Prominent Ugandan high court judge Ssekaana Musa has told litigants in dispute over traditional leadership that they should ‘always’ refer such quarrels ‘to the King or traditional or cultural leaders’. Judge Musa was considering two disputes about traditional leadership positions. He said that courts should discourage ‘petty issues’ like who was the rightful heir, family head or chief prince, from being ‘dragged to court’. These matters would be better dealt with by the established mechanism of a particular community, he said.
Judge Ssekaana Musa of the high court, Uganda, heard two related applications involving the Kabaka (King) of Buganda earlier this month and has now dismissed them both.
The applications concerned disputes over hereditary issues and they were supported by affidavits about ‘rightful royal clan lineage’, chief princes and sub-clan heads. The litigants wanted 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. But there was an even more fundamental question, namely whether the disputes between the parties were justiciable in courts of law. In his view, they were not justiciable except by traditional dispute mechanisms.
Uganda’s Supreme Court upheld and promoted the customs and cultures of Uganda’s ‘diverse ethnicities’, 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’.
Various sections of the Constitution made it 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’?
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.’
But 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 ‘petty issues’ like who was the rightful ‘family head or sub-clan head’ from being ‘dragged to court’. They 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’.
- Newsletter, Judicial Institute for Africa (Jifa), 25 July 2019