The judge referred to Section 9 of the Institution of Traditional or Cultural Leaders Act, 2011.
Court has ruled that the Kabaka of Buganda has absolute authority to resolve the Kkobe clan leadership row.
In his ruling dated July 12, 2019, Justice Musa Ssekaana of the Civil Division of the High Court pronounced that the institution of the Kabaka is statutorily-mandated to resolve such disputes.
He referred to Section 9 of the Institution of Traditional or Cultural Leaders Act, 2011.
The battle over Namwamaship (Kkobe clan head), is between Joseph Nsereko Byekwaso III and Augustine Kizito Mutumba.
An aggrieved clan member Prosper Lwamasaka, petitioned against the Kabaka of Buganda, and clan steward James Muteweta.
Lwamasaka lamented that he had been denied Constitutional right to enjoy cultural belonging.
Lawyer Male Mabirizi also petitioned, insisting the Byekwaso estate was illegally holding clan land; over 5,000 acres in Buwama, Mpigi district, and some in the city suburb of Lubaga.
The judge emphasised it would be illogical for the courts of judicature to meddle in such complex cultural matters.
“The current dispute presented in both consolidated applications (Mabirizi and Lwamasaka) can better be resolved by traditional systems within the Buganda Kingdom. The court would not competently resolve the issue of who is the proper head of the Kkobe Clan,” Ssekaana stated.
“The parties are advised to refer their dispute to the Kabaka of Buganda to address their grievances through their established dispute resolution mechanism.”
Court documents show Nsereko’s forefathers have carried the hereditary Namwamaship title.
But Mutumba was installed on the prompting of a Buganda tribunal court(Court Ya Kisekwa) decision of September 26, 2001, after Nsereko’s father Leonard Kiragga(39th Namwama), was dismissed.
Consequently, Kabaka directed Muteweta to devise appropriate means for a lasting solution.
But Lwamasaka alleged Muteweta disregarded Kabaka’s directive and installed Mutumba.
Court documents show a memorandum of understanding, dated June 19, 2014, drafted by Mutumba, asking Nsereko to renounce ownership of part of the land, considered cultural grounds.
Mutumba said he was ready to give up in exchange for the non-confrontational pursuit of the entire land. But Nsereko outrightly rejected the proposal, insisting it was family land.
Ssekaana observed that it would be foolhardy for courts to be scoffed at and harshly judged by the public.
“The legitimacy and acceptability of decisions of courts of law which may not be based on informed or known cultural and customs of the given society, tribe or area will be subject to ridicule and may become a recipe for disaster,” said Ssekaana.
He emphasised that it is equally fundamental to reflect Uganda traditional culture and principles in a meaningful way within the new constitutional dispensation.
The Judge explained that the flexible nature of customary law, along with its ability to develop to adapt to changing circumstances, implies it is not possible to identify a unified system on how to resolve disputes in every traditional system of every tribe or ethnicity.
“The courts are too westernised to handle cultural and customary issues. The laws and the persons who may be faced with a cultural or custom dispute may sometimes be foreign to the given cultural area.
It would be prudent to refer such disputes always to the King or the Traditional or cultural Leader since they are custodians of such cultural institutions, customs, practices and norms.
“The courts should discourage such petty issues like (who is the rightful ‘heir’, ‘family head’, ‘clan head’, ‘chief prince’, ‘sub-clan head’ who has a cultural duty in the clan or determination of the hereditary positions in a clan) to be dragged to court.
“Such issues are better dealt with through the established mechanism of a particular community or dispute resolution mechanism in the given culture or tribe under their customary justice system or dispute resolution.”