Let the Umukuuka’s Five-Year Tenure Develop as Custom, Not Through Codification

By Hon. Steven Masiga

The question of the tenure of the Umukuuka of Bamasaaba has generated considerable debate within the Bamasaaba community, particularly following recent judicial pronouncements concerning the leadership and constitutional arrangements of the Bamasaaba Cultural Institution.

At the centre of this debate is a fundamental jurisprudential question: Should the five-year tenure of the Umukuka be formally enacted into written law, or should it be allowed to develop and mature as a customary practice of the Bamasaaba people?

My position is that the Bamasaaba should allow the five-year tenure of the Umukuuka to continue developing as a custom of the community rather than rushing to codify it into legislation. Custom, by its very nature, grows from the practices, beliefs, experiences and collective acceptance of a people. It should not always be hurriedly converted into written law before it has fully matured.

Custom as a source of law

Legal jurisprudence has for centuries recognised custom as one of the important sources of law. Communities have historically developed rules of conduct through repeated practices that, over time, acquire acceptance and authority.

The historical school of jurisprudence, associated with scholars such as Friedrich Carl von Savigny, strongly emphasised that law is not simply something manufactured by legislators. Rather, law grows organically from the life, traditions, practices and consciousness of a people.

Savigny and other scholars of his time were critical of attempts to rapidly codify laws without sufficiently considering the historical development of the societies to which those laws applied. Their argument was essentially that law should not be divorced from the social realities and customs from which it emerges.

This principle is particularly relevant to the Bamasaaba cultural institution.

The Bamasaaba have operated a cultural institution for many years, and through their collective practice, the community established a five-year tenure for the Umukuuka. The recent court guidance that the five-year tenure should be maintained therefore provides an opportunity for the community to reflect on whether this practice should immediately be converted into written law or allowed to continue developing as customary law.

The five-year tenure as an emerging custom

The Bamasaaba community decided in 2011 that the Umukuuka would serve for a period of five years.

The practice has subsequently continued and has become an important part of the governance of the cultural institution. The argument, therefore, is that where a community has consistently practised a particular arrangement and collectively accepted it, that practice can progressively acquire the character of custom.

The fact that the Traditional or Cultural Leaders framework does not expressly prescribe the length of tenure for every cultural leader does not necessarily mean that individual cultural institutions have no authority to develop their own customary practices.

Different cultural communities have historically developed different systems concerning succession and tenure.

In some communities, a cultural leader serves for life. In others, leadership may be subject to a defined period or other customary arrangements. This diversity demonstrates that cultural governance cannot necessarily be reduced to one uniform model.

For the Bamasaaba, the five-year period can therefore be regarded as an emerging customary rule governing the tenure of the Umukuuka.

The critical question is whether the community itself accepts and consistently observes that practice.

Custom should not be imprisoned by premature codification

There is a danger in rushing to convert every customary practice into legislation.

Once a custom is rigidly codified, it may lose the flexibility that allows communities to adjust their practices in response to changing circumstances.

Customary law is capable of evolving. It grows with society.

If the Bamasaaba community continues to observe the five-year tenure, discusses it at cultural gatherings and accepts it as the appropriate period for its cultural leader, the practice will progressively acquire greater customary legitimacy.

Codification, on the other hand, may transform a living custom into a rigid legal provision that future generations may find difficult to adjust.

The objective should therefore not be to prevent the community from developing its customary law, but to create space for the community to deliberate, agree and establish practices through collective participation.

An example from the United States

The history of presidential tenure in the United States provides an interesting illustration of how political conventions can develop before eventually being written into law.

For much of the early history of the United States, the two-term tradition associated with President George Washington operated primarily as a political convention rather than as an explicit constitutional term limit.

Washington voluntarily stepped down after two terms, and subsequent presidents generally followed that precedent.

It was only after President Franklin D. Roosevelt was elected to more than two terms that the United States eventually moved to constitutionally entrench the presidential term limit through the Twenty-Second Amendment.

The lesson from this history is not that cultural customs must eventually be codified, but rather that conventions and practices can acquire considerable authority through consistent observance before formal legal intervention becomes necessary.

Similarly, the Bamasaaba should not assume that because the five-year tenure is not currently codified, it has no legitimacy.

A custom may derive its authority from the acceptance and practice of the community.

What is customary law?

Customary law can broadly be understood as a body of unwritten rules, practices and traditions that regulate conduct within a particular community and which the members of that community recognise as binding.

Black's Law Dictionary describes customary law in terms of customs that have acquired recognition as legal requirements or rules of conduct, including practices and beliefs forming part of the daily life of a community and treated as having legal significance.

Historically, customary systems also had mechanisms for enforcement. Communities could impose sanctions on those who violated established norms, although the nature of such sanctions varied from one society to another.

The important point is that customary law does not necessarily begin in a statute book.

It often begins with practice, acceptance and repetition.

The Bamasaaba therefore have an opportunity to allow their own cultural governance arrangements to develop organically.

Section 3 and the importance of cultural customs

The legal framework governing traditional and cultural leaders recognises the importance of traditions and customs in the operation of cultural institutions.

This recognition provides room for communities to organise aspects of their cultural affairs according to their traditions and established practices, provided that such practices remain consistent with the law.

The Bamasaaba should therefore use this space responsibly.

Rather than immediately seeking legislation to establish a five-year tenure, the community can continue practising it, discussing it and affirming it through recognised cultural structures.

If, after several cycles of leadership, the community continues to accept the five-year tenure, that practice will become increasingly entrenched as a customary norm.

Different communities, different customs

Uganda's cultural institutions demonstrate that there is no single approach to the tenure of cultural leaders.

Different communities have developed different traditions concerning succession, appointment and the duration of cultural leadership.

For example, some cultural leaders traditionally remain in office for life, while others serve for defined periods.

This diversity should be respected because cultural institutions derive much of their legitimacy from the people and traditions they represent.

It would therefore be inappropriate for an individual, regardless of position, to unilaterally determine the duration of the tenure of a cultural leader.

The community should be the ultimate source of the customary rule.

In Bugisu, if the Bamasaaba have collectively accepted a five-year tenure, then that practice deserves an opportunity to develop through continued observance and community consensus.

The role of the Bamasaaba cultural conference

One practical way of preserving the community's authority over this matter would be to establish or strengthen a regular cultural conference at which the Bamasaaba can deliberate on important institutional questions.

Such a conference could meet at designated intervals—perhaps every ten years—to review the cultural institution, assess its governance arrangements and reaffirm or modify practices where necessary.

This would ensure that the tenure of the Umukuuka remains a matter for the people rather than an instrument of personal or factional interests.

If the community agrees that five years remains appropriate, the practice would be reaffirmed.

If circumstances change and the community believes a different tenure is necessary, the people would have the opportunity to make that determination.

This is the essence of participatory customary governance.

The ancient democratic principle

There is also a lesson to be drawn from ancient Athens, where citizens participated in deliberations concerning the governance of their society.

While modern democratic institutions are very different from ancient political systems, the underlying principle remains relevant: those governed by a rule should have a meaningful opportunity to participate in determining that rule.

The Bamasaaba should therefore not allow the question of the Umukuka's tenure to become the property of a few individuals.

It belongs to the wider community.

The people should discuss it, agree on it and, where necessary, modify it through established cultural processes.

The natural law perspective

Natural law jurisprudence also provides an important perspective.

Natural law scholars generally argue that law is connected to reason, morality, justice and the nature of human society. Legal rules do not exist in isolation from the communities they regulate.

One of the long-standing principles associated with legal reasoning is that people should honour agreements and commitments that they have collectively and legitimately made.

If the Bamasaaba community has accepted a five-year tenure for its cultural leader and continues to honour that arrangement, there is a strong argument for allowing the practice to develop organically.

The community's continued acceptance would give the custom greater legitimacy over time.

The High Court's guidance and the opportunity before the Bamasaaba

The recent High Court guidance concerning the Constitution of the Bamasaaba people presents an opportunity for broader consultation and reflection.

Rather than interpreting the court's intervention as an invitation for a few individuals to impose new rules, the Bamasaaba should view it as an opportunity to return fundamental questions of cultural governance to the people.

The Constitution of the cultural institution should be subjected to extensive consultation so that members of the community can participate in determining the future of their institution.

This includes the question of the tenure of the Umukuuka.

The community has the ability to pronounce itself on the matter through a properly constituted cultural conference or other legitimate consultative mechanism.

Avoiding personalisation of cultural leadership

The most dangerous approach would be to personalise the question of tenure.

The tenure of the Umukuuka should not be determined by the ambitions, preferences or interests of an individual.

Neither should the cultural institution become a battleground in which competing individuals attempt to manipulate customary arrangements for personal advantage.

The question should instead be framed institutionally:

What tenure does the Bamasaaba community want for its cultural leader?

Once the community answers that question through a legitimate and inclusive process, everyone should respect the outcome.

Let custom grow

The Bamasaaba are not without legal authority or cultural wisdom.

Their history, traditions and collective practices provide the foundation upon which their cultural institution can continue to develop.

The five-year tenure of the Umukuuka should therefore be allowed to grow as a customary practice.

If the community continues to observe it, the practice will acquire greater customary force. If future generations believe that it should change, the community can collectively make that determination.

There is no need to imprison a living custom in rigid legislation before it has fully matured.

The strength of customary law lies precisely in its ability to evolve with the people.

The Bamasaaba should therefore embrace consultation, consensus and continuity. Let the people meet. Let them deliberate. Let them agree. Let them observe the rule they have collectively established. 

And if, after years of experience, the community determines that the five-year tenure should be permanently entrenched in written law, then that decision should come from the Bamasaaba themselves.

Cultural leadership belongs to the community, and the community—not an individual—should determine the nature, duration and future of its cultural institution.

The Bamasaaba should therefore resist attempts to impose tenure arrangements from above and instead allow their customary law to develop through collective practice, community acceptance and periodic cultural deliberation.

That is how a living cultural institution grows.

That is how custom becomes law.

And that is how the Bamasaaba can preserve both the dignity of the Umukuuka institution and the sovereignty of the people it represents.

The writer, Hon. Steven Masiga, is a legal scholar and Spokesperson of the Bamasaaba Cultural Institution. Tel: 0782231577