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Student Staff Update: Chelsea Mack

By October 27, 2015December 16th, 2019LEMU, Student Staff, Uganda
Chelsea During Her Internship in Uganda
This semester I am working on two different projects.  

One of the projects is for Land and Equity Movement, or LEMU (the organization that I interned with in Uganda this summer).  The project focuses on explaining how customary law is proved in the Ugandan courts. This entails studying the different approaches (traditional and liberal) that are taken by Post-British Colonial Sub-Saharan African court systems.  Uganda follows the traditional approach, which treats custom more as a matter of “fact” that must be proved by the party claiming the existence of a customary rule. Because the party must prove the existence of a custom for it to apply as law, the result is that parties often end up not being able to prove custom and the default common law rules apply, despite the existence of a constitutional right to live by customary law.  

The liberal approach is much more flexible. Under this approach, customary law is treated as law, something to be determined by a judge, just as he or she would determine the existence of any law. While parties still present evidence to prove a custom, it is still the duty of a judge, not the parties, to ascertain what the customary rule is. 

I am drafting a memo that will provide LEMU and other interested parties a layout of the two different approaches, examples of the liberal approach effectively working in other court systems (i.e., South Africa), and suggestions for steps going forward for proving customary law in the Ugandan courts.  My research includes looking through relevant case law, the Ugandan Constitution, and the Evidence Act of Uganda to pull out court reasoning and constitutional provisions that support the recognition of customary law in courts.

I am learning through the research for these two projects that portions of a country’s constitution and laws can be disregarded by a court system or police enforcement.  The unfortunate effects of this is that the constitution and laws are undermined which can lead to innocent individuals being deprived of their rights as lawful citizens.