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

Published online by Cambridge University Press:  29 August 2012


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.

Research Article
Copyright © School of Oriental and African Studies 2012

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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.

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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.

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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.

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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.

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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 330CrossRefGoogle Scholar.

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

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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.

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

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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.

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