• Customary Law
  • Constitutional Law

Why Africanist Judges Must Trash Repugnancy Tests

Article by Kabazzi Maurice Lwanga


The theme is that the doctrine of repugnancy via customary law is irrational and must be abandoned. The repugnancy doctrine was used as a hegemonic control of African laws. It lacks clear guidelines for the invalidation of customary law. This note argues that the repugnancy test has no doctrinal value and normative standards capable of articulation. Otherwise, the judges’ power under Article 126 (2) (e) of the Ugandan Constitution to administer justice in accordance with the aspirations and values of the people need to be guided in respect to customary law. It concludes that the retention of the repugnancy principle is unconstitutional and should be replaced by judicial flexibility applying the National Objectives and Directive Principles of State policy under the 1995 constitution.

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