Customary Law in Uganda.

Isingoma Peter-Customary law in Uganda

(C) 2021 Isingoma Peter (PGD LP, LLM (MUK)


Customary law is the written and unwritten rules which have developed from the customs and traditions of communities in Uganda. It refers to unwritten rules of conduct passed down by tradition and practice that are widely accepted as binding on the members of a particular society or community e.g. payment of bride price in most tribes of Uganda, prohibition against marrying members of the same clan among Baganda, Batoro, Banyoro and others tribes in Uganda among other customs. For customs and traditions to become law, they must be known to the community, followed by the community, and enforceable (able to be carried out). Any example would be payment of bride price in African customary marriages which was confirmed in Mifumi v AG and the prohibition against marrying clan mates in Buganda which confirmed in Bruno Kiwuwa vs. Ivan Kiwanuka & another, HCCS 52 of 2006.

A valid custom must be of immemorial antiquity, certain and reasonable, obligatory, not repugnant to Statute Law, though it may derogate from the common law” (see Osborne’s Concise Law Dictionary, Ninth Edition (Sweet and Maxwell, 2001). “Customs that are accepted as legal requirements or obligatory rules of conduct; practices and beliefs that are so vital and intrinsic a part of a social and economic system that they are treated as if they were laws” (see Black’s Law Dictionary, 8th edition, 2004).[1]

Customary law is made up of uncodified (unwritten) and codified (written) laws. unwritten customary law is often criticized for being confusing, for leaving out certain aspects and areas of customary law and giving the impression that there is one system of customary law. In Mifumi v Ag[2] TUMWESIGYE, JSC while acknowledging that the Constitutional Court was right to take notice judicial of the custom of paying bride prize observed that the customs vary from time to tribe. In Uganda customary is recognised as part of the law of Uganda under Article 37 of the constitution and sections 14 and15 of the Judicature Act. Section 15 of the Judicature Act permits the courts to apply, and any person to benefit from, a custom unless the custom has been declared to be repugnant to natural justice, equity, and good conscience, and not compatible with any written law. Customary law was judicially applied in Uganda in Mifumi & others V AG SC Constitutional Appeal No. 02 of 2014 and Bruno Kiwuwa v Ivan Serunkuma and another HCCS No.52 of 2006[3] among other cases.

Customary laws are binding on members of a community provided they are not contrary to written law and rules of equity under section 14 and 15 of the Judicature Act. In Mifumi & others v AG SC Constitutional Appeal No. 02 of 2014 the Supreme Court held that the custom of payment of bride price during celebration of a customary marriage was consistent with the constitution of the republic of Uganda, but further held that the custom of demand of repayment of bride price during dissolution of a customary marriage is contrary to the constitution and therefore null and void. Tribes in Uganda who have a custom of demanding bride price during customary marriages therefore have a right to continue to do so if they please within their customs. However, tribes that have a culture of demanding refund of bride price on divorce or separation cannot continue to do so because this custom conflicts within written law (The Constitution of the Republic of Uganda, 1995).

To be valid and binding the custom must have been in existence for a long time and must be accepted as binding on all members of the community. The courts require proof of the custom[4] before it is accepted as customary law and once coherent proof is produced and court finds that there is no inconsistency with rules of equity and written law, then the custom will be enforced as customary law under Article 37 the Constitution of the republic of Uganda, 1995 and section 14 of the Judicature Act. In Bruno Kiwuwa vs. Ivan Serunkuma and another HCCS No.52 of 2006 court enforced a Buganda custom prohibiting marriages between members of the same clan but in Uganda Electricity Board v G.W. Musoke SC Civil Appeal No. 30 of 1993, court refused to enforce an alleged custom that children have a duty to look after their parents in their parent’s old age for lack of sufficient proof of the custom.

In family customary law applies to children and customary marriages. Section 1 of the Customary Marriages Registration Act Cap 248 (hereinafter referred to as the Customary Marriage Act) defines customary marriage as “a marriage celebrated according to the rites of an African community and one of the parties to which is a member of that community, or, any marriage celebrated under Part III of this Act. “It is now settled law in our courts that payment of the full bride price requested by the bride’s family is proof that a customary marriage has been celebrated between two parties, see for example Aggrey Awori Vs Rosette Tagire HCCS 178/2000 and Uganda Vs. Olinga & Anor [1974] HCB 87. This same principle was considered in the cases of Mifumi (U) Limited & 12 Ors Vs. Attorney General and Anor (Constitutional Petition No. 12 of 2007) where Hon. Justice S.B.K Kavuma recognized that payment of bride price is widely practiced in Uganda. In Nemezio Ayiiya Pet Vs. Sabina Onzia Ayiiya (Divorce Petition No. 8 of 1973) court held that before all dowry is paid, a man and a woman cohabiting can be regarded as husband and wife but (the customary) marriage is not valid until all dowry is paid.

Payment of bride price is the most recognised customary law in Ugandan family law, and it was upheld by the Supreme Court in Mifumi & others V AG SC Constitutional Appeal No. 02 of 2014 while refund of bride price was nullified in the same case. Given the decision in Mifumi v Attorney General it not certain whether failure to pay bride price in full nullifies a customary marriage. It seems against public policy and common sense that a party to a marriage can evade its legal effect by refusing to pay the balance of the bride price. The conduct of the parties of acting as a married couple and their agreement to marry customarily prevent rescission of the marriage contract and limit the available remedy to whomever is demanding bride price to a claim for damages.

Customary marriages are strictly governed by the Customary Marriages Registration Act and customs of the parties to the marriage (customs of the woman) because it is a strict requirement that the marriage be celebrated under the customs of the girl- Nassanga v Nanyonga [1977] HCB 314.[5] However, despite the dominance of customary law to customary marriages, customs that are contrary to written law and equity do not apply. Customs denying the wives ownership of property or condoning violence against women[6] or martial rape[7] are examples of invalid customs that do not apply in family law.

Customs however do not apply to other types of marriages since they are specifically regulated by written law which supersedes customary law. Even customs relating to children are superseded by the children Act and therefore children do not belong to the man but to both the parents of the child.

Customary Divorce

It used to be that dissolution of a customary marriage was governed by the customs of the community under which it was celebrated. In Uganda most communities dissolved customary marriages by return of the woman to her home and the refund of bride price or part of it as agreed by the parents. The agreed position of many courts in Uganda and authors on custom is that a customary marriage is ended when bride price is returned to the husband’s home. In fact, there is previous authority to the effect that the Divorce Act Cap 249 (hereinafter referred to as the Act) does not apply to customary marriages. See John Kintu Muwanga Vs Myllious Gafabusa Kintu HCDA 135/97, where Justice Bossa was of the view that proceeding under the Act would be superimposing a foreign regime of law upon spouses who chose to contract a marriage under custom. However, in Namukasa v Kakondere, Divorce Cause No. 30 of 2010) [2015] UGHCFD 49, HL Luswata Eva held that this position was overtaken by the Constitution of Uganda that advocates for equality of spouses at the dissolution of marriage and subsequent judgments in the courts of record on the issue of bride price as a binding factor in customary marriages. She reasoned that since the Supreme Court in Mifumi (U) Ltd and 12 others Vs The Attorney General found the practice of return of bride price as demeaning to the dignity of women and in violation of a married woman’s constitutional right to be equal co-partners to men, customary marriages could not be dissolved by the return of bride price. She concluded that return of bride price a form of dissolution of a valid customary marriage is repugnant to natural justice, equity and good conscience and incompatible with the Constitution and was eliminated. For this reason, she concluded that the Divorce Act applies to the dissolution of customary marriages celebrated under custom. This decision contradicts the nature of customary marriages and the Customary Marriage Registration Act which requires that they should be governed and celebrated under the customs of the parties. The Constitution itself allows Ugandan to retain and celebrate their customs as far as they are consistent with the constitution equity and written law. The fact that the return of bride price is unlawful does not mean the whole process of dissolution of the customary marriage under custom is unlawful. The return of pride price was only part of the custom of divorce. The practice involved return of the woman to her parents, counseling by the elders, reconciliation and return of the bride price. The return of bride price was negotiated and was often waived especially where children were involved. In many instances, the custom allowed the couple to reconcile and return to their marriage.

The holding by HL Luswata that the Divorce Act applies to the dissolution of customary marriage fails to account for various inherent contradiction. A customary marriage is potentially polygamous which means that adultery is not possible and therefore, not available as a ground for divorce. Secondly, under customary law a woman could return to her home (parent’s home) for certain reasons and the man had a duty to go to her parent’s home to reclaim her and pay fines where it is proved that he failed in his duties. For this reason, it might not be practical to say that a woman that has returned to her parents is in desertion especially where the man failed in his duty to reclaim her from her parents. Thirdly, the provisions of the Divorce Act as to remarriage, denying divorce on the basis of the applicant’s adultery, and the clergy not being compelled to remarry a divorced couple show that the Act was not meant to apply to Customary Marriages. Inquiring minds, ask why is that every other aspect of the customary marriages is governed by customs and the Customary Marriages Registration Act, but the dissolution of the marriage is not, yet by its very nature the marriage is governed by custom?

This would refer to conduct that is illegal and punishable by the rules and customs of a particular community. Customary criminal law has no application in Uganda due to the principle of legality under article 28(7) and (12) which requires that all criminal offences be defined by written law and their punishment prescribed by an act of parliament. Customary law is inherently unwritten rules of conduct that are passed down by tradition and practice that are binding on members of a particular community. In any case even if they were written down, they vary from community to community and Article 28 requires that criminal be prescribe by a statute. Customary Criminal Law does not meet the criteria provided for by the principle of legality. There is no Customary Criminal Law in Uganda.

Under contract law customs and trade usages are binding upon the parties. They refer to any system, custom, or practice of doing business used so commonly in a vocation, field, or place that an expectation arises that it will be observed in a particular transaction. The custom can imply terms into a contract if there is evidence that under local custom, they would usually be present and observed by the parties. See Smith v. Wilson (1903) 2 IR 45. Trade usages refer to terms routinely used in contracts within a particular trade or business may be implied into other such contracts. See e.g. British Crane Hire Corp. Ltd. v. Ipswich Plant Hire Ltd. (1975). However, this is very uncommon and unlikely to occur since African trade customs have died out in commercial transactions when African commerce was replaced by capitalistic rules of trade in the early 20th Century. Some Commercial customary law in land transactions and mortgages remain significant.

Customary Land Tenure

The common law accepts all types of customary interests in land, “even though those interests are of a kind unknown to English law” (see Oyekan v. Adele [1957] 2 All ER 785).[8] Section 54 of The Public Lands Act of 1969 (then in force) had defined customary tenure as “a system of land tenure regulated by laws or customs which are limited in their operation to a particular description or class of persons.” Customary tenure is recognized by Article 237 (3) (a) of The Constitution of the Republic of Uganda 1995, and s. 2 of the Land Act, Cap 227 as one of the four tenure systems of Uganda. It is defined by s. 1 (l) together with s. 3 of the Land Act as system of land tenure regulated by customary rules which are limited in their operation to a particular description or class of persons the incidents of which include; (a) applicable to a specific area of land and a specific description or class of persons; (b) governed by rules generally accepted as binding and authoritative by the class of persons to which it applies; (c) applicable to any persons acquiring land in that area in accordance with those rules; (d) characterised by local customary regulation; (e) applying local customary regulation and management to individual and household ownership, use and occupation of, and transactions in, land; (f) providing for communal ownership and use of land; (g) in which parcels of land may be recognised as subdivisions belonging to a person, a family or a traditional institution; and (h) which is owned in perpetuity.

It is incumbent upon the claimant to adduce evidence of the customary law by virtue of which he would gain interest in vacant land only by the fact of occupancy. Proof of mere occupancy and user of unregistered land, however long that occupancy and user may be, without more, is not proof of customary tenure (see Bwetegeine Kiiza and Another v. Kadooba Kiiza C.A. Civil Appeal No. 59 of 2009; Lwanga v. Kabagambe, C.A. Civil Application No. 125 of 2009; Musisi v. Edco and Another, H.C. Civil Appeal No. 52 of 2010; and Abner, et al., v. Jibke, et al., 1 MILR 3 (Aug 6, 1984). Possession or use of land does not by itself convey any rights in the land under custom. That occupancy should be proved to have been in accordance with a customary rule accepted as binding and authoritative.

Customary inheritance

The onus of proving customary inheritance begins with establishing the nature and scope of the applicable customary rules and their binding and authoritative character and thereafter evidence of acquisition of the property of the deceased in accordance with those rules. Descent and kinship mold inheritance practices. The inheritance practices determine the settling of the estate and how the estate should devolve. They determine the person with responsibility for distributing the estate, the persons entitled to a share and the proportions to which they are entitled. The trajectory of inheritance in any society is usually associated with the cultural interpretation of kin and is thus not a term that can be applied universally to any situation of property transmission without reference to structuring effects of kinship relationships. Inheritance is conditioned by how, culturally, people define to whom they consider themselves to be related and in what way.

Customary Mortgages

In Alur culture a person can grant a mortgage over land to another whereby the mortgagee takes possession of the land until the mortgagor pays off the mortgage. In such mortgages a person can pay a certain number of cattle to the mortgagor in exchange for possession and use of the mortgagor’s land. Usually, the mortgages do not have a duration and can last for several decades. At common law a mortgage is a conveyance of land or an assignment of chattels as a security for the payment of a debt or the discharge of some other obligation for which it is given. This is the idea of a mortgage: and the security is redeemable on the payment or discharge of such debt or obligation, any provision to the contrary notwithstanding.[9]

In Uganda customary law is a vital part of the law of Uganda especially due to the high number of customary marriages and a revered tradition of culture and cultural institutions that have their roots in customs and traditions especially among the Kingdoms of Uganda. However, to ensure justice and consistency, the law of Uganda requires that customs of a community must meet a particular standard set by written law in order to have the force of law.


[1] Where customary Law is neither notorious nor documented, it must be established for the court’s guidance by the party intending to rely on it and also that as a matter of practice and convenience in civil cases, the relevant customary law, if it is incapable of being judicially noticed, should be proved by evidence of expert opinions adduced by the parties (Ernest Kinyanjui Kimani v. Muira Gikanga [1965] EA 735).

[2] Ibid, note 1. See, Supreme Court Civil Appeal No. 02 of 2014

[3] Though TUMWESIGYE, JSC in Mifumi & others V AG SC Constitutional Appeal No. 02 of 2014 seems to suggest that this case is wrongly decided. It is submitted that he was referring to the point in issue of Africans Marriage Act not the ratio decidendi of the case which was that customs of a community once sufficiently proved and accepted by the community are binding provided they comply with equity and written law.

[4] Kimani V. Gikanga & another (1965)EA.735.  It was held by the Court of Appeal that where African custom or customary law is neither notorious nor documented it must be established for the court’s guidance by the party intending to reply upon it. See also Uganda Electricity Board v G.W. Musoke SC Civil Appeal No. 30 of 1993.

[5] Though this case has been accepted as good law, it is suggested that a marriage based on the customs of the man where they are fundamentally similar to those of the woman would remain valid because following the customs of the man that are the same as customs of the woman inherently amounts to following customs of the girl. For example a customary of a munyooro woman at her home under the label of Toro custom.

[6] See Section 4 and 5 of the Domestic Violence Act, 2010.

[7] See R v R [1991] UKHL 12. Though a UK criminal law case it bases on evolution of the common law and therefore applicable in Uganda via section 14 and 15 of the Judicature Act. See also Sabani Kibenga V Crispus Juko, Civil Suit No.35/66 reported in (1972) HCB 65; which held that the common law applies in Uganda.

[8] The dangers of looking at customary law through a common-law prism are obvious. The two systems of law developed in different situations, under different cultures and in response to different conditions (see Mabo v. The State of Queensland (No 2) (1992) 175 CLR 1).

[9] Santley v Wilde [1899] 2 Ch 474



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