EXISTENCE OF CUSTOMARY LAW IN THE UGANDAN LEGAL

SYSTEM

By

Hamisi Baabu Awuye, [email protected]

LLB - IUIU, LLM - KIU 1:2, Dip. Legal Practice - LDC

TABLE OF CONTENTS
ABSTRACT ................................................................................................................................................. 2
INTRODUCTION ...................................................................................................................................... 2
RECOGNITION AND STATUS IN UGANDA ..................................................................................... 3
1. Constitutional Framework ........................................................................................................... 3
2. Judicature Act .................................................................................................................................. 3
APPLICATION IN UGANDAN SOCIETY ............................................................................................ 4
1. Marriage and Family Law ............................................................................................................. 4
2. Customary Land Tenure ............................................................................................................... 4
3. Inheritance Law ............................................................................................................................... 5
4. Traditional Dispute Resolution ................................................................................................... 5
CHALLENGES FACING CUSTOMARY LAW IN UGANDA ........................................................... 6
FINDINGS .................................................................................................................................................. 7
RECOMMENDATIONS FOR STRENGTHENING CUSTOMARY LAW IN UGANDA ............. 8
CONCLUSION ......................................................................................................................................... 10
REFERENCES ........................................................................................................................................ 11
Laws........................................................................................................................................................... 11
Cases ......................................................................................................................................................... 11
Others ....................................................................................................................................................... 11

Hamisi Baabu Awuye, [email protected]

LLB - IUIU, LLM – KIU 1:2, Dip. Legal Practice – LDC
ABSTRACT
This article explores the existence and application of customary law within the
Ugandan legal system, emphasizing its role in personal and community
matters such as marriage, inheritance, and land tenure, the strengths of
customary dispute resolution mechanisms and the limitations they encounter
in upholding constitutional rights. Customary law is recognized by Uganda's
Constitution and statutory laws but its validity is subject to the principles of
natural justice, equity, and good conscience. Despite its continued relevance,
customary law faces challenges, including inconsistencies due to its unwritten
nature, conflicts with statutory laws, and issues of gender discrimination.
Notably, certain customary practices like male-biased inheritance and bride
wealth have been deemed unconstitutional, as they conflict with Uganda’s
commitment to gender equality and human rights. Recommendations include
codifying customary law to improve consistency, aligning it with gender
equality and human rights standards, enhancing public awareness, and
promoting judicial oversight. By integrating these reforms, Uganda can ensure
the harmonious coexistence of customary law with modern legal principles,
preserving cultural heritage while upholding justice and equity for all citizens.

INTRODUCTION
Customary law is an integral part of Uganda's legal system, reflecting the
country’s diverse cultural heritage and the norms that govern many aspects of
life for its citizens, particularly in rural areas. It is an unwritten body of rules
derived from the traditions, customs, and practices of various ethnic
communities, which are considered binding on the members of those
communities. Despite the growing influence of statutory law and international
legal standards, customary law remains relevant in personal and community
matters, such as marriage, inheritance, and land tenure. However, its
application must align with Uganda’s Constitution and modern principles of
justice and equality.
Hamisi Baabu Awuye, [email protected]
LLB - IUIU, LLM – KIU 1:2, Dip. Legal Practice – LDC
RECOGNITION AND STATUS IN UGANDA
The legal status of customary law in Uganda is firmly established within the
country's Constitution and statutes, but its application is subject to specific
limitations.
1. Constitutional Framework
The Constitution of Uganda1 provides the foundation for the application of
customary law. Article 2 of the Constitution declares its supremacy, stating
that any law, custom, or tradition that is inconsistent with the Constitution is
void. Article 32(2) further requires that cultural practices be consistent with the
Constitution and the principles of equality and justice. This means that while
customary law is recognized, it must not conflict with constitutional
protections, such as human rights provisions that guarantee equality and non-
discrimination. In Law Advocacy for Women in Uganda v Attorney
General2, the Constitutional Court found that the custom and practice of
genital mutilation practiced by some tribes in Uganda was inconsistent with
11995 Constitution of Uganda to the extent of that it violated Articles 2(2)
21(2), 24, 27(2), 32(2) and 33 thereof. Court held in affirmative to the petition
and declared that the custom and practices of genital mutilation practiced by
some tribes in Uganda were null and void.
2. Judicature Act
Section 153 supports the application of customary law in civil matters,
particularly those related to personal law, such as marriage, inheritance, and
land rights. However, the Act also stipulates that customary law can only be
applied where it is “not repugnant to natural justice, equity, and good
conscience” and does not contradict any written law. Customary law, therefore,
coexists with statutory and common law, but its authority is subordinate to the
Constitution and national legislation. The Ugandan courts are empowered to

1 1995
2 Const. Petition No. 8 of 2007
3 Judicature Act Cap 16
Hamisi Baabu Awuye, [email protected]
LLB - IUIU, LLM – KIU 1:2, Dip. Legal Practice – LDC
apply customary law when adjudicating disputes that involve personal or
communal issues, provided the law meets the standards of fairness and justice.

APPLICATION IN UGANDAN SOCIETY

Customary law plays a prominent role in areas of family law, land tenure,
inheritance, and traditional dispute resolution mechanisms.
1. Marriage and Family Law
In many Ugandan communities, marriage is governed by customary law, which
dictates the rites, obligations, and processes surrounding marriage. The
Customary Marriages (Registration) Act4 provides for the legal recognition of
customary marriages, which are based on traditional ceremonies and the
exchange of bride wealth commonly known as dowry. Bride wealth signifies the
joining of two families and is considered an important cultural practice in
communities such as the Baganda, Banyankole, and many others.
Despite this recognition, there are limitations. The courts have intervened
where certain aspects of customary marriages violate constitutional rights. For
example, in Mifumi (U) Ltd & 12 Others v Attorney General & Anor5, the
Supreme Court of Uganda ruled that bride wealth should not be a means of
controlling or treating women as property, reflecting the increasing tension
between traditional practices and gender equality.
2. Customary Land Tenure
Customary land tenure remains a dominant system of landholding in Uganda,
particularly in rural areas where the majority of the population resides.
According to the Land Act6, customary tenure is one of the four recognized
forms of land ownership. Under this system, land is owned communally or by
families, and the rules governing its use, transfer, and inheritance are based on
customs that vary from region to region. A prominent example of customary
land law in action is the Mailo land system, which was established under the

4 Cap 143
5 2015
6 Cap 236
Hamisi Baabu Awuye, [email protected]
LLB - IUIU, LLM – KIU 1:2, Dip. Legal Practice – LDC
Buganda Agreement7. Mailo land tenure reflects a form of customary
ownership where individuals own land, but customary tenants have rights to
use and occupy it. This arrangement often leads to disputes between
landowners and tenants, requiring courts to balance customary rights with
statutory land laws.
3. Inheritance Law
Customary law also governs inheritance in many Ugandan communities, where
property, particularly land, is passed down through generations. Traditionally,
male heirs are favored in inheritance, while women and children may have
limited rights to inherit land or property. However, Uganda’s courts have
increasingly challenged discriminatory inheritance practices that violate
constitutional principles of equality.
In Law Advocacy for Women in Uganda v Attorney General8, the
Constitutional Court was faced with the need interpret whether Sections
2(n)(i)(ii),23,26,27,29,43,44 of the Succession Act were inconsistent with
Articles 20, 21, 24, 26, 31, 33 and 44 of the 1995 Constitution. The Court late
struck down provisions of the Succession Act that discriminated against
women in matters of inheritance. The ruling marked a significant step toward
ensuring that customary practices align with the Constitution’s commitment to
gender equality.
4. Traditional Dispute Resolution
Many communities in Uganda rely on customary mechanisms for dispute
resolution, which are typically facilitated by elders, clan leaders, or traditional
chiefs. These mechanisms emphasize mediation, reconciliation, and the
restoration of social harmony, rather than the adversarial approach found in
statutory courts. Customary dispute resolution is often applied in cases
involving family conflicts, land disputes, and minor criminal offenses. However,
customary dispute resolution must also conform to the Constitution and

7
1900
8 Const. Petitions N0. 13 & 05 of 2005
Hamisi Baabu Awuye, [email protected]
LLB - IUIU, LLM – KIU 1:2, Dip. Legal Practice – LDC
cannot violate the rights of any party involved. Courts often review these
decisions to ensure that they are just, equitable, and consistent with national
law.

CHALLENGES FACING CUSTOMARY LAW IN UGANDA

Despite its enduring relevance, customary law in Uganda faces several
challenges in its application and coexistence with statutory law.
1. Conflict with Statutory Law and Human Rights
Customary practices sometimes conflict with statutory law, particularly in
areas related to gender equality, human rights, and justice. For example,
practices such as denying women the right to inherit land or the payment of
bride wealth can be seen as incompatible with constitutional guarantees of
non-discrimination. Courts often have to reconcile customary practices with
human rights standards, as demonstrated in various landmark cases.
2. Lack of Uniformity
One of the inherent challenges of customary law is its lack of uniformity. Since
customary law varies significantly between Uganda’s numerous ethnic groups,
its application can be inconsistent, and its content may differ even within the
same region. This lack of codification makes it difficult for courts to apply
customary law consistently.
3. Codification and Modernization
There have been debates about whether customary law should be codified to
enhance its clarity and predictability. However, codification risks undermining
the flexibility and adaptability of customary law to changing community needs.
Modernization efforts, particularly those that align customary law with human
rights standards, are necessary to ensure that it remains relevant and just.
4. Gender Discrimination
One of the most criticized aspects of customary law is its potential to
perpetuate gender inequality. Practices that favor male inheritance, polygamy,
and limitations on women’s rights to property are common in many customary
Hamisi Baabu Awuye, [email protected]
LLB - IUIU, LLM – KIU 1:2, Dip. Legal Practice – LDC
systems. Uganda’s legal framework, particularly through the Constitution, has
sought to address these inequalities, but the tension between tradition and
modern legal norms remains a challenge.

FINDINGS
1. Widespread Application in Personal and Community Matters
Customary law remains widely practiced in Uganda, especially in rural areas,
where it governs key aspects of personal law, such as marriage, inheritance,
and land tenure. The Customary Marriages (Registration) Act and Land Act
provide formal recognition of customary practices in these areas. However, its
application is often informal, which can lead to variation in its enforcement.
2. Constitutional and Statutory Recognition with Limitations
Customary law is recognized in the 1995 Constitution and the Judicature Act,
Cap. 16, which allow its application in civil matters, provided it does not
conflict with constitutional provisions or statutory law. The Constitution
specifically limits customary practices that violate principles of natural justice,
equity, or the rights guaranteed under the law, such as equality and non-
discrimination.
3. Inconsistencies and Lack of Codification
One of the major challenges is the lack of codification of customary law. This
creates inconsistencies in its application across different regions and
communities. Since customary law varies from one ethnic group to another,
courts often face challenges in ensuring uniformity in its application.
4. Gender Inequality in Customary Practices
Many customary practices, particularly in marriage and inheritance, favor
men over women, leading to gender-based discrimination. For example, male
preference in inheritance under customary law has been challenged in courts,
as it contradicts the constitutional guarantee of equality. Cases such as *Law
Advocacy for Women in Uganda v Attorney General* demonstrate the tension
between customary law and the rights of women.
Hamisi Baabu Awuye, [email protected]
LLB - IUIU, LLM – KIU 1:2, Dip. Legal Practice – LDC
 5. Coexistence with Statutory Law and Human Rights Concerns
Customary law operates alongside statutory law, but it sometimes conflicts
with human rights principles, especially regarding gender equality. Courts have
increasingly struck down customary practices that infringe on human rights.
This coexistence is complicated by the need to balance cultural traditions with
modern legal standards.
6. Effective in Dispute Resolution, but with Limits
Customary law, through traditional dispute resolution mechanisms involving
community elders or clan leaders, remains effective in addressing communal
conflicts, particularly in land disputes and family matters. However, decisions
made under these mechanisms may not always align with statutory
requirements or uphold the rights of vulnerable groups, particularly women.

RECOMMENDATIONS FOR STRENGTHENING CUSTOMARY LAW IN

UGANDA
1. Codification and Harmonization with Statutory Law
The Ugandan government should consider the partial codification of
customary law, especially in areas like land tenure, marriage, and inheritance,
to create consistency in its application. This would provide clarity for courts
and ensure that customary practices do not violate statutory laws. Codification
should also address issues of transparency and fairness, making customary
law more predictable and accessible.
2. Strengthen Gender Equality in Customary Practices
Customary law should be reformed to ensure compliance with the
Constitution’s guarantees of equality and non-discrimination, particularly in
marriage and inheritance matters. Traditional leaders and community
members should be educated on gender equality principles, and efforts should
be made to eliminate discriminatory practices like male-biased inheritance and
excessive bride wealth requirements.

Hamisi Baabu Awuye, [email protected]

LLB - IUIU, LLM – KIU 1:2, Dip. Legal Practice – LDC
 3. Public Awareness and Legal Education
There should be efforts to raise awareness among communities regarding the
limitations of customary law, especially where it conflicts with constitutional
rights. Legal education programs could help communities understand the
boundaries within which customary law operates, and where statutory law
takes precedence. Legal clinics and paralegals should be introduced to help
communities navigate the legal systems, including customary law disputes.
4. Incorporate Human Rights Training for Traditional Leaders
Traditional and clan leaders who preside over customary dispute resolution
mechanisms should be trained on human rights principles and gender
equality. This will help ensure that their decisions align with national and
international human rights standards and protect the rights of vulnerable
individuals, particularly women and children.
5. Judicial Oversight and Integration of Customary Law in Courts
Courts should continue to provide judicial oversight in the application of
customary law to ensure that it is not repugnant to justice or inconsistent with
statutory law. Judicial officers should be trained to better integrate customary
law within formal legal processes, while ensuring that it respects constitutional
rights. The courts must also balance the protection of cultural heritage with
the promotion of justice and equity.
6. Promote Research and Documentation of Customary Law
There is a need for comprehensive research and documentation of the various
customary laws practiced across Uganda. This will help preserve cultural
traditions while also providing a resource for courts and lawmakers to
reference when determining cases involving customary law. Systematic
documentation will also help in resolving disputes over inconsistent or
conflicting customs.
7. Strengthen the Role of Women in Customary Law Decision-Making
Customary law processes often exclude women from leadership and decision-
making. Empowering women to take part in customary law reform and
Hamisi Baabu Awuye, [email protected]
LLB - IUIU, LLM – KIU 1:2, Dip. Legal Practice – LDC
leadership roles in traditional dispute resolution systems will promote gender
equality and help transform customary practices that are discriminatory or
harmful to women’s rights.

In so implementing the above recommendations, Uganda can maintain the

relevance of customary law while ensuring that it aligns with constitutional
principles, statutory law, and international human rights standards. This will
help create a legal system that respects both cultural traditions and modern
values of justice and equality.

CONCLUSION
Customary law is an important component of the Ugandan legal system,
providing culturally relevant governance over many aspects of life. However, it
must coexist with statutory law and conform to constitutional standards of
justice, equity, and human rights. While customary law continues to play a
crucial role in personal and community matters, its future will depend on its
ability to evolve and harmonize with modern legal principles that promote
gender equality and human dignity. The challenge for Uganda’s legal system is
to ensure that customary law serves the interests of justice without
undermining the rights and freedoms guaranteed by the Constitution.

Hamisi Baabu Awuye, [email protected]

LLB - IUIU, LLM – KIU 1:2, Dip. Legal Practice – LDC
REFERENCES
Laws
1. Uganda Constitution 1995
2. Customary Marriages (Registration) Act Cap 143
3. Judicature Act, Cap. 16
4. Land Act, Cap. 236

Cases
1. Law Advocacy for Women in Uganda v Attorney General, Constitutional
Petitions Nos. 13 & 05 of 2007
2. Law Advocacy for Women in Uganda v Attorney General, Constitutional
Petitions No. 8 of 2004
3. Mifumi (U) Ltd & 12 Others v Attorney General, Constitutional Appeal
No. 2 of 2014

Others
1. Buganda Agreement, 1900

Hamisi Baabu Awuye, [email protected]

LLB - IUIU, LLM – KIU 1:2, Dip. Legal Practice – LDC