gained in the previous section to critique policy and legal regulation of land and soil
rights as embodiments of the oppressive ideology of patriarchy. The current policy
and legal norm in majority of African countries was exported to Africa during the era
of colonization.
47 Land and necessarily soil are the vital aspects of the earth’s
physical features, which should be enjoyed by all human beings without restriction.
Indeed, some of the problems associated with land tenure systems and soil rights on
the African continent are closely linked to the physical and demographic features
that exist in a particular country.
It is noteworthy that policies and laws governing land and soil rights in Africa
were crafted within the purview of the ideology of patriarchy which potentially
edges out the socially and economic weak in regard to land and soil rights. The role
of these policies and laws is better understood when the role of courts, which too, are
a creature of western colonial rule is made clear. In support of this view, Morris
asserts:
[T]hese courts (in the British colonies) administered basically English law, that is to say the
common law, the doctrines of equity and the English statutes of general application in force
on a specific date, together with certain Indian Acts, which represented the nineteenth
century English law in a codified, and somewhat rationalised, form.
48
Sadly, the British law as exported to Uganda and other African countries was not
all in written form so that it could be understood and applied with certainty. It
embodied the unwritten common law and principles of equity, hitherto unknown
within the fabric of the African and specifically, the Ugandan society.
The hidden impact of colonial law on land tenurial systems and their regulation of
soil rights in the Africa could only be inferred from the language of the written law
that incorporated them. Moreover, imported English law sought to edge out African
customary law, by including a repugnancy clause in the national law. To date, this
ideological legal hangover still informs the laws of many African countries including
Uganda. For example the Ugandan Judicature Act provides:
‘[c]ommon law’ and ‘doctrines of equity’ mean those parts of the law of Uganda, other than
the written law, the applied law or the customary law, observed and administered by the
High Court as the common law and the doctrines of equity respectively.
49
In furtherance of this ideology, the Judicature Act provides:
[N]othing in this Act shall deprive the High Court of the right to observe or enforce the
observance of, or shall deprive any person of the benefit of, any existing custom, which is not
repugnant to natural justice, equity and good conscience and not incompatible either directly
or by necessary implication with any written law.
50
47 Ahmed (1999).
48 Morris (1970).
49 The Judicature Act, Cap. 13 (Uganda), section 14 (5).
50 The Judicature Act, Cap. 13 (Uganda), section 15 (1).
African Feminism, Land Tenure and Soil Rights in Africa: A Case of Uganda
143
rights as embodiments of the oppressive ideology of patriarchy. The current policy
and legal norm in majority of African countries was exported to Africa during the era
of colonization.
47 Land and necessarily soil are the vital aspects of the earth’s
physical features, which should be enjoyed by all human beings without restriction.
Indeed, some of the problems associated with land tenure systems and soil rights on
the African continent are closely linked to the physical and demographic features
that exist in a particular country.
It is noteworthy that policies and laws governing land and soil rights in Africa
were crafted within the purview of the ideology of patriarchy which potentially
edges out the socially and economic weak in regard to land and soil rights. The role
of these policies and laws is better understood when the role of courts, which too, are
a creature of western colonial rule is made clear. In support of this view, Morris
asserts:
[T]hese courts (in the British colonies) administered basically English law, that is to say the
common law, the doctrines of equity and the English statutes of general application in force
on a specific date, together with certain Indian Acts, which represented the nineteenth
century English law in a codified, and somewhat rationalised, form.
48
Sadly, the British law as exported to Uganda and other African countries was not
all in written form so that it could be understood and applied with certainty. It
embodied the unwritten common law and principles of equity, hitherto unknown
within the fabric of the African and specifically, the Ugandan society.
The hidden impact of colonial law on land tenurial systems and their regulation of
soil rights in the Africa could only be inferred from the language of the written law
that incorporated them. Moreover, imported English law sought to edge out African
customary law, by including a repugnancy clause in the national law. To date, this
ideological legal hangover still informs the laws of many African countries including
Uganda. For example the Ugandan Judicature Act provides:
‘[c]ommon law’ and ‘doctrines of equity’ mean those parts of the law of Uganda, other than
the written law, the applied law or the customary law, observed and administered by the
High Court as the common law and the doctrines of equity respectively.
49
In furtherance of this ideology, the Judicature Act provides:
[N]othing in this Act shall deprive the High Court of the right to observe or enforce the
observance of, or shall deprive any person of the benefit of, any existing custom, which is not
repugnant to natural justice, equity and good conscience and not incompatible either directly
or by necessary implication with any written law.
50
47 Ahmed (1999).
48 Morris (1970).
49 The Judicature Act, Cap. 13 (Uganda), section 14 (5).
50 The Judicature Act, Cap. 13 (Uganda), section 15 (1).
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143