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Repugnance

BACHELOR OF LAW (Uganda Christian University)

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QUESTION:

The repugnance clause died with the enactment of the 1995 Constitution per Ketra Ahebwa
LLB1, do you agree?

According to Merriam Webster, repugnance is the quality or fact of being contradictory or

inconsistent to the existing rule of natural justice, good conscience and morals. The repugnance
clause of Uganda emerged from the 1902 Order in Council which formalized colonial rule in
Uganda and was the fundamental law o the protectorate. The 1902 Order in council was in
exercise of power granted to His majesty’s government under the foreign Jurisdiction Act of
1890 to legislate with regards to foreign territories of the United Kingdom.

The repugnance clause was provided for under Article 20 of the 1902 Order in Council, which
provided that in all cases, criminal and civil to which natives were parties, every court shall be
guided by native law so long as its applicable and is not repugnant to natural justice and morality
or inconsistent with any order-in-council or ordinance or any regulation or rule made under any
order-in-council or ordinance. In august 1962, the British parliament passed an act, called the
Uganda independence act which, inter alia, provided that; “as from 9 October, the territories
comprised in the Uganda protectorate will together form part of her majesty’s dominions with the
name of Uganda and henceforth her majesty’s government will have no responsibility for the
government of Uganda, and no act of parliament of the united kingdom passed after that date
shall extend to Uganda. The colonial laws validity act of 1865 will no longer apply to any law
made by the Ugandan legislature and no such law can be rendered void on account of
repugnance to the law of England.

The repugnance clause was intended to remove those customs and laws that were considered
negative and repugnant to natural justice and good conscience, however, the enactment of the
1995 constitution still supported the existence of the customs and therefore, it did not die. It is
applicable after the enactment of the 1995 constitution in the following ways;

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Section 15 of the Judicature Act1 reiterates the substance of the repugnance clause of the 1902
order-in-council. Both laws seek to enforce customs which are not repugnant to natural justice,
equity and good conscience. This is clearly seen in the case of Law and Advocacy for women
vs. Attorney General2, where we see Justice Twinomujuni reproducing an affidavit of Gertrude
Chelangat Kulany3 in support of the second issue about Female Genital Mutilation which was
practiced in eastern Uganda and was against natural justice. This led to the cancellation of the
practice among the Sabiny in order to preserve the natural justice of the people hence the
existence of repugnance.

The repugnance clause is also seen in the continued consideration of the conditions required to
determine customs in a cultural setting. These include; the custom being used for a long period of
time, being recognized by the elders of the culture and thus known by all the people in the
territory, being accepted as part of the law in that culture and not being repugnant to natural
justice4.

Considering a custom being part of the law in that culture, the existence of the repugnance clause
is seen in the case of Bruno Kiwuwa v Ivan Sserunkuma and Juliet Namazzi 5 were we see
that it was against the Buganda traditions for a man to marry a lady from the same clan.
Kiwuwa’s attorney Wycliffe Birungi said celebration of marriage under the Marriage Act may be
stopped in case it violated the established customs. Birungi told court that Namazzi and
Sserunkuma did not hold any formal introduction ceremony and that they did not obtain
Kiwuuwa’s consent before their marriage as required in the Buganda culture and in the church.
He argued that according to the customs of Buganda, one is not allowed to marry a member of
the same clan because they were considered to be relatives and such marriages contravened
culture and morality and thus submitted that such marriage was abominable, immoral, unethical,
uncustomary and illegal among the Baganda, adding that it was unacceptable among right-
thinking members of the society6. The marriage was therefore nullified as it was contrary to the
law and Marriage Act hence the continued living of the repugnance clause.

1 Cap 13 which came into force in 1996 after the enactment.

2 Constitutional petition No.8 of 2007
3 Page 4 of the case of Law and Advocacy for women v AG
4 Case of Mwenge v Migadde [1932-5] ULR 97
5 Constitutional Appeal No.2 of 2014
6 NTV https://www.newvision.co.ug <accessed on 8/10/19 at 8:59am

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Repugnance is still in existence basing on the cultural determinant of a custom being used for a
long period of time. This is clearly seen in the case of Mifumi (U) LTD vs. AG and Kenneth
Kakuru7, where we see that payment of bride price before marriage was the long time condition
for marriage, and this is the precedent condition in most Ugandan cultures. In this case, there was
a question about bride price, brought under Articles 2(1), (2), 137(3), 93(a) and (d) of the
Constitution of the Republic of Uganda, where it was held that bride price as a custom was not
“bride purchase” as Mifumi (U) presented it, but just a mode of appreciation to the girl’s parents
on top of being a sign of responsibility from the groom 8. Therefore payment of bride price
remained an honorable custom as it was not repugnant to natural justice thus the continued
existence of the repugnance clause.

The existence of repugnance is also seen basing on the cultural factor that a valid custom must
not be repugnant to natural justice as per the Judicature Act Section 15(1) 9.this is clearly seen in
the case of Best Kemgisha v Mable Komuntale and another 10, where it was held that
“Kemigisha could control her husband’s empire under Article 21 and 31(1) of the 1995
Constitution of the Republic of Uganda, something which was totally unheard of in the
history of Uganda of a woman owning and managing property” 11. It should be remembered
that women were not allowed to own or manage property but it was to men only. However, this
was inconsistent with natural justice which calls for equality for all people, male and female, and
therefore the repugnance clause prevails.

Considering the case of Suzan Kigula v AG12, the repugnance clause is seen to be still in
existence as per the arguments of Suzan Kigula and others challenging the constitutionality the
death penalty under the constitution of Uganda, which they said contradicted the principles of
natural justice and good conscience. The respondents were all persons who at different times had
been convicted of diverse capital offences under the Penal code Act and had been sentenced to
death as provided for under the laws of Uganda. They contended that the sentence was

7 Constitutional Petition No.12 of 2007[2010] UGCC 2(26March2010)

8 Appeal from the judgment of the Constitutional Court sitting at Kampala delivered on 20th March 2010. (Mukasa-
Kikonyogo, D.CJ, Mpagi-Bahigeine, Twinomujuni, Byamugisha and Kavuma, JJA) in Constitutional Petition No.
12 of 2007
9 Cap 13 which came into force in 1996
10 Civil suit No.MFP5/1998, High court
11 Derived from Conflict_of_Laws 2 pdf pp.5
12 Constitutional appeal No.3 of 2006

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inconsistent with Articles 24 and 44 of the constitution. The affidavit that Mr. Okwanga
presented13 was neither challenged by the appellants in the court below nor contradicted. FMS
Egonda Ntende, the acting Justice of the Supreme court accepted the evidence of the respondents
as it clearly showed that hanging as practiced fails to meet the test of “the least possible
physical and mental suffering” as had been set by the Human Rights Committee under the
International covenant on civil and political rights14 and was therefore inconsistent with the
principles of natural justice and good conscience. He added in his view that it was the duty of the
parliament to legislate the manner in which the death penalty should be carried out, and the
parliament was obliged to take into account the dictates of the constitution, including ensuring
that the method it established was not cruel, inhuman and degrading treatment and or punishment
considering Articles 24 and 44 of the constitution. This shows that the repugnance clause did not
die after the enactment of the 1995 Constitution of Uganda.

The repugnance clause is also seen to be in existence in the case of UNRA v Irumba Asuman
and Peter Magelah15on the issue of land acquisition. Irumba Asuman and Peter Megelah
hereinafter referred to as the respondents filed a petition against the Attorney General who was
the first respondent and the Uganda National Road Authority which was the second respondent
under Article 137 (1) (2) and (3) of the Constitution challenging the constitutionality of Section 7
of the Land Acquisition Act (Cap 226) of the Laws of Uganda. They alleged that the Act was in
contravention of Article 26 of the Constitution and there were supporting affidavits to the
petition. The Uganda National Roads Authority, hereafter referred to as the appellant, denied that
the impugned section contravened the Constitution. The first issue in this case was whether
Section 7 of the Land Act was inconsistent with Article 2(b) of the constitution of the Republic
of Uganda. The Constitutional Court held that since section 7(1) of the Land Acquisition Act
does not provide for prior payment of compensation before government takes possession or
before it acquires any person’s property to that extent it is inconsistent with and contravenes
articles 26(2) (b) of the Constitution. After holding so however, the Constitutional Court noted
Article 274 of the Constitution which states: “(1). Subject to the provisions of this article, the
operation of the existing law after the coming into force of this Constitution shall not be
affected by the coming into force of this Constitution but the existing law shall be construed
13 Page 91-96 of the Suzan Kigula v AG case
14 Pp 97 of the case
15 Constitutional Petition No 40 of 2012

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with such modification, adaptations, qualifications and exceptions as may be necessary to

bring it into conformity with this Constitution”. The Constitutional Court noted that the Land
Acquisition Act commenced on the 2nd July 1965 that is thirty years before the coming into force
of the 1995 Constitution. 16 This shows that the repugnance clause did not die after the enactment
of the 1995 Constitution of Uganda as the Constitution calls for compensation and prior payment
which is in support of natural justice and good conscience.

In the Lokodo v Nyegenyege case17, we see the Minister for ethics and integrity, Lokodo closing
down a workshop that had been organized by the Nyegenyege who claimed having a peaceful
advocacy workshop. However despite the numerous arguments, Hon. Justice Stephen Musota
held that Lokodo closed the workshop to promote the public morals, “I agree with learned
counsel for the respondents that the Minister acted in public interest of Uganda to protect
public moral standards which fall under his docket.” 18 Some of the issues that were presented
were whether by organizing and attending the workshop at Imperial Resort Beach Hotel, the
applicants were engaging in illegal and unlawful activities, and whether the applicants’
Constitutional rights were unlawfully infringed when the second respondent closed down their
workshop. Basing on the respondents’ affidavits that were presented before Hon. Justice
Stephen, it was very clear that the applicants were engaging in unlawful activities “…..which
was attended by homosexuals aimed to encourage participants to engage in and promote same
sex practices. Further that it aimed to equip them with individual and organizational
knowledge and skills to further their objective of promoting same sex practices. That the
Minister closed the workshop on the ground that the applicants were using it to promote and
encourage homosexual practices which were unacceptable and unjustifiable in a country
whose laws prohibit such practices.” 19 As rightly submitted by learned counsel for the
respondent, Article 43 of the Constitution permits limitations of human rights in the public
interest. Under the Constitution, these rights are guaranteed to all persons. However they don’t
fall within the category of non-dirigible rights under Article 44. Therefore the exercise of such
rights can be limited in certain instances. Hon. Justice Stephen held that Article 43 of the

16 An appeal from judgment and orders of the Constitutional Court (Kasule, Mwangusya, Mwondha, Kakuru,
Kiryabwire JJA) in Constitutional Petition No 40 of 2012 delivered at Kampala on 8th November, 2013
17 Misc. Cause No.O33 Of 2012
18 Page 5 of the Lokodo v Nyegenyege case
19 Page 5 of the Lokodo v Nyegenyege case

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Constitution of the Republic of Uganda recognizes that the exercise of individual rights can be
validly restricted in the interest of the wider public as long as the restriction does not amount to
political persecution and is justifiable, acceptable in a free democratic society. Whereas the
applicants were exercising their rights of expression, association, assembly etc, in so doing, they
were promoting prohibited acts which amounted to action prejudicial to public interest.
Promotion of morals is widely recognized as a legitimate aspect of public interest which can
justify restrictions. International Human Rights Instruments reflect this aspect. For example
Article 27 of the African Charter of Human and Peoples’ Rights (ACHPR) states that:-
“The rights and freedoms of each individual shall be exercised with due regard to the rights of
others, collective security, morality and common interest.” ACHPR also recognizes
that:-“17(3). The promotion and protection of morals and traditional values recognized by the
community shall be the duty of the state.
29(7) ………. every individual has a duty to preserve and strengthen positive African cultural
values and to contribute to the moral well being of society” 20. Under our domestic law, the
heading to Chapter XIV of the Penal Code Act is “Offences against Morality.” Under this
chapter, several acts including homosexual acts are prohibited because they are contrary to
Ugandan moral values. This clearly shows that after the enactment of the 1995 Constitution of
the Republic of Uganda, the repugnance clause still stands as the constitution still provides for
natural justice, good conscience and morals.

However, there are some strains that indicate that the repugnance clause died; a case in point is in
the dima domnic poro v inyani and anor case, where we see a land conflict between dima the
appellant and two respondents. Dima is seen to have inherited land from his father but being that
he had no administrative documents, he lost his land to the respondents as it was held that
customary ownership of land should be coupled with the possession of a land title or
administrative documents but not only off head knowledge of ownership by inheritance which is
against natural justice and good conscience thus the death of the repugnance clause.
In conclusion, the repugnance clause did not die with the enactment of the 1995 Constitution;
however, many modifications were made in the constitution in favor of the clause to maintain the
motive of natural justice, good conscience and morals. This is clearly seen with the continued

20 Page 9 of the Lokodo v Nyegenyege case

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defense of the ideas of natural justice, good conscience and morals in the constitution along with
penalties in the Penal code Act21 for breach of ideas in the repugnance clause of 1902
REFERENCES
Constitution of the Republic of Uganda 1995

The Judicature Act Cap 13

Case Law;

-Law and advocacy for women v AG (Constitutional petition No.8 of 2007)

-Bruno Kiwuwa v Ivan Sserunkuma and Juliet Namazzi (Constitutional Appeal No.2 of
2014)

-Mifumi (U) Ltd v AG and Kenneth Kakuru (Constitutional Petition No.12 of 2007[2010]
UGCC 2(26March2010))

-Best Kemigisha v Mable Komuntale and another (Constitutional Petition No.12 of

2007[2010] UGCC 2(26March2010))

-Suzan Kigula v AG (Constitutional appeal No.3 of 2006)

-UNRA v Irumba Asuman (Constitutional Petition No 40 of 2012)

- Lokodo v Nyegenyege (Misc. Cause No.O33 Of 2012)

21 Cap 120.

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