In 1962, Uganda accepted British law and abandoned the customary law known as Buganda law. However, no one followed the British law. Since the common law was coming from a different nation, the Ugandans did not respect the law. A nation is not going to take ownership of another nation’s common law when it had no role in formulating that law. Despite the adoption of the common law, customary law still is still valid, so the two clash regularly.
Customary law is not just a legal system, it’s also a lifestyle, and it is always changing. That’s the character of customary law since it is not written down. To prove customary law in court, you have to get an older clan member to testify to what the law is. This causes issues because there is no foundational law to refer to. The law changes as a community of people change. Additionally, customary law is diverse and localized to different tribes, so there is no consistency throughout Uganda.
During the study abroad portion of our trip, we learned about the importance of the rule of law within a country’s legal system. The rule of law is the notion that all government agencies and citizens are bound by and abide by the law. The rule of law does not exist if a nation’s government and its citizens are free to act as they wish without repercussions. The people should be able to defer to the law, so it should be foundational enough so that the people know what the law is. In Uganda there is a clash between the customary law of the people and the formal law of the state. The people are affected by the customary laws and what the community is doing rather than what the court system is saying. The peoples’ legal imaginations are formed by what they see and experience. This creates very diverse opinions about what the law is. Clifford Geertz said, “the law is one distinctive manner of imagining the real.”
Man is sinful, so there must be a foundation of law that every man must abide by to curb his sinful nature. If customary law is followed then the law will change as the community changes, which is not necessarily a bad thing. However, the elder of the clan will always influence the community. Thus, to allow an ever-changing law is to give the leader of the clan the power to influence the clan in whichever direction he or she chooses. There must be a foundational law that everyone, including the leader of the clan, is under. Thus, it is important that a nation’s laws are written down in order to ensure that no single person or group can sway the law to their benefit.
This post was written by a Center for Global Justice student intern. The views expressed in this post do not necessarily reflect those of Regent University, Regent Law School, or the Center for Global Justice.