By Bakampa
Brian Baryaguma
1.
Introduction
A.
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,[3]
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 ….’
B.
Precedent
According to Osborne,[4]
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. It’s also defined as, ‘A
judgment or decision of a court, normally recorded in a law report, used as an
authority for reaching the same deciston in subsequent cases.’[5]
Sir George Jessel said that, ‘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.’[6]
Precedent rotates on two principles namely:–
(a)
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.
(b)
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.
2.
Introduction
and Application of the Doctrine of Precedent in East Africa
For long, the doctrine of precedent has been relevant, and
decisive, 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.
A.
The Colonial Era
It is on this premise that decisions like that of Hyde vs Hyde & Woodmansee,[7]
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,[8]
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,[9]
such that the vulgar and derogatory definition that Hamilton gave to African
marriages was consistently invoked.
By 1963, the courts still deemed our marriages to be
exchanges of chattels i.e. women, amongst men! Hence in Abdulrahman Bin Mohamed and Another vs R,[10]
the Court of Appeal for East Africa held that, ‘The marriage appears to have all the elements of “wife purchase,” the
description given to an African customary marriage in Amkeyo’s case.’
(Emphasis added).
B.
The Post-colonial Era
Soon after colonialism, in most African states (including
East Africa), African Judges ascended 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.[11]
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. While the Magistrate bore the belief expressed in Amkeyo’s
case, he nevertheless found it necessary to seek guidance of the High Court. In
response, Sir Udo Udoma, C.J. (as he then was), 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.’[12]
The Chief Justice declared a marriage valid and legal, if held under a valid
custom.
Consequently, Alai’s case is the precedent on the
validity of African customary marriages, in the post-colonial era.
3.
Role
and Implications of the Doctrine of Precedent
The two precedents, of Amkeyo
and Alai, played a pivotal 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 on another on points of law. For this reason, R vs Amkeyo was, for virtually the whole
colonial period, the law governing the validity of African customary marriages.
But right now, Alai vs Uganda is the
law governing such marriages, again due to the same principle.
Precedent also fills up lacuna in written law, since written
laws cannot be totally exhaustive. Judicial interpretations and declarations
therefore, play a pivotal role in the development of law, sometimes rendering
ad hoc legislation necessary. For instance, the enactment of The Customary Marriage (Registration) Act,[13]
can be attributed to the 1967 decision in Alai
vs Uganda,[14]
which highlighted the need for a codified 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.
4.
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.
While Hyde’s case was used to determine the
validity of African customary marriages, based on Christian standards, it’s
noteworthy that 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 in this statement is 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. If anyone doubts that this was imperialism at work, then
the fact that there was an earlier decision in 1915, of R vs Oumu s/o Achada,[15]
which recognized African customary marriages, but was deliberately ignored, and
not followed, is your answer.
In that case, Carter, C.J, and Barrett, J (as they were
then), 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
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