Applied Law In Uganda: Understanding The Practical Legal System

In Uganda, customary law has been part of the legal system for many years, recognised even during British colonialism. The Local Council Courts Act, 2006, defines customary law as the rules of conduct established by custom and long usage having the force of law and not forming part of the common law nor formally enacted in any legislation. The Ugandan Constitution, adopted in 1995, includes a bill of rights that prohibits discriminatory and degrading laws and customs. The Constitution is the supreme law of Uganda, and all legislation must conform to it. This includes customary law, which is upheld by the courts if it does not offend the Constitution.

The relationship between customary law and other laws

Customary law has been part of Uganda's legal system for many years, recognised first by British colonialists and later by the country's courts and legislature.

Customary law is defined by Section 2 of the Local Council Courts Act as:

> "the rules of conduct established by custom and long usage having the force of law and not forming part of the common law nor formally enacted in any legislation".

The judiciary administers a system of laws that include the Constitution, statutes enacted by Parliament, common law principles derived from English law, and customary law. Customary law is local in character, evolving from the traditions of Uganda's various tribes. Although almost entirely unwritten, customary law continues to be the primary reference for the regulation of the lives of most Ugandans in respect of basic activities and relationships, including family life and property, land, and livestock rights.

Customary law is recognised as enforceable law, particularly in civil disputes, as long as it does not conflict with statutory law and is not repugnant to justice and equity. The 1995 Constitution also includes a bill of rights that prohibits discriminatory and degrading laws and customs.

The nature of customary law and its relationship with other laws in Uganda are explained by the Constitutional Commission as follows:

> "Customary law is essentially local in character, having evolved from the traditions of the varied tribes of Uganda. Although almost entirely unwritten, customary law continues to provide a primary reference for the regulation of the lives of most Ugandans in respect of basic activities and relationships, including family life and property rights, land and livestock. It is recognised as enforceable law, particularly in the field of civil disputes, provided it is not in conflict with statutory law and not repugnant to justice and equity."

The High Court has highlighted the central role customary law plays in the lives of many Ugandans, especially those in rural areas. In the case of *Dima Domnic Poro v Inyani*, the court observed:

> "Customary laws and protocols are central to the very identity of many local communities. These laws and protocols concern many aspects of their life. They can define rights and responsibilities on important aspects of their life, culture, use of and access to natural resources, rights and obligations relating to land, inheritance and property, conduct of spiritual life, maintenance of cultural heritage, and many other matters. Customary practices of inheritance impact directly on the right to culture (of course excluding rules which treat people unequally or which limit other rights in a way which is unreasonable and goes against the spirit of the rest of the fundamental rights). In many traditional communities in a rural setting, a majority of the people identify with customary laws of inheritance and conduct their lives in conformity with them."

The court also highlighted the tension between customary law and written law, adding:

> "The crucial consequence of such strict application [of written law] is that it creates tensions between the legal and customary transmission of rights in land, in respect of land governed by customary law. In the rural traditional community setting, interwoven into all interactions between family and community members are the dual concepts of shame and respect. Shame and respect create the parameters for interactions and create the framework for customary law. One reason that customary law is more often used than written law in relation to family and community relations is that it embodies the notions of shame and respect. Where conflicts exist between customary law and written law, customary law generally prevails in the villages because written law often fails to reflect the reality of the villagers' lives. Enactments which disregard the value and strength of these cultural norms are barely embraced. Without an understanding of these fundamental norms of behaviour, such enactments and the decisions based on them quickly become irrelevant. In the result, legal rules do not automatically change or override customary law. Rather, legal rules support change and the desire for change, but real change only occurs when it is no longer shameful or disrespectful to behave in the manner mandated by the legal rule. The better option therefore is to make determinations of transmission of rights to land held customarily within a framework of interdependence between customary law and statutory law rather than exclusively on the basis of statutory law."

Customary law is not codified, which means it can be difficult for some to know exactly what it entails. This has led to calls for the government to intensify educational campaigns to ensure that those who engage in customary practices are sensitised about the law and also understand the disadvantages of these practices.

Customary law may exist and operate on its own or it may operate alongside another nature of law. Such customary law must be accepted, established, and binding on a given society or tribe in their social relations. It may be uniform across a number of societies or vary from one area to another.

Article 37 of the Constitution upholds and protects the right to culture and similar rights, while Chapter 16 provides for the institution of traditional and cultural leaders, who are regarded as the custodians and enforcers of customary law.

The role of the Constitution

The Constitution of the Republic of Uganda, adopted in 1995, is the supreme law of the land. This means that every enactment and judicial decision must conform to the Constitution. The Constitution has been used to declare acts of parliament unconstitutional, either in total or to the extent of their inconsistency with the Constitution.

Article 2 of the Constitution establishes the foundation for all other laws in the country. It outlines that the Constitution is the supreme law, and any law or custom that is inconsistent with its provisions is void. This includes customary law, which is only valid if it is consistent with the Constitution. The Constitution also prohibits discrimination and obliges the state to take affirmative action to protect marginalised groups.

Article 79(1) of the Constitution designates Parliament as the chief law-making body in the country. It employs a committee system, requiring all draft legislation to go through a staged process of enactment, including public participation and debate.

The Constitution recognises that Uganda has a diverse range of customs and promotes a culture of cooperation, understanding, tolerance, and respect for each other's customs, traditions, and beliefs. However, it also sets limits on the recognition of customs, stating that customs are only recognised as long as they are not contrary to the Constitution.

The Constitution includes a Bill of Rights, which prohibits discriminatory and degrading laws and customs. This was included due to arguments made by many Ugandans during the Constitution's drafting, who wanted discriminatory and degrading customary practices abolished. The Constitution also includes provisions to protect the rights of women, who have historically been victims of oppressive customary practices.

The Ugandan Constitution plays a crucial role in shaping the country's legal system by providing a framework for governance, recognising the diversity of customs, and protecting the rights of its citizens, especially those who have been marginalised or discriminated against.

The role of the courts

The Ugandan judiciary plays a crucial role in interpreting and enforcing the law. According to Article 126 of the Constitution, judicial power is derived from the people and is exercised according to their aspirations. The court system in Uganda consists of several levels, with the Supreme Court at the apex, followed by the Court of Appeal/Constitutional Court, the High Court, and subordinate courts or administrative tribunals. These include the Industrial Court, the Tax Appeals Court, and the Courts Martial.

The Supreme Court, as per Article 132, is the final court of appeal. It comprises at least seven judges with a minimum of 15 years of professional experience, and it primarily hears appeals from the Court of Appeal and the Constitutional Court. Notably, the Supreme Court has original jurisdiction in Presidential Election Petitions and is not bound by its previous decisions.

The Court of Appeal, established under Article 134, is responsible for hearing appeals from the High Court. It consists of 11 Justices of Appeal, with a quorum of five for constitutional petitions and three for ordinary civil and criminal appeals. The Deputy Chief Justice heads this court.

The High Court, established under Article 138, has unlimited original jurisdiction over civil and criminal matters. It is headed by the Principal Judge and operates through divisions (Commercial, Land, Criminal, etc.) and circuits outside Kampala. The High Court's jurisdiction extends beyond cases specifically allocated to special courts or tribunals.

Additionally, Uganda has a dualist system for applying international law, meaning that international treaties must be approved by Parliament before becoming domestically applicable.

Customary law, recognised by colonialists, has been a part of Ugandan law for many years. It refers to the rules of conduct established by custom and long usage, separate from common law or formal legislation. The Local Council Courts Act, 2006, defines the scope of customary law, which is particularly relevant in civil disputes and matters of family life, property rights, land, and livestock. The Constitution also recognises customary law but prohibits practices that violate human rights or fundamental freedoms.

Courts in Uganda have played a pivotal role in abolishing oppressive customary practices, especially those infringing upon women's rights. They have utilised two approaches: declaring such practices unconstitutional based on litigants' cases and proactively declaring some customary practices unconstitutional. Examples include outlawing female genital mutilation, marital rape, widow inheritance, and barring widows and daughters from inheriting their husband's or father's estate, respectively.

In conclusion, the courts in Uganda uphold the Constitution as the supreme law and work to ensure that customary practices comply with it. They navigate the interplay between common law and customary law, interpreting and enforcing the law while considering the cultural context and aspirations of the people.

The role of legislation

Legislation plays a pivotal role in Uganda's legal system, which can be described as a "hybrid" of various influences. The country's legal framework comprises a mix of laws and practices stemming from its pre-colonial past, colonial era, and post-independence developments. Here is an overview of the role of legislation in shaping the legal landscape of Uganda:

Historical Context

Uganda's legal system has evolved significantly over time, reflecting the country's complex history. Before the colonial era, various pre-colonial entities in the region had their own legal systems, which were often rooted in customary law and traditional practices. However, with the arrival of colonialism, these local legal systems were supplanted, modified, or replaced by the laws and governance structures imposed by the imperial powers.

Colonial-Era Legislation

The process of imperial penetration and colonisation of Uganda began in earnest with the Scramble for Africa, marked by the Berlin Conference of 1884. In 1888, the Imperial British East Africa Company (IBEACo) was established, and it operated the territory under a charter that granted it administrative, judicial, and taxation powers. This period marked the introduction of formal legislation in Uganda, with English Common Law being applied alongside customary law.

The 1902 Order-in-Council, a pivotal legal instrument, defined the territorial limits of the protectorate and its administrative divisions. Notably, Article 12 of this Order empowered the Commissioner to make ordinances for the administration of justice, revenue collection, and ensuring "peace, order, and good government" in Uganda. Additionally, this Order applied the laws of the United Kingdom (and some from India) to the protectorate—a clause known as the "Reception Clause."

During the colonial era, the laws that applied in Uganda included English law and cases decided in UK courts, specific enactments by the Legislative Council and the Governor, and customary law to a limited extent. Customary law was recognised but subject to the condition that it did not conflict with established norms of justice, morality, or British Crown laws and orders.

Post-Independence Developments

At independence, Uganda enacted its Constitution, which extended and modified the hybrid legal system it had inherited. This Constitution established the foundation for local governance and introduced new systems to address the challenges and aspirations of an independent nation.

Today, the laws of Uganda are found in several instruments, including the 1995 Constitution, Acts of Parliament, statutory instruments, case law, international treaties, and customary law (where applicable). This diverse range of legislative sources reflects the country's dynamic and evolving legal landscape.

Parliamentary Legislation

According to Article 79(1) of the Constitution, Parliament is the chief law-making body in Uganda. It employs a committee system, ensuring that all draft legislation undergoes a staged process that includes public participation and debate. The Acts of Parliament are organised into chapters, forming the so-called Red Volumes, which contain the principal legislation of the country.

Statutory Instruments and Subsidiary Legislation

While Parliament has the power to make general laws, it can also delegate law-making powers to other bodies, such as ministers, under Article 79(2). The laws made by these bodies are known as subsidiary legislation and are compiled into the Blue Volumes. These volumes contain laws made by bodies other than Parliament, ensuring a clear distinction between parliamentary and non-parliamentary legislation.

Court Decisions and Case Law

The Ugandan judiciary plays a crucial role in interpreting and applying the law. Court decisions can declare acts of Parliament unconstitutional, either in part or in their entirety, if they are found to be inconsistent with the Constitution. This power underscores the importance of judicial review and the role of the courts in safeguarding the fundamental principles enshrined in the Constitution.

International Treaties and Conventions

Uganda is a signatory to various international treaties and conventions, which also shape its legal landscape. However, the country follows a dualist approach to international law, meaning that international treaties must be domestically approved by Parliament before they are considered applicable within Uganda.

Customary Law

Customary law, deeply rooted in Uganda's cultural traditions, continues to play a role in the legal system. It is recognised and enforced, particularly in civil disputes, as long as it does not conflict with statutory law, justice, or equity. The Constitution, in Article 37, upholds and protects the right to culture, and Chapter Sixteen provides for the institution of Traditional and Cultural leaders, who are often regarded as the custodians and enforcers of customary law.

In conclusion, the role of legislation in Uganda is multifaceted and dynamic. The country's legal system is a product of historical influences, cultural traditions, and the ongoing evolution of governance structures. The interplay between parliamentary legislation, judicial interpretations, customary law, and international commitments shapes the complex and ever-changing legal landscape of Uganda.

The role of international law

Uganda's legal system is a combination of English Common Law, Customary Law, and to a lesser extent, Indian Law. This is due to the historical context of the Berlin Conference of 1884, which marked the beginning of the imperial penetration of Uganda by the British. The Imperial British East Africa Company was established in 1888 and operated the territory of Uganda as a company with a charter that authorised it to undertake general administration, impose and collect taxation, and administer justice.

The 1902 Order-in-Council, which defined the territorial limits of the protectorate and its administrative divisions, is of particular importance. Article 12 of the Order empowered the Commissioner to make ordinances for the administration of justice, the raising of revenue, and for the "peace, order and good government of all persons in Uganda." This Order also applied all the existing laws prevailing in the United Kingdom (and some of those in India) at the time.

At its core, the Ugandan legal system is based on Common Law, which is judge-made law, respects the doctrine of precedent, involves an adversarial system of litigation, and gives procedure a decisive role. In contrast, Civil Law, which is not practised in Uganda, is characterised by codification, the absence of the doctrine of precedent, and the presumption of guilt in criminal cases.

Customary Law, which was recognised by the British colonialists, continues to play a significant role in Uganda today. It is defined as the "rules of conduct established by custom and long usage having the force of law and not forming part of the common law nor formally enacted in any legislation." Customary Law is especially relevant in civil disputes and in regulating the lives of most Ugandans in areas such as family life, property rights, land, and livestock.

While Customary Law is not codified, the Ugandan Constitution, enacted in 1995, recognises and protects the right to culture and similar rights. The Constitution also establishes the supremacy of the law, stating that all other laws and judicial decisions must conform to it. This means that customs are only valid if they are consistent with the Constitution, and practices such as female genital mutilation have been declared unconstitutional.

Uganda employs a dualist system when applying International Law, meaning that all international treaties must be domestically approved by Parliament before they can be regarded as applicable.

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