THE RELEVANCE OF AFRICAN JURISPRUDENCE AND UBUNTU IN UGANDA.

Abstract

The post amble of the English text of the 1993 Constitution referred to “Ubuntu”; there is a need for understanding but not for vengeance, a need for reparation but not for retaliation, a need for Ubuntu but not for victimization. Ubuntu is an indigenous African concept and refers to a practical humanist disposition towards the world, including compassion, tolerance and fairness. (It is interesting to note that the African Charter on Human and Peoples’ Rights also includes a positive duty to tolerate.) The concept accords respect to human dignity and equality to any person irrespective of status in a communication sense. This notion was applied and explained by the South African constitutional court in a landmark case of S v Makwanyane[1], whereby generally it was stated that; “Ubuntu translates as ‘humaneness’. In its most fundamental sense, it translates as ‘personhood’ and ‘morality’. While it envelops the key values of group solidarity, compassion, respect, human dignity, conformity to basic norms and collective unity, in its fundamental sense it denotes humanity and morality.” Its spirit emphasizes respect for human dignity, marking a shift from confrontation to conciliation.

Introduction

The term Ubuntu (Obuntu-bulamu) generally refers to the quality, potential or instance of being human; it embodies the notions of “personhood” and “humanness” and the requisite qualities these notions espouse. This is an ancient African worldview characterized by community cohesion, group solidarity, mutual existence and other associated values. It is a value of great importance in African communities, and espouses some religious, cultural and philosophical importance for Africans.

African jurisprudence represents African oral culture – a scrupulously preserved tradition that was highly guarded and passed on by living it from generation to generation. Uganda’s legal system is based on the common law tradition adopted from English law and generally practiced throughout the British Commonwealth.[2] The law as it is today in Uganda has undergone several modifications and development processes and currently provides guidance, rules, and sanctions on almost everything. In Uganda, a country with a strong customary and cultural foundation, there has been consistent contention as to the place of culture, customs and traditional norms.

Many aspects of life in Uganda are governed by customary laws and traditional institutions, which were before imperialism the only sources of law. It is now a phenomenon that customary rules exist and almost have to compete with bodies of Domestic Constitutional Law, Statutory law, Common Law, and International Human Rights Treaties. Ugandan scholars have in fact suggested that despite developments in the law, Ubuntu(Obuntu-bulamu), customs and traditional practices are still relevant, and that it is therefore important to ensure that they are properly codified and applied in jurisdictions in Uganda. Some important aspects of customs include the role and power of traditional authorities; customary criminal law; customary land tenure, property rights, and intestate succession; and the relationship between customary law, human rights, and gender equality.[3] Often cast in a mythical form, the African predicament is based on the specious perception that Africans have no history. One aspect of African life that has become subject to the harassment of Eurocentrism and thus a horrendous torrent of dismissal interpretations is the African conception of law (jurisprudence) and the legal systems arising therefrom.

The use of African jurisprudence and Ubuntu in Uganda has been realized or conceived in numerous ways, of which these have construed to the modern development and promotion of the legal system in Uganda. These relevant uses of the two concepts can be well elucidated as below;

The concept of Ubuntu is not expressly mentioned in the 1995 Constitution of Uganda, but that does not mean that Ubuntu will disappear from the Ugandan legal stage. It may be argued that Ubuntu lives on the numerous references to human dignity in the Constitution. It forms an important bridge between the communal African traditions and Western traditions, which focus on an individual, and could be a very useful extra-textual aid to statutory and constitutional interpretation.

Under the objective no.24[4] provides for cultural objectives in that; cultural and customary values which are consistent with fundamental rights and freedoms, human dignity, democracy, and with the constitution may be developed and incorporated in aspects of Ugandan life. The state shall then promote and preserve those cultural values and practices which enhance the dignity and well-being of Ugandans, encourage the development, preservation and enrichment of all Ugandan languages, promote the development of a sign language for the deaf and encourage the development of a national language or languages.

As per this constitutional provision, I can ably say that African Jurisprudence and Ubuntu have been used in statutory and constitutional interpretation as explained herein. The customary marriages (Registration) Act Cap 248 recognizes customary marriages, section 4 provides that customary marriages may be celebrated in any part of Uganda. In Uganda v Alai , the accused was charged with adultery and in his argument while relying on the decision of chief justice Hamilton in the famous case of Rex V Amkeyo (1917) KLR 14, he stated that a woman married under customary law is not a wife hence not being held liable for adultery. Udo Udoma CJ (as he then was) held that marriage under the laws of Uganda included customary marriage under customary law. Hence Alai was convicted of committing adultery.

African Jurisprudence and Ubuntu recognizes the humanity of each person and the entitlement of all people to unconditional respect, dignity, value and acceptance” from one’s community.[5] Every person has a corresponding duty to show the same respect, dignity, value and acceptance to each member of that community. Inherent to this communality are the ideas of mutual enjoyment of rights by all, sharing and co-responsibility.

An “outstanding feature” of Ubuntu is the value it puts on life and human dignity. This has been established in Article 32[6], that the state shall take affirmative action in favor of groups marginalized on the basis of gender, age, disability or any other reason created by history, tradition or custom, for the purpose of redressing imbalances which exist against them. Therefore the great promotion of humanity among persons in Uganda has been as a result of the two concepts hence of a great use and impact in the legal system.

Ubuntu is well regarded as an important African value in African jurisprudence and has been of a great use. The Constitution makes no express mention of Obuntu-bulamu although it recognizes customary law under Article 37 and also provides in Article 129(1) (d) for Parliament to establish courts to apply customary and other custom-oriented laws. No such courts have been established, leaving such matters under the ambit of sections 10 and 11 of the Magistrates Courts Act (Cap 16) and section 15 of the Judicature Act (Cap13). On the whole, therefore, under the current constitutional dispensation, Ugandan courts are Ubuntu-conscious and are thus equipped to interpret constitutional values and entrenched rights in terms of the country’s indigenous value systems. The constitutional values are based on the principles of unity, peace, equality, democracy, freedom, social justice and progress. These have been as a result of inherent Ubuntu which elaborate enough to anchor its oriented legislative processes and judicial decisions.

More so, the use of African jurisdiction and Ubuntu can be seen in Rule 4(1)[7] which provides that the court shall refer every civil action for mediation before proceeding for trial. Also, section 26[8] provides that the High Court may, in accordance with the rules of court, refer to an official or special referee for inquiry and report any question arising in any cause or matter, other than in a criminal proceedings.

The Ubuntu aspect of African jurisprudence is largely the driving force of the law regulating the relationships between African peoples in their traditional societies and it consists of the moral rules handed down between generations. In Ugandan traditional communities, the Ubuntu-driven legal and judicial systems provided a considerable basis for face-to-face relations among the people, a means of dispute settlement, group solidarity and a common ideology. These systems of law and justice constituted the African jurisprudence, which existed and regulated African societies long before the advent of colonialism.

Therefore, with the provision of this rule, the use of Ubuntu and African jurisprudence has been clearly evidenced and relevant in judicial systems of Uganda. In East Africa Development bank v Ziwa Horticultural Exporters Ltd,[9] it was held that section 6 of the arbitration and conciliation Act provides for mandatory reference to arbitration of matters before court which are subject to arbitration of matters before court which are subject to an arbitration of matters before court which are to an arbitration agreement. Therefore where court is satisfied that the arbitration agreement is valid, operative and capable of being performed, it may exercise its discretion and refer the matter to arbitration.This provision has influenced the promotion of the African culture, consisting of its unique character of “Ubuntu” which has acted as a foundation of respect for human rights and dignity in Ugandans legal system.

Also, Ubuntu supplies the humanistic moral rule that underlies the obligation that the person has to the community and provides an understanding that this moral rule works to sustain the harmony of the community. Therefore, Ubuntu is applied in Uganda through the civil society groups advocating for people’s rights especially those who cannot afford legal fees; it can also be done through pro bono services and public interest litigation. In Rev. Christopher Mtikila v Attorney General, public interest litigation was defined as litigation which is instituted with desire that court will give an effective relief to the whole or a section of society.

Notwithstanding the above uses of the African jurisprudence and Ubuntu, this principle can help us to bridge the aspect of division on our different societies in various ways as explained below;

The principle has emphasized the narration of equal opportunities. Basing on Ubuntu aspect, the constitution of the Republic of Uganda under article 21(1) provides that all persons are equal before and under the law in all spheres of political, economic, social and cultural life and in every other respect and shall enjoy protection of the law. In Best Kemigisha v Marble Komuntale & Another,[10] it was held that custom which is discriminative is repugnant to the principles of natural justice and good conscience and therefore null. It is also prudent to note that laws which are against the dignity, welfare or interest of women or which undermine their status are prohibited by the constitution particularly article 33 (6) of the constitution. This therefore puts women and men on the same footing and thus all can enjoy the freedoms of sharing land and live on equal sleeves as men, hence closing the aspects of divisionism in our societies.

The Ubuntu approach allows team members to strive towards becoming caring, understanding and sharing, therefore the compassionate approach enables team members to achieve a common goal. Through a common understanding, community members are able to help and care for each other as members of one family, as required in the humanist African Ubuntu approach towards the community and its members. For example, the African jurisprudence, which is premised on community solidarity, demands that success of an individual should not be aggressively achieved at the expense of others as the purpose of the group existence is for communal harmony and well-being of all. In line with the people-centric ubuntu philosophy, individualism is not viable, for it is inadequate as a model to understand the basic human elements of a society, since it creates gaps for divisionism.

By nature, humans are social beings and their wants and capacities are largely a result of society and its institutions. In Mifumi (U) Ltd and Anor v Attorney General and Anor, the petitioners are a nongovernmental organization and a women’s agency with an aim to protect women successfully challenged the constitutionality of the customary practice of demand for and payment of bride price as a condition precedent to dissolution of marriages and it was declared unconstitutional because it violates all constitutional provisions which were enacted to give protection to women. Court noted that the practice has been commercialized, highly exploitative and humiliating to women and portrays the women as an article in the market for sale which degrades their dignity. Court also noted that the practice should be that the groom with the help of parents, relatives and friends gives to the parents of the bride whatever ex gratia payment they may wish to give them as appreciation for bringing up the bride. It then becomes voluntary and is never refunded when the marriage breaks down. Therefore, with this relevance, a gap of divisionism can be closed between societies.

The principle of Ubuntu embodies compassion, forgiveness instead of vengeance; this has helped to create harmony between people where there has been conflict and division between or amongst persons in the community which may be as a result of one wronging another. In the case of Mathew Kanyamunyu v Uganda, the applicant sought an order suspending the main trial until he concluded an ongoing traditional justice process and a likely plea bargain thereafter. The applicant was jointly charged with another for the death of Akena Kenneth. However the counsel for the applicant sought an adjustment on grounds that an application had been filed whose purpose would be compromised if the hearing proceeded before it was fixed and disposed of. The applicant sought for suspension or adjournment of trial to enable him conclude a process of reconciliation initiated under the Acholi Traditional Justice mechanism so as thereafter to enable a meaningful and judicious plea-bargain to be undertaken. The applicant averred that he had completed the first three of the four phased process that is to say the truth telling, forgiveness, restitution and reconciliation and was left with the last phase called Mato Oput, the applicant argued that it was of utmost importance that both families complete that process as a means of restoring harmony between the both families complete that process as a means of restoring harmony between the two families, therefore this form of Ubuntu can be embraced and exercised in trying to close gaps of divisionism in societies.

In a nutshell,

It is judicious to note that the two contexts of African jurisprudence and Ubuntu are main centered to the existence of oneness and humanness which calls for unity, dignity, respect, reciprocity and good relations between people in different societies, of which this acts as a way of bridging or reconstructing the loose gaps brought about by the divisionism and individualism of people’s ways of conduct. There is an African proverb “Obuntu- bulamu ngu muntu ngabanye abantu” meaning that a person is a person through other people. “You might have much of the world’s riches and hold a portion of authority but if you don’t have obuntu bulamu, you don’t amount to much” (Arch Bishop Desmond Tutu 1999).

By

ARYAMANYA RODRICK,

LLB-3, BSU-FACULTY OF LAW,

aryamanyarodrick21@gmail.com

BIBLIOGRAPHY

STATUTES

- The 1995 Constitution of the Republic of Uganda as amended.

- The Marriage Act Customary (Registration) Act cap 248.

- The Judicature Act cap. 13.

TEXT BOOKS

-OBUNTU-BULAMU AND THE LAW by ISAAC CHRISTOPHER LUBOGO

CASES

- S v Makwanyane and Another (CCT3/94) [2012] ZACC 3; 2012 (6) BCLR 665; 2012 (3) SA

- Mifumi (U)Ltd AND Another VS. A.G AND Another Constitutional Case No. 12 of 2007, and also Constitutional Appeal No. 02 of 2014

- Susan Kigula & Ors V UGANDA Criminal Appeal No.1 of 2004

- Bruno Kiwuwa v Ivan Serunkuma and Juliet Namazi,. Civil Suit No. 52 of

- Uganda v Alai, [1967] EA 596

- Bestie Kemigisha v Mable Komuntale, [2015] UGSC 13

- Rev. Christopher Mtikila v Attorney General Civil Case No.5 of 1993

- Kanyamunyu Matthew v Uganda Miscellaneous Criminal Application No 151 0 f 2020

List of Citations

[1] 1995 (6) BCLR 665 (CC) [2] (Slapper & Kelly, 2016) [3] (Dalgleish, 2005), (Fenrich et al, 2011) [4] The 1995 Constitution of the Republic of Uganda, as amended [5] S v Makwanyane 1995 3 SA 391 (CC) para 224. [6] The 1995 Constitution of the Republic of Uganda, as amended [7] Judicature (mediation rules) Rules 2013 [8] Judicature Act, Cap.13 [9] UGCC 7(19 October 2000) [10] [2015] UGSC 13