The Jopadhola

The Jopadhola ethnic group, who live mainly in West Budama County, Tororo district in Eastern Uganda, bordering Kenya, are from the Nilotic linguistic cluster. Their language, Dhupadhola, is similar to two Nilotic languages of Alur and Kenya Luo. 70–80 per cent of the Jopadhola live below the poverty line.Footnote ¹⁷ Their activities are mainly subsistence agricultural farming, on land held under customary land tenure. They call this land Padhola which, according to renowned historian Bethwell Ogot, is an elliptic form of “Par Adhola” meaning the “place of Adhola”: founder father of the Jopadhola. Officially, Padhola is called Budama, but according to tradition this is the Kiganda version of “‘Widooma’ a Jopadhola war cry: ‘You are in trouble’”.Footnote ¹⁸

Traditional beliefs govern Jopadhola everyday life, but to varying degrees. For instance, people believe in Were [an omnipresent Christian god], kuni [clan shrines] and a common religion, Bura; they also have a deep rooted fear of jwogi [evil spirits].Footnote ¹⁹ Pervasive belief in mysticism thus remains an integral part of social organization.

The social structure of the Jopadhola can be described as polysegmentary because there is no traditional centralized government and its organization is limited to a clan. Currently, 52 clans are listed in appendix III to the Tieng Adhola Constitution. A clan is defined as a cultural sub-division known as the nono that shares cultural practices, common ancestry and language (Dhupadhola), but has a distinct lineage.Footnote ²⁰ Jopadhola clans are patrilineal. Descent is traced through the father's line and each lineage is made up of closely related families who claim ascendancy from a common grandfather or founder of the clan.Footnote ²¹ What is not in dispute is that the Jopadhola are descendants of Adhola and that Owiny (his brother) migrated to Kenya where he later formed the Ja-Luo.

A distinguishing feature of clan formation among the Jopadhola was that membership of the kinship system depended on biological relationship or “fictional agnation” (relations through the male line). The Jopadhola let non-Nilotic groups live with them, absorbing them in Jopadhola clans and eventually according them fictional agnation. The Morwa Guma clan, for instance, originated from the neighbouring Iteso of Nilo Hamitic stock. They were adopted agnatically by the Sule clan. Following a split from Sule, Morwa Guma was recognized as an independent Padhola clan and possesses clan emblems like the kunu [sacred shrine]. The Jo-Gem, a sub-group of the (Nilotic) Luo Jok-Omolo, migrated from river Yala in Nyanza-Kenya to Padhola. The Jo-Gem was likewise absorbed agnatically by the Oruwa Pa Demba clan, but broke away in 1996 preferring to follow its sub-culture. The Jo-Gem is now autonomous and possesses a kunu.Footnote ²²

This adaptation process continued during the colonial and post-colonial eras when clans were subjected to external pressure to transform their structures. Clans survived by absorbing features they could not change, while retaining a traditional communitarian approach to the composition of clan courts.

Metamorphosis of clan courts

Kinship courts have been investigated at the fringes of academic literature. In this regard, Elias's observations about the set up of courts being dependent on the type of society (A and B) are very instructive. The group A type of society was a strong, centralized political authority, based on the rule of chiefs or kings. The Buganda Kingdom in Uganda, for instance, had a “well ordered and regular system of courts with personnel of judges”, even court orderlies. Conversely, group B types (like the Jopadhola) were a “segmentary un-centralised political community” where kinship was powerful, and cultural and ethnic homogeneity was the imperative.Footnote ²³

The Jopadhola notion of separation of powers

At first blush, section Q(c)(1) of the Guidelines obliges states to ensure that traditional courts remain separate from the state's executive branch. This means that customary courts conform to human rights standards of independence. Viewed more critically, section Q leaves open the question of what comprises an independent traditional court. The resolution of this issue is left to the vagaries of kinship government.

Non-separation from the state's executive

There is no guidance from the African Commission on the precise meaning of “independence from the executive” as set out in section Q(c)(1). However, in Bahamonde v Equatorial Guinea the Human Rights Committee considered that, where functions of the judiciary and executive were not clearly distinguishable or where the executive is able to control the former, this is incompatible with the idea of an independent and impartial tribunal within the context of article 14(1) of the ICCPR.Footnote ⁵⁷ If the Human Rights Committee's definition is extrapolated to section Q(c)(1), then clan courts should be completely separate from the state's executive branch. This is more so because, under Uganda's legal framework, clan courts are not “statutory” traditional courts, being neither regulated by law nor a part of the government.

The Jopadhola word for a clan court is koti (plural: koti), borrowed from the English word “court”. Participants explained that a koti belongs to every clan member because, collectively, each person has a stake in determining the criteria for qualification, appointment and tenure of koti officials. Ostensibly, a koti comprises clan members only.

An unexpected finding then was that all three tiers of Jo-Gem clan courts (figure 1) include a local government village executive official: the local council chair.

Figure 1.

Hierarchy of Jo-Gem clan courts

According to Jo-Gem respondents: “[t]he clan call a representative of government like the LC [local council] 1 chairman, and the clan chair of the area then they sit during that time to hear the case [sic]. The LC 1 chairman helps the clan to ensure that they decide the case without breaking the law of the government.”Footnote ⁵⁸ The chair of the local government village council level 1, referred to in this quote as the “LC 1 chairman”, sits ex-officio in all Jo-Gem clan courts. The LC 1 chairman's role in the clan court is different from the official one performed ordinarily. The chairman is head of the lowest government administrative unit, political leader of the council and chairs the local council court.Footnote ⁵⁹ The chairman therefore combines legislative, executive and judicial functions.

Inversely, in all Jo-Gem koti, the LC 1 chairman is only invited to sit in a quasi-judicial capacity (though not as chair) to ensure that the koti adheres to national law. It may be suggested that the LC 1 chairman oversees the protection of the right to a fair trial by the koti. The clan head called ja gombolola, ja miluka or ja kisoko, sits as the ex-officio chair of their koti, assisted by three jo kony [helpers] called assessors who advise on clan law and make decisions. The ja kalani [secretary] takes minutes. Of note, in Morwa Guma courts, local council officials are only invited like any other clan member to participate in proceedings. As depicted in figure 2, the LC 1 chairman is part of the audience, seen here welcoming clan members to his village. He is not one of the koti officials.

Figure 2.

Trial simulation re-enacting a clan court session. © Maureen Owor (2006)

Thus, in the context of section Q(c)(1) of the Guidelines, the presence of the LC 1 chairman on the Jo-Gem koti signifies an “abridged” notion of the legal doctrine of separation of powers: one that combines the lower level state executive with traditional “judicial” officials. In this sense, Jo-Gem koti do not meet regional standards for an independent court that demand separation of traditional courts from the state's executive.

Conflation of executive and judicial functions

In order to adopt a more expansive reading of section Q(c)(1) as referring to the independence of traditional courts from kinship government, then koti should be independent of the executive organ of each clan: the nono. However, Jopadhola courts are not independent of their executive bodies. As Sanders states, traditional government is by discussion and consent, doing whatever possible to ensure cohesion of the group. Likewise, traditional legal proceedings are a community affair aimed at reconciling parties.Footnote ⁶⁰ Extrapolating Sanders's reasoning to Jopadhola clans shows that, in adhering to the principle of governance by public participation, traditional government combines legislative, executive and judicial functions.

This conflation of powers also present in the Jopadhola courts was explained as follows. The nono comprises the heads of all clan units who are answerable to adult clan members, collectively called the ju nono. Participants pointed out that the nono has no legislative authority to repeal or amend chik [law] because of the mystical nature of Jopadhola chik, derived from custom. Still, as the supreme policy making body of each clan, the nono carries out executive and judicial functions. In its executive capacity, the nono organizes elections of clan heads and court officials and oversees their appointment and dismissal. Any clan head also exercises judicial functions while sitting as the (executive) ex-officio chair of the koti. This point is best illustrated by the Morwa Guma courts' composition outlined in figure 3.

Figure 3.

Hierarchy of Morwa Guma clan courts

The Morwa Guma Constitution provides for a judge as a position in leadership, but not as a separate judicial entity.Footnote ⁶¹ As a result, in the higher saza and p'oriwa courts, positions exist for both judge and clan head. The latter has judicial powers to hear cases on a par with a judge. For instance, the ja saza has the same judicial powers as the ja thum banja [judge] of the saza koti. In the appellate p'oriwa koti, the kwar nono has equal judicial authority as the judge. Like the Jo-Gem, the gombolola and the lower miluka and kisoko courts are all chaired by a clan head (see figure 3). The gombolola court also has a deputy chair. Notably, all (eight) jo kony from the lower courts (two assessors per court) sit in the p'oriwa. Similar to the Jo-Gem, jo kony here have powers to hear evidence and determine both verdict and sentence.

Executive members, some of whom are pictured in figure 2, sit in the koti and participate in decision making. In the p'oriwa they are the: adha nono [grandmother of the clan], ja kiosa [prosecutor], kalani [secretary], ja kani [treasurer], ja luwo [speaker], ja kow wach [publicity secretary] and ja chowiroki [person in charge of rituals]. The saza and gombolola courts have the: adha nono [women] representative and soye [youth] representative, secretary, treasurer, prosecutor, ja kika [funeral chair] and ja kony pere [assistant] who collects kika [money to help with funeral expenses of a clan member]. The lower kisoko and miluka courts each have a secretary, and women and youth representatives.

Clearly then, the composition of the Morwa Guma and Jo-Gem clan courts, viewed in the context of section Q(c)(1), partially mimics the composition of courts of law by having a judge, assessors and a prosecutor. The hierarchy of courts of both clans retains the colonial local government divisions of saza, gombolola, miluka and kisoko (formerly pecho). Additionally, the lower level local government LC 1 chairman is invited to sit in Jo-Gem courts. That a clan leader wields executive power and also exercises a judicial role as the ex-officio chair of the koti, demonstrates the lack of separation of powers between executive and judicial functions of the nono. These findings support the SALC literature, Elechi's study of ekpuke essa courts, and Burke and Elias's descriptions of segmentary societies. This lack of separation extends to the manner of appointment where, in carrying out executive functions, clan leaders use a participatory approach that accommodates ju nono decisions.

Manner of appointment

The underlying assumption in section Q(c)(1) of the Guidelines is that the appointment procedure for national courts can be replicated in a traditional context. This supposition is explicit in section Q(c)(1) that reproduces section A(4).Footnote ⁶² Under section A(4)(h), the process for appointment to judicial bodies shall be transparent and accountable and an independent body shall be created for this purpose. This body also aims to safeguard the independence and impartiality of judicial officers. As the Human Rights Committee has stated, the manner of appointment determines whether a court of law is independent and fair.Footnote ⁶³ That way, the individual's right to a fair trial by an independent court is protected. The fact that no guidance exists in section Q(c) on the manner of appointment may be because, as implied in section S(1), traditional courts are created in accordance with cultural norms and customs. Yet, modernists criticize customary forms of governance, maintaining that traditional authorities rely on deference and place the community ahead of the individual, thereby hampering the growth of a just and democratic society.Footnote ⁶⁴

A surprise result then was the egalitarian manner of appointment by the nono of each clan. Participants made clear that appointments are based on adult suffrage and meritocracy (the exemplary performance of social obligations), or “[t]he contribution of the individual to the community, their ability and behaviour”.Footnote ⁶⁵ Meritocracy and adult suffrage aim to achieve transparency and a democratic appointment process.

The Jo-Gem clan follows a conservative traditional approach. Appointments are by the nono, through adult suffrage of the ju nono. There are no regular elections and no campaigns are permitted. Meritocracy is an imperative, for as Mr AO, the supreme Jo-Gem elder said: “[y]ou cannot simply want this job.” The only exception is the LC 1 chairman who sits ex-officio.

The Morwa Guma appointments depict an innovative approach that combines meritocracy with democratic elections. To this end, chapter 11 of the Morwa Guma Constitution provides that leaders “must be good clans' people [sic]”. In this respect, the Morwa Guma underscores meritocracy in much the same way as the Jo-Gem. The main distinction is the election of court officials by an electoral committee. The concept of an electoral body, according to Mr RO, was borrowed from the government in 1985. In the author's view, the idea of a specific institution to oversee elections was probably copied from Uganda's first ever multi-party elections in December 1980, organized by the commission for the 1980 general elections. Though the composition of the Morwa Guma's electoral committee is not specified, the presiding officer is an okewo [a nephew to the clan]. An okewo is perceived as neutral, since he is not a clan member. Canvassing and campaigns are permitted, and voting is by lining up [bol] behind a candidate.Footnote ⁶⁶

As noted earlier, under Morwa Guma law, a judge is not separate from leadership functions. To this end, the appointment of judges is, as for other clan office bearers, by election, in contrast to national courts. Appointment of magistrates by the Judicial Service Commission (JSC)Footnote ⁶⁷ is based on an individual's legal qualifications and experience, not contributions to the community and certainly not by adult suffrage. Likewise, under article 142 of the Ugandan Constitution, judges are nominated by the JSC, vetted by Parliament and appointed by the president. Kanyeihamba correctly observes that the appointment process for judges in Uganda is “rigid”.Footnote ⁶⁸ To Madhuku, subjecting the nominees to parliamentary approval (people's representatives), is intended to be a check against the “spectre of political pressure on the appointment process”.Footnote ⁶⁹ Thus, Parliament may reject an appointment to obtain a more reasonable proposal. For the Morwa Guma, appointment of judges is by adult suffrage of the ju nono. To them this is a democratic, transparent process in which those who lack a sense of social obligation are rejected.

The concept of a prosecutor (as representative of society's interests) in the higher Morwa Guma courts is adapted from the state's director of public prosecutions (DPP). Appointment of the DPP and staff, however, differs significantly from that of the prosecutor in the Morwa Guma courts. The latter is appointed by the nono based on meritocracy, following election by adult suffrage. Conversely, the DPP is nominated by the Public Service Commission (PSC), vetted by Parliament and appointed by the president under article 120(1) of the Constitution. Other employees, state attorneys and lay prosecutors are appointed by the PSC.

Participants explained that the term “assessor” used by both clans, is borrowed from the courts of law. In the magistrates courts (for civil customary matters) and the High Court, assessors are pre-selected from a list prepared by the chief magistrate,Footnote ⁷⁰ then appointed by the presiding judge or magistrate. By contrast, assessors in both clans are elected by adult suffrage based on meritocracy.

To summarise, the clans use traditional and modern approaches where the nono guarantee that the ju nono participate through adult suffrage in the appointment of all clan court officials including assessors, judges and the prosecutor. The appointment process that borrows from national structures is based on meritocracy. As Oomen contends, if participation and the “ability to debate one's destiny” can be regarded as essential to democracy, then customary leadership may be “more democratic than the elected local governments with which they supposedly compete”.Footnote ⁷¹ These findings confirm that the procedure of appointment is democratic and accountable in the local context.

Qualifications

Section Q(c) does not specify the requisite qualifications for appointment to a traditional court, leaving its determination to the customary institutions. As noted earlier, the absence of legal qualifications is one weakness of statutory traditional courts identified by SALC. As Madhuku argues, appointing from a restricted group who are subjected to professional standards and qualifications, aims to ensure that appointments are made on merit.Footnote ⁷² For instance, judicial officers in Uganda must be qualified to practise law under the Advocates Act.Footnote ⁷³

The Jopadhola, by contrast, have no minimum educational qualifications as eligibility criteria to serve on the koti. Rather, they use a traditional approach where positions are open to any clan member, including the illiterate, to guarantee equity. Important considerations for all posts are an in-depth knowledge of Jopadhola clan laws and proficiency in Dhupadhola. This finding is consistent with Elechi's study of the ekpuke essa which established that court elders must be erudite in local customs. A third consideration is one's ability to pacify angry litigants. As study participants explained: “[t]he clan must strengthen the heart of the complainant so that he does not feel very upset”.Footnote ⁷⁴ This statement is significant because it illustrates the competencies expected of a clan court official: a conciliatory approach that fosters reconciliation between the parties.

By excluding legal qualifications, clans apply a communitarian notion of rights where every clan member (aged 18 or older) has locus standi. As such, judicial and prosecutorial functions are shared between the judge, prosecutor, assessors, other clan officials and the community. Under shared jurisdiction, every kinship member has a “right” to be heard and to participate in the adjudication process. This principle of even handedness is the benchmark for considering whether a trial was fair to the individual and community. Public participation contrasts rules of natural justice applied in local council courts that emphasize the right of individual litigants to be heard.Footnote ⁷⁵ One may argue that the consequential lack of legal expertise implies that clan courts may not protect individual rights during a trial. The clans' counter-argument may be that, since their eligibility criteria are not pegged to formal and legal qualifications, it is appropriate to their non-technical public nature of customary deliberations.

Although formal “westernized” education (and legal qualifications) are irrelevant, both clans have successfully combined these two contrasting levels of informal and formal education. For instance, assessors in the High Court must understand the language of the court (English) with a “degree of proficiency”,Footnote ⁷⁶ which indicates they must have a formal education. By contrast, information provided by the study participants showed that all jo kony were semi-literate farmers. The same applied to the ja chowiroki in the p'oriwa court and all but one of the clan heads. Equally, the kalani were primary or secondary school teachers. The benefit of this mix appears to be that the kalani can record court proceedings in both Dhupadhola and English. To this end, two copies of court records (on land matters) availed to the author by the Namwaya saza koti had translations in English. This is convincing evidence of how the traditional system transforms itself to suit both local and modern circumstances.

To summarise, the eligibility criteria for appointment are conservative as they focus on individual disposition, proficiency in the local language and clan law. Additionally, educational and legal qualifications are disregarded because formal or legal training is not required due to the uncomplicated participatory nature of koti proceedings.

Security of tenure and removal of officials

Section Q(c) makes no mention of security of tenure for traditional court officials. By contrast, section A(4)(n), (p) and (q) provide that judicial officials must not be appointed for a fixed term and can only be removed following stringent procedures and a fair hearing. Madhuku underscores the importance of security of tenure, arguing that, if judges can easily be removed from office, then there is in reality no independence of the judiciary. Such a strict process also exists in Uganda to prevent judges being “beholden” to any authority or person.Footnote ⁷⁷ The Jopadhola process has similarities and differences.

The Jo-Gem clan has no fixed term of office. This appears to give some measure of security of tenure for the officials, as they may serve for as long as they are capable. The Morwa Guma clan by comparison has fixed tenure for all officials. Under paragraph 31 of the Morwa Guma Constitution, elections of clan office bearers are held every five years. A person is only eligible for re-election twice, giving a maximum tenure of 15 years. This practice is consistent with Nowak's reasoning that judges need not be appointed for life, but should serve for a relatively long period.Footnote ⁷⁸

Removal of officials under the Jopadhola procedure is subject to the decision of the nono following consultations with the ju nono. To illustrate: under chapter 12, paragraph 33 of the Morwa Guma Constitution, the grounds for removal of a clan leader include breaking clan law, such as: “[h]aving a relationship or eloping with a relative or any other behaviour that the other leaders deem to fit into that category”.

One example given was of the dismissal of a clan official by the nono for concealing the fact that his son married a relative, in direct contravention of Morwa Guma law. The leader was dismissed in disgrace and was not permitted to stand for any office again.

In summary, security of tenure and removal of an official is parochial, subject to the nono acting on the consensus of the ju nono. Questions may be raised from a legal perspective about the extent to which public participation in determining the tenure and removal of “judicial” officials guarantees the independence of traditional courts. In response, the clans may argue that public participation ensures integrity of the koti, as its officials are ultimately accountable to the ju nono.

Representation of women and youth

The Guidelines are silent on posts for women and youth on traditional courts. Nonetheless, one significant finding was the transformation of koti from bastions of patriarchy to institutions that ensure fair representation of women and youth (aged 18 or older). Participants spoke of how koti accommodate these interests through provision for women's and youth representatives to ensure their constituents are protected. These representatives are appointed in both clans in much the same way as other koti officials: through adult suffrage based on meritocracy. This new development was adopted in 1992 from the government's policies of equal representation in governance, concretized in the local councils and their associated courts. Under the LCCA, one youth and two women's representatives sit on lower level local council courts as ex-officio members of the village or parish executive committee. A local council court comprises all members of that village or parish executive committee. Women and youth quotas in these executive committees are specified under section 47(2)(h) and (i) of the Local Governments Act (LGA), following constitutional provisions in article 180(2)(b) and (c) of the Local Council Courts Act.Footnote ⁷⁹

The Jo-Gem clan does not assign posts for women or youth. Rather, it ensures that all courts have women and youth members. The explanation given by Mr AO was that “[g]overnment laws do not permit women to be denied representation in anything nowadays”.Footnote ⁸⁰ Any clan member is eligible to hold any post regardless of age or gender. Ultimately, each of the Jo-Gem courts had at least one woman official. In the case of the court at the kisoko level, there were two women (both of them assessors), quite unlike the Morwa Guma where all the assessors were men. The secretary to the Jo-Gem gombolola court was a young man. By not “compartmentalizing” positions for women or youth, the Jo-Gem guarantees wider representation for them at all levels. By contrast, the Morwa Guma has specific positions for women and youth in all clan courts, although youth do not sit in the p'oriwa court.

To conclude, age and gender parity is one area where clans in the post-independence era have adopted lower level government features. This is in contradistinction to studies like that of Griffiths, which establish that traditional courts (kgotla) are a “men's space”. One explanation could be that, in an era of democratization, traditional leadership adapts to meet the needs of modern day society in an effort to strengthen its position within local communities.Footnote ⁸¹ Accordingly, giving positions to women and youth in Jopadhola patrilineal society ensures some semblance of fair representation in clan courts, which was previously lacking.

The spiritual overseer

The Guidelines are silent on the position of a spiritual overseer in traditional courts, yet supernatural activities are integral to localized African societies. For example, Jopadhola clans have kuni at which rituals take place, and the Bura temple at Nyakiriga is still in use. As Chase contends, rituals are ceremonies that are used to gain legitimacy in society. Using shared normative values and involving leaders and the audience in the performance of the rituals, help to authenticate a dispute process.Footnote ⁸²

It is worth mentioning that no distinction exists between civil and criminal matters as is the case in a formal legal system. This characteristic of segmented societiesFootnote ⁸³ may be attributed to the restorative inclinations of the clan in punishing the breach of social norms, like taboos, which make such a distinction largely pointless. Beyaraza explains that taboos are comparable to crimes attracting punishment in positive law, which clearly prescribes rules of what to do or not to do.Footnote ⁸⁴ One such example is nywomo wat [incest]. Clan members are regarded as being as close as blood relatives. Nywomo wat is believed to bring lusiwa [extreme bad luck] to the offenders, their families and entire clan. The sanction for such breach is largely compensatory. This taboo is buttressed with mystical beliefs, so that only chowiroki [ritual cleansing] of any person afflicted by lusiwa removes the iniquity. Other social norms the breach of which necessitates ritual cleansing include yeti manya ori [abusing an in-law] and lami [verbal cursing].Footnote ⁸⁵

One noteworthy finding was that koti sit in judgment on the breach of social norms within the court's jurisdiction, “[f]or example: cursing, theft, witchcraft, adultery / fornication, murder or the ghost. All this behaviour if the clan does not cleanse as it is required, even if the government imprisons a person for ten years still the tendencies listed above will remain. This behaviour retards the clan until the person is cleansed in accordance with traditional rites.”Footnote ⁸⁶

This excerpt demonstrates that, whereas clan jurisdiction covers “ordinary” crimes like murder, rituals take a central place in validating the clan court process. The passage portrays clearly that koti engage in “trials” that include a communal therapeutic style of social control where “criminal” acts may be attributed to supernatural forces. The whole community is then involved in the “treatment”.Footnote ⁸⁷ Communal therapy therefore deals with deviance through rituals where clan leaders and the community participate. The affected parties are returned to normality and reconciled with the community.

Customary trials are not very different from the therapeutic intervention described by Roberts, where family relationships that have broken down are examined using professional techniques. Once the latent problems have been dealt with, the parties' relationship is transformed using therapeutic techniques.Footnote ⁸⁸ Thus, in both models, the affected parties are reconciled with the community, although therapeutic intervention, unlike communal therapy, neither uses mythical intercession nor involves kin in dealing with deviance.

Consider the trial simulation where two members of the same clan were tried for nywomo wat. Following their plea of guilty, the adha nono said: “[t]his act is a big curse called lusiwa. It can only be treated and finished in accordance with the rites on lusiwa.”Footnote ⁸⁹

The adha nono's avowal underscores the koti's responsibility in removing lusiwa thereby protecting offenders and their kinfolk. In this regard, the function of the ja chowiroki found only in the p'oriwa (pictured in figure 2) is of special interest. His role is to guide the koti on the prescribed punishment and the procedure for ritual cleansing, and to ensure that rituals are carried out in accordance with clan law. The ja chowiroki proclaimed:

The ja chowroki's declaration shows that, after compensation is paid by the male offender's father to the father of the female offender, the ritual cleansing is conducted by the okewo. As the naked couple escape from the burning grass hut, the okewo whips them. The lusiwa is removed and the offenders are reunited with the clan.

It is conspicuous that women are debarred from performing these ceremonies which are conducted by a male okewo. This may be likened to women among the Azande who are prohibited from taking part in oracular justice. Clearly, women's participation in rituals remains peripheral.

This data leads to the conclusion that koti are not independent in the framework of international human rights standards, where courts of law have no place for a spiritual adviser, far less supernatural beliefs. Although nowadays all clan officials are responsible for spiritual affairs, the exclusion of women from the performance of rituals affirms their subordinate position within this social framework. The control of divine matters therefore represents the preservation of traditional roles, reminiscent of pre-colonial times.