Bamasaba should let custom determine tenure of cultural leaders

Op-Ed: Scholars of jurisprudence have long debated the dangers and benefits of codifying laws, with some arguing that excessive codification can restrict the natural growth of customs and traditions within a community.

Legal scholars, including the historical school of jurisprudence associated with Friedrich Carl von Savigny, argued that law develops organically from the customs, traditions and practices of a people rather than being created hastily through legislation.

The debate is particularly relevant to the Bamasaba cultural institution, which has existed for about 16 years. A recent court ruling maintained the five-year tenure of the Bamasaba cultural leader, a position that, according to the community’s established practice, is subject to periodic renewal or succession.

The Institution of Traditional or Cultural Leaders Act does not expressly prescribe the length of tenure of a cultural leader. However, the Bamasaba community adopted a five-year tenure in 2011.

“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,” Masiga argues.

He says the absence of a specific provision in the law governing traditional and cultural leaders does not necessarily mean that communities cannot develop their own customs regarding leadership.

Masiga draws a comparison with the United States, where presidential term limits were initially established through political practice rather than constitutional law. He notes that George Washington’s decision to leave office after two terms helped establish a precedent that was followed for generations before the 22nd Amendment formally limited presidents to two elected terms.

“Much as the American Constitution was silent on the tenure of the president, subsequent leaders followed the precedent set by founding President George Washington,” he says.

Customary law

Masiga defines customary law as a body of unwritten rules that regulate the conduct of people within a particular society. Such rules develop through continuous observance and acceptance by members of the community.

He argues that customs can acquire considerable authority because they reflect the practices and beliefs of the people who observe them.

“The Bamasaba people should rather allow the tenure of the cultural leader to develop as though it were part of their customs, as envisaged under Section 3 of the Traditional or Cultural Leaders Act, than immediately enact or write it down,” he says.

According to Masiga, Uganda’s traditional institutions have historically relied on traditions and local customs to determine how cultural leaders ascend to power and how long they remain in office.

He points to differences among cultural institutions, saying that some cultural leaders serve for life, while others have fixed or customary periods of tenure.

“The community should dictate this and not any individual, whichever position they might hold,” Masiga says.

He argues that the Bamasaba should periodically convene cultural conferences to discuss and affirm the tenure of their cultural leader instead of relying entirely on written legislation.

“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 every ten years, where the community discusses or confirms the tenure,” he says.

Masiga suggests that the Bamasaba could draw inspiration from ancient democratic traditions in which communities gathered to deliberate on matters of leadership and governance.

Community consensus

The legal scholar also invokes principles associated with natural law, which he says recognise the relationship between law, reason, customs and the values accepted by a community.

He argues that when members of a community consistently accept and observe a particular practice, that practice can develop into a customary rule.

“Once we allow the tenure of His Highness, the Umukuka, to run without codification, we would have crafted a custom on how long a cultural leader reigns in Bugisu,” he says.

Masiga also welcomes recent guidance by the High Court that the Bamasaba people’s constitution should undergo extensive discussions among members of the community.

He says the process should not simply be viewed as an opportunity to write more laws but rather as an opportunity for the Bamasaba to reach consensus on how their cultural institution should be governed.

“The High Court’s guidance means we now have an opportunity to meet as a community and agree on how long a cultural leader should reign, with that decision being respected and enforced by the entire community,” he says.

Masiga cautions against any attempt by an individual or a small group to impose terms of office for the cultural leader without broad consultation.

“The practice of anybody imposing terms on the tenure of a cultural leader should be rejected. Let the community decide in its wholeness so that we have it as a custom for our community,” he says.

He maintains that allowing the Bamasaba community to determine its leadership practices through consultation and continuous observance would strengthen the cultural institution while preserving the role of customary law.

The author is Steven Masiga, a legal scholar and spokesperson of the Bamasaba Cultural Institution.

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