An In-depth Analysis of Customary Law and Its Integration with English Common Law in Uganda.

Introduction

Customary law, also known as indigenous or traditional law, is a fundamental aspect of the legal landscape in Uganda. This paper aims to provide a comprehensive examination of customary law in Uganda, how it has been integrated with English common law, and its role in conflict resolution. By delving into the historical and contemporary context, as well as specific case studies, we will explore the complexities and challenges associated with the coexistence of customary and common law in Uganda.

Customary Law in Uganda:

Customary law, as defined by Mikano E. Kiye, encompasses the customs, local practices, and beliefs of a specific community, binding its members[1]. These customs and practices have often been passed down through generations, forming an integral part of the community's identity. While the notion that customary law dates back to time immemorial has faced challenges, it is generally accepted that customary rules predate colonialism[2].

Uganda's Constitution of 1995, in Article 37, guarantees every individual the right to practice and profess their chosen culture, cultural institutions, language, tradition, creed, or religion within a community. This constitutional provision underscores the importance of preserving and respecting customary practices.

Integration with English Common Law

The introduction of the reception clause in Uganda marked a significant development in the coexistence of customary law and English common law. The 1902 Order in Council established the principle that customary law was initially subordinate to English law. This colonial creation granted the high court full jurisdiction over all of Uganda and introduced the concepts of repugnancy and compatibility.

It was this order in council that established the concept of repugnancy and compatibility of customary law.[3] It provided as follows, that In all cases civil and criminal, to which the natives are parties, every court (a) shall be guided by the native law so far as it is applicable and not repugnant to justice and morality or inconsistent with any order of council or any regulation or rule made under the order of council.

The repugnancy clause was a pivotal factor in determining the validity and continuity of customary law. It was used as a benchmark to assess whether a particular custom aligned with English law. As a result, many aspects of customary law were considered repugnant and incompatible with English law.

Applicability of the Repugnancy Concept.

This concept is still applicable and compatible with the provisions of section 10 of The Magistrates Courts Act[4] which provides for the application of customary law in trying civil matters, Sect. 10 (1) Subject to this section, nothing in this Act shall deprive a magistrate’s court of the right to observe and to enforce the observance of, or shall deprive any person of the benefit of, any civil customary law which may be applicable that is not repugnant to justice, equity or good conscience or incompatible either in terms or by necessary implication with any written law for the time being in force.

The basis of the repugnancy concept was whether the custom was aligned to the English law and there was hardly any research that was one the integrity of customary law in its own right, The repugnancy test was the benchmark used in determining the validity and continuity of custom.

Case Study: Rex vs. Amkeyo[5]

A notable case that exemplifies the clash between customary law and English law is Rex vs. Amkeyo. In this case, a marriage conducted under native custom, known as Bride Brice, was not recognized as a legal marriage according to English law. Hamilton C.J stated that, “I am of the opinion that a so called marriage by the native custom of wife purchase is not marriage within the meaning of Article 122 of the Indian Evidence Act and that a party to such union could not claim protection granted by the section.

The issue in this case was whether the wife of the accused could testify against him in court since there was a protection section provided by the law that the wife was a competent but not compellable witness[6]. The Chief Justice Hamilton stated that this could not apply because it was not a marriage but rather a wife purchase. This case illustrates how customary law was often seen as repugnant to English law and thus undermined.

Effectiveness of the Repugnancy Clause

While the repugnancy clause had its inconsistencies, there were instances where it was effective. Gwa Bin Kilimo Vs Kissunda Bin Ifuti[7] where the issue before the High Court was whether there was an authentic Turu law which allowed the taking of the father’s property in compensation to wrongs done by a son. The other issue whether this native law is consistent with the repugnancy clause.

The law provided that the British law had to be guided by the native law[8] in this case the court held that the taking of a father’s property for the son’s wrong was not accepted. It should never be expected that an individual should bear the responsibilities for the conduct of another adult. In this case justice was carried out because it would be unfair for the father to pay for the sins of the son.

The court, applying the repugnancy clause, ruled that such a practice was unacceptable as it would be unjust for one individual to bear the consequences of another's actions.

The Role of the 1995 Constitution

The 1995 Ugandan Constitution established the concept of the supremacy of the constitution. It states that if any other law or custom is inconsistent with the constitution, the constitution prevails, and the conflicting law or custom becomes void to the extent of the inconsistency. This constitutional provision underscores the hierarchy of laws and the need for conformity with the constitution.

Applicability of Customary Law Today

Today, both the High Court and Magistrates' Courts in Uganda have jurisdiction to handle customary law matters. However, any application of customary law must be in accordance with written law. If the written law is silent on a particular matter, principles of natural justice, equity, and good conscience are applied.

Customary law is encouraged and recognized by the 1995 Constitution's National Objective and Directive Principles of State Policy. It emphasizes the preservation and promotion of customs and practices that enhance the dignity and well-being of Ugandans.

A custom is a defined as a rule of conduct, obligatory to those within its scope, established by long usage.[9] According to Allen in C.K Allen. The making of the Law, Third Edition. P.64, such a usage as has obtained the force of law and is binding to such particular places, persons and things, which it concerns.[10]

This custom should be a practice that has been followed in a particular locality in such circumstances that it is to be as it is to be accepted as part of law of that locality. A set of customs constitute the customary law of a particular society.[11]

It should be noted that customary law in Uganda can only be applied to civil law and not to criminal law. There is not criminal customary law in Uganda. Article 28(12) of the Constitution provides that there shall be a conviction of an offence for which the law has not provided for, expect contempt of court. Customary criminal law is not provided for in the Penal Code.

Traditional justice Mechanisms in Criminal Trials in the Alternative.

In Uganda the traditional justice mechanisms (TJMs) in criminal trials are alternative forms of dispute resolution that are based on the customs and traditions of the communities involved. They are often used to address cases of violence, especially those that involve bloodshed or homicide. They aim to restore harmony and reconciliation between the parties, rather than to punish the offender. Some examples of TJMs in Uganda are Mato Oput among the Acholi, Kayo Cuk among the Langi, Ailuc among the Iteso, and Gomo Tong among the Karamojong as seen in the case of Kanyamunyu Mathew v Uganda (Criminal Miscellaneous Application No. 151 of 2020) [2020] UGHCCRD 144 (9 November 2020).

In the case of Kanyamunyu Mathew v Uganda, the applicant was accused of murdering a child activist named Kenneth Akena in 2016. He applied to the High Court to suspend his trial until he had concluded an ongoing TJM process with the family of the deceased. He claimed that he had initiated the process of Mato Oput with the Acholi community, to which Akena belonged, and that he had already paid some compensation to them. He also claimed that he intended to enter into a plea bargain with the Director of Public Prosecutions (DPP) after completing the TJM process.

The High Court granted his application and suspended his trial for six months, subject to review. The court considered that the TJM process was a legitimate and constitutional way of resolving disputes, and that it was in line with the objectives of restorative justice. The court also considered that the TJM process would not prejudice the rights of the accused or the interests of justice, as he would still face prosecution if he failed to comply with the terms of the TJM or the plea bargain. The court also noted that the TJM process would promote reconciliation and healing among the parties and their communities.

Challenges and Ambiguities in Integrating TJMs

The case of Kanyamunyu Mathew v Uganda is one of the rare instances where a court has recognized and supported the use of TJMs in criminal trials. However, the court also acknowledged that there are many challenges and ambiguities in integrating TJMs with the formal justice system, such as the lack of legal recognition, regulation, and standardization of TJMs, as well as the potential conflicts with human rights norms and principles. The court urged the legislature and other stakeholders to address these issues and provide a clear legal framework for TJMs in Uganda.

Customary Law and Its Compatibility with Written Law:

Civil customary law is defined in the Magistrates’ Courts Act as the rules of conduct that govern legal relationships as established by custom and usage and not forming part of the common law nor the formally enacted by parliament.[12]

Customary law is recognized, not because it is backed by the power of some strong individual or institution but because each individual recognized the benefits of behaving in accordance with other individuals’ expectations, given that others also behave as he expects and the practice has gone on over several generations[13]

Section 14(2) of the Judicature Act provides that the jurisdiction of the High Court should be exercised in conformity with written law, and where there written law does not apply…. any established current custom or usage but this custom has to be in conformity with the written law in Uganda. This shows that in applies the custom law it has to be subject to the written law.

This was illustrated in the case of BEST KEMIGISHA Vs MABLE KOMUNTALE and ANOTHER,[14] the issue was whether the plaintiff a widow to the deceased King of Toro kingdom, was a fit person to be granted letters of administration over personal property of the deceased. It was held that the Toro custom that tried to prevent her from taking over her husband’s property was repugnant to natural justice, equity and good conscience. It was also held to be inconsistent with the constitution which provided that rights of women.[15]

In application of customary law today, court are looking at whether it is in consistent with written law, the constitution and other statues, but where there are silent about any matter or issue ,then the court has to rely on principles of natural justice, equity and good conscience. This was well illustrated ADMINISTRATOR GENERAL Vs SWAIBU NYOMBI,[16] prior to the coming in to force of the 1995 constitution, the courts did not take kindly to customary law that was repugnant to natural justice, equity and morality. Court held that the customary law of succession would not apply because it was repugnant to natural justice. This further emphasized by section 15 of the Judicature Act which states that for customary law to be applicable, it should not be repugnant to natural justice equity and good conscience.

Encouragement of Customary Law:

Despite the rules in the applicability of customary law in Uganda, the constitution has gone ahead and encouraged its application as provided for in National Objective and Directive Principles of State Policy.[17] It provides that customary law should be encouraged to promote and preserve those values and practices which enhance the dignity and wellbeing of Ugandans.

The customary law in Uganda has also been encouraged by the judicial precedent. This was illustrated in the case of BRUNO KIWUWA Vs IVAN SERUNKUMA AND JULIET NAMAZZI[18] The issue in this case was whether the two defendants who belonged to the “Ndiga” clan in Buganda and were both Buganda would be allowed to marry, and yet there was a custom in Buganda which stated that for clan mate to marry it would be an abomination and immoral. Justice Kasule stated that the marriage between the two defendants would be null and void by reason of custom.

Conclusion

Customary law in Uganda has a rich and deep-rooted history, forming an integral part of the nation's legal landscape. Over the years, it has faced challenges in its coexistence with English common law, especially when assessed for repugnancy and compatibility. The 1995 Ugandan Constitution has reinforced the constitution's supremacy, emphasizing the need for customary law to conform with fundamental legal principles.

While customary law continues to play a role in civil matters and alternative dispute resolution, its application must be consistent with written law, the constitution, and prevailing statutes. As Uganda seeks to balance tradition and modern legal norms, the complexities of this interplay remain an ongoing aspect of its legal framework.

By Waboga David

DISLAIMER This article is intended solely for general knowledge and academic purposes. The complex interaction between customary law and English common law in Uganda is a dynamic and evolving field that may involve intricate legal nuances. Specific legal cases, constitutional provisions, and interpretations may vary and change over time. For precise legal advice or in-depth insights into the current state of customary law in Uganda, readers are strongly encouraged to consult legal experts or academic sources specializing in Ugandan law. The content of this article is not a substitute for professional legal counsel, and it is recommended to seek appropriate legal guidance for any specific legal matters or practical applications of this information.

BIBLIOGRAPHY.

TEXT BOOKS.

1. Olwale Elias T, THE NATURE OF AFRICA CUSTOMARY LAW, Manchester University Press, 1956 Oxford Road, Manchester.

2. THE MAGRISTRATE HANDBOOK, LDC Publishers.

3. William Brunette Harvey, INTRODUCTION TO THE LEGAL SYSTEM IN EAST AFRICA, East African Literature Bureau, 1975.

4. Justice George W. Kanyeihamba: POLITICAL and CONSTITUTIONAL HISTORY OF UGANDA,

STATUES.

1. The Constitution of the republic of Uganda,1995 (As amended)

2. The Judicature Act. Cap.13.

3. The Magistrates’ Court Act. Cap 16.

4. The Penal Code Cap.120.

5. The Organic law on Genocide. 1996, Rwanda.

ARTICLES.

1. Joseph M.N.Kakooza, The Application of Customary law in Uganda Living Law Journal, Vol. 1: 1 2003 Pg. 23-42.

2. Amnesty International. 2002, Rwanda, Gacaca: A question of Justice (Amnesty International Report, 17. http// web, amnesty.org/library/eng-rwa/index.

3. Nkurunziza Sam, Rwanda: Notorious Genocide Perpetrators Jailed. http:// allafrica.com/stories/2009

INTERNET.

1. http:// www.amensty.org.

2. http:// www.inkiko-gacaca.gov.rw.

3. http:// www.pri.org/theworld/?q=node/8032 c

[1]Mikano E. Kiye The Repugnancy and Incompatibility Tests and Customary Law in Anglophone Cameroon (African Studies Quarterly | Volume 15, Issue 2 | March 2015) [2] The dominant view in African legal theory suggests that customary law existed prior to the establishment of the colonial state in sub-Saharan Africa. See Anyangwe 1987, pp. 139-40 [3] It was provided for under Section 20 of the Order in Council. [4] The Magistrates Courts Act Cap 16 [5] (1917) EACE P.14 [6] Provided for in Article 28 (11) of the Constitution of the Republic of Uganda, 1995. [7] (1928)1 T42 403. [8][8] Article 24 of the Order In Council of 1920. [9] Leslie Rutherford” The making of the law” third Edition P.64. [10] C.K Allen. The making of the Law, Third Edition. P.64 [11] Bruno L. Kiwuwa Vs Ivan Serunkuma and Juliet Namazzi. Civil Suit No.52 of 2006. In the High court before The Hon. AG J Remmy Kasule, in which the Buganda custom of not marrying a clan mate was in contention. [12] Section 1(a) of Magistrates Court Act. [13] http//www.mises.org/studyguide. [14] Civil Suit No. MFP5/1998 of the High Court. [15] Article 33 of the constitution of the Republic of Uganda. [16] HCCS No. 682 of 1990. [17] Clause XXIV of the Cultural Objectives under constitution. [18] High Court Civil Suit No. 52 of 2006.