Article 126 (1) of the Constitution, in my view, liberates African Customary Law from that
degrading position explained above and commands in very clear terms that all law, including
Customary Law, has to be administered in conformity with the norms, values and aspirations of
the people. Such approach should be within the context of the thinking of progressive people
and societies. See the Court of Appeal for Uganda in Attorney General Vs Osotraco Ltd, Civil
Appeal No. 32 of 2002 where the court stated:“The law has to be construed in line with the thinking or norms of progressive
societies”
I am of the strong view that the thinking, the norms, values and aspirations of the progressive
people and societies in Uganda dictate that the liberal approach to taking judicial notice of
African Customary Law in general and the custom of giving and refunding bride wealth in
particular in Uganda be fully embraced. This, as I have shown above in this judgment, is what
has happened in Tanzania and Kenya by legislation. This is what is called for both in the letter
and the spirit of Article 126(1) and 2(e) of the Constitution.
Given that over the nearly half a century of independence this country’s courts of judicature
have almost wholly transformed from being predominantly manned by European judges to
being manned by Uganda judicial officers knowledgeable in African Customary Law, there is
no reason why the test stated above is not applied by the courts in taking judicial notice of any
aspect of that law in appropriate cases, just as they do in respect of other laws including
common law both local and received or applied.
In conclusion on this issue (b), I, therefore, find that the giving of bride wealth as a
requirement of a valid customary marriage and the refund of bride wealth as a requirement of a
valid dissolution of such marriage as known and practiced in various parts of Uganda is so
notoriously known and appreciated that it can and has actually been in the past in numerous
cases taken judicial notice of without the requirement of any further proof. It should be so taken
without any hesitation.
Issue (c).
The gist of issue (c) is whether bride price means different things in different cultures of Uganda
such that there can be no uniform interpretation of the custom.
From the affidavit evidence on record and from my own knowledge of the custom of payment
and demand of a refund of bride price as practiced in Uganda the true position is that the custom
and practice may be referred to or called by different names in different nationalities in the
country. What is clear however is that there are well universally known and accepted attributes
of the custom and practice. These are:(a)
it is either a sum of money or an amount of property,
(b)
it is demanded by the parents/relatives of the bride as a pre-condition to
marrying the bride under customary law.
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