2100100925

NKUMBA UNIVERSITY

SCHOOL OF LAW

COURSE: BACHELOR OF LAWS

COURSE UNIT: LEGAL THEORY

NAME: NAKAWEESA SABIHA

REG. NO: 21100100925

QUESTION: In your opinion ,should customary law continue to be applied in the courts if law

In Uganda ? If yes , why? If not, why not ? Site relevant authorities to support your argument .
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INTRODUCTION

Section 2 of the Local Council Court Act , 2006 defines customary law to mean 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 can further be defined as traditional common rules or practice that has become a
natural part of society and accepted and expected to conduct in a community , profession or
trade and treated as legal requirement

A set of customs is what constitutes customary law , customs in the Hindu Marriage and Divorce
Act Cap 250 section 1(a)are defined as rules that are continuously observed for a long time and
have attained the force of law among the community

For a custom to be considered valid it must have these essentials ,there can never be a customary
right to commit a crime , the custom must have been continuously followed hence you can not
invent a custom , it should valid certain and clear

Further more it must have been applied in particular locality and being generally accepted in
that locality ,the custom must have been exercised as a matter of right and not commit ,
observed , consistence in the custom and lastly confirmed with the statutory law for it to be
applicable and valid
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In my point of view customary law should no longer be applied in the courts of law in
Uganda due to the following:

Women have no independent right to own land

When the parents of the woman die while she is already married in most groups she is not
considered at all for inheritance . specifically in the Banyankole and Baganda groups , a
woman’s right to inherit land is only viewed in terms of her responsibility to take care of
her children .Without children , women have no independent rights to own land . In other
communities such a Bushenyi ,sons automatically inherit their father’s land

Benschop Marjolein (2002) rights and reality .A woman’s equal rights to the land housing and
property implemented in East Africa .The author sheds some lights on how some other laws
are discriminatory against women regarding property ownership .These feeling however are not
updated since with the current laws they were done when the old laws were still in existence

Widows are denied all rights to inherit land under customary regimes . A government study of
men’s will showed that only 10 percent of men left their wives in a trust children , while 90
percent of wills directed the land to be given to the children directly and stipulated that the wife
would be taken care of by the children

A widow is only ensured of her continued occupation of the residential property she used to
occupy with her husband ,but does not have the right to control this property in any
way .Also as soon as a widow remarries , her occupancy rights to this property expire 1

Discrimination of women in the customary law

Article 21(2) of the constitution prohibits discrimination on the grounds of sex , that’s states
equality an freedom from discrimination . Without prejudice to clause 1 of this article , a person
shall not be discriminated on the grounds of sex, race, color , ethnic origin , tribe ,birth creed
religious , or social of economic standing , political opinion or disability .However ,
application of Islamic and customary laws to the extent that daughters inherit fewer shares or

1
Best Kemigisha v Mable Komuntale
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nothing at all constitutes a violation of the equality and non-discriminatory principles

expressed in the constitution

Also , the rights of widows are not equal to the rights of widowers ;widows are only ensured
to their continued occupation of the residential property they used to occupy with their
continued occupation of the residential property they used to occupy with their husbands and
do not have the rights to control this property in any way . Also as soon as the widow
remarries , her occupancy rights to this property expire

Although the constitutional provision protect gender equality , the particular land tribunal
applies the constitutional principles in dispute situations. It has been reported that the local
Council Courts routinely make gender –based decisions , especially in marital property
inheritance cases

The case was , whether a married woman under customary law would be regarded as a wife
for purposes of giving evidence in court . Court held that customary marriage was not
valid due to payment of bride price which was interpreted as a wife purchase . Hence it was
held that she is not a wife and was compelled to give witness 2

According to patriarchal system of inheritance in place in most of the 56 indegenous

communities , the male kin of the deceased will take care of the survived wife and
often the wife and children . De facto , this rarely happen and often the wife and
children are dispossessed of the family’s assets and forced to move back to the widow’s
parent’s home , where she become dependent on her male relatives

However the since the constitution recognizes it still despite the above , courts have taken
two approaches in an effort to end such practices . The first approach is to declare such
practices unconstitutional based on the cases filed by litigants , especially nongovernment
organisations

The second approach was for the courts to declare some customary laws unconstitutional
of their own violation . Following the first approach , courts have held that certain

2
Rex v Amkeyo (1933) KLR 14
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cultural or customary practices are contrary to the Constitution generally and to women’s
rights in particular

Despite of the above information and research I still stand by my view , that customary
law should no longer be applied in the courts of Uganda due to mostly gender based
decisions which make the female gender to be inferior and having no authority relying on
the husband still be under his despite the hardships . Also that women can not inherit but
rather their children can but still its male genders that are allowed to enjoy the
inheritance
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Reference : The Constitutions of Uganda of 1995 as amended

Hindu marriage and Divorce Act Cap 250 s.(a)

Assimwe Jacqueline “Making Women’s Rights and Reality in Uganda ”Advocacy for co-ownership by
spouses .