Federo issue requires a constitutional approach, Uganda

Writing in the New Vision of August 5, Patrick Kayongo raised pertinent issues regarding Buganda’s demands for federo  (“Can Uganda document ebyaffe” and “Is federo relevant?”) by suggesting that Mengo should make a list of Buganda’s properties she is demanding from the government and also explain what federo means and what we stand to benefit from it.

Many people have given the impression that “federo” represents a quantum of things which are special to Buganda alone. 

However, the term “federo” is just a Luganda corruption of the English word “federal” which is an adverb designating a union of two or more autonomous states to form a federation in which members agree to subordinate their powers to that of the central authority or central government but retaining their pre-existing autonomy and sovereignty.

For such a union to exist there must be a compact or constitution in which executive, legislative and judicial powers and functions are shared equitably between members of the union. 

The powers and functions which are not surrendered to the central government remain within the competence of the member states to the exclusion of the centre. 

However, a federal constitution also provides for concurrent functions and powers, which can be exercised jointly by the three tiers of the government.

The existence of two or more autonomous states is a pre-requisite to a federal arrangement. 

That is why in 1962, Buganda was granted her independence by the British parliament, a day before Uganda got hers so that the two independent states would unite in a federal arrangement on October 9, under the 1962 constitution. 

Today if a federal arrangement were to be introduced, our parliament would have to grant Buganda independence first to enable her to join with Uganda in a federal arrangement. The impossibility of this becoming a reality has not been addressed by those who demand for federo for Buganda.

In order to overcome this impossibility, a number of people have settled for a half-way house in which executive and legislative functions can be shared excluding from the arrangement the elements of independence and sovereignty and the sharing of judicial power along the lines of Scotland in Britain and other similar arrangements in Spain, Belgium and Italy, where cultural autonomy was achieved for those who wanted it without doing violence to the integrity of the state sovereignty through the process of devolution. 

Apart from saving the sovereignty of the state this process enables functions and power to be returned to the regions from the centre in an incremental fashion.

In this way, Kayongo’s questions can be answered through a comparison of the present constitution with the 1962 constitution in order to determine the extent to which executive, legislative functions as well as Buganda’s properties have been restored.  

According to article 1(2) of the 1962 Constitution, Uganda consisted of four federal states and 10 districts. Legislative power was shared between the Parliament of Uganda and the legislatures of the federal states. 

Under article 73, the Parliament had power to make laws for the peace, order and good government of Uganda (other than the federal states) with respect to any matter. 
In the case of Buganda, its legislature (the lukiiko) had power to the exclusion of Parliament to make laws for the peace, order and good government with respect to matters which were specified in Part 1 Schedule 7 to the Constitution.

As for executive authority, article 77 provided that the executive authority of Uganda would extend to the maintenance and execution of the Constitution of Uganda and to all matters with respect to which Parliament had power to make laws. Buganda’s executive authority extended to the maintenance and execution of the constitution of Buganda, maintenance of public order and public safety in the kingdom and to all matters with respect to which the lukiiko had power to make laws.  

Article 79 also provided that the Government of Uganda could enter into arrangements with a federal state for the administration by the state for services within the state of the executive authority of Uganda.

In the judicial sphere, the country had two high courts one for Uganda and the other for Buganda. The constitution provided that the high court for Uganda exercised such jurisdiction throughout Uganda as might be conferred on it by the constitution or any other law whereas the high court of Buganda had within Buganda the same jurisdiction as the high court of Uganda had within Buganda under the constitution or any other law. The high court of Buganda administered justice in the name of the Kabaka.

Other matters which were provided for in the national constitution (“ebyaffe”) as far as Buganda was concerned were the financial arrangements, public land and boundaries. Buganda did not have power to tax but payments were made from the central government to the Kabaka’s government as determined in accordance with the provisions of an agreement which was set out in Schedule 9 to the Constitution. 

As for land, three types of land boards existed namely the Uganda Land Commission, the federal and district land boards. The boundaries of Buganda were set out in Schedule 11 to the Constitution.

How far does the present constitutional arrangements approximate to the 1962 arrangements? 
According to the Fifth Schedule Section 8 of the Constitution, the Kabaka is recognised as the constitutional head of the Buganda government and the regional assembly namely the Lukiiko as was the case in 1962. 

Article 178 sub-articles 6-11 re-establishes the Buganda government as the highest political authority within Buganda with legislative and administrative powers. With these powers, the Buganda government can even make a constitution for Buganda as was the case in 1962. 
Under the Fifth Schedule section 10 regional (read Buganda) land boards have been re-established with power to control public land within their areas which is presently vested in district land boards. 

As for finance, it is provided in the Fifth Schedule that government will work out a formula of granting unconditional grants to regional governments as was the case in 1962. The boundaries of Buganda have been defined according to its districts. 

The county headquarters have not been returned because they can only be returned to holders of the relevant offices (saza chiefs) since the land is registered in the official names of those offices.

With the exception of sovereignty and judicial power the present constitution allows Buganda to return to the 1962 constitutional position and provides avenues to get what has not been returned. 

Adopting a constitutional approach will therefore solve the federo issue without the rancour being caused by political demands which in any case are misguided.

The writer is a Lawyer
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