Celebrating the Love of Friends in a Loving World

Celebrating the Love of Friends in a Loving World
Red Roses for You, My Sweet Friends ... Total Love.

My Sweet Friends

My sweet friends,

We grow closer to each other;

When we interact together and share ideas;

The common faith that we share,

Binds our hearts in one accord.

For sweet friendships last a life time,

When built on mutual respect, humility and understanding;

Throughout each different season,

We find we are one in life.

Sweet friends are there through times of grief;

And times when hope is gone;

Always there with encouragement;

So we can carry on.

I thank the Lord for you,

My true and faithful friends;

To fondly speak with you, whether we agree or not,

On this, our beloved blog;

For sweet friends will stay, no matter what;

Giving support.

Together, our hearts and minds truly unite;

With the amazing love of sweet friends.

In the spirit of true friendship,

Best wishes, my sweet friends;

May the Lord bless you abundantly.

I remain, yours truly,

B.B. Bakampa.

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Wednesday, July 6, 2011

Marriage in Colonial and Post-colonial East Africa: An Appraisal of the Role and Implications of the Doctrine of Precedent

By Bakampa Brian Baryaguma
[Dip. Law (First Class)–L.D.C.; L.L.B. Student–Mak.]
bsaint3@gmail.com; www.bbbakampa.blogspot.com

1.0 Introduction

Marriage


Marriage literally denotes a legal union of a man and a woman as husband and wife [1]. To Osborne [2], it “…is essentially the voluntary union for life of one man and one woman to the exclusion of all others, subject to the rules as to consanguinity or affinity and capacity to perform the duties of matrimony prevailing in the place of domicile of the parties and subject to the formalities required either by the law of England or the place where the marriage takes place.” All in all, marriage is defined depending on the context in which it is celebrated and who celebrates it. Under S.1 (b) of The Customary Marriage (Registration) Act, Cap. 248, marriage is defined in an African customary context. Customary marriage is defined as “a marriage celebrated according to the rites of an African community and one of the parties to which is a member of that community…”

Precedent

According to Osborne [3], the term precedent refers to “A judgment or decision of a court of law cited as an authority for deciding a similar set of facts.” That it is a case which serves as an authority for the legal principle embodied in its decision. For Asif Tufal [4], “Judicial precedent is the process whereby judges follow previously decided cases where the facts or point of law are sufficiently similar.” For Sir George Jessel, M.R. [5], “The only use of authorities or decided cases is the establishment of some principle which the judge can follow out in deciding the case before him.”

Precedent rotates on two principles namely:-
(i) Stare decisis; which means to stand by the decided. Here, lower courts are bound to follow legal principles set down by superior courts in earlier cases.
(ii) Ratio decidendi; which is the binding part of a previous decision. It is the legal reason or ground for a judicial decision which will be binding on later courts.

1.1 Introduction and application of the doctrine of precedent in East Africa

For long, the doctrine of precedent has been relevant in East Africa. In Uganda’s case, this doctrine became relevant with the coming into force of the Uganda Order in Council, 1902, as amended in 1911, providing that judicial authority was to be exercised “in conformity with the substance of the common law, the doctrines of equity and the statutes of general application in force in England on August 11, 1902.” Similar legislations were introduced in other parts of East Africa. In Zanzibar, common law was introduced by A.24 of the Zanzibar Order in Council, 1924. Ordinarily, this meant that all decisions made by Superior Courts of Record in England were binding on East African Courts.

The colonial era

It is on this premise that decisions like that of Hyde Vs Hyde & Woodmansee [6], were imported into East Africa during the colonial era. In the instant case, Lord Penzance said that, “I conceive that marriage, as understood in Christendom, may for this purpose be defined as the voluntary union for life of one man and one woman, to the exclusion of all others.” (Emphasis added). English colonial judges used this definition to determine the validity of our marriages most of which, if not all, by the stroke of the pen were declared null and void. In R Vs Amkeyo [7], Chief Justice Hamilton held that, “In my opinion the use of the word ‘marriage’ to describe the relationship entered into by an African native with a woman of his tribe according to tribal custom is a misnomer which has led in the past to a considerable confusion of ideas. I know of no one word that correctly describes it; ‘wife-purchase’ is not altogether satisfactory, but it comes much nearer to the idea than that of ‘marriage’ as generally understood among civilized peoples.”

Hamilton applied the Christendom understanding of marriage to people with a totally different perception of the same. Throughout the colonial era, the decision in Amkeyo was the binding and persuasive precedent on the courts. Virtually in all cases where the question of validity of the customary marriage arose, reference was made to Amkeyo’s case, the vulgar and derogatory definition that Hamilton gave to African marriages invoked. By 1963, colonial courts still deemed our marriages to be exchanges of chattels (women) amongst men! Hence in Abdulrahman Bin Mohamed and Another Vs R [8], the Court of Appeal for East Africa held; “The marriage appears to have all the elements of “wife purchase”, the description given to an African customary marriage in Amkeyo’s case.” (Emphasis mine)

The Post-colonial era

The post-colonial era marked the ascent of African judges to the bench. Unlike European judges, African judges were sensitive to and understood African customs and ways of life. It is during this time that Amkeyo’s case was overruled by the 1967 famous case of Alai Vs Uganda [9]. This was a reference to the High Court by a Chief Magistrate to whom an appeal had been made. The court of first instance followed the ratio decidendi in Amkeyo’s case and found Alai guilty. The appellant appealed to the Chief Magistrate who found it necessary to seek guidance of the High Court, himself bearing the belief expressed in Amkeyo’s case. In response, Sir Udo Udoma, C.J, stated that “In my opinion the views expressed by the learned chief magistrate are both extraordinary and dangerous having regard to the situation and the social structure of Uganda and the different and complex forms of marriages recognised by the law of Uganda.” He declared a marriage valid and legal if held under a valid custom. Alai’s case is the precedent on the validity of African customary marriages in the post-colonial era.

1.2 Role and implications of the doctrine of precedent

The two precedents played a critical role in the development of marriage law and had far reaching implications which may be either positive or negative.

The doctrine of precedent generally maintains uniformity in law and makes determination of cases predictable through decisions of one court binding another on points of law. For this reason, R Vs Amkeyo (supra) was for virtually the whole colonial period, the law governing the validity of African customary marriages. Now Alai Vs Uganda (supra) is the law governing such marriages again due to the same principle.

Precedent also fills up lacuna in written law as written law cannot be totally exhaustive. Judicial interpretations and declarations therefore, play a pivotal role in the development of law sometimes rendering ad hoc legislation necessary. The enactment of The Customary Marriage (Registration) Act, Cap 248 of 1973 can be attributed to the 1967 decision in Alai Vs Uganda (supra) which highlighted the need for a codification of law governing and regulating African customary marriages.

Precedents also promote justice by avoiding importation of personal views in judicial adjudication courtesy of the principle of stare decisis. The danger in this however, is that a bad law like that of Amkeyo stays in the law books for long without question to the detriment of society. Lord Denning warned that wholesome reliance on precedents may occasion gross injustice to society.

1.3 Conclusion

In summary, Amkeyo’s case was a deliberate imperialist machination to subjugate African culture. Cultural imperialism was at work and imperial colonial courts were better placed to achieve its objectives because they gave it a disguised legal and humane face. Hyde’s case was used to determine the validity of African customary marriages, but in the same judgment, Lord Penzance, observed that, “Therefore, all that the Courts of one country have to determine is whether or not the thing called marriage – that known relation of persons, that relation which those Courts are acquainted with, and know how to deal with – has been validly contracted in the other country where the parties professed to bind themselves. If the question is answered in the affirmative, a marriage has been had; the relation has been constituted; and those Courts will deal with the rights of the parties under it according to the principles of the municipal law which they administer.” The rationale was that a marriage between two persons competent to contract marriage and valid by the law of the place where it was contracted is valid in the whole world. The British colonial judges deliberately ignored this principle in furtherance of imperialism the result of which was that all people who had married under African customs, by the stroke of the pen, were not married anymore.

There was even an earlier decision in 1915 of R Vs Oumu s/o Achada [10] which recognised African customary marriages but it was deliberately not followed. In that case, Carter, C.J, and Barrett, J, interpreting the principle in Hyde’s case, rightly observed that “To apply that principle to a local Ordinance would be to sin against the rule of interpretation which attributes to the legislature or law giver knowledge of the general, religious, social, and political condition of the community or communities whom it is intended to affect, and the meaning of the common words used by them. For this reason we think that ‘the wife or husband’ in Section 121 of the Ordinance import one of two persons who have formed a union treated as a marriage by the laws of Christendom, or by the laws or customs of the nation, race or sect to which they belong. It follows from what we have said that prisoner’s wife was, and is disabled from giving evidence against him in respect of the murder charge.”
The good news is that Alai’s case salvaged the situation by overruling the bad law in Amkeyo. It meant that people who previously weren’t ‘married’ were validly married once more. Ever since Alai’s case, African customary marriages have enjoyed the dignity they are worthy of.


Notes and References

1. A.S Hornby, A.P Cowie & A.C Gimson, Oxford Advanced Learner’s Dictionary Of Current English, Oxford University Press, Seventeenth Impression, 1983 at p.529

2. Osborne’s Concise Law Dictionary, 8th Edition at p.213

3. Ibid, at p.256

4. www.lawteacher.net

5. Re: Hallett (1880) 13 Ch. D.712

6. [L. 1 P R.].& D. 130

7. (1917) 7 E.A.L 14

8. [1963] E.A. 188

9. [1967] E.A. 596

10. (1910-20) 2 U.L.R 152; Khiddu-Makubuya, Introduction To Law: The Uganda Case, at pp.417-418