10/10/2026
A REVIEW OF THE CONSENT JUDGMENT - QUESTIONS FOR BA'MASAABA TO PONDER
Background: Inzu Ya Masaaba has for years been under a leadership dispute that ended in a Consent Judgment in Court. A Consent Judgment is not a judgment won after fighting. It is an agreement where both parties say to Court: "We have agreed, please record it as law."
But Ba'Masaaba on the ground are still asking: What did we actually sign?
QUESTION 1: Was the signing a DECLARATION or something to CONSIDER?
A Consent Judgment under law is BOTH - but we must separate:
a) As a Declaration: It declares that the dispute before that specific court is settled. The court closes the file. It is final for those parties who signed.
b) As something to Consider: Under Ba'Masaaba Custom, Umukuuka is not made in Court. Umukuuka is made by a general assembly, clans, by rituals (Imbalu, Khukhwalikha, Lulomo, Tsisambo, etc), by the people. The Court cannot enthronize. The Court can only say "follow your Constitution."
Therefore, Ba'Masaaba must ask: Did the Consent Judgment declare WHO is Umukuuka, or did it declare the PROCESS to get a Umukuuka?
By declaring a person, it went beyond custom. By restoring declaring IYM constitution it meant to follow a process, it is something to consider and implement through custom.
Confusion comes from this: Lawyers celebrated a legal victory. Elders waited for a cultural coronation. Two different languages.
QUESTION 2: Was it necessary for a panel of Justices to assign someone to do the implementation, or was it a duty for the customs of the cultural institution?
This is the most critical question.
By law, when a Consent Judgment is about a cultural institution, the *implementation is NOT for Judges. The Judges role ends at recording the agreement.
Implementation belongs to:
1. The Cultural Constitution of Inzu Ya Masaaba - What does it say about succession, Umukuuka - making, Council of Elders?
2. The Ministry of Gender, Labour and Social Development - As the gazetting authority under the Institution of Traditional or Cultural Leaders Act, 2011.
3. The Clan System - Inzu Ya Masaaba is not a company. It is 200+ clans. Custom dictates that clan chairmen, elders (Baraara), and ritual leaders must be involved.
When a panel of Justices assigns an individual to "implement," it creates a legal-political orphan. That person has legal power but no cultural legitimacy. And cultural legitimacy is what makes Ba'Masaaba obey.
Question to ponder: Can you implement Ba'Masaaba culture without Ba'Masaaba custom? A judgment implemented without rituals, without clan consensus, will always be rejected on the ground, even if it is legally valid.
QUESTION 3: Was it really binding to all Ba'Masaaba anyway?
Legally: A Consent Judgment binds only the parties who signed it and those they represented.
Culturally: Ba'Masaaba are 8 plus million people in Uganda, Kenya, and diaspora. Were all clans represented? Were women, youth, clan chairmen in Sironko, Bulambuli, Manafwa, Bududa, Mbale, Namisindwa, diaspora consulted?
Under Article 246 of the Constitution of Uganda and the Cultural Leaders Act, a cultural leader must be acceptable to the majority of that community.
Therefore:
- Legally binding: Yes, to the parties in court.
- Culturally binding: Only if the process thereafter follows custom and is inclusive.
If Ba'Masaaba on the ground feel it was a Kampala agreement for Mbale people, without their clans, they will not feel bound - and no police can enforce culture.
QUESTION 4: Who is responsible for the failed adoption?
Here we must be honest and not blame one side.
a) The Litigants: By going to court for a cultural matter, we invited law into custom. Consent Judgment was meant to be a bridge back to custom. After signing, parties went back to celebrating legal victory instead of doing cultural reconciliation (Khu'khwila atweela, khu'khwiyakhanila, Ni khu'ngona), then adoption fails.
b) The Implementers: An implementer was assigned and he acted as a sole winner, rather than as a convener of all clans, he lost moral authority. Implementation of culture requires humility, not pronouncements.
c) The Council & Elders: The Constitution of Inzu Ya Masaaba gives elders the duty to unite. The elders divided into camps (Team Sakwa vs Team Wagabyalire, Team Masolo and Team Mudoma) instead of calling an all-inclusive clan council (Lushikho Lwa feesi, Basakhulu be kiminiongo ni Lukhobo lwe Ba'Masaaba), then they abdicated duty.
d) The Government:The Ministry is mandated to guide and gazette, not to take sides. If gazettement delayed or politicized, confusion remains.
e) All Ba'Masaaba: We as Ba'Masaaba love court more than council. We gossip more than we gather. A culture that does not call its own meetings will always be ruled by judgments.
THE WAY FORWARD - WHAT BA'MASAABA MUST DO:
1. Separate Law from Custom: Respect the Consent Judgment as closure of court cases, but return to the Constitution of Inzu Ya Masaaba and Custom for enthronement.
2. All-Clan Convention: Call a fully inclusive meeting of all clan chairmen, culture council (not selected elders) to ratify any implementation.
3. Ritual Validation: No Umukuuka is Umukuuka until he passes through Ba'Masaaba rituals. Law cannot replace ritual.
4. Truth-Telling: Let both sides publish what they agreed in simple Lumasaaba and Lugisu for every Umu'Masaaba to understand - not English legal language.
5. Stop Personalization: This is not about Person A or Person B. It is about Institution of Inzu Ya Masaaba surviving beyond us.
Final Thought: A Consent Judgment that is not consented to by the people is just a judgment. A culture that must be enforced by police is no longer culture.
Let Ba'Masaaba choose: Do we want Umukuuka of Court or Umukuuka of the People?
Prepared as a discussion paper for Ba'Masaaba unity.
Dr. Edward Komoli - Distinguished fellow on cultural Constitutionalism
Umu'Masaaba elder thinking aloud - not legal advice.
