Colonial Office Report
Uganda Protectorate: Buganda

Presented by the Secretary of State for the Colonies to the British Parliament by Command of Her Majesty, November 1954.

1. In recent months two new factors have emerged in Uganda. One is the agreement reached on constitutional matters at the conference between the Governor of Uganda and the Buganda Constitutional Committee appointed by the Lukiko and presided over by Sir Keith Hancock. The other is the judgment in the case brought in the Uganda High Court to test the validity of the action taken last year by Her Majesty's Government with regard to the Kabaka Mutesa II (Cmd. 9028).

2. It was announced on the 1st March that Sir Keith Hancock, Director of the Institute of Commonwealth Studies at London University, had agreed, at the invitation of the Rt. Hon. Oliver Lyttelton, now Lord Chandos, and of the Governor of Uganda, to visit the Protectorate to consult with representatives of the Baganda and with the Protectorate Government on various constitutional questions relating to Buganda. For three months, from the 24th June to the 17th September, Sir Keith Hancock presided over discussions first alone with the Constitutional Committee appointed by the Buganda Lukiko, and later with the Committee and the Governor together. This Conference took place at Namirembe, near Kampala, and resulted in complete agreement. The Conference recommended, among other things, that the Kingdom of Buganda, under the Kabaka's government, 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. These Agreed Recommendations are attached at Appendix A.

3. The Governor, in a Statement attached at Appendix B, has made a number of separate recommendations regarding the Executive and Legislative Councils of the central Protectorate Government, as an immediate step forward to implement Her Majesty's Government's policy of constitutional development for Uganda as a whole. The Governor has recommended the introduction of a Ministerial system. The Executive Council would consist of 14 members (including the Governor) : nine of these would be Officials, six or seven of them with Ministerial status, and there would be five Ministers, of whom three would be Africans, drawn from the public. There would also be two African Parliamentary Under-Secretaries. At the same time the Legislative Council would be slightly enlarged, to permit of increased African representation for Buganda, Busoga and one other district, and the proportion of African members would be increased to half the total. African members would sit on both sides of the House and the present balance, which gives the Government side the majority through the Governor's vote, would be preserved.

4. In the light of the Governor's recommendations the Buganda Constitutional Committee have agreed to recommend to the Lukiko that Baganda members should be elected to the Protectorate Legislative Council by the Lukiko.

5. The effect of the constitutional proposals made in the Governor's Statement and the Agreed Recommendations taken together is explained in a memorandum issued by the Namirembe Conference and attached at Appendix C.

6. The Governor's recommendations for the Legislative and Executive Councils are accepted by Her Majesty's Government who propose that they should be put into effect as early as possible. The Agreed Recommendations dealing with Buganda are also acceptable to Her Majesty's Government and are now being placed before the Great Lukiko. The implementation of these two sets of recommendations should settle satisfactorily the points of difference which have arisen from time to time between the Buganda and the Central Protectorate Governments; in particular the willing acceptance of the continued integration of Buganda with the Protectorate as a whole, which should be ensured under these proposals, together with the transfer of executive power and responsibility from the person of the Kabaka to his Ministers will, it is hoped, create a new and healthier political situation.

7. Her Majesty's Government are greatly indebted to Sir Keith Hancock, whose wise and patient guidance contributed much to the success of the Namirembe Conference.

8. The second new factor is the recent judgement of the Uganda High Court. The plaintiffs sought five declarations. Those directly relating to the withdrawal of recognition from the Kabaka were the first and fifth: -

"1. A declaration-

(a) That H.H. Mutesa II is, and has at all material times since 30th November 1953, been native ruler of the Province of Buganda....;

or alternatively

(b) That H.H. Mutesa II is, and has at all material times since 17th December, 1953, been, native ruler of the Province of Buganda.....

5. A declaration (a) that the purported withdrawal by H.E. the Governor of Uganda of recognition of H.H. Mutesa II as native ruler of the Province of Buganda was unlawful, ultra vires and void or alternatively (b) that such withdrawal was of no effect as from the 17th December 1953."

9. The Chief justice refused all the declarations asked for by the Plaintiffs. He held that the 1900 Agreement did not give the Kabaka a legal right to recognition enforceable by the Court. In case he was held wrong as to this on appeal, he said it, was convenient that he should deal with the question whether or not any right on the part of Her Majesty's Government to withdraw recognition under Article 6 of the Agreement had arisen on the 30th November, 1953. He expressed the view that a right under that Article to withdraw recognition had not arisen on the 30th November.

10. He said: - "At that stage" (i.e. November) "a position had been reached wherein the Secretary of State had made known his decisions on policy, and the Kabaka was called upon to refrain from opposition to the decisions on policy, notably on the question of time-table for independence, whether that opposition be expressed by public pronouncement to the Lukiko or by consultation with the Lukiko, before signing the undertakings which the Kabaka had been called upon to give. The Kabaka's refusal to abide by the decisions on policy as communicated to him, clearly, at that stage, constituted disregard on his part of his duty under the terms of the Agreement to acknowledge and abide by the over-rule of the Crown through the Protectorate Government, which by the Agreement had been acknowledged. It is manifest that the Kabaka having evinced intention to pursue a disloyal policy it was clearly within the right of Her Majesty's Government to exercise the rights reserved by Article 20 of the Agreement and declare the Agreement to be at an end. Again there could have been a withdrawal of recognition as an Act of State. In fact withdrawal of recognition was declared, and declared to be made, under Article 6 of the Agreement."

11. As the Chief Justice indicated, Her Majesty's Government did not terminate the Agreement under Article 20: nor did they claim to withdraw recognition as an Act of State independent of the terms of the Agreement. They regarded themselves as bound by the terms of that Agreement and as entitled by reason of the Kabaka's conduct to withdraw recognition under Article 6.

12. The termination of the Agreement under Article 20 would have meant that neither the Crown nor the Kabaka, Chiefs and People of Buganda would any longer have been bound by any of the provisions of the Agreement or entitled to rely on their rights under that Agreement. This extreme step Her Majesty's Government were not disposed to take and did not take.

13. By Article 6 of the Agreement Her Majesty's Government agreed to recognise the Kabaka, of Buganda as the native ruler of the province of Buganda under Her Majesty's protection and over-rule "so long as the Kabaka, Chiefs and People of Buganda 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 Buganda." Action by Her Majesty's Government under this Article did not consequently involve any question of the termination of the whole Agreement.

14. The Chief Justice held that reliance upon Article 6 was mistaken and that a right to withdraw recognition under that Article had not arisen on the 30th November, 1953 on two grounds; firstly, that to entitle Her Majesty's Government to withdraw recognition under Article 6, there had to be a failure not on the part of the Kabaka alone but on the part of the Kabaka. Chiefs and People to comply with that Article; and secondly, that the Kabaka's conduct did not involve failure to cooperate loyally in relation! to "organisation and administration" of the Kingdom of Buganda.

15. Thus it was the view of the Chief Justice that the conduct of Mutesa II entitled Her Majesty's Government to take action under the Agreement but that on his interpretation Article 6, Her Majesty's Government were mistaken in relying upon that Article.

16. This judgment and the constitutional proposals for Buganda (which if accepted by the Lukiko will settle satisfactorily the points of difference which arose last year) create a new situation in which there is both need and opportunity for a new approach to the question of the Kabaka. Her Majesty's Government, after full consultation with the Governor, have therefore decided that subject to certain conditions and after a suitable interval the Lukiko should be given the opportunity to choose whether a new Kabaka should be elected or whether Kabaka Mutesa II should return as Native Ruler of Buganda. These conditions are as follows:

(1) The Agreed Recommendations of the Namirembe Conference should be accepted as a whole by the Great Lukiko.

(2) Her Majesty's Government and the Lukiko should agree the terms of the Solemn Engagement recommended by the Namirembe Conference to be entered into by the Kabaka. The amendments and additions to the 1900 Agreement to give effect to the Agreed Recommendations should also be agreed by Her Majesty's Government and the Great Lukiko and the amending Agreement should be formally executed by the Governor on behalf of Her Majesty's Government and by the Regents and representatives of the Lukiko on behalf of Buganda and be brought into effect.

(3) In order that the new arrangements may be well established before it is called on to make the decision, the choice of the Great Lukiko whether Kabaka Mutesa II should return as Native Ruler or whether a new Kabaka should be elected should be made nine months after the new arrangements have been brought into effect. Her Majesty's Government will however be glad to shorten the period if they are convinced before the end of it that the constitutional arrangements have become well established and are working satisfactorily. Her Majesty's Government will make every effort to ensure that they are brought into effect by the 31st March next year.

17. When the choice of the Lukiko has been made, the Kabaka will be required to enter into the Solemn Engagement and to sign and thereby confirm the amending Agreement before he is recognised by Her Majesty's Government.

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