Scholars of jurisprudence have for long protested against the codification of laws, describing it as a dangerous move that is likely to lead to the imprisonment of the growth of customs. Several scholars have pointed out that in every community, certain traditions and customs grow up which, through their continuous usage, evolve into law. Savigny and other scholars of his time attacked the Napoleonic Codes in France and greater Europe and said law was not something to be arrived at in a hurry.
The Bamasaba have had a cultural institution for the last 16 years, and the court recently ruled that the tenure of five years should be maintained.
This means that a cultural leader rules for every five years and then leaves office, whereas the Institution of Traditional and Cultural Leaders Act is silent on the longevity of a cultural leader in office. The Bamasaba people, as a community, have fixed five years as the tenure of their cultural leaders. Unless there is a change of mind by the community, this is the customary law on the tenure of the cultural leader.
In America, until recently, the two-term tenure for heads of state was unwritten and only got enacted when President Roosevelt exploited the World War tensions in the 1930s to rule for about four terms. Otherwise, from 1776 up to the 1930s, a period of about 160 years, Americans knew that after two terms, a president packed and exited Capitol Hill.
The Bamasaba in 2011 decided that a cultural leader rules for five years. Much as the Institution of Traditional and Cultural Leaders Act is silent on the tenure of the cultural leader, just as the American Constitution was silent on the tenure of the president, subsequent leaders followed the precedent set by founding President George Washington.
Customary law is a set of unwritten rules that regulate the conduct of persons in a given society. There was also a mechanism for its enforcement in the olden medieval society, for example, banishment or open flogging for those who disrespected such customs. Black’s Law Dictionary defines customary law as customs that are accepted as legal requirements or rules of conduct, practices and beliefs that form part of the daily life of a community and are treated as though they were written laws.
The Bamasaba people should rather allow the tenure of the cultural leader to develop as though it were part of their customs, as envisaged in Section 3 of the Cultural Leaders Act, than enact or write it down. One day, when a cultural leader abuses such a custom, those around should sit down as a community to have the tenure enacted.
Whereas traditional institutions in Uganda are guided by their traditions and local customs on how a traditional leader comes to power and for how long his or her tenure should be, unfortunately, cultural institutions do not have such a practice. Many times, there is manipulation of the tenure. In Buruli, the cultural leader (Ssebaruli) rules until death; elsewhere, like in Teso, it is about 20 years in office; in Bugisu, it is five years; and in Budama, it is for life. The community should dictate this, and not any individual, whoever they might be.
The Bamasaba are at liberty to pronounce themselves on the tenure of the cultural leader in a cultural conference that sits at a designated interval. Say, after every ten years, the community sits to discuss or confirm the tenure of their cultural leader rather than having it enacted as though it were law. They could use the Greek model, when people in Athens used to sit under huge trees to deliberate on their leadership style.
Legal scholars, especially natural law scholars, trace law from the customs and beliefs of the people and state, for example, that natural law is law that is in agreement with nature. The rules of human conduct emerge from right reason, which receives public approbation from the community.
It is a long-held belief of natural law that men must abide by the pacts and fulfil promises they so agree to. As a community, once we allow the tenure of His Highness, the Umukuka, to run without codification, then we would have crafted a custom on how long a cultural leader reigns in Bugisu.
Recently, the High Court guided that the Constitution of the Bamasaba people should be subjected to extensive discussions by the people. This, of course, means we now have the power to legislate, but rather to meet as a community and agree on how long a cultural leader should reign, and such a decision will be enforced by the entire community.
The practice of anybody imposing terms on a cultural leader should be rejected. Let the community decide in its wholeness so that we have it as a custom for our community.
The writer is a legal scholar and the Spokesperson of the Bamasaba Cultural Institution. Tel: 0782231577.
