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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
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 28Google Scholar. 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, G “Ruled 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 295–99Google Scholar and Kanyeihamba, GConstitutional and Political History of Uganda: From 1894 to Present (2nd edition, 2010, LawAfrica Publishing (U) Ltd) at 269–73Google Scholar explain that separation of powers is intertwined with the rule of law. This article focuses only on the former.
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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, P “The 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 79Google Scholar.
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.
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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.
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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.
44 Id at 29–33.
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.
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50 Elechi, ODoing Justice Without the State: The Afikpo (Ehugbo) Nigeria Model (2006, Routledge) at 75–80, 118–21, 136–42 and 166–71Google Scholar. 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.
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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)Google Scholar.
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, M “Tradition and transformation: Democracy and the politics of popular power in Ghana” (1996) 34(2) Journal of Modern African Studies 307 at 330CrossRefGoogle Scholar.
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.
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 64Google Scholar, 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.
82 Chase Law, above at note 52, chaps 2 and 7, at 114–16.
83 Shaidi, L “Traditional, colonial and present day administration of criminal justice” in Mwene-Mushanga, T (ed) Criminology in Africa (2nd edition, 2002, Fountain Publishers) 1 at 2Google Scholar.
84 Beyaraza, EContemporary Relativism With Special Reference to Culture and Africa (2004, Makerere University Printers) at 165–66Google Scholar. 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).
88 Roberts, S “Three models of family mediation” in Dingwall, R and Eekelaar, JDivorce, Mediation and the Legal Process (1988, Clarendon Press) 144 at 145Google Scholar.
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.