Customary

Law in
Uganda

Simon Ssemaganda, MCIArb

Advocate & Commissioner for Oaths
SUMMARY OF CONTENTS

Definition of Customary Law

Application of Customary Law

Jurisdiction

Criteria for establishing Customary

Law

Key Cases to Note

Customary Law in Uganda
Definition of Customary Law
➢Customary law is unwritten law which governs the
behaviour and conduct of people of a given
community.

➢It emanates from customs and use of such customs

for a long period of time.
➢A custom is a traditional and widely accepted way
of behaving or doing something that is specific to
a particular society, place, or time.
➢Civil customary law means the rules of conduct
which govern legal relationships as established by
custom and usage and not forming part of the
common law nor formally enacted by Parliament.
(Section 1 (a) of the Magistrates Courts Act Cap
16)

➢Customary law is an unwritten source of law in

Uganda.
 APPLICATION OF CUSTOMARY LAW

➢ Customary law is limited to civil matters and does

not apply to criminal matters.
➢ Article 28 (12) of the Constitution of Uganda
provides that except for contempt of court, no
person shall be convicted of a criminal offence
unless the offence is defined and the penalty for it
is prescribed by law. Customary law should also be
compatible with written law

➢ Section 15 (1) of the Judicature Act Cap 13

permits the High Court to apply customary law as
long as it is not inconsistent with natural justice,
equity and good conscience.
➢ Section 10 (1) of the Magistrates Courts Cap 16
permits the Magistrates Courts to apply customary
law as long as it is not inconsistent justice, equity
or good conscience or incompatible either in terms
or by necessary implication with any written law for
the time being in force.
 CRITERIA
1. The custom must be consistent with the Constitution of
Uganda
➢ Article 2 of the Constitution of Uganda, 1995 provides that the
Constitution is the supreme law of Uganda and If any other law
or any custom is inconsistent with any of the provisions of this
➢ Constitution, the Constitution shall prevail, and that other law
or custom shall, to the extent of the inconsistency, be void.
➢ In the case of Law and Advocacy for Women in Uganda vs.
Attorney General Constitutional Petition No. 8 of 2007 the
Constitutional Court in July 2010 declared that the practice of
female genital mutilation is unconstitutional.
2. The custom must have existed for a long time
➢ It must be in existence with uninterrupted and harmonious
application which should have dated from time immemorial. This
is the antiquity test which has been fixed way back to 1198.
➢ A custom is immemorial when its origin was so ancient that the
beginning of it is beyond human memory so that no testimony is
available as to a time when it did not exist. Such a custom will
be taken to have force law and thus customary law.
3. The custom must be well known and widely recognized
➢ The courts will take judicial notice of the custom because of its
well known and widely recognized in a particular society.
➢ This means the existence of a custom will be taken for granted
without any need for further proof if it has earlier on been
frequently proved.
 CRITERIA
4. Customary law applies If it is not excluded by the parties
➢ Customary law only applies where it has not been excluded by parties whether by express
contract or by the nature of the transaction in question.
5. The custom must be consistent with other written laws
➢ In R vs. Amkeyo (1917) 7 EALR 14 the accused was an African native who was convicted of
being in possession of stolen property. The Chief witness called was a woman who he had
married under native custom. Upon objection by the accused to his wife giving evidence,
an issue arose as to whether the accused and the witness were married within the meaning
of section 12 (now section 120) of the Evidence Act.
➢ Hamilton C.J stated that “In my opinion, the use of the word ‘marriage’ to describe the
relationship entered into by an African native with a woman of his tribe according to
tribal custom is a misnomer which has led in the past to a considerable confusion of
ideas…The elements of a so-called marriage by native custom differ so materially from the
ordinary accepted idea of what constitutes a civilized form of marriage that it is difficult
to compare the two.”
➢ The customs of the accused approved the marriage as a valid marriage, but they were not
in line with the written English laws of marriage which were applicable to Uganda at the
time.
6. Customary law only applies in civil matters
➢ It only applies in civil matters. There is nothing like customary criminal law. This is because
the Constitution of Uganda under Article 28 (12) provides that except for contempt of
court, no person shall be convicted of a criminal offence unless the offence is defined and
the penalty for it prescribed by law
 7. Not repugnant to natural justice and morality
➢ It must not be repugnant to natural justice, equity and good
conscience e.g. in Gwao bin Kilimo v Kisunda bin Ifuti, a
custom that allowed a man’s property to be attached in
satisfaction of his son’s debts was held to be inapplicable.
8. Continuity
➢ The right to exercise the custom must not have been
interrupted
9. Peaceable enjoyment
➢ A custom can only exist by common consent. It must not have
CRITERIA been exercised by the use of force, secrecy or permission
10. Obligatory force
➢ Where a custom imposes a specific duty that must be
compulsory, not voluntary. Blackstone stated that “A custom
that all inhabitants shall be rated towards the maintenance of
a bridge will be good, but a custom that every man us to
contribute thereto at his own pleasure is idle and absurd, and
indeed no custom at all.”
 Key Cases to Note
1. Kampala District Land Board & George Mitala v.
Venansio Babweyaka et al., Civil Appeal No. 2 of
2007

➢ In this case Chief Justice Benjamin Odoki offered a

roadmap on the methods for proving customary law.

2. Mifumi (U) Ltd & 12 Others v. Attorney General,

Constitutional Petition No. 12 of 2007

➢ In this case the Constitutional Court offered an opinion

that speaks to the matter of proving customary law.

3. R v. Amkeyo (1952) 19 E.A.C.A,

➢ In this case court invalidated a marriage validly
contracted under African Customary Law on the basis
that such a marriage was a wife purchase and
repugnant to law.
Key Cases to Note
4. Ndinoni v. Netwala ole Nebele 7 EALR 14 (1917)
➢ In this case court deliberated on the Masaai custom
for blood money whereby the victim’s family sought
compensation from the killer’s family under the
custom thirty-five years after the killing of their
kin. The Appeal Court rejected the claim on the
grounds that it was repugnant to entertain a claim
of this kind after such a long time.

5. Lewis v. Bankole (1908) 1 N.L.R. 81 at 85

➢ Speed Ag. CJ held that the native laws and customs,
which the courts enforce, must be existing native
laws and customs and not those of bygone days.
Key Cases to Note
6. Joel Mitsoene v. Sir Edward Harding (1954) H.C.T.L.R 1
➢ Huggard C.J. held that, when dealing with a custom, you
are dealing with an unwritten law, and the best evidence
one can obtain regarding it is the evidence of those who
by virtue of their experience may be expected to be
familiar with it.
7. Van Breda v. Jacobs (1921) A.D. 300
➢ The South African Court held that the requirements of an
enforceable custom were listed as follows: firstly, the
custom must be ancient or long established; secondly, the
custom must have been uniformly observed; thirdly, the
custom must be reasonable; and finally, the custom must
be certain.
8. Kabaka's government v. Musa kitonto [1965] E.A. 278
Court held that where common law and customary law
conflict, customary law prevails.
 Key Cases to
Note

❖ Felista Nakawuka and 2 Others v Uganda, Crim. Appeal

No. 363 of 1971 (1972) 1 U.L.R 3
❖ Kabali v Kajubi (1944) 11 EACA 34
❖ Gwao Bin Kilimo v Kasunda Bin Ifuti 1 T.L.R 403
❖ Kimani v Gikanga [1965] EA 735; Oyat v Uganda 1967 EA
824
❖ Bruno L. Kiwuwa v Ivan Serunkuma and Juliet Namazzi,
High Court Civil suit No.52 of 2006
❖ Best Kemigisha v Mable Komuntale & Another. Civil Suit
No. MFP5/1998, High Court
❖ Malefetsane v Mpho [1959] HCTLR 107, per Elyan C.J
❖ Ernest Kinyanjui Kimani v. Muira Gikanga (1965) E.A. 735
❖ Lawrence Musebeni Baguma v Namugla David & Anor Civil
Appeals No. 40 & 41 of 2010
❖ Angu vs. Attah (1916) PC
Thank
YOU