This memorandum is presented by Asian Ugandans, members of the Asian African Association of Uganda, as a contribution to the debate on citizenship provisions in the Constitution.
The Constitution of Uganda, 1995 (amended in 2005), distinguishes between two categories of citizens: those indigenous and immigrants. Schedule 3 of the Constitution provides a list of “indigenous groups.” This list comprised 56 groups in 1995; seven more were added to the list when the Constitution was amended in 2005. This single fact suggests that the definition of “indigenous” has been subject to discussion and debate, and that the consensus over it has been shifting as a response both to changing circumstances and changing perspectives.
History of group categorisation
Pre-colonial: The historical practice of core groups that came to comprise Uganda at the time of colonisation was an inclusive one. These groups shared a practice of incorporating migrants into the core group, regularly and over time. This was done without distinction or discrimination between the original members of the group and those who joined later.
As an example, the Baganda are said to have comprised 13 clans at the time of the conquest of Kabaka Kintu, somewhere between 1200 and 1400 A.D., when Buganda was founded as a state. These have now grown to 52 clans. Yet, the Baganda do not discriminate between two types of clans: those indigenous and those who joined later.
Colonial: This tradition changed with colonialism, which introduced two contradictory changes in the country. On the one hand, colonialism encouraged an organised migration of groups from outside Uganda. These were both from within (e.g., Nubians) and from outside Africa (e.g., Indians). On the other hand, colonialism imposed two sets of distinctions in law, first between two types of residents, those indigenous and immigrants, and second between two types of immigrants, those from within and outside Africa.
Administratively, colonialism divided the country into different districts, each said to be the homeland of a particular tribe. Furthermore, inside each district, colonialism distinguished between those indigenous and those not indigenous to the district.
The point of these distinctions was to discriminate against one group, and to favour another - in the meantime shifting the beneficiaries and victims of this policy over time. This was at the heart of the colonial policy of divide and rule.
Post-colonial: At the end of colonialism, immigrants made political choices: some left to make futures elsewhere; others stayed, consciously identifying with this land, and choosing to make their futures here. Those who identified with the land came from diverse origins. The challenge for the newly independent republic was to forge a common citizenship for all those who choose to cast their lot with the new nation.
Citizenship in independent Uganda
1962 Constitution: The independence Constitution did not contain a schedule listing ‘indigenous’ communities. The presumption was that all those who meet a residency requirement of five years would qualify to be citizens of Uganda.
1995 Constitution: Schedule 3, listing indigenous communities, was first introduced in the 1995 Constitution. It was a product of a very particular political circumstance. This was the widespread fear among Ugandan elites that the Banyarwanda refugee community, numbering in the hundreds of thousands, including some of the leading commanders in the NRA, may become Uganda citizens as a matter of right given the tradition the NRA had developed in the bush.
The NRA’s practice during the guerrilla war went against the grain of the colonial legacy. Instead of categorising those living in the Luweero Triangle as those “indigenous” and those “immigrants”, the NRA distinguished between “residents” and “non-residents.” The point was to unite the vast majority and to give immigrants the confidence of belonging to the community and thus the conviction to contribute to it. This innovation was critical to NRA’s political success in mobilising the population during the guerrilla war. It is this innovation which was set aside when Schedule 3 was introduced in the 1995 Constitution.
Uganda and globalisation
The answer to the question - Who is a Ugandan? - cannot be the same in all historical periods. To be relevant, that answer must reflect changing conditions. When it comes to the most recent period, the era after the Cold War, two changes in particular call for recognition. On the one hand, more and more Ugandans have been leaving to take up residency in countries outside Uganda, indeed outside Africa.
The remittances these Ugandans send home are the leading source of foreign exchange earnings in the national Budget. On the other hand, more and more immigrants have come to settle in Uganda from lands both within and outside Africa.
Parliament has quite rightly recognised the former development, and noted that émigré Ugandans have taken up the citizenship of the lands in which they have settled. To affirm and keep alive their undoubted connection with Uganda, government has changed the law to allow dual nationality.
It is necessary for the government to recognise the reality of the latter development: well before the independence of Uganda, many immigrants settled here and identified their future with that of this country, and others will continue to arrive here and to establish their connection with Uganda.
Surely the way to acknowledge the contribution of both the historical and more recent migrants, and to guarantee their full participation in the affairs of this country is for our laws to grant the right to citizenship solely on the basis of the strength of a person’s connection to Uganda.
In this way we would finally repudiate the colonial legacy of legal discrimination between groups based on their origin, and would thus give reality to Article 21 of the Constitution: “(1) All persons are equal before and under the law in all spheres of political, economic, social and cultural life and in every other respect and shall enjoy equal protection of the law; (2) without prejudice to clause (1) of this article, a person shall not be discriminated against on the ground of sex, race, colour, origin tribe, birth, creed or religion, social or economic standing, political opinion or disability.”
The spirit of the law needs to take into account the historical fact that colonialism made for settlements of people from diverse origins, some who left at the end of colonialism, others who stayed (and may be were expelled). Those who stayed and identified their future with this land came from diverse origins.
To acknowledge this is to think of citizenship as a river joined by different streams as it moves along its course. What sense does it make to distinguish between streams of water -indigenous and immigrant - once they have become part of the main flow of the river?
More than 50 years after independence, and 90 years after the determination of Uganda’s boundaries, it is surely anomalous to persist in citing (as in the Third Schedule of the 1995 Constitution) membership of particular communities or groups as the basis for Ugandan citizenship.
Today, any person who has a connection to Uganda, either due to heritage or migration experience, will readily be identified on the basis of their lawful residence, or that of their parents, on the territory of Uganda, without the need to resort to ethnic or racial categories.
In determining citizenship in modern Uganda, the specific identification of groups, including the category of “indigenous communities” no longer serves any practical purpose in ascertaining an individual’s genuine connections to Uganda.
At this point in Uganda’s history, when the boundaries have been clarified, the only justification for identifying groups, or classes of persons, in the conferment of citizenship, should be to enable any specific injustice that a class of persons has suffered, or might otherwise suffer, to be corrected.
Geography should therefore be the determinant; enabling a person to establish a right to the citizenship of Uganda without reference to whether they are of indigenous or immigrant heritage.
In sum, in order to correct the adverse legacies of the colonial divide-and‐rule policy, and to ensure equal treatment in the matter of citizenship―treatment that is both non-discriminatory and consistent―it is necessary to abolish all distinctions in law between two categories of citizens: indigenous and immigrant. This is the surest way to encourage and to guarantee full participation of all citizens, without distinction, in the affairs of the country.
The Constitution of Uganda, 1995 (amended in 2005), distinguishes between two categories of citizens: those indigenous and immigrants. Schedule 3 of the Constitution provides a list of “indigenous groups.”
Mahmood Mamdani is the chairperson Asian African Association of Uganda and Arshad Bholim is the secretary.