The repugnant clause was the litmus paper that determined which native custom to retain and

the one to subjugate and enshrined under section of 1902 and 1920 orders in Council and stated
that
“In all cases, civil and criminal of which all the parties are natives, every court shall be guided
by native law so far as it is applicable and is not repugnant to justice and morality or
inconsistent with any order in council or any regulation or rule made under any order in council
or ordinance.”1
In Bruno Kiwuwa Vs Ivan Serunkuma and Juliet Namazi,2 a custom was defined as a practice
that has been followed in a particular locality in such circumstance that it has been accepted as
part of the law of that locality.
The 1902 Uganda order in Council was promulgated under the authority of the foreign
jurisdiction Act,1890. Under article 15 of the order in council, a High court of Uganda to be
known as His Majesty ‘s High court of Uganda was established with full civil and criminal
Jurisdiction in all cases and all persons in Uganda.
Article 15(2) empowered the high court to apply common law and English statues of general
application.3 Therefore one can assert that that Uganda received common law, Doctrines of
Equity by virtue of the 1902 orders in council through section 15 also referred to as the
reception clause.
According to Dr. Mayambala Kakungulu while citing Rubin and Cotran in Reading in Africa
Law, he contends that the common law was meant to operate alongside the native Customary
law and the British had intent to respect African values so long as they were inconformity with
the rules of good conscience.4
Therefore the repugnancy clause was intended to remove or deal away with customs and laws
that were considered inconsistent and repugnant to natural justice and good conscience.
However note should be taken that the subjectivity used in the application of this clause did
not go well with many of the African traditions and customs because the colonialists applied
the law without any tendering, African values were subjugated.
Customary Marriages, Land ownership and collective criminal responsibility were whittled by
the western moral standards as they did apply in England without any tendering hence failure

1 1902 Uganda Orders in Council, section 20

2 HCCS No.52 of 2006
3 Morris and Read, Uganda: The development if its laws and Constitution, London 1986,

P.243
4 Makerere University Law Journal, Volume 1, No.1, Pg 137
to adhere to Lord Denning’s advice in Nyali V AG(1958),5where he said that “……just like an
English oak, so is common law, you cannot transplant it and expect it to retain the tough nature
and character as in England. Even if it sprouts, one will need to trim its branches to help it
survive the tough conditions and to attain a desired shape.”
IN Gwao Bin Kilimo V Kisunda BinIfuti, the court set aside a custom which authorized
confiscation of the property of the father because of the wrongs committed by his son, the court
held that the custom was repugnant to good conscience because it could transfer liability to an
innocent party.
The repugnancy clause showed relevancy when it was applied in the case of R v
Amkeyo(1917),6 the issue was whether the relationship between the accused and the woman
he considered to be his wife under native custom was one of marriage in the strictest sense of
the word. In his judgement, C.J Hamilton considered the lack of free will, the position of a
woman as a commodity and potentiality of polygamy. He therefore held the Customary
marriage was wife purchase and fell short of marriage as understood among civilized people
hence rendering African Marriage repugnant to good Conscience and natural justice.
In Mwenge v Migadde(1932)ULR 97, the accused wanted to sell the Butaka land without
consulting the Lukiiko as had been the existing custom for a long time however Mwenge
challenged the defendant right to do so on the ground it was not permissible according the
existing native customs of Buganda. This issue when taken to court was whether the customs
of Buganda were still being followed and enforced as they had been for long even after the
enactment pf Buganda Land law, it was held that the continued existence pf this “butaka”
custom was repugnant on grounds that land was considered to belong to him as an individual
and not the community or Bataka.
After Uganda received independence, many laws that were inapplicable in Uganda were
repealed and some were rendered inapplicable, In Uganda Motors V Wavah Holdings limited,7
it was held the acts of general application, common law and doctrines of equity were no longer
applicable in Uganda since section 3(2) of act 11 of the 1967 provided for the supremacy of
the constitution over any written laws.
After independence, the repugnancy clause also found its way in the 1962 Constitution and
stated that “this Constitution is the supreme law of Uganda and subject to the provisions of

5 QB1, PP 16-17
6 7, E.A.L.R(1917)
7 HC suit NO.85 of 1989
section 5 and of this constitution, this Constitution shall prevail and other laws shall to the
extent of inconsistency be void.”8
In Grace Ibingira V Uganda,9 a case which was filed by the 5 ministers of Obote challenging
the validity of the deportation ordinance. The court held that with the introduction of the bill
of rights and among others the recognition of the rights to freedom of movement, a Ugandan
citizen could no longer be lawful deported under the Constitution.
This clause was also maintained in the 1967 constitution which is famously known as the
“pigeon hall constitution.10
As per Ketra Ahebwa the repugnancy clause died with the enactment of the 1995 Constitution
and I personally disagree with her because it is in existence and applicable in Uganda as clearly
illustrated below:
The repugnancy clause is alive and kicking in the 1995 Constitution of Uganda which was
adopted on 8th October 1995 and is enshrined in article 2(2) which states that, “ if any other
law or any custom is inconsistent with any of the provisions of this constitution, the
Constitution shall prevail, and that other Laws or custom shall to the extent of inconsistency
be void.”11
However its relevancy and applicability was witnessed in the case of Best Kemigisha V Mable
Komuntale and Anor,12 the court ruled that Kemigisha could control her husband ‘s empire
under article 21 and 31(1) of the 1995 Uganda Constitution something which was totally
unheard of in the history of Uganda of a woman owning, managing and inheriting property of
her husband. This case also proved the survival of the repugnancy clause in the 1995
Constitution of Uganda.
Article 2 of the 1995 Constitution of Uganda is more explicit than its predecessors of 1962 and
1967 in proclaiming the supremacy of the Constitution.13 It added a crucial phrase,
‘……….shall have binding force on all authorities and persons throughout Uganda.’14

8 Constitution of Uganda, 1962, Article 1(1)

9 (1966)E.A.L.R 306
10 1967 Constitution of Uganda, article 1(1)
11 1995 Constitution of Uganda, article 2(2)
12 civil suit No. MFP5/1998, High Court
13 Oloka Onyango, Reviewing Chapter Four of the 1995 Constitution, P.57.
14 1995 Constitution of Uganda, article 2(1)
In Saverino Twinobusingye V Attorney General,15 the constitutional court held that there is no
dispute as to the supremacy of the Constitution of Uganda, Everybody, including institutions,
organs of government are bound and must respect it.
However article 37 grants every person the right to belong, enjoy, profess, maintain and
promote any cultural institution, Language, tradition, creed or religion in community with
others, this article is however subject to provisions of article 2(2) and 32(2) of the constitution
of Uganda.
Article 37 also needs to be interpreted together with article 246 of the Constitution which
provides for the Institution of traditional or cultural leaders. While ensuring that cultural rights
have been respected it is important to point out that such rights are only enforceable if they do
not contravene the Constitution.
In Law and Advocacy for women in Uganda V Attorney General, the custom of Female Genital
Mutilation among the Sebeeyi in Eastern Uganda was declared unconstitutional and also
violating the rights of women and declared inconsistent with article 2(2) of the constitution of
Uganda.
In Ronald Reagan Okumu and Anor V Attorney General,16 the commander of Gulu Military
barracks had refused to release the body of Peter Oloya to be prayed for and buried by the
family. The high court was tasked to determine whether the action violated article 37 and 29
of the constitution among others. The court held that the refusal to hand over the deceased’s
body to the family to accord him a decent burial contravened the cultural rights of the relatives
as enshrined in article 37 of the Constitution.
Note should be taken that article 21 also supplements article 2(2) which provides for the
doctrine of supremacy and stipulates that all laws, policies and cultural values are to be judged
by courts with regard to their Constitutionality hence those which do not meet the standard are
declared null and void.17
In Law Advocacy for women(Uganda) V Attorney General,18 Challenged the constitutionality
of section 2(n)(i)(ii),14,15,26,23,27,29,43,44 of the succession Act and section criminalizing
adultery in the penal code Act respectively. The petitioners argued that the said sections
discriminated against women as opposed to their male counter parts and accordingly, they

15 Constitutional Petition NO.47 of 2011,

16 Miscellaneous application No.63/2003
17 J Oloka Onyango, Reviewing Chapter 4 of the !995 Constitution, study presented to the

Human Rights Network, P.7

18 Constitution Petition NO.6 of 2005 and No.3 of 2006.
contravened among others article 21 0f the constitution. The constitutional court held that all
the contested sections were inconsistent with the constitution and were therefore null and void
under article 2(2) of the Constitution.
In Mifumi V Attorney General,19 the petitioner unsuccessfully challenged the payment of bride
price as a prerequisite of marriage under customary marriage but however the court declared
the custom of return of bride price as a prerequisite of divorce unconstitutional and inconsistent
under article 2(2) of the Constitution of Uganda.
The Judicature Act also empowers the Courts of Law in Uganda to observe or enforce the
observance of any existing custom which is not repugnant to natural justice, equity and good
conscience and not incompatible either directly or by necessary implication with any written
law.20
In conclusion therefore I disagree that the repugnancy clause died with the enactment of the
1995 constitution of Uganda as clearly illustrated above.

19 Constitutional petition No 12 of 2007; (2010) UGCC2 (March 26, 2010)

20 Judicature Act, of Uganda, cap 13, section 15(1).