
kingdoms? The main conclusion is a no. Bugandas influence could not be
dumped simply by abolition. Perhaps, one could say that Obote had
indirectly opened the door of his exit. The Buganda’s arge for semi-
autonomous status could be reflected in a few years. Perhaps with his
overthrow in 1971 by Amin who had hopes of support from the Baganda and
later the support to NRA forces by the same group with the hope of having
their monarchy restored.170
Its restoration though fenced by laws enshrined in the Constitution, these

laws don’t completely silence the ambitions of the kingdom but rather act as
cobweb towards attaining the constitutional objectives. Thus, the question
of Buganda in Uganda is one that is to be settled by technical means rather
than by direct confrontation. Thus, Bugandas demands for autonomy is
what has increased tension between Mengo administration and the central
government. Though the fight seems silent, a series of events have made it
loud. These have varied from the Kayunga crisis, burning of kasubi tombs,
birthday cake and many others.
169
Yoga Adhola. The Uganda Crisis, 1960: Should UPC apologise to Buganda or Should
Buganda engage in serious introspection.
170
Sagan. Eli. “At the dawn of tyranny.” Alfred.A. Knopf, NewYork, 1985.
244
T H E K AY U N G A -B U G E R ER E K A B AK A CR I S IS 2009
“We shall not give and allow Kabaka Mutebi into Kayunga a county area on
the edge of his jurisdiction as a cultural leader” 171 Museveni remarked in a
televised address to the nation.
Shockingly, both sides learnt nothing and forgot nothing from the history of
the Pearl. The questions that emanate from the whole issue of the return of
Buganda to prominence continue to haunt Uganda and Buganda partially.
As usual, business was at a normal point in the country. Day for Buganda
Youth Celebration was almost clocking. The Kabaka had portrayed interest
in his ambition to celebrate the day from Bugerere a county of Buganda that
settles in Kayunga District. Some members of the minority Banyara ethnic
group led by a recently retired UPDF captain Kimezze declined the visit of
the Kabaka alleging that he had to seek permission from them.172
Their idea was that the kabaka had no control over Bugerere and it seems
quite clear that these people wanted to secede from Buganda. The history
171
Museveni on a televised address. Javira Ssebwami. Ten years later! Recounting the 2009
Buganda riots that threatened NRM rule.
172
Charles Juuko. Uganda: Banyara choose army officer as king. New Vision.
245
about the Banyara has it that they were as a result of intermarriages between
the Baganda and the Banyoro supported by the British. Their history or
origin is traced from the wars of Buganda against Bonyoro before 1900.
Namuyonjo late king Kamurasis son rebelled against his father in 1800 and
allied with the kabaka of Buganda king Mwanga II. Because Buganda was at
loggerheads with Bonyoro, Mwanga welcomed him. As a token of
appreciation, kabaka gave Namuyonjo control over the captured county of
Bugerere which had been previously occupied by Bunyoro. But due to the
flies known as “embwa”, he didn’t occupy the region not until the British
flushed out flies.
The Banyara had no kingship. They were organized into clans’ system led by
the head of a clan. It’s the clan heads who chose among themselves one person
to lead them who was known as the “Omugabe” who represented the Banyara
in Bunyoro. These Banyara are in three types. The “Bagele” who were under
Bunyoro in Bugerere. The “Bagambayi” who came to Bugerere with
Namuyonjo when Bugerere became part of Buganda and the last are the
“Batumbugulu” that came to Bugerere long after Namuyonjo had
overthrown Mukongo.
The Baganda found no convincing reason why the king had to seek
permission in order to visit his region. Indeed, the long hidden silent conflict
between the kingdom and the NRM government was to explode into a high
intensified riot that saw many lose their lives and others facing imprisonment.
On the 10th day of September 2009, the Katikiro of Buganda (prime minister
of Buganda) Owek. J.B. Walusimbi was blocked by security from proceeding
to Kayunga district to organize a “bulungi bwansi” function where the
kabaka was to be the chief guest.173
According to the central government, the kabaka had not sought permission
from the king of the Banyara, Major Baker Kimezze and this came at a time
173
Amon Katungulu. Restoration of Kingdoms was a mistake Ugandans are paying for.
Feb.14th 2019
246
when the president complained that the kabaka was not picking his calls and
as well as NRM accusing Mengo of hosting mainly opposition politicians on
CBS radio to undermine the government. The Baganda saw this as an attempt
by the central government to undermine the institution of the kabakaship by
sponsoring breakaway kingdoms.174
This simmering friction between the central government and the kingdom
exploded into a bloody violence. The kabakas supporters took to the streets
to protest the government action of undermining the kingship, they burned
debris in the roads, blocking traffic and throwing rocks.175The mengo
royalists opened battles with the military and it’s said that a number of people
around 40 of them lost lives. There were also targeted beatings by the loyalists
to the people who looked like westerners because they could not sing the
Buganda anthem or pronounce some Luganda words correctly like omufaliso
(mattress).
Indeed, violence intensified in every part of Buganda. The government shut

down the kingdoms radio station CBS and three others in a major clamp
down. The riots spread to Kampala, Mukono, Mpigi, Kayunga and Masaka.
On the night of September 12th 2009, the army occupied and surrounded the
Kabakas palace in Kireka upon information that the Kabaka was determined
to visit Bugerere come what may. Ideally it was hard to believe how a mere
army serving military personnel in Uganda National Army could raise a claim
to be the king of the Banyara. Surpringly, his claim was complicated by the
fact that his own family disowned him and re-asserted that they were Baganda
Buganda refused to recognize him as the king since they had various channels
through which it recognizes the Banyara.
An emergency report from Buganda portrayed the long-hidden hatred

between the two factions. In their report, the committee stated that the
174
“Kampala Hit by Renewed violence BBC news” Retrieved 25t May 2021. Also see
www.news.bbc.co.uk.
175
Uganda: Investigate 2009 Kampala Riots killings. Sept 10th 2010 find it on www.hrw.org
247
conflict was due to the government’s intent to completely monopolise the oil
and other mineral resources over the rights of the native communities that
live on the ground. In their report, they claimed, they claimed that the
Ugandan government strategy is to have complete political control over the
land and minerals including weakening or usurpation of the claims made by
native communities.176In their report, they stated that the government has
proceeded to create by ceremonious recognition, claims to chieftaincy by any
person no matter how remote in the region of Buganda and that once the
claim is recognized, the eternally grateful chiefdom will then be more than
willing to allow government access to its resources. To them this was intended
to weaken the strong kingdom by the government as well as taking over
Buganda’s land for the benefit of the big fish in government. The violence
was not to end until the meeting was held between kabaka and the president
at state house Entebbe on condition that the Kabaka was to visit Bugerere
upon complete end of the meeting.
Indeed, this was the first hostile test of the unachievable separation of culture
from politics. Buganda was the centers for the independence of Uganda; its
contribution is greatly recognized therefore its roots had been fixed in
politics. It therefore seems hard to separate it from politics and a failure to
maintain a balanced wheel was to escalate into increased misunderstandings
between Buganda and the central government. The Baganda continued to
demand for federal from the central government. But this has remained
impossible since the central government is settled in the region of Buganda.
No one can determine when the silent conflict may be culminated following
other events then later occurred.
Buganda Emergency Response Committee Friday, September 11 th, 2009. Also find it at
176
www.Buganda.com
248
THE BU R N IN G OF K A SU BI T OM B S
In the aftermath of the 2009 Bugerere crisis, another shocking event that
weakened the Baganda was witnessed. On March 16th 2010 at around
8:30pm, the kasubi tombs were destroyed by fire.177As already noted, the
event occurred during the awkward relationship between the central
government of Uganda and the kingdom particularly in light of the
September 2009 riots. These tombs have deep spiritual political and religious
significances for the Baganda. They hold or act as the burial grounds for the
kings of Buganda.
The burning of 128-year-old tombs was a crisis for the Baganda. Immediately,
following the unfortunate fire at the tombs, Kampala city was a bound with
questionable versions of the cause of the fire and some circles went on to
speculate on the motive that the tombs had been set on fire by the
government in a way of revenge following the 2009 riots. 178President
Museveni hurried to make a move on a national television and issued a stern
177
“Ugandas Kasubi Royal Tombs gutted by fire” BBC News 17 th March 2020 . Retrieved
25 March 2021.
th
178
Katende. R.B. Kasubi burning: The untold story: The Independent March 30, 2010.
249
warning to those maligning his government and accusing it of being behind

the fire at the tombs. But this seems to have confused the natives the more as
to who actually torched the tombs. Most of them started to object the
president’s submissions.
On the 17th of March 2010, when the president visited the tombs, riots
sprung in Kampala and in Kasubi. The rioters were expressing their
dissatisfaction with the fact that the president was behind the whole issue.
Two people were shot dead by the security forces in trying to end the riot.
Majority sustained injuries others were arrested.179 In order to settle the
matter, the kingdom called upon the masses to end the demonstrations. A
commission of inquiry was set to investigate the fire outbreak which made a
report that was handed over to the government in March 2011 but as of April
2012 it had not been released to the public180. The government promised
funds to finance the reconstruction but it is not clear whether they were
delivered following Buganda construction of the tombs basing on the funds
raised through the famous “Ttofaali” a fund rising mission created by the
kingdoms prime minister.
Buganda’s relationship with the central government has been rising into
soures though it is silent; it remains in words among the natives. It can be
justified as to whether everything that occurs to Buganda is as a result of the
move by the central government but that has remained the saying due to the
conflict between the two majorly upheld by the natives of Buganda.
T H E K A B AK A 66 TH B IR TH D AY - C O F FIN C A KE D E B AC L E
For a period of over 28 years of his reign on the throne, Ronald Muwenda
Mutebi the king of Buganda had not missed out on any serious occasions of
the kingdom such as opening of Buganda Parliament (Lukiiko), coronation
Fire burns Kasubi Royal Tombs again. Thursday July 25 2013. Daily Monitor.
179
Lubwama, Siraje.(15th April 2012) “Lawyers sue government over Kasubi Tombs Fire.”
180
The Observer (Uganda) Retrieved 25th May 2021.
250
anniversary, general community cleaning, opening and closing of Masaza cup

and his birthday. Surprisingly, in March 2021, he was conspicuously absent
at the closure of the annual Masaza cup final an event that was at St Mays
Stadium Kitende.
He was represented by Katikiro Charles Peter Mayiga the kingdom premier

who remarked that he was not to turn up reason being he had an urgent
meeting with some visitors in Kenya. This increased the presumption that the
rumor going around on social media that the Buganda monarch is critically
ill might be true. The rumour had started in early September 2020 that the
king had been poisoned and rushed to Kenya for treatment.
Due to the pressure from the natives, the kingdom rushed and released photos
of the king with the president of Kenya Uhuru Kenyatta and former Prime
Minister Raila Omolo Odinga.
Previously, when he appeared for the opening of the Lukiiko and the Masaza
cup, the kabaka seemed not to be in a good condition. His facial skin had
lightened a bit-probably a small pointer to a skin complication. When
eventually he failed to light up as usual for the Masaza tournament closure,
the rumour of his ill health gained more attraction and some online bloggers
pronounced him dead something that put Buganda on Tenterhooks about
their king.
On April 13th, 2021 the Kabaka arrived for his birthday at Mengo Palace.
The occasion was graced by a few dignitaries including the vice president Mr.
Edward Kiwanuka Ssekandi, the state minister for higher education, Mr.
John Chrysestom Muyingo, Deputy Supreme Mufti Muhamood. This was
notably his 66th birthday but surprisingly, he was presented before the
Baganda in such a nasty health condition. Whoever saw him could draw one
conclusion of conspiracy theories by the central government. It was in no
doubt that the king Muwenda Mutebi was battling an ill health. He was
251
completely in bad shape health wise, something that raised uproar amongst
his subjects.181
Many of the natives started allegations that he had been poisoned by the
central government. 182 This was due to an audio of a woman identified as
Princess Sarah Ndagire claiming to be a sister of Bugandas king Ronald
Mutebi which shocked everyone. In this audio, she alleged that the king was
poisoned by the state with the help of Buganda Prime Minister Charles Peter
Mayiga. Following this, a lot of them were seen shading tears and others
blamed the “Katikiro” for being an ally of the central government working
towards the destruction of the kingdom which the prime minister rubbished.
In his defense, he informed the public that the king had been battling allergies
and was to get well. This was however rubbished by the populace who started
to demand for his resignation183.
181
Elijah Mutabuuza. Is the Kabaka Mutebi Ready to fly out of the country? Questions as
king appears at supermarket. available on https://www.timesuganda.
182
James Kabengwa. Stop Speculating about Kabakas health-Mengo. Daily Monitor.
Retrieved on 25th May 2021
183
The Bridge. Too many unanswered questions as Kabaka Appears in Public sick and frail.
April 14th 2021 by Sourced. Many started to throw postes infront of Mengo palace
demanding for the resignation of the Prime Minister Charles Peter Mayiga which he
declined.
252
T H E B IR TH D AY C O F F IN C AK E S A GA .
The dismaying appearance to his subjects was furthered by the controversies

around the cake that arose about its shape that was coffin like in nature and
its color as well. This cake raked mostly negative reviews on social media as
some complained about the color of choice which was deemed to have
political connotations. This cake was made in a rectangular shape with yellow
decorations something that left many commentators questioning about this
color choice. It painted a certain picture in the view of many that indeed it
was a political move.
In his defence about the cake, Kenneth Nsibambi the baker came out to
clarify on this cake amidst rising threats from the Baganda about this theorem
that had been adopted where he stated that he only followed the
specifications provided by the organizers. “It’s not the baker that decides on
the color and shape of the kabakas birthday cake. The Royal family does and
this time round that was the shape and color that was preferred. Sorry for all
those that have been negatively affected long live the king of Buganda.”184No
184
Nsibambi while explaining about the coffin like cake tainted with yellow.
253
one best understands why this was opted for though some speculate that it
was a political move adopted by the kingdom to insinuate violence.
Most of the Baganda raised eyebrows concerning their kabakas birthday cake.
They connected the dots to the already mysterious health whereabouts of
their ruler. They had taken long since they last saw the king in public and
when they finally set focus on him, he was in an ill condition that did not
attract attention. There were reports developed that the kabaka was in and
out for months treating throat cancer whereas other unconfirmed reports
suggested that he was poisoned.185
This had come in a period of political tension that was created by the 2021
general elections where NRM has won but with a defeat in Buganda. NRM
had lost most of the Parliamentary seats that saw NUP win in the great
divisions of Buganda. Misunderstandings had developed between NRM and
Buganda where most of the officials in the party were blaming their defeat to
the kingdom claiming that it had sidelined with NUP and religious leaders to
defeat NRM.
But nonetheless, this view cannot be undermined for Buganda has for long
demanded for its property that is in possession of the central government and
it had proven beyond doubt that the NRM government could not raise its
eyebrows to witness Buganda’s demands. Perhaps this underlines the untold
truth in NRM assertions.
It’s for this reason that the kingdom hides behind few oppositions’ political
parties in the struggle against Musevenis government in the view that upon
success, Buganda can revive and receive its property. When this fails, many
times Buganda continued to raise its voice to the elected MPs of Buganda
region to demand for its property and work on its demands.
185
Baron Kironde. I was ordered by the Kingdom. Kabaka Mutebis “CASKET” birthday
cake maker Nsibambi. “Makes some things clear” Grapevines Uganda News.
254
Because of this tension and internal feud between the kingdom and the
central government, many spectators of the birthday believed that perhaps
the kabaka might have been poisoned by the government as a move to weaken
the kingdom. The kingdom had gone through a lot ever since it started to raise
demand for its property. In 2009, there were riots that were spearheaded by
the central government where it deployed heavy security machinery to block
the kabaka and Katikiro from heading to Bugerere.
These riots led to loss of lives and destruction of property. Many Baganda
vowed not to support the central government for this seemed to be an insult
to the kabaka. In 2010, when the “Masiro” “kasubi tombs” were torched to
flames, the Baganda pointed this blame to the central government claiming
that it was responsible for this. Though the president warned about such
allegations, the Baganda were still not convinced.
Ideally, no one up to now can vehemently explain the reasoning behind the
presentation of the Buganda king for his birthday in such a condition. They
had demanded that the king should say something to the people having heard
rumours that went viral on social media that the kabaka had passed on. When
he was traced in Kenya, the royal family including the Katikiro alleged that he
had gone to Kenya to meet the president Kenyatta over certain matters.
Reports from unclear sources stated that he had been taken for treatment.
Thus, one can arguably conclude that the clashes between the central
government and mengo administration may not cease due to the increased
differences between the two factions despite the continuous call for unity
among them. The Baganda seem to be serious on the matter of achieving
federalism in Uganda which idea does not manifest in the programs of NRM
government. It is now clear that the kingdom cannot be separated from
politics as it eyes the Buganda politicians as its own way for achieving
federalism.
255
T H E F E DE R O Q U E S TI ON O F B U G AN D A
Federal is a system of governance. It is not about getting rid of the Central

Government. It is not about party politics. It is not about multi-partism or
absence of it. It is not about religious differences. It is not about tribalism. It
is not for the benefit of Buganda alone. It is not about monarchism. It is not
about land or dispossessing people from land. It is not about supremacy of
one region over another or others
Federalism is about providing more prosperity, more wealth, more feeling of

belonging and participation in governance by marginalized and non-
marginalized people. The Federal system of government minimises
possibilities of waging war against the Central Government. It minimises
internal acts of terrorism and discontent against the Central Government.
It has inbuilt safeguards that ensure uniform growth for all the regions of the
country, and additional measures to make sure that marginalized or less
developed regions of the country can catch up, through the system of
equalisation grants and affirmative action programmes. These ensure that
regions with greater income and development contribute a pre-agreed
percentage of their earnings to the development of areas, which may be less
developed.
It should be noted that Federalism, though different from

Decentralisation, does not contradict or exclude Decentralisation. The two
systems can and should co-exist and complement each other, at the regional
level. Advocating federal does not mean or seek to get rid of decentralisation
from the regional tier. Nor does it mean getting rid of District MPs, LCs
leaders or other local government officials.
D I ST IN G U I SH IN G F E D ER O F R O M F E DE R A LI SM
The words federal and federalism are not synonymous. Federalism as

understood in political science is a system of governance in which powerand
256
responsibilities are divided between the central government and the various
regional governments that comprise the sovereign state.186 Under this system
of governance, the regional governments are not merely regional
representatives of the federal government, but they exercise independent
Buganda has been unrelenting in its quest for federo, which essentially
amounts to a demand for greater autonomy in order to run its own affairs,
free from the over-challenging control of the central government and
although some regimes have tended to suffocate this demand, it has
persistently resurfaced.187
Essentially speaking, it’s a challenge to front federal arrangements in Uganda

before 1894, the underlying idea here is that during those times, there were a
variety of kingdoms in the territory in essence with each having its own right
independent of the other kingdoms. But it’s rooted from the British colonial
policy of indirect rule. Under this system of governance, the British could use
Buganda local chiefs in particular and Buganda kingdom at large to
administer other regions. This was so because Buganda had a well-organized
structure. In return for its collaboration with the imperialists in extending
their rule, Buganda was to be awarded handsomely by the British. Britain thus
rewarded Buganda by allowing it to retain its significant degree of self-
governance from the 1900 Buganda agreement to 1962 independence
Constitution.188
Perhaps the easiest way to understand and to explain the Federal system of
governance is to set out the most commonly asked questions and
misconceptions about the System. Responding to these questions and
concerns will effectively clarify why the people of Buganda and the people of
Uganda generally desire a federal system of Government.
186
Federalism is a concept derived from a Latin word foedus meaning ‘pact’, ‘covenant’ or ‘agreement.’
187
Naluwairo, N & Bakayana, I. Bugandas Quest for federo and the right to self-
determination. A Reassessment. HURIPEC Working Paper No17 of 2007
188
GoU:2003
257
It is important to answer these questions by referring to our history and

experience with the Federal System of government in order to ensure that we
learn from our past mistakes.
In the most basic sense, "Federalism" is a national system of governance in a

country with one Central Government for the entire country and several
regional governments.
The Central Government has control over national matters like defence,
citizenship, foreign relations, telecommunication, electricity, inter-region
highways, dams, rail networks, airports, national monuments and natural
resources and other such overall national policies.
The regional governments take care of regional matters in the particular

regions like schools, health services, feeder roads, culture, land, local services,
local government, local development plans, local economic policy etc.
The primary philosophy under this system is that it is the people in the
various regions of the country who are best suited to determine affairs of that
region. The regional governments are given autonomy to decide their
regional affairs themselves on the terms that best suit them.
From the very foundation of the Country, Uganda was a federation of the
Kingdom states of Ankole, Buganda, Bunyoro, Toro, the Territory of Busoga
and the other non-kingdom states that make up the rest of Uganda.
Each of the Kingdom States entered into an independent Protection

Agreement with the British Colonial Government to give up their
respective independence and join a new federal state known as
Uganda, on terms spelt out in the respective Protection Agreements. In the
case of Buganda, this was under the 1900 Buganda Agreement.
It was under these Agreements that the very diverse and culturally different
peoples in Uganda came together as one nation known as Uganda.
258
The relationship between the various kingdoms and the colonial government,
under these arrangements, each kingdom state remained in the Union of
Uganda upon the terms and conditions set out in its particular agreement.
The powers and duties of the respective states, as well as the powers and duties
of the Colonial Central Government were properly addressed in these
Agreements and the two institutions worked well together.
This arrangement continued throughout the colonial times until the

Protection Agreements expired on 8th October 1962, at independence.
Even at Independence, both the British Government as well as the pre-

Independence Ugandan leaders recognised that it was important for the
people of Uganda as a whole to continue being together as one nation group
known as Uganda that can meaningfully pursue national objectives and
aspirations on the world stage.
But at the same time, they also realised the inevitable truism: that the people
who made up this nation-state of Uganda were people from different cultural
and historical backgrounds, with varying cultural and social needs,
aspirations and traditions.
Amidst these differences, a compromise position emerged, at the Lancaster

Conference, in the form of a Federal System of Government. This Federal
System permitted the various Kingdoms and non-kingdom states to continue
following their traditional ways of life and fulfil their cultural and social
obligations and aspirations, within the umbrella system of one nation that
pursued national objectives and goals. After 1955, the Kabaka became a non-
political monarch.
At independence, the system of Government, arrived at by agreement of all

parts of Uganda, was embodied in a document known as the 1962
Constitution. During the colonial period, Uganda had organised into various
Kingdom States and districts of peoples with relatively homogeneous ethnic
backgrounds. The philosophy was that people should be grouped together
259
into viable regional units, with each unit being made up of people who shared
the same traditions, history, language, culture and traditional beliefs.
In the case of non–Kingdom state areas of Uganda, the system of

Administration divided the nation into large district groups, with each
district large enough to encompass whole ethnic groups with the above
characteristics. There were very few exceptions to this general rule.
The colonial districts were much larger and more economically viable units
than the current fragmented mostly unviable districts. Many of these colonial
districts were governed directly from the center and did not benefit from the
federal system. Although these areas were negatively impacted by being
administered from the center, the colonial government mitigated their lack of
benefits of full Federal by grouping and administering them through "quasi
federal", large and economically viable regional blocks named Northern
Region, Eastern Region and Western Region.
How federal regions administer During the colonial period, the various states
and districts were administered through their traditional leaders and cultural
institutions where these existed. For example, under the 1900 Buganda
Agreement, the Kingdom of Buganda remained a Kingdom as a whole, and
was administered through the Kabaka (King), the Katikkiro (Prime Minister),
the Abakungu (Ministers), the Lukiiko (Parliament), and the local
government administrative structure from the Masaza to Batongole. Similar
arrangements worked with the rest of Uganda.
Under the 1962 Constitution, a semi-federal system of government was

recommended by the Munster Commission and under its recommendation,
Buganda was the only federal kingdom and other kingdoms or areas such as
Busoga were granted a semi-federal status.189Thus under such format of
administration, Buganda enjoyed distinct powers from other regions. These
among others included the power or mandate to rise own tax revenue, pass
laws on specified subjects, enjoy entrenched protection for land tenure and
189
Article 2 f the 1962 Independence Constitution.
260
its local courts. However, this Constitution is blamed for not laying out a
clear frame work on which other semi-federal areas were to operate as the case
was with Buganda.
Thus, the political debate surrounding federalism colloquially referred to as

federo in Buganda has been one of the fiercest in Uganda, stretching from the
period of British Colonialism into and through the post-independence
regimes and continuing even now.190 At the height of colonialism, semi-
federal status of administration was left in their colony Uganda. This was to
last from 1962 to 1967 when the then prime-minister Dr Apollo Milton
Obote overturned the independence Constitutional grounds and overthrow
the president and the 1967 Constitution placing excessive powers into
executive with him as the executive president.
While Obote made a number of political mistakes during his rule, his ruthless
attack on the Lubiri royal compound that led to Kabaka Muteesa IIs exile in
Britain was not only the height of political miscalculation, but also heralded
an era of incessant political conflict between the central government and the
kingdom of Buganda.191 It’s in no doubt that the kingdom was granted and
recognized by the quasi federal 1962 Constitution. Thus, its demand and
agitation for federalism is not linked on a bare ground of baseless argument
but a constitutional establishment as of 1962.
This federal and semi-federal arrangement was maintained by the 1962

constitution. The way the ideas of Federalisim of Government in Uganda
started to tanish. In 1966, the Kabaka’s palace was invaded by the Central
Government and the Kabaka was forced into exile. Uganda’s federal system
was unilaterally abolished in contravention of the pre-agreed 1962
Constitution. This was done without any consultation or consent of the
people of Uganda.
190
Yasin Olum. The Federal question in Uganda. Friedrich-Ebert-Stiftung.
191
Ibid
261
In 1967, a new constitution was put in place that abolished federal

arrangements all over Uganda. This Constitution also unilaterally abolished
the institutions of traditional and cultural leaders in Uganda.
Various reasons can be advanced for the forceful overthrow of the system,
but the most important one was simply the clash between the two leaders of
the time.
Evidence of the fact that it was this clash and not the failure of the Federal
System, can be found in the speech made by Prime Minister Milton Obote to
the National Parliament on 30th June, 1966. This speech is reported in the
Parliamentary Debates (Hansard), 1st Session, 1966-67, 2nd Series, volume 63,
from pages 529 onwards. At page 534, Hansard reports, in Obote’s own
words that "the cause of the trouble is the ambitions of Sir Edward
Muteesa and nothing more".
Furthermore, although Obote invaded the Palace in 1966, when he

introduced his pigeonhole Constitution in April 1966, he did not, under that
Constitution, abolish the Federal system of government for Uganda. Instead,
he engaged in dialogue with the Buganda leadership to find out whether they
would install another prince as the Kabaka.
It was only after Buganda refused to have any other Kabaka but Mutesa II,
that Obote decided in May 1967 (over a year later), to abolish the federal
system and to rule the whole country from the centre. This he did by
introducing the 1967 Constitution, under which re renamed Uganda a
Republic.
The clash between the two leaders was exacerbated by the problems
inevitably caused when a new position of Head of State (a political role) was
created in 1964. A king, who was the head of his own regional Kingdom,
occupied this new contradictory position of the national Head of State.
The merger of traditional leadership of a Kingdom and political leadership of

the whole Nation, led to an inevitable clash between the two institutions, as
262
well as between the President and Prime Minister. Lessons must obviously be
drawn from this experience.
The Federal system that had worked well throughout the colonial period and
in the early years after independence thus came to an end.
From that overthrow of the Federal system, Uganda as a nation state began its
journey of steady decline for over two decades, with unprecedented terror,
tyranny, lawlessness, infamy and rogue-state status around the world.
The National Resistance Movement resolved to fight this tyranny and went
to the bush to return peace, democracy and prosperity to Uganda. This
liberation war was fully and actively supported by the Kabaka and the people
of Buganda, as well as very many people elsewhere in the Country. Many, in
Luwero and elsewhere, lost their lives for this cause.
Upon coming to power in 1986, the government adopted a system of local

government that was much made fundamental in 1997 with the adoption of
local government Act. This was rooted in the principle of democracy that the
NRA forces adopted in the 10 points programmes. This was first adopted
through the RCs and later turned into local governments. After his swearing
in, Museveni embarked on a number of populist reforms as enshrined in the
NRM ten points programme. One can argue that one of the fundamental
policies was the grassroot structure known as the participant structure
(Resistance Councils) (RCs). This was intended to motivate and encourage
participation of the people in administration.
These Resistance Councils were hierarchical in nature ranking from RC5,

RC4, RC3, RC2 and RC1. These were later turned into local councils (LCs)
in 1993. This saw RC1 forming the village Council, Parish Council (RC2),
Sub County Council (RC3), County Council (RC4) and District Council
(RC5). These were later to influence democratic ideas in Uganda as well as
rebuilding trust in the young NRM government. They were ideally a gear
towards the achievement of a fundamental change.
263
The critical point of observance is that members of the village councils were
directly elected by citizens at the grassroot levels while those in other councils
indirectly elected.192 It reduced doubt and attracted applause from the
international community that praised Museveni and his war comrades. He
was at one time ranked among the new breed of African leaders by US
Secretary of State Madeline Albright.193 The adoption of RCs increased a
reflection of hope for the future. They were a mirror indeed and helped to
rebuild the administrative structure of the collapsed state as they provided
democratic climate for the citizens to actively participate in public decision
making.194 Thus the populist reform that followed this was the adoption of
decentralization of power to local governments, election of people’s
representatives to the national legislature, affirmative action for women and
the other categories of marginalized groups. These have indeed remained in
existence being protected and availed to them by the Constitution.195
But to Mengo establishment, this system was intended to blind fold the eyes
of the masses with a federal status where power was decentralized from the
central government to local governments. But unfortunately, the system was
not completely left to accelerate as it was meant to live. The central
government continuously exercised excessive powers and the system was
infiltrated by politics from the central government thus becoming a failure.
In early 2000, the restoration of the cultural leaders and traditional

institutions had been partially achieved with mass support to the regime from
the populace. The activities of these kingdoms had been hanged by Obote in
1966 thus their affairs filled with cobweb. Upon their reinstoration, majority
of them were dusted off and in the blink of an eye, the agitation of their
independence authority and privileges formed the bulletin headlines. Mostly
192
Villadsen and Lubanga (1996).
193
William Muhumuza. From Fundamental Change to No Change. NRM and
Democratization in Uganda 2009.
194
Ddungu (1989)
195
Article 32,33 and 34 of the 1995 Constitution of the Republic of Uganda.
264
among these was Buganda. With its influence and contribution towards
Uganda’s independence and NRAs retaining of power, Buganda felt like it
had not been awarded well without federalism.
The pursuit for this federal status topped the list for its demands after
reinstoration. Thus the relationship between the central government under
President Yoweri Museveni’s National Resistance Movement (NRM) and
the Mengo establishment led by Ronald Muwenda Mutebi, attested to the
gravity of the political sensitivity and impasse over federalism. The worst
aspect of the inability to resolve the federo question has been the manner in
which different individuals and groups have taken advantage of the impasse
to gain political advantage by either agitating for or against it. Thus, leaving
it in abeyance and volatile.
Museveni once remarked, “The NRM government would not grant

federalism to any part of Uganda, and parliament should consider a bill on
traditional rulers that would prohibit traditional leaders from engaging in
active and partisan politics and to pass it before the general elections
scheduled for February 2001.”196 Apart from political and other interests,
nothing could block the desire for federalism. According to a Constitutional
amending process survey of 1993- 1994, 65 percent of the general populace
in their response to the Constitutional Review Commission (CRC) had an
affirmative stand on the adoption of Federalism.197 To worsen this, in
Buganda, 95 percent of them were in favour of federalism. Further a
Constitutional Review Report of 1993 stated that 3770 memoranda
submitted in support of federalism and 2002 in support of a unitary
system.198 Regardless of this, despite their majority position and stand, the
NRA government ignored their views and argued that Ugandans that fronted
196
Sunday Vision 7, Sept 2009
197
Constitutional Review Commission Report 2005
198
The Constitutional Review Commission under the chairmanship of Professor Fredrick
Ssempebwa, was charged with reviewing the Constitution.
265
federalism were only to attain it through decentralization. Thus the 1995

Constitution was to exhibit decentralization than federalism under Chapter
eleven starting with Article 176 of the Constitution. This provision states in
part that, “subject to Article 178, the system of local government in Uganda
shall be based on the district as a unit under which there shall be such local
governments and administrative units as Parliament may, by law
prescribe.”199 This was to be harmonized with Article 5 which provided for
the various regions of Uganda including Districts and lastly the government
restored the kingdoms as constitutional monarchs and cultural institutions
through the Traditional Rulers Restitution of Assets and Properties Act
which did not resolve the question of federalism.
In 2001, an editorial was published with contained views of the Lukiiko

about federalism and its steps towards achievement which in part read. “The
Buganda Lukiiko [Parliament] is going to petition the Constitutional Review
Commission to adopt a federal system for the whole country. The Lukiikos
stand is just a variation of its long-running for Buganda to be granted a federal
status, as was the 1962 Constitution. The lobby has now realized that the
Buganda alone approach cannot work and is looking to disguise their self-
centered aspirations in a supposedly wider setting. Nobody should be
deceived, for these individuals have not suddenly become magnanimous. For
a start, no other region or group is advocating for federal structure, partly
because they view it as a ploy for supremacy by individuals purporting to
represent a community and also because historically reality has shown it not
to be viable. The federal advocates argue that their system would take power
and resources down to the grassroots. On the contrary, the federal
government in Uganda context would actually be centralizing authority and
resources in Buganda’s case, these would go to the Lukiiko and its acolytes.”200
A similar editorial on federalism was published and released in the daily
monitor of September 2001 which noted that;
199
1995 Constitution of Republic of Uganda as amended.
200
Old Flawed Argument, New Vision, 26. September 2001.
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The demand for federo is gathering steam again as the Constitutional Review
Commission (CRC) continues to work on what now looks set to be radical
proposals to amend the 1995 Constitution. Buganda’s unrelenting pursuit
for federo is ironic and instructive in many ways. Nationwide, the idea of
federo doesn’t have a lot of support, although attitudes are changing in favor
of it in parts of the north that have nothing but war and poverty over the last
15 years. Part of Buganda’s agitation for federo is born out of a sense of
betrayal. Buganda feels that it paid the highest price for the rise of President
Yoweri Museveni and the movement to power but the region has not
benefited much in the post 1986 period.”201
Thus, in a bid to check on this, NRM decided to adopt the divide and rule
system. Under this system the government continued to create and enthrone
cultural leaders that never have existed and empowered them by greatly
rallying behind them. In a much clearer example was the instauration of Baker
Kimezze as a king of the Banyara. This group of persons was under the control
of Buganda kingdom in Bugerere a county of Buganda in Kayunga district.
Lt Baker Kimezze was elected as a leader to replace his father Nathan Mpagi
who had died of diabetic complications a day after his coronation ceremony
was called off over disagreements on his lineage. 202
This was objected to by the Mengo government and in 2009; the unfortunate
incident of the kabaka visit to Bugerere that saw a three-day riot was a
manifest expression of the central government’s intention of reducing
Buganda’s strength as a mechanism of weakening it. This was after the central
government insisted that the Banyara a small ethnic group living in Kayunga,
be consulted by the mengo establishment before the visit. The Mengo
establishment leaders saw the emergence of the Banyara within Buganda as a
creation of the central government intended to cause division amongst people
“Buganda Cannot Get Federal.” Daily Monitor 26 sept 2001

201
Charles Jjuuko. Buganda: Banyala Choose Army officer as King. New Vision 12, August
202
2008.
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who had lived peacefully in Buganda and owed allegiance to the kabaka. In a
furthered argument, Buganda stated that the NRM government sought to
weaken the kingdom by fragmenting it into smaller geographical entities,
which in the long run could have deleterious effects on the demand for
federalism. A continuous form of physical and cold engagements for
federalism between the kingdom and central government have been
witnessed including the support of opposition candidates in general elections
by Buganda kingdom as a mechanism of adopting federalism which fulfills its
intentions. Thus, the kingdom has continuously fought a spirited tussle with
Musevenis government demonstrating its resilience to stand the heat of
controversy without flip flopping and reneging on its alliances in the face of
state resistance.
Would the Federal System of Government work in Uganda?
Yes. It must be recognised that Uganda is made up various different groups

of people with diverse backgrounds and cultures. We must also acknowledge
a reality that the majority of our people are rural and unsophisticated. They
live and practice their traditional ways of life.
It must also be acknowledged that, just like in the United States, different
regions of Uganda have different problems. For example, the people of Soroti
District have to contend with violent cattle rustling which results in terrible
loss of life and property. Those in Gulu live under fear of frequent rebel raids.
Eastern Uganda has had droughts. Karamoja and parts of Ankole badly need
valley dams, Hoima has no tarmac roads while Kalangala wants a reliable
ferry. The list of unique local needs and priorities that are often ignored by
the centre, is endless.
The people in Soroti feel that cattle rustling is their priority problem, yet
those in Gulu believe the rebel war is the most important thing. The decision
makers in Kampala may not know how to solve these problems and may not
see these problems as priority matters.
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The people in these regions need to be given an opportunity to decide on their

priorities.
The will of the people on the question of the federal system of Government
was tested by the Odoki Constitutional Commission. The results of the
views collected by that Commission showed that the Federal System of
Government was very popular not only in Buganda, but also in Uganda as a
whole.
Sixty Five Percent (65%) of the all the people of Uganda and Ninety
Seven Percent (97%) of the people of Buganda wanted this system of
Government.
The investigations, research and interviews carried out by the Buganda

Constitutional Commission have confirmed that the views of the people of
Buganda and Uganda on this matter have not changed.
The 1995 Constitution of Uganda instead introduced another system of

Government known as Decentralisation. Under this system, Uganda is
currently divided into 56 small districts, some with only a few thousand
people.
Decentralization: Under a Decentralised system of government, functions,

power and responsibility is delegated to lower units. The delegated power or
responsibility can be unilaterally un-delegated any time, either by
administrative directive or by amendment of the laws or even of the
Constitution itself.
The delegation and its extent are at the discretion of the Central Government
and institutions of the day. In other words, the local governments and
districts are really just agents of the Central Government. Under this system
the delegated powers can be taken away anytime.
Federalism: The Federal system of government is a binding

contract between the Central Government and the Federal states. Under
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that agreement, the parties agree on the extent of sharing responsibilities,

powers, functions and resources. This agreement cannot be changed by one
party without the consent of the other affected parties.
Under Federalism, decisions that affect particular regions are made at

regional level by the particular region affected. The Central Government
makes decisions that affect the entire country. This is not an agency
relationship. Decisions affecting a region are decided upon directly by the
people of that region (and not the Central Government).
In the Decentralised model, decisions are made by the Central Government

and accountability is to the Central Government.
Under the Federal arrangements, the decision-making process of day-to-day

affairs that affect a particular region are made locally in that region, and
regional accountability is to the people of that region.
Funds or percentages of funds to which a federal state is entitled or which the

Central Government is bound to give the Federal state are pre-determined
and cannot be unilaterally changed. So are methods of raising revenue.
Is the federal system better than the Decentralisation system?
Yes. The Federal system between the Central Government and regional
governments has numerous advantages over the current system of
decentralisation. Decentralisation works well from the regional level
downwards. However, it does not work effectively from the national or
Central Government level to the village level.
The Uganda Decentralisation system is based on tiny un-viable political

units. The district system is not a viable political, economic or social unit. It
is too small to be capable of making useful strides in national development.
This is over – decentralisation. Decentralisation should start at a regional
level.
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Today, Uganda has 56 districts, each with its own policies and administrative
structures. But can the district of Kalangala for example, set up a university?
Can Moroto district set up a regional referral hospital? Can a small unit like
a district build an effective road? Any single district may not be able to
mobilise the funding or manpower to undertake such necessary but large
projects. Yet the Central Government cannot do all these things effectively
for all the regions in Uganda.
The Federal system of Government proposes viable regional blocks, that

consist of several districts where people of the same or similar problems,
cultures, languages and traditional ways of life can devise regional strategies
to solve regional problems. A region of districts with similar aspirations has
the capacity to undertake such development projects within the region.
It is this kind of co-operation that is likely to lead to regional universities,

regional road systems, and regional policies on matters like health, education,
agriculture and economic development plans. After these regional plans and
policies have been developed, then decentralisation can be applied at the
regional level to implement them.
A federal system of government allows the people to share with the central
government the responsibility of planning, executing and reviewing
development proposals. Under the decentralisation system, all planning, and
budgeting is the responsibility of the Central Government and accountability
goes to the Central Government. For example, under the current
Decentralised system, the people of West Nile region do not participate in the
decision-making process of the Ministry of Finance. The Minister of Finance,
sitting in Kampala, will dictate to the people of West Nile Region how much
money they will get in Financial Year X, and how they are going to spend it,
and they must account for it to him.
Under the Federal model, the regions themselves decide these affairs. The
Federal model brings the decision-making process closer to the people.
Supposing the people of West Nile region produce tobacco worth Shs. 90
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billion a year. All this money goes to the Central Government. Then the
Central Government, sitting in Kampala, not only decides that Shs. 15 billion
should go back to West Nile, but also decides on how it should be spent. How
can a minister, and his bureaucrats, sitting in Kampala realistically know what
the people in West Nile actually want? Is it a surprise that in the year 2001,
West Nile region does not have electricity? Without electricity, how is it
expected to build factories and industries so that it can create employment
and generate wealth?
In this example, the decentralisation system is flawed on two fronts. First, it

depends on the whim of the minister in Kampala, whether this year they will
get back, Shs. 2, 5, or 10 billion, irrespective of what they produce. Under the
federal arrangement, the people will be entitled to a minimum pre-agreed
percentage, which will then be topped up by the equalisation grants discussed
below.
The second flaw with decentralisation is that the Central Government

decides what this money should be used on. If the people of West Nile had
been allowed to decide on the priority of their expenditure, they would now
probably have electricity and factories. West Nile is but one example of what
is true to most of Uganda’s regions. The Central Government is too far
removed from the villages to be able to make effective and proper decisions
for every corner of the country on how money should be spent. The regional
governments under the federal system are closer to the people and can make
more informed judgments.
Under decentralisation, virtually all appointments to regional jobs (apart

from locally elected representatives) are made in Kampala. Under the Federal
system appointments are made locally by the region, giving a chance to local
people to serve their regions, and accountability is done by local people to the
local region itself. This has potential for reducing corruption.
The Federal system of Government devolves seats of power and brings them
closer to the people and minimises undue dependence on the Central
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Government for every aspect of development. Since the abolition of the

Federal system of government in Uganda, the country has been engaged in
constant struggles for power. In a space of only 40 years, we have had no less
than six violent overthrows of governments and endless wars. This is because
the only seat of power in the country is in Kampala. We have also seen politics
of cronyism, with changing regimes and leaders surrounded by "yes men"
seeking political favours. Under the Federal model, some of the power base
will shift to regional levels and is likely to reduce on the pressures our history
has shown of people fighting for power and jobs in the Central Government.
Professor Ali Mazrui, in his presentation, "The Nation" in February 1998,

argues strongly that the federal system of government is a solution to ethnic
problems of African countries and its denial has caused plenty of bloodshed.
He writes:
"What has been remarkable since independence has been, loosely, Africa’s
reluctance to seriously consider federal as a solution to its tumultuous ethnic
upheavals…. Indeed, Africa worked itself up into a condition of acute
psychological denial. Loyalty to tribe was regarded as political pathology …
ignoring the salience of ethnic loyalties has cost Africa three to four million lives
in civil conflicts since independence. On the other hand, some of the countries
which have attempted to make concessions to those loyalties have reduced risks."
Big federal regional blocks have a stabilising and balancing influence over a
potentially despotic Central Government. Constitutional review should not
be based on personalities or the government of the day. The fact that
government today may be occupied by decent leadership should not blind us
to the fact that some day there may be a possibility of a corrupt or despotic
leadership or a decidedly anti-people dictator. This is what we should guard
against. We neither should wait for this to happen and then act nor should
we be amending the Constitution every five years. We should give it staying
power. A federal arrangement is one way of ensuring this.
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Unlike the system of fragmented decentralisation, the regional Federal system

of government takes advantage of the social and cultural factors that bring
people together in particular regions of the country to achieve uniform
regional development. Recognising these systems and taking advantage of
them can lead to national development more effectively and efficiently on a
regional basis than can the arbitrary unviable district units set up under
decentralisation.
The Federal System can be compared to the growth of radio in Uganda. For
several decades, Radio Uganda was the only radio station in the Country. As
is usually the case in Uganda when something new is suggested, "stakeholders"
in the status quo and among prophets of doom loudly expressed fears that
private radio stations would jeopardise national security and even aid and abet
coup plotters! At the same time, many Ugandans often complained that
issues they cared about were not adequately covered by Radio Uganda. Many
longed-for programmes in their local languages.
Since the advent of FM Stations in late 1992, there has never been a coup or
the threat of one. Instead, FM stations have helped the different peoples of
Uganda to have their unique cultures to be handled in their own languages
and in their own regions. That helps explain the tremendous growth and
popularity of FM Stations around the country (now over 40).
Federalism is like the FM stations, where today virtually each area has an FM
station in its local language. Everyone is happy in diversity and plenty.
Federalism lends stability to the central government: Previously, a coup

plotter, who only had to take over Radio Uganda in order to take over
government, would now find it very difficult to convince each one of the
forty FM stations to carry his message. The same goes for convincing all
regional governments to lend support in case of a coup attempt.
The Federal system allows the various people of Uganda to celebrate their
diversity under a united Government. The various ethnic groups in Uganda
each have their unique customs and traditions. A sound nation and society
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can only be built on the preservation of our respective cultures, instead of

eroding them, and leaving a vacuum. Regional federation of similar people of
Uganda will advance our cultural heritage and will take advantage of our
traditional systems of government and cultures to achieve development. This
will enable us to develop our history, languages, regional identities, morality,
traditions, and character among our people.
Buganda doesn’t want to return to the 1962 Federal system A Federal system
has to be based upon the peculiar, social and economic circumstances
pertaining to the particular country. The times and development of the
societies also make a difference. A federal system that was suitable in 1962
certainly needs modifications to make it work in the year 2000. This is
because every federal system has to be adjusted to meet the times. Other
countries do this by periodic amendment of the Constitution, but the
amendment has to be agreed upon by all the affected parties.
An example of necessary amendments to the 1962 Federal Arrangement is the

scope of its application. Under the 1962 arrangement, federal status was only
granted to the Kingdom states of Uganda and even these kingdoms had
varying federal rights. The rest of Uganda had a unitary system. This was a
recipe for envy, possible hatred and created an imbalance that cannot be
sustained today. Every region in Uganda should have the right to pursue
federal status and every federal region of Uganda should enjoy the same rights
and privileges as the other federal regions in the country.
A federal system of government should divide the country into regions, with
the division taking into account the principle that people of the same or
similar traditions, cultures, languages and ways of life are put together to take
into account and take advantage of their traditional systems of leadership,
mobilisation and way of life for development. In the case of the people of
Buganda, the districts of Buganda would form the federal Kingdom of
Buganda under a non- political Kabaka.
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In regions where a Federal system of government based upon similar

languages, cultures and traditions is not feasible, the people of those regions
should be free to come up with their own federal system of governance in
accordance to their needs and circumstances.
Buganda objects to the Charter and Charter arrangements because

they are just an extension to the ineffective decentralised system.
Because we believe that the federal arrangement is the best way for all parts of
Uganda to develop, all of Uganda should be governed under a federal
arrangement. In the event that a region does not desire federal status or desires
a unitary system of government with the Central Government, that region
should have the right to pursue that unitary system for itself, while the rest of
the country that desires federal arrangements can pursue such federal
arrangements. This is an accepted practice. Some federal and quasi-federal
states in the world have this type of system. For example, the United Kingdom
has a unitary system over all areas of England yet at the same time, it has
devolved a semi-federal system to the people of Scotland, Wales and Northern
Ireland, who on the basis of their ethnic differences desire to have self
governance, yet at the same time are part of the United Kingdom. India too
has some areas (e.g., Jamur and Kashmir) administered directly by the Central
Government under a unitary system within the federal arrangement for the
rest of the country and this has worked well.
This compromise was also reflected in the Munster Commission of 1961

that recommended Federal government for parts of Uganda and a unitary
system for the other regions, which recommendation was taken up in
the 1962 Constitution.
This scenario would be different from the 1962 situation in that we propose
that provisions would be made in the Constitution to permit areas which do
not immediately opt for the federal system to join at anytime. Unlike under
the 1962 Constitution, they would not be locked out forever.
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Traditional leaders under any federal system would be non-political and

would not exercise executive authority in the region. In the case of Buganda,
the Kabaka of Buganda would be a constitutional monarch over the people
of Buganda.
There would be national parliament and executive that would establish

national legislative and executive policy for the country. But the Federal
regions would also establish federal legislative and executive units to legislate,
implement and decide on regional matters affecting each particular region.
Like in all countries where the Federal system of government prevails, the
rights of the Federal States should be entrenched in both Federal and
National constitutions, with sufficient safeguards requiring a consensus of
two-third’s majority in the federal and national assemblies before any
alteration of these rights can be done.
Doesn’t the federal system of government make some productive regions

richer and prosperous, while leaving others backward?
No. Federalism is supposed to achieve quite the opposite. Under a federal

system, the more prosperous regions give part of their incomes to the other
regions, so that a more balanced development of the whole country can
ensue.
Under the federal system, taxes collected in the various federal regions of the
country would be divided into three proportions. For example, 30% could be
given to the Federal state to address the needs of the Federal Region, 30%
could go the Central Government to take care of the Federal Government’s
responsibilities, and 40% could go the equalisation grants fund.
In almost every country where a federal system of government exists, there is

a system of "equalisation grants" to address regional imbalance. These
grants are given by the Central Government and onward to regions of
Uganda that are behind other regions. For example, today, if Uganda was
277
divided into federal regions, some regions would be more advanced than
other regions. The Central Government would then give the equalisation
grants collected from all the regions to the less developed regions to ensure
more balanced development.
The equalisation grants are also intended to be given to regions to make the
responsibilities of the region commensurate to the funds given.
The concept of equalisation grants in Uganda is neither unfair nor new. It is

already being used by the Central Government today.
Recognising different traditions and cultures does not mean that people are
being divided along tribal lines. It is simply recognising the rich variety of
cultures and traditions in a society. Every Ugandan should be free to live,
work or settle anywhere in Uganda, under the federal system.
As a celebrated scholar noted:
"Africa has cornered itself into rejecting ethnicity as an organising concept in

the process of nation-building. The challenge then is whether it is possible to
reverse the mindset, so that ethnic groups which are African realities, could be
seen in reverse light as resources or building blocks that can provide a sound
foundation for a sustainable political and socio-economic development from
within."
For example, the national parliament of Uganda is composed of

representatives of different regions. While each representative is there to
represent and advance the views of that individual’s particular constituency,
all representatives together represent the whole nation of Uganda. It cannot
be said that the parliamentarians are sectarian because they represent
individual possibly ethnic constituencies.
Another example can be drawn from the Baganda clans: The Baganda are
divided into fifty-two clans. Each clan is different from the other fifty-one. It
has different customs, different taboos, different names, different leadership
278
and different ancestral grounds and origin. These divisions can be

misunderstood to mean that the Baganda are a divided people. Every year
these different clans engage in fierce competition against each other in areas
of sports, social and traditional duties to the Kingdom. Their differences and
these competitions do not divide them. Rather it makes them appreciate their
diversity. The reality is that just because people like their clan, does not mean
that they do not like their being Baganda. It is the combination of these
various clans that forms the people known as Baganda. Similarly, an Acholi is
entitled to be proud of his heritage. That should not make him less Ugandan.
The ability to attain one’s cultural and traditional aspirations within a nation
is the ultimate goal. Similarly, the appreciation of one’s culture does not make
the person like his nationality any less. In fact, like the clan example above, it
makes him like it more.
The United Kingdom of Great Britain is made up of three major ethnic

groups: the English, the Scots and the Welsh. The country is virtually divided
into regions based on these ethnic groups. Nevertheless, it would be an unfair
criticism to call this tribalism. The Scots love their heritage, but they also love
to be part of the United Kingdom, as do the English and Welsh.
Does Federalism mean "Obugabe-ism" in Ankole?
Federalism should not be confused with Monarchism. The people of Ankole

would get to choose the type of federal arrangements that would work well in
Ankole.
This would not only be true for Ankole alone, but for the whole of Uganda,
including Buganda.
What about people of different cultures who live or work in areas

where one culture is dominant?
The interests of these people would be catered for. Whereas preservation of

various cultures is a primary consideration, the rights of such people must be
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respected and protected by the regional constitutions. This in Uganda is not

an issue, especially in Buganda. Buganda believes and has always believed in
the full participation of all people within the region. For example, even in the
1960’s Buganda elected several non–Baganda to represent it in National
Assembly. Examples include: Edward Simpson (an English man), Dr.
Kununka (a Munyoro), Daudi Ochieng (an Acholi), Mrs. Visram (an Asian
also known as Namubiru) and many more. Even in the current Parliament,
Buganda is one of the few regions represented by people who are not
ethnically of that region.
After 1993, Buganda Government started some schools, including Lubiri

Secondary School located right in Kabaka’s Palace. None of these schools are
exclusively attended by Baganda children. Over 30% of the current enrolment
are non-Baganda children from within and outside Buganda. The Kabaka
Foundation, an educational fund, contributed to mostly by people from
Buganda, is currently giving education scholarships for students in Buganda,
over 27% of whom are non-Baganda. The Buganda Land Board, which
administers the land returned to the Kabaka in 1993, has granted several leases
on this land to various Ugandans, regardless of their ethnic backgrounds. As
a matter of fact, 40% of the leases granted by the Land Board on Kabaka’s
returned land in the Kampala area are to non-Baganda. This is inspite of the
original imaginary fears that retuning Kabaka’s land would mean sending
non-Baganda or even Baganda off it. This is, and has always been and will
always be, the Buganda spirit.
It is also important to remember that the services or facilities that the Federal
system bring to any particular region benefit everyone in that region
irrespective of their ethnic origin. For example, the roads, schools, and
hospitals constructed would benefit all users and not just the people of that
region.
Before the restoration of kingdom in Buganda, all kinds of imaginary fears

were expressed. For example, that with the return of the Kabaka, non–
Baganda were going to be expelled from Buganda, or that every body was
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going to be forced to kneel before the Kabaka. As time has shown, all these
were unfounded. Similar unfounded fears have been and will be expressed in
the case of federalism.
The National Constitution of Uganda does and should guarantee the

equality of all people regardless of ethnic origin in any part of Uganda. The
people of Buganda strongly believe in this standard.
For example, residents of Kampala who are not Baganda cannot and have
never been evicted, or denied any right they are by law entitled to, on the basis
that they are not Baganda. Similar standards should be applied to all other
parts of Uganda.
There can be no unconstitutional restrictions on the right to purchase, own

or use property, or the right of movement in and out of any region, or the
right of employment, or the right to pursue any legitimate objectives in any
region of Uganda based on ethnic origin.
Just like the United Kingdom does not accord English people in London
special rights over the Welsh or Scots, there can be no discrimination of any
kind, by any group of people, from any part of the Country on the basis of
ethnic origin.
Even in the 1960’s when Uganda was a federal state, all Ugandans enjoyed the
same rights and privileges in Kampala, or in any federal state of Uganda,
regardless of their ethnic origins.
The people of Buganda recognise and appreciate that several areas of Uganda
have been devastated or neglected for several decades. As a result, the levels of
development in these areas fall far behind other areas.
As already stated, the system of equalisation grants is designed to address the

current existing imbalances.
281
In addition, it should firmly be reiterated that the people of Buganda fully

support the progressive implementation of an affirmative action plan
designed to address current regional imbalances, to ensure that the various
federal regions of the country enjoy similar standards of development.
The Central Government should have the right to have offices and premises
in all the federal regions of Uganda. The current major offices of the Central
Government are located in Kampala District. These offices should remain.
There should also be appropriate provisions in the National Constitution to

ensure that no regional government has the right to evict the Central
Government from any region of Uganda.
The 1995 Constitution provides that Kampala District is not part of

Buganda.
THE L EG A L BA SI S O F B U G AN D A ’ S DE M AN D FO R F E DER O
Although Buganda has never come out to explicitly delineate the legal basis
of its demand for federo, it can generally be accepted that its quest for federo
is based on three major legal arguments. First, there was the unilateral
abrogation of the 1962 Constitution. Second, there is Buganda’s right to self-
determination as guaranteed by many international and regional instruments
to which Uganda is party. Finally, and related to the above, Article 1 (4) of
the 1995 Constitution provides that the people shall be governed through
their will and consent. It is necessary to critically examine each of these claims
in turn.
The Unilateral Abrogation of the 1962 Constitution
As earlier pointed out, Buganda’s status both under the 1900 Uganda
Agreement and the 1962 Constitution was of a federal nature. The 1962
Constitution guaranteed Buganda’s position as a federal state with cultural
attributes while the rest of the kingdom areas were to operate under a quasi-
federal arrangement. With the 1966 crisis when central government forces
282
invaded Kabaka’s palace and the Kabaka was forced to flee, Buganda’s
federal status was unilaterally abolished in contravention of the 1962
Constitution. In 1967, a new Constitution was put in place. This
Constitution officially abolished the federal arrangement all over Uganda.
The Constitution also unilaterally abolished the institutions of traditional
and cultural leaders. Buganda therefore argues that the government should
make good the breach that was committed in 1966 by Obote when he
unilaterally abolished federo. Apollo Makubuya (the current Attorney
General and Minister of Justice and Constitutional Affairs in the Buganda
Government) has stated as follows:
Buganda is aggrieved by the unilateral actions of Obote’s government in

abrogating the 1962 Constitution and the abolition of Kingdoms and
federalism. It believes that it was short-changed by thecurrent Government that
restored traditional leaders in 1993 without a constitutional basis as to how
they are to govern their subjects. Also, the Odoki and Ssempebwa
recommendations on the issues of federalism have not been accorded serious
consideration by the Government203
The remedy that Buganda seeks for the 1962 breach is the restoration of
Buganda’s status as a federal state within Uganda. This argument raises novel
issues in constitutional law. Indeed, it would be interesting to see how a court
of law would resolve it if Buganda chose to institute a suit based on this
ground. Some of the interesting issues the argument raises include:
To what extent can subsequent Governments be held liable for the breaches
of constitutional provisions committed by previous Governments?
What remedies accrue from the breach of constitutional provisions of the

nature that Buganda bases its claims on?
203
Makubuya, 2006.
283
Buganda’s argument based on the breach of the 1962 Constitution also seems
to ignore the fact that while it is important that constitutions should not be
changed except when it is absolutely necessary and in accordance with its
democratic provisions, constitutions are dynamic instruments. They are
never intended to be static. They should adapt to and reflect the prevailing
social, economic, cultural and political realities of the time. It is unimaginable
that even if Obote had not unilaterally abrogated the 1962 Constitution, it
would still be the prevailing constitutional order of our times. In advancing
the above legal argument, it is therefore important to put into consideration
the above perspective. Buganda’s argument also seems to give little attention
or accept the fact that there have been several important political processes in
the country that have attempted to right the wrongs that were committed
especially during the Amin and Obote eras. It is instructive to note that
delegations representing Buganda’s interests have actively participated in
these processes. Most important of these processes are; the restoration of
institutions of traditional and cultural leaders, the making of the 1995
Constitution, and the passing of its subsequent amendments. While these
processes have had several loopholes and limitations, their outcome is
generally accepted as consensus on the different issues including the federo
question.
The right to self-determination
Perhaps, Buganda’s strongest legal basis of its demand for federo lies in its
right to internal self-determination.204 Major regional and international
instruments to which Uganda is party guarantee this right. Most relevant in
Buganda’s case, is the African Charter on Human and Peoples’ Rights (the
Banjul Charter). As such, Uganda is obliged to respect, uphold and facilitate
the enjoyment of this right by its beneficiaries.
Article 20 (1) of the Banjul Charter provides that:
204
For a discussion of the meaning of internal self-determination, see
284
All peoples shall have the right to existence. They shall have the unquestionable
and inalienable right to self- determination. They shall freely determine their
political status and shall pursue their economic and social development
according to the policy they have freely chosen.
It is important to underscore the point at this stage that in Buganda’s case, its
assertion of the right to self-determination is inherently linked to the right to
culture, which is guaranteed by the Constitution.205In the words of John
Kawanga:
…A question had been asked, what if Buganda wants a federal system of

government and the rest of Uganda do not want it, how can Buganda have it?
In other words, who will Buganda federate with? It will be noted that
federalism is some times a way of preserving cultural and historic diversity and
individuality within the framework of a greater national entity. In fact, this is
the most compelling aspect for the Baganda in this regard. They have a
monarchy, which is inextricably interwoven with their cultural heritage, which
they hold so dear and want to preserve… It is necessary for other Ugandans to
appreciate that the Kabaka, to the Baganda is not just a traditional ruler. He
is an institution, which has evolved over a period of 500 years and more.206
In the same vein, while clarifying on Buganda’s federo demands, Godfrey Lule
argues that:
…Buganda is essentially demanding a system of governance, which allocates to

the government of a region, province or state a political structure… which takes
into account, and permits, the incorporation of the cultural values, traditions
and practices cherished by the indigenous people of that region...207
205
See Article 37. The essence of this right is that every person has a right to belong to, enjoy,
practice,profess, maintain and promote any culture and tradition
206
Kawanga, 1994.
207
Lule, 2006.
285
In the same vein, while clarifying on Buganda’s federo demands, Godfrey Lule
argues that:
…Buganda is essentially demanding a system of governance, which allocates to

the government of a region, province or state a political structure… which takes
into account, and permits, the incorporation of the cultural values, traditions
and practices cherished by the indigenous people of that region...208
Although the right to self-determination was traditionally only interpreted

within the context of the decolonization process, developments in legal
theory and the doctrine have given way to new forms and degrees of its
exercise.209 Thus in Katangese Peoples’ Congress v. Zaire: Judicial
determination of Claims to Self-determination,210 the African Commission
on Human and Peoples’ Rights (ACHPR) had an opportunity to expound
on the right to self-determination as it should be understood within the
context of the Banjul Charter. The Commission stated that:
The Commission believes that self-determination may be exercised in any of the

following ways: independence, self- government, local government, federalism,
confederalism, unitarism or any other form of relations that accords with the
people fully cognizant of other recognized principles such as sovereignty and
territorial integrity.
The above decision makes clear the point that federalism is one legitimate way
of exercising the right to self-determination. The factors that give rise to
possession of the right to self-determination generally include: a history of
independence or self-rule in an identifiable territory, a distinct culture, and
will and capability to regain self-governance.211 Buganda meets all the above
208
Lule, 2006.
209
Onoria, 2001.
210
Katangese Peoples’ Congress v. Zaire, ACHPR Commn. No. 75/92.
211
Although these factors apply generally to the right to self-determination in the context of
secessionespecially in decolonization, they can generally be said to apply to federalism as well.
286
factors. Its demand for federo can therefore be legally justified on the basis of
its right to self-determination.
In this regard, it is critical to emphasize that Article 20 (1) of the Banjul

Charter relates the right to self-determination to the right to existence. Henry
Onoria has concluded that in effect, the conduct of a state that
undermines the very existence of an ethnic group or part of its people would
be in violation of the right to existence.212 The right to existence and the
preservation of the cultural and traditional beliefs of Buganda as a kingdom
has always been at the centre of its advocacy for a federal system of
governance.
In exercising its right to self-determination, Buganda should however be

aware of the limits to this right. As enshrined in the Banjul Charter, the right
to self-determination is subject to the need to uphold the territorial integrity
and sovereignty of the particular state.213 In determining the Katangese claim
to self-determination, the ACPHR emphasized that it had an obligation to
‘uphold the sovereignty and territorial integrity of Zaire, as a member of the
OAU and a party to the African Charter on Human and Peoples’ Rights.’214
The Commission therefore held that ‘…Katanga is obliged to exercise a
variant of self-determination that is compatible with the sovereignty and
territorial integrity of Zaire.
Article I of the 1995 Constitution
Closely linked to the right to self- determination, is Article 1 of the

Constitution, which proclaims that all authority emanates from the people
of Uganda and that the people shall be governed through their will and
consent. Article 21 (3) of the Universal Declaration on Human Rights
212
do not infringe other peoples’ rights,their demands should be granted. In this case, given the
findings of the Ssempebwa Commission which seem to indicate that federalism as a
213
Onoria, 2001.
214
287
(UDHR) is also to the same effect. Although the Banjul Charter makes no
reference to the will of the people as the basis of government, the ACHPR
has interpreted Article 13 thereof to enjoin the presence (or non-negation) of
the will of the people.215
The essence of these provisions is that the will of the people should be the
basis of Government. These provisions require that governments derive their
just powers from the consent of the governed. This is a democratic
entitlement of all citizens of any state. Government is therefore obliged to
govern the people of Uganda and specifically Buganda in this case according
to their will. Buganda’s will is to be governed under a federo arrangement.
S O ME R E F LE C T ION S O N T H E W AY FOR W A R D
President Museveni has once again expressed a willingness to discuss the

federal issue, but this time, only with the Kabaka.216 This willingness
although suspect, is a positive gesture on the part of the President in so far it
indicates a willingness to further discuss the issue. At the same time, it is
important to recall that virtually all of the discussions about the status of
Buganda have taken the form of a ‘deal’ between a handful of central
government politicians and an equally small number of Baganda politicians.
This was the case in the run-up to independence in 1962, and led to the
infamous marriage of convenience between Milton Obote’s UPC and what
came to be known as Kabaka Yekka (KY), representing the interests of the
Baganda elite. The 1966 crisis was the outcome of that ‘deal.’
The restoration of the Kabakaship in 1993 assumed the same form, with a
negotiation between key Baganda within the NRM and President Museveni
(even if the Army Council was ostensibly consulted over the matter). The
Ibid 9
215
Robert Mwanje and Al-Mahid Ssenkabirwa, ‘No Museveni, Kabaka Talks on federo-Lukiiko,’
216
The Daily Monitor, May 23, 2007 at p. 13.
288
manner in which the restoration was negotiated has clearly led to the
subsequent problems that surfaced after the enactment of the 1995
Constitution. Likewise, negotiations that resulted in the Regional Tier were
held behind closed doors, and its fate was sealed even before the ink had dried
on the agreement.
Given the above, it is fundamentally important to underscore the point that

the President is not the giver or guarantor of peoples’ rights, including the
right to self-determination. The President is just one of the main actors in the
above regard. It is therefore important that the federo question be discussed
and negotiated with all major stakeholders in the country, and most especially
with the Parliament of Uganda. Federo for Buganda is such an important and
vital national issue that it should not confined to a discussion between
President Museveni and Mengo alone, or in the worst-case scenario, between
the President and the Kabaka alone, as the former wants it to be. In fact, the
earlier that Mengo engages and involves Parliament and other major
stakeholders in a discussion of the issue, the better its chances of persuading
Parliament to ratify or agree to whatever “deal” may be struck with the
President. More importantly, it is time that the question of Buganda not be
the subject of a “deal.” That is not sustainable.
There is also a need to recognize that federalism as a system of governance

from which Buganda’s federo demands spring, is always a negotiated outcome
that involves a lot of compromise on the part of the various stakeholders
involved. Thus, the stakeholders in the federo debate should be flexible and
willing to compromise on their demands. Any compromise reached must
however address the social, economic, political and cultural dynamics not
only in Buganda but also Uganda as a whole.
The need for further research on how federal arrangements work cannot be
over-emphasized. There is a lot to learn from experience of successful
federations in the world. Further research will be critical in informing any
further debate, negotiations and decision-making on the federo question.
289
In so analyzing, Buganda’s demand for federo cannot be pushed aside and/or

suppressed any further. Buganda has a legal and legitimate right to self-
determination, and the right to existence as a people. It also has a democratic
right to be governed according to the system it likes, as long as all the above
does not infringe the rights and freedoms of other people and it ensures the
sovereignty and integrity of Uganda as a nation.
Since Buganda is still part of Uganda and its federo demands if granted would
affect the entire country, the federo question must be discussed and
negotiated with all major stakeholders. The discussions and negotiations
must be guided and based on democratic principles, and norms of fairness,
openness, honesty, and cooperation. For the sake of peace, stability, unity and
national development, all the stakeholders in the federo debate must be ready
and wiling to compromise on their demands. Once a negotiated settlement is
agreed upon, all stakeholders must respect and uphold it. The time is now to
have a national consensus on Buganda’s quest for federo.
R E S TI TU TI ON OF A SS ET S AN D P R OP ER TI ES (E B Y A F FE )
“Ebyaffe” is a Luganda notion adopted by the Baganda in their vocabulary to

mean “our property”. Upon its resurrection in 1993, the kingdom that had
been abolished in 1967 commenced its agitation to reclaim property
confiscated by the central government of Dr Milton Obote after the abolition
of these institutions. These were abolished by the Ugandas prime minister in
1967 in what was a struggle for power between the king Edward Muteesa II
who was a ceremonial president and him. When Obote attacked the Lubiri in
1966 and ripped apart the 1962 independence Constitution. He confiscated
Bugandas land and assets and abolished kingdoms. Indeed, it looked like that
was the end of the ancient kingdoms.
In dark days that followed, it was inconceivable that the kingdoms would ever
resurrect. Dr Obote and his ilk were determined to obliterate its existence and
history. To achieve this agenda to demonize Buganda kingdom and its
supporters, he imposed along state of emergency in Buganda and detained,
290
harassed anyone known to support the kabaka. He then wickedly turned the
kabakas palace into an army barracks and the kingdoms seat in Bulange into
his army’s headquarters and callously renamed it “Republic House” and the
worst he could add was the sale of other properties which he confiscated.217
When Museveni started a guerilla war in 1981, its nucleus was in Buganda
kingdom. The Baganda as well gave mass support to NRA forces. As a
consequence, after capturing power Museveni rewarded them by restoring
kingdoms. Among these was Buganda kingdom, Bunyoro kingdom, Tooro,
Busoga kingdom and others. For Buganda, Ronald Mutebi was enthroned in
1993. This was a move to reward the Baganda for their support during the
war.
Abu Mayanja was appointed co-chair of the Kabakas coronation and the
coronation was announced. The process of restoration nevertheless did not
pass without challenge. In in a bid to stop the coronation, a Kampala based
lawyer sought an injunction arguing that the provisions of 1967 Constitution
would be violated if it took place.218It stated that when Museveni returned
from the trip that he had made oversees, he requested the National Resistance
Council to amend the constitution to allow the coronation. Because of the
role played by the chief actors on both sides of the issues that is Abu Mayanja,
vice president Samson Kissekka and foreign minister and DP Chief, Paul
Ssemwogerere. The coronation was a success and the kabaka Ronald
Muwenda Mutebi was coroneted as king at Nnagalabi. However, the
question that arose was on the relationship that could stand between
Buganda and the central government. This was to remain a story to be
narrated upon witnessing the events after. The central government failed to
understand that culture cannot easily be separated from politics given the
217
Monitor, Saturday, 3rd August, 2013.20 years on: Is it sunrise or sunset for Buganda.
Available on hhtps://www.monitor.co.ug
218
Miscellaneous Application No 74 of 1993.aslo See Mutebi Coronation Hit by Injunction
New Vision 29th May 1993
291
status of Buganda in Uganda. Buganda was to continue influencing the

politic of Uganda. As Oloka Onyango asserts, the issue of Buganda has clearly
returned to a position of pre-eminence in the politics of the country and
become deeply entrenched in the machinations for political power. Indeed,
the kingdom has continued to be a critical importance in the political
evolution of the Pearl of Africa.219Many events have been witnessed as a result
of the silent political interests of the Baganda and the central government
aimed at achieving its denied interest such regaining its property and
achieving federalism. Though the two continue to pretend, there actions can
no longer be hidden. Buganda’s continued demand for federation and
property has challenged the central government. The two have been clashing
in various ways.
After his coronation in 1993, an event was held to thank the president for his
role in the restoration of the kingdom and Museveni noted that “Buganda
was a microcosm of Uganda.” “What Buganda is doing is what the rest of
Uganda should be,” he said, urging other traditional institutions to emulate
it. This was seen as the most generous and reconciliatory speech to the
Baganda by any sitting president. Indeed, the relationship between the
kingdom and Musevenis government was one that deserved a fairy tale not
until the mid-2000s when it split.
The primary point behind the administrative brake down was centered in
Buganda’s claims and interests. Among these was Bugandas continuous
demand for federal, a system that would place Buganda under self-
governance as per the semi-federal 1962 constitutional status and second was
Bugandas demand for “ebyaffe” Bugandas property that was captured and
confiscated by Dr Apollo Milton Obote and some of which he sold.220 The
property included Bulange and other palaces, kabakas 350 mailo land estate,
219
supra
220
Musinguzi Blanshe. Uganda: Is Museveni ready to take on Buganda Kingdom in a tough
fight over land. Available on hhtps://www.theafricareport.com
292
Kabakas Lake and the state lodge in makindye. But the kingdom claimed that
these could not generate enough revenue thus wanted all property returned.
When the constitution was revised in 2004 and 2005, Buganda wanted a
second bite of the cherry, it thus through its premier JM Ssemwogerere
marshaled thousands of supporters to the Nile conference Centre to tender
Bugandas constitutional aspirations. But once again in spite of the popularity
of the views, Buganda’s efforts yielded no fruits and the outcome of the
revisions was the regional government’s law which was initially welcomed but
on closer scrutiny was later roundly rejected. Thus, although a decade after
its rebirth, Bugandas sun was out, a dark cloud was preventing it to shine. The
kingdom then started advances to demand for its property.221
In 2013, “Ebyaffe Agreement” was made under the Constitution of Uganda

and in accordance with the Traditional Rulers (Restitution of Assets and
Properties) Act of 1993-TRRAPA. It was executed between the government
of Uganda and kabaka of Buganda. As such, it was an enforceable and
binding contract.222 After its execution, there was a view that the agreement
be laid before parliament to test its legality. However, this view was rubbished
by many claiming that it had no legal basis.
Parliament had passed the TRRAPA under which the kingdom properties,
including the 350 square miles, Bulange and the Lubiri were returned in the
past. In its long title, the Act noted that, “An Act to give effect to Article
118A of the 1967 Constitution and to restore to traditional rulers
assets and properties previously owned by them or connected with or
attached to their offices but which were confiscated by the State and t
make other provisions relating or incidental to or consequential upon,
the foregoing.”223 Thus as noted from the long story, the Act was to cater
221
Supra.
222
Monitor. Buganda Agreement deal is real. Available on https://www.monitor.co.ug
223
Long Title to Traditional Rulers (Restitution of Assets and Properties) Act Cap 247
293
for the restoration and return of property belonging to the kingdoms and
chiefdoms recognized under Article 118 of the 1967 Constitution.
Section 6 f the TRRAPA particularly provides that the traditional leader of

Buganda shall hold negotiations with the government with a view to
returning to them such assets and properties other than those specified in the
Schedule to the Act. Thus, it was on this basis that the kabaka and the
government executed the agreement. This law neither requires public
negotiations for the return of the assets nor envisages a need for parliamentary
approval of any agreements reached.
The ebyaffe agreement started from the reign of premier minister J.B
Walusimbi and resulted into long and difficult negotiations. The katikkiro
entered those negotiations with express instructions of the Buganda Lukiiko.
In fact, based on the frustrations and delays on the return of ebyaffe, the
Lukiiko thus proceeded to ask the katikkiro to consider taking legal action
against the government.
Thus it was against this background and with leave of the kabaka, that
katikkiro Charles Peter Mayiga concluded the discussions where the
agreement under took to return to the kabaka the former estate of Buganda
kingdom comprising land in urban centers and towns; all former
administrative areas (amasaza and amagombolola) headquarters; Jesa farm,
former kingdom markets; compensation for Muteesa House and plot 52 on
Kampala road; renewed leases and the payment of 20,389,206,000 in the next
financial year. By any measure, this agreement was a land mark achievement
in Bugandas struggle to regain its properties that were stolen under Milton
Obotes reign.
Given the long history of how the assets were confiscated, the long and
painful struggle that Buganda had endured, mengo cannot be blamed for
signing that agreement. However, the government had earlier noted that
unless and until Buganda accepts the regional tier, it would not return the
assets because Buganda did not show them where they were; furthermore, in
294
case of Amasaza, that instead of returning all the land, it would return only
three acres out of the eight square miles on each Ssaza headquarters and that
the land could not be returned because it was now under district
administration.224
Besides this, chicanery, the payment of rent arrears had also been a problem
since 1993 with the result that the kabaka had to sue the government for the
rent for kigo prison. This however raises questions as to whether the
government will respect the contents of the agreement. (Ebyaffe Agreement).
In the past, there has been doubt within the government circles as to whom
these assets should revert to and where they are. With the agreement in place,
the excuse was now no more. The question that remains on the return of the
assets is only about when and not if or how?
The other question has been whether or not the kabaka will require
permission from Ssabanyara or Ssabaluri to visit the counties of Bugerere or
Buluuli. According to the agreement that was executed between Museveni
and the Kabaka, the government agreed to return all counties and sub-
counties administrative buildings and land, Muteesa House in London, Jesa
farm on Mityana road which was sold by Milton Obote government, plot 52
on Kampala Road which houses king Fahad plaza and all land belonging to
the kingdom.
In addition to this is the kingdom land which tenants have “illegally”

occupied over the years to be returned but mengo and the central government
was to decide on the fate of the tenants. All markets belonging to the
kingdoms were to be returned but those under construction or already built
were to be subject for discussion between the two governments. The
government further in the agreement went on to promise payment of shs 20
billion in accrued rent areas to Buganda in 2014/15 financial year and to
guarantee the kabaka free movement in any part of Buganda and Uganda.
224
Supra note 82
295
Noteworthy is that the demand of its property inspired other kingdoms and
chiefdoms to agitate as well for the return of their property. Thus, these
kingdoms were not willing to entertain any message from the central
government other than one in affirmative towards their request. The
agreement influenced and increased this demand in other areas or kingdoms.
On his 18th coronation anniversary, the Omukama of Tooro, Oyo Nyimba

Kabamba Iguru asked president Museveni to return the kingdoms properties.
He noted that Tooro lost its assets when monarchies were abolished in 1967
and that return of the properties would enable them put the assets to good
use for the benefit of Batooro.225
Close to two decades after the restoration of cultural institutions, the

kingdom of Tooro just like Buganda kingdom decided to review its call to the
central government for the return of the kingdom property. Through its
prime minister, Bernard Tungwako, the kingdom as well-expressed
disappointment that properties for other kingdoms were being returned and
meeting being held unlike for them. “We want our properties returned in
order to allow the kingdom offer services to the people. The government
should not discriminate against Tooro kingdom.”226 The kingdoms
properties are part of the assets that were captured and taken over the central
government in 1967. The abolition of the kingdoms affected all kingdoms
across Uganda and Tooro kingdom was thus not special hence requires the
same treatment.
After restoration of kingdoms, the central government in 1999 only returned

17 titles located in fort portal town out of the 120 titles claimed by the
kingdom. Since then, the kingdom has been engaging with the government
pushing for the return of all kingdoms land but this has always been in vain.
Thus in 2017, the kingdom through its supreme council (Orukurato) passed
225
Moses Talemwa. Buganda offer Sparks off ebyaffe frenzy elsewhere. Observer, 13 th
September 2013
226
Tungwako Benard. Tooro kingdom premier. Daily Monitor, August 12th, 2018.
296
a resolution to drag the government to court if their assets were not returned.
The resolution was supported by all members of the council with one voice
of regaining the kingdoms lost property.
The council also inaugurated the negotiation committee comprising the

kingdom prime minister, kingdom minister of lands and chairperson
kingdom land board among others. This was to front its grievances to the
government. 227 As stipulated by the Ankole Landlord and Tenant Law, 1947
and by Toro Landlord and Tenant Law, 1937 108 In Uganda today, public
leases are provided for under the Public Lands Act, 1969.
W. Kisamba Mugerwa. Private and Communal Property Rights in

Rangelands and Forests in Uganda.Makerere University of Social Research,
MUK. As stipulated by the Ankole Landlord and Tenant Law, 1947 and by
Toro Landlord and Tenant Law, 1937 108 In Uganda today, public leases are
provided for under the Public Lands Act, 1969.
, the committee met with the minister for local government over their
grievances. The kingdom however noted that despite all this, the kingdom has
not received anything from the central government and thus the 103 titles
remain a demand by the kingdom. These titles constituted both the kings and
the institutions land.
During celebrations to mark the 13th coronation anniversary of Prince

William Gabula IV of Bugabula chiefdom in Kamuli, the chiefdom in
Kamuli, the chief prince, Issabalagira Kawunhe Wakooli spoke on behalf of
the kingdoms 12 chiefs and asked the president who was in attendance to
reinstate their legal ownership of the cultural institution’s estates. The
properties included land and buildings, housing all local government offices
(districts and sub counties) and courts of judicature in the region. “Peoples
government using our properties should start paying revenue (obusulu) to
227
W. Kisamba Mugerwa. Private and Communal Property Rights in Rangelands and
Forests in Uganda.Makerere University of Social Research, MUK.
297
our chiefdom… Therefore, Mr. President as you have done to our colleagues
in other regions, we too need our properties.”228 Wakooli noted.
Bunyoro also raised the same issue through its secretary to the Omukama;
Yoramu Nsamba. He observed that the kingdom had been making demands
for a while but all in vain. “What Buganda or any of these cultural institutions
is demanding is very small compared to what we are owed. And on top of
that, it is not a matter of just asking as individuals, this “ebyaitu” belongs to
Bunyoro as an institution.” According to Bunyoro kingdom the central
government owes Bunyoro 12.5 percent royalties for the minerals found on
its territory, including petroleum and uranium, under the 1955 agreement.
In their furthered claim, anybody who comes to do mining or oil exploration
must consult the kingdom, but none of the above was undertaken by the
central government.
Bunyoro thus claims for payment of nearly 700-million-pound sterling (shs 6

trillion) that they claim the destruction of their land and death of nearly two
million people at the hands of cap Fredrick Lugard and Capt. Henry Colville.
Other properties claimed by Bunyoro included county headquarters, schools,
forest reserves, equity in Kinyara sugar works and James Finlay Tea Factory,
all of which were confiscated by the central government. A one Kasozi said
the claim for restitution of Bunyoro boundaries to those of 1900 status was
as well a very critical point that their kingdom had submitted to the central
government through the Attorney General Mr. Peter Nyombi.
Bunyoro Kingdom continuously demanded the return of its properties

confiscated by the state in 11967 and the restoration off its boundaries to the
status of 1900. Omukama Solomon Gafabusa Iguru went one day claimed
that he wanted to know why the government had delayed to return the
kingdom properties even after the president’s directive and approval. The
submission to the government was headed by the Prime Minister Rev.
Jackson Nsamba Kasozi who stated that whereas under a statutory
228
Ibid
298
instrument in 1967, Bunyoro properties were on September 8th, 1967,

confiscated by the Uganda government without compensation and the
government still holds many of the assets to date.
Mr. Kasozi, the kingdom premier, in a detailed claim said that the statutory
instrument of July 30, 1993 cancelled the 1967 instrument which confiscated
the kingdom assets and paved way for the return of those
properties.229Among the still owed property include forest reserves, official
estates, palace grounds at Hoima and Masindi, administration headquarters,
some health units, schools, markets, royalties from forests, national parks, fish
landing sites, minerals and compensation for loss of value of kingdom assets
that have for decades been under.230
In their detailed press address, many of these properties are in the hands of
the central government, while others like land now fall under Buganda
kingdom authority. It is not clear how Bunyoro will repossess these properties
without causing a collision with Buganda. After a long period of negotiation
with the central government, Mr. Peter Nyombi the Attorney General wrote
to the king Iguru on April 17 indicating that the government had prioritized
the return of Kyangwali and Kyampisi ranches.
Noteworthy is that in 1994, a memorandum of understanding was signed

between the Bunyoro Kingdom and the central government being
represented by the prime minister Apollo Nsibambi where in 113 properties
were listed to be property of the kingdom. Just like Buganda, some properties
were returned and others were not and up to now still in the possession of the
central government but what hurts the kingdom is that despite their return,
the government has never released the land titles for the estates. This leaves
the question of whether the government could respect the Traditional Rulers
229
Geofrey, S. Bunyoro demands 440 assets from government. Available on
230
Ibid.
299
(Restitution of Assets and Properties) Act after these kingdoms and other
chiefdoms holding meetings with the central government over the same issue.
To some point, the return of these assets or property has been used as a
political tool especially by the president; Museveni where he continuously
uses it as a promise to the subjects during campaigns. But truth be told, some
of these properties are being held by the presidents Hench men who are
unwilling to return them thus becoming a challenge. Some of it is deliberately
being denied to them for fear that Bunyoro and other kingdoms like Buganda
may gain economic muscle thus becoming a threat towards the NRM
government thus the continuous frustration from the government.
The question is, did government restore all cultural institutions or its just
perse analyzing article 118A of the 1967 constitution, which was replaced by
traditional rulers’ assets and properties act that aimed at giving out the
properties of Buganda that were confiscated by state as per schedule 2 of the
Tradition Rulers act The answer can be seen unto the Kasubi Tombs that
was given to Buganda kingdom, The burial grounds for Buganda kings,
was razed on the evening of March 16, 2010, by an unexplained fire
the report wasn’t clear on what made Spiked off the Kasubi Tombs.The
engagement of the Katikiro of Buganda Charles Peter Mayiiga in the
collection of Tributte (TAFAALI) in the construction of Kasubi Tombs was
a good go ahead for Buganda to start liberate what is hersThey finished the
reconstruction and restoration of Muzibu-Azaala-Mpanga (main house),
renovation of Bujjabukula (gatehouse) and a fire-fighting system. They
finished the reconstruction and restoration of Muzibu-Azaala-Mpanga (main
house), renovation of Bujjabukula (gatehouse) and a fire-fighting system.
They added documentation (visual and text) of the reconstruction and

refinement of the Site Disaster Risk Management Plan that will enhance the
heritage conservation aspect to safeguard its Outstanding Universal Values.
The central Government in 2013, it didn’t restore back what belongs to
Buganda fully thus what Baganda refer to it as “BYOYA BYANSWA”. The
Kasubi Tombs apparently is controlled by UNESCO not by the
300
administration of Mengo restoration of the Unesco World Heritage Site that

is Kasubi Royal Tombs is at the roofing stage and the site will soon be taken
off the List of World Heritage in Danger by year-end they have finished the
reconstruction and restoration of Muzibu-Azaala-Mpanga (main house),
renovation of Bujjabukula (gatehouse) and a fire-fighting system.
The new site office is fully kitted with work stations and computers with
internet connection. They added documentation (visual and text) of the
reconstruction and refinement of the Site Disaster Risk Management Plan
that will enhance the heritage conservation aspect to safeguard its
Outstanding Universal Values. The project will also establish model farms for
thatching grass, reeds and the Misambya (Markhamia lutea) trees. The Kasubi
Royal Tombs of Buganda Kings were inscribed on the Unesco World
Heritage List in 2001. After the destruction of the site, the site was placed on
the List of World Heritage in Danger by the World Heritage Committee.231
231
David Kyewalabye Male, a member of the committee and Minister of Tourism and
Culture in Buganda Kingdom said, “The reconstruction would have been a simple task if all
we had to do was to put up an architectural masterpiece. However, the intangible cultural
intricacies (of belief, spirituality, continuity and identity) required utmost attention to values
that make Muzibu-Azaala-Mpanga different from other grass-thatched houses. We have
respected those values,” Male said.
Unesco’s Regional Director for Eastern Africa, Prof.Hubert Gijzen visited the Kasubi Royal
Tombs on February 24, to check on the progress of the reconstruction. The reconstruction
was also partly funded by the government and officials from the Ministry of Tourism,
Wildlife, and Antiquities, Uganda National Commission for Unesco, Buganda Kingdom,
and Kasubi Reconstruction Committee.
Prof Gijzen termed his visit to Buganda Kingdom the highlight of his trip in the sub region.
“Visiting such sites is important because they tell a story, and enable us to reflect on a
history,” he said.
“The next step should be to turn this facility into a flourishing site,” Prof Gijzen suggested.
“The creative industry should bring more action to attract tourists. We hope tourists will
return to this site if it goes back to the original list. There should be traditional food and
301
A D IS T IN C TI ON BE T W EEN TH E K A B AK A AS AN EN T ITY AN D AS
A P E R S ON
Does the kabaka act on behalf of people of Buganda or on his personal

capacity?
Per article 6 of the 1900 buganda agreement, kabaka’s powers where reduced
and when the traditional rulers where restored, Kabaka was’t given back his
powers as per the Restoration of tradition act. Basing on the case of Mulira vs
kabaka of Buganda232. slept with Muilira’s wife, thi inturn annoyed Mulira
and sued the kabaka hence succeeded.in also the case of Male Mabirizi
Kiwanuka, it was stated that kabaka can be sued, he doesn’t have absolute
powers.
Kabaka deligates authority for example Buganda land board unto his land and
one needs to sue him personam. Bagamugunda Vincent vs. UEB (in
liquidation) HCCS No. 400 of 2007. 233
Accordingly depending on where this land is situating, the right party to be

sued should have been the Kabaka of Buganda. Indeed Article 246 (3) (a) of
the Constitution provides that:
“The institution of a traditional leader or a cultural leader shall be a corporate

sole with perpetual succession and with capacity to sue and be sued and to
hold assets or properties in trust for itself and the people concerned. The case
was therefore dismissed without costs. In Conclusion therefor the restoration
of traditional ruler’s act, it gave authority to the restored traditional rulers but
not absoluty powers beause they don’t have any immunity to protect them.
creative industry product stands to attract visitors and contribute to the sustainability of the
site
233
www.ulii.com
302
THE C ON S E QU EN C E S OF TH E 1900 B U GAN DA A GR E EM EN T

U N TO B U G AN D A L AN D A S P ER A R TI CL E 15
The question of 9,000 square miles
The Mailo land tenure system is one of the most complex among Uganda’s
four tenure system.
Its ambiguity leaves many people mistaking it for the Freehold tenure system.
While these two tenure systems have some similarities, they are by far
different. Mailo land has its origins in the 1900 agreement which was signed
between the regents of Buganda, acting on behalf of the young Sir Daudi
Chwa, and Sir Harry Johnson on behalf of the queen of England.
This agreement divided the 19,600 square miles that form Buganda kingdom
among different entities and individuals. These included the Kabaka (king),
regents, chiefs, central government, key offices and other individuals who
were found fit.
Before we delve much into the distribution of this land, let us first understand
Uganda’s four tenure systems. The first one is customary land tenure; this is
land that is held
basing on particular customs, traditions and norms of people. It is often

communal. It is commonly owned by indigenous communities in Uganda.
Such land is found in the northern and eastern parts of the country. Freehold
tenure system; under this system, one owns land for eternity and he/she is
entitled to a certificate of title. In Uganda, this is the most favoured tenure.
Leasehold tenure; this is where a lessee has exclusive possession of land

through an agreement with the landlord. The agreement is for a specific
period of time subject to premium and ground rent. Mailo land tenure; This
is the most misunderstood tenure in Uganda simply because it creates dual
ownership over the same piece of land
303
Mailo is a unique form of land tenure in Uganda. Around 9 per cent of the
country's land is held under the mailo system, which is similar to freehold. It
was set up by the 1900 Buganda Agreement. Idi Amin then made all land
publicly owned, and the 1995 Constitution of Uganda reintroduced mailo.
In the 1900 Buganda Agreement, the Uganda Protectorate (part of

the British Empire) granted the Buganda Kingdom land because it had
helped the colonisers conquer the country. The Buganda aristocratic class
was awarded land parcels broken up into plots of square miles, hence the
name "mailo". These parcels came with farmers in situ, therefore the mailo
system produced private owners for customary land, whilst the tenants
continued to work the land. In 1928, amendments were made to give the
tenants more rights.
After the 1971 Ugandan coup d'état, all land was made publicly owned
following Idi Amin's 1975 Land Reform Decree. In theory this destroyed the
mailo system, although little was done in practice. Under the
1995 Constitution of Uganda, mailo was reintroduced and land can have
four forms of ownership: mailo (official or
private), customary, freehold or leaseholdTenant rights were then boosted
by the 1998 Land Act and its 2010 amendment.
The Constitution of Uganda in 1995 introduced the concepts of "bonafide

occupants" and "lawful occupants" of land and security of occupancy. The
Constitution further provided that Parliament shall enact a law to give
meaning to these terms. The law that resulted was the Land Act, 1998.
The Land Act, 1998 needs to be repealed and its aims and objectives should
be revisited to ensure that it adheres to well-established principles of
Constitutional Law and does not violate Fundamental Rights and Freedoms.
In enforcing the rights of Bonafide and lawful occupants as set out in the
Constitution, it tramples on the constitutional fundamental rights and
freedoms of landowners.
304
When the Land Act automatically creates tenancies, and takes away the land
owner’s right to negotiate fair tenancy terms; when it restricts the land
owner’s right to use the land; when it restricts the rights of a title holder to
transfer, pledge or mortgage land; it is taking away the essence of ownership,
and is interfering with the property rights of the land owners, which is
unconstitutional.
This unconstitutional 1998 Land Act deprived land owners who had
invested in land of their property without complying with the provisions of
Article 26(2) of the 1995 Constitution which provides as follows:
"No person shall be compulsorily deprived of property or any interest or right

over property of any description except where the following conditions are
satisfied-the taking of possession or acquisition is necessary for public use or
in the interest of defence, public safety, public order, public morality or
public health: and the compulsory taking of possession or acquisition of
property is made under a law which makes provision for-prompt payment of
fair and adequate compensation, prior to the taking of possession or
acquisition of the property; and a right of access to a court of law by any
person who has an interest or right of property."
The 1998 Land Act deprived land owners many of whom had invested their
savings into land were suddenly deprived of their interest and right in their
land for an inadequate compensation of Shs. 1,000 per year not paid prior to
its being taken, and the taking was not necessary for "public use or in the
interest of defence, public safety, public order, public morality or public
health"
The Land Act also imposed the above paltry fee irrespective of the size,
location or use of the land. This does not make economic sense at all.
This issue is very important to the people of Buganda, because it directly

affects the land returned to the Kabaka under the "Ebyaffe" statute in 1993.
Although on paper, the Kabaka holds 350 square miles of land which were
305
returned to him, in actual fact, he cannot use this land, nor does he benefit
from it. The issue does not affect the Kabaka alone. It also affects the people
of Buganda and Uganda, whether they are mailo or leaseholders. Since the
early 1920s, the safest form of investment for an ordinary Muganda has
always been land. Land is a valuable and sacred asset in Buganda, hence:
Ssabataka, Bataka, Butaka and so on.
Objection to the extremely unfair rent of Shs 1,000/= irrespective of size or

location or economic activity on the land is not in disregard of tenants’ or
occupants’ rights. Throughout our history, the Busuulu and Envujjo laws
found an appropriate compromise between landowners and tenants. These
laws gave sufficient protections to tenants and squatters, while at the same
time giving protection to the landlord. In this manner a viable economic
relationship between the two groups emerged. The current Land Act upset
these relationships and is not workable.
It is possible to achieve the public interest objectives of the Land Act in other
manners that do not violate fundamental freedoms and property rights
guaranteed under the Constitution. The Constitution needs to be revisited
on the questions of "bonafide" and "lawful occupants" having regard to the
rights of landholders. If the Constitution clarifies the issue, then the Land Act
can be adjusted accordingly. The issue of the Land Act is raised here because
it emanates from the above constitutional provisions.
Mailo ownership of registered land means holding title to it in perpetuity and

thus it is similar to freehold. Mailo exists in western and central Uganda, with
an estimated 9 per cent of the land mass being owned in this way. The mailo
system is unique to Uganda. The Kabaka Mailo was land given to the king
which is now owned by the Buganda Land Board. Official Mailo was land
given to certain officials and it is now also owned by the Buganda Land Board.
Private Mailo was land given to around 1,300 people and institutions such as
churches between 1900 and 1908. This land is still owned privately, complete
with longstanding tenants, and confusion over the differences between
306
owner and tenant rights has led to conflicts Bukerere is one place where land
is still owned by Mailo.
Mailo land owners have the same rights as freehold land owners, but they
must respect the rights of lawful and Bonafide occupants and Kibanja holders
to occupy and live on the land. (Section 3 (4) of the Land Act). Buganda Land
Board operations are largely based on Mailo land and there have been some
divergent voices over this land because many people find it hard to
understand how Mailo land works.
Buganda’s land falls in the category of Official Mailo land which means it
cannot be sold entirely but can accommodate bibanja holders as well as lease
holders. Hereunder are a few descriptions of key terms used on this land
tenure. Kibanja holders; Persons who had settled on the land in Buganda as
customary tenants with the consent of the Mailo land owner under the
Busuulu and Envujjo Law, 1928.
A Kibanja holder holds an equitable interest in Mailo land which can be

transferred with consent of a registered owner. It is worth noting that Kibanja
is peculiar to Mailo land found mostly in Buganda Bonafide occupant; A
Bonafide occupant is one who, before the coming into force of the
Constitution 1995
(a) Had occupied and utilized or developed any land unchallenged by the
registered owner or agent of the registered owner for twelve years or more; or
(b) Had been settled on land by the Government or an agent of the

Government, which may include a local authority. Lawful occupant; This
means a person who entered the land with the consent of the registered
owner, and includes a purchaser.
For this article we will go with this definition though a lawful occupant is also
one who occupies land by virtue of the repealed— (i) Busuulu and Envujjo
307
Law of 1928; (ii) Toro Landlord and Tenant Law of 1937;(iii) Ankole
Landlord and Tenant Law of 1937.
Tenant by occupancy; These include bonafide and lawful tenants. They are
considered tenants of the registered owner of the land which they occupy and
are required to pay annual ground rent. (Sections 1 and 31 of the Land
Act). Most people in Buganda are tenants by occupancy and are required to
pay Busuulu. a. Rights and Duties of Tenants by Occupancy and Kibanja
Holders
1. Tenants by occupancy have a right to occupy land under the laws of

Uganda.
2. They have the right to enter transactions with respect to the land they
occupy with the consent of the registered land owner, which should not be
denied on unreasonable grounds. (Section 34 of the Land Act).
3. The law strictly requires tenants by occupancy to give the landowner first
option where they wish to sell their interest and vice versa where a land owner
wants to sell the land. This must be on a willing buyer willing seller basis.
(Section 35 of the Land Act).
4. Where a tenant by occupancy or Kibanja holder sells their interest without

giving the land owner first option, he or she commits an offence and loses the
right to occupy the land. (Land (Amendment) Act 2010).
5. A person who buys registered land which has tenants by occupancy must
respect and observe their rights.
6. He or she must not evict them except if he or she obtains a court order of
eviction for non-payment of the annual nominal ground rent. (Section 32A
of the Land Act as amended in 2010).
7. Similarly, any person who buys registered land in Buganda must observe
the rights of Kibanja holders on the land.
308
8. Tenants by occupancy and Kibanja holders can also register a caveat at the
Registry of Lands where they have reason to suspect that the registered
landowner intends to enter a land transaction which will affect their rights
and interests. (Section 139 of the Registration of Titles Act).
One can only secure their land by knowing the tenure he or she is under, his
duties and responsibilities on the said piece of land.
Mailo Land in Buganda is managed by the Buganda land Board. Once upon
a time, there was a public body which went by the name Buganda Land
Board. This body was set up under Chapter X11 of the 1962 Constitution to
manage Public Land in Buganda. This public body had its roots in the
famous 1900 Agreement (Uganda/Buganda Agreement) under which
various chunks of land of varying sizes were grabbed from natives and given
away to various individuals, chieftains, and religious groups. The chunks of
land given away were neither surveyed nor did they have any known tenancy
category in the Kiganda Culture. The colonial authorities eventually
regularised this land grabbing and in 1908 enacted a legislation known as The
Land Law of 15th June 1908. This law created two tenancies. Under Section
2 thereof, a tenancy known as Mailo was created. The section specifically
stated to hold land in a manner described in that section “will be known as
holding Mailo, and land of this description will be called Mailo”. Section 5
created a second tenancy which was described as that land which a
Chieftainship shall hold for the time, he shall hold the chieftainship. It
stipulated that he shall be entitled to take all the profits from that land but
when he leaves that chieftainship, the successor chief will take over the land.
In the words of Section 5(c) “to hold land in this manner, will be called to
hold official mailo.” The actual demarcation of both the mailo and the
official mailo tenancies was not done until five years later when the Buganda
Agreement (Allotment and Survey) Law of 1913 was enacted.
Since the mailo was under the control of individuals, or bodies to which it
was allocated, it was necessary to put in place a statutory public body to
309
manage the official mailo and herein lay the origin of the Buganda Land
Board. The Chieftainships holding official mailo were diverse, covering Saza
Chiefs, Gombolola Chiefs, land held under Chieftainships of the Katikiro,
Omulamuzi, Omuwanika and others described in the 1900 Agreement and
elsewhere in the subsequent laws as official mailo. Indeed, even the chunk of
land allocated to the Kabaka under the 1900 Agreement was converted to
official mailo under Section 2(b) of the 15th June 1908 Land Law.
Who owns Buganda’s 9,000 Sq. Mailo land, is it Kabaka or?
President Museveni meets Kabaka Ronald Muwenda Mutebi II and his

entourage at State House Nakasero on Sunday, August 22,2021, discussed
the position of the Buganda Mailo land.
The locus you need to know unto the Buganda Mailo Land.
I. The Buganda Land Board of today is different from the Buganda

Land Board of 1962, which was statutory and constitutional in its
establishment.
II. Can the Mengo establishment, with its voluntary character, be

entrusted with managing land, half the size of Buganda itself?
The Traditional Rulers (Restitution of Assets and Properties) Act, Cap. 247
was enacted to restore traditional rulers, assets and properties previously
owned by him or connected with or attached to his office but which were
confiscated by the State.
Buganda Land Board, a body corporate with perpetual succession and a

common seal, was created by the Public Lands Ordinance, No. 22 of 1962.
All former crown lands, including the 9,000 sq. miles of land (Mailo 9,000),
were declared public lands.
Public lands in the federal state of Buganda were vested in Buganda Land
Board in freehold. Buganda Land Board became the controlling authority.
310
Buganda Land Board was adopted and confirmed by the Constitution of

Uganda, 1962.
The government and the traditional ruler of Buganda (the Kabaka)?
Was there a need for negotiation between government and the Kabaka with
a view to reaching an agreement over the return of Mailo 9,000?
Within the meaning of Section 2 (7) of the Traditional Rulers (Restitution

of Assets and Properties) Act is agreement still awaited between government
and the Kabaka whereby government will surrender possession and
management of Mailo 9,000 to the Kabaka?
Would Mailo 9,000, thereafter, be transferred to the Kabaka under Section 2

of the Act with effect from a date named in the agreement?
Article 239 of the Constitution (1995) limited the nature of land to be held
and managed by the Uganda Land Commission. It holds land vested in or
acquired by government.
The Constitution (1995) divested all other types of land from Uganda Land
Commission.
There is no provision of law continuing to vest in Uganda Land Commission
any rights, titles, estates and interests in other lands previously vested in the
Commission immediately before the promulgation of the Constitution
(1995).
Where did 9,000 miles go?
Under Article 241 of the Constitution (1995) the functions of a District

Land Board are-(a) To hold and allocate land in the district which is not
owned by any person or authority. The Uganda Land Commission by virtue
of the effect of Articles 239 and 241 (1) (a) and (b) of the Constitution and
the operation of Sections 49(a) and 59(a) and (b) of the Land Act,
relinquished the freehold title to Mailo 9,000 which remained un alienated.
311
Accordingly, in any district of Buganda freehold title to any portion of un

alienated Mailo 9,000 located in the district is now vested in the District Land
Board.
On whose behalf is Mailo 9,000 held and managed?
Mailo 9,000 was, in 1962, returned to Buganda Kingdom, vested in Buganda

Land Board in Freehold, for the benefit of the people of Buganda.
Buganda Land Board carried out its functions on behalf of the Kabaka.
Buganda Land Board was a Statutory and Constitutional body. Buganda, as
a State, had a Federal Government.
Today, the Kabaka is a corporate sole, with perpetual succession and with
capacity to sue and be sued, and to hold assets or properties in trust for itself
and the people concerned (Article 246 (3)(a) of the Constitution (1995).
A traditional ruler does not have and cannot exercise any administrative,
legislative or executive powers of government or Local Government. (Article
246 (3) (f) of the Constitution (1995).
As an institution, the traditional or cultural leader has a network of personnel

to run the traditional or cultural responsibilities of the institution. As a
cultural establishment it carries out functions to sustain and develop the
institution.
Should the remaining un alienated portions of Mailo 9,000 spread out in the
districts of Buganda, be centrally vested in the institution of the traditional or
cultural leader of Buganda? Wouldn’t the Mailo 9,000 be mixed up with
Kabaka’s official estate (the 350 square miles)? Can the traditional leader of
Buganda manage, control and administer land almost half the size of Buganda
itself? On the other hand, who is the ultimate owner of Mailo 9,000? The
answer is: The people of Buganda.
How do they exercise their ultimate ownership and control? The answer is:
Through the district land boards. How are district land boards accountable
312
to the people of Buganda in holding and managing Mailo 9,000? How do

district land boards ensure that the people of Buganda benefit from their
management and control of Mailo 9,000?
Occupation of Mailo 9,000
Under the Buganda agreement of 1900, the regents and the Ssaza chiefs,
acting on behalf of the Kabaka, chiefs and people of Buganda, surrendered to
Her Majesty’s government the right of control over 10,550 square miles of
land. Mailo 9,000 included land occupied by bakopi (peasants) by customary
tenure. Bakopi became displaced when the areas which they previously
occupied were surveyed and demarcated as Mailo land for individuals.
Bakopi were again displaced when, following the Crown Lands (Declaration)
Ordinance, No.3 of 1922, it became unlawful for any African in the Buganda
Province to occupy Crown Land outside a township or trading centre
without a valid licence or lease.
Customary tenure, as a system of holding land, was not established or

developed in Buganda in areas covered by Mailo 9,000. Until the Public
Lands Act (13/1969) Mailo 9,000 was not yet occupied by customary tenure.
Under the Public Lands Act (13/1969) it became lawful for persons to enter
upon, hold and occupy by customary tenure any un alienated public land in
a rural area in Buganda.
Buganda Kingdom had ceased to exist. There was no government in the

kingdom to develop a local system for allocation, occupation and use of the
public land comprised in Mailo 9,000.
Allocation of land and control and management of its use was never the
function of the community, clans, lineages or families. The clans/elders in
Buganda did not arrange any schemes of succession to land forming part of
Mailo 9,000 left by any deceased persons.
313
No customary rules or practices were developed for resolving disputes

relating to occupation of Mailo 9,000. There is no source of customary law
or custom governing customary land tenure on Mailo 9,000.
Any African in the Buganda Province who wanted to occupy Crown Land
in a rural area had to pay for an annual temporary occupation licence issued
by District Commissioners at a rental (Busuulu) of Shs10. This was the
position until 1967.
The Land Reform Decree, 1975, allowed the system of occupying public land
under customary tenure to continue. Between 1975 and 1995 no person
could occupy public land (such as Mailo 9,000) by customary tenure except
with the permission in writing of the prescribed authority, the Sub- County
Land Committee.
The Sub- County Land Committees were either non-existent or non-

functional. However, there are supposed to be in existence sub-county
registers of customary occupation of land comprised in Mailo 9,000.
After promulgation of the Constitution (1995), in areas outside Buganda a

customary occupant, who is a citizen of Uganda, owns the land, and the land
vests in him/her.
All Ugandan citizens holding land under customary tenure on former public
land became customary owners thereof. They can acquire certificates of
customary ownership or freehold titles. Does the same position hold in
respect of peasant occupants of parcels of land comprised in Mailo 9,000?
Buganda Land Board was mandated to hold and manage Mailo 9,000 for the
benefit of the people of Buganda.The functions of Buganda Land Board were
to be exercised on behalf of the ruler (the Kabaka). The Republican
Constitution, 1967 by Article 108 (5) confiscated Mailo 9,000 and vested it
in Uganda Land Commission.
314
It is debatable if Mailo 9,000 was included among the assets or properties,

previously owned by the traditional ruler or connected with or attached to
his office, which were transferred to the traditional ruler of Buganda (the
Kabaka) under Section 2 of the Traditional Rulers (Restitution of Assets and
Properties) Act.
However, for more than 60 years between 1900 and 1962, Mailo 9,000 was
not in the hands of Kabaka’s establishment.
Buganda Land Board held and managed Mailo 9,000 for the benefit of the
people of Buganda for only five years, between 1962 and 1967.
On the other hand, was Mailo 9,000 among the other assets and properties
which remained to be sorted out between government and the traditional
ruler of Buganda (the Kabaka)?
Was there a need for negotiation between government and the Kabaka with
a view to reaching an agreement over the return of Mailo 9,000?
Within the meaning of Section 2 (7) of the Traditional Rulers (Restitution

of Assets and Properties) Act is agreement still awaited between government
and the Kabaka whereby government will surrender possession and
management of Mailo 9,000 to the Kabaka?
Would Mailo 9,000, thereafter, be transferred to the Kabaka under Section 2

of the Act with effect from a date named in the agreement?
Article 239 of the Constitution (1995) limited the nature of land to be held
and managed by the Uganda Land Commission. It holds land vested in or
acquired by government.
Between 1975 and 1995 no person could occupy public land (such as Mailo
9,000) by customary tenure except with the permission in writing of the
prescribed authority, the Sub- County Land Committee.
315
The Sub- County Land Committees were either non-existent or non-

functional. However, there are supposed to be in existence sub-county
registers of customary occupation of land comprised in Mailo 9,000.
After promulgation of the Constitution (1995), in areas outside Buganda a

customary occupant, who is a citizen of Uganda, owns the land, and the land
vests in him/her.
All Ugandan citizens holding land under customary tenure on former public
land became customary owners thereof. They can acquire certificates of
customary ownership or freehold titles.
Don’t district land boards allocate portions of Mailo 9,000 to

“foreign” applicants despite the existing occupation by peasants?
On the issue of customary freehold recommendation, this was done way back
during the National Land Policy Conference. It is pending implementation.
The Uganda Land Owners Association, appeared before the Land Inquiries
Commission on 25th September 2018, and in observation, some
commissioners had a bias on land ownership, especially in the central region
because of statements like; why is it that some people have a lot while others
have little or nothing.They forget that by nature, there will be the "Haves and
Have nots"! The same commissioners seemed not aware of the Busulu &
Envujjo law. We shared its contents and recommended its reinstatement
because it specified an area of a Kibanja and gave protection to a Kibanja
holder's interest like his homestead. They rejected the proposal. The fact is
that it is unfair for the laws of Uganda to talk about occupancy on land
without declaring the size of a Kibanja. People claim bibanja of even 50 acres
and above which is ridiculous. The understated presentations before the land
inquiry commission were on. Bonafide cccupant. This means a person who
was on land for 12 years and above by the 1995 Constitution. We all agreed
that this provision is unfair and should be revised.
Land tribunals should be reinstated but under ministry of justice. These

tribunals were under the land’s ministry.
316
In conclusion therefore the 9,000 squres mailo land does not belong to the
kabaka, as described by the 1900 Buganda aggrement under article 15, Kabaka
was given his share plus also others like chiefs etc.The share of milo land of
Kabaka, need to be private because the Kabaka does have absolute rights to
the other milo for which is termed as public or official milo land that was
given to other people like chiefs.
Where does Buganda land board stand in as far as the 1900 Buganda
agreement?
The Buganda Land Board under whose authority the administration of the
official mailo was placed, was a statutory body of the Uganda Protectorate. It
should be noted, that at the conclusion of 1900 Agreement, the Uganda
Protectorate consisted of only one province, and that was the Buganda
Kingdom. The 1900 Agreement in Article 3 envisaged “other Provinces”
which were in future to be added to the Province of Buganda Kingdom and
indeed when the final demarcations of the Uganda Protectorate were made,
three other Provinces namely; the Western Province, the Easter Province and
the Northern Province had all been created and the four formed the Uganda
Protectorate which eventually emerged into the current independent
Republic of Uganda. When the Uganda Protectorate gained Independence,
the Constitution of the newly independent State of Uganda, so fit to dedicate
the whole chapter on the administration of Public Land. This was Chapter
XII and under Article 118, Public Land in Uganda was to be administered by
three sets of bodies. The areas of Uganda which were administered under
Federo units, public land was under Land Boards, while those under districts,
public land was administered by District Land Board. The rest of Uganda,
Land was administered by the Uganda Land Commission. The Buganda
Land Board was under Article 118(3) recognised as the body administering
public land in the Buganda Kingdom. 234 It should be clarified that the Public
Land in Buganda under the Buganda Land Board went under the
234
The monitor (Kampala) 7th October 2021 by James Kanengwa
317
nomenclature of official mailo. All the Statutory bodies namely

administering Public Land in Uganda namely; Uganda Land Commission,
Federal Land Boards and District Land Boards, were Constitutionally subject
to the scrutiny of the Auditor General and therefore accountable to the
Public.
The wind of change which blew across the Political terrain of the country
swept away the 1962 Constitution and a new Constitution known as the
1967 Republic Constitution was promulgated. Like the 1962 Constitution,
the 1967 one, also dedicated a whole Chapter on the administration of public
land. This was Chapter XII and Article 108 under that chapterspecifically set
out the Land Commission of Uganda as the body to administer all the public
land in Uganda.For clarity, Article 108 (5) specified the various land entities
vested in the Land Commission. These included every official estate held by
a corporation sole by virtue of the provisions of the official estate Act and any
land which immediately before the commencement of the 1967 Republican
Constitution was vested in the land board of a Kingdom or a district. Thus,
the public land which had under the 1962 Constitution been administered
by the various Land Boards of federal units or districts were transferred to one
single public body namely; The Land Commission of Uganda.
Thus, the official mailo under the Buganda Land Board was never
confiscated; it was simply under the constitutional order of the day
transferred to a public body under which the administration of all public land
in Uganda was consolidated.The duplicity of giving different names to public
land depending on its location in Uganda, for example, Buganda Kingdom
where it had been called official mailo was streamlined with all other public
land in the country under one body namely; The Uganda Land
Commission.It was public land being managed by Buganda Land Board
whose administration was transferred to the Uganda Land Commission. The
1967 Constitution like the one of 1962 created the position of an Auditor
General for Uganda to which all public offices and institutions had to submit
for scrutiny and were therefore subject to public accountability. For
avoidance of doubt, the 1967 Constitution, created Article 126 for the
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continuance in force of the system of mailo to emphasize the difference from

the public land which had been called official and which by the constitution
had been streamlined by being moved from the Buganda Land Board to the
Uganda Land Commission.
The current Buganda Land Board is not a successor in title to the Buganda
Land Board of the 1962 Constitution. It is not a statutory body and has no
mandate to administer any public land. Its legal status going by its
instrument of registration is that of a private limited liability company with
one (1) shareholder. It has no accountability to the public and no queries can
be raised by a public body on how the company is run. It cannot legally claim
ownership of public property by virtue of the Traditional Rulers (Restitution
of Assets and Properties) Act 1993. That Act having been enacted before the
coming into force of the 1995 Constitution, must be construed with such
modifications, adaptations, qualifications and exceptions which may be
necessary to bring it into conformity with the constitution. The 1995
Constitution cannot be construed to resituate public assets to institutions
which never owned them in the first place, from whom they have never been
confiscated and by whom no official public accountability is exacted by the
constitution. Public assets can only be managed by individuals or body of
individuals or corporations which can be scrutinised by the Auditor General
and therefore accountable to the Public.The Constitution has vested the
administration of public land in the Uganda Land Commission, District
Land Boards, or Regional Land Boards and all these public bodies are
scrutinizable by the Auditor General and therefore accountable to the
public.Under the 1967 Constitution, when all public land had been put
under the Land Commission, any monies accruing from the Land so vested
under the commission had to be paid to such authority as Parliament may
prescribe. This mandate now falls to the three bodies indicated above which
are constitutionally recognised to administer public land in Uganda. Buganda
Land Board being a private limited company has no obligation to account for
any monies or benefit derived from the Land under its administration.
319
It is in this scheme of things that it is imperative for Buganda Land Board

Limited to return the land it is illegally holding and profiteering from
unjustly. Public Assets cannot be in the hands of a private limited
company. The handlers of the Buganda Kingdom, must be humble and
realise the Constitutional mistake of holding onto Land Titles and assuming
proprietorship where no law obtains confering ownership of public land to a
cultural institution. This is the decent way to do it, and this action shall go a
long way in restoring respectability of the cultural leadership. The ball is
squarely in the hands of the sole shareholder of the Buganda Land Board
Company Limited who has the unique historical opportunity to redeem the
tremendous goodwill which surrounded the return of traditional/cultural
rulers to the Uganda Political scene but which if left with no action taken
shall surely disappear into oblivion.
320
CHAPTER ELEVEN
The Legality of the Buganda Land Board

When the Uganda Protectorate gained Independence, the Constitution of
the newly independent State of Uganda, so fit to dedicate the whole chapter
on the administration of Public Land. This was Chapter XII and under
Article 118, Public Land in Uganda was to be administered by three sets of
bodies. The areas of Uganda which were administered under federo units,
public land was under Land Boards, while those under districts; public land
was administered by District Land Boards.235
The rest of Uganda, Land was administered by the Uganda Land

Commission. The Uganda Land Commission (ULC) is a semi-autonomous
land verification, monitoring and preservation organisation, owned by the
Ugandan government, that is mandated to document, verify, preserve and
maintain land owned and/or administered by the government.
The Uganda land commission was established by the 1995 Constitution Art.
238. The Uganda Land Commission was created by the Ugandan Parliament
in 1995. The mission of the ULC is to hold and manage all land in Uganda
legally owned or acquired by Government in accordance with the
235
The Buganda Land Board Charter
321
Constitution of Uganda. The Commission is also responsible for holding and

managing 236land owned by Uganda, outside of the country. However, that
second mandate may be delegated to Uganda's Missions abroad.
The Commission is governed by a full-time Chairperson, assisted by up to

eight part-time Commissioners.
The Commission's Secretariat is headed by the Secretary who is assisted by

the Undersecretary. The Undersecretary heads three distinct functional units
namely;
(a) Finance and Administration,
(b) Technical Support and
(c) Land Fund.
The board has a minimum of five members, with a representative from at least
each county. One third of its members must be women. The upper limit of
the board members is not specified. However, this composition of the boards
is governed by the amount of work and resources available.
The various members are required to be above 18 years, Persons of unsound

mind, they shouldn’t be Members of parliament, convicted of an offence
involving moral turpitude, or persons declared bankrupt and management of
land.
The national and district polices and the customs or guiding principles of an
area have to be born in mind. The duties include:
(i) Hold and allocate land in the district that does not belong to any person
or authority,
(ii) Facilitate the registration and transfer of interests in land,
236
The Land Act Cap
322
(iii) Cause surveys, plans, maps, drawings and estimates to be made,
(iv) Compile and maintain a list of compensations payable in respect to crops,

building of a non-permanent nature after consulting the technical officers of
the district,
In performing its duties, the District Land Boards are independent of any
person or authority. They cannot be controlled, directed, used or influenced.
District Land Boards are independent of the Uganda Land Commission.
This independence gives them the powers to do any of the following:
Acquire by purchase or otherwise, rights or interests in land and easements;
Erect, alter, enlarge, improve or demolish any building or other erections on

any land held by it;
Sell, lease or otherwise deal with the land held by the Board; and
Do and perform all such other acts, matters and things as may be necessary
for or incidental to the exercise of those powers and the performance of the
above functions.
The Buganda land board is a body that represents the kabaka and it is
delegated to carry out land matters in Buganda this is stressed in the case of
Buganda Land Board v Wampamba 237The application was brought by
chamber summons under Order 7 rule 11 and 19 of the Civil Procedure
Rules SI 71-1 and Section 98 CPA for orders that the plaintiff’s plaint be
rejected and struck out for suing a non-existent party and for being
misconceived, incompetent, frivolous and vexatious, bad in law as it does not
disclose a cause of action and costs of the application.
Counsel for the applicant submitted that in paragraph 2 of the plaint, the
applicant was referred to by the plaintiff/ respondent as a body corporate
237
(Miscellaneous Cause 622 of 2013) [2014] UGHCLD 91 (20 February 2014).
323
capable of being sued. With such averment in the plaint, the burden of proof
shifted to the plaintiff to prove the proper capacity of the defendant to sue
and to be sued. Section 101 of the Evidence Act Cap 6 puts the burden of
proof of a fact on the one who asserts that fact. Counsel submitted that a suit
in a name of a non-existing plaintiff or defendant is bad in law and the same
ought to be rejected by court. Counsel relied on the case of Fort Hall Bakery
Supply Co. Vs. Fredrick Muigai Wangoe238That such a suit against a non-
existent party cannot be amended to replace a party that has legal existence
since there is no plaint at all. On this principle, counsel relied on the cases of
Trustees of Rubaga Miracle Centre Vs. Mulangira Simbwa
HCMA239and Auto Garage vs. Motokov240.
A suit against a non-existent party is misconceived, incompetent and

frivolous and the same ought to be dismissed, see also Justice Yorokamu
Bamwine in Bagamugunda Vincent vs. UEB (in liquidation) HCCS No.
400 of 2007. 241
It was held that, no evidence was adduced to show that the Buganda Land
board is a body corporate which was incumbent upon the respondent as the
plaintiff. The result is that the respondent sued a non-existing person. The
suit is thereby bad in law and an abuse of court process. The court has
through its own independent investigations confirmed that the Buganda
Land Board is a business arm of the Buganda Kingdom which was instated
constituted to manage the kingdom land and buildings.

sued should have been the Kabaka of Buganda. Indeed Article 246 (3) (a) of
the Constitution provides that: “The institution of a traditional leader or a
cultural leader shall be a corporate sole with perpetual succession and with
238
[1959]1 EA 474.
239239
No. 516 of 2005
240
[1971] EA 514
241
www.ulii.com
324
capacity to sue and be sued and to hold assets or properties in trust for itself
and the people concerned.
The case was therefore dismissed without costs.
However, in the case of Kalemera v The Kabaka of Buganda & Anor

242
Prince Kalemera H. Kimera (hereinafter referred to as the “Applicant”)
brought this application by Chamber Summons against the Kabaka of
Buganda and the Buganda Land Board (hereinafter referred to as the “1st”
and “2nd” Respondent respectively) under Section 98 of the Civil Procedure
Act Cap 71 (CPA) and Order 41 rr.1, 2 and of the Civil Procedure Rules SI
71 -1(CPR) seeking orders that;
A temporary injunction both issue restraining the Respondents and/or their

agents from further pressing any interest, rights, responsibilities in and /or
ownership of land listed before court vide High Court Family Division MA
No. 278 of 2015 arising out of O/S No.09 of 2014 as falling under the estate
of the late H.H. Sir Daudi Chwa II until the final disposal of the head suit.
Among others.
The application was allowed. An order of temporary injunction was granted

restraining the Respondents or their agents/servants or persons claiming
under them, from acquiring compensation payment from UNRA in respect
of the Kampala – Jinja Expressway Project in respect of land originally
registered under FC 18454 Block 273 Kyadondo, pending the determination
of the head suit in HCCS No. 535 of 2017 or until court otherwise orders.
Conclusively therefore the Buganda Land Board (BLB), the kingdom's entity
responsible for land matters, is an "illegal" outfit that profits a clique to the
exclusion of majority of Kabaka's subjects.243 The administrative seat of
Buganda, runs BLB as a private company to profiteer from public land by
242
(Miscellaneous Application 1086 of 2017)
243
Mr Sam Mayanja, the State Minister for Lands
325
"illegally" charging for issuance of Kyapa Mungalo (titles on Kabaka's land).

"BLB is an agent that acts for the Kabaka (Muwenda Mutebi).
Uganda Land Commission and district land boards have the power to
recommend or issue land titles and Buganda's lease and titling offers are not
backed by law.” Buganda whose lease on Mailo land expires, to renew and
convert it to freehold and stem evictions”.
Therefor the Buganda land board is just there to administer the property
share of the Kabaka of Buganda as per 1900 Buganda agreement entail but
not on the whole mailo thus commits ultravires. Thus, the work of giving out
titles and disputed it has to be given to the Land commission or district land
board
L EG A L V A R I AT ION O F MA IL O LAN D
Until 1975, there were four types of land tenure systems in Uganda Mailo
land which were private and private, Freehold, Leasehold and customary
tenure system. Following the land reform decree of 1975, all land was declared
as belonging to government, people being allowed to settle wherever they
wished for as long as they could make use of the land effectively. However,
the tenure systems were restored by 1995 Constitution.
This form of tenure resulted from allotments made out of the 1900 Buganda
Agreement commonly known as the Uganda Agreement. By article 15 of this
agreement, the total land area of Buganda was assumed to be 19,600 sq. miles
and was divided between the Kabaka and other notables in the protectorate.
The royal family of the Buganda kingdom and high-ranking officials received
958 sq. miles as private mailo or official estate 1000 chiefs and private notables
each received 8 sq. miles which totaled up to 8000 sq. miles, 92 miles went to
existing governments. The 1500 sq. miles of forests, uncultivated land and
what was termed wasteland were vested in the queen of England as Crown
Land. The local peasants or cultivators previously settled on land were not
recognised. They were only later recognised after they rioted in 1927 by the
326
Busuulu and Envujjo law which specified the rights of the Mailo owners and
the peasants who had now become tenants.
This form of tenure resulted from allotments made out of the 1900 Buganda
Agreement commonly known as the Uganda Agreement. By article 15 of this
agreement, the total land area of Buganda was assumed to be 19,600 sq. miles
and was divided between the Kabaka and other notables in the protectorate.
The royal family of the Buganda kingdom and high-ranking officials received
958 sq. miles as private mailo or official estate 1000 chiefs and private notables
each received 8 sq. miles which totaled up to 8000 sq. miles, 92 miles went to
existing governments. The 1500 sq. miles of forests, uncultivated land and
what was termed wasteland were vested in the queen of England as Crown
Land. The local peasants or cultivators previously settled on land were not
recognized. They were only later recognized after they rioted in 1927 by the
Busuulu and Envujjo Lawn, which specified the rights of the Mailo owners
and the peasants who had now become tenants
C U S TO M A R Y LAN D TE N U R E SY S T EM
Customary tenure means a system of land tenure regulated by customary

rules which are limited in their operation to a particular description or class
of persons. It is a system of land holding governed and regulated by customary
principles and in majority of cases sanctioned by customary authorities’
council of Elders, village chiefs and village headmen. The owner may be an
individual or a community, in the latter case, the land is then said to be held
on a communal basis with the exception of Buganda and a few areas in
Ankole, Toro and Bunyoro, where titling took place. Most of the land in
Uganda is held under customary tenure. This tenure varies according to the
ethnic group and region of the country. In some parts of the country,
ownership of land is mainly communal, based on clans, with individual
usufructuary rights over specific plots. But generally, there is a steady
evolution change towards individual ownership. This trend is more
327
pronounced in the densely populated districts in the southern and Eastern

parts of the country less so in the Northern and North-Eastern parts.
Customary land tenure is governed by rules generally accepted as binding by

the particular community meaning that any person acquiring land in that
community shall equally be bound by those rules. However, the application
of any customary rule is subject to the rule not being repugnant to natural
justice, equity, and good conscience, or being incompatible either directly or
indirectly with any written law. That’s why in karegyesa and others D.R14
the high court declined to enforce an alleged kikiga custom, which said that
land formerly cultivated by a child’s mother upon her death automatically
passes to the children and does not revert to the husband. Karokora J, as he
then was, said that such a custom was repugnant to natural justice, equity and
good conscience because it deprived the man, as head of the family, of his
power to control the family properly.
M A IL O T EN U R E S Y S T EM
Mailo system of land tenure means a form of tenure deriving its legality from
the constitution and its incidents from the written law which involves
holding registered land in perpetuity subject to the rights of lawful or bona
fide occupants. In this case, a lawful occupant means a person occupying land
by virtue of the repeated Busuulu and Envujjo law of 1928, the Toro landlord
and tenant law of 1937, Ankole landlord tenant law of 1937, a person who
entered the land with the consent of the registered owner, and includes a
purchaser, or a person who had occupied land as a customary tenant but
whose tenancy was not disclosed or compensated for by the registered owner
at the time of acquiring the leasehold certificate of title.
A Bona fide occupant means a person who before the coming into force of
the constitution; had occupied and utilized or developed any land
unchallenged by the registered owner or agent of the registered owner for
twelve years or more; or had been settled on land by the government or an
agent of the government. The system enhances the economic value of land as
328
it can be offered as security for loan facilities. This sense of security enjoyed
by owners of mailo land encourages them to make long term investment in
the land and to take proper care of the land in which they have permanent
interest. It is further argued that the tenants had security of tenure because
they could not easily be evicted from the land as long as they paid their dues.
However, it is highly contended by opponents of mailo tenure that the system
is unfair in that those who originally got the land did nothing to deserve it.
Furthermore, the owner of the mailo land is not compelled to put the land to
the best economic use.
L EA SEH OL D T EN U R E S Y ST EM
Leasehold tenure is a form of tenure created either by contract or by

operation of law, the terms and conditions of which may be regulated by law
to the exclusion of any contractual agreement reached between the parties,
under which one person, namely the landlord or lessor, grants another
person, namely the tenant or lessee, exclusive possession of land usually but
not necessarily for a period defined, directly or indirectly, by reference to a
specific date of commencement and a specific date of ending usually but not
necessarily in return for a rent which may be for a capital sum known as a
premium or for both a rent and a premium but may be in return for services
or may be free of any required return; under which both the landlord and the
tenant may, subject to the terms and conditions of the lease and having due
regard for the interests of the other partly, exercise such of the power of a
freehold owner as to ore appropriate and possible given the specific nature of
a lease hold tenure.
Lease hold tenure guarantees regulatory role of the state in land transactions
and on the other hand it guarantees everyone the right to apply for and be
granted land in accordance with one’s development needs. However, it gives
too much power to the state in land transactions. This intervention distorts
the land market and leads to corruption.
329
F R EE H OL D T EN U R E
Free hold tenure is a form of tenure deriving its legality from the constitution
and the incidents from the written law involve the holding of registered land
in perpetuity, using and developing the land, taking and using any and all
produce from the land, entering into any transactions in connection with the
land including but not limited, to leasing, mortgaging or pledging, sub
dividing and disposing of the land to any person by will. Free hold tenure
gives individuals maximum protection from the arbitrary and un warranted
interference by the government. Free hold further relieves the government of
the burden of monitoring the use of land like in lease hold which is sometimes
subject
In Uganda, land is very a critical factor; it is the most essential pillar of human
existence and national development. It is the basic resource in terms of the
space it provides, the natural resources it contains and supports, and the
capital it represents and generates. It is a capital asset which can be used and
traded, a critical factor of production and an essential part of national
patrimony. 2It is also a key factor in shaping individual and collective identity
through its history, cultural expressions and idioms with which it is
associated.
Land use is the nature of utilisation under which land is put or the possible
kinds of uses under consideration for the future. It is the exploitation of land
for agricultural, industrial, residential, recreational, or other purposes.
Historically most countries have a laissez-faire attitude toward land use, for
this reason the land has been exploited at will for economic gain. Only in
recent decades have states realized that land is not a limitless commodity.
Increasing population and industrial expansion have generated urban sprawl,
with thousands of square miles of open space being taken over annually for
housing and business. As a result, congestion and widespread pollution,
contamination of the environment as a result of human activities (land use),
along with depletion of water and mineral resources and destruction of
wilderness and wildlife habitats, have become increasingly severe thus the
330
need to protect the quality and continuity of life through conservation of

natural resources, prevention of pollution, and control of land use.
Uganda owes the current system of land use and management to evolution of
ownership and access triggered by the significance attached to land as a
primary production means. The total surface area of Uganda is about
241,500sqkm \ of which 194,000sqkm is land and the rest open water and
wetland. 84,000sqkm of the land which accounts for 43% is rangeland and
24.4% as marginal lands. Close to 88% of Ugandans live in rural areas and their
livelihood depend on land either as pastoralists or farmers practicing
subsistence agriculture. Agriculture is the major land use form that employs
close to 80% of the population and responsible for almost half of Uganda's
Gross Domestic product. Other forms of land use that significantly
contribute to the economy include wildlife management, forestry, wetlands
management and human settlement - industrial production, commercial
enterprises and employment.
The people of Uganda depend on land and land resources to sustain their
livelihoods; ranging from the food they provide; to the land on which their
homes are built, to myriads of goods and services that are essential for their
survival. They make this country habitable; purifying air and water,
maintaining biodiversity, decomposing and recycling nutrients and
providing many other critical functions. Utilization of these land resources
forms a root of Uganda's economy and provides the majority of employment
opportunities in the country and thereby determining the future of this
country. This calls for the proper assessment of the use on which land is put
so that the most suitable option be promoted. Further, the economic
objectives demand that land be put to its productive, economically viable and
sustainable use since economic costs of mismanagement of land will exert a
heavy price on Ugandans especially the rural poor.
Land comprises all elements of the physical environment to the extent that
these influence the potential land use. Land refers to soils, land forms,
331
geology, climate and hydrology, the plant cover, and fauna including insects
and microorganisms. The nature of utilisation under which land is currently
put or the possible' kinds of uses under consideration for the future is referred
to as land use. However, despite all this endowment, Uganda faces a number
of challenges
arising out of a rapidly growing population, the country's quest for

development and poor land use planning practices. These have put pressure
and competition on the scarce land resources and resulted in inappropriate
decisions in the allocation of land use activities. These are manifested, among
others, in form of land degradation, loss of vegetation cover, loss of biological
diversity, wetland degradation; pollution; uncontrolled urban development;
conflicts over land use and reduced productivity.
Such problems would not be elusive to attain if land management was

premised on legislation emphasizing sustainable and optimal use of the land.
However, Uganda has just approved its first defined or consolidated National
Land Policy this year, since the advent of colonialism Instead the country had
a Land Use Policy adopted in 2007, which only focuses on use of the land
resource without addressing the main problem of how land is owned-the
tenurial problem. The Land Use Policy does not provide for proper land use
planning because this would be based on the tenurial aspects of a
comprehensive Land legislation that is lacking. Consequently, Uganda is
faced with problems of inadequate land use planning and enforcement of
land use legislation.
Further land use and its management lie in many and different institutions,
each managing isolated portions and aspects that are un coordinated and in
competition with one another for recognition and resources hence creating
critical overlaps in institutional responsibilities and insufficient collaboration
among public sector institutions and agencies. It is also governed by sectoral
legislation whose tenets are not harmonized. ' In the first decade of the
independent Uganda, there was not much radical transformation in the land
tenure and management regime save for the Public Lands Act which
332
provided for protection of customary land right, thus only protected the
interests of customary land holders. The 1975 Land Reform Decree
introduced fundamental changes in the land question. All land in Uganda
was declared Public
Land and land were vested in the Uganda Land Commission. Whereas all
freeholds interests were abolished and mailo land converted to leaseholds,
customary occupants held their parcels of land at sufferance. This allowed
people to at least access any piece of land and in effect the decree transferred
all land to the state.
People using the land only did so, on a lease basis issued on conditions
specifying the purpose for which the land may be used and for a period of
time limited to 49 years. Under the leaseholds land users only received
usufruct rights from the state and to the customary occupants with no legal
titles to the land they occupied, the decree implied even serious consequences.
Attempts have been made to radically streamline the land management
regime and land use in Uganda; First it was the 1995 Constitution and later
the 1998 Land Act. The two legislations try to reinforce each other, though
management has remained under the mandate of different institutions thus
making it evident that land related policies have remained inconclusive on the
key aspect of land use. This creates a problematic situation for the land use
institutional managers because the Land tenure and Land User Rights This is
a mode of landholding/ together with terms and conditions of occupancy. It
is therefore about the "bundle of rights"88 held and enjoyed in the land
resource. These bundles of rights are relative in terms of the degree of their
enjoyment and they translate into the manner of use of land1 the duration of
use or occupancy as well as relocation of the rights may be through transfer1
lease/ sublease1 bequeathing and licensing. The essence of land tenure
systems are the ways in which land rights1 restrictions and responsibilities
people have are held. The Ugandan Constitution/ 19951 defines the current
land tenure systems to comprise four systems of land tenure including;
freehold1 leasehold1 mailo and customary.
333
Land tenure systems differ across Uganda and tenure practices are a mixture
of traditional practicer colonial regulations and post-colonial legislation.
Land tenure refers to the way land is owned1 occupied1 used and disposed of
within a community. A properly defined and managed land tenure system is
essential to ensure balance and sustainable development. Until 1975 there
were four types of land tenure systems in Uganda1 customary1 mailo1
freehold and leasehold/ (NEMA1 1996). Tenure systems are not confined to
particular farming systems and may encompass several farming systems.
Customary tenure is found all over the country1 but predominates in the
northern and eastern cereal-cotton-cattle farming system1 as well as the West
Nile Cereal-cassava-tobacco system. Mailo tenure1 dominant in the Buganda
region/constitutes the intensive banana coffee system1 but customary1
freehold and leasehold tenure are also found in this farming system.
Customary1 freehold and leasehold tenure is also prevalent~ in the Western
banana-coffee-cattle system and the Kigezi Afro Montane system.244
Customary land tenure is the most dominant in Uganda, whereby land is

owned and disposed of in accordance with customary regulations. Specific
rules vary according to ethnic groups and regions. This tenure system also
exists on its own as communal land ownership. Customary land tenure was
the only land tenure system in operation before colonial rule in the late 19th
century. Up to the time of the Land Reform Decree in 1975, land held under
244
E.M Tukahirwa. (1992) Uganda Environmental and Natural Resources Management
Policy and Law: Issues and Options, val. 11. Documentation. Thomas Grey, 1980. "The
Disintegration of Property" in Property, J. Ronald Penncok and John W. Chapman eds.
NOMOS Monograph No. 22. The Constitution, Article 237, Paragraph 3. 90 M.
Kamanyire. (2000). Sustainability Indicators for Natural Resource Management & Policy.
Working Paper 3; Natural Resource Management and Policy in Uganda, Overview Paper.
EPRC. ISBN: 1
334
customary tenure constituted about 75% of all the land in Uganda (EPRC,
1997). Principal categories of customary tenure are:
Communal/tribal tenure where ownership of land occupied by the

community or tribe is vested in the paramount tribal leader as owner, who
holds it in trust for the entire group or clan/family tenure where land is vested
in the head of the group as owner or trustee for the entire group.
Customary tenure does not recognise individual ownership of land. It only

recognises the rights of the individual to possess and use land subject to
superintendancy by his family, clan or community. The disadvantage is that
it does not encourage record keeping, often making it difficult to resolve land
use disputes.
Environmentally the main disadvantage is that it generates little personal

interest in the status of land resources (tragedy of the commons) leading to
mismanagement and degradation (NEMA, 1996).
Mailo tenure was introduced as a result of the 1900 Buganda Agreement.

Under this Agreement, 9000 sq. miles of land were divided between the
Kabaka, other notables and the Protectorate government. This area
represented half the estimated area of Buganda. The basic unit of sub division
was a square mile, hence the name mailo. Initially there were two categories,
private mailo and official mailo. In the case of official mailo, grants of land
were attached to specific offices in the Buganda government. They could not
be subdivided or sold but passed intact from original office holder to his
successor. In private mailo, the owner held rights in the land akin to those of
freehold and could dispose of land as he wished.
Official mailo land was transformed into public land in 1967, with the
abolition of kingdoms. Under this system land is held in perpetuity and a
certificate of title is issued (EPRC, 1997). The allocation of original mailo
holdings took no account of the rights of peasant cultivators whose tenancy
335
rights were recognised under the customary land tenure that had existed
before.
The principal advantage of this system is that it provides security of tenure

thus allowing long term developments including those related to
conservation. Absentee landlordism and lack of access by regulatory agencies
are disadvantages that limit sound environmental management. Absentee
landlordism encourages squatters on mailo land who have no incentives to
ensure sustainable management of land they do not own. To the extent that
mailo land is private, resource management regulatory agencies have limited
authority over what happens on it. As such, most of the deforestation
occurring in the districts of Buganda is on mailo land.
In freehold tenure, ownership is also in perpetuity and a certificate of title is

issued. The system was originally established to address limited and specific
requirements or requests such as by religious organisations. Freehold tenure
was also granted by the Toro Agreement of 1900, Ankole agreement of 1901
and Bunyoro Agreement of 1903. The Crown Lands Ordinance of 1903 gave
the British colonial administration power to alienate land in freehold. This
system is found mainly in parts of eastern and western Uganda. It is argued
that while land held under freehold tenure is not of the same magnitude as
that under mailo tenure, it has a lot of similarities with mailo tenure and
shares the same environmental management problems. Also, that due to
population pressures in parts of Uganda where freehold tenure exists, land
fragmentation is a common occurrence.
Land fragmentation is believed to have contributed to significant

environmental degradation although concrete evidence is lacking. Leasehold
is where land is held based on agreement between lessor and lessee. There are
two types of leasehold tenure agreements, private leases given to individual
landlords and official or statutory leases given to individuals and or corporate
groups under public act terms. The advantage of the leasehold system is that
the lessor can attach conditions to leases and has the right to revoke ownership
in case of abuse. The main disadvantage is that leases are costly and
336
cumbersome to obtain and so far, leases awarded have not addressed

environmental concerns.
The different land tenure systems affect land use and land management in a
variety of ways and have environmental impacts too.
Access to land
Land utilization relates closely to the different tenure systems because the
purpose, interests and rights of the parties involved impact greatly on the
activities and innovations the occupants and or owners undertake on the
land. The most developed estates in Uganda are in urban areas and in freehold
and leasehold systems. The main reason is that relatively the holders enjoy
unquestionable and unimpeded user rights fully backed by the law. Hence
the holder can inject any amount of money so as to develop the land. The
implication here is that the majority of the populations have resorted to trying
access land for cultivation and grazing, a condition that has culminated into
excessive and sometimes unwise utilization and subsequent degradation.
Property Rights
These are economic interests supported by the law. In real estate law,
property rights are referred to as bundles of rights because ownership of a
parcel of real estate may embrace a great many rights, such as the right of
occupancy and use, the right to sell property in whole or in part, the right to
bequeath, the right to transfer by contract for specified periods of time, and
all other legally sanctioned benefits to be derived by occupancy and use of
that piece of real estate.
Rights to private property, therefore, include the right of use, the right of
exclusion and the right of transfer. However, private property has no uniform
meaning. In some instances, as defined above, property refers to real estate. In
other context; it refers to rights in good against a particular person or the
world under contract. Property can refer to remedy or restoration or
337
injunction, as opposed to damages. Still other accounts of property are result

oriented. It can refer to a means to promote allocative efficiency or to protect
individual security and independence.
Condominium Property
A condominium is one of a group of housing units where each homeowner

owns their individual unit space, and all the dwellings share ownership of
areas of common use. Units normally share walls, but that is not a
requirement. The main difference in condos and regular single homes is that
there is no individual ownership of a plot of land. All the land in the
condominium project is owned in common by all the homeowners. Usually,
the exterior maintenance is paid for out of homeowner dues collected and
managed under strict rules. The exterior walls and roof are insured by the
condominium association, while all interior walls and items are insured by the
homeowner. In summary it is a form of property ownership in which each
owner holds title to his/her individual unit, plus a fractional interest in the
common areas of the multi-unit project. Each owner pays taxes on his/her
property, and is free to sell or lease it. And in essence condominiums, are
apartments that are individually owned. Common elements generally include
walkways, driveways, lawns and gardens, lobbies, elevators, parking areas,
recreational facilities, storage areas, laundry rooms, stairways, plumbing,
electrical systems and portions of walls, ceilings 245
The Uganda Legal Information Institute (ULII); Legal Opinion on

Condominium Property.
Floors, and other items. Parts of the common elements may be designated for
the exclusive use of one or more of the individual unit owners, in which case
these are called limited common elements or limited common property. In
245
T. Grey. (1980). "The Disintegration of Property" in Property, J. Ronald Penncok and
John W. Chapman eds. NOMOS Monograph No. 22.
338
other words, they are limited for the use only of specific owners. Examples
would include parking spaces, roof gardens, balconies, storage lockers, and
front and back yards. In Uganda Condominiums are becoming more popular
because of better land utilization, price competitiveness, built-in amenities,
and convenient locations and designs. The condominiums are important for;
better land· utilization, price
competitiveness, built-in amenities, and convenient locations and designs,

condominium ownership appeals to active young singles, couples without
children, couples with children, and pre-retirement and retired couples or
singles.
However, in Uganda, the implementation of the Condominium property

law (CPL) is still lacking yet this law provides for division of buildings into
units and common property; individual ownership of those units by issuance
of certificates of title; ownership of common property by proprietors of units
as tenants in common and the use and management of the units and common
property and for other connected matters.
Further, the Condominium law is vital for enhancing the viability of housing
finance. Although few private developers and public corporations have been
selling apartments in high rise buildings, there is no much emphasis on this
law for such transactions. For example, the sale of multi- family houses by the
national housing and construction corporation was preceded by the
enactment of the condominium law in 2001.
In Uganda, land continues to be a critical area, and an essential pillar for both
human life and national development. The land question in Uganda has
origins in the legacy of colonialism, wherein historical injustices deprived
some communities of their ancestral lands that resulted in multiplicity of
tenure regimes, multiple rights and interests overlapping on the same piece of
land, and a heritage of evictions, arbitrary dispossession, land disputes and
conflicts. The major land reform was attempted in 1975, with 'The Land
Reform Decree' that declared all land to be public and vested the State with
339
the power to hold land in trust for the people of Uganda, thus all land being
administered by the Uganda Land Commission. It also abolished the Mailo
system of land tenure and converted them into leaseholds of 99 years. In 1995
a new Constitution was
enacted, which reinstated the old tenure systems and gave land ownership
back to the citizens of Uganda. Recently, the Government Uganda approved
the National Land Policy, which among other things, seeks to re-orient the
land sector in national development by articulating management co-
ordination between the land sector and other productive areas to enhance the
contribution of the sector to social and economic development of the
country.
P R E -C O L ON I AL
It is difficult to identify a single land tenure pattern for Uganda as a whole for
this period because before colonial rule, land tenure in Uganda consisted of a
number of customary tenure systems, both sedentary and pastoralist. In
general, customary tenure in sedentary agricultural communities revolved
around kings and chiefs who allocated land to clans and community
households according to The Uganda National Land Policy, 2013, Gazetted
on the 30th August, 2013. Ministry of Lands, Housing and Urban
Development. General Notice No. 504 of 2013; In the Uganda Gazette, Vol.
0/I No. 43 of 30'h August, 2013 28 customary norms and practices. Every
person and household had the right to access sufficient land for their
subsistence; this right came either from the lineage or clan head or from the
chief to whom the person pledged allegiance. Transfer (i.e., rent, sell, and
sometimes inheritance) rights were not granted-land not used or wanted
reverted to the King or chief. Since most lineages in Uganda are patrilineal,
when land was handed down within a family, it passed from father to son.
In the semi-arid regions of the country, access to land by clans and households
was generally based on agreements with other clans that permitted the
movement of households and cattle during the year to areas where pasture
340
and water were available. Thus, households did not seek access to a piece of
land in particular community or lineage on which to build shelter and plant
crops, but rather access to lands along the traditional cattle corridor.
Customary tenure recognized various rights of the individual to possess and
use land subject to sanction by the family, clan and or community. Therefore,
the individual land holder had the right under customary tenure to utilize
land as thought best, res~ or lend a piece of land for temporary purposes,
pledge crops on land but not land itself. Sale of land was subject to the
approval of the family. The clan or family had the right to settle land disputes
within the area of control, exercised the right to buy any land offered for sale
by its member; as regards utilization, the general community had the right: to
graze communally over the whole area, free access to salt licks, watering of
cattle at running or open waters and access to water from springs and other
common rights.
In the central (Buganda), land was by and large held by the Kabaka on behalf
of and in trust for the people. The Kabaka effectively undermined the power
of the clan heads largely by means of the power to appoint chiefs of various
grades who had both administrative and military duties. In return, chiefs also
got the right to use the land and produce of the peasants under them. At least
four categories of rights of control over land could be identified:
Rights of Clans over land (Obutaka), these rights accrued to heads of clans
and sub clans who were known as bataka. The particular land involved was
viewed as clan or ancestry landr the traditional seat of the head of the clan or
sub-clan who determined a right to reside there but had a right after their
death to be buried on such lands. Butaka estates were held not in private
ownership but in semi-collective tenure where a mutaka could allocate the
right to use land and receive profits from the land with consent of the clan.
This tenure was not alienable to foreigners and succession was passed to the
successor in the role of mutaka rather than the descendants of a particular
mutaka.
341
Rights of the Kabaka and the Chiefs (Obutongole) the Kabaka held
paramount title to all land in Buganda. He granted land to his great chiefs
(bakungu) who were few in number and to his lesser and more numerous
chiefs called batongole. These rights in land are collectively described as·
obutongole. The grantees had rights of use in the estates attached to their
chiefly offices. These rights were good during the continuance in office of the
particular chief. The batongole exercised the same rights towards the peasants
on their lands as those exercised by bataka with regard to the tenants on
butaka land. Individual hereditary rights (Obwesengeze)r these were
individual rights over land stemming from long and undisputed occupation
and1 or original grant by the Kabaka. They could be acquired by a chief or
individual tenant. This type of tenure carried no political rights or duties like
butongole tenure1 and unlike butongole tenure1 if the holder died the land
passed on his to heir. The holders were not subject to labor obligations like
peasants. 246
Peasants' rights of occupation (Ebibanja), the peasants formed the majority

of the population. The peasants were free to choose a chief under whom to
live. A peasant got a piece of land for his undisturbed occupation under a
chief of his choice who would organize for his security and general welfare
while the peasant was to respect his chief, render him some tribute and
occasionally work for him.
However, although the peasant performed, would still be subject to being

evicted from his kibanja/plot by the chief at any time. His rights of tenure,
therefore, depended on his maintaining the cordial social relation and correct
political behavior.
Upon his death, a peasant's successor had a right to remain in occupation. It

is therefore clear tha.t land relations in the pre-colonial period were, classified
in a number of ways, some of which are unique to particular communities.
Kisamba Mugerwa. Private and Communal Property Rights in Rangelands and Forests in
246
Uganda.Makerere University of Social Research1 MUK.p. 3 30
342
Relations were based on feudalism where access to land was controlled by an

oligarchy in which political power in society was exclusively vested. Security
of tenure for land users was based on continuous loyalty to that oligarchy.
The payment of tribute in the form of produce and gifts was therefore, a
requirement as evidence of that loyalty. At the time of colonization, this
system was fully established in and unique to the kingdoms of Buganda,
Bunyoro, Ankole and Toro. Systems of land tenure were based on territorial
control in which access to land resources was governed by a complex network
of reciprocal bonds within families, lineages and larger social units commonly
called chieftaincies to protect and guarantee individual and community rights
as prescribed by custom. As long as such bonds remained, any individual or
group of individuals could secure access to the resources of that community.
Further, for the systems of land tenure prevalent in the non-feudal sedentary
communities, land relations were defined not only by the network of social
relations prevalent in each community, but also by the specific uses to which
parcels of land occupied by individual families, clans or lineages were put.
Tenure relations therefore recognized individual rights as well as community
obligation in virtue of access to such rights. The radical title to land was
always vested in the community as a corporate entity rather than in the
political organs through which control of the territory or the resources of the
land was exercised or mediated.
C OL ON IA L P ER IO D
The colonial state in Uganda was built on the official philosophy of

protectorate and indirect rule rather than colony, territory or direct rule. The
dominant economic structure chosen was one of small peasant agriculture
under the prevailing customary tenure since it was considered dangerous to
modify customs as arbitrary imposition of change would cause a total failure
of effortS to administer the local indigenous population. Therefore, in order
to appease the local chiefs and get local political allies in the effective
343
administration of the country, the colonial administration introduced polices

which could accommodate customary tenure.
Besides, the preservation of customary tenure, mailo tenure and leasehold

tenures were introduced.
Mailo land
By virtue of the 1900 Buganda Agreement, large extensions of land called

mailo estates were conferred to chiefs and other notable personages. Mailo
land was divided into two categories: Official Mailo which was grants of land
attached to specific ·offices in the Buganda local Government; these lands
could neither be sub-divided or sold and instead passed intact from the
original land holder to his successor. These were abolished in 1967 and
became public land.
Private Mailo were estates allotted to some 1,000 chiefs and private land
owners, equivalent to 8,000 square miles of land. Approximately half of
Buganda (more than 8,000 square miles) became formally privatized, despite
the fact that these mailo estates were already settled by smallholders under
customary tenure, whose usufruct /land use rights were not legally
recognized. By 1963, it was estimated that the original 4,138 estates had
increased to 89,089 estates as a result of sub-divisions through inheritance and
sales. Other persons who wanted to settle on mailo land had to approach the
mailo owner and get permission to occupy a specific piece of land on terms
agreed with the landlord.
Though tenants paid rent and labour services, the mailo owners were
considered lords of their area and their tenants were their servants; even
though mailo owners permitted them to retain possession of the land they
were occupying, this effectively converted them from customary land users
into legal tenants on private property. This laid the ground for the genesis of
multiple rights on the same piece of land, which is a defining characteristic of
land relations as evidenced by evictions and a land use impasse between
landlords and tenants in contemporary Uganda. In 1928, a law that provided
344
the tenant cultivators with security on the land and set a limit on the fees
which they are required to pay to the mailo owner was enacted. This law
acknowledged use rights by making it very difficult to evict tenants. However,
the result was confusion over who holds what rights. Formally, landowners
had legal private ownership rights to the land, but their tenants felt they had
permanent use rights to the land they held even though they paid rent. When
the mailo owner sold land, for example, it was understood that, his or her
tenants remained on the land. While tenants were legally operating on private
property, actual practice was based on customary norms, and 'rents' did not
actually reflect the asset value of land.
Freehold
The colonialist introduced three types of freehold, outside of Buganda: There

were freeholds created under the crown lands ordinance of 1903 from crown
land to individuals by the colonial Government. Very few freeholds were
given under this ordinance and these attached development conditions which
were carried forward by the Public Lands Act, 1969. The state however,
reserved the right to enter and inspect the adjudicated freeholds. There were
adjudicated freeholds converted from customary tenure pilot schemes in the
districts of Kigezi, Bugisu and the Kingdom of Ankole. In these schemes there
was surveying and actual registration of existing customary holdings.
In some areas, consolidation of fragmented plots was also carried out. And
finally, the native freeholds (similar to mailo in Buganda) which were grants
of land under the Toro and Ankole Agreements of 1900 and 1901,
respectively. Such land could only be transferred only to a native of the
kingdom. The terms of the tenure were not freely negotiable but were fixed.
Leasehold
A leasehold estate is an estate created in land as a result of an agreement

between a lesser and a lessee 'to the effect that the latter will enjoy exclusive
possession of the land subject to a specified and certain duration in
345
consideration of a cash payment or otherwise called rent moving from the

lessee to the lesser. In Uganda, there are two types of leases: private lease and
leases out of public land. A private lease is granted by an individual landowner
to an individual or organization. The public leases are given by a public
authority.
Customary Land
For the rest of Uganda, all land not alienated under mailo, freehold or
leasehold became crown /public land. All land users became, at the stroke of
a pen, tenants at will of the State. After independence, under the Public
Lands Act, 1969, any person was authorized to hold land by customary
tenure without any grant, lease or license from any controlling authority
provided the land was not in an urban area and had not been alienated into
registered tenure.247 As referred to in the case of Tifu Lukwago v Samwiri
Mudde Kizza and Nabitakcr10 which cited the decision in Paul Kisekka
Ssaku v Seventh Day Adventist Church111 where it was held that customary
occupation without consent of the prescribed authority was unlawful
Two general customary systems can be distinguished; under the communal

land system, primarily found in northern Uganda, the household is the
primary owner of the land and may include extended members of the family.
Communal land in Uganda includes gardens and pastures, grazing areas,
burial grounds and hunting areas commonly known as common property
regimes. User rights are guaranteed for farming and seasonal grazing, access
to water, pasture, burial grounds, firewood gathering, and other community
247
W. Kisamba Mugerwa. Private and Communal Property Rights in Rangelands and
Forests in Uganda.Makerere University of Social Research, MUK. 107 As stipulated by the
Ankole Landlord and Tenant Law, 1947 and by Toro Landlord and Tenant Law, 1937 108
In Uganda today, public leases are provided for under the Public Lands Act, 1969.
346
activities. No specific ownership rights of control are conferred on users.

Control and ownership are through the family, clan, or community.
Under individual, family; or clan customary tenure, emphasis is also placed

on use rather than on ownership. Male elders are the custodians of customary
land in most communities and determine distribution of the land. However,
the family rather than the community has more control in the land
utilization, and individuals in the family are allocated land. Allocations are
only made to male members of the household with very few exceptions. As
customary land has become more individualized and incidents of sale are very
high though not initially acceptable, often before a sale is made clan members
and family have to be consulted.
The advert of colonialism therefore, legitimized an intricate system of

political relationships based on land that had been in existence for centuries,
with distortions of individual property relationship introduced and
engrained as a defining attribute. This shift was mediated through a series of
agreements made with traditional rulers and their functionaries compelling a
move from informal feudal relations in access to land; defined either by
kingship, territorial control or social relations, to land relations whose
operations were set within legislative norm. This not only legitimized the
feudal system of land tenure then in existence, but firmly conferred upon
feudal overlords' absolute control of land which they never had under
customary law; thus, a formal transformation was accomplished. An
elaborate system of land rights administration and registration was instituted
to confer absolute title to legal beneficiaries and is still in existence to date.
More so, the advert of colonialism firmly located the radical title to land by
implication, to the British colonial government, who asserted the right to
control the management and use of land, thus usurping and right to control
and the power to manage the use of land previously vested either in
communities or in the political functionaries of such communities. Being
holder of radical title, the colonial government proceeded to grant a limited
number of freehold estates to selected individual’s churches and
347
corporations. The privatization of ownership left the occupants of mailo and

native freehold in an insecure position for it meant that the genesis for
multiple interests and rights on land was permanently laid and today has been
blamed for the escalating land conflicts and evictions in the central region.
For instance, the case of Kampala District Land Board and other v Venansio
and the one major, and best known, intervention by the British in Uganda's
land tenure relations was 1900 Buganda Agreement, which set in motion,
firmly and steadily, the conversion of customary property rights into
individualized property ownership rights in Uganda on the basis of a system
approaching freehold tenure.
Other, where the respondents were facing eviction from the suit land, Court
noted that, 'It was an admitted fact that the respondents were in occupation
of the suit land at the time the lease was granted to the second appellant. The
predecessors in occupation to the respondents had been in possession of the
suit land since 1970. that they were not customary tenants, but they were
described variously in the lower Courts as squatters, tenants of a tentative
nature, licencees with possessory interest, or bona tide occupiers protected
from administrative injustice.' This clearly indicates how the existing land law
accommodates multiple interests on the same piece of land though even in
some instances such as this case it is not clear, which particular interests the
respondents had in the suit property save for being in possession hence
resulting into unending conflicts.
P OS T -C OL ON I A L P E R IO D
The 1962 Independence Constitution slightly modified the tenure relations

and established a National Land Commission to hold and manage land
formerly held by the colonial government as "crown land" henceforth
renamed "public land", and land boards within federal units to perform
similar functions in those areas. Land which had been allocated to or vested
in indigenous entities such as the Kingdom of Buganda, Ankole and Toro
was not, affected by the independence Constitution.
348
Although the 1966 and 1967 Constitutions abolished federalism, they did
not change the structure of land holding and distribution established under
colonialism.
In 1975, a Land Reform Decree was promulgated. It made radical changes in

respect of the land and vested all land; the radical title, in the State to be held
in trust for the people of Uganda, and to be administered by the Uganda Land
Commission. It abolished all mailo and freehold interests in land converting
them into leasehold of 199 years where these were vested in public bodies and
to 99 years where these were held by individuals, except those vested in the
State which were transferred to the Uganda Land Commission. The decree
also abolished all laws that had been passed to regulate the relationships
between landlords and tenants in Buganda, Ankole and Toro. It scrapped the
protection accorded to kibanja tenants whether on registered
land or on customary land requiring their consent and compensation before

alienation. Thus, customary land users became tenants at sufferance
occupying state land and could obtain long-term leases. However, this new
tenure structure introduced by the Decree was largely ignored by local
authorities, tenants and landowners alike. Mailo owners and tenants
continued to operate in the semi-customary arrangements they were
practicing previous to 1975. The law was never implemented in practice; by
and large land transactions were being conducted as if the Decree did not
exist. But it remained in the statue books until 1995 when the 1995
Constitution repealed it and established a new system of land administration,
consisting of land boards in every district.
This Constitution introduced radical changes in the relationships between

the State and the land and vested the radical title in the citizens of Uganda and
in accordance with specific land tenure systems enumerated therein; mailo,
freehold, leasehold and customary. This reversed the provisions of the 1975
Land reform decree and accepted a multiple tenure system. It's therefore clear
that Uganda's policy since colonial times has privileged individual private
349
property. Freehold tenure and land markets have been put forward as
progressive and efficient structures for economic development. The
customary tenure systems that permit traditional pastoralism have found
their areas restricted as common grazing lands become individualized private
property. This tendency continued even under the Land Reform Decree of
1975, the Constitution, 1995 and has been the policy drive up to present day
Land Act, 1998115.
L AN D T EN U R E IN C O L ON I AL AN D P OS T C O LON IA L U G AN D A
The emergence of new tenure systems:
One of the influences that impacted on the Customary system of land

holding was the introduction of new systems of land holding after
colonialism. These are covered below:
The colonial state in Uganda was built on the official philosophy of

protectorate and indirect rule rather than colony, territory or direct rule. The
Colonial state didn’t introduce radical changes in the system of customary
tenure in Uganda. The dominant economic structure chosen for Uganda was
one of small peasant agriculture under the prevailing customary tenure.
However, other land policies which could accommodate customary tenure
were introduced to appease the local chiefs and get local political allies in the
effective administration of the country. The colonial administration thus
introduced policies which could accommodate customary tenure.
Mailo Tenure
This system is not a traditional system of land holding in Uganda and is

founded on English feudal systems. It was established under the 1900
Buganda Agreement. It was born out of the settlement between the
protectorate administration represented by Sir Harry Johnstone on the one
hand, and the existing leadership in Buganda (at the time) represented by
elders and chiefs – on the other hand.
350
In 1900, Sir Harry Johnston, as Her Majesty’s Special Commissioner in

Uganda, entered into a historic agreement with the Kabaka’s regents
(Stanislus Mugwanya, Zakaria Kisingiri and Apollo Kaggwa, and Chiefs of
Buganda. This agreement was to establish clearly the powers of the Kabaka’s
government vis-à-vis the protecting power and the limits of those powers and,
paramount of all, to affect a land settlement which, by giving security of
tenure, would lay the foundation for the economic growth of the Kingdom.
This was the Uganda Agreement of 1900. It was later changed to read:
‘Buganda Agreement’ by legal notice of 1908. The agreement granted
square miles of land to Chiefs and private land owners hence the term ‘mailo’
deriving from the English length-unit (mile) which was the basis of
measurement in land allocations. The agreement divided the land among the
crown (Queen’s government), the Uganda Protectorate Administration, the
Kabaka, his Chiefs and missionary societies. The total land under the
Protectorate Government was 10,550 sq. Miles and came to be known as
‘Crown land’.
Partly owing to the fact that more land was found to be available than was
originally assessed, considerably more land was, after negotiation, allotted as
private estates than the agreement provided for. Furthermore, owing to an
interpretation by the Baganda that “1000 Chiefs and private land owners”
meant “1000 chiefs and, in addition, land owners”, thus the number of
allottees under this section was, in fact, nearly 4000.
There were two categories of Mailo which were divided thus:
(a) Official Mailo
These were grants of land attached to specific offices in the Buganda Local
Government. They could neither be sub-divided or sold and instead passed
intact from the original land holder to his successor. This official mailo was
defined in sec. 6 (a)&(c) of the Buganda Possession of Land law:
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Section 6 “Every man who has land for his chieftainship shall hold it as follows:
(a)For all the time that he holds his chieftainship he will be allowed to take all
the profits from the land which he has, except as written in the words below. . ..
(c)To hold land in this manner will be called to hold “official Mailo” and shall
be governed as directed above . . .”
The holder of an official estate could not sell that estate but he was capable of
leasing the same in accordance with the Official Estates Ordinance/Act of
1918 (Cap. 203 of the 1964 ed. Laws of Uganda). This applied also to the
grounds of official estates of Toro and Ankole Agreements. So here, one held
land by virtue of his chieftainship (office), thus it was not private
property. Under the agreement, it was clear that the 350 square miles given
to the Kabaka was to be Kabaka-ship mailo, i.e it was not private property.
Official Mailo was abolished in 1967 and these estates became public land.
(b) Private Mailo
In such estates, some 1000 chiefs and private land owners were allocated
8,000 square miles of land under the 1900 Buganda Agreement. The Mailo
land owner held rights in his land akin to those of free hold. He was free to
sell all or part of his holding and to pass it to his successors either under
customary inheritance procedures or through a will. Approximately half of
Buganda (more than 8,000 square miles) became formally privatized, despite
the fact that these mailo estates were already settled by small holders under
customary tenure, whose usufruct (land use) rights were not legally
recognized.
Under sub sec. (a) of section 2 (Buganda Possession of Land law), there was a
prohibition from owning more than 30 square miles of mailo land, whether
by one self directly or by others for someone, except with the approval in
writing of the Governor and the Lukiiko (Buganda Parliament). Therefore,
individual holdings of mailo were not to exceed 30 square miles.
The Buganda Possession of Land law 1908 prohibited a mailo owner from
352
transferring land to a person who was not of Ugandan origin without prior
consent of the Governor and the Lukiiko.
Clauses 15 to 18 of the 1900 Buganda Agreement dealt with the issue of land.
The essence of this settlement was that approximately one half of Buganda
became crown land and was vested in the Protectorate government. This is
what was referred to as Public Land. The other half was widely distributed in
the form of freehold estates (‘mailo’) to the Kabaka, his relatives, Senior
chiefs, one thousand other chiefs and private land owners. These people got
square miles of land among themselves. Historical records show that the first
mailo title was issued on the 2nd of January 1909 though by 1964, the total
number of titles issued was 48,519 (forty-eight thousand five hundred
nineteen). These grants under the Buganda Possession of land law,
1908, were in the nature of freehold. The new system thus cemented
individual title ownership.
The 1900 Agreement, however, did not define the nature of the estate
(tenure) that had been granted to the Kabaka, Chiefs, etc. It was not
mentioned in the agreement as to what was the character of the grant. The
agreement was pre-occupied with the question of acreage. It was not until
1908 that Mailo tenure was actually defined in the Buganda Possession of
Land law, 1908. Under Section 2 thereof, for the first time the word ‘mailo’
which is derived from the English word ‘mile’ was coined (out of a corruption
of the English word) to refer to land which the government had surveyed and
recognised as belonging to someone.
In further criticism, allocation of the original mailo holdings in the early part
of the century was made without regard to pre-existing rights of occupancy
and ignored the presence of peasant cultivators whose tenancy rights were
recognised under customary system of land tenure. These people, who had
been occupying the land in different capacities, i.e as bibanja holders at the
King’s pleasure; as Chiefs (Butongole); as part of Butaka (clan) land, now had
to adapt to a new system where they had a land lord directly over them and
353
possessing title to the land. They therefore could no longer hold their land as
they traditionally did but under the dictates of the new Mailo system.
Other persons who wanted to settle on mailo land had to approach the mailo
owner and get permission to occupy a specific piece of land on terms agreed
with the land lord. Initially, most tenants paid little or no rent and labour
services, particularly on large estates. Mailo owners were considered lords of
their area and their tenants were their servants. Even though mailo owners
permitted peasants to retain possession of the land (called kibanja) they were
occupying, this effectively converted them from customary land users into
legal tenants on private property. This fact alone laid the ground for the
genesis of multiple rights on the same piece of land, which is a defining
characteristic of land disputes and relations as evidenced by evictions and a
land use impasse between land lords and tenants in contemporary Uganda.
The first sign of discontent in the relationship between mailo owners and
tenants which brought about conflicts in the mailo system led to the
enactment of the Busuulu and Envujjo law of 1928 which provided the
tenant cultivators with security on land and set a limit on the fees which they
were required to pay to the mailo owner. This law was instrumental in
preventing the development of a landless peasant class. It was enacted as a
result of complaints from tenants over the land lord’s increase in the rate of
busuulu and envujjo (rent) payable. Under this law, the rates were
standardised and restricted and the peasants could not be forced off their
bibanja without an order of Court. [For further information on this
interesting piece of legislation, refer to notes on Busuulu and Envujjo law].
The new system with its change in ownership was particularly profound for
those who held land as bibanja holdings. They remained as such on mailo but
on top of being subjected to Customary obligations, also had to conform to
the Busuulu and Envujjo law of 1928.
The Land Transfer Act, No. 33 of 1970 barred a non-African from acquiring
any interest in land owned by an African without consent of the Minister.
354
The Toro Agreement of 1900 and the Ankole Agreement of 1901
These introduced an almost similar scenario in Ankole and Toro. Here the
agreements merely granted estates (in the form of native freeholds) to a
limited number of chiefs and vested in the crown all land at the time which
was waste and un cultivated. Part of the grants covered land which was
customarily occupied. The existing occupants had to adjust their customary
occupations in face of the new system of land holding. The relationship
ceased to be entirely based on customary rules but became entirely based on
British law, particularly the Toro Land Lord and Tenant Law, 1937 and the
Ankole Land Lord and Tenant Law, 1937.
Crown Lands Ordinance 1903
In the Toro and Ankole Agreements (1900 & 1901 respectively), no mention
was made of land which was cultivated but was not included in the freehold
estates. The estates allocated were treated, unlike the mailo estates in
Buganda, as grants from the Crown under the Crown Lands Ordinance of
1903.
In the rest of the Country (inclusive of Buganda, Ankole and Toro), two new
systems were introduced under the Crown Lands Ordinance, 1903. Under
this Ordinance, the Governor was empowered to make grants in leasehold
and in freehold over what was called crown land.
It was not until the Crown Lands (Declaration) Ordinance, Cap. 118, was
passed in 1922 that the Crown’s rights over land, other than unoccupied
land, land acquired for public purposes and that covered by the Agreements,
was clarified. The Ordinance stated that – “all land and
any rights therein in the Protectorate, shall be presumed to be the property of

a person or until the contrary thereof be proved.”
The granting in Leasehold and Free hold by the Governor brought about two
influences on the customary system of land holding:
355
i) A person customarily using land together with others, or holding

land customarily, could opt out of the customary arrangement and instead
apply for a leasehold or freehold title.
ii) It became increasingly possible for people to be bought out from their
customarily held pieces of land.
Thus, land held customarily became subject to market forces and

individualised dealings. Sec. 24 (2) of the Public Lands Act, 1969 sanctioned
the practise of people selling their customary land to those ready to get title.
It states as follows:
“A controlling authority shall not make a grant in freehold or leasehold of

public land which, or part of which is occupied by persons holding by customary
tenure, without the consent of such persons.”
T H E L AN D R E F OR M D E C R E E , 1975 – I N FL U EN C E ON
C U S TO M A R Y TEN U R E SY S T EM
The advent of the Land Reform Decree in 1975 led to the repeal of Sec. 24(2)
of the Public Land Act (however, this provision is presently reflected in the
Land Act). Section 3 of the Land Reform Decree (providing for Customary
tenure on public land) provided that:
“(1) The system of occupying public land under Customary tenure may
continue and no holder of a customary tenure shall be terminated in his
holding except under terms and conditions imposed by the (Uganda Land)
Commission, . . . and accordingly, the Public Lands Act, 1969, shall be
construed as if sub section (2) of section 24 thereof has been deleted
therefrom.” On the basis of this provision, it became possible for someone
holding land customarily to be forced out of that land by the Land Board
granting a lease to another party.
Thus, the introduction of these new systems had the effect of subjecting
customary systems of land to competition with other systems. In quantitative
356
terms, land subjected to customary tenure system has diminished and

continues to do so as the new systems take their hold. Presently, on average
there are 2,500 transactions involving mailo titles and 2000 transactions
involving leasehold titles at the Registry of Lands. As of 2009, the number of
titles at the registry headquarters was as follows: 600,000 Mailo titles; 110,000
leasehold titles; and 17,250 freehold titles. Regardless of these figures, land
customarily held still constitutes about 70 % of land in Uganda. However,
under the Judicature Act, the principle is clear that customary law is subject
to written law. Therefore, a system of written law would prevail over a
customary law system. Case points: see Kampala City Council v Odindo
[1971] H.C.B 32 and Garuga Properties Ltd v K.C.C H.C.C. S No. 576 of
1990; [1989-91] Kalr 129
The Land Reform Decree watered down the rights of those who held land
under the Customary system of land holding. The Decree was based on the
philosophy that no one should own land absolutely because to do so would
put land on those who can’t utilise it for economic development and yet those
who can have no means of investment.
Thus, under its provisos, all land was declared to be public land to be
administered by the Uganda Land Commission in accordance with the
Public Lands Act, 1969, “subject to such modifications as may be necessary to
bring that Act into conformity with this Decree”. (Sec. 1(1)). All existing mailo
and freehold estates were converted into leasehold (sec. 2(1)). This was so as
to have a uniform tenure of leasehold which could be subjected to
developmental conditions.
In regards to customary holdings, section 3 provided for the preservation of

the customary tenure system of land holding. However, what was preserved
was under sub sec. 2 of that section, i.e tenancy at sufferance. Sec. 3(2) stated:
“…, a customary occupation of public land shall, … be only at sufferance and a

lease of any such land may be granted by the commission to any person
including the holder of the tenure, in accordance with this Decree.”
357
At common law, a tenant at sufferance can be evicted any time and only
enjoys the land at the pleasure of his land lord. The provision therefore meant
that a lease could be granted over a tenant’s land without his consent (since
sec. 24(2) of the Public Lands Act had been repealed).
Under Sec. 3(1) of the Land Reform Decree, customary tenancy could be
terminated on conditions approved by the Land Commission which
included payment of compensation (also presently reflected in the Land Act).
In terminating these customary tenancies on Public Land, a procedure was

set out in the Land Reform Regulations, S.I No. 26 of 1976. Under these
regulations, the period of notice and amount of compensation were to be
approved by the sub county land committee before termination of tenancy
under sub sec. 9 and 10. Unfortunately the Committees were never set up,
making the whole procedure difficult. See also Case points: Paulo Kisekka
Saku v Seventh Day Adventist Church SCCA No. 8 of 1993, Yazamu
Ssemakula v L.K. Ssali, H.C.C.S No. 1608 of 1977; (1981) H.C.B 28,
Christopher Katongole v Yusuf Ssewanyana, H.C.C.S No. 50 of 1989; [1990-
91] Kalr 41; (1986-89) H.C.B 159
With regard to ‘bibanjas’, the Decree reserved the bibanja holdings which
were converted into customary holdings on public land by sec. 3(3(i)). It
states –
“. . . tenancies on land held immediately before the commencement of this

Decree, . . . may continue after such commencement subject to the following: -
i) The conversion of any such tenancy into a customary tenure on public land,
but without the payment of bussulu, envujjo or the customary rent required by
the laws referred to under paragraph (b) of this sub section (i.e the Ankole and
Toro Land Lord and Tenant laws).
As such, they now became tenants at sufferance as well. The owners of ‘mailo’
could now terminate such customary holdings upon giving 6 months notice
with compensation. Security of tenure was no longer enjoyed.
358
It became illegal to acquire and occupy land which wasn’t under the
customary holding (sec. 5, L.R.D). One could not increase acreage over free
land which was regarded as public land. Specific areas would only be
occupied by free temporary licence which was valid from year to year until
revocation (sec. 5(1)). Contravening this law, i.e unlawful occupation would
be regarded as an offence under sec. 6 of the Decree, with punishment of a
fine not exceeding one year or both. One could only buy existing land after
notice of 3 months by the prescribed authority. Security of tenure thus wilted
away to be taken over by the land lord or the state.
Economic Interests
The other influence over customary tenure system has been the economic
interest. The class customary system was set in a simple society which
produces basically for consumption and not evolving around exchange
relations (i.e Barter or monetary system). However, with the advent of
colonialism, a monetary system based on cash crop economy was introduced
so as to push people into producing for incomes and thus tax them so as to
get surplus revenue from them.
Such a system which has exchange at its forefront does not recognise relations
other than those that involve value. It revolves around individualism which is
in contrast to communalism under the customary system. As such, land
relations that are basically communal and don’t respect the laws of the market
place, e.g making profits, revenue, etc; became increasingly outdated because
land also became a commodity., e.g the cases on mortgages - Wamala v
Musoke; and Waswa v Kigugwe – supra. It thus became possible to
individualize customary holdings so as to have dealings of a commercial
nature.
Social and Political interests
This influence in customary tenure followed a movement from a society

based on native culture and power to an increasingly centralised system where
359
power now lay in the state and those exercising such power, e.g the King, the
Chiefs and the Lukiiko. So consequently, laws such as those in relation to
land distribution increasingly became peripheral, for instance, clan elders no
longer had the authority to distribute a deceased person’s land. Respective
clan councils were to lay their recommendations before the Kabaka and his
Lukiiko/Council and the Kabaka’s decision was final. With the decline of
such institutions, customary holdings which depended on such, could not
hold together.
The relationship between mailo owners and occupants on their land has been
a controversial aspect in Land law since the introduction of mailo tenure
system in Uganda. In a bid to solve the controversy, the Land Act of 1998 was
enacted to clarify on the issue of who has which right on mailo land. This
essay thus looks at the history of mailo as a tenure system and seeks to explain
in detail, the extent to which the 1998 Land Act has endeavored to streamline
mailo tenure through regulating the relationship between mailo owners and
lawful and bonafide occupants. A brief analysis of the practical realities of the
provisions of the Land Act on the same is also undertaken before
recommending and drawing conclusions on the matter.
Background to the Mailo Tenure System.
Mailo as a tenure system was introduced under the 1900 Buganda agreement
where the British distributed chunks of land to notable chiefs measured in
miles248. The mailo owners held their rights in perpetuity and could freely sell
or pass over their rights to heirs. In the intervening years, many mailo holders
sold part of their holdings so much that by 1963, the original 4,138 mailo
holders had shot to 85,089. When the original mailo holdings were being
allocated, no regard was given to preexisting rights of occupants and peasant
cultivators who originally held the land under customary tenure. To solve the
ensuing conflicts between the original cultivators and the new mailo owners,
the 1928 Busullo and Envujjo law gave the tenant cultivators security for their
248
360
plots of land and set an annual fee of 10/= to pay to mailo holders. Peasant
tenants were subjects to 1928 Busullo and Envujjo law until 1975 when the
land reform decree abolished mailo tenure. Under the decree, tenants on
former mailo became “tenants at sufferance” on public land. Until 1995, the
decree was Uganda’s major source of land law. The 1995 constitution
drawing from recommendations of the Odoki constitutional commission,
recognized mailo tenure in article 237 among other tenure systems in Uganda
and also gave lawful and bonafide occupants of mailo land a moratorium
against eviction until parliament enacted a law to define who a lawful and
bonafide occupant is as well as the rights accruing to mailo ownership and
occupancy of mailo land.
The 1998 Land Act consequently defines mailo land tenure in section 1(t) as;
“the holding of registered land in perpetuity and having roots in the allotment
of land pursuant to the 1900 Uganda agreement and subject to statutory
qualifications, the incidents of which are described in section 3;” To that effect,
section 3(4) of the Land Act provides; “mailo tenure is a form of tenure
deriving its legality from the constitution and its incidents from the written law
which-
a) involves the holding of registered land in perpetuity;
b) permits the separation of ownership of land from the ownership of

developments on land made by a lawful or bonafide occupant; and
c) enables the holder, subject to the customary and statutory rights of

those persons lawful or bonafide in occupation of land at the time
that the tenure was created and their successors in title, to exercise
all the powers of ownership of the owner of land held of a freehold
title set out in subsections (2) and (3) and subject to the same
possibility of conditions, restrictions and limitations, positive or
negative in their application, as are referred to in those subsections.
361
Who is a Lawful and Bonafide Occupant under the Land Act?
A lawful occupant of land is described under section 29(1) of the Land Act
as a person occupying land by virtue of the 1928 Busullo and Envujjo law or
the Toro and Ankole landlord and tenant laws of 1937. A person who entered
the land with the consent of the registered owner and includes a purchaser is
also categorized as a lawful occupant per section 29(1). Similarly, a person
who was in occupation of certain land under customary tenure but whose
tenancy was not disclosed or compensated for by the registered owner when
he/she applied for a public lease over the land is recognized under the Act as
a lawful occupant. On the other hand, a bonafide occupant is described
under section 29(2) of the Land Act as; a person who before the coming into
effect of the 1995 constitution had occupied or improved certain land
without being challenged by registered owner of the land or by his agent or
one who had been settled on land by the government or its agent including a
local authority.
How does the Land Act regulate the Relationship between Mailo
Owners and Tenants on Mailo Land?
The Land Act considers a lawful or bonafide occupant of land as a tenant by

occupancy of the registered owner of the land per section 31(1). A tenant by
occupancy enjoys secure tenure on the land so long as he complies with terms
and conditions stated in the Act which among others include payment of
ground rent and others as agreed between the registered owner and the
occupant. The rent payable to the mailo owner must be reasonable
depending on particular circumstances of each case to be determined by a
land board. 249
The above provision strikes a balance by enabling the tenant by occupancy to

enjoy his right of occupancy at the same time leaving intact the ownership
rights of the mailo owner. This in the end preserves the status quo without
tampering with the security of the occupant since he can not be evicted unless
249
2002 Land Act Amendment Bill
362
he fails to comply with the stated obligations. More so, the certificate of
occupancy serves as evidence of the tenant’s ascertained rights on the land in
case of a court action against him/her.
According to section 33 of the Land Act, a tenant by occupancy can get a

certificate of occupancy by applying to the mailo owner who notifies the land
committee which decides before seeking the mailo owner’s consent. In
default to consent, the tenant can seek the consent of the land tribunal after
which he goes to the recorder for the certificate of occupancy who will in turn
notify the registrar and the certificate is granted. It must be emphasized that
the core principle underlying this provision is consensus and agreement
between the land owner and the tenant. The provision does not however turn
a deaf ear to the parties where agreement is impossible or fails to materialize.
The tribunal is required to consider the matter in full fairness such that the
decision made does not injure any party but is as just as equitable.
A tenant can sublet, give as security, give away, create rights to another person
to use the land and do anything allowed on the land under section 34 of the
Land Act. However, the owner must permit the tenant to do anything and
on refusal without reasons the tenant can appeal to the land tribunal. Again,
the requirement of the permission of the land owner is aimed at maintaining
the status quo without necessarily subjecting the tenant to the bondage of the
owner as the land tribunal can be used to reach a fair conclusion where either
party is not satisfied or is aggrieved. This section unequivocally grants the
significant rights the occupant wants on the land. It further clarifies on the
limits occupants have on the owner’s land.
A tenant, who wants to give away his rights of tenancy according to section
35 of the Land Act, must give the first opportunity to the owner. Likewise,
an owner who wants to sell his ownership rights must first consider the tenant
basing on a willing buyer willing seller basis. The mediator can be invited to
assist in the negotiations in case of complications in reaching an agreement.
It is only after the mediator has declared his/her inability to assist that the
363
selling party can go ahead and sell to anyone of their choice. This avoids the
danger of selling one’s rights without notice to the other which may result in
conflicts, arbitrary evictions or new conditions on the tenant by the new
owner or selling occupancy rights to new tenants when in reality the owner
had an interest in them.
Sub division and co-ownership of land between a tenant on mailo land and a
registered mailo owner under section 36 of the land Act can be done on
agreement between the parties. This avails any of the parties with the most
realistic way of obtaining full rights in the land thus avoiding disputes that
may arise from quasi ownership and occupancy rights. The key issue of
agreement is once again stressed in this provision as the basis of any
transaction. The delusion of eternal ownership and occupancy which has on
more occasions than one caused land wrangles is demystified by the realities
of the application of this section.
On termination and abandonment of occupancy, section 37 of the land Act

provides that if a willing tenant by occupancy gives up his or her occupancy,
the right to stay and occupy the land ends and is not compensated for leaving
the land. Also, on informing the mailo owner of the intention to leave or on
leaving the land for three years without leaving behind a relative or agent to
take care of the land for him or her, the tenant in occupancy is deemed to have
given up the right of occupancy. The grounds often cited by mailo owners of
the land on evicting tenants that their land was not effectively occupied are
settled by the clarity of this section. The occupancy rights are forfeited to pave
way for the mailo owner’s occupancy of his own land thus ensuring that the
occupants take caution as to how they utilize the land they occupy.
Section 38 empowers a tenant by occupancy to convert his or her right of

occupancy to a mailo, freehold, leasehold or sublease. However, this power is
subject to the approval of the registered owner of the land. This section
ensures that the occupant is not forever held under the bondage of the owner.
It provides a straight forward way for the occupant, in the presence of
agreement to attain more discernible rights in the land.
364
Has the Act thus satisfactorily streamlined mailo as a tenure system?
The Act on the surface and on a deep analysis of the circumstances

surrounding the emergency of mailo tenure as a system of landholding in
Uganda gives the best shot at streamlining mailo as a tenure system and also
makes the most convincing attempt at making a clear distinction between the
rights of occupants and registered owners of land, considering the subtle
nature of mailo tenure. It tries as much as possible to define and list rights of
occupancy as well as ownership rights under the mailo system of land tenure.
Note must however be taken of the fact that the problem stems from the
nature of the tenure system itself. It is as elusive as undefined as it stretches
too far the rights of the tenant that they infringe on the rights of the true
registered owner. In the end, the registered owner only remains an owner in
name but the true ownership rights as known at common law are enjoyed by
the tenant under the niche “occupant”.
My opinion is that the problem lies with the whole system. It is for the lack
of definition of the system that re known scholars like T. Mugambwa have
fumbled to call it quasi-freehold. As far as the Act is concerned, it is the best
piece of legislation ever to exist in relation to mailo tenure system. In fact, it
offers very clear, simple and localized solutions to the problems, wrangles,
disputes between occupants and owners. The reason massive evictions of
tenants and occupants by mailo owners continue to occur is because the Act
has hardly been implemented. Institutions meant to operationalise the bulk
of the provisions of the Act do not exist. For instance, land tribunals were
stopped from working just like land boards. Offices of the mediator and
recorder were not even instituted practically in the first place thus no single
certificate of occupancy has since been issued since the Act was passed into
law This thus leaves the fundamental question of whether the Act streamlines
the mailo tenure system and regulates the relationship between lawful and
bonafide occupants largely unanswered as the Act has not been tested
practically.
365
I can however authoritatively state that in indeed very isolated occurrence

where the provisions of the Act have been followed, results have been
impressive. An illustration of this is what Prof. Apollo Robin Nsibambi states
in his letter to the Katikiro of Buganda250
“I have allowed tenants to acquire permanently 40% of the area they have been
occupying on my land and I have remained with 60%. In some cases, I allow
tenants to acquire 30% and I have remained with 70% depending on the land.
I have also allowed lawful tenants to buy my land so that they can own it fully
and transfer it in their names.”
The Prime Minister did exactly what section 36 of the Land Act stipulates on
sub division and co-ownership of land between a tenant on mailo land and a
registered owner of mailo land. This proves that the Land Act if implemented
is satisfactory on solving disputes on mailo land.
250
“The Daily Monitor” of November, 12th, 2007;
366
CHAPTER TWELVE
A check on the Indispensability of the

Kabaka: A fallacy
Kabaka is the title of the king of the Kingdom of Buganda251aaccording to
the traditions of the Baganda they are ruled by two kings, one spiritual and
the other secular, the spiritual, or supernatural, king is represented by the
Royal Drums, regalia called Mujaguzo and, as they always exist, the Buganda
at any time will always have a king. Mujaguzo, like any other king, has his own
palace, officials, servants and palace guards. The material, human prince has
to perform special cultural rites on the Royal Drums before he can be
declared king of Buganda. Upon the birth of a royal prince or princess, the
Royal Drums are sounded by drummers specially selected from a specified
clan as a means of informing the subjects of the kingdom of the birth of a new
member of the royal family. The same Royal Drums are sounded upon the
death of a reigning king to officially announce the death of the material king.
According to Buganda culture, a king does not die but gets lost in the forest.
Inside Buganda's royal tombs such as the Kasubi Tombs and the Wamala
251
Stanley, H.M., 1899, Through the Dark Continent, London: G.
Newnes, ISBN 0486256677
367
Tombs, one is shown the entrance of the forest. It is a taboo to look beyond
the entrance.
Additionally, there is another specific tradition of the Baganda concerning

the two kings who rule the Kingdom of Buganda that began after the death
of Kabaka Tebandeke (c. 1704 – c.1724). When Kabaka Tebandeke died, he
was succeeded by two kings of Buganda; the first was his cousin Kabaka
Ndawula Nsobya (c. 1724–c. 1734) who became the material king and the
second was his only surviving biological son Juma Katebe who became the
spiritual king. Juma Katebe (sometimes spelt Juma Kateebe) held the spiritual
priesthood which was originally part of the throne of the Kabaka. Since the
death of Kabaka Tebandeke, the two lines of kings have been in perpetual
succession to date. Juma Katebe is king over the spirits or the spiritual forces
of the Buganda kingdom. The current reigning spiritual king is also named
"Juma Katebe" after the name of the historical only surviving biological son
of Kabaka Tebandeke who was named Juma Katebe. When the coronation
of the material king is done, the coronation of the spiritual king (Juma
Katebe) is also done. The Juma Katebe, the spiritual king, is involved in the
traditional procedures to crown the new material king after the death of a
reigning material king. The Juma Katebe’s spiritual power originates
from Kabaka Tebandeke. The Juma Katebe regularly visits the "masiro" or
palace tomb or burial ground of Kabaka Tebandeke located in Bundeke,
Merera in Busiro (part of Wakiso district of Uganda) to perform special
religious ceremonies.
Buganda has no concept equivalent to the Crown Prince. All the princes are
equally treated prior to the coronation of a new king following the death of a
reigning monarch. However, during the period of a reigning king, a special
council has the mandate to study the behavior and characteristics of the
young princes. The reigning king, informed by the recommendation of the
special council, selects one prince to be his successor. In a secret ceremony,
the selected prince is given a special piece of bark cloth by the head of the
special verification council. The name of the "king-to-be" is kept secret by the
special council until the death of the reigning king. When all
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the princes and princesses are called to view the body of the late king lying in
state, the selected prince lays the special piece of bark cloth over the body of
the late king, revealing himself as the successor to the throne.
By tradition, Baganda children take on the clan of their biological fathers. It

is a common misconception that the Kabaka (king) of Buganda takes his clan
from his mother. Some go as far as saying that Buganda's royal family was
matrilineal. Neither of these assertions is true. The Kabaka has his own clan
which is called the royal clan "Olulyo Olulangira". Members of this clan are
referred to as abalangira for males and abambejja for females. The
misconception arose in part because the royal clan has no totem which is
something that all other Baganda clans have. However, the totem should not
be confused with the clan. The totem is just a symbol but the clan is a matter
of genealogy. The royal clan has its own genealogy traced along the patrilineal
line, extending all the way back to Kintu.252
The firstborn prince, by tradition called Kiweewa, is not allowed to become

king. That was carefully planned to protect him against any attempted
assassinations in a bid to fight for the crown. Instead, he is given special roles
to play in the matters of the royal family and kingdom. Thus, the name of the
possible successor to the throne remains secret.
The following are the known Kings of Buganda, starting from around 1300
AD.
1. Kato Kintu, early fourteenth century
2. Chwa I, mid fourteenth century
3. Kimera, c. 1374–c. 1404
4. Ttembo, c. 1404–c. 1434
252
"Amannya Amaganda n'Ennono Zaago", Michael B. Nsimbi
369
5. Kiggala, c. 1434–c. 1464 and c. 1484–c. 1494
6. Kiyimba, c. 1464–c. 1484
7. Kayima, c. 1494–c. 1524
8. Nakibinge, c. 1524–c. 1554

a period of Interregnum, c. 1554–c. 1555
9. Mulondo, c. 1555–1564
10. Jemba, c. 1564–c. 1584
11. Suuna I, c. 1584–c. 1614
12. Sekamaanya, c. 1614–c. 1634
13. Kimbugwe, c. 1634–c. 1644
14. Kateregga, c. 1644–c. 1674
15. Mutebi I, c. 1674–c. 1680
16. Juuko, c. 1680–c. 1690
17. Kayemba, c. 1690–c. 1704
18. Tebandeke, c. 1704–c. 1724
19. Ndawula, c. 1724–c. 1734
20. Kagulu, c. 1734–c. 1736
21. Kikulwe, c. 1736–c. 1738
22. Mawanda, c. 1738–c. 1740
23. Ndugwa I, c. 1740–c. 1741
24. Namuggala, c. 1741–c. 1750
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25. Kyabaggu, c. 1750–c. 1780
26. Jjunju, c. 1780–c. 1797
27. Semakookiro, c. 1797–c. 1814
28. Kamaanya, 1814–1832
29. Suuna II, 1832–1856
30. Muteesa I, 1856–1884
31. Mwanga II, 1884–1888 and 1889–1897
32. Kiweewa, 1888
33. Kalema, 1888–1889
34. Daudi Chwa II, 1897–1939
35. Mutesa II, 1939–1969

Monarchy discontinued by the Ugandan government, 1969–1993
36. Muwenda Mutebi II, 1993–present
THE P O SI T ION O F TH E K A B AK A DU R IN G T H E P O S T -C O LON I AL

ER A “ BE F OR E 1894”
The kabaka of Buganda being referred to as Nantawetwa, Musota, Ssabassaja,

Ssabalongo Takubwamugongo, Baffee, Ssabataka etc. He had absolute
powers over everything, the land, wifes, assets,had his own security etc .all
belonged to the Kabaka. Same also the kabaka had a court and he was the
Judge upon his masses.
The kabaka had powers and delegated his authority to his chiefs and these
include the katikiro ,omulamuzi and omuwaniika.One of the most powerful
371
appointed advisers of the Kabaka was the Katikkiro, who was in charge of the
kingdom's administrative and judicial systems – effectively serving as both
prime minister and chief justice. The Katikkiro and other powerful ministers
formed an inner circle of advisers who could summon lower-level chiefs and
other appointed advisers to confer on policy matters
THE P O SI T ION O F TH E K A B AK A IN TH E ” C OL ON I A L ERA”
After declaring Uganda, a British protectorate, British checked on the

position of the kabaka through the 1900 Buganda agreement was now left to
be subordinate to the government of her majesty Queen of England. unto
article 6 where kabaka’s powers was reduced, supposed to be paid, given
security, guns, saluted with 10-gun shots at every ceremony. Thus, these are
just Privileges that were given to the Kabaka in order to blind fold his position
hence his powers were checked. Furthermore article 9,10 of the Buganda
kingdom, Kabaka’s powers was reduced upon his administration when he
could appoint the ministers and chiefs and later approved by the British
government. In adding salt into the wound, on his land “per his name
Ssabataka “He was given a share as per article 15 of the Buganda agreement.
Interestingly the Kabakas title just like that of all other customary chiefs was
reduced to His Royal Highness as opposed to His Majesty a clear indication
of servitude towards the colonial master, in fact many of the colonial servants
were given titles like SIR, CBE, CBO a vivid indication of the royalty and
servanthood they had towards the king/ queen of England.
Dececration of Buganda legal order
The Case of Rex vs Amkeyo where it was held by CJ Hamiliton that

purchasing a woman is like purchasing a chattel thus declaring the native act
of marriage of bride price as repugnant to natural justice, doctrines of equity
and good conscious.
In R v Amkeyo the question was whether the relationship between the

accused and a certain woman was one of marriage. The features of the
372
relationship a) The woman was not a free contracting person b) The woman
was treated as a chattel c) polygamous marriage. Justice Hamilton The court
held that the relationship did not fit the idea of marriage. The alleged custom
was implicitly repugnant to conscience and morality.
It was only after the Colonialist left that African jurisprudence

started taking effect for example in Alai's case is the precedent on the
validity of African Customary marriages in the post colonial era.
In Mifumi vs A.G It was an appeal from the Constitutional Court where the
constitutionality of “bride pride” was challenged at first instance. The term
“bride-price” used in the proceedings, was not wife purchase but a token of
appreciation which the Supreme Court rightly found unsuitable.
The case of Gwao bin Kilimo v. Kisunda bin Ifuti (1938) put into sharp focus
the conflict between the imposed common law system and the indigenous
Turu customary law in the then Tanganyika (Tanzania). The case concerned
the question of whether a father's property could be seized in compensation
for a wrong committed by a son. The father, Gwao, petitioned the High
Court to revise a decision by the Second-Class Subordinate Court at Singida,
and to order his cattle, that had been seized because of an offence committed
by his son, to be returned to him. Two issues were essential before the High
Court: 1) was the decision based on a rule of Turu customary law, and 2) if
so, was such a rule 'repugnant to justice and morality'. The conclusion of the
judge was that the cattle had been wrongly seized
THE P O SI T ION O F TH E K A B AK A IN TH E ” P OS T -C O L ON I AL
ER A ”
In 1962 The Participating of the Kabaka in the politics cemented the hopes
of bringing back the position of the kabaka thus making the 1966 crisis
1967 the post of the Kabaka was no longer in existence as per the command
of the fountain of honor Milton Obote.
373
1993 the restoration of the Position of the Kabaka per the Restoration of
Tradition and cultural act of 1993. However much the position was restored
but rights and powers where not restored also, so this reflects that the
government of NRM only restored a ceremonial post of the Kabaka which is
subordinate to the government.
D E MY S T IFY IN G TH E O V ER W I EL D IN G P OW E R S OF TH E K A B A KA
Despite the names of the Kabaka i.e., CHU CHU, NANTAWETWA,

BAAFFE, SSABASAJJA which signify his indispensability it appears the
coming of the colonialist serious put to question his powers and reduced his
authority to a ceremonial figure, come to think of it a man who owned all
things land, people and animals a like, man who all his subjects only served at
the pleasure of his overwhelming authority, a man who was referred to as
“BAAFFE, SSABASAJJA” meaning he is the owner of all women in Buganda
and men and was free to use and or direct any of his subjects as he so wished,
in fact if any one felt offended by the kabakas action it was prudent that the
offended person simply apologized to the kabaka for his inappropriate
actions, in other words the kabaka was above reproach, even when once
challenged to be circumcised after turning into mohammedan faith for fear
of the sharp reads that caused a lot of pain during the exercise it is said that he
the kabaka excused himself by saying the kabaka does not shed blood on his
own land, this caused a lot of back lush among staunch Muslims who
despised him for that and its argued that was the cause of the first moslem
martyrs’ that were murdered at namugongo, call any if at all he fills like thus
this aspect was being checked in the case of Mulira Vs Kabaka Of
Buganda253, Mulira sued Kabaka of Buganda of taking his wife hence it was
declared that Kabaka has no mandate to take some one’s wife. While
analyzing the above aspect, I do believe that kabaka’s powers was dispensed
The Executive Constitutional Mandate: Demystifying The Presidential Powers Over

253
Reach In Uganda Isaac Christopher Lubogo Page 1061(Jescho Publishers)
374
and per now he does not have the absolute powers and some names are just
perse with no meaning like Baaffe and Ssabasajja.
Further More the indispensability is checked on his personality, the fact is the
1993 Restoration traditional act didn’t give the position of the kabaka
absolute powers such as immunity and this is a reason why he is always sued
because his deliberately mistakes. Basing on the case Male Mabirizi Vs
Kabaka of Buganda,254 it was held that the Kabaka has no mandate of
immunity and thus he can be sued on the applicability of the things
concerning Buganda such as land. To date the Kabaka doesn’t have absolute
powers over mailo land because the powers. BAGAMUGUNDA
VINCENT VS. UEB (In Liquidation) HCCS No. 400 Of 2007.
255
sued should have been the Kabaka of Buganda.court dismissed the case with
no costs.
However, In the case of Prince Kimera Vs Kabaka of Buganda where

Prince Kalemera H. Kimera had sued the Kabaka of Buganda Kingdom,
Ronald Muwenda Mutebi, claiming 16 square miles of land in Masajja,
allegedly belong to his late grandfather, Sir Daudi Chwa II, the former king
of Buganda.256
While dismissing the suit, the Principal Judge, Justice Flavian Zeija, faulted
Prince Kimera for having got interested in the said land upon hearing that
Uganda National Roads Authority (Unra) was to compensate land owners
on the Kampala-Jinja Expressway, where this land is situated.
254
(Civil Appeal 184 of 2017) [2018] UGCA 133 (October 2018)
255
www.ulii.com
256
29 September 2020, The Monitor (Kampala): By Anthony Wesaka
375
"It is clear from the pleadings that the late Duadi Chwa died in 1939. He left
children and grandchildren at the time of his death. Those who were alive at
the time, have never brought any claim for a period of more than half a
century. It is only in 2017 that a few of them remembered that there is an
estate in which they have an interest after they learnt of Unra compensation,"
Justice Zeija ruled.
This matter arose in 2017 when Prince Kimera and Princess Nalinya
Nandaula, all descendants of the late king Chwa sued the Kabaka of Buganda,
Ronald Muwenda Mutebi II (current king), Buganda Land Board,
Commissioner for Land Registration and the Attorney General.
The duo was seeking to reclaim the land on account that the private land
belonged to their late grandfather. They claimed that government wrongly
returned the land to the Kabaka of Buganda and is now under the control of
Buganda Land Board.
Further in his analysis, Justice Zeija agreed with the lawyers of the Kabaka of
Buganda that the complainants did not have the powers (locus standi) to
institute the case.
"It follows that the 1st plaintiff (Prince Kimera) is a great grandchild of the
late Daudi Chwa II and is therefore, a 3rd degree beneficiary. Section 2 (b) of
the Succession Act defines lineal descendants to include legitimate,
illegitimate and adopted children but does not include grandchildren,"
Justice Zeija indicated.
"The 1st plaintiff (Prince Kimera) as a grandchild does not, therefore, qualify
as a lineal descendant. That too, Daudi Chwa was survived by children and
from his demise in 1939, none of his children has brought forward any
allegations. It is quite baffling why the plaintiff as a 3rd descendant would
turn up in 2017 to claim property which does not even belong to him," the
judge added.
376
Justice Zeija also said he noted of late that a resurgence of claims by

grandchildren and children of many deceased persons, many of whom allege
fraud when in actual fact the alleged fraudsters are sometimes dead.
“Unfortunately, courts have been laboured to face numerous land disputes
like the instant one where even the very last descendant would arise decades
later to bring claims in the pretext of fighting for what they assume to belong
to them," the Principal Judge further held.
Adding: "This must stop. The law on succession was designed in a detailed
way to protect the courts from such scenarios. In the premises therefore, I
find that both the plaintiffs did not have a locus standi [justified cause] to
bring this suit.
"The objection, therefore, succeeds. Upholding this objection has the effect
of disposing of the matter." The petitioners were also asked to pay costs of the
suit to the Kabaka.
In conclusion there fore the position of the kabaka was checked and thus is
not vital, hence just a ceremonial post but not administerial since the period
of colonial when he was subordinate to the Queen of England until to date
when he is the subjected to the current government an offset of the colonial
legacy.
377
CHAPTER THIRTEEN
Buganda Agreement Void Ab Initio or

Voidable in Law
W H ETH ER TH E 1900 B U G AN D A AG R E EM EN T I S V O ID A BN I T IO
OR V IO I DA B LE
Void contracts abnitio, is Latin for void from the beginning, this means a
contract was void as soon as it was created. it is a contract which was invalid
from its very inception. “Ab initio” is Latin for “from the beginning”, and is
used to describe contracts which were legally unenforceable from the
moment they were created. Contracts are void when one or more vitiating
factors are present for example duress, illegality as per the case of Makula
International Ltd v His Eminence Cardinal Nsubuga & Anor257 , undue
influence.
David Taylor & Son v Barnett Trading Co 258,The parties were the buyer
and seller of a delivery of steak at a set price. When the contract was made,
there was a legal limit on the sale of meat above a certain price, which the
257
(Civil Appeal 4 of 1981) [1982] UGSC 2 (08 April 1982)
258
[1953] 1 Lloyd's Rep 181 Hastie (1856) 5 HLC 672
378
parties exceeded. The court held that the contract had been illegal ever since
its formation since the price set had exceeded the legal limits available to the
parties. The contract was therefore void ab initio. Couturier v
the parties were the seller and buyer of a cargo of corn that was being
transported from the Mediterranean to England. Unbeknownst to both of
them, the cargo of corn had perished and already been disposed of before the
parties entered into a contract for its sale. Once the parties learnt of
their common mistake, the issue arose over whether the sale contract had
been valid or not. The court held that the contract was void ab initio since
both parties had been under the same mistake as to the physical possibility
of performing the contract. Since there was no corn to be contracted upon in
the first place, there was no contract.
Shogun Finance Ltd v Hudson [2003] UKHL 62, The parties were
caught in a scam for a hire-purchase agreement over a car, where the scammer
had pretended to be someone with good credit. The court held that the
mistaken identity had voided the contract, especially because in a hire-
purchase agreement, unlike in a regular sale, title of the property does not pass
on to the buyer until after the credit has been paid. By pretending to be
someone else, there was never consensus ad idem (a “meeting of the minds”)
between the seller and the scammer.
Ingram v Little [1961] 1 QB 31, The parties were caught in a scam where
someone had pretended to be a reputable businessman, bought a car using a
bad cheque, then quickly sold it to someone else. Once the scam was
uncovered, the sellers argued that the contract they had with the scammer was
void. The court (controversially) held that the case of mistaken identity
rendered the contract void ab initio. The presumption in face-to-
face transactions that people intend to contract with the person before them,
was rebutted by the fact the seller had attempted to confirm the scammer’s
purported identity.
379
Associated Japanese Bank v Credit du Nord [1988] All ER 902The

court held that the non-existence of the machines had voided the contract,
since it went to the root of what the contract was about. Without the
machines, the fundamental nature of the contract had changed, so the parties
common mistake as to their existence was sufficient to render the contract
void ab initio.
Sheik Bros Ltd v Ochsner,259The court held that the parties’ mistaken belief
as to the land’s capacity for growing the sisal had made the contract
impossible to perform. The quantity of crops to be produced was essential to
the contract, so the contract was void.
In so referring to the 1900 Buganda agreement, the agreement is void abnitio

basing on the vitiating factors of Duress, Undue influence, mistake etc. as
discussed above. Same also on rate of the essential elements of Capacity,
acceptance and intention to create legal intentions wasn’t there when making
the 1900 Buganda agreement. The Agreement was protecting the affiliations
of the interests of the British and the regents but not on Buganda in particular
because by that time the kabaka was young and couldn’t tell what is good and
bad, same also there was a lot of duress and undue influence made by the
British unto the regents hence making the 1900 Buganda agreement void
abnitio. Conclusively therefore Buganda kingdom today, it has mandate to
restructure and declare the 1900 Buganda agreement void abnitio hence in
turn its upon their free will to declare their independence as it was before the
signing of the unfair 1900 Buganda agreement.
The only plausible legal remedy is rescission which is a discretionary remedy

that requires the parties to be put into the position they would have been had
the contract not been made. Contracts are void when one or more vitiating
factors are present, which means such contracts are legally unenforceable
from the moment they were created.
259
(1957) AC 136
380
Voidable contracts
Voidable contracts are initially considered legal and enforceable but can be
rejected by one party if the contract is discovered to have defects.
Unfortunately, if a party with the power to reject chooses not to reject the
contract despite the defect, the contract remains valid and enforceable.
A voidable contract, unlike a void contract, is a valid contract which may be

either affirmed or rejected at the option of one of the parties. At most, one
party to the contract is bound. The unbound party may repudiate the
contract, at which time the contract becomes void.
Typical grounds for a contract being voidable include coercion, undue

influence, mental incompetence, intoxication, misrepresentation or fraud.260
A contract made by a minor is often voidable, but a minor can only avoid a
contract during his or her minority status and for a reasonable time after he
reaches the age of majority. After a reasonable period of time, the contract is
deemed to be ratified and cannot be avoided.261 Other examples would be real
estate contracts, lawyer contracts, etc.
When a contract is entered into without the free consent of the party, it is
considered a voidable contract. The definition of the act states that a voidable
contract is enforceable by law at the option of one or more parties but not at
option of the other parties. A voidable contract may be considered valid if it
is not cancelled by the aggrieved party within a reasonable time
For a contract to be voidable it has to legal and thus there has to be a vitiating
factor for example Frustration, undue influence, mistake and
misrepresentation. It’s always at the discretion of an injure party to either to
treaty as a warranty or ending it and applying for the remedies.
260
Clarkson, Kenneth W.; Roger LeRoy Miller; Frank B. Cross (2018). Business law: text and
cases (Fourteenth ed.). Boston, MA. ISBN 978-1-337-10203-2. OCLC 982083011.
261
US Legal, Inc., Contract by a minor, accessed 23 February 2016
381
V IT IA TIN G FA C TOR S IN TH E 1900 A GR EE M EN T
There is a constant need to achieve a balance between certainty and fairness

in the law of contract. In this respect, vitiating factors tend to focus on the
latter (with the former constituting, at most, just one conception of fairness,
amongst others). However, because of the consequent danger that contracts
might be unravelled unnecessarily by the application of such factors, there is
a need for doctrinal as well as conceptual clarity. Therefore, first, on key (and
recent) doctrinal developments – particularly with regard (but not limited)
to the law of mistake and the law relating to undue influence. Doctrinal
developments cannot, however, be wholly understood without an
appreciation of the relevant conceptual underpinnings and linkages. To this
end, a few key conceptual difficulties would also have been examined with a
view to elucidating a more effective practical approach towards the vitiating
factors concerned.
The Buganda agreement of 1900 Buganda agreement was NEVER a good

agreement on ground of undue influence, mistake, misrepresentation, duress,
as summarized below and the Baganda people are free either to treat it as a
condition to make it illegal abnitio or Legal. The ball is in the hands of the
Buganda Kingdom to request for what belongs to her such as cultural
institution, land etc. This inexorcible ghost that must be exorcised for once
and for all, the Baganda people were given byooya bya nswaa, (light useless
feathers) and in order to correct this one must address vitiating factors that
cripple or invalidate the 1900 agreement such as:
1. Misrepresentation
A misrepresentation is an untrue or misleading statement which induces a

party into a contract. It can be distinguished from opinions shared by the
other party or sales talk, such as stating something is “the world's best”. In its
purest form, a misrepresentation will be a material statement of law or fact,
but what is most important is that this representation, however it was made,
actually caused someone to enter into the contract.
382
There are 3 types of misrepresentation and, according to

the Misrepresentation Act 1967, there are different consequences for each:
Innocent misrepresentation
• Where the party who made the statement can prove that they had
reasonable grounds to believe and did in fact believe, up to the time
of the contract, that the facts represented were true. The remedy is
either rescission or damages calculated on normal contractual
principles.
Fraudulent misrepresentation
• Where the party making the statement either knows it is false, does
not believe it, or is reckless as to whether it is true or not. The remedy
is rescission and/or damages calculated by including all losses
stemming from the misrepresentation, even consequential ones.
Negligent misrepresentation
• Where none of the first two options apply. It is usually found when
the party who made the statement cannot prove that they had
reasonable grounds to believe that the statement was true, and
the remedy is the same as for fraudulent
misrepresentation. Negligent misrepresentation can also be found
at common law when there is a special relationship between the
parties which gave rise to a duty of care, and the remedy is damages
based on the tort of negligence.
2. Duress
Duress is the use of threats or illegitimate pressure to force a party into a

contract. The effect of duress is to render a contract voidable. Historically,
duress was concerned with physical violence, but it is now accepted that it
can also be economic e.g., a threat to strike if a certain contract isn’t signed.
383
Economic duress differs from commercial pressure (which is acceptable)

because it unlawfully leaves a party with no choice but to sign the contract.
The line between the two can be difficult to draw, but the general rule is: to
establish the tort of economic duress, the victim needs to prove that
“illegitimate pressure” was applied to them by the perpetrator and that such
pressure “caused” them to enter into the contract in question. The effect of
duress is to render a contract voidable, and the remedy will be rescission
and/or damages. In 2019, the Court of Appeal held that where only lawful
acts have been committed, economic duress will not be available as a defence
unless bad faith can be proved. This is known as Lawful Act Duress, and
essentially means that a party which uses lawful pressure (e.g., the lawful use
of a monopoly position) to get another party to agree to a contract will not
be guilty of economic duress if they acted in good faith.
3. Undue influence
Is the improper use of a position of power to pressure a party to enter into a

contract. The pressure exerted falls short of duress but it is enough to vitiate
a party's free and informed consent. It will be presumed in certain
relationships of trust and confidence where it is widely accepted that there is
an imbalance of power e.g., doctor-patient or solicitor-client relationships.
This is especially true where the contract created is unfavorable to the
“weaker” party. On the other hand, where there is evidence that there has
been the abuse of a position of power but the parties do not have a
relationship where undue influence is presumed, then there will be actual
undue influence. The effect of undue influence is to render a contract
voidable, and the remedy is rescission.
Unconscionable bargain
The doctrine of unconscionably can be explained as the unfair exploitation

of unequal power to induce a party into a contract. The terms of the contract
may be so unjust, or favour the party with the higher bargaining power so
greatly, that enforcing the contract would be contrary to good conscience and
384
morally reprehensible. Courts are generally ready to set aside unconscionable

transactions where one of the parties is mentally or financially weak, and they
did not receive independent advice before entering the contract. Where
unconscionable conduct is suspected, the party with the higher bargaining
power must show that the contract is actually fair, just and reasonable. If they
cannot, then the courts have the discretion to do what they see fit, making the
effect of unconscionability hard to predict.
4. Mistake
When it comes to mistakes in contracts, there are 3 scenarios which can arise:
Common mistake
• Where both parties make the same mistake as to the subject matter
(res extincta), the ownership of a property (res sua), or the quality
of the subject matter.
Mutual mistake
• Where the parties are at cross-purposes, but each believes that the
other is in agreement about the terms of the contract or the subject
matter of the contract.
Unilateral mistake
• Where one party is mistaken about the identity of another party, the
terms of the contract, or the nature of a signed document (non est
factum). The other party will usually know of the other’s mistake
and take advantage of it.
The effect of the mistake depends on its nature and whether it goes to the
core of the contract. If the mistake fundamentally changes the nature of the
contract, then it is likely to be void (invalid from the start) and the remedy
will likely be restitution. However, if the mistake is voidable (valid until a
385
party chooses to treat it as unenforceable), then one of the following

equitable remedies may be appropriate: rectification, rescission or specific
performance.
R E ME D IE S TAU N T IN G TH E IN EX OR C I B LE B U GAN DA GH OS T
As consolation the available remedies therefore becomes rescission or

voidance is the correct legal terminology with retrospective effect, and usually
its an all or nothing remedy, the question therefore becomes whether
Buganda can just pick and choose different bits of the contract to keep, and
in doing so if the whole agreement goes you can’t rescind, amend the
agreement in some way the only exception to rescinding would be unjust
enrichment, lapse of time, judicial discretion, indemnity, damages,
intervening third party rights such as the Bunyoro land question, and
affirmation where recission becomes a choice and in which one party can
choose to exercise or waive the right and in such scenario once rescission has
been waved which seems to be the case then Buganda can never change its
mind. and in doing so is Uganda and the Ugandan people ready to let go all
her sacrifices that have directly and indirectly up held Buganda. This
therefore become the ghost that will haut Buganda forever, it will and may be
damages for humiliating the fine people of Buganda, a question however can
Buganda exercise its sovereign mandate of state hood.
Declaration of a Buganda Nation
A good example is the people of Catalonia and Kurdistan who where asked if
they want to live in an independent country by virtue of a referendum. If a
referendum result in declarations of independence, what happens next? It
may seem straightforward that Kurdistan, Catalonia, or even both would
become the world’s newest countries. But it’s not that simple.
International law states that people have the right to determine their own
destiny, including political status. Our right of self-determination is
enshrined in the UN Charter, and clarified in the International Covenant on
386
Civil and Political Rights. This could be taken as the right to have sovereign
statehood recognised by the international community. However, it’s most
often interpreted as the right of a population to determine how they are
governed and who governs them. In other words, self-determination in
today’s world most often pertains to choices within an existing country rather
than as a path to new statehood.
This is partly because the laws on self-determination were mostly written

during the period of decolonisation. That historical context cannot be
ignored when interpreting their purpose. During that time, colonial powers
were taking steps towards dismantling their empires. They had become
expensive to maintain and political pressure was growing within the colonies
themselves.
Creating a Country called Buganda
Another complicating factor in setting up a country is the fact that, for one
territory to become a new state, another already existing sovereign state must
lose some of its territory. That would violate the laws and norms of territorial
integrity. These are some of the oldest and most steadfast rules underpinning
the international system.
Recognition of a new state essentially means legally recognising the transfer

of sovereignty over a territory from one authority to another. An
international body, including the UN, cannot just take away territory
without the permission of the original “host” state. To do so would be a
violation of one of the defining rules of the system of states.
Kosovo, for example, declared independence from Serbia in 2008 but even to
this day it doesn’t have sovereign statehood – despite more than half of the
UN’s member states recognising its independence. This is largely because
Serbia still claims sovereign control over the territory, although other
factors are certainly also at play. In the same way, Iraq would have to
387
relinquish sovereign control over territory in order for Kurdistan to become

a state.
There are obvious competing and contradicting legal principles here. In at

least one instance, these contradictions appear together within the same law.
Indeed, what we find is that there is no clear legal path to obtaining sovereign
statehood. There is also no legally established mechanism for who determines
whether a territory becomes a sovereign state. So, we have to look at previous
examples to work out how it’s done.
The world’s most recent states are South Sudan, which was recognised in
2011 and East Timor, which was recognised in 2002. In the early 1990s, there
was a wave of new states due to the collapse of the Soviet Union and the
breakup of Yugoslavia. In 1993, Eritrea also became a state after a decades-
long war with Ethiopia, which had annexed Eritrea in 1962. Prior to that, the
world’s new states emerged out of the shifting or collapse of empires, most
notable with the end of colonialism.
For East Timor and South Sudan, and in many ways Eritrea, statehood was
part of attempts to resolve another problem: violent conflict. In all three
cases, the host state (Indonesia for East Timor; Sudan for South Sudan;
Ethiopia for Eritrea) agreed to relinquish control of the territory as part of
negotiated peace agreements.
All of these new states obtained sovereignty after the disappearance of their
former sovereign power, or with the permission of their former sovereign
power. What they all have in common is that they became states in order to
resolve some kind of problem, meaning there was some international benefit
to their recognition. For the world’s newest states, their recognition was more
of a political act than a legally defined process.
When is a state recognised as independent?
Although it’s not clearly laid out in law, a territory essentially becomes a
sovereign state when its independence is recognised by the United Nations.
388
As the largest and most inclusive multilateral organisation, its sanctioning of

sovereign statehood makes sense.
But while procedures for admitting new members are clearly laid out in the
Charter and in the rules of the UN, these rules pertain to new members that
are already sovereign states. Yet again there is ambiguity in the process that
aspiring states must go through in order to become sovereign.
Becoming an internationally recognised sovereign country is not a clear or

straightforward process. In many ways, it is determined by power and the
international political climate of the day. And a surprising number of entities
exist as unrecognised states, many for decades, without recognition of
sovereignty.
If Catalonia or Kurdistan declare their independence, they may get sovereign

statehood if their host states agree. If not, though, they could choose to
declare their independence, and to exist as an unrecognised state indefinitely.
May be Buganda should settle for unrecognized sate indefinitely hence agree
to be haunted by the inexcorcible Buganda ghost.
389
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Exorcising

The Inexorcible Buganda Ghost

Isaac Christopher Lubogo

© 2022 Isaac Christopher Lubogo.

All rights reserved. No part of this publication may be reproduced or

First Edition 2022

First published in Uganda by:

View this author’s profile at:

Luganda lyrics ................................................................................................ xiv

CHAPTER ONE .................................................................................... 1

Role of Chartered Companies in the Early Demarcation of Spheres of

CHAPTER TWO ................................................................................ 41

A Break-Down of the 1900 Buganda Agreement and its Legal Implications

Applicability of The Tests of a Valid Contract on The Buganda

CHAPTER THREE ........................................................................... 142

Application of the 1902 o-i-c in terms of constitutionalism ..................... 146

CHAPTER FOUR ............................................................................ 154

CHAPTER FIVE ............................................................................... 158

The 1955 Namirembe Agreement .............................................................. 163

Chapter six ......................................................................................... 184

First constitutional conference at Lancaster ............................................... 188

CHAPTER EIGHT ............................................................................ 198

CHAPTER NINE .............................................................................. 202

Indirect consequences of the 1900 Buganda agreement on Buganda and unto

CHAPTER TEN ............................................................................... 242

The Kayunga-Bugerere Kabaka crisis 2009 ................................................ 245

CHAPTER ELEVEN ........................................................................ 321

Legal variation of mailo land ....................................................................... 326

Land tenure in colonial and Post Colonial Uganda ................................... 350

CHAPTER TWELVE ........................................................................ 367

CHAPTER THIRTEEN ................................................................... 378

REFERENCE ..................................................................................... 390

Oh God, Even my God my Hish Tower, my refuge, my Redemeer,my only

About the Book

Exorcising the inexorcible Buganda ghost: Hoodwinked, Dumped, Used and

This so called 1900 buganda agreement has pushed Uganda towards a

This book offers no illusions in this regard and is extremely realistic in my

A nation like Buganda should enjoy the right to self-determination, which is

In this context I would like to address the unsettled Buganda question,

By allowing buganda to be used as a staging force to corce uganda and allign

Uganda achieved independence on 9 October 1962 with the Kabaka of

Twesiimye nnyo, twesiimye nnyo

Olwa Buganda yaffe

Ekitiibwa kya Buganda kyava dda

Okuva edda n'edda eryo lyonna

Lino eggwanga Buganda

Nti lyamanyibwa nnyo eggwanga lyaffe

Okwetoloola ensi yonna

Abazira ennyo abatusooka

Baalwana nnyo mu ntalo

Ne balyagala nnyo eggwanga lyaffe

Ffe abaana ba leero ka tulwane

Nga tujjukira nnyo bajjajja baffe

Baafirira ensi yaffe

Nze naayimba ntya ne sitenda

Asaanira afuge Obuganda bwonna

Naffe nga tumwesiga

Katonda omulungi ow'ekisa

Otubundugguleko emikisa gyo era

We are blessed, we are blessed