CUSTOMARY LAW

IN UGANDA
GROUP 3 LEGAL METHODS LLB 2 STREAM A
Prepared by Byaruhanga Joshua Morris ,LLB 2 Uganda Christian University
GROUP MEMBERS

1. Byaruhanga Joshua Morris - AS20B11/035

2. Nekesa Charity Nessa - AS20B11/704
3. Nairuba joreen - AS20B11/065
4. Andinda Promise - AS20B11/836
5. Kalemba Kizito - AS20B11/1054
6. Ayesiga bestar - AS20B11/810
7. Solomon Ahereza - AS20B11/793
8. Ali Samira - AS20B11/020
9. Tumukunde Shibah - AS20B11/969
10. Wagubi Clarissa - AS20B11/095
11. Mbabazi Navin - AS20B11/055
TABLE OF CONTENTS

1. What is customary law ?

2. What is the repugnancy clause and how does it apply
to Article 2 of the constitution
3. What the Judicature Act talks on customary law ?
4. What do other laws talk about customary law
5. What cases have been decided using customary law ?
6. To what extent does customary law apply in uganda ?
1. What is customary law ?
Local Council Courts Act 2006 - Customary law means the
rules of conduct established by custom and long usage
having the force of law nor form any enacted legislation
Customary law is unwritten law which governs the
behaviour and conduct of people of a given community. It
emanates from customs and use of such customs for a long
period of time.A custom is a traditional and widely
accepted way of behaving or doing something that is
specific to a particular society, place, or time.
1. What is customary law ?

Civil customary law means the rules of conduct which

govern legal relationships as established by custom and
usage and not forming part of the common law nor
formally enacted by Parliament.(Section 1 (a) of the
Magistrates Courts Act Cap 16) Customary law is an
unwritten source of law in Uganda.
2. What is the repugnancy clause and how does it apply to
Article 2 of the constitution

The term “Repugnancy”- simply means an inconsistency or

opposition between two or more clauses of a deed ,contract
or statute
The repugnancy clause in the 1995 constitution of Uganda as
ammended applies under article 2 clause 2 which is to the
effect that any law / custom inconsistent with the provisions of
the constitution shall be void and the constitution shall prevail.
3. What is the repugnancy clause and how does it apply to
Article 2 of the constitution

This simply means that if a court is faced with a question

in law / a point of law / issue that has been created by a
law or custom that is not consistent/ compatible /in line
with any of the 1995 Constitution of uganda as
ammended that law / custom shall become void and
constitution shall prevail
A law that is inconsistent with the provisions of the
Constitution

A case in point is the case of Asumani irumaba & Peter

Malengah v Attorney general and UNRA, it was held that
S.7 of the land Acquisiton act was inconsistent with the
provisions of the constitution ie ones right to Protection
and deprivation of property therefore the section was
declared void
Custom inconsistent with the Constitution

In Best Kemigisha v Mable Komuntale , it was held that the

custom of women not inheriting property was inconsistent
with the provisions of the constitution because it was
denying the queen mother of Toro her right to property
provided under A.26 and was hence regarded repugnant
to the constitution
4. What the Judicature Act talks on customary law ?

Section 15 (1) of the Judicature Act Cap 13 permits the

High Court to apply customary law as long as it is not
inconsistent with natural justice, equity and good
conscience.
5.What do other laws talk about customary law

Civil customary law means the rules of conduct

which govern legal relationships as established by
custom and usage and not forming part of the
commonlaw nor formally enacted by Parliament.
(Section1 (a) of the Magistrates Courts Act Cap
16)
1. What do other laws talk about customary law

Article 28 (12) of the Constitution of Uganda

provides that except for contempt of court, no
person shall be convicted of a criminal offence
unless the offence is defined and the penalty for it
is prescribed by law. Customary law should also be
compatible with written law
6. What do other laws talk about customary law

Section 10 (1) of the Magistrates Courts Cap 16

permits the Magistrates Courts to apply customary
law as long as it is not inconsistent with justice,
equity or good conscience or incompatible either in
express terms or by necessary implication with any
written law for the time being in force.
Rule 3 paragraph 3 of the National Objectives and Directive
principles of the 1995 constitution of Uganda as ammended

Is to the effect that everything shall be done to promote a culture of co-

operation understanding ,appreciation ,tolerance and and respect for
each others ,customs traditions and beliefs
Rule 24 of the National objectives and Directive principes
of the 1995 Constitution of Uganda as ammended

Provides for cultural objectives is to the effect that ;

Cultural and Customary values which are consistent with fundamental rights and
freedoms ,human dignity ,democracy and with the Constitution may be developed and
incorporated in aspects of Ugandan life .

The State shall -

a) Promote and preserve those cultural values and practices which enhance the dignity and
well being of Ugandans;
b) Encourage the development ,preservation and enrichment of all Ugandan languages
c) Promote the development of a sign language for the deaf and
d) Encourage the development of a national languages or languages
Article 8 A (1) of the 1995 Constitution of Uganda as
ammended

Is to the effect that Uganda shall be governed based on the

principles of national interest and common good enshrined in the
national objectives and Directive principles
Article 32 (2) of the 1995 Constitution of uganda as
ammended

Is to the effect that the laws ,cultures ,customs and traditions which are
against the dignity ,welfare or interest of women or any other
marginalised group which clause 1 relates or which undermines their
status are prohibited by the constitution.
Article 37 of the 1995 constitution of Uganda as
ammended

Is to the effect that every person has a right as applicable to belong to ,

enjoy, practise , profess, maintain and promote any culture ,cultural
institution, language ,tradition ,creed or religion in community with
others
Section 14 sub section 1 of the Equal Opportunities
Commission Act 2007

The functions of the Commission are to monitor, evaluate and ensure that

policies, laws, plans, programs, activities, practices, traditions, cultures, usages and

customs of—

(a) organs of state at all levels; (b) statutory bodies and agencies; (c) public bodies and
authorities; (d) private businesses and enterprises; (e) non governmental organizations, and

(f) social and cultural communities,are compliant with equal opportunities and affirmative
action in favour of groups marginalized on the basis of sex, race, colour, ethnic origin, tribe,
creed, religion,social or economic standing, political opinion, disability, gender, age or any other

reason created by history, tradition or custom.

S.10 of the prohibition of Female genital Mutilation Act
2010

is to the effect that any culture ,custom ,ritual , tradition,religion

or any other non therepatic reason shall not be a defence under
this Act
Kampala District Land Board & George Mitala
v.Venansio Babweyaka et al.,

In this case Chief Justice Benjamin Odoki

offered a roadmap on the methods for proving
customary law.In this case the Constitutional
Court offered an opinion that speaks to the
matter of proving customary law.
S.46 sub section 1 of the Evidance Act

Is to the effect When the court has to form an opinion as to the existence of any
general custom or right, the opinions as to the existence of that custom or right,
of persons who would be likely to know of its existence if it existed, are relevant.

Explanation — The expression “general custom or right” includes customs or rights

common to any considerable class of persons
Musamali v Musamali,

In Musamali v Musamali, court called expert witnesses to give

evidence on the existence or otherwise of a customary practice

Uganda v Asiimwe the High Court took judicial notice of "the

generosity and accommodative nature of the Ugandan culture
Lwamasaka Nkonge Prosper (Kinyenyambali) v James Magala Muteweta
(Kyana)

Court held:

"Customary law, principles and customary/cultural leaders are not unimportant; indeed, they
have a significant contribution to make in our unfolding constitutional democracy. Apart from
its importance, all customary law and leadership will have to reflect and adjust to the overall
changes that have occurred in Uganda's constitutional and legal system. The customs and
culture that conflict with the Constitution, especially the Bill of rights or any enacted
legislations shall always be challenged in the courts for invalidity. The Constitution is supreme
and customary law must comply completely with all constitutional requirements."
Kolya v Kolya

the deceased, in his will, bequeathed the matrimonial home to his son
(the heir). The wife challenged this approach on the ground that she had
contributed to the construction of the house and that it was unfair for
the deceased to bequeath the house to his son. In upholding the wife's
submission, the High Court held that "the deceased exulted the heir
above the widow. A culture practice that where the heir inherits
matrimonial home denying widows proprietary rights is discriminatory in
nature."86 The Court added that the cultural practice in question was
contrary to Articles 21, 31 and 32(2) of the Constitution and to Article 5
of the Convention on the Elimination of All Forms of Discrimination
Against Women
Uganda v Katerega

the High Court convicted the accused of defiling his daughter and, in sentencing
him to 25 years' imprisonment, observed:

"Before sentence, I call upon all members of society that we should respect our
traditions and customs (in Africa) which are unparreled [sic] to other peoples
cultures elsewhere in Europe and America. In such places, practices which are
abhorred by African cultures like sodomy and homosexuality are freely practised.
But even then, Americans and Europeans don't play sexual intercourse with their
own children. It is goats and cows and other wild animals that sometimes do so
Wonaku v Makoba,

the High Court, while relying on the jurisprudence of the Supreme Court, held:

"In many communities, the cultural practice of bride price, the payment of a sum of
money or property by the prospective son-in-law to the parents of the prospective
bride as a condition precedent to a lawful customary marriage, is not barred by the
Constitution. It is not per se unconstitutional. The Constitution does not prohibit a
voluntary, mutual agreement between a bride and a groom to enter into the bride
price arrangement. A man and a woman have the constitutional right to choose the
way they wish to get married. It is unconstitutional if the parties are not left free to
choose how they want to get married.
Magbwi v MTN (U) Limited,

the High Court, without referring to the Local Council Courts Act, explained customary law as
follows:
"Customary law ... concerns the laws, practices and customs of indigenous peoples and local
communities. It is, by definition, intrinsic to the life and custom of indigenous peoples and local
communities. What has the status of 'custom' and what amounts to 'customary law' as such will
depend very much on how indigenous peoples and local communities themselves perceive these
questions, and on how they function as indigenous peoples and local communities. Defining or
characterising 'customary law' typically makes some reference to established patterns of
behaviour that can be objectively verified within a particular social setting or community which is
seen by the community itself as having a binding quality. Such customs acquire the force of law
when they become the undisputed rule by which certain entitlements (rights) or obligations are
regulated between members of a community."
R v. Amkeyo (1952) 19 E.A.C.A,

In this case court invalidated a marriage validly

contracted under African Customary Law on the
basis
that such a marriage was a wife purchase and
repugnant to law
Ndinoni v. Netwala ole Nebele 7 EALR 14
(1917)

In this case court deliberated on the Masaai custom for blood

money whereby the victim’s family sought compensation
from the killer’s family under the custom thirty-five years
after the killing of their kin. The Appeal Court rejected the
claim on the grounds that it was repugnant to entertain a
claim of this kind after such a long time.
Lewis v. Bankole (1908) 1 N.L.R. 81 at 85

It was held that the native laws and customs,

which the courts enforce,must be existing
native
laws and customs and not those of bygone
days
Kabaka's government v. Musa kitonto [1965] E.A.
278

Court held that where common law and customary law conflict,
customary law prevails.
Mifumi (U) LTD & Annor v Attorney General of
Uganda

It was held that the custom of Bride Price was

unconstitutional on grounds that it violated article 2,33,31
b of the constitution .The learned judge in his obiter went
on to futher state that no market sells brides and found it
repugnant to the constitution
Law Advocacy for Women v Attorney General

Court held that the customary practice of Female Genital Mutilation

was unconstitututional and repugnant to the constitution as it
violated A. 24 ,22,33 of the constitution
Mark Kajubi v Kabali

There was a Kiganda custom which applied succession to

land in intestascy were children both legitimate and
illegitimate were entitled to a share of land ,court held that
nothing was repugnant to natural justice and it was of good
consience
Bruno L Kiwuwa v Ivan Sserunkuma & Julliet
Namazzi & others

The Ganda custom of not marrying from the same clan

was up held and two love birds from the same ganda clan
were denied from marrying each other the custom wasnt
repugnant with the constitution
Van Breda v. Jacobs (1921) A.D. 300

The South African Court held that the requirements

of An enforceable custom were listed as follows:
firstly,the custom must be ancient orlong
established; secondly, the custom must have been
uniformly observed; thirdly,the custom must be
reasonable; and finally, the custom must be certain.
Julius Rwabinumi v Hope Bahimbisomwe

It was held that the enactment of the 1995 constitution changed

the notion that women had no share in Marital property in a state of
a divorce this was under customary law however with the enacment
of the 1995 constution woomen could have a share specifically
under Article 31 (1)
Alai v Uganda

Justice Udo Udoma held that Customary marriage is a

form of marriage that is consistent with the constitution
and recognised
In Gwao bin Kilimo v Kisunda bin Ifuti, a
custom that allowed a man’s property to be attached in
satisfaction of his son’s debts was held to be inapplicable
1. To what extent does customary law apply in uganda ?

1.Customary law applies If it is not excluded by the parties

2.The custom must be consistent with the Constitution of
Uganda
3.The custom must have existed for a long time
4.The custom must be well known and widely recognized
6. The custom must be consistent with other written laws
8.Not repugnant to natural justice and morality
9 .Continuity
“Winners don’t make excuses when the other side
plays the game.”

-Harvey Specter.- Suits