The recent remarks by Dr Sam Mayanja, the minister of state for Lands, regarding Mengo’s reliance on mailo land and its special status, as published in the New Vision on August 1, 2024, raise public concerns that should not go unanswered. I would like to address Dr Mayanja’s claims.
Buganda’s identity and status are deeply rooted in its history. The declaration of a protectorate over Buganda in 1894 followed Queen Victoria’s reception of progressive reports from Hannington Speke and Henry M. Stanley about the developments within the kingdom. It was based on these reports that Buganda’s relationship with Britain evolved into a protectorate rather than a colony.
Buganda had successfully existed as a nation for hundreds of years, achieving benchmarks of civilization that the British later used to expand their influence to other regions, ultimately leading to the establishment of a broader protectorate over the entire country.
It would be inaccurate to suggest that Buganda met all its needs solely through the 1900 Agreement, nor can we dismiss the Agreement’s significant impact. The Buganda Agreement recognized the kingdom’s existence, its native laws, a judicial system, the Lukiiko Assembly, and the executive government led by the Kabaka.
In the case of Mukubira and Others vs. Uganda Protectorate Government (1954), a petition was filed in the High court challenging the exile of Sir Edward Mutesa II by Her Majesty’s Government, arguing that it contradicted the 1900 Agreement. The court held that Governor Cohen had indeed invoked the wrong provision of the 1900 Agreement in deporting the Kabaka to Britain.
Today, the government has not done enough to curb land evictions in Buganda. When officials respond to calls for help from those evicted, they often fail to advise the victims to pay their busuulu dues, which would secure their occupancy rights under Section 33 of the Land Act (CAP. 227).
Why is this the case? One possibility is that this negligence is a deliberate strategy to create conditions ripe for a future revolution that could lead to the nationalization of land, similar to what has occurred in Tanzania. There are also those who believe that the government’s reluctance to advise bibanja holders in Buganda to pay the annual busuulu is intended to make it easier for investors to acquire registrable interests in land without compensating the tenants currently residing there.
However, this perspective overlooks the fact that a kibanja holder with security of occupancy can use their kibanja as collateral to secure loans for development purposes In civil procedure law, mailo land refers to the right that empowers a person to own a specific piece of land in perpetuity through official registration.
Buganda, exercising its right to self-determination, has defended this norm for hundreds of years. Therefore, access to mailo land is not a monopoly of Buganda, as Mayanja suggests. Mayanja’s reference to Buganda’s claim for special status is perplexing. Buganda’s demand for federal governance is neither a new phenomenon nor a special status claim.
The Kingdom of Buganda, as it stands today, is the result of a long and arduous struggle that has been fought over the years. The kingdom’s legitimate ambition to restore federal governance will not be abandoned simply to appease Mayanja and his cynical followers.
The current rethinking of Buganda’s direction does not go beyond the political question that Dr Milton Obote avoided when he abolished Uganda’s 1962 Independence Constitution during the political upheaval of 1966. On February 22, 1966, Uganda’s prime minister, AM.
Obote, announced that he had assumed all the powers of government in the public interest. A few weeks later, he abolished Uganda’s Independence Federal Constitution by directing members of parliament to find copies of the new constitution in their pigeonholes. As a cover-up for these drastic actions, President Mutesa’s ssaza chief in Masaka was arrested, tortured and deported to a distant district.
Milton Obote’s attorney general argued that the validity of the constitution was a political question, which the court was precluded from inquiring into, as it was a matter within the exclusive province of the other branches of government.
In the historic case of Uganda vs. Commissioner of Prisons, ex-parte Matovu (1966), Kabaka Mutesa’s ssaza chief, Michael Matovu, had no case to answer in court but was kept in perpetual imprisonment, a clear manipulation of innocence in the service of Obote’s 1966 constitutional revolution under the ‘Move to the Left’ strategy.
Referring to the Pakistan case of Dosso vs. the Pakistan Federation (1956) and the Hans Kelsen theory, which justified the overthrow of the Pakistan Constitution, the court, led by Uganda’s chief justice, Sir Udo Udoma, held that the legality of the government, as opposed to the constitution, was beyond its scope of jurisdiction.
The affidavits relied upon by the court in reaching this conclusion were all drawn from government public servants, including one from the permanent secretary of the ministry of Foreign Affairs. I would be the last person to expect Mayanja to celebrate the tragic abolition of the 1962 Independence Constitution, based on an ex-parte judgment from a case that has never been thoroughly discussed in any court of law.
As a lawyer, Mayanja surely understands the implications of an ex-parte judgment in civil procedure law. The unresolved political question that the court ignored in this case continues to haunt Ugandans to this day.
As Justice M. Ssekaana notes in his book Civil Procedure and Practice in Uganda, an ex-parte judgment obtained by default of defense is, by its nature, not a judgment on merit. It is only entered because the concerned party has failed to comply with certain legal requirements.
The writer is the president of the Conservative Party.
