LLB1/DPL1, CONSTITUTIONAL HISTORY

2023/2024 SEMESTER ONE

NATURE OF THE CONSTITUTION AND NECESSITY TO STUDY CONSTITUTIONAL

HISTORY

The constitution is a set of rules expressing the needs and aspirations of the people. It
is a legal and normative framework that regulates and governs a country.

It often addresses several aspects including the relations between the people and their
structures of government and the relationship between various organs of government.

It is often considered the supreme law of the land such that any other law (or custom),
which is inconsistent with that law or custom is to the extent of its inconsistency treated
as null and void, and the supreme law shall prevail.

In legal theory, the constitution has been described as the grand norm and that all other
laws derive their validity from this supreme norm.

WHY WE STUDY CONSTITUTIONAL HISTORY

We study constitutional history because we want to look at how common society

evolved especially as regards its structures of government and the body of laws that
have existed over a period of time.

Further in order to assess the present, we need to look at our past, learn from the
failures and successes and be able to provide reform for the future.

The necessity of studying constitutional history is in fact apparent from the preamble of
the 1995 constitution which provides inter alia, recalling our history which has been
characterized by political and constitutional instability committed to building a better
future by establishing a socio-economic and political structure through a popular and
durable national constitution based on principles of unity, peace, equality, democracy,
freedom, social justice and progress.

Since all laws derive from the constitution as the fundamental law, it is necessary to
examine the manner in which the constitution is itself derived and enacted.

We study constitutional history because the concepts and principles that are central to
constitutional law for instance separation of powers, rule of law, independence of the
judiciary, parliamentary sovereignty, human rights. These can only be appreciated
against their origins in the Anglo-American tradition and their evolution and appreciation
in the history of Uganda as a modern state.

ORIGINS OF THE IDEAS OF THE CONSTITUTION

The ideas of the constitution in the various forms have their origins traceable as early as
the antiquity, through the medieval era in Europe to the political thinking and events of
the 17th and 18th century.

In the period of antiquity, ancient Greece with its scholars such as Aristotle, Socrates
and Plato gave us the idea of modern state and government. The city – state (polis) was
in Aristotle’s view to be of such a size that allowed participation of all citizens in
government and thus the concept of direct democracy is no longer possible in modern
large states and has been replaced by the concept of representative democracy.

Furthermore, in the open life of market squares, democratic ideas of freedom of

assembly, association, expression, conscience and equality evolved.

Ancient Rome gave birth to several constitutional ideas including that of the modern
parliament and perhaps more significantly the idea of citizenship by defining who was a
citizen of Rome and the duties and rights that attached to citizenship.

The medieval era in Europe was essentially a feudal one characterized by feudal lords,
noblemen, merchants and serfs and was basically founded on agriculture and trade. It
was a period of absolutism in the power of the noble men and feudal lords over the lives
and liberties of serfs as well as taxation of trade.
The influence of Christianity during the period also saw the conflict between church and
the state. During this period, there were developments to restrain the absolutism in the
powers of noblemen and feudal lords. One of these developments occurred in the
12thcentury in England in 1215 in the form of Magna Carta, which often recognized as
the first document in the process of establishment of constitutional states in Europe. It
contains several clauses but the most significant were.

i) The right of the individual to trial by the jury

ii) The right of Habeas Corpus.

These two clauses sought to restrain the power of the noblemen and feudal lords to
arbitrarily detain people by requiring a trial by jury. The Magna Carta gave birth to the
modern concept of due process or the right to a fair trial. On the other hand by
introducing the writ of Habeas Corpus, it guaranteed the right to personal liberty.

EVOLUTION OF A CONSTITUTIONAL STATE IN UGANDA.

The scramble for Africa, which pitted the major European powers of the time against
each other, was eventually settled through an international conference in Berlin in 1884.

Prior to the Berlin conference, the powers had nonetheless already secured spheres of
influence through the activities of missionaries, explorers and charted companies and
the conference only served to give affirmation to the demarcation of territories.

In East Africa, the source of the Nile and the economic as well as strategic interests had
already fueled colonial rivalry. The rivalry in Uganda was however on the outset in the
character of religion and whose intensities threaten social order within the territory
particularly Buganda.

The protestant and catholic missionary groups were engaged in a religious rivalry,
which defined the politics and the balance of power between Britain and France. The
religious group that emerged dominant was the Protestants and has since remained a
dominant force in the political evolution of the colonial and postcolonial state in Uganda.
The religious factor has permeated the political life (in particular political parties) as well
as social-economic aspects (e.g. schools, hospitals etc) of Uganda’s history even up to
the present day.

It is to be noted that the Amin influence itself gave birth to the minority religion of Islam
and which in the Muslims were to have a dominant role. It’s therefore evident that from
the very beginning of the emergence of Uganda as a constitution/state, religion has
permeated the socio-economic and political digest of Uganda and have since been
inter-related.

The religious factor was in its earliest from prominent in the attempt to raise counts as
well as wining favors of the Kabaka in Buganda. Eventually after the settlement of
religious conferences in Buganda and after a brief period of the administration of the
Imperial British East Africa Company, the British flag was erected in Uganda for the first
time on 1stApril, 1893 at Fort Lugard, Old Kampala hill.

The protectorate was declared a year later and between 1894 and 1900, the British
consolidated their dominion. In 1900, the British entered into an agreement with
Buganda called the (B) Uganda Agreement whose significance was to pervade
Uganda’s colonial and post-independence periods in both political and constitutional
terms.

The 1900 Agreement was largely significant in a number of aspects below:

i) It was the first of its kind in Uganda and consequently led to other agreements with
kingdom areas such as Tooro (1900), Ankole (1901 and1941) and Bunyoro (1933 and
1937). In the latter part of the colonial period, another agreement would be concluded
with Buganda in 1955.
ii) It introduced indirect rule as a policy of colonial administration as it established and
confirmed British over rule over Buganda with the Kabaka as the political ruler although
in fact relegated to a status of a puppet.

iii) It tended to give Buganda a privileged status in comparison to the other parts of the
protectorate. This was in spite of provisions to the contrary.

iv) It confirmed the territory and boundaries of Buganda as a kingdom.

v) It introduced the first instances of formal political government and thus it is often
regarded as the first constitutional instrument in Uganda’s.

THE 1900 BUGANDA AGREEMENT, ITS PROVISIONS AND THEIR SIGNIFICANCE.

The Buganda Agreement was signed on 10thMarch 1900 between Sir Harry Johnston as
His Majesty’s special commissioner and the regents (and chiefs) including Sir Apollo
Kaggwa, Stanislas Mugwanya and Nuwa Mbogo on behalf of the infant king Chwa II.

The Agreement contained 22 clauses and the majority of which were to be of profound
significance of Buganda in particular and the protectorate of Uganda as whole.

Article 1 of the agreement demarcated the boundaries and laid out the territory of
the kingdom of Buganda.

In so doing, it established the geographical, political and administrative jurisdiction of

the kingdom. This had a number of ramifications:

i) It placed a restraint on the expansionist tendencies of Buganda by clearly defining the

extent of its territory.

ii) It defined the extent to which the jurisdiction of the Kabaka’s government went in
terms of legislative, judicial, political and administrative competence.

Kazaraine v The Lukiiko [1963] E.A 47. it highlights some of the problems of
jurisdiction.
Article 9 which laid out the administrative units /counties of Buganda.

The agreement confirmed the kingdom as the primary entry in Uganda for the control of
the rest of the protectorate territory. It is significant that within the boundary demarcated
was territory which belonged to Bunyoro and had been given to Buganda by the colonial
government for its assistance to the defeat and pacification of Bunyoro. This territory
consisting of 2 of the counties of Bunyoro and remained a contentious issue particularly
between Buganda and Bunyoro throughout the political and constitutional existence of
the protectorate and the immediate post-independent Uganda. The lost counties issue
was reflected in a number of events, judicial decisions and constitutional developments
including.

i) The signing of the 1933 and 1937 Bunuyoro Agreement where Bunyoro raised the
question of the return of its territories.

ii) The Lancaster and Marlborough conferences in 1961 and 1962, Bunyoro raised the
issue and the Morrison Commission was formed.

iii) The Kazaraine case in 1963.

iv) 1964 referendum on lost counties

v) Kabaka’s Government v AG of Uganda (1964) (Challenged the constitutionality of the

referendum)

vi) Constitution of Uganda Amendment Act No.36/1964.

Article 2 provided that the Kabaka and the Chiefs of Buganda agreed toforfeit the
collection of tribute from neighboring provinces in favour of his majesty’s
government.

In this provision and others, the agreement recognized the transfer of economic rights
as an objective of the colonial state (cross reference with article 4, 9, 12, 15, 16 and 17).

Article 3 stipulated that Buganda would rank as a province of equal standing with
any of the other provinces in the protectorate (to which it may be divided).
Refer to article 1 of the 1902 Order in Council. The intention of article 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 infact give Buganda an enhanced position which would eventually lead
to struggles and conflicts between Buganda and the rest of Uganda which characterized
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.

-1953 – 55 Kabaka crisis.

-The 1955 Buganda Agreement (gave Buganda a format of electing representatives to

the Leg co.)

-The 1958 memorandum by Buganda to her Majesty’s government.

-1958 – 1961, boycott of Leg co elections.

-Katiikiro of Buganda v Ag. Of Uganda [1959] E. A 38.

-Lancaster and Marlborough conference 1961 and 1962.

Article 4 stipulated that the revenue of Buganda kingdom that was collected
would be merged with the general revenue of the protectorate.

The implications of this provision, was to undermine the economic independence of the
Kabaka and his kingdom and is one of the provisions in the Agreement that ceded
economic power to the colonial administration.

See AG v Kabaka’s Government [1965] E.A 305

Article 5 stipulated that the laws made for the general government of the
protectorate were applicable to Buganda except where they were a conflict with
the terms of the agreement in which case the terms of the agreement were to
prevail.

The significance of this article lies in the fact that it laid down the law applicable as
between the protectorate laws and the agreement provisions. It was largely designed to
appease the kingdom in giving the impression of the supremacy of the terms of the
agreement, but this would eventually turn out to be an empty gesture as it did not stop
the colonial administration from overriding the terms of the agreement.

When it suited the administration and several cases would later demonstrate this fact.

R. v Besweri Kiwanuka (1937)

The issue was whether the High Court established under the Order-in- Council had
jurisdiction over matters and persons in Buganda. The Buganda Agreement had not
explicitly stated whether or not this would be the case (Article 6). As in the Katozi case,
the issue was referred to the Secretary of State of the colony whose reply was to affirm
that the 1902 Order-in-Council was superior to the kingdom Agreement. The court
eventually held that the 1902 Order-in- Council, Her Majesty’s government had made
manifestations to the extent of his jurisdiction in Uganda and further that such
manifestation was to be regarded as an “act of state” which was not challengeable
before Her Majesty’s courts

In the case of Mukwaba and others v Mukubira and others (1954).

One of the issues raised before the court related to the validity of the withdrawal of
recognition and deportation of the Kabaka in 1953.

The court held that the withdrawal of recognition under Article 6 of the Buganda
agreement was an Act of State in which case, the court would not be able to inquire
unto its validity.

In the case of Nasanairi Kibuuka v Benie Smith, (1903) 1U.P.L.R 34

The issue related to the legislative powers reserved the kingdom of Buganda under the
1902 Order-in-Council. The court held that his Majesty’s government did not acquire
powers in Buganda which had not been granted by the 1900 agreement. Carter, J noted
that “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 had Kabaka before remained with him except as far as
they are expressly taken away or limited. A sovereign state has undoubtedly the power
of legislating which was the case prior to the 1900 agreement, in so far as am aware
which the agreement takes away this right”.

The case of Katozi v Kanizi (1907) 1 U.P.L.R.24 involved the conflicts between the
1901 Ankole agreement which reserved certain judicial powers in Ankole native courts
and the terms of the 1902 Order-in-Council which in establishing the High Court claimed
to give it full jurisdiction within the protectorate territory.

The High Court held that the Order in-Council did not alter existing kingdom
agreements. The court’s decision was supported by the secretary of state for the
colonies who stated:

“The validity of Uganda Order-in-Council, 1902 is so far as it nullified this

reservation of judicial powers is open to question. In these circumstances am
advised that the Uganda-Order-in-Council of 1902 should be construed in such a
manner as not to impair the rights and powers reserve”

These two early cases, indicate the courts giving prominence to the kingdom agreement
and bearing powers reserved to the native institutions under those agreements. In the
subsequent decade, the courts demonstrate a shift in approach that would result in the
virtual disrespect the kingdom agreements.
Article 6: Stipulated that His Majesty’s government would recognize the existence
of the Kabaka and give him protection, the Kabaka, chiefs and people of Buganda
would conform to the laws and cooperate with the colonial government.

This article is the crux of the entire agreement as it dealt with the essential elements of
the imposition of colonial rule in Buganda.

i) Indirect rule between the Kabaka as the native ruler of his people.

ii) Subordination of the kingdom to the authority and over rule of the colonial
administration.

iii) The failure to cooperate was to result in withdrawal of protection and recognition.

In the case of Mukwaba v Mukubira 1954 One of the issues raised before the court
related to the validity of the withdrawal of recognition and deportation of the Kabaka in
1953.

The court held that the withdrawal of recognition under Article 6 of the Buganda
agreement was an Act of State in which case, the court would not be able to inquire
unto its validity.

There are other significant aspects to Article 6: Including:

i) It attempted to address the issue of succession to the Kabakaship in Buganda by

placing the duty upon the lukiiko to nominate and elect a successor. Although the
colonial government would have the final say on who eventually became the Kabaka.

ii) It spelt out the jurisdiction of the court in the Kabaka’s kingdom stipulating that this
jurisdiction would cover only cases involving natives (cross-reference to Article 8).

iii) It spelt out remuneration of the Kabaka and that he would be guaranteed a yearly
allowance of pounds 1,500 as well as pounds 650 for house hold needs during his year
of minority while the regent would get an annual salary of 460 pounds.

iv) It stipulated that the Kabaka would be addressed as His Highness and receive a 9-
gun salute at functions (while His Majesty of England got a 21Salute).
It is clear from Article 6 that with overall authority was vested in the colonial government
and the Kabaka ruled at its pleasure.

Article 7 provided that the Namasole mother of the Kabaka was to receive a life
time 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.

Article 8 provided that in cases of a mixed nature cases involving natives and
non-Natives these were subject to the jurisdiction of the British Courts (cross
reference 1902 Order-in-Council sec. 15).

Article 9 as already noted divided Buganda into 20 administrative units (counties)

each of which was to be headed by a chief appointed by the Kabaka’s
government and approved by the colonial administration.

The chiefs were to receive an annual salary of 460 pounds and carry out a number of
functions including:

i) Administering of justice (in effect the chiefs were the judicial officers in the Kabaka’s
courts).

ii) Assessment and collection of taxes up keep and maintenance of roads.

iii) Overall supervision of native affairs with respect to all their functions, except for the
collection of taxes, the chief was to report to the Kabaka’s government. As regards
taxes, the chiefs were responsible to the colonial government.

If a chief failed to carry out his duties diligently, the colonial Government could call upon
the Kabaka to dismiss and replace him.

Article 10 stipulates that the Kabaka would be allowed three ministers (native
officers of state) including:

i) Prime minister (Katikiro)

ii) Chief Justice (Omulamuzi)

iii) Treasurer (Omuwanika) who were to be approved by the colonial administration.

The three ministers were to receive an annual salary of 300 pounds (except where they
were regents for which they received 400 pounds). The native officers of state were to
act as a conduit for relations between Kabaka and the colonial administration.

The P.M was to be an ex-officio member and president of the lukiiko. While the Chief
Justice was to be the vice president.

Article 11 constituted the lukiiko as the native legislative body of the kingdom
apart from the three ministers, it was to comprise each county chief (who were
also to be ex-official members and seven other persons nominated by the
Kabaka.

Functions of the lukiiko were:

i) Discussion and legislation on all matters relating to the administration of the kingdom.

ii) Act in certain instances as courts of appeal involving property and sentences of
imprisonment.

Notably the lukiiko had no power over the property belonging to Europeans.

iii) Membership of the lukiiko was confined to the natives of Buganda and on selecting
his representatives; the Kabaka was under a duty not to take into account the religious
affiliation of the person selected.

Article 12 provided for taxation as a means of raising finances and revenue

towards the administration of the kingdom and the protectorate. A system of
taxation involved the following taxes:

i) A hut tax of 3 rupees or 4 shillings per year imposed on every hut used as a dwelling
place.
ii) A gun tax of 3 rupees or 4 shillings per year to be paid by any person who possessed
a gun.

Article 12: However, contained exemptions of certain persons from the payment of gun
tax in respect of a certain number of guns thus the Kabaka was granted 50 guns for 50
men in his household. The Namasole was to get 10. The ministers 20, county chief 10
and other membership of the lukiiko one.

The system of succession was however not to affect:

i) Exterior taxation i.e., customs and port dues.

ii) Rates on things such as water, lightings, market dues. Significantly Article 12
embodied the principle of no taxation without representation or legislation. Given that no
other tax was to be imposed except by the majority of the lukiiko.

Article 13 dealt with the question of military service in Uganda by recognizing the
Kabaka’s preexisting right to conscript able bodied men for military service in the
defense of the kingdom were the need to arise.

However, this right was now to be exercised under advice of the colonial administration.
Article 13 as with other provisions of the agreement affirm the laws of the Kabaka of his
authority in the kingdom in this regard in respect of military affairs.

Article 14 provided for the maintenance of roads in the Kingdom.

It would give the county chief labour and free able-bodied men to compulsory work on
the up keep and maintenance of roads

Article 15 concerned with the distribution of land and was to be of great

significance the subsequent history of Buganda and the protectorate at all.

The land was distributed as follows:

i) 1,500 sq. mile of forest came under the control of the control of the colonial
administration

ii) 9,000 Sq. Miles of land was vested in the kabaka,s government and under the control
of the colonial administration.

iii) 19,000 and 9,000 sq. miles came to constitute the crown land. (Of Article 18
compensation for the 10,500 sq. miles).

iv) 330 sq. miles of plantations and other private property for the Kabaka 16sq. miles for
the Namasole, 10 sq. miles and other private property for the king’s mother.

v) 320 sq. miles for the 4 princes.

vi) 960sq. miles for the princesses, and other relatives of the Kabaka.

vii) 920 sq. miles for the county chief of which 160 sq. miles was held as private
property/ each chief and the other 160 sq. miles was the official estates of the county.

ix) 96 sq. miles for the regents of which 48 sq. miles was private property each regent
16 sq. miles and the other 48 sq. miles was official estate advanced to the office of the
regents.

xi) 24 sq. miles for Nuwa Mbogo, leader of the Muhandans.

xii) 20 sq. miles for the Kamuswaga the chief of (kooki).

xiii) 180,000 sq. miles for 1,000 chiefs and other private owners. There were mostly
estates already on possession and each was composed at an average of 8 sq. m.

xiv) 92 sq. miles for the three missionary societies.

xv) 50 sq. miles for the colonial government for its station and offices.

Because of distribution of land in sq. miles, it came to be known as mailo land, although
it is basically freehold.
Article 15 would have a significant impact on the political, socio-economic and
cultural destiny of Buganda and the protectorates.

i) It led the disposition of the Kabaka’s authority over the Butaka /customary tribal land.
It would ultimately lead to the demise of communal landownership in Buganda. This was
made more apparent by the pressing of Buganda land law of 1908 which allowed for the
alienation of land in

Buganda.

Mwenge v Migade (1933).

Migade wanted to sell land which was part of Butaka and Mwenge challenged his right
to do so on the basis that Butaka land was inalienable in native Buganda customs. The
issue before the court related to the instance and continuance of customary tenure in
Buganda. The court considered the provision of the 1900 agreement and the land
legislation passed by the Buganda government. (Buganda Land Law of 1908) and when
not to hold that the practice in Buganda showed that butaka tenure no longer existed
and therefore, by the provisions of the land law. The continued existence of the alleged
custom was repugnant and that the custom must be repealed as abrogated and
destroyed.

ii) Given that mailo land was free hold, it placed emphasis on individual ownership and
as such land became the basic unit of economic development of the protectorate. The
difficulties of the relations would emerge in the early period of colonial rule.

Articles 16 and 17 dealt with the promulgation of Forest Regulations and rights
over ministers on private estates and further confirmed the colonial government’s
grip and control over economic and natural resources.

Article 20 stipulated the instances in which the colonial government would

repudiate (revoke) the agreement on account of the conduct or acts of the Kabaka
or chiefs or people of Buganda.
One such instances was the failure to raise a minimum amount of revenue or the
taxation due.

Article 21: Although the agreement was written in English and Luganda, the
English version was the authoritative text to be used in its interpretation.

THE 1902 ORDERS– IN –COUNCIL

The 1902 order-in-council formalized colonial rule in Uganda and was the fundamental
Law of the protectorate. The order in council was in exercise of power granted to His
Majesty’s government under the Foreign Jurisdiction Act of 1890 to legislate with
regards to foreign territories of the United Kingdom. 1902 orders-in-council dealt with
several matters of constitutional significance ranging from the provincial and
administrative divisions, structures of government. Administration of justice and the
maintenance of law and order to the applicable laws.

As the fundamental law of the protectorate, the Order-in-Council provided for the
following:

1) First and foremost, it defined the provinces and administrative divisions of the
protectorate under Article 1. In so doing it defined the extent of the applicability of
Order-in-Council as a constitutional instrument. As well as the extent of the jurisdiction
of the colonial government in the protectorate. The divisions originally established by
the Order-in-Council were five.

a) The Central province consisting of the districts of Elgon, Karamoja, Busoga, Bukedi
and Labwor.

b) The Rudolf province consisting of the districts of Torkwed, Turkana and Dabossa.

c) The Nile province consisting of the districts of Ddinga, Bari and Shuli.

d) The western province consisting of the districts of Bunyoro, Toro and Ankole.
e) The kingdom of Buganda and the islands appertaining there to (Article 3 of Buganda
government).

In 1926, a border adjustment took place to transfer a part of eastern Uganda to the
Kenya colony. This was undertaken by two Orders-in-Council that is the Kenya Colony
and Protectorate (Boundaries) Order-in-Council of 1926. Proclamation under Article 6:
Uganda Order-in-Council of 1926 as a result of which what was referred to as a Rudolf
province became part of Kenya.

The protectorate was divided into districts and sub-districts for the purposes of its
administration and this was a power conferred by Article 6 to the commissioner.

2) It provided for the office of the Commissioner under Article 4 and 5 who was to take
overall control of the administration of the protectorate as the chief representative of His
Majesty’s government. The commissioner would later become the Governor under the
provisions of the 1920 order-in-council.

3) The Order-in-Council provided for crown lands under Article 7 which were under the
control of the commissioner. The order-in-council defined crown lands to mean all public
land in the protectorate that had been subject to the control of His Majesty by virtue of
any treaty convention or agreement and all land, which shall have been acquired for
public service (Article 2).

Similarly, minerals and mines were to vest in the colonial government, under Article 7
(clause 4). In effect the control of the greater part of land and natural resources in the
protectorate was vested in the colonial government. The definition of crown land by
reference to agreements was intended to affirm the public lands acquired under
Buganda, Ankole and Toro agreements.
4) The Order-in-Council empowered the commissioner to make laws under Article 8-10.
In 1920, this function was placed in the hands of a legislative council. However, by
virtue of the 1902 order-in-council, the commissioner was able to make laws for peace,
order and good governance in the protectorate between 1902 and 1920.

5) The Order-in-Council established a system of exercise of judicial power comprising of

the Courts of Justice, in particular the High Court which was to have full civil and
criminal jurisdiction on all persons and matters in Uganda. This was provided for under
Article 15 (clause1). The court was referred to as His Majesty’s High Court of Uganda.

6) The Order-in-Council contained a reception clause under Article 15(clause 2). The
reception clause essentially defined the law to be applied in the protectorate and in
particular in the judicial determination of disputes and matters by court. The applicable
law was to include in law, doctrines of equity and statutes of general application of
force. The reception date of Statutes of General Application was legislation in force in
England as of11thAugust 1902. This is how laws such as the Evidence Act, Contract
Act, Sale of Goods Act, and Penal Code came to be part of the laws of Uganda.

7) The Order-in-Council contained a repugnancy clause under Article 20.The clause

recognized the application of native laws and customs in disputes involving natives as
long as they were not repugnant to natural justice and morality.

Article 20 provided: in all cases, civil and criminal to which natives were parties, every
court shall:

a) Be guided by native law so long as it’s applicable and is not repugnant to justice and
morality or inconsistent with any order-in-council or ordinance or any regulation or rule
made under any Order-in-Council/or ordinance.
b) Required the courts in such disputes between natives to decide all such cases
according to substantial justice without undue regard to technicalities of procedure and
without undue delay.

R v Yowasi K. Paulo et al (1922) is a forerunner to Article (d) & (e) of the1995.

The repugnance clause was intended to remove those customs and laws that were
considered negative and repugnant to natural justice and good conscience.

The major problem with the clause was that the negative and repugnant aspects of a
custom were perceived in the eyes of the colonial judge. In other words, it was a subject
test which was applied according to the morals and standards of an English person. As
a result of this subjectivity, many native laws and customs which were fundamental to
the social fabric of the native communities were rendered inapplicable at the stroke of
the English man’s pen.

The subjectivity of repugnance of native custom was reflected upon by Justice Wilson
in the case of Gwao Bin Kilimo v Kissunda Bin Ifuti (1928) 1 T42 403 in which be
admitted that the test is one of English morals and standards.

The most famous case on the repugnant clause was R. v Amkeyo (1917) KLR 14.

Amkeyo had been charged and convicted of possession of stolen property and the man
witness against him was a woman whom he claimed to have married according to
native custom.

On the basis of the law of evidence, the testimony of this woman should not have been
admitted given the desire to protect marital confidence. The issue by the court was
whether a woman married under native custom was a wife in the strict sense of the
word and in effect that the relationship between Amkeyo and the woman could be
construed as a marriage.

Hamilton C.J took the view that the relationship between Amkeyo and the woman in
question was for lack of a better phrase “wife purchase” and that it did not fit in the idea
of marriage as generally understood among civilized peoples and that the native custom
was supply repugnant to good conscience and morality. In holding that the relationship
under native custom was not a marriage, the C.J underscored the standards of a
marriage as understood among the English.

The rejection of a relationship under native custom as a marriage was founded ona
number of reasons:

i) There was no consent on the part of the woman as she was not a free contracting
party.

ii) The element of bride price or bargain made the woman to be rather in the nature of a
(chattel).

iii) Relationship under active custom was potentially polygamous.

Read these Cases

Abdulrahaman v R. (1962) E.A

Uganda v Alai (1967) E.A 596

Gwao Bin Kilimo v Kissunda Bin Ifuti (1928) 1 T42 403

Mwenge v Migade (1933)

Kajubi v Kabali (1944) 11 E.A.C.A

R. v Paito and others

Qn. Is the Repugnance test really the suitable test for determining the validity and
continuity of custom or should the test be rather one of consistency with the
constitution, that is Article 2 (2), 33 (6) and 246 (2) among others.
8. The Order-in-Council provided for the power of the commissioner to order the
removal or deportation of any undesirable person from the protectorate, in order to
preserve peace, order and good governance.

This favour was provided under Article 24 and 25. An order of removal or deportation
was not subject to judicial appeal before the courts as a result of the provisions of
Article 24 and 25. The commissioner made laws for removal and deportation:

i) Removal of Undesirable Natives Order 1907

ii) Deportation Ordinance 1908

This was revised four times between 1908 and 1956.On the several occasions during
the colonial period, orders of removal and deportation were issued to deal with art-
colonial sentiments instances included:

Deportation of several members of the Bataka party after the riots in1940s.

Deportation of KabakaMutesa II in 1953.

Re GL Binaisa (1959) E.A 997

Judicial inquiry pending deportation.

The Deportation Ordinance would survive into post-independent Uganda as Cap 46 and
its constitutionality was finally be challenged in Ibingira case 1956.

IMPLICATIONS OF ORDER-IN-COUNCIL 1902 IN TERMS OF

CONSTITUTIONALISM.

The Order-in-Council is important because it was the first legal instrument to establish a
framework of government for the whole of the protectorate.

It put in place the basic elements and structures of government, which influence politics
and constitutional government through the colonial period as well as post independent
Uganda. On the other hand, the Order-in-Council tended in other respects to negate the
ideas of constitutionalism including those ideas, which had developed in Britain at the
time e.g.

i) It did not respect the doctrine of separation of powers given that the legislative and
exercise of powers were vested in the one person of the commissioner

ii) It did not recognize the rule of law by applying double standards an open
discrimination between the natives and the Europeans. For instance, on terms of
adjudication of disputes. The absence of the rule of law was also apparent in the denial
of the right of recourse to court by individuals in respect of the acts of the colonial
authorities.

iii) It did not define the rights and freedoms of the individual in fact apart from a casual
reference to Habeas Corpus; the Order-in-Council does not mention human rights
whatsoever. The question that has been significant in Uganda’s constitutional history
has perhaps been on the relationship between the Order-in-Council and the kingdom
agreement, Article 5 stipulated that the agreement would have procedure over other
laws of the protectorate.

The relationship between the Order-in-Council and the kingdom agreement was
subjected to dispute in a number of cases below:

NasanairiKibuuka v Benie Smith, (1903) 1U.P.L.R 34

The issue related to the legislative powers reserved the kingdom of Buganda under the
1900 Order-in-Council. The court held that his Majesty’s government did not acquire
powers in Buganda which had not been granted by the 1900 agreement. Carter, J noted
that “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 had Kabaka before remained with him except as far as
they are expressly taken away or limited. A sovereign state has undoubtedly the power
of legislating which was the case prior to the 1900agreement, in so far as am aware
which the agreement takes away this right”.
Katozi v Kanizi (1907) 1 U.P.L.R.24

This case involved the conflicts between the 1901 Ankole agreement which reserved
certain judicial powers in Ankole native courts and the terms of the 1902 Order-in-
Council which in establishing the High Court claimed to give it full jurisdiction within the
protectorate territory.

The High Court held that the Order in-Council did not alter existing kingdom
agreements. The court’s decision was supported by the secretary of state for the
colonies who stated:

“The validity of Uganda Order-in-Council, 1902 is so far as it nullified this

reservation of judicial powers is open to question. In these circumstances am
advised that the Uganda-Order-in-Council of 1902should be construed in such a
manner as not to impair the rights and powers reserve”

These two early cases, indicate the courts giving prominence to the kingdom agreement
and bearing powers reserved to the native institutions under those agreements. In the
subsequent decade, the courts demonstrate a shift in approach that would result in the
virtual disrespect the kingdom agreements.

R. v Besweri Kiwanuka (1937)

The issue was whether the High Court established under the Order-in-Council had
jurisdiction over matters and persons in Buganda. The Buganda Agreement had not
explicitly stated whether or not this would be the case (Article 6). As in the Katozi case,
the issue was referred to the Secretary of State of the colony whose reply was to affirm
that the 1902 Order-in-Council was superior to the kingdom Agreement. The court
eventually held that the 1902 Order-in-Council, Her Majesty’s government had made
manifestations to the extent of his jurisdiction in Uganda and further that such
manifestation was to be regarded as an “act of state” which was not challengeable
before Her Majesty’s courts

Mukwaba and others v Mukubira and others (1954).

One of the issues raised before the court related to the validity of the withdrawal of
recognition and deportation of the Kabaka in 1953.

The court held that the withdrawal of recognition under Article 6 of the Buganda
agreement was an Act of State in which case, the court would not be able to inquire
unto its validity.

Katikiro of Buganda v A.G (1959) E.A 382

The issue was whether the protectorate government in conducting the1953 Buganda
Agreement which provided for a format of indirect elections for Buganda.

The court held that the conclusion of the 1955 agreement was an Act of state and
therefore not challengeable before her Majesty’s court.

Daudi Ndibarema v Enganzi of Ankole (1960) E.A 47

The issue was the validity of the Ankole Land Regulations of 1958 in relation to the
1901 Ankole Agreement. The conclusion between the Ankole Agreement amounted to
an Act of state upon which no inquiry could be brought before the courts.

Shobuza II v Miller and others (1926) AC 518

These cases ended the debate about the superiority as between the Order-in- Council
and kingdom agents and the courts difference to the Act of state doctrine was in the
interest and political convenience of the colonial government. Most significantly it
demonstrated the fact that the colonial government did not respect or feel itself bound
by the provisions of those agreements.

IMPOSITION AND OPERATION OF COLONIAL RULE BETWEEN 1902AND 1920

Once the Buganda agreement had been signed and 1902 Order-in-council enacted, the
British government spent the next two decades consolidating its authority and over rule.

In between the two instruments other kingdom Agreement had been signed with Toro
and Ankole with administrative structures set up under those kingdom Agreement
essentially similar to those of Buganda (counties, chiefs, native courts and legislative
councils, officers of state etc)

Outside the kingdom areas, or addition to the 1902 Order-in-Council the primary
instrument for the consolidation of colonial rule was the Native Authority

Ordinance of 1919 which made provisions for the powers and duties of chiefs and for
the enforcement of authority in their areas of jurisdiction. The 1919Ordinance, the chiefs
had administrative duties (collection of taxes, supply of labour for the maintenance of
law and order, prevention of crime, arrest and detention of people’s and animals etc).

In 1920, another Order-in-Council was promulgated and whose major significance was
the introduction of district organs of government. This was actually the primary purpose
of the Order-in-Council as was apparent in its preamble which refers to the necessity of
executive and legislative councils. The main changes introduced by the 1920 Order-in-
Council:

1. It changed the nature of the head of the protectorate from commissioner to governor.
A term that would remain until 1962.

2. It established the Executive Council under Article 6 as a formal executive arm of

government and was to consist of such members as His Majesty’s government would
decide to appoint. In the subsequent years, the executive council would consist of
officers such as.
i) Director of Finance

ii) Director of Medical Services

iii) Director of Transport

iv) Attorney General

v) Director of Agriculture

3. It established the legislative council (Article 7) 10-17 as the formal legislative organ of
government and was to executive the legislative powers hitherto by the commissioner.
The commissioner hitherto exercised the legislative powers. The legislation council was
to consist of the governor and not less than two other persons appointed by His
Majesty’s government. The powers of the legislative council were:

i) To make laws

ii) Constitute the courts

iii) General oversight of administration of justice and maintenance of peace, order and
good governance. Laws made by the legislative council were to be sent to the governor
for assent otherwise they lacked validity. The governor had a right of veto on all matter’s
legislative council.

4. Members of the Legislative and Executive Council sat at the pleasure of His
Majesty’s Government and therefore would be removed from office. (Article 6 and 7).
The governor was also given power to suspend either member of the executive and
Legislative Council which suspension had to be confirmed by his Majesty’s government
and if so done, the particular individual must vacate membership on either council
(Article 16).

5. The judicial system put in place under the 1902 Order-in-Council remained largely
intact. The Eastern African Court of Appeal was established a year later by the 1921
East Africa Court of Appeal Order-in-Council.
The Order-in-Council is significant in Uganda’s constitutional history as for the first time;
the best features of a typical constitutional state are seen to take shape. There is more
less a clear demarcation of the three powers under the 1902 Order-in-Council.
However, it was still designed to retain and reinforce colonial authority given to closer
relationship on the powers of government such that there had not been much of the
transition in the actual distribution of power. In effect, the Order-in-Council confirmed
their forms. This is evident from the membership of the executive and legislative
councils under the Order-in-Council. The ex-officio members of the legislative council
were largely drawn from the public service including the Executive Council and there
were the majority while official members were a minority. Further, the governor’s right of
veto and power of suspension of members rendered irrelevant any demarcation of
powers between the arms of government.

In effect, while there were district organs of government and an increased number of
persons involved in the administration of government, the powers of the government
remained largely intact. Finally in spite of the creation of the executive and legislative
councils, the management would for some time continue to exclude Africans and other
non-European community from their membership.

DEVELOPMENTS IN THE PROTECTORATE FROM 1920s – 30s

In the 1920 and 1930s, there were a number of developments but two in particular
stood out significantly.

i) The Asian question in terms of political representation and economic interest.

ii) The Bataka and peasant grievances in respect of relations on land in Buganda.

THE ASIAN QUESTION

After 1920, demands for participation in the protectorate government was made not by
the native Africans but by the other non-European community, the Asians. The Asians
had come to E. Africa at the close of the C19th mainly to construct the Uganda railway.
After which most settled in Kenya and Uganda carrying on trade and commerce as their
main occupation. By the 1920s, the Asian community was significant and because of
their numbers, they argued fora political and economic state in the protectorate.

The Asian community put pressure on the colonial government for representation in the
legislative council and this bared fruit to the nomination in 1926 of the first Asian
representative Chinubhai Jethabai Amin to the legislative council. In effect, the first non-
European representative on the Legislative Council was Asian rather than African.

It took another 19 years before African representative to the legislative council was
recognized. The Asian question was throughout the colonial period affect politics and
government in Uganda.

In terms of economic interest, the promotion of the Asian economic prosperity was not
by accident nor was it their doing for discriminatory and racist laws put in place by the
colonial government results economic privileges and ultimate domination of trade and
commerce by the Asian community. This domination was a result of laws and policies,
which excluded Africans trading within a specified radius of an urban center. The
Trading Ordinance of 1938 would prohibit Africans from trading within a radius of 10
miles of an urban center or township. The Trading Amendment Ordinance-1930
attempted to reduce the effects of the ordinance by reducing the limitation of 1-mile
radius.

Similarly, Africans were prohibited from growing cotton, processing coffee as well as
engaging in export-import trade thus the foundation of the economy of the protectorate
was left largely in the hands of the Asians. This led to friction and antagonism against
the Asian community such that wherever there were uprisings and riots, as occurred in
the Bataka uprisings of the 1930s and 1940s, the Asian community was a prominent
target of expressions of Anti-colonial sentiments as they were identified as part of the
repressive colonial rule.

One can in fact say that the 1972 expulsions represented the culmination of the African
dissatisfaction with the Asian community.
GRIEVANCES OF THE BATAKA AND PEASANTS

The protectorate underwent significant developments between 1900-1930particularly in

Buganda. During that period, the power of the mailo land beneficiaries was on the
increase and this was set against the dissatisfaction of those who had been disposed by
the land redistribution under the 1900 Uganda Agreement that is the Bataka clan
leaders.

When Kabaka Chwa II took over from the Regents, the Bataka who had formed a quasi-
Political association, the Bataka Association in 1921 appealed to the Kabaka to ask the
Governor for a period of the agreement. They were joined in this appeal by the
peasants who were burdened by the rent (Busuulu and Evunjjo) paid to the mailo land
owners. Although Kabaka Chwa II was sympathetic, the Lukiiko which was composed of
the main beneficiaries of the land distribution rejected the demand.

Nevertheless, at this point in time, the colonial government had itself been concerned
about:

i) The relations between landlord and tenant in Buganda.

ii) The system of land tenure in Buganda was not delivering efficiently in economic
terms and

iii) The Bataka grievances which if not addressed threatened to been even more
problematic to the administration of the protectorate.

Under these circumstances the colonial government set up a commission of inquiry

in1925 and in 1928 wherefore the Busuulu and Envujjo Law was enacted to bringing to
an end to the previously unlimited amount of rent and tribute that the landlord could
extract from tenants. Given that the amount payable was often arbitrarily determined by
the landlord.
The peasants had therefore felt oppressed by the system and the colonial government
admitted that the state of affairs was not economically productive. In this regard in 1928,
Busuulu and Envujjo law did:

1. That a limit in the amount of Busullu and Envujjo that landlords could extract from
tenants.

2. Guaranteed to Buganda peasants, complete and hereditary security of tenure that is

they could not be evicted for simply failing to pay rent and so allowed for the continued
cultivation of land.

Look at this particular part in Nabudere’s Imperialism & Revolution in Uganda.

The Busuulu and Envujjo law of 1928 represented a revolution in the socio-economic
relations in the protectorate.

The law created new relations between landlord and peasants by reducing the
arbitrariness and insecurity in those relations. Economically the tenants gained security
of a use of the land and this ensured that cash crop production continued.

- look at Mwenge v Migade (1933)

On the part of the Bataka who had raised the peasant’s complaints, their own
grievances relating to the restoration of their cultural authority over communal land were
not addressed. In fact, the Busuulu and Envujjo law robbed them of their support base.
The case of the Kabaka was more complex.

On the one hand, he was seen a sympathetic listener to the plight of his people. On the
other hand, however, he was not actually able to deliver any reform. His prestige and
position were generally undermined.

That he was to lament “My present position is so precarious that am no longer direct
ruler of my people. Am beginning to be considered by my subject merely as one of the
British government’s paid servants”.
This is solemnly due to the fact that I do not real power of over my people. Even the
smallest chieftainship is under the control of the provincial commissioner. Any order
given whether by the local chiefs or the Lukiiko is always looked upon with contempt
unless and until it is confirmed by the provincial commissioner.”

Look at Yowasi K. Pailo (1922).

The Busuulu and Envujjo law was able for the time being to diffuse social and economic
tensions in the kingdom. However, the failure to address the grievances of the Bataka
would result in increased antagonism and protests. Most significantly, the Bataka would
eventually organize the most prominent early anti-colonial riots.