Proving Customary Law in Uganda: Roadmaps and Roadblocks

Approaches and methods of proof of customary law in Uganda reflect bias against customary law. Unlike statutory law and common law, judges are not charged with the responsibility of knowing customary law. Instead, customary law is treated as a factual element to be proven in each individual case. The unique treatment of customary law raises concerns about efficiency, inconsistency and the development of community awareness. Two recent Ugandan cases concern the matter of proving customary law. In the 2008 Supreme Court of Uganda judgment in Kampala District Land Board and George Mitala v. Venansio Babweyaka et al., Civil Appeal No. 2 of 2007 then Chief Justice Benjamin Odoki offered a roadmap on the methods for proving customary law. Odoki listed various means of proving customary law including books, testimony and judicial notice. In the 2010 judgment Mifumi (U) Ltd and 12 Others v. Attorney General, Constitutional Petition No. 12 of 2007 the Constitutional Court offered another opinion that speaks to the matter of proving customary law. A careful review and comparison of the language and approaches in these two contemporaneous cases paints a telling picture of the the blurred and shifting state of proving customary law in Uganda. It is time to shift from the ad hoc approach of proving customary law to an approach that will promote consistency in the law and enhance the efficiency of proving customary law. It is also important that judges and society members know the law. Finally there is a need for evidentiary method to be open the mutability of customary law. There are opportunities for improving the evidentiary approach of proving customary law through the use of judicial notice and written literature. These avenues can be leveraged by the judiciary without legislative action. Such avenues can also be developed in a way that empowers customary law to change over time. While legislative reform is another possibility for improving the evidentiary status of customary law, the present political environment makes any such formal modification of the law unlikely this decade. Instead, Ugandan appellate courts are in the best position to improve the way that customary law is proven and established.