Judge Ssekaana Musa heard two related applications involving the Kabaka (King) of Buganda and dismissed them both earlier this month.
Both applications concerned disputes over hereditary issues and they were supported by affidavits concerning ‘rightful royal clan lineage’, chief princes and subclan heads. The essence of the applications was to obtain a court order that the Kabaka of Buganda should review his decision about the appropriate person to fill the disputed positions and reinstate the original incumbent.
Judge Musa said that the parties had raised several broad issues for the court to resolve. However, in his view there was an even more fundamental question that needed to be settled first, namely whether the disputes between the parties was justiciable in courts of law. In his view, they were not justiciable except by traditional dispute mechanisms.
The customs and cultures of Uganda’s ‘diverse ethnicities’ were upheld and promoted by the country’s Supreme Law, he said. The constitution gave these customs and cultures protections as long as they did not ‘contravene and/or are consistent with fundamental rights and freedoms, human dignity, democracy and the Constitution’.
He quoted various sections of the Constitution dealing with these matters and said it was clear that cultures and customs were part of the country’s intrinsic way of life. ‘One may say we breathe and live our respective cultures and customs in the way we relate with one another as Ugandans of various ethnicities.’ It was essential that modernization and globalization should not make Ugandans forget their backgrounds. The identity of Ugandans was of great value and the courts played a major role, observing and enforcing the legislated laws, international laws ‘and customary traditions/laws as far as applicable’.
But what role should the court play in deciding disputes ‘arising out of the culture or customs of a given area’? True, the courts had unlimited original jurisdiction and must apply customary law when that law was applicable, though always subject to the Constitution or any other applicable law.
He quoted sections of Institution of Traditional and Cultural Leaders Act to illustrate his point. These provisions said that traditional or cultural matters were to be resolved ‘in accordance with the traditions, customs and norms of dispute or conflict resolutions pertaining to the respective community.’
Then comes this remark: ‘The courts are too westernized to handle cultural and customary issues. The law and the persons who may be faced with a cultural or custom dispute may sometimes be foreign to the given area.’ The cases he was considering provided a good example, he said, since the judge who had originally heard the matter did not ‘appreciate the nature of the dispute brought before the court’.
In his view, it would be ‘prudent’ always to refer such disputes to the king or traditional or cultural leader involved ‘since they are the custodians of such cultural institutions, customs, practices and norms.’
The courts should discourage such ‘petty issues’ as who was the rightful ‘family head or sub-clan head’ from being ‘dragged to court’. Such issues would be better dealt with through the community’s own established dispute resolution procedures.
He added: ‘I must … say that the court’s time is so precious and only issues worthy of litigation … with serious questions of law ought to be brought properly before the courts of law; not cultural matters where persons would file any matters before court which are unjusticiable.’
If courts gave decisions without fully understanding the culture and customs of a society, tribe or area, the legitimacy of those decisions would be ‘subject to ridicule’ and could be disastrous. The ‘flexible nature’ of customary law meant that it was not possible to identify a unified system on how to resolve all the disputes that arose in the various areas, tribes and ethnicities.
This did not mean that customary laws, leaders and principles were unimportant; they had a ‘significant contribution’ to make in the country’s unfolding constitutional democracy. It was also crucial that all customary law and leadership adjusted to the changes introduced in Uganda’s constitutional and legal system. Customs and culture in conflict with the Bill of Rights or other parts of the Constitution could always be challenged in the courts. This was because the Constitution was supreme and customary law had to ‘comply completely’ with all constitutional requirements.
Judge Musa ruled that the disputes before him could better be resolved by traditional methods within the Buganda kingdom. The court system of which Judge Musa was part could not competently resolve the issues involved. He therefore advised the parties to refer their dispute to the Kabaka of Buganda ‘to address their grievances through their established dispute resolution mechanism’.