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Creating an Independent Traditional Court: A Study of Jopadhola Clan Courts in Uganda

  • Maureen Owor

Abstract

This article examines the contribution of clans (kinship institutions) to the administration of justice within the context of standards set out in the African regional human rights instruments. Field work on the Jopadhola of Eastern Uganda is drawn upon, to explore how clans reproduce their notion of an independent court using an abridged legal doctrine of separation of powers, and partially mimicking lower level government and judicial features. The field work also shows how clans accommodate interests of women and youth. Even so, clans retain a largely customary approach to the appointment, qualifications and tenure of court officials. The main findings lead to the conclusion that, by applying an “African” notion of human rights, clans have created traditional constructs of an independent court: one that is culturally appropriate for their indigenous communities.

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1 GA res 2200A (XXI), 21 UN GAOR supp (no 16) at 52: UN doc A/6316 (1966).

2 OAU doc CAB/LEG/67/3/Rev. 5 (1981), came into force on 21 October 1986.

3 Nowak, MUnited Nations Covenant on Civil and Political Rights – CCPR Commentary (2nd edition, 2005, NP Engel Publisher) at 319, para 25 and 321, para 28. These principles are also enshrined in the Basic Principles on the Independence of the Judiciary 1985, adopted by the 7th United Nations Congress on the Prevention of Crime and Treatment of Offenders, Milan 1985 and endorsed by GA res 40/32; 40/146. Tumwine-Mukubwa, GRuled from the grave: Challenging antiquated constitutional doctrines and values in Africa” in Oloka-Onyango, J (ed) Constitutionalism In Africa: Creating Opportunities, Facing Challenges (2004, Fountain Publishers) 287 at 295–99 and Kanyeihamba, GConstitutional and Political History of Uganda: From 1894 to Present (2nd edition, 2010, LawAfrica Publishing (U) Ltd) at 269–73 explain that separation of powers is intertwined with the rule of law. This article focuses only on the former.

4 DOC/OS/(XXX)247 of 2003, reproduced in Murray, R and Evans, M (eds) Documents of the African Commission on Human and Peoples' Rights (vol II 1999–2007, 2009, Hart Publishing) 381. The Guidelines adopted in 2003 by the African Commission on Human and Peoples' Rights (African Commission) expound art 7 of the African Charter.

5 Gyekye, KTradition and Modernity: Philosophical Reflections on the African Experience (1997, Oxford University Press) at 65.

6 GA res 217A (III): UN doc A/810 at 71 (1948).

7 Uganda ratified the African Charter on 10 May 1986, deposited the instrument on 27 May 1986 and signed it on 18 August 1986. The document is available at: <http://www.achpr.org/instruments/achpr/ratification/> (last accessed 3 July 2012).

8 Art 123(1) and (2) of the Constitution chap 1 (2000 edition, Laws of Uganda), as amended by the Constitution (Amendment) (no 2) Act 2005.

9 Under sec 2(a) of the Ratification of Treaties Act, chap 204 (2000), all conventions shall be ratified by the cabinet (or in specific instances by a resolution of Parliament (sec 2(b)), and then laid before parliament (sec 4).

10 In a forthcoming article, the author discusses the question of whether clan court proceedings are impartial as prescribed in sec Q(c)(2) of the Guidelines.

11 The phrase “statutory traditional courts” is borrowed from Wanda, to distinguish traditional courts created by statute from indigenous ones that operate in local communities but without legal recognition: Wanda, PThe role of traditional courts in Malawi” in Takirambudde, P (ed) The Individual Under African Law (proceedings of the first All Africa Law Conference, 11–16 October 1981) (1982, University of Swaziland) 78 at 79.

12 Baderin, MRecent developments in the African regional human rights system” (2005) 5 Human Rights Law Review 117 at 126.

13 Kirchloff, PKinship organization: A study of terminology” (1932) 5 Africa: Journal of the International African Institute 184 at 184–91.

14 Local councils fall under the Local Governments Act chap 243 (2000) (LGA). Local council courts are established by the Local Council Courts Act (LCCA) 13/2006. Superior courts are delineated in art 129(2) of the Constitution and the Judicature Act chap 13 (2000). Magistrates courts are established by the Magistrates Courts Act chap 16 (MCA) (2000) as amended by the Magistrates Courts Act (Amendment) Act 7 of 2007.

15 The study was prepared for the author's doctoral thesis: M Owor “Making international sentencing relevant in the domestic context: Lessons from Uganda” (unpublished PhD thesis, University of Bristol, UK, 2009).

16 Jo-Gem clan register 2006.

17 Uganda Bureau of Statistics and International Livestock Research Institute Where are the Poor? Mapping Patterns of Well-Being in Uganda (2003, Regal Press) at table 4.11 A.

18 Ogot, BHistory of the Southern Luo: Volume 1: Migration and Settlement 1500–1900 (1967, East African Publishing House) at 85. The war cry was against the Baganda who invaded Padhola and were vanquished.

19 Mogensen, HThe resilience of Juok: Confronting suffering in Eastern Uganda” (2002) 73 Africa: Journal of the International African Institute 420 on Jopadhola belief in Christianity and fear of jwogi.

20 Constitution of Tieng Adhola (2006 edition), chap 22, paras 25(14)(a), (b) and (c). Tieng Adhola was established in 1992 by the 52 clans. Its constitution aims to unify clans under one head: Kwar Adhola. Interview with Mr MO: the Kwar Adhola (15 August 08). Owor “Making international sentencing”, above at note 15 at 195.

21 Sudarkasa, NAfrican and Afro-American family structure” in Cole, J (ed) Anthropology for the Nineties: Introductory Readings (1988, Free Press) 182 at 183–87 and 198–99.

22 Owor “Making international sentencing”, above at note 15 at 170–77; Ogot History of the Southern Luo, above at note 18; Burke, FLocal Government and Politics in Uganda (1964, Syracuse University Press) at 193, 196–98 and 240.

23 Elias, TThe Nature of African Customary Law (1956, Manchester University Press) at 1112, 30 and 216.

24Umuntu ngumuntu ngabantu” [a person can only be a person through others]: Mokgoro, YUbuntu and the law in South Africa” (1998) 1/ 1 Potchefstroom Electronic Law Journal 1 at 2, citing Mbigi, L and Maree, JUbuntu: The Spirit of African Transformation Management (1995, Sigma Press) at 17. The concept of Ubuntu is also discussed by Judge Mokgoro in State v T Makwanyane and M Mchunu CCT/3/94, delivered on 6 June 1995, 1 at 171, para 308.

25 Mqeke, RCustomary law and human rights” (1996) 113 South African Law Journal 364 at 365, citing Gluckman, MNatural justice in Africa” (1964) 9 Natural Law Forum 22 at 25 and M'baye, KThe African conception of law” in David, R (ed) International Encyclopaedia of Comparative Law vol II chap 1 (1975, Martinus Nijhoff) at 138, para 225 and 148, para 257.

26 Burke Local Government, above at note 22 at 240.

27 Allott, AThe people as law-makers: Custom, practice, and public opinion as sources of Law in Africa and England” (1977) 21/1Journal of African Law 1 at 810; Elias The Nature of African Customary Law, above at note 23 at 198–99.

28 Elias id, at 11-12, describing the Ibo of Nigeria.

29 Mair, LPrimitive Government (1970, The Scolar Press) at 49, on the Luhya of Kenya.

30 Burke Local Government, above at note 22 at 192.

31 Kakooza, JMNUganda's legal history in a nutshell” (1993) 1/1Makerere Law Journal at 2, cited in Beyaraza, ESocial Foundations of Law: A Philosophical Analysis (2003, Law Development Centre Publishers) at 112.

32 Oboth-Ofumbi, ALwo (Ludama) Uganda: History and Customs of the Jo Padhola (1960, Eagle Press) at 6769.

33 Driberg, HThe status of women among the Nilotics and Nilo-Hamitics” (1932) 5 Africa: Journal of the International African Institute 404 at 419.

34 KanyeihambaConstitutional and Political History, above at note 3 (1st edition, 2002, Fountain Publishers) at 710; J Oloka-Onyango “Law, custom and access to justice in contemporary Uganda: A conceptual and analytical review” (paper prepared for New Frontiers of Social Policy World Bank Conference, Dar Es Salaam, December 2005) part II, paras 2.1–2.2.

35 Burke Local Government, above at note 22 at 197–98.

36 Roscoe, JThe Baganda: An Account of Their Native Customs and Beliefs (1965, Frank Cass and Co Ltd) at 241.

37 In isolated instances, the Jopadhola left the power of determining guilt to be exercised by one individual (Burke Local Government, above at note 22 at 218), but there is no evidence to suggest this was a widespread practice.

38 The Courts Ordinance 1909, secs 51 and 52. The Native Courts Act (chap 40), sec 4(1).

39 African Courts Act (chap 38), secs 4(1), 4A(1) and (2)(f).

40 Burke Local Government, above at note 22 at 188–89.

41 Magistrates Court Act chap 36 (1964), secs 3, 9(1) and 15(1)(a). Under sec 10(1) of the MCA (2000), civil customary law is applicable, subject to the “repugnancy” clause.

42 The Constitution, art 178 and 5th schedule, clauses 2(1) and 3(3)(h). Cultural affairs are handled by district councils under schedule 2 part 2, sec 5(z) of the LGA.

43 Von Benda-Beckmann, FLaw out of context: A comment on the creation of traditional law discussion” (1984) Journal of African Law 28 at 29.

44 Id at 29–33.

45 Bussani, MTort law and development: Insights into the case of Ethiopia and Eritrea” (1996) 40/1Journal of African Law 43 at 47, cited in Woodman, GLegal pluralism and the search for justice” (1996) 40/2Journal of African Law 152 at 164, note 38.

46 Woodman, id at 157–59 and 163–64. The legal character and social significance of customary law remains firmly established. Even in the African variety of “deep” legal pluralism, where state law co-exists with customary law, the imposed state law was very different from pre-colonial indigenous laws.

47 Barya, J and Oloka-Onyango, JPopular Justice and Resistance Committee Courts in Uganda (1994, New Vision Printing and Publishing Corporation) at 46. See also Baker, BPopular justice and policing from bush war to democracy: Uganda 1981–2004” (2004) 32 International Journal of Sociology of Law 333; Nordic Consulting Group “Survey of LC courts and legal aid providers findings: Tororo district” (2006) and Ekirikubinza, LJuvenile justice and the law in Uganda: Towards restorative justice” in Lindholt, L and Schaumburg-Muller, S (eds) Human Rights in Development Yearbook 2003: Human Rights and Local / Living Law (2005, Martinus Nijhoff Publishers) 295.

48 SALC “The harmonisation of the common law and indigenous law: Traditional courts and the judicial function of traditional leaders” (discussion paper 82, Project 90, May 1999) at 13–15, available at: <http://www.justice.gov.za/salrc/dpapers/dp82_prj90_tradl_1999.pdf> (last accessed 3 July 2012). The memorandum of the South Africa Traditional Courts Bill [B 15-2008], introduced in the National Assembly on 7 July 2009, seeks inter alia to “provide for the structure and functioning of traditional courts in line with constitutional imperatives”. The bill is available at: <http://www.justice.gov.za/legislation/tradcourts/B15-2008.pdf> (last accessed 3 July 2012).

49 Koyana, DCustomary Law in a Changing Society (1980, Juta Publishers) at 130.

50 Elechi, ODoing Justice Without the State: The Afikpo (Ehugbo) Nigeria Model (2006, Routledge) at 7580, 118–21, 136–42 and 166–71. An age grade is an organization of people born in a village within roughly a three year period. Women have analogous institutions to resolve conflicts arising among themselves.

51 Griffiths, AIn the Shadow of Marriage: Gender and Justice in an African Community (1997, University of Chicago Press) at 113 and 117.

52 Chase, OLaw, Culture and Ritual (2005, New York University Press) at 2425.

53 C Logan “Traditional leaders in modern Africa: Can democracy and the chief co-exist?” (Afrobarometer working paper no 93, February 2008) 1 at 5 and 23, available at: <http://pdf.usaid.gov/pdf_docs/PNADL326.pdf3> (last accessed 3 July 2012).

54 Cobbah, JAfrican values and the human rights debate: An African perspective” (1987) 9 Human Rights Quarterly 309 at 320–21.

55 Sudarkasa, NAfrican and Afro-American family structure: A comparison” (1980) 11 Black Scholar 37 at 44.

56 Ikuenobe, PMoral education and moral reasoning in traditional African cultures” (1998) 32/1Journal of Value Inquiry 25 at 4041.

57 Olo Bahamonde v Equatorial Guinea comm no 489/1991: UN doc CCPR/C/49/D/486/1991 (1993), para 9.4.

58 Jo-Gem gombolola court participants.

59 LGA, sec 50. LCCA, sec 4 and Local Council Courts Regulations (SI 51/2007), rule 13(1).

60 AJGM Sanders “Comparative law and law reform in Africa, with special reference to the law of criminal justice” in Takirambudde (ed) The Individual, above at note 11, 148 at 150–51.

61 Chik Ma Pa Nono Morwa Guma Malasang [Constitution of the Morwa Guma Malasang clan] (1985), chap 13(34)(vii).

62 Under sec A(4)(a), national laws shall guarantee the independence of judicial bodies. Sec A(4)(g) protects the autonomy of judicial bodies from the executive branch.

63 Human Rights Committee “General comment 13”: UN doc HRI/GEN/1/Rev.1 (1994) at 14, para 3.

64 Logan “Traditional leaders”, above at note 53 at 3–4, citing R Mattes “Building a democratic culture in traditional society” (paper presented to the International Conference on Traditional Leadership in Southern Africa, at the University of Transkei, Umtata, South Africa, 16–18 April 1997) at 6 and Owusu, MTradition and transformation: Democracy and the politics of popular power in Ghana” (1996) 34(2) Journal of Modern African Studies 307 at 330.

65 Interview with Mr YO.

66 Morwa Guma Constitution, above at note 61, chap 11, para 32.

67 Judicial Service Act chap 14 (2000), sec 5. Art 147(3) and 148 of the Constitution refers to the appointment of judges and other judicial officers.

68 Kanyeihamba Constitutional and Political History, above at note 3 at 291–93.

69 Madhuku, LConstitutional protection of the independence of the judiciary: A survey of the position in Southern Africa” (2002) 46/2Journal of African Law 232 at 237.

70 MCA, rule 26, 3rd schedule. Schedule to the Trial on Indictments Act chap 23 (2000), assessors rules 1 and 2.

71 Oomen, BTradition on the Move: Chiefs, Democracy and Change in Rural South Africa (2000, Netherlands Institute for Southern Africa) at 64, cited in Logan “Traditional leaders”, above at note 53 at 23.

72 Madhuku “Constitutional protection”, above at note 69 at 241–42.

73 The Advocates Act, chap 267 (2000), secs 1 and 8.

74 Morwa Guma miluka court participants.

75 LCCA, sec 24.

76 Trial on Indictments Act, rule 2(1).

77 Madhuku “Constitutional protection”, above at note 69 at 240. Kanyeihamba Constitutional and Political History, above at note 3 at 291. The Constitution provides for the removal of a judicial officer by an independent tribunal appointed by the president. Alternatively, the president may suspend or remove a judicial officer: art 144 (3)(4) and (5) of the Constitution.

78 Nowak United Nations Covenant, above at note 3 at 319–20, para 25.

79 LCCA, secs 4(1) and 8(4)(a); Local Council Courts Regulations (2007), rule 19(1)(a). Youth representatives are only provided for under the LGA, where the chair of the youth council may sit on the village or parish executive committee.

80 Interview with Mr AO.

81 Logan “Traditional leaders”, above at note 53 at 6, citing Williams, JMLeading from behind: Democratic consolidation and the chieftaincy in South Africa” (2004) 42/1Journal of Modern African Studies 113 at 115–16.

82 Chase Law, above at note 52, chaps 2 and 7, at 114–16.

83 Shaidi, LTraditional, colonial and present day administration of criminal justice” in Mwene-Mushanga, T (ed) Criminology in Africa (2nd edition, 2002, Fountain Publishers) 1 at 2.

84 Beyaraza, EContemporary Relativism With Special Reference to Culture and Africa (2004, Makerere University Printers) at 165–66. Such taboos aim to prevent hereditary diseases from being passed on through inbreeding and to maintain group unity.

85 Owor “Making international sentencing”, above at note 15 at 199–200 and 222–26.

86 Morwa Guma p'oriwa court (15 August 2006).

87 Horwitz, AThe Logic of Social Control (1990, Plenum Press) at 8081 and 86–88. Traditional societies also apply conciliatory and compensatory styles of social control: id at 22, 47–49 and 65–74.

88 Roberts, SThree models of family mediation” in Dingwall, R and Eekelaar, JDivorce, Mediation and the Legal Process (1988, Clarendon Press) 144 at 145.

89 Excerpt from the speech of the adha nono at the trial simulation.

90 Excerpt from the speech of the ja chowiroki at the trial simulation.

91 SALC “The harmonisation”, above at note 48 at 15, para 4.3.

92 MCA, sec 10.

93 Wanda “The role of traditional courts”, above at note 11 at 81 and 90–91.

* PhD (Bristol, UK); associate lecturer, School of Law, University of Bristol. Email: and . The author is grateful for the insightful comments from Prof M Evans and Prof R Young on earlier drafts. She is equally indebted to the anonymous reviewer for their constructive comments.

Creating an Independent Traditional Court: A Study of Jopadhola Clan Courts in Uganda

  • Maureen Owor

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