A Comparative Account of the Continuous Influence of Customary Law on Judicial Institutions in the Development of Legal Jurisprudence for Uganda Family Law from Colonial to Post-colonial Settings

Abstract

This paper is designed upon a comparative research design set out to investigate socio-legal historical accounts of customs by using case law from different decisions of Uganda’s family courts. The case law precedents used are drawn upon ancestral communities of natives that comprise the Buganda region of Central Uganda in East Africa. Those cases shall aid this discussion by demonstrating how some of the African cultures have for years used and continue to use courts of family law as strategic institutions for consolidating the continued promotion and preservation of their cultural norms. The two principle family law cases that are furthering the above legal analysis will include that of Kabali v Kajubi a court decision made during colonial times and Bruno Kiwuwa v. Ivan Serunkuma and Juliet Namazzi a much latter decision made in the post-colonial context. The case study-based research approach is being used by choosing the Baganda not as a symbol of preferential treatment than the other tribes but for strictly aiding a representative approach. That perspective is founded upon considerations that there are similarities that marital customary laws of other Ugandan tribes have with Buganda tribe particularly in as far as the recognition of customary law as an important safety value is concerned. The availability of family law judicial precedents from Buganda both in the colonial historical context (1940s) and in a post-colonial (2000) context is another reason for choosing this Ugandan community as having relevant analytical resources for demonstrating the ongoing interactions between customs on one hand and family law on the other.

Keywords: Family Law, Customary Law, Colonial and Post-Colonial Times