Wednesday, October 31, 2012
WHAT BUGANDA PRESENTED TO THE CONSTITUTIONAL REVIEW COMMISSION
WHAT BUGANDA PRESENTED TO THE CONSTITUTIONAL REVIEW COMMISSION The Buganda Kingdom Constitutional Review Commission consisted of: 1. Owek. J. W. Katende – Chairman 2. Owek. A. Makubuya – Vice Chairman 3. Owek. C. P. Mayiga – Secretary 4. Owek. Haji Ssemakalu – Member 5. Owek. Kayita Musoke – Member 6. Owek. Ssava Sserubiri – Member 7. Owek. Kamala Kanamwangi – Member The presentation focused basically on three areas: 1. The Federal System of Government in Uganda. 2. Land Ownership. 3. The Status of Traditional Leaders. A. THE FEDERAL SYSYTEM OF GOVERNMENT IN UGANDA 1. Executive Summary about Federalism Federalism 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 others. It is about helping the Central Government to provide services more efficiently and provide more effective development to the people. It is about sharing power and responsibilities between the Central Government and Regional Governments. Federation 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 minimizes possibilities of waging war against the Central Government. It minimizes 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 equalization 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 Decentralization, does not contradict or exclude Decentralization. The two systems can and should co-exist and complement each other, at the Regional level. Advocating Federal does not mean orseek to get rid of decentralization from the regional tier. Nor does it mean getting rid of District leaders or other Local Government Officials. WHAT IS THE FEDERAL SYSTEM OF GOVERNMENT? 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. 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. What is the Federal System of Government? In the most basic sense, “Federalism” is a national system of governance in a country with one Central Government for the country and several regional governments. What does the Central Government do under this type of arrangement? 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. What do the regional governments do under this arrangement? 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. What is the objective of Federalism? 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. Has Uganda ever been governed under a Federal System of Government? Yes. 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 state that make up the rest of Uganda. How was this Federal Arrangement arrived at? 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. What was the relationship between the various kingdoms and 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. How long did this arrangement last? This arrangement continued throughout the colonial times until the protection Agreement expired on 8th October 1962, at independence. Even at Independence, both the British Government as well as the pre-independence Ugandan leaders recognized 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 realized 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 fulfill 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. What were the basics underlying this Federal arrangement? During the colonial period, Uganda had organized into various Kingdom States and districts of peoples with relatively homogeneous ethnic backgrounds. The philosophy was that people should be grouped together into variable regional units, with each unit being made up of people who shared the same traditions, history, language, culture and traditional beliefs. What happened in the non-kingdom areas of Uganda? In the case of non-Kingdom states 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 ad more economically viable units than the current fragmented mostly unviable districts. Many of these districts were governed directly from the centre and did not benefit from the Federal System. Although these were negatively impacted by being administered from the centre, 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 were the Federal Regions Administered? During the colonial period, the various states and districts were administered through their 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. This Federal and Semi-Federal arrangement was maintained by the 1962 Constitution. Why did the colonial government rely on traditional leaders and institutions in the governance of Uganda? The British colonial government recognized that traditional leaders and cultural institutions played a very major role in the development and transformation of society. They also realized that it was much easier to mobilize people of similar ethnic backgrounds to work together, through their traditional institutions for development. It was for this reason that they relied upon the traditional institutions to achieve the rapid transformation of societies in Uganda. Did the Federal arrangement work in Uganda? In all Uganda’s recorded history, the period between 1945 and 1967 was the period that marked the fastest level of development of Ugandan society during which we saw a very rapid economic transformation. Most of the institutions, schools and colleges, roads, hospitals and much of our physical infrastructure were all built during this period. Uganda’s economic growth rate in the 1950’s was one of the fastest in the world. We were a more economically advanced society than the famous Asian Tiger nations like Singapore, Malaysia, South Korea and Taiwan. In East Africa, we were far ahead of our neighbours; Kenya and Tanzania and other nations in the region. Uganda was then known as the Switzerland of Africa. What happened to the Federal System of Government in Uganda? 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. 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. Why was the Federal System removed? Was it because it did not work? 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 at 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 trouble is the ambition of Sir Edward Muteesa and nothing more.” Furthermore, although Obote invaded the Palace I 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 he 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 well as between the President and the Prime Minister. Lessons must obviously be drawn from this experience. The Federal System that worked well throughout the colonial period and in the early years after independence thus came to an end. What happened to Uganda after the overthrow of the system? From the overthrow of the Federal System, Uganda as a nation state begin 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 bush to return peace, democracy and prosperity of Uganda. This liberation war was fully actively supported by the Kabaka and the people of Buganda, as well as very many people elsewhere in the country. Many in Luweero and elsewhere lost their lives for this cause. Are Traditional Leaders and Institutions dangerous to the development of the Country? The NRM Government allowed and facilitated the return of the traditional leaders, and the revival of tradition, 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 people’s in Uganda. Under Federalism, their potential as mobilizers 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 it is believed many other people from other parts of Uganda would like the question of the Federal System of Government to be revisited from other parts of Uganda, would like the question of 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. Does the Federal System of Government work anywhere in the world? The Federal System of Government is very popular and has worked successfully in many countries around the world. Good examples include: the United States of America, Canada, the Federal Republic of Germany, Australia, Brazil, India, Mexico, Switzerland, Ethiopia, Belgium, South Africa, Malaysia, Spain, and Belgium to mention some. These are among the most stable and prosperous countries in the world. Does it work in developing countries? Does it work in Africa? All the above examples show, the system works well for both developed countries, like the United States and Germany, and also for developing nations, like Brazil, Malaysia and India. Does the federal System of Government work in countries with diverse ethnic groups? Yes. As a matter of fact, most of the countries where there is Federalism have very diverse peoples. A good example is India. With a population in excess of 1 billion people, and a physical size of more than 50 times the total land area of Uganda, India is governed under a Federal System of government, and it has never had a military coup or an illegal overthrow of government in over 50 years of independence. India has in excess of 1,000 different ethnic groups, yet it is the world’s largest democracy. Brazil has over 600million people and is the largest country in Latin America. Its conditions are not different from those of India, yet Federalism has thrived there too, and Brazil has had relatively stable governments. Does the Federal System work in small countries or countries with small populations? Size is irrelevant. Even small countries like Switzerland and Belgium some of which are much smaller than Uganda and with even smaller populations, function with very effective Federal Systems. Are there any Federal Systems in the world based on ethnic origins, cultures, or languages? Yes. A god African example is the State of Ethiopia, where the Federal regions are divided on the basis of ethnic origin. Other examples in the world include the Federal Republic of Germany, Switzerland, and Canada. Even the United Kingdom, which has had a unitary government for centuries, has at least realized the merits and strength of federalism along cultural and ethnic lines. It has introduced some form of Federal arrangement based on ethnic origins amongst the English, Welsh and Scots. In Uganda, during the colonial period and under the 1962 constitution, Federalism was partially practiced on a regional basis with each region being viable and comprising people of similar languages, culture and traditions. After years’ of investigation, interviewing and receiving people’s views, the Odoki Constitutional Commission recommended (under recommendation 18.84 of its Report that, “the demarcation of local administration boundaries has not always been logical or natural.” “It recommended that, “A fair system should take into consideration, among other things, common language, culture, geographical features, natural boundaries and economic viability. This recommendation was adopted! Does a Federal System based on similar cultures, traditions, languages and beliefs work? Yes. In Ethiopia, after the failed experiment of a unitary government that led to a bitter civil war, and the secession of Eretria, the horn of Africa nation embarked on a bold experiment to introduce a new Federal arrangement based on these standards. Multi-lingual Switzerland, and the Federal Republic of Germany also have similar systems. A Federal System based on similarity of cultures, traditions, languages and ethnic origin, works and, in many cases, works even better than the case of a Federal System which joins diverse people, with no common cultures, languages and traditions. Why does the Federal System of Government work in countries where it is practiced? The Federal System of Government works in the countries where it is because the respective central governments recognize that the best people to understand and devise solutions to the problems of the various Federal regions in such countries are the people of those regions themselves. In India for example, the Central Government in New Delhi knows tha the problems of Tamil Nadhu are probably different from those of Uttar Pradesh. It recognizes the diversity of their problems and knows that it is not in the best position to decide for these people how their problems should be solved. Even in the great United States of America, the different states in different regions have different problems. For example, states on the West Coast like California, Nevada, Arizona, New Mexico and Texas are very dry. Their annual concerns are earthquakes, fires that burn throughout these states, and droughts. Their biggest concerns are to build structures for irrigation, to build earthquake proof buildings, and improve fire-fighting techniques. By contrast, the States on the US East Coast like Massachusetts, New York, Connecticut have their concerns as long cold winters. Southern States like Florida, and Louisiana worry about tornadoes and floods which destroy property worth millions of dollars annually. The Federal Government recognized early that USA was a collection of States with different problems, the Federal Government does not purport to know how to solve all the different problems, it recognized that the States themselves should be the best entities to deal with these problems. Would the Federal System of Government work in Uganda? Yes. It must be recognized that Uganda is made up of various different groups of people with diverse backgrounds and cultures. We must also acknowledge the 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, Karamoja and parts of Ankole badly need Valley dams, Kalangala needs reliable ferry services. The list of unique local needs and priorities that are often ignored by the centre is endless. The people in their regions need to be given an opportunity to decide on their priorities. Do the people of Uganda like the Federal System of Government? 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 people of Uganda and Ninety seven percent (97%) of the people of Buganda wanted the Federal 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. How are the financial arrangements in the Federal System? 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. CONCLUSION ON FEDERALISM 1. The Federal System of Government is good for increased productivity, development, prosperity and wealth for all Ugandans. 2. The System is not a Buganda issue alone. Federalism is for the benefit of all Ugandans. 3. The System ensures that local people have a say in how they should be governed. This minimizes chances of terrorism, rebel activity and discontent. 4. The system provides employment at regional levels, with decisions of who to employ being made locally by the people of the area. 5. The system is desired by the majority of the people in Buganda and in Uganda as a whole. The basic principle that emerges from this report is that different regions, peoples, cultures and groups of people have competing priorities. The people most affected by a particular problem are best positioned to devise and implement strategies to solve them within a national constitutional framework. This accelerates development, good governance and contentment. B. LAND OWNERSHIP The 9,000 square miles of land taken from Buganda The ownership and management of the 9,000 sq. miles should revert to the Kingdom of Buganda. The 9,000 sq. miles of land had been entrusted to the Crown Government for protection and development, under the 1900 Agreement. It was returned to the Kingdom of Buganda at Independence. It was forcefully taken over after 1966. Just like expropriated properties of Asians and traditional leaders have been returned and it is the well established Government policy that such properties should be returned, this land should be returned to the Kingdom of Buganda. Returning it to Buganda does not mean affecting any existing or future rights of lawful owners or occupants, anymore than the return of Kabaka’s land in 1993 affected any legitimate owners or occupants. The return of the 9,000 sq. miles does not mean evictions, or displacements of people occupying parts of this land. All people, Baganda and non Baganda will continue to enjoy all rights on that land and no one will be victimized. The Land Act, 1998 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, 1988. The land Act, 1988 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 Land Owners. 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. The unconstitutional 1998 Land Act deprived land owners who had invested in land, of their property without complying with 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: a) 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 b) The compulsory taking of possession or acquisition of property is made under a law which makes provision for:- i. Prompt payment of fair and adequate compensation, prior to the taking of possession or acquisition of the property; and ii. A right of access to 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 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 sq. miles of land which were 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 1920’s, the safety form of investment for an ordinary Muganda has always been land. Land is a valuable and sacred asset in Buganda. 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 land owners and tenants. These laws gave sufficient protection 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 Land Act in other manners that do not violet fundamental freedoms and property rights guaranteed under the Constitution. The Constitution needs to be revisited on 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. C. THE STATUS OF TRADITIONAL LEADERS Tax Exemption for Traditional Leaders: The Kabaka and other traditional leaders should be exempted from paying tax in recognition of their developmental, mobilizing, cultural and leadership roles. This had been the position when in 1993when the institutions were restored. The law restoring the traditional institutions also provided that they should be exempted 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 countries such as Ghana, where traditional leaders similar to ours exist. 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. 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. CONCLUSION TO SUBMISSION 1. This report is not exhaustive, but it addresses the core issues of concern to the people of Buganda. Separation and individual recommendations may and will be made on other issues which the people in Buganda would like to be reviewed in this Constitutional Review process. 2. This report is a result of recommendations made by the Buganda Constitutional Review Commission after interviewing a variety of people from Buganda and outside and receiving representations from various people within and outside Uganda.