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.
Customary
law was then made a subordinate to the English law and this was clearly a
colonial creation.
The
basis of the repugnancy concept was whether the custom was whether the custom
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. This has been shown in many
various instances which were seen in the case of REX VS AMKEYO[4] where it was stated by Hamilton C.J inter
alia held 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[5].
The Chief Justice Hamilton stated that this could not apply because it was not
a marriage but rather a wife purchase. Hence showing how the customary law was
repugnant to the English and therefore undermined the customary law.
Another case that can illustrated this was the Nigerian case of REGINA Vs LUKE MARANGUVA and
OLLES[6] where four accused were charged with murder,
there was a funeral possession and the four
people were carrying the coffin. There was a custom among the Lamba people of
Nigeria that if a person died of witchcraft, the coffin would point out the
witch. One of the witnesses who was also
carrying the coffin testified that when the coffin reached the deceased old
woman, he felt some pressure which caused him to believe that the deceased was
the witch. The coffin stuck the deceased on the chest causing her fatally injuries.
They pleaded custom to be their defense. The accused was convicted of
manslaughter and court held that for a custom to be recognized and respected by
courts, it must not be repugnant to natural justice “as we people in England
see it.” Again we see that in order to apply customary law it had to meet the
standards of the English law.
Apart
from the measure of natural justice, the repugnancy clause also had the
measures of equity and morality as established in the following cases. In the
case of BOKITSI CONCESSION CASE[7]
where it was held by the court in Gold Coast colony that “… it would contrary to the principles of equity to allow the native
law to apply in its entirety…. that the original owner to the land who has not
specifically divested himself to his ownership can, after any length of time
and under any circumstances, obtain recovery of his land from a person setting
up an adversely title, whatever may be the detriment caused to such persons by
the fact that the original owner chose to sleep on his rights.”
In the case of TABITHA CHIDUKU Vs CHIDANO[8]
where it was stated that “whatever these
words(repugnant to natural justice and
morality) may mean, I consider that they should only apply to such customs as
inherently abhorrent or are obviously immoral in their incidence.”
It
was stated in GWAO BIN KILIMO Vs KISUNDA
BIN IFUTI,[9]
“But unfortunately, the standards of different communities are by no means the
same. To what standard then, does the order in council refer- The African
standard of justice and morality or the British standard?”
The
repugnancy clause was an instrument that the colonialists used to further
spread of the colonial tentacles deeper into their African colonies. The
repugnancy clause usurped all the traditional leaders of their authority and
power because inflexible terms left all the power in the hands of the English.
However there were instances in which the English judges sided with the customs
and cultures as illustrated in the case of KAJUBI
Vs KABALI.[10]
In this case the appellant was a clan head and the respondent was the eldest
legitimate son of one Yokana Bafirwa Masembe who died intestate leaving behind
fifty children of whom seven where legitimate. According to Buganda custom on
intestacy the clan head exercised special powers of appointment’
to name the heir and distribute the deceased’s estate among the children, which
he did. Kabali, however found fault with his system of property distribution,
pointing out that some illegitimate children had received larger shares from
the legitimate ones. The learned judge
held in favor of the customary law, concluding that there could be nothing
repugnant either in morality or in justice in a custom which allows an
illegitimate child a share in his father’s estate.
Despite
the many ills of repugnancy clause, it was in some instances effective in
assuring that justice was carried out as illustrated in the case of GWA BIN KILIMO Vs KISSUNDA BIN IFUTI[11]
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[12]
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 APPLICABILITY OF
CUSTOMARY LAW IN UGANDA TODAY.
Article
2 of the constitution of the Republic of Uganda, 1995 provides that the
constitution is the supreme law of the land. It is the grund norm and has
binding force on all authorities and persons throughout Uganda. If any other
law or custom is inconsistent with any of the provisions of customary law, the
constitution shall prevail and that other law shall be void to the extent of
its inconsistency. This shows that in
the applicability of customary law, it is subject to constitution and if
inconsistent it shall be void to the extent of that inconsistency.
The
High Court in Uganda has original jurisdiction in all matters and such
appellant and other jurisdiction as may be conferred on it by the Constitution
and the Judicature Act,[13]
meaning that the High court has the jurisdiction in entertain of customary law
issues in law, further powers for the High court to hand customary matters is
provided for in Section 15 of the Judicature Act. However it is not only the
High Court that has this jurisdiction but also the magistrate courts can also
entertain customary law issues in law[14]
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,[15] 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.[16]
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,[17] 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.
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.[18]
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[19]
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.
CONFLICT
RESOLUTION THROUGH THE GACACA TRADITIONAL SYSTEM OF RWANDA.
Rwanda
is a nation where its people have the same culture and language. It is an
African nation that has experienced one of the most heinous and grave crimes
against humanity and this is the genocide that it experienced in April 1994.
This genocide aimed eliminating all the Tutsi and Hutu moderates in Rwanda. It
left 800,000 to 1,000,000 people dead.[20]
From
the above experience they needed to bring justice to the victims and punishment
to the perpetrators. People were arrested and sent to prison however the regular
courts and the International Criminal Tribunal for Rwanda[21]
were ineffective due to the backload they had.
This
resulted to the establishment of the Gacaca judicial system to deal with the
consequences of the genocide. The Gacaca courts have played a vital role in
establishing the truth about the genocide and help to forge a renewed trust and
solidarity among the people of Rwanda.
Gacaca
refers to a traditional Rwandese method of conflict resolution. Gacaca
literally means the grass. When there was conflict in the community, the people
would come together and sit on the grass in meetings, were the aggrieved
parties were convened. The Gacaca
sessions were informal, non-permanent and ad hoc. The meetings not only meant
to sanction violators of the village norms, but to ensure that the accused that
was found guilty would be fully accepted as a member of the community. The meeting was presided over by the
community elders, (inyangamugaheyo.) The primary goal was to restore the social
order, after sanctioning the violation of the shared values, through the re-integration
of offender(s) into the community.
It
was due to the pressure that was on the ordinary courts, which had to deal with
120,000 people accused of war crimes against humanity. Experts estimated that
it could take 350 years before all the defendants would be tried in the
official judicial system. Therefore the government of Rwanda mandated a
commission to study the Gacaca and how it can be applied in the consequences of
the genocide.[22]
While
the contemporary Gacaca jurisdiction retain certain characteristics of the
customary system, notably their location in the local community and
participation of community of members. But however there were significant
differences. Customary Gacaca proceedings dealt with inter family and inter
community disputes. Offenders voluntarily appeared before inyangamugayo.[23] Their appearance before the community elders
showed their desire to be re-integrated into the community whose morems they
had violated. The community elders acting as judicial arbiters were similarly
free to determine the sanctions that served the community. Decisions were
consensual and represented a compromise between the collective and individual
interests. Sanctions were enforced through social pressure applied by community
members. The focus throughout was on the restoration of social harmony.[24]
This
type of customary conflict resolution has been integrated into the Rwanda legal
system. A commission established by presidential decree to prepare and organize
the Gacaca elections, assisted by the National Election Commission, organized
and oversaw elections of the Gacaca Judges and assemblies, dictated by
presidential decree. The overall supervision of Gacaca jurisdictions and their
coordination is under the control of the Department of Gacaca Jurisdictions,
with the Supreme Court and the Ministry of Justice in the government of Rwanda.
The Gacaca courts were given the jurisdiction
to try genocide suspects in Categories 2 to 4[25]
The
second category: the authors, co-authors, accomplices of deliberate homicide,
or of serious attacks that caused someone’s death; the person who- with
intention of killing- caused injuries or committed other serious violence, but
without actually causing death.
The
third category: The person who committed criminal acts or became compliance of
serious attacks, without the intention of causing death.
The
fourth category was the person having committed offences against property.
The
Gacaca jurisdiction is empowered to summon individuals to appear and testify
before the tribunal, although before it was voluntary, to issue search
warrants, to impose criminal sanctions and to confiscate property, so as to
ensure that justice was achieved. The Organic Law which established the use of
the Gacaca courts in the genocide resolution provided for a confession and
guilty plea. If the confession was verified, the accused would receive a reduced
sentence and the reduction dependent on whether confession was made at the
beginning or end of the accused’s trial. Individual who confessed waived their
right to appeal[26]
In
conclusion, the Gacaca courts had a positive and remarkable impact on dealing
with the aftermath of the genocide. In a country like Rwanda where the
perpetrators where more than the victims or the innocent, it would have been
catastrophic if they had use the western adversary system of justice. My
reasons are first the community would not be harmonized because the accused are
the majority in the community. Then the
second is that there would be too long judicial system and “justice delayed is
justice denied.” The Gacaca also gave
room to suspects to confession the wrongs they did and clear their
conscience. This customary judicial
system shows the fundamental reason that was behind conflict resolution in
African and this was to ensure social harmony, with the perpetrator(s) included
in the harmonious process.
BIBLOGRAPHY.
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
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] The nature of African Customary law, Pg.9 where the author analyzed the similarities between the Bunyoro and Buganda.
[2] The Consula Court was established by the Foreign Jurisdiction Act of 1890 of United Kingdom and Africa in 1890.
[3] It was provided for under Section 20 of the Order in Council.
[4] (1917) EACE P.14
[5] Provided for in Article 28 (11) of the Constitution of the Republic of Uganda, 1995.
[6] (1949-1954) NLR
[7] (1919) A C 211.
[8](1922) S.R.55 Per Tredgold, S.J
[9] 1928)1 T42 403
[10] (1940) EACA. 34
[11] (1928)1 T42 403.
[12][12] Article 24 of the Order In Council of 1920.
[13] This provided for in Section 14(1) of the Judicature Act and Article 139(1) of the Constitution.
[14] Section 10 of the Magistrate’s Court Act, nothing in this act shall prevent the magistrate’s court from the right of observance and to enforce of customary law.
[15] Civil Suit No. MFP5/1998 of the High Court.
[16] Article 33 of the constitution of the Republic of Uganda.
[17] HCCS No. 682 of 1990.
[18] Clause XXIV of the Cultural Objectives under constitution.
[19] High Court Civil Suit No. 52 of 2006.
[20] As told by the Kigali Memorial centre. 24th April 2009.
[21] An international court was established in November 1994 by the United Nations Security Council in Order to judge people responsible for the genocide.
[22] Gacaca commission was created 17 October 1998, and mandated to study the applicability of Gacaca to trial of the genocide suspects.
[23] www.amnesty.org/en/library/assert/AFR47/007/2002.
[24] Ibid.
[25] The Organic Law 08/96 of August 30, 1996, it established the categories of genocide defendants.
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