What are the limitations of customary law in Uganda?

Answer 1

before answering this question, one must understand several ways in which this question may appear. It may appear as a question of argument between of amongst citizens of Uganda in trying to understand the basis of legal decisions and deeming them repugnant to the cutoms or to other acts of parliament.

Now, the sources will start with the constitution of Uganda. Of all laws created, all must conform wiht the constitution to be given the power of force of law;this in accordance with article 2(2) of the constitution which emphasizes the fact that if any law does not conform or is inconsistent with constitution, the constitution shall prevail and that other law shall, to the extent of inconsistenty be null and voidl.. This shows the supremacy of the constitution over all other laws. then, we see that the constitution is also above all bodies of government namely the executive which consists of the president, vice president and others, the legislature, which consists of the main law makers of the country namely the members of the parliament and finally the judiciary which consists of the judges and other members who use the law and enforce it in its appropriate quantity and as dictated by the Constitution. this constitution dictates the relatinship to exist between the state and the citizens and should this relationship be interrupted, the culprits shall be judge in accordance with the law as defined by the constitution or any penal act that has the force of law bestowed upon it by the constitution. it should be noted that everyone in Uganda is governed by the law and no one is above it, not even the president. this is emphasized in article 2(1) that shows the constitution as the supreme law of the country and that ot shall have the binding force on all authorities and persons throughout Uganda. As for its amendment, that is s a separate topic altogether but what has to be emphasized here is that the process is not so easy as this would mean that it would changed at any time the members of parliament felt like changing it...but at the same time, it is not that difficult so as to create frustration in the process of amendment. This is the law that Kelsen, in jurisprudence referred to as the grund norm. All laws must confrom to the grund norm to obtain the full force of law.

then second in heirarchy of law is the written law. this can further be broken down in statutory law and subsidiary legislation. it is binding law and any other other law inconsistent with it is declared null and void. Written law has the purpose of reducing the back log of the legislature in that they can give powers to individual bodies to actually create and impliment law. But one mayy ask that is htis is liine with constitution which states that no other body other than the parliament has the authority to make law?n the contrary, the constitution only makes a proivision for that. the constitution in aricles 79(2) states that except as provided for int his constitution, no person or body other than the parliament shall have the power to make provisions having the force of law in Uganda except under authority conferred by an act of parliament. Paying close attention to the last bit which is "...conferred by and act of parliament", it therefore comes to notice that a body can only create law and grant it binding force through parliament if that body has been authorised by the parliament and that is through an act that the parliiament passes. Now written law means the acts, decrees, statutory instruments, constitutional instruments among others and in Uganda, this is found, in first instance, in the 16 volumes of the laws of Uganda which were compiled bby Commissioners appointed in 1964 for that purpose. The first 8 volumes are red in colour and contain the sustantive law and the other 8 are blue contain subsidiary legislation. the history of Ugandan written law is that from 1965 to 1971, laws in Uganda were bound annually and cited by their title number and the year. for example thhe magistrates court act 13 1970. During amin'smilitary regime, Laws were bound as decrees which are defined, according to the interpretation act cap 3 as law promulgated by the president in exercise of the power vested in him byt he proclamation dated the 2nd of february 1971. they were also bound and cited the same way...eg. from the interpretation decree 18/1976. After 1980, laws were made by an elected parliament as acts until the NRM took over and statutes were made as binding law till 1995 which brought up an elected government creating laws through what is known as an act of parliament and this is the sam arrangement till now.

in third position, contraversy has arisen in that some say customary law follows and others say common law and the maxims of equity prevail over customary law. However unless this case has been over ruled, in Kabaka's government v. Musa kitonto [1965] E.A. 278, it was stated that where common law and customary law conflict, customary law prevails. This should be understood clearly. Common law in foreign law as as much as it applies in Uganda because of the fact that Uganda is a commonwealth member, customary law is the home made law is readily acceptable by the people. customary law governs the way of life of hte different members of each individual society in the country which has come from the multiplicity of tribes in Uganda. The question here is in case of a conflict between tribes of totally different culture, what law will be used? This will depend on the applicability of the law (refer t Section 10(1) of the magistrates court act cap16), the parties involved and the law applicable and at this point, the constitution will prevail because it binding on all communities of Uganda. So, in defining customary law, it is suffice to note that it is a body of rules whhereby the rights and duties are acquired or imposed or established by the usage in African community and accepted by such community in general as having the force of law including any declaration or modification of customary law made under the local government ordinance. we also have the civil customary law which is defined in the MCA cap16 of the laws of Uganda.

Cutomary also has its sources which are Judicial notices (efer to evidence act cap6 or Felisat Nakawuka V. Uganda (1972)1 U.L.R 3), expert evidence (section 43 of the evidence act cap 6), text books, witnesses and assessors.

Another source is the Judical decisions which is different from the issue of common law. How? This involves the administration, interpretation or application of the law and not to make it. According to common law, the law is made wherebythe judges of England establishede or created basic commonlaw principles when they decided cases on the theory that they were declaring the customary law of England. Therefore judicial decisions are far more applicable in Uganda's case law than common law because law is applied in full force as compared to common law which simply states the law doctrine. Under this source, judges not only apply these rules but they also remould, create and reshape the legal system. The doctrine of judicail precedent is a judicail decision in that what is decided by a superior court is binding on the lower courts and this doctrine contains in itself a principlewhich thus forms its authoritative element often termed as the ratio decidendi. The concrete decision is binding between the parties to it but it is the abstract ratio decidendi, which alone has the force of law as regards the whole world.

The next sourcesof law is common law and the doctrines of equity. In brief, common law is the legal setting of England and it was through the Royal courts of justice that the common customs of hte realm were tranmuted into common law. Under this system, judges are not servants to the government but they are servants of justice and it is their function to see that justice is done not only between individuals but also between the individual the state. This relationship caused a number of problems that led the development of the maxims of equity which highlighted the fairness or natural justice or public morality to the community. this involved direct contact with the King, the fountain of honour, which was not the case in the common law system. ( for addtional information, refer to lloyds introduction to jurisprudence)