INTRODUCING LAW

THE DEFINITION OF LAW

Law is a set of rules or principles that control human conduct thereby helping in the administration
of justice.
A rudimentary definition of law, within Uganda’s legal system, is a rule that is backed by a sanction
for its breach, ultimately enforceable by a court, a tribunal or arbitration.
Sanctions for breach of law takes many forms i.e. a sentence is passed for breach of a criminal law,
compensation/ Damages are awarded, and or Restitution is ordered for breach of civil law.

What we can notice from the definition

1. Set of rules
Law is a set or body of rules. These rules may originate from customs, acts of parliament,
court cases or some other acceptable sources
2. Guidance of human conduct
These rules are enforced for the guidance of human conduct. Human beings follow these
rules for their own safeguard and betterment
3. Applicable to a community
The rules apply to a specific community: this community may be a sovereign state or a
business community. The laws of different communities may be different e.g. what is the
law in Kenya may not be the law in Uganda or Tanzania
4. Change of rules
The law changes over a period of time. It means law is not a static phenomenon. It keeps
changing with time i.e. what was law in Uganda in the 1960s may not be law in the 1990s
5. Enforcement
The law must be enforced otherwise there would be anarchy. The law enforcing agencies
include police and courts of law.

Criminal Law governs/regulates the relationship between the State and individuals. This branch
of the law creates crimes such as murder, theft, rape, assault, etc and they are primarily provided
for under the Penal Code although they may be prescribed in other laws such as the Traffic and
Road Safety Act. Crime is a public wrong and if one commits a crime, he commits it against the
state and the state through court, intervenes to punish the offender.

Civil Law, on the other hand governs/regulates the relationship between persons .For example
where one causes an accident, due to reckless driving and which results into death of another, this
is a civil wrong called “negligence” under the law of tort. Besides the law of Tort, other Civil laws
include the law of Contract, which is divided into several other specific laws such as the law of Sale
of Goods, Agency, Insurance, Banking etc.

It should however be noted that there is a considerable overlap between non-legal rules and the law.
For example: The basic rules of most major religions are astonishingly similar. Most of them
condemn murder and so do all legal systems, although what constitutes murder and the punishment
imposed differ from one legal system to another.

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Nevertheless, many forms of anti-social behaviour such as spitting in a crowded street would shock
most people as a breach of the rules of civilised behaviour but are not illegal.
A distinction must also be made between the immoral and the illegal. Law therefore is a formal
mechanism for maintaining social order.
IMPORTANCE OF LAW
Rules of law facilitate administration of justice and promote cohesion in the society.
Law is an instrument used by human beings to achieve justice in society.
Law helps in the maintenance of peace and order by promoting peaceful co-existence and prevents
anarchy through punishing offenders and providing remedies to aggrieved parties
Promotes good governance in society
Provides protection of rights and duties
Reduces incidences of revenge by ascertaining whether or not a crime was committed
Civil laws protect individual rights and enforcement of duties.
SCHOLARS OF LAW
Marcus Tullius Cicero 106 BC -43BC
He was a Roman Philosopher, politician, lawyer, orator, political theorist and consul. He was a
naturalist of law. Cicero‟s ideas were greatly influenced by the writings of Plato, Aristotle and the
Stoics and thus became acquainted early with the subject of natural law. He has thus become the
chief source of Roman theory of the law of nature. To him law
True law is right reason in agreement with nature. It is of universal application, unchanging and
everlasting

St. Thomas Aquinas 1225-1274

He was an Italian priest of the Dominican order. He was influential philosopher and theologian. He
was a proponent of natural law. Aquinas in his book Summa Theologica, lays down the major
principles of his idea of natural law as follows. There were four types of law according to Aquinas:
(I) Eternal Law

(II) Divine Law

(III) Natural Law

(IV) Human Law

John Austin

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Born in 1790, died 1859. He was a noted British jurist and published extensively concerning the
philosophy of law and jurisprudence. Served with the British army in Sicilly and Malta but sold his
Officer’s commission to study law.
He is best known for his work developing the theory of legal positivism. His three basic principles
are;
1. The law is command issued by the uncommanded commander—the sovereign;
2. Such commands are backed by threats of sanctions; and a sovereign is one who is habitually
obeyed
3. Law is command and sanction of sovereign.

Prof Hans Kelsen (1881-1973)

He was a German scholar bornin 1881 and died 1973, legal philosopher and political philosospher.
He was lauded by Roscoe Pound as “undoubtedly the leading jurist of the time”. He was known for
his magnum opus “The Pure Theory of Law”
This aims at describing law as a hierarchy of norms which are also binding norms while at the same
time refusing itself to evaluate those norms. Legal science is to be separated from legal politics.
Law is a hierarchy of norms the validity of each norm resting upon a higher norm (grund norm)
Nathan Roscoe Pound (1870-1964)
He was a distinguished American legal scholar and educator. He wrote the Spirit of the Common
Law, Law Morals. He was the founder of the movement ‘sociological” jurisprudence. Its object
encompasses the historical movement of law and justice and their relentless contemporary
construction.
Karl Maximilliam Weber (Max) was a German born 1864-1920
He was a German Sociologist, philosopher and political economist whose ideas influenced social
theory and social research. For Max Weber, a so-called legal rational form as a type of domination
within society is not attributable to people but to abstract forms.
Emile Durkheim.
He was a French scholar born in 1858-1917. He was a sociologist, social psychologist and
philosopher. He formally established the academic discipline and with Karl Marx and Max Weber
is commonly cited as the principle architect of modern social science and father of sociology. He
stressed that as a society becomes more complex, the body of civil concerned primarily with
restitution and compensation grows at the expense of criminal laws and penal sanctions.
To him law is an indicator of the mode of integration of society which can be mechanical among
identical parts.
Karl Max (1818-1883)

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He was a German philosopher, economist, sociologist, historian, journalist and revolutionary
socialist. He argued that law is the mechanism by which one social class usually referred to as the
“ruling class” keeps all other classes in a disadvantaged position.
THE THEORIES OF LAW

Theories of law essentially try to explain the where law derives its authority, and the intrinsic
difference or overlap between laws and morals (illegal v. immoral).
This section of the classes also introduces legal philosophy.
There are numerous schools of thought on legal philosophies, namely
1. The Natural Law school
2. The Analytical (Positivist) School of Thought
3. The Historical school of thought
4. The Sociological school of thought
5. The Realist Movement
6. The Pure Theory of Law; and
7. The Marxist Theory of Law

NATURAL LAW SCHOOL OF THOUGHT

To this school, there are principles that exist naturally that are discoverable through right reasoning.
It is these principles that constitute natural law and they do exist even when they are abused and
misunderstood.
Natural law forms the basis of several moral propositions and scientific processes which processes
too are discoverable through the exercise of right reason.
The history of this school of thought is traceable to the Greek tradition. According to this Greek
tradition, law was an essential foundation for the life of man in society based on his needs as a
reasonable being. Man within society had a purpose in which he could pursue particular basic gods
discoverable through the exercise of right reason. Human beings are rational creatures that can
arrive at the truth pure reason.
The assumption in this school is that those principles that exist naturally have been placed by a
certain creator who is perfect, created perfect principles and be perfectly discovered.
During the classical period, the Greeks were interested in understanding the foundation of law
through disinterested in its development.
In each state there was a body of rules that were fundamental, unchangeable and often unwritten.
However, on the decline of smaller states and the rise of the empires saw the development of natural
law. It was during this period that natural law was associated with reason which had a universal
force.
According to Cicero Writing in De Legibus, he states;

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 Neither senate nor people can free human beings from natural law.
True law is right reason in agreement with nature. It is of universal application, unchanging
and everlasting
….and there will not be difference in laws in Rome and Athens: or different law now and in the
future but one eternal and unchangeable law will be valid for all nations and all times. And there
will be one master and ruler that is God over us all, for he is the author of this law, its promulgator
and its enforcing judge. Whoever is disobedient is either freeing himself and denying his human
nature. And by reason of this very fact, he will suffer the worst penalties, even if he escape what is
commonly considered the worst punishment.
It summons to be by its commands and abide by wrong doing by prohibitions. It is a sin to try
to alter this law. Nor is it allowable to repeal any part of it and it is impossible to abolish it entirely

During the medieval period which was premised on the unity derived from God involving one faith,
one church, one empire and the supremacy of law saw the combination of law and religion.

Until the period of Thomas Aquinas (1224-1274) in the13th Century, Christian thought was
dominated by the notion that law, human existence and government were alluded in the original
sin.

THOMAS AQUINAS 1225-1274

Aquinas in his book Summa Theologica, lays down the major principles of his idea of natural law
as follows. There were four types of law according to Aquinas:
(I) Eternal Law

(II) Divine Law

(III) Natural Law

(IV) Human Law

i. Lex aertena (Eternal Law): laws of the universe --- "the whole community of the
universe" is governed by God who "is not subject to time but is eternal― this is divine
reason only known to God and those who are blessed to see in his essence. Everything
happens as a result of God’s deliberate plan and direction.
ii. Lex Divina (Divine Law): which is the law of God revealed in the scriptures. the
revealed word of God (revelation) --- we need to be guided to our 'supernatural end,"
our reason being inadequate to reveal it to us. This is a law given by God.
iii. Natural Law: eternal law as it applies to us, which we know by reason: "The natural
law is promulgated by the very fact that God instilled it into men's minds so as to be
known by them naturally". The first principle of practical reason is one founded on the
notion of good, viz, that good is that which all things seek after. The first precept of law
is that good is to be done and pursued and evil is to be avoided. All other precepts of
natural law are based on this. Natural law is the same for all

iv. Human Law: created by us for the purpose of implementing natural law. This is derived
from natural law but not natural law itself. It is necessary because natural law cannot

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 and does not provide solutions to all problems in human life. Further it is necessary
because it compels selfish people to act reasonably. Human laws (positive) are either
just or unjust. For a law to be just it must be necessary, useful, clear and for the common
good. Laws that do not fall into this category are unjust and are not binding on any
person’s conscience.

He followed Augustine who said there is no law unless it is just law. He argued that a
validity of law depended on its justice In human affairs, a thing is said to be just when
it upholds a right with a rule of reason and the first rule of reason is natural law, thus,
all humanly enacted laws are in accord with reason to the extent that they derive from
the natural law and if a human law is at variance in any particular way with the natural
law, it is no longer law but rather a corruption of law

THE POSITIVIST SCHOOL OF THOUGHT.

Within Austin’s approach, whether something is or is not law depends on which people have done
what. It is a matter of power and not of morality.
He stresses that there is much that is law that is not moral and what makes something law does
nothing to guarantee its moral value. “the most pernicious laws and therefore those which are most
opposed to the will of God have been and are continually enforced as laws by judicial tribunals.”
(Austin 1832 Lecture V.P 158)
Towards the end of the medieval period there was a rise of states that sought to impose their
independence and self-sustaining capabilities. These states therefore sought an internal and
unlimited capacity of making the law without any limit. Therefore positive law was viewed as
something that was ascertained in law and valid without regard to subject consideration.
Hume argued that positive law in the sense of the law of the states is something that is ascertainable
and valid without regard to subjective considerations. The law to the proponents of the school was
separate from morals and ethics.
Jeremy Bentham who lived between 1748-1832 dismissed natural law as nonsense upon stilts
referring to the natural law school as a pestilential breath of fiction. To him nature has placed man
at two planes i.e pain and pleasure.
Bentham was a utilitarian, who said that law should be about promoting the greatest good for
the greatest number and that subjugation of individuals by law was for the good of the
majority and could be justified and understood/analysed that way.
To John Austin 1790-1859, the law had two concepts.
The concept of the sovereign and the command. To him the sovereign was illimitable and
indivisible. All the laws properly so called are commands followed with/by sanctions i.e the
willingness of the law maker to inflict pain (sanction) in case the subjects refused to abide by the
law.

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Austin noted that if the law failed to include a provision for pain, it would constitute a mere desire.
Laws are imperatives that are targeted at laying down rules to guide human conduct. They come
from political superiors to whom the masses are in the habit of obeying.
Since the law is derived from the sovereign, such sovereign is not bound by any other law since
there is no authority above him or her.
In Austin‘s positive law there is no place for ideal, fairness or justness in law. In his own words –
the existence of law is one thing, its merit and demerit another. Law and morality are
mutually exclusive, conceptually separable.
THE PURE THEORY OF LAW
Its proponents Hans Kelsen 1881-1973, wished to free the law from the metaphysical mist with
which it had been covered at all times by the speculations on justice. He wanted to lay down certain
standards which men ought to follow.
To him the legal theory is based on the idea of a grundnorm, a hypothetical norm on which an entire
legal system us based. The basic norm is chosen on the basis of its efficacy i.e that the whole legal
order must rest on the assumption that it is by and large efficacious i.e that people must conduct
themselves in compliance with the basic norm.
Every norm in a legal system depends on another norm for its validity. The validity of the rule
depends upon its relationship with another norm and it is those other norms in a hierarchy that give
validity. In this way, there begins to emerge a picture of law not as a collection of norms or ought
propositions but a hierarchy of norms (oughts). Kelsen, therefore, concluded that no matter with
what proposition of law one begins in every legal order, there is a hierarchy of norms or oughts
which is traceable to some initial or fundamental ought on which the validity of all other norms
depend. This is the so called Grundnorm, basic or fundamental norm.

He argued that a Grundnorm need not be the same in every legal order but there must be a
Grundnorm. This could be derived from a written or unwritten constitution, from a monarch or
even a dictator. The Grundnorm is not the constitution but it is a presupposition or assumption
demanded by the theory that an existing constitutional order ought to be obeyed. Therefore the
Grundnorm is always adapted to the existing state of affairs.
In a later work, Pure Theory of Law, he argued that the legal order has to be “by and large” effective.
In other words for the Grudnnorm to remain useful, it must secure for itself a minimum of
effectiveness. That is to say that a certain number of people must be willing to abide by it. they
must be willing to obey the existing constitutional body. The effectiveness of the Grundnorm does
not mean total support but there must not be a total disregard for it either. What is necessary
however, is a minimum of effectiveness.

Therefore, he concluded as follows; when a Grundnorm ceases to command of a minimum support,

it ceases to be the basis upon which the legal or constitutional order is constructed. Therefore, any
other proposition which obtains support can replace it. When such a change in a legal or social

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order takes place, it is said to amount to a revolution in law. It does not necessarily mean a social
or political revolution.
THE SOCIOLOGICAL SCHOOL
This largely developed during the 20th century and tended to reflect the consensus oriented
approaches.
It was concerned about the law in action i.e to see what happened in reality i.e that reality is socially
constructed. That the more effective science of law could therefore benefit from some concepts of
sociological research.
According to Hume law was developing social institutions which owed its origin not to man’s
nature but to social convention.
To Vico, human society was this historical, social institutions and human relationships are the
product of action.
To Montesquiue law was a product of numerous factors eg local manners, customs and the physical
environment. A good law conformed to the spirit of society. Art 2(1), 126
Iherring 1818- 1892 placed great emphasis on the function of law as satisfying human needs. To
him man’s security in society is that of satisfying his wants. Where there is a conflict between social
needs and individual private needs, then the needs of the whole society have to be put at the front
before the needs of an individual.
The extent of success of any law is measured against its success in reconciling conflicting interests.
The law though should serve the needs of any society by enabling economic desires to be satisfied,
some form of coercion may also be necessary as a method of social control.
Roscoe Pound used his thinking on sociological ideas and to him a t a certain point in time, people
in their respective society had needs, demands and desires that had to be satisfied. There had to be
a mechanism, however, of harmonizing his claims balanced with all other claims in society. To him
therefore law was a means of satisfying human gains so as to make it possible for this to go around
as much as possible with the least friction.
The conflicting claims had to be reconciled by a universal and ultimate authority securing most
social interests but at the same time eliminating waste. Therefore, to Roscoe Pound, the law was to
adjust and reconcile conflicting interests in society.
HISTORICAL SCHOOL
Some of its proponents like Hume rejected the universalizing tendencies and emphasized the
uniqueness of each society’s historical evolution and civilization. Every society and its respective
culture grew as a result of the uniqueness of its history, traditions and institutions.
Von Savigny 1779-1861 rejected natural law arguing that any legal system was part of the culture
of law. The law couldn’t be imposed through some legislative body but was part of the people’s
spirit (volksgerst), a unique ultimate and often mystical entity. People living within a particular

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community may have a common inner sense instinct that leads to the creation of law if that society
at a time.
To Savigny, the law was like a living organism. It grows with the growth and strengthens with the
strength of the people and finally dies away as the nation loses its nationality,
MARXIST SCHOOL
Karl Max viewed human societies as systems within which the most important system was the
economic system. Everything else like the law, religion, ethics, politics was an infrastructure. To
him society could not be viewed in isolation but rather by considering its movement and
development which all depicted the said society as one filled with contradictions.
Man’s nature was determined by what he produces and how he produced it. To Max, the principle
governing all human societies would be found in the common end that all men pursue i.e the
production of means to support life and exchange of the things produced.
To Max the history of all hitherto existing society is a history of class struggles. Throughout the
existence of mankind, people entered into relations independent of their will. The totality of these
relations constituted to the economic structure of the society upon which other legal and political
aspects would be built. To him society was historically shaped by production i.e what is produced
and how it is produced. A change in the production process always play a change in the mode of
production and also the relations in production.
A handmill gives government a society with the feudal rod, whereas, a steel mill gives you a society
with a capitalist. Feudalism gave great to capitalism which capitalism due to internal contradictions
will give way to communism having gone through socialism which is the intermediate stage. “the
history of mankind is a history of class struggles”.

CLASSIFICATIONS/DIVISIONS OF LAW
Glanville William learning the law
The law is divided into two great branches, the criminal and the civil but of these the civil is greater.
The distinctive between a civil and a crime does not reside in the nature of the wrongful act itself,
it is possible that the same act can be both a crime and a civil wrong.
The distinction resides in the legal consequences that may follow an act. If the wrongful act is
capable of being followed by what are called criminal proceeding, it is regarded as a crime. The
same is true for civil proceedings and both. The difference is that they are brought in different
courts, procedure is different outcome is different and terminology different.
In criminal proceedings the terminology is prosecutor while in civil there is a plaintiff who sues a
defendant.
Criminals - guilty of a crime

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 Civil – liable e.g. for a tort or breach entitling cases, criminal offences are in the name of
someone representing the state (prosecutor) e.g. A.G.Vs Ferdinand, while in civil cases will
usually be cited by the names of parties e.g. Pylandsr flether.
In criminal case e.g.R.V.Sikes( it is pronounced as written) ,while in civil cases the “V” is
pronounced as “and” but written as “V”. Lawyers write one thing and say another indictment
offences – treason, felonies and misdemeanors. Felonies e.g. murder, burglary
CLASSIFICATION OF LAW
Law may classified into the following categories.
 Written versus unwritten law
 Public versus private law
 Criminal versus civil law
 Substantive versus procedural law
 National versus international law
 Common law versus equity.

WRITTEN LAW VERSUS UNWRITTEN LAW

Written law refers to that set of law which has been documented or has been reduced into a written
form e.g. constitution of Uganda statute law, by laws and other delegated legislations. Written law
reign over unwritten law.
Unwritten law refers to that set of law which has not been documented or reduced into writing. It
is known by the group of people it affects by their customs, beliefs, rituals, religion and social
culture e.g. African customary law, Islamic law, common law and equity. For unwritten law to be
applicable, its existence must be proved.
PUBLIC VERSUS PRIVATE LAW
Public law governs the relationship between individuals and the state. It deals with matters in which
the state has interest and these matters touch on issues of management of society. State is usually a
party to the disputes.
Public law is subdivided into constitutional law. Constitutional law corners the different branches
of the state. The executive, the legislature and the judicially. Constitution law is the body of rules
which lays down the structure and function of government both central and local.
Administrative law concerns itself with the reconciliation of the interests of efficient
administrations with individual freedom and rights.
Administrative law regulates administrative acts of the state, state organs and the state officials and
institutions.
Private law deals with legal relations between individuals without the intervention of the state. In
other words, it is a set of law in which the government has no direct interest.
Examples include; the law of contract, the law of tort, property law, the law of persons and family
law.

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 CRIMINAL VERSUS CIVIL LAW
A. CRIMINAL LAW
Criminal law is a branch of public law that exists to punish persons whom wrong the state. A wrong
against the state is a crime.
Crimes are acts or omissions committed or omitted in violation of public law e.g. murder,
manslaughter, robbery, burglary, rape stealing and theft. Suspects are arrested by the state through
police and offenders prosecuted by the Director of public prosecutions (DPP). When changed with
a particular case, the suspect becomes an accused hence cases are titled as Republic v Accused.
Standard of proof – beyond any reasonable doubt
Burden of proof – lies to the state
Punishments include; death, imprisonment, detention, fire, forfeiture etc.

B. CIVIL LAW
Civil law is also known as private law. It is a branch of law that defines, regulates, enforces, and
administers relationship[s among individuals, associations and corporations that are of a legal
nature . it seeks to resolve non-criminal disputes such as disagreements over the meaning of
contracts, property ownership divorce, child custody and damages for personal and property
damages. Thus civil law provides a legal remedy to solve problems between individuals.
The parties in a civil suit are normally two; plaintiff and the defendant. Plaintiff can also be referred
to as claimant or applicant.
In civil cases, the burden of proof is on the plaintiff. The standard of proof is balance of probabilities
(evidence must be probable). Punishment is by way of damages, injunction, specific performance
Rescission quantum mervit, restitution rectification, declaration etc. the orders to be awarded by
the court must be prayed for by the plaintiff. Court does not decide for the parties on what to ask.

BRANCHES OF CIVIL LAW

a) Law of contract. This is concerned with rights, duties, remedies of parties to contract.
b) Law of torts. This is concerned with violation of personal and proprietary rights and prescribes to
aggrieved parties e.g. negligence, nuisance, deformation, Passing off, trespass to goods detinue
conversion, assault, battery, false imprisonment.
c) Family law. This regulates family matters such as engagement, marriage, matrimonial property
divorce and parent - child relationships.
d) Law succession. This concerned with the disposition of a deceased’s estate. Determines how the
property of the deceased is transferred to his heirs.
e) Law of property. It is concerned with both primary and secondary interest in land, such free and
lease hold estate in land, servitudes and encumbrances etc.
f) Law of trust. This is concerned with the rights, duties and other incidences between Trustees and
beneficiaries. This law is applicable when a person called the settler, transfers his property to a third
party, called a trustee to be held in trustee for the benefit of another person (beneficiary).

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 Differences between criminal law and civil law

Criminal law Civil law

 A criminal law is governed by public law  Governed by civil law
 Against the state  Against individual
 Prosecutor is the state  Plaintiff is individual
 Crimes divided into felonies and  Not classified basing on the gravity of
misdemeanors wrong
 Burden of proof on the state  Burden of proof on the plaintiff
 Parties are republic against accused  Parties are plaintiff defendants
person

MILITARY LAW AGAINST CIVIL LAW

Military law is applicable to serving members of military force who are enforceable in military
courts, following military codes and procedure. They are tried in a court martial.
Civil law is applicable to civilians not serving in military forces. They are tried at Courts of records
and subordinate courts. In the case of Joseph Tumushabe V Attorney General, it was held that
in some circumstances, civilians can be subject of military law if they commit offences within the
ambit of UPDF Act.
SUBSTANTIVE VERSUS PROCEDURAL LAW.
Substantive law determines the meaning and content of different legal principles or rules. It
prohibits certain conduct and prescribes certain behaviours and punishes violators. It defines crimes
and punishments both in civil and criminal law, eg the Penal Code, Contracts Act,
Procedural law refers to the set of laws that spell out the procedure that should be followed in the
process of administering the law. It regulates the enforcement of substantive law. Eg the law of
Criminal Procedure and Civil Procedure
National v International Law.
National law refers to the rules of law operational within the boundaries of a country. It is based on
Acts of Parliament, customary and religious practices of the people in that country. National law is
also called municipal law.
A state may not plead its municipal/national law when it is in breach of its international obligations,
that is, international law is higher/above municipal law/national/domestic laws.
International law refers to rules and regulations agreed upon amongst different countries/states and
or other international bodies such as UN, ICC, its jurisdiction bypass national boundaries and the

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law is applicable to all states that are signatory of such law. It is based on agreements of treaties
and customary practices of states and general principles.
Common law v Equity.
Common law may be described as that branch of the law of England which was developed by judges
through decisions of courts and similar tribunals. It is also called case law. It is only applicable in
England and Commonwealth. It is based on decided cases and doctrine of precedence.
Common law system gives great precedential weight to case law on the principle that it is unfair to
treat similar facts differently on different occasions.
The common law system of administration of justice was rigid to change, slow and subject to
different interpretation and lacked sufficient remedies.
Emergency of common law in England.
Prior to the Norman conquest of England in 1066, there was no unitary, national legal system. The
English legal system involved a mass of oral customary rules which varied according to region.
Each county had its own local court dispensing its own justice in accordance with the local customs
that varied from community to community and were enforced in often arbitrary fashion.
After the Norman invasion, there were still many different types of courts apart from the royal
court. It was during Henry II’s reign that the clerics in his court began specializing in legal business
and acting in a judicial capacity. Clerics were part of the Kings royal entourage.
In 1154, Henry II institutionalized common law by creating a unified court system “common” to
the country through incorporating and elevating local custom to the national level, ending local
control, eliminating arbitrary remedies and reinstating a jury system of citizens sworn on oath to
investigate criminal accusations and civil claims.
Judges went on regular journeys throughout the country bringing king’s justice to very citizen with
the aim of establishing a common system of law throughout the land hence the laws became knowns
as common law. The decisions of the judges were written downs. As the decisions of these courts
came to be recorded and published, so the practice developed where past decisions (precedents)
would be cited in arguments before the courts. These practices developed into a common law.
Common law therefore is largely based on stare decisis, a principle that, similar cases should be
decided according to consistent principled rules so that they will reach similar results. In common
law, courts are bound by the precedential decisions. Common law is therefore characterized by the
doctrine of precedent.
Common law in Uganda.
According to the Judicature Act, common law is applicable in Uganda. This was because Uganda
was governed by England for a long period of time.

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In Uganda, the reception of English law was given in the Uganda Order-in-Council 1902 which
formalized colonial rule in Uganda and was fundamental law of the protectorate. Article 15(2) of
the Uganda Order in Council.
Uganda was declared a British protectorate in 1894 but not a colony because it was seen as not
suitable for European settlement. By this declaration Uganda came within the ambit of the African
Order in Council 1889 which authorised the local consul to establish jurisdiction under which he
could exercise considerable executive, judicial and administrative powers.
Equity.
Equity court is defined to mean a court which decides a single case without insisting on the
formality of a case. Equity is a body of rules of fairness or natural justice or public morality.
Equity is essentially about promoting fairness assuming that the defendant does not take advantage
of their unconscionable or fraudulent acts at the expense of the plaintiff.
Equity refers to the source of law created by the Lord Chancellor which was designed to supplement
the common law and allow people the opportunity to avoid inherent problems in the common law
system. It is therefore to supplement the common law.
In Uganda the Equity was received by the 1902 and 191I Orders in Council which made Equity and
Common Law to be applied concurrently, and where there was conflict between the two with
reference to the same subject matter, the rules of equity would prevail
Common law versus Civil law.
Countries that follow common law system are typically those that were former colonies or
protectorates of Britain including USA.
Features of common law;
 There is not always a written constitution or codified law.
 Judicial decisions are biding
 Extensive freedom of contract. Few provisions are implied into contract by law.
 Generally everything is permitted that is not expressly prohibited by law.
Civil law structure is a codified system of law. It takes its origin from Roman law.
 There is generally a written constitution based on specific codes eg civil code, codes
covering corporate law, administrative law.
 Only legislative enactments are considered binding for all. There is little scope for judge
made law in civil, criminal and commercial courts although in practices judges tend to
follow previous judicial decisions. Constitution and administrative courts can nullify laws
and regulations and their decisions in such cases are binding for all.
 Writings of legal scholars have significant influence on the courts.

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  Courts specific to the underlying codes. There are therefore usually separate constitutional
courts, administrative court and civil court systems that opine on administrative acts and
interpret that specific code.
 Less freedom of contract; many provisions are implied into the contract by law and parties
cannot contract out of certain provisions.

A civil law system is generally more prescriptive than a common law system.
Procedure;
Accused is presumed guilty until the contrary is established.
There is no jury trial both in civil and criminal proceedings.
A civil law judge normally gets deeply involved in the proceedings rather than leave them to the
parties. He asks witnesses questions.
The system originated from Western Europe; France, Italy, Germany, Netherlands and was
exported to colonial territories.

THE LAW APPLICABLE IN UGANDA/SOURCES OF LAW

The law applicable relates to the sources of law in Uganda.
According to the Judicature Act (Cap. 13) the Law applicable in Uganda is provided for under
Section 14 and Section 15.
Section 14 inter alia provides that …
(1) Subject to the Constitution and this Act, the jurisdiction of the High Court shall
be exercised—in conformity with the written law, including any law in force
immediately before the commencement of this Act
(2) subject to any written law and insofar as the written law does not extend or apply,
in conformity with—
a) the common law and the doctrines of equity;
b) any established and current custom or usage; and the powers vested in,
and the procedure and practice observed by, the High Court immediately
before the commencement of this Act insofar as any such jurisdiction is
consistent with the provisions of this Act; and
c) where no express law or rule is applicable to any matter in issue
before the High Court, in conformity with the principles of justice, equity
and good conscience.

15. Customary law.

Nothing 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

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 is not repugnant to natural justice, equity and good conscience and not incompatible
either directly or by necessary implication with any written law.

Therefore the Law applicable in Uganda includes the written law, common law, doctrines of equity
the applied law and current custom or usage (customary law).
SOURCES OF LAW
Therefor the sources of authoritative Law in Uganda according to the Judicature Act, 1996 (Cap.
13) are:

1. The Constitution
This is a legal instrument which defines the composition and powers of different organs of the state
as well as their relationship with each other and with the citizens.
Uganda has had 4 written constitutions; the first enacted in 1962, the second enacted in 1966 which
abrogated the Independence Constitution, followed by 1967, which replaced the former. The current
constitution is the 1995 constitution, which repealed all other Constitutions. All of Uganda’s
constitutions can be classified as written constitutions.

Article 2(1) of the 1995 Constitution provides that the Constitution is the Supreme law of the
Uganda. Supremacy of a Constitution implies that if any other law is in conflict with or inconsistent
with the Constitution, the Constitution prevails and that other law will be null and void to the extent
of its inconsistency. For instance, the Constitutional Court of Uganda in Charles Onyango-Obbo
& Andrew Mujini Mwenda v. AG declared that Section 50 of the Penal Code Act, which provided
for the offence of sedition, was unconstitutional to the extent that it contravened the constitutionally
guaranteed right to Freedom of Expression.

The case of Dr Paul K Ssemwogerere v AG declared the referendum Act which was passed
without quorum as null and void. Recently the court declared the Anti-Homosexuality act null and
void for being passed without quorum in J.Oloka Onyano and ors v Attorney General.

In Uganda Association of Women Lawyers and Others v. Attorney General court declared sections
4,5, 21-24 and 26 of the Divorce Act for discriminating against women on divorce matters.

A Constitution can be amended by an Act of Parliament e.g. Constitution Amendment Act 2017
(Magyezi Bill)

The courts i.e the Constitutional Court of Uganda, has the power to declare a provisoon of law, an
action, policy, practice or cultural observance unconstitutional or any other provision of the
Constitution. (Art 137)

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 2. Legislation
a. Principal Law
These are laws enacted by Parliament as a national law making body as mandated under Article 79
of the Constitution which provides that:
Article 79(1)…parliament shall have power to make laws on matter of peace, order,
development and good governance of Uganda
They are referred to as Acts of Parliament. Before the Revised Edition 2000, the principal laws that
were made between 1964 and 2000 were referred to as Acts, Decrees or, Statutes. After the revision
they were all re-designated as Acts.
The Revised Principle Laws of Uganda are contained in the Red volumes.
Terminologies;
i. Acts
An Act is a law passed by Parliament. Laws that are passed by Parliament always implement
Constitutional provisions and Government plans for the governance and development of the
country. For example the Local Governments Act implements the decentralisation policy as
provided in the Constitution.
ii. Decrees
Decrees are laws made by the Executive when there is no standing elected legislative body. For
example when the military took over government in 1971, legislative powers were vested in the
President. During this period, the President assisted by a Council of Ministers made laws which
were called Decrees.
iii. Statutes
Statute is a general term used to refer to a collection of written laws. Statutes also refer to laws
made by a legislative body other than an elected Parliament or by a military government. For
example laws that were made by the National Consultative Council (NCC) in 1980 and the National
Resistance Council (NRC) between 1986 and 1996 were before the Revised Edition, 2000 referred
to as Statutes.
iv. Ordinances
Ordinances were a form of principal laws which were made in the colonial days (1902-1962) by
the Governor and the Legislative Council (LEGCO). The term Ordinances is now used to refer to
laws made by district and city councils.

b. Subsidiary laws
Parliament can also delegate its law making power to other entities
Subsidiary laws are laws made by the President, a Minister or any other authority in exercise of
power given to them by Parliament under a Principal Law (Parent Law/ Statute) as articulated under
Article 79(2) of the Constitution.
Article 79(2)…no person or body other than Parliament shall have the power to make
provisions having the force of law in Uganda except under the authority conferred by an
Act of Parliament.

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They generally implement Principal laws and deal with matters of detail and procedure. Subsidiary
laws are sometimes called subordinate legislation or delegated legislation. For instance the Local
Governments Act gives Local Governments powers to make Ordinances and Bye-Laws.
Subsidiary Laws may be referred to as Statutory Instruments, Ordinances, Bye-Laws, Regulations,
Rules, or Orders and are contained in the Blue Volumes of the Laws of Uganda.
i. Statutory Instruments
Where an Act confers on the President, a Minister or any other authority, a power to make
Proclamations, Rules, Regulations, Bye-laws, Orders, any document by which that power is
exercised is known as a Statutory Instrument. S.14 of the Interpretation Act.
ii. Regulations
Regulations operationalize an Act of Parliament as far as governing conduct of a particular body,
ministries and government departments are concerned and are made by the Minister in exercise of
power given by an Act of Parliament.
iii. Rules
Rules are made to operationalize the provisions of a Principal law with reference to guiding
operations of a particular body and may be made by a Court of Justice or a Public officer. Rules are
usually made to provide for procedural matters. For instance, the Chief Justice is given powers to
make rules for courts.
iv. Ordinance
Under the Local Governments Act, an Ordinance means a law made by a district or city council.
An Ordinance may be made for a whole district or for a part of the district which makes it. An
Ordinance of a district or city council should not contradict the Constitution and any law made by
Parliament.
v. Bye-Laws
Bye-Laws are laws made by an urban, sub-county, division, or village local councils. Bye laws
must not be inconsistent with the Constitution, laws made by Parliament or existing Bye-Laws and
Ordinances passed by a higher council.
3. Common Law and Equity
This is applicable in Uganda. It refers to the reasoning of English judges which have crystallised
into legal principles based on their consistent application in deciding cases. It is based on the
doctrine of stare decisis or precedent. The common law is only applicable in so far as the written
law is silent on the topic.
In John Nsereko v George Gita 1975 HCB 152, AJ, held that common law meant the law which
was not as a result of legislation. It was a law which was created out of the customs of the people
and embodied in the decisions of judges.
Uganda inherited the common law doctrines and the principle of judicial precedent as a source of
law because of the reception of English Law in our legal system under the 1902 Uganda Order in
Council.
Equity.
Equity is a body of rules of fairness or natural justice or public morality.

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Equity is essentially about promoting fairness assuming that the defendant does not take advantage
of their unconscionable or fraudulent acts at the expense of the plaintiff.
of their unconscionable or fraudulent acts at the expense of the plaintiff.
Equity in simple terms means whatever is just or right in man’s being with fellow man. Equity also
possesses a technical meaning that may be divided into two categories, that is the general juristic
concept and the technical juridical concept all of which supplement each other and affect the
administration of justice1[i].

The general juristic sense mainly denotes moral administration of justice by judicial bodies taking
into account special facts of a particular case .i.e. humane and liberal interpretation of the law. This
is incorporated in Art 126(2) (e) of the 1995 Constitution of the Republic of Uganda.2[ii] This was
manifested in the case of Stephen Mabosi V URA 3[iii]

Equity refers to the source of law created by the Lord Chancellor which was designed to supplement
the common law and allow people the opportunity to avoid inherent problems in the common law
system. It is therefore to supplement the common law.
In Uganda the Equity was received by the 1902 and 191I Orders in Council which made Equity and
Common Law to be applied concurrently, and where there was conflict between the two with
reference to the same subject matter, the rules of equity would prevail
Origins of equity.
The historical origins of equity can be traced back to the Norman Conquest of 1600 after which the
Normans introduced a common system within England, unlike the previous times where each
region in England had its own system. It’s as a result of this that the common law evolved.
King Henry II formed the King’s Bench for those persons who brought their matters for
adjudication and such had to be in compliance with the common law.

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However, the King retained some powers through which persons aggrieved by the decisions of the
common law judges would directly appeal to him. These matters with time became many,
necessitating a different system to specifically deal with them.
It is in this regard that the King formed the office of the Lord Chancellor, with specific powers to
issue royal writs under the great seal, summoning different parties to appear before him.
With time, the Lord Chancellor acquired a lot of power that with time both the common law lawyers
and equity ones started to question his powers. They argued that he ignored the doctrine of
precedent and all his decisions were based on his conscience.
Therefore, during the reign of King James I both the lawyers and common law judges demanded
that the problem be solved.
In 1615 a great quarrel broke out between the Lord Chife Justice Corke and the Lord Chancellor
Ellesmere. This resulted in the THE EARL OF OXFORD CASE (1615) In this case, Lord Chancellor
Elsemere contended that he had power to set aside a common law judgment on the basis of equity
and good conscience. The then Chief Justice Lord Corke argued that the Chancery had no right in
law and statute to set aside the judgments of the common law courts. He went further to issue an
order of prohibition. The matter was finally put before King James I who adjudicated in favor of
equity.
In 1873 the U.K Judicature Act was passed but only became effective in 1875. This Act removed
the need to sue in a common law court for common law remedies. It is said that this Act fused the
application of equity and common law. It abolished all existing courts and in their place put the
Supreme Court which comprised of the King’s Bench, the Chancery Division, the Probate Court,
and Admiralty Court. All these courts were given the power to administer both equity and common
law.
Maxims of Equity
Equity is based on a number of maxims, namely;
1. Equity will not suffer a wrong to be without a remedy.
This is said to be the underlying principle of equitable jurisdiction. Thus Equity addressed situations
where Common Law did not provide a remedy, or failed to recognise a right. In some cases, the
statutes will not provide a remedy even when there is need for one e.g. contracts for personal
services, contracts that require continuous supervision, unfair competition, etc.
Specific performance and injunctions constitute one of the chief ways in which equity
supplements the law by granting auxiliary or additional remedies where the common law remedies
where inadequate. The remedy will only be granted where it’s just and equitable to do so having
considered all the circumstances of the case for example it won’t be awarded in contracts of every
description but only where legal remedy is inadequate or defective that it becomes necessary for

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equity to interfere like in the Sale Of Goods Act4, contracts for sale of goods, damages may be a
warded for failure to supply goods.

However there are situations where equity can’t provide a remedy for example in situations of
unfair trade competition or contracts involving personal services. In such situations, courts may be
unable to order specific performance even where damages are inadequate5 therefore the maxim is
subject to what is realistic, practicable and convenient for the court.

2. Equity follows the law.

As already indicated in the historical evolution of equity, the Lord Chancellor during the exercise
of his jurisdiction, seemed to have overridden the common law courts as was highlighted in the Earl
of Oxford case in which the King overruled the common law in favor of equity. However, it is
important to note that applies not from certain specific rules but from conscience.
Due to the uncertainty that arises from this and the legal provisions in place, it is important that
equity follows the law unless the law is perpetuating an unfair act. The law, and not conscience,
prevails. Art. 2 (1), Art. 126 of the Constitution of Uganda, 1995.
According to the Judicature Act,6[22] provides that equity is based on the law. Equity has adopted
some of the rules of common law for example those affecting mistake that is under mistake common
law is rigid or at times harsh that’s why equity has attempted to temper the unfairness in some areas
by introducing certain remedies where the common law failed to grant any, a leading example of
an equitable remedy could be granted at common law is Solle Vs Butcher .
The principle that only parties to a contract will be bound by that contract under the law of contract
is observed by a doctrine of equity for example special performance can’t be granted where
damages will provide adequate remedy, this is because equity follows the law and is designed to
supplement the grant of damages but not to override them like in contracts for sale or lease of land
or where chattels sold have a special beauty or interest specific performance will be decreed
However if the common law rules are ancient or too rigid then equity won’t follow them since
it won’t promote fairness to the litigants.

3. Where there are two equities, the first in time prevails.

This deals with issues of priority where there are two or more competing interests. The general rule
is that equitable interests have priority according to the order in which they were created.

The maxim deals with priority where there is a conflict between two competing equitable interests
in property because priority of time gives better equity. In Ndigejjerawa Vs Kizito and

4[25] CAP79, SECTION 52

5[26] D J BAKIBINGA, Law Of Contract In Uganda”(1996) pp 379

6[22] Supra 2; SECTION 2

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Kubulwamwana7[13] court held that Kizito’s /Kubulwamwana’s equitable interests had priority
because it was created earlier than Ndigejjerawa’s interest. Court further stated that the first in time
rule only applies where equities are equal.
It should be note that in determining priorities between competing equitable interests the
doctrine of notice does not apply. In Uganda’s legal system the general law rules for determining
priorities are substantially different with respect to the land registered under The Registration of
Title Act.
However there situations where the courts do not apply the maxim for example in situation
where there are successive assignments or mortgages of equitable interest

4. Where there is equal equity, the law prevails.

Where there are two separate claims, without one having priority over the other, the law takes over.

5. He who seeks equity must do equity.

Whoever seeks a remedy in equity must themselves ensure that they do equity.
A person seeking an equitable remedy must him or herself act fairly, thus in case of Bank Of
Uganda Vs Hassan Bassajabalaba where court held that Bassajabalaba failed to act fairly when
he forged a court order so as to get back his land titles hence an equitable remedy couldn’t be
granted to him.
This maxim can be illustrated through the following arrangements that is, doctrine of election,
notice to redeem mortgage, consolidation of mortgage and illegal loans.

6. He who comes to equity must come with clean hands.

The seeker of equity must prove that they were honest and fair in that matter. For this maxim, the
applicant’s suit may be looked into prior to the hearing.
The plaintiff must approach the court free from any blame on his part because court wont grant
equitable relief to the plaintiff if there is any evidence of fraud, mistakes, misrepresentation or
illegality, thus in Katarikawe Vs Katwiremu where court held that if a tenant is in breach of several
terms of his agreement with the land owner then court wont grant relief.
Also when certain transactions are illegal and one seeks to get an equitable relief out of such
a transaction for example under the Employment Act8[23] which provides that wages can only be
paid in local currency and not in kind and any agreement to such will be illegal, null and void.
However for the inequitable conduct to amount to un clean hands, it need not be illegal strictly as
required by law. Its sufficient if the conduct is un conscionable and morally reprehensible and need
not have been to the other party to the action.

7[13] [1952-56] 7 ULR PP.31

8[23] CAP 219 SECTION 30

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Joy Kabatsi v Hanifa Kawooya. Court could not aid the petitioner since she had participated in
perpetuating an illegality.
7. Delay defeats equity
An equitable relief will not be granted if the complainant delays in bringing an action for equitable
remedies. This demonstrates that time is of essence. Even in equitable matters, court will take into
consideration the following;
i) The delay by the plaintiff.
ii) The acquiescence by the plaintiff in the delay on the defendant’s part.
iii) The Limitations Act.
iv) The Government Proceedings Act.
v) The Law Reform Miscellaneous Provisions Act
For example, all actions against government must be brought within two years.
8. Equality is equity.
This maxim applies in 3 main situations especially where there are two people who have similar
claims in the same property and the property is not enough to satisfy both claims fully.
Kemp v Kemp (1831) All E.R, 891. In this case, the court could not make a decision on who of the
beneficiaries was entitled under the trust. Court decided to divide the property equally.
Read on: Severance of a tenancy
Tenancy in common
Joint division (Bakibinga)
9. Equity looks at substance rather than form. Art. 126 (2) (e)
This equitable remedy has been enshrined in the Constitution, Art. 126 (2) (e), which provides that
courts shall administer substantive justice without undue regard to technicalities

Equity developed with the aim of achieving justice rather than sticking to the forms. This
approach to technicalities has constitutional backing which requires courts to administer justice
without undue regard to technicalities9[7]. In applying this provision the supreme court of Uganda,
in Stephen Mabosi Vs Uganda Revenue Authority, held that a memorandum of appeal which was
filled out of time couldn’t be rejected because the appellant couldn’t file it before obtaining the
official record of proceedings from the high court which were released after the 60 day period
required for filing the memorandum of appeal had elapsed.

9[7] ART 126(2)(e) 1995 constitution of Uganda

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This maxim is intended to examine instances where equity has intervened to ensure that the
substance is upheld over formalities and this instances include; time clause, covenants, mortgage,
penalties, deeds and under instruments of possession where justice okello, in jaffer Bros limited
Vs Hajji Bagalaaliwo10[8], held that since the relevant letter was issued by a competent authority
there was valid repossession by the appellant, in essence court looked at the substance of the action
of the minister rather than the form of the instrument required under the Expropriated properties
Act.

 Time Clauses.
In a contract for the sale of land, if one of the parties fails to complete the transfer within the
prescribed time, they would be in breach of contract hence entitling the other party to seek for a
remedy against them. However, in equity, the other party would be given a reasonable period of
time to complete the contract.
 Mortgages
In some cases, a document may appear to convey land to another person yet in actual sense it is a
mortgage. Under common law, the parties would be obliged to stick to the document. However, in
equity, parole evidence will be permitted to show that what looks like a conveyance is actually a
mortgage.
10. Equity looks on that as done which ought to be done.
This maxim is illustrated by the principle that an agreement for a lease is as a good as a lease, this
is further illustrated by a provision of the Registration of Titles Act11[9] where by in breach of or
non-observance of any of the covenant expressed in a lease or implied by law, the lesser may
exercise the right of re-entering the leased property this is because equity treats an agreement as
done since the parties had agreed and one had fulfilled the obligation then its fair for the other to
benefit the principal is followed in the case of serunjogi Vs katabira,12[10] in this case by a
memorandum of agreement it was dully signed by both parties. The defendant sold to the plaintiff
a piece of land and a house situated thereon, the plaintiff paid the full price but the defendant
neglected to transfer title and deliver up possession to the plaintiff. The plaintiff sued and court held
that equity treats an equitable interest as if it were already conveyed hence the defendant was
ordered to deliver up vacant possession of the premises
This principle is best illustrated in the matter of Walsh v Lonsdale (1882) 21 Ch., 9 in which court
interpreted a binding contract to have created an equitable lease even when the common law
requirements had not been fulfilled. This was premised on the argument that the landlord would be
required by the doctrine of specific performance to undertake all the requisite formalities. The

10[8] Civil appeal no. 43 1997(court of appeal of Uganda).

11[9] SECTION 130. CAP 230

12[10] [1988-90] HCB PP.148

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contract was as good as that created under common law. Therefore, an agreement for a lease is as
good as a lease.
This maxim can also be seen in a situation were a contract to create a mortgage was treated as a
promise by the debtor to execute a legal mortgage when called upon to do so such an agreement
created an equitable mortgage as illustrated in Barclays bank Vs Gulu millers13[11], where court
held that under a doctrine of equity a deposit of title deeds by way of security whether or not
accompanied by a memorandum was equivalent to one agreement to execute a legal mortgage and
carried with it the entire remedies incidental to a legal mortgage. Creation of an equitable mortgage
by deposit of a certificate of title is provided for under the Registration of Title’s Act14[12].
11. Equity acts in personam.
The orders in the Chancery Court were issued against the defendant personally. In the 17th Century,
equity issued writs of assistance by which the courts of equity allowed the Sheriff to put the plaintiff
into possession of disputed property. Courts of equity were meant to act on the conscience of a
particular defendant and not to lay down certain rules to guide all persons.
“In personam”, that is against the defendant personally for example beneficial interests are a right
in personam because like all equitable rights it was done or enforced in personam for a trustee to
observe a trust. Where one acquires an equitable interest then it’s enforceable against the vendor
thus in katarikawe Vs William Katwiremu (deceased) and Oneziforo Bakampata.Where court held
that where the purchaser acquires an equitable interest in the nature of right in personam its
enforceable against the vendor only. This is further illustrated in a situation where a defendant fails
to comply with a decree of specific performance; the court may appoint another person to execute
the transfer in respect of the disputed property15[18]. Alternatively, the courts may make a vesting
order16[19]. The effect of this court’s decision is to transfer property from one person to another
without a formal conveyance.
It should be noted that courts won’t apply the maxim in situation where a bonafide purchaser for
value of the legal estate without notice of an earlier equitable claim over the subject property
Applicability of Common Law and Equity in Uganda
Uganda was declared a British Protectorate in 1894. By this declaration Uganda came within the
ambit of the African Order-in-Council 1889, this authorized the local Consul to establish local
jurisdiction under which he could exercise considerable executive, judicial and administrative
powers.
In 1902 the Uganda Order-in-Council was promulgated under the authority Foreign Jurisdiction
Act, 1890. Under Article 15 of the Order-in-Council, a High Court of Uganda to be known as His

13[11] [1959]E.A PP. 540

14[12] SUPRA 9. SECTION 139

15[18] CIVIL PROCEDURE ACT CAP 65 SEC.53,Cvil Procedure Rules Order 19, rules 13

16[19] TRUSTEES ACT CAP. 142.SEC.40

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Majesty’s High Court of Uganda was established with full civil and criminal jurisdictions in all
cases and over all persons in Uganda.
The High court was empowered to apply common law and English Statutes of General Application.
Article 15(2) of the Uganda Order in Council, particularly provided that;
The Legislation of colonies and other territories where the English common law in whole
or in part prevails is governed by the same rules of construction as apply in England.
Uganda therefore received common law and equity by virtue of 1902 Order-in-Council, through
the Article 15 also referred to as the reception clause. This provision was later incorporated in the
Judicature Act (Cap 34) of 1962 (now repealed) which under its Section 2 declared that the
Jurisdiction of the High Court was to be exercised subject to the Constitution
a) in conformity with the written laws in force on 9th October 1962 including the laws applied
by the act, or may hereafter be applied or enacted;

b) subject to such written laws and so far as the same do not extend or apply –

(i) in conformity with the substance of the common law, the doctrines of equity and the
statutes of general application in force in England on the 11th August 1902

c) Provided that the said common law, doctrines of equity and statutes of general application
shall be in force in Uganda only so far as the circumstances of Uganda permit, and subject
to such qualifications as local circumstances may render necessary.”
In 1967, statutes of general application ceased to apply in Uganda by virtue of the Judicature Act
No. 11 of 1967, which provides under its Section 3 that the Jurisdiction of the High Court was to
be exercised subject to the Constitution in conformity with the written law including any law in
force immediately before the commencement of this act;

b) subject to any written law and in so far as the same does not extend or apply, and in
conformity with,
i) The common law and the doctrines of equity;
j) Any established and current customs or usage…
c) where no express law, or rule is applicable to any matter in issue before the High Court in
conformity with the principles of justice, equity and good conscience;
3. The applied law, the common law and the doctrines of equity shall be in force only in so far as
the circumstances in Uganda and of its people permit and subject to such qualifications as the
circumstances may render necessary.

According to the Platt J. S. C, in Uganda Motors Limited v. Wavah Holdings Limited (Civil appeal
No 19/1991) [1992] UGSC 1,

The “applied law” refers to the laws applied in the Act (see Sec 47 of Act 11 of 1967 and
the schedules). They follow on from the schedules to the Judicature Act of 1962. These are
not the Acts of general application which later acts are not specified in the schedules of the
Judicature Act of 1962. The reference to 11th August 1902 in the 1967 Act is that in section
47, and is related to amendments in scheduled Acts before that date.

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 The conclusion can only be that the Acts of general application no longer have any place in
the jurisdiction of the High Court…

It should be noted that in Uganda Common law and Equity are;

 Used only where the subject matter is not covered by statutory law
 Relief cannot be sought under equity and common law in the same plaint; however, where
there are two competing reliefs under common law and equity, the equitable relief will
prevail.

The general rule on the applicability of common law and equity in Uganda and East Africa is;
Common law is subject to such qualifications as local circumstances my render necessary. This
rule was enunciated by Denning MR (as he then was) in the case of Nyali Ltd v. AG [1955] 1 All
ER 646 (CA) also reported in [1957] AC 253 (HL). In this case the issue in contention was that by
the English common law applicable in Kenya the Kenya Government should be exempt from
payment of a bridge toll at Mombasa. Lord denning rejected this argument, holding that the
common law rule that the Crown had a prerogative not to pay tax was not applicable in Kenya as
local circumstance did not permit. In his construction of the reception clause of the English common
law, Lord Denning observed that;
This wise provision should, I think, be liberally constructed. It is a recognition that the
common law cannot be applied in a foreign land without considerable qualification. It has
many principles of manifest justice and good sense which can be applied with advantages
to people of every race and colour all the world over. But it also has many refinements,
subtleties and technicalities which are not suited to other folk. These off shoots must be cut
away. In these off lands the people must have a law which they understand and which they
will respect. The common law cannot fulfil this role except with considerable qualifications.
The task of making these qualifications is entrusted to the judges of these lands…
This position was reiterated by Mwalusanya J, in the case of Ephrahim v Pastori High Court of
Tanzania Civil Appeal No. 70/1989 (2001) AHRLR 236; where he observed that;
The received law was subject to the qualification that it be applied so far as the Circumstances of
the territory and its inhabitants permit and subject to such qualifications as local circumstances
may render necessary.

S. 14 of the Judicature Act Cap 13 provides for the application of Common Law and Equity as
part of the law applicable in Uganda only insofar as the circumstances of Uganda and of its peoples
permit, and subject to such qualifications as circumstances may render necessary. Subsection 4
further provides that the rules of equity and the rules of common law shall be administered
concurrently; and if there is a conflict or variance between the rules of equity and the rules of
common law with reference to the same subject, the rules of equity shall prevail

COURSEWORK 2016.
THE CHALLENGES REVOLVING AROUND THE CONCEPT OF CONFLICT OF LAWS

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AND HOW THEY WERE ADDRESSED DURING THE RECEPTION OF COMMON LAW IN

UGANDA

Prior to the establishment of British rule in Uganda, each tribe followed its own body of unwritten

customary law. Such bodies of law had considerable similarities, as indeed has customary law

throughout Africa, and also differences both in the content of the laws and in the manner of their

administration, formalized courts presided over by chiefs existing in the kingdom states and less

institutionalized gatherings of elders existing elsewhere.17 Upon this background the advent of

British rule imposed a foreign legal system basically that of England (Common Law). yet this did

not replace the traditional legal systems for the two existed side by side, interacting upon one

another to some extent but each operating within its own sphere of jurisdiction and hierarchy of

courts.

Uganda was declared a British Protectorate in 1894. By this declaration Uganda came within the

ambit of the African Order-in-Council 1889, which authorized the local Consul to establish local

jurisdiction under which he could exercise considerable executive, judicial and administrative

powers.18 With the establishment of the protectorate, a consular court was set up applying English

Law. The source of authority for this jurisdiction lay in the Foreign Jurisdiction Acts and the Africa

Order in Council of 1889 which stated that jurisdiction should "so far as circumstances permitted

be exercised upon the principles of and in conformity with the substance of the law for the time

being in force in England"

17 Morris and Read. Uganda the Development of its Laws and Constitution pg 237

18 G W Kanyeihamba. Constitutional and Political History of Uganda pg 6

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In 1902 the Uganda Order-in-Council was promulgated under the authority Foreign Jurisdiction

Act, 1890. Under Article 15 of the Order-in-Council, a High Court of Uganda to be known as His

Majesty’s High Court of Uganda was established with full civil and criminal jurisdictions in all

cases and over all persons in Uganda. jurisdiction was to be exercised, "as far as circumstances

permitted, in conformity with the Civil Procedure, Criminal Procedure and Penal Codes of India

except so far as might otherwise be provided by law." ordinances could be passed by the Governor

and later the Legislative Council subject to the Secretary of state's right of disallowance.

The 1902 Order in Council unlike that of 1889, however said nothing about the general application

of English law. The 1902 Order in Council replaced that of 1889 so far as Uganda was concerned

but contained the provision that " Where other provision was not made by ordinance, any law,

practice, or procedure established by or under the said Africa Order in Council 1889 should remain

in force until such other provision was made"

Whether as a result of this provision English Law remained generally in force in Uganda was a

matter of doubt and to remove these doubts an amending Order in Council was made in 191119.

The Order provided under S.15 that in "so far as the Indian Codes did not apply, jurisdiction was

to be exercised in conformity with the substance of the common law, doctrines of equity and statutes

of general application in force in England on 11th August 1902 and with the powers vested in and

according to the procedure and practice observed by and before courts of justice and justices of the

peace of England"

The Order also provided that the Indian Codes, the common law, the doctrines of equity and the

19 Morris and Read supra

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statutes of general application could be modified or replaced by Orders in Council or by a Ugandan

Ordinance. More importantly the Order provided that the common law, doctrines of equity and

statutes of general application were to be inforce in Uganda only "so far as "the circumstances of

the Protectorate and its inhabitants and the High Court's jurisdiction and subject to such

qualifications as local circumstances render necessary"

Therefore the law applicable in Uganda was the written law which included English statutory

provisions listed in the First Schedule of the Foreign Jurisdiction Act of 1890, the Civil procedure,

criminal Procedure and penal Codes of India and any Act or law of the united Kingdom or of India

might be applied to Uganda by ordinance, and other ordinances made by the governor. In so far as

the above categories did not apply, the law to be administered was, “common law, doctrines of

equity and statutes of general application in force in England on the 11th August 1902". Uganda

therefore received common law and equity by virtue of 1902 Order-in-Council, as amended through

the Article 15 also referred to as the reception clause Uganda therefore received common law and

equity by virtue of 1902 Order-in-Council, as amended through the Article 15 also referred to as

the reception clause.

This wholesome reception of English law under the Order in council was however, subject to certain

qualifications. In the First place, the common law, doctrines of equity and statutes of general

application were to be in force only so far as the circumstances of the country and its inhabitants

permitted. In the second place, in the making of ordinances, the Governor "was to respect existing

native law and customs" unless these were opposed to justice and morality, though this was omitted

with the amendment of the Order in Council in 1920. And thirdly, courts were, in all cases to which

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natives were parties, to be guided by native law and custom where this was applicable and not

repugnant to justice and morality and not inconsistent with the general law.20

The reception of common law met a number of challenges ranging from its application and

interpretation. there was the challenge of having two different legal systems of common law and

customary law side by side and whether the High Court had jurisdiction to administer native law

and also there was the issue of applying statutes of general application. These challenges constituted

what is referred to as "conflict of laws" during the reception of common law. These challenges were

addressed by courts in the application of common law and later was dealt with the Judicature Acts.

The Order had provided that where the written law did not apply, the law to be administered was,

“common law, doctrines of equity and statutes of general application in force in England on the

11th August 1902". This was seen in the case of Rosemary Leslie Johnston v Alexander Johnston

1960] 1 EA 607 (HCU) where court held that Consequently, in matters, whether procedural or

substantive, which are not provided for in the written law or rules thereunder, court is thrown back

upon the law applied in matrimonial proceedings in the High Court of Justice in England.

In Bennet v Garvie (1917) 7 EALR 48 Hamilton CJ upheld a verbal contract and rejected the

application of the statute of Frands which prohibited contracts not in writing by stating that the law

relating to sale in East Africa was the applied Indian Acts which contained the whole law on the

subject and therefore it could be said that statute of Frands did not apply and was by implication

excluded from East Africa

20 ibid

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On the issue of application of common law, doctrines of equity and statutes of general application,

the challenge was addressed by the 1902 Order in Council as amended which provided that the

common law, doctrines of equity and statutes of general application were to be inforce in Uganda

only "so far as "the circumstances of the Protectorate and its inhabitants and the High Court's

jurisdiction and subject to such qualifications as local circumstances render necessary." The Order

thereby gave wide discretionary powers to the courts to determine whether the prevailing conditions

in Uganda allowed for the application of such a law. This is evidenced by a number of cases as

analysed below.

In Mohamed Abdulla v Khoja Juma 1904-1910 Uganda protectorate law reports court refused to

dismiss an appeal on the grounds of delay in presenting it by noting that, in the majority of cases in

Uganda circumstances do not admit of an appeal being filed within so short a time. The time taken

in communication and the absence of legal practitioners in the out-stations must be taken into

consideration."

in Bennet v Garvie (1917) 7 EALR 48 Hamilton CJ upheld a verbal contract and rejected the

application of the statute of Frands which prohibited contracts not in writing stated that " The order

in Council contained an important provision that statutes of general application shall be in force in

the protectorate so far only as the circumstances of the protectorate and its inhabitants and the

limits of His majesty's jurisdiction permit, and subject to such qualifications as local circumstances

render necessary. Having regard to this provision, I should hesitate long before saying that the

statute of Frands was suitable to the circumstances of the protectorate and its inhabitants." Then he

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went ahead and stated " What may be suitable to a Highway civilised country like England may

entirely be unsuitable to a country such as this where a small fraction only of the population can

read and write and there are grave objections to holding that an Act of the nature is suitable to

some of the population of the protectorate and not to all for that would inevitably tend to an

uncertain the people are unhappy. And we have enough uncertainties in the law in this country

today without my adding another" he thus held that the said statute didn’t meet the standards of the

protectorate and its inhabitants.

In Gulam Mohamed v Ettel (1918) 1 ULR 290 court rejected the application of the (English Truck

Acts) which prevented contracts by an employer with a servant for giving him food in addition to

money wages for remuneration for his services court held that the circumstances in Uganda couldn’t

allow the application of such a statute by noting that, " in this country a large number of Indians are

brought over from India on contracts under which they are to be remunerated for their services by

receiving lodging and food as well as pay and there can be no doubt that frequently men of that

class would hesitate to go to a new country unless they were assured of being supplied with food

of a nature to which they are accustomed. it was therefore court's opinion that such contracts

shouldn’t be prohibited.

In Alimohamed Osman v Regina (1921-52) I.T.L.R (R) 39 the High Court of Tanganyika in holding

the appellant liable to have caused or permitted the vehicle to be used on a road while its tyres were

not properly maintained court stated that "conditions in Tanganyika are quite different from those

in the United Kingdom. Distances are greater, road surfaces are infinitely worse, and facilities for

repairs being carried out on vehicles are nothing like so great. One cannot expect the same of the

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generally poorly paid and little trained African that one does of the drivers employed by any English

transporting company."

In Kenya also the same view was held that before applying common law it must be subject to

qualification as per the circumstances of the country and its inhabitants permitted. This was seen in

the most widely reported case of Nyali Ltd v Attorney General (19571 ALL ER 646 where court

held that the common law principle that the Crown had a prerogative not to pay tax was not

applicable in Kenya as local circumstance did not permit. In his construction of the reception clause

of the English common law, Lord Denning observed that; "The next proviso provides, however,

that the common law is to apply 'subject to such qualifications as local circumstances render

necessary.' This wise provision should, I think, be liberally constructed. It is a recognition that the

common law cannot be applied in a foreign land without considerable qualification. It has many

principles of manifest justice and good sense which can be applied with advantages to people of

every race and colour all the world over. But it also has many refinements, subtleties and

technicalities which are not suited to other folk. These off shoots must be cut away. In these off

lands the people must have a law which they understand and which they will respect. The common

law cannot fulfil this role except with considerable qualifications. The task of making these

qualifications is entrusted to the judges of these lands. It is a great task which calls for all their

wisdom."

The issue of qualifying English Law was further considered in the case of Moonlight Sengoba

Salongo v Administrator General (HCCS NO 894 of 1973) court allowed the application of the

Property Act to Uganda so far as the circumstances of Uganda and its inhabitants permit and subject

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to such qualification as those circumstances render necessary. Court noted that the Act was not

repugnant to custom since the contracts Act had allowed women to contract and as such the Act

was applicable to Uganda and was not modified by custom.

The qualification of the English law was also addressed by statutes that were enacted. This

provision was later incorporated in the Judicature Act (Cap 34) of 1962 (now repealed) which under

its Section 2 declared that the Jurisdiction of the High Court was to be exercised subject to the

Constitution

In conformity with the written laws in force on 9th October 1962 including the laws applied by the

act, or may hereafter be applied or enacted;

Subject to such written laws and so far as the same do not extend or apply –

in conformity with the substance of the common law, the doctrines of equity and the statutes of

general application in force in England on the 11th August 1902

Provided that the said common law, doctrines of equity and statutes of general application shall be

in force in Uganda only so far as the circumstances of Uganda permit, and subject to such

qualifications as local circumstances may render necessary.”

Difficulties also arose from the phrase "statutes of general application". There was no certain test

which could be applied to determine whether a particular statute is or is not one of general

application and there could therefore be no certainty of the applicability of any particular statute

until a decision on the matter had actually been taken by court. As noted above courts always

applied the statute subject to qualification. However, in Bennet v Garvie court noted that since the

statute of Frands dealt with the sale of land in England only, with all its peculiar incidents, a law of

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that character could not be considered a statute of general application applicable under the Order in

Council for the sale of land in East Africa. However this challenge was later dealt with by statute

and the case of Moonlight Sengoba.

In 1967, statutes of general application ceased to apply in Uganda by virtue of the Judicature Act

No. 11 of 1967, which provides under its Section 3 that the Jurisdiction of the High Court was to

be exercised subject to the Constitution in conformity with the written law including any law in

force immediately before the commencement of this act;

Subject to any written law and in so far as the same does not extend or apply, and in conformity

with; the common law and the doctrines of equity; Any established and current customs or usage…

Where no express law, or rule is applicable to any matter in issue before the High Court in

conformity with the principles of justice, equity and good conscience;

The applied law, the common law and the doctrines of equity shall be in force only in so far as the

circumstances in Uganda and of its people permit and subject to such qualifications as the

circumstances may render necessary.

According to the Platt J. S. C, in Uganda Motors Limited v. Wavah Holdings Limited (Civil appeal

No 19/1991) [1992] UGSC 1,

The “applied law” refers to the laws applied in the Act (Sec 47 of Act 11 of 1967 and the schedules).

They follow on from the schedules to the Judicature Act of 1962. These are not the Acts of general

application which later acts are not specified in the schedules of the Judicature Act of 1962. The

reference to 11th August 1902 in the 1967 Act is that in section 47, and is related to amendments

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in scheduled Acts before that date.

The conclusion can only be that the Acts of general application no longer have any place in the

jurisdiction of the High Court…

The other challenge was the exercise of Jurisdiction by the High court in cases which involved

natives and the application of customary law. The issue always was whether the High Court had

jurisdiction to administer customary law and the effect of the conflict between common law and

customary law. This was addressed through a number of cases as discussed below.

Reuben Musanje v Tomasi Yamulemye[1961] 1 EA 716 (CAK

The issue was whether the High Court had jurisdiction in a case involving only natives. The

appellant contended that the Buganda Principal court was the one with jurisdiction. in his holding

Forbes held that It is clear from the provisions of s. 20 that the English common law, in its

application to Uganda in cases to which natives are parties, is subject to native law (except in so far

as such native law may be repugnant to justice or morality); but native law is subject, inter alia, to

the provisions of any Ordinance. In these circumstances, where a case between Africans in Buganda

purports to be “taken under” English common law, if the cause of action is known to native law, it

is the native law which is to be applied. On the other hand, since an Ordinance overrides native law

in case of inconsistency, where a case is taken under the provisions of an Ordinance those provisions

prevail and must be applied. It was thus held that the High Court had jurisdiction.

However it must be noted that the provisions of s. 20 of the 1902 Order in Council were revoked

by the Uganda (Constitution) Order in council 1962 with effect from March 1, 1962, were not re-

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enacted by the Judicature Ordinance, 1962,

The above case was applied in Wamala v Sebutemba (1963) EA 631 there was an application for

the transfer of the suit from the High Court to the Principal Court of Buganda, court held by virtue

of the revocation of s. 20 of the Uganda Order in Council, 1902, the High Court is no longer required

to be guided by “native law” in every case in which Africans are parties, and the Ordinances in

force and the statutes of the Uganda Parliament do not now necessarily prevail over laws enacted

by the Buganda Legislature;( ii) an African litigant may come to the High Court and seek the redress

to which he considers he is entitled under an Ordinance, statute or any English or Indian law

(including the common law of England) in force in Uganda against another African on a cause of

action arising in Buganda; (iii) in considering whether the Principal Court or other court has

jurisdiction, the High Court must, in addition to the principles enunciated in the case of Reuben

Musanje v. Tomasi Yamulemye (1), be satisfied that such a court will not be required to administer

and enforce on behalf of either party, in the absence of “written law” such parts of the laws of

England, including the common law, as are in force in Uganda at the time of the application for

transfer. The court was not persuaded that the Principal Court had jurisdiction to try the issues

between the parties

In Kabaka's Government v Musa Kitonto, (1965) EA 278, the issue was which court had jurisdiction

if the plaint when the plaint if framed as a common law action but the defendant claims that the

cause of action is known to native customary law? The court considered the position of the law

before the repeal of S.20 of the 1902 order in Council as enunciated by Forbes in Musanje"s case

already stated above. then court considered the effect of the repeal of that section and concluded

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that "a suit which in form is taken under the common law, to which Africans only are parties, is

within the sole jurisdiction of the Buganda Courts if the cause of action is recognised by Buganda

customary law, whether developed and became recognised as such before 1902 or after. in other

words, where common law and customary law conflict, the customary law prevails and support for

this view is to be found in the proviso of s. 2 of the Judicature Ordinance which provides that the

common law shall be in force only so far as circumstances of Uganda and its inhabitants permit,

and subject to such qualifications as local circumstances render necessary.

court held that the proceedings should be transferred to the Buganda Principal court on the grounds

that the common law tort of negligence and vicarious responsibility are known to and form part of

Buganda Customary law and because it did not appear that any ordinance or applied statute or

English common law concept unknown to customary law would be likely to be invoked.

From the above it can be rightly concluded that the reception of Common Law brought about the

challenge of conflict of laws. However this matter was resolved majorly by courts through the cases

decided as noted above and also by enactment of the Judicature ordinances that repealed some of

the provisions of the Orders in Council.

The current law applicable in Uganda is governed by the Judicature Act cap 13 which provides

under S. 14 that, The High Court shall, subject to the Constitution, have unlimited original

jurisdiction in all matters and such appellate and other jurisdiction as may be conferred on it by the

Constitution or this Act or any other law.

(2) Subject to the Constitution and this Act, the jurisdiction of the

High Court shall be exercised—

in conformity with the written law and insofar as the written law does not extend or apply, in

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conformity with— the common law and the doctrines of equity; any established and current custom

or usage; and (3) The applied law, the common law and the doctrines of equity shall be in force

only insofar as the circumstances of Uganda and of its peoples permit, and subject to such

qualifications as circumstances may render necessary.

(4) Subject to subsection (2), in every cause or matter before the High

Court, the rules of equity and the rules of common law shall be administered concurrently; and if

there is a conflict or variance between the rules of equity and the rules of common law with

reference to the same subject, the rules of equity shall prevail. (5) For the purposes of this section,

the expressions “common 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.

However the constitution remains the supreme law of the land and any law inconsistent with it is

void to the extent of its inconsistency.

Whether the colonial masters followed Lord Denning's advice during the reception of the

common law in Uganda?

In my view, the colonial masters actually followed Lord denning's advice as discussed below.

In the first place the Consular Court established under the African Order in Council 1889 provided

that jurisdiction should be exercised "so far as circumstances permitted be exercised upon the

principles of and in conformity with the substance of the law for the time being in force in England.”

By adding the words so far as circumstances permitted meant that the colonial masters were

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conscious that common law could not be applied and enforced on the people just like in England.

This view is further fortressed by the promulgation of the 1902 Uganda Order in council as amended

which raised 3 important points.

Firstly under Article 15 of the Order-in-Council, a High Court of Uganda to be known as His

Majesty’s High Court of Uganda with full civil and criminal jurisdictions in all cases and over all

persons in Uganda. jurisdiction was to be exercised, "as far as circumstances permitted, in

conformity with the Civil Procedure, Criminal Procedure and Penal Codes of India except so far as

might otherwise be provided by law." ordinances could be passed by the Governor and later the

Legislative Council subject to the Secretary of state's right of disallowance.

secondly the Order as amended provided that the common law, doctrines of equity and statutes of

general application were to be inforce in Uganda only "so far as "the circumstances of the

Protectorate and its inhabitants and the High Court's jurisdiction and subject to such

qualifications as local circumstances render necessary"

And thirdly the Order recognised native law (customary law) provided the same was not repugnant

to justice and morality. S.20 of the 1902 Order in Council provided that in all cases, civil and

criminal, to which natives are parties, every court (a) shall be guided by native law so far as it is

applicable and is not repugnant to justice and morality or inconsistent with any Order in Council or

Ordinance, or any regulation or rule made under any Order in Council or Ordinance; and

(b) shall decide all such cases according to substantial justice without undue regard to technicalities

of procedure and without undue delay

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It should be noted that the colonial masters aware of the fact that these people needed a law which

they could understand and that the common law needed such careful tending went ahead and

established alongside the High Court, the Principal Court in Buganda. This court was to administer

justice in cases between natives by applying native law. This was provided for under the Buganda

Courts Ordinance where S. 7 of the Ordinance provided for the constitution of native courts in

Buganda and Section 3 related to the principal court of Buganda.

Further it must be noted that most cases discussed under part (a) were all referring to the

qualification clause of the 1902 Order in Council as amended. The provision to subject common

law to such qualification as local circumstances render necessary had been provided for in the Order

long before Lord Denning's advice in Nyali Ltd v Attorney General. it must be pointed out that even

before Lord Denning gave his statement, he first referred to the 1902 Order in Council in regard to

the qualification clause, he then went ahead to emphasise the importance of qualifying common

law according to circumstances, however this had already been recognised by the colonial masters

and it was left to the courts to determine under what circumstances common law was applicable or

not.

REFERENCES

Kanyeihamba, G. W. (2010). Constitutional and Political History of Uganda . Kampala:

LawAfrica.

Makubuya, K. (1983). Introduction to Law: The Uganda Case.

Read, M. a. (1966). Uganda; The Development of its Laws and Constitution. London: Stevens and
Sons.

WHAT DOES IT PROFIT A MAN TO CONGQUER THE WHOLE WORLD YET LOSE HIS SOUL. AMDG SON OF LOYOLA 42
Seidman, R. B. (1969). The Reception of Colonial Law in Africa. Eastern Africa Law Review.

4. APPLIED LAW

S. 2(g) of the Interpretation Act defines Applied law to mean an Act of the Parliament of the United
Kingdom or an Order-in-Council or other legislative instrument made thereunder otherwise than
by an authority in Uganda (excluding the constitutional instruments), which has effect in Uganda

According to the Platt J. S. C, in Uganda Motors Limited v. Wavah Holdings Limited (Civil appeal
No 19/1991) [1992] UGSC 1, the “applied law” refers to the laws applied in the Act (see Sec 47
of Act 11 of 1967 and the schedules). They follow on from the schedules to the Judicature Act of
1962. These are not the Acts of general application which later acts are not specified in the schedules
of the Judicature Act of 1962. The reference to 11th August 1902 in the 1967 Act is that in section
47, and is related to amendments in scheduled Acts before that date.

5 CUSTOMARY LAW ( to be discussed later in full)

It is unwritten and is based on the customs, traditions and norms of a given people. It is among the

law applicable in Uganda as per S. 14, and 15 of the Judicature Act.

It is applicable to civil law but not under criminal law because it is not written. The principle of

legality in criminal laws require all offences to be under a written law. Art 28(12) of the

Constitution, hence, customary law cannot describe an offence and penalty.

It is applicable in Family law, land, property, customary marriages etc.

Customary law is only applicable where it is not repugnant to natural justice, equity and good
conscience and not incompatible either directly or by necessary implication with any written law.
S. 15 Judicature Act.

THE LAW MAKING PROCESS

There are two types of laws, that is principle and subsidiary laws. Principle laws are those made by
parliament and are superior to subsidiary laws which are enacted by authorities to whom parliament
delegates its powers.

The role of legislation; why make laws?

 Legislation lays down powers, duties, functions and privileges of respective officers.
 It states what can be done or not.

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  The main purpose under Art 79 is to promote peace, order, development and good
governance in Uganda.
 To avoid chaos anarchy and the rule of the jungle
 It’s through legislation that the government reduces its policies into legally binding
obligations.
 Whatever has not been covered by law or provided by the law (legislation) will ordinarily
be illegal if it’s done.

General principles of law making.

 Drafting of legislation should be in a clear, simple and precise language to avoid ambiguity
and misunderstanding.
 Legislation should take into account the end user of the law to whom the law is to apply and
the person responsible for applying the law.
 The Acts should be concise and the content should be simple and not very long/split into
subsections.
 Terminology used should be consistent internally and with other laws especially in the same
field.
 It should have an interpretation section.
 It should use a gender neutral language. Specific words like he/she should be avoided. Just
say “a person” unless the substance refers to only one gender.
 When expressed in different languages, they should be identical in structure and substance.

Generally these should be observed.

 Material should be arranged in an orderly manner.
 There should be sections and subsections which covers the details.

Enactment process of an Act of Parliament.

LEGISLATIVE PROCESS IN UGANDA

In Uganda, Parliament has power to make laws on any matter as provided for under Article 79 of
the 1995 Constitution. Most legislation is initiated by the Executive branch of government. This is
because it usually articulates what government has already reflected in its policy. But because
policy does not carry the weight of law, the Executive is usually motivated to translate important
policies into legislation.

A Bill is a proposed law. When passed by Parliament and assented to by the President or otherwise
as provided for in the constitution it is referred to as an Act of Parliament. There are two types of
Bills; Government Bills (Bills initiated by the Government departments or ministries and sponsored
by Government) and Private Members’ Bills (initiated by a Member of Parliament)

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The legislative process takes the following steps when legislation is being proposed by a
Ministry or Government Department in Uganda –

1. The Ministry concerned approaches Cabinet through a Cabinet Memorandum with a proposal
for Cabinet to approve the principles for the drafting of the Bill. Cabinet approval in principle is
required before drafting of the subject legislation. This is provided for under paragraph 2 of Section
(Q-b) of the Uganda Public Service Standing Orders, 2010.

2. Paragraph 2(b) of Section (Q-b) however permits a Bill to be drafted by the First
Parliamentary Counsel if the Attorney General or Solicitor General authorises the drafting of the
Bill without reference to Cabinet. According to the paragraph, this authority should be granted only
in special circumstances. The request for the authority should be made through the responsible
Minister.

3. Cabinet then considers the proposals as contained in the Cabinet Memorandum of the Ministry
concerned and approves the principles on the basis of which a Bill is to be drafted.

4. When Cabinet approves the principles for the drafting of a Bill, it authorises the responsible
Minister to issue drafting instructions to the First Parliamentary Counsel/Attorney General to draft
the necessary legislation.

5. The Ministry concerned would then request the First Parliamentary Counsel through the Attorney
General to draft the legislation on the basis of the approved principles as contained in a Cabinet
Minute.

6. Where the instructions are not clear, the First Parliamentary Counsel will ask the Ministry
concerned for further instructions and where necessary request that Ministry to identify an officer
in the Ministry to liaise with the office of First Parliamentary Counsel in the drafting of the Bill.

7. In drafting the legislation, the office of the First Parliamentary Counsel will interact with the
Ministry concerned to arrive at an agreed draft.

8. The Ministry concerned may again consult stakeholders as to the contents of the Bill.

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9. The Ministry concerned will have to submit the Bill to Cabinet for approval together with a
Cabinet Memorandum and any comments of the stakeholders. Paragraph 7 of Section (Q-b) of the
Uganda Public Service Standing Orders, 2010 provides that no Bill without exception should be
published unless it has been submitted to Cabinet for approval.

10. In the course of drafting the Bill the draftsperson is required to bear in mind the need to keep
informed the Law Officers namely, the Attorney General and the Solicitor General. This is
regulated by paragraph 6 of Section (Q-b).

Submission of Bill to Cabinet

11. When the Bill is being submitted to Cabinet for approval, the Cabinet memorandum of the
Ministry will have to be accompanied by-

(a) a certificate of compliance issued by the Office of the First Parliamentary Counsel to the effect
that the Bill has been drafted by the Office of the First Parliamentary Counsel in accordance with
the principles approved in the Cabinet decision issued for the drafting of the Bill or that the Bill has
been drafted on the basis of a waiver of prior Cabinet approval in principle by the Attorney General
or the Solicitor General under para. 2(b) of Section (Q-b) of the Uganda Public Service Standing
Orders.

(b) a certificate of financial implications issued by the Ministry of Finance in accordance with
section 10 of the Budget Act, 2001 and rule 107 of the Rules of Procedure of Parliament, 2012 (the
Rules), stating in respect of the Bill in question the financial implications if any, on revenue and
expenditure over the period of not less than two years after its coming into force. Rule 107(2) of
the Rules requires the certificate of financial implications to be signed by the Minister responsible
for finance.

12. Cabinet may approve or reject the Bill or may approve the Bill subject to amendments.

13. The Office of the First Parliamentary Counsel will then incorporate any amendments approved
by Cabinet in the Bill and seek the signature of the Minister concerned to an explanatory
memorandum attached to the Bill.

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14. Rule 106(2) of the Rules requires that all Bills shall be accompanied by an explanatory
memorandum setting out the policy and principles of the Bill, the defects in the existing law if any,
the remedies proposed to deal with those defects and the necessity for introduction of the Bill.
According to rule 106(3), the explanatory memorandum shall be signed by the Minister or by a
member introducing the Bill (in the case of a Private Member’s Bill).

15. The First Parliamentary Counsel will authorise the Government Printer, the Uganda Printing
and Publishing Corporation (UPPC) to print and publish the Bill in the Uganda Gazette.

16. The Ministry concerned must issue a Local Purchase Order (LPO) to be issued in favour of the
Government Printer (UPPC) to cover the costs of printing and publishing the Bill. This is based on
an estimate of costs issued by the Government Printer.

17. Rule 106(1) of the Rules of Procedure of Parliament provides that all Bills shall be published
in the Gazette.

18. After publication in the Gazette, the Ministry concerned will have to supply about 450 copies
of the Bill to the Clerk to Parliament for use by parliamentarians.

19. The Ministry concerned will also have to supply to Parliament the certificate of financial
implications to be tabled in Parliament for the First Reading of the Bill.

Introduction of the Bill in Parliament

20. The Bill then goes through the processes of Parliament necessary for passing a Bill. Rule 114
of the Rules provides that every Bill shall be read three times prior to its being passed. The processes
are prescribed by the Rules from Parts XVIII - XXI as follows-

(a) First Reading: which is a formality, marks the formal introduction of the
Bill in Parliament and the Bill is then committed to the relevant Sessional Committee of Parliament
for consideration. At this stage, the committee will normally invite the relevant Minister to

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introduce the Bill and may invite other stakeholders to state their views on the provisions of the Bill
and the committee may even sometimes hold hearings for the purpose.

(b) Submission of Report by the Sessional Committee. The committee must submit a report on
the Bill to the plenary of Parliament and at the same time, Parliament will consider the Bill at
Second Reading which is a debate on the principles and policies of the Bill and not on its details.
According to rule 119(5) of the Rules (subject to the Rules) the Second Reading of the Bill shall
not be taken earlier than the fourteenth day after publication of the Bill in the Gazette, unless the
subrule is formally suspended for the purpose.

(c) Committee of the Whole House Stage: This is the stage of the Bill at which Parliament deals
with the provisions of the Bill, clause by clause and all proposed amendments to the Bill. The
Committee Stage is regulated by Part XX of the Rules (rules 120 - 124) of the Rules.

(d) At Committee Stage, the Speaker sits in the well of the House as chairperson of the Committee
of the Whole House considering amendments to the Bill. (See rule 122(1)).

(e) According to rule 123(4) of the Rules of Procedure of Parliament the Committee of the whole
House shall consider proposed amendments by the Committee to which the Bill was referred and
may consider proposed amendments, on notice, where the amendments were presented but rejected
by the relevant Committee or where, for reasonable cause, the amendments were not presented
before the relevant Committee.

(f) Report of Committee after Committee Stage: This is where the Committee of the Whole
House reports to the plenary on the Bill which has been committed and amendments are considered.
(See rule 125).

(g) Re-committal: This is a stage which comes at the end of the Committee Stage where it is felt
that there are still certain amendments which have to be considered or reconsidered. (See Part XXI
rule 127).

(h) Third Reading and passing of the Bill: At this stage the Bill is not debated and it is passed as
a formality upon a motion “that the Bill be now read Third Time and do pass” (rule 126 of the
Rules).

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21. Withdrawal of Bills
“The member in charge of a Bill may, at any time, give notice that he or she wishes to withdraw a
Bill subject to the approval of the House” (rule 129(1). The procedure for reintroducing the Bill is
provided for under rule 129(2).
22. Delays with Bills
In order to prevent delays by Committees of Parliament to which Bills are sent for consideration,
rule 130 of the Rules provides as follows;

“DELAYS WITH BILLS

(1) Subject to the Constitution, no Bill introduced in the House shall be with the Committee for
consideration for more than forty-five days.
(2) If a Committee finds itself unable to complete consideration of any Bill referred to it in sub-rule
(1), the Committee may seek extra time from Parliament.
(3) Where extra time is not granted or upon expiry of the extra time granted under sub-rule (2), the
House shall proceed to deal with the Bill without further delay.”

23. Assent and Publication of Acts

After the third reading the bill is forwarded to the government printers for printing and then checked
for accuracy by the Clerk of Parliament. S. 8 of the Acts of Parliament Act provides that (1) as
soon as possible after a bill has been passed by Parliament, the clerk shall cause the text of the bill
as passed to be sent to the Government printer who shall print ten copies of the bill on vellum or
on paper of enduring quality and send the copies as printed to the clerk. (2) On receiving the copies,
the clerk shall—
(a) cause to be made in the copies such corrections as relate to misprints, typographical errors and
wrong references, if any, as are necessary;
(b) carefully compare the copies with the text of the bill as passed;
(c) if the copies are found to be correct sign on each copy a statement in the form set out in Part I
of the Second Schedule to this Act; and
(d) cause the copies to be presented to the President for assent.
Article 91(2) provides that a Bill passed by Parliament shall, as soon as possible, be presented to
the President for assent. The president has thirty (30) days within which to assent to the Bill or if
he declines to do so, either return the Bill to parliament with a request that a particular provision be
reconsidered or notify the speaker in writing that he has refused.

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According to S. 9 of the Acts of Parliament Act, the president assents to the Bill by signing on each
of the 10 copies of the Bill a statement in the form set out in part II of the schedule of the Acts of
Parliament Act. When the president appends his signature on the first of the 10 copies presented to
him at that moment the Bill becomes an Act of Parliament. But where it becomes an Act of
Parliament without presidential assent, it becomes an act on the day the speaker causes a copy of
the Bill to be laid before parliament.
An Act of Parliament becomes an Act without presidential assent in situations where the President
returns the same bill twice the bill is passed for the third time, with the support of at least two-thirds
of all members of Parliament, and also where the President fails to assent within the 30 day period,
the President shall be taken to have assented to the bill and at the expiration of that period, the
Speaker shall cause a copy of the bill to be laid before Parliament, and the bill shall become law
without the assent of the President. This is provided for under Article 91. Under s. 19 of the Acts
of Parliament Act, this is considered as the date of passing the Act.
The Act must be published immediately after the assent of the president or where the Bill has
become law without the assent of the president. Article 91(8) provides that a Bill passed by
Parliament and assented to by the President or which has otherwise become law under this article
shall be an Act of Parliament and shall be published in the Gazette.
The Acts of Parliament are numbered consequently in the order in which they become legislation
in that year. This is provided for under s. 11 of the Acts of Parliament Act which provides that Acts
shall be numbered consecutively in the order in which they become Acts and the numbering shall
begin afresh at the commencement of a calendar year.

Commencement.
The Act will come into force on the date provided in the law or where no date is provided, a minister
is given power to choose a commencement date or if the date is not chose by the minister, then the
date of its publication as notified in the gazette. This is referred to as the commencement Date under
S. 14 of the Acts of Parliament Act.

24. Private Member’s Bill under Article 94(4) of the Constitution

The foregoing information relates to Bills initiated by the Executive. However, the Constitution
also provides for the initiation of Bills by private members of Parliament.

25. Thus article 94 (4) of the Constitution provides that the rules of procedure of
Parliament shall include the following provisions-
“(b) a member of Parliament has the right to move a private member’s Bill;
(c) the member moving the private member’s Bill shall be afforded reasonable

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assistance by the department of Government whose area of operation is affected by the Bill; and
(d) the office of the Attorney General shall afford the member moving the Private Member’s Bill
professional assistance in the drafting of the Bill.”

26. Following the provisions of the Constitution, rule 110 provides for the Private
Member’s Bill and rule 111 of the Rules provides for the following procedure in respect of a Private
Member’s Bill-
“111.(1) A Private Member’s Bill shall be introduced first by way of motion to which shall be
attached the proposed draft of the Bill.
(2) If the motion is carried, the printing and publication of the Bill in the Gazette shall be the
responsibility of the Clerk.
(3) Following the publication of the Bill in the Gazette, the progress of the Bill shall be the same
as that followed in respect of a Government Bill.”

27. Certain provisions not applicable to Private Member’s Bill

Needless to say, a Private Member’s Bill not being a Government Bill will not require Cabinet
approval. It however requires a certificate of financial implications from the Ministry of Finance,
Planning and Economic Development, just as does a Government Bill. It also will not require a
certificate of compliance issued by the Office of the First Parliamentary Counsel. Otherwise the
procedure for processing a Private
Member’s Bill is the same as that of a Government Bill.

28. Bills introduced by Committees under rule 147

A Committee of the House may initiate any Bill within its area of competence and shall be
introduced by the Chairperson of the Committee in the same manner as a private member’s Bill.
(See rules 112 and 147 (b)).

29. Certain provisions of the Acts of Parliament

Act Cap. 2 relevant to processing of legislation
The following provisions of the Acts of Parliament Act, Cap 2 are relevant and to be observed in
connection with the processing of legislation in Uganda.

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Section 3- Title
Every Act shall bear at the head a short title immediately followed by a long title describing the
leading provisions of the Act.

Section 4- Words of enactment

(1) Every Act shall be prefaced by the words of enactment specified in the First
Schedule to this Act.
(2) The words of enactment shall be taken to extend to all sections and to any schedules and other
provisions contained in the Act.

The words of enactment referred to above are the following “ENACTED by

Parliament as follows;”

Section 15- Citation

The citation of the short title to an Act shall be sufficient to identify the Act.
Comment
Because of this provision there is no longer the need to include a short title clause after a short title
is incorporated in accordance with section 15 of the Acts of Parliament Act.

Section 17- Amendment and repeal in same session

An Act passed in any session of Parliament may be amended or repealed in the same session.
Amendment is adjusting an existing law. When you remove the entire law or entire section, we say
it was repealed. Express repeal is where the law is repealed in express terms. Implied repeal is
where a given court declare certain provisions of the law unconstitutional. Refer to Uganda
Association of Women Lawyers and Others v. Attorney General where several provisions of the
Divorce Act were declared null and void for discriminating against women.
The law may be amended so as to suit the demands of the day. Refer to the arguments by the
proponents of the Magyezi Bill; Constitution Amendment Act 2017

Question;

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“The role of parliament as a law making organ is relegated to mere debate other than actually
passing the laws. The president plays a predominant role in the passing of the laws, without
his participation, the parliament’s hands are tied.” Discuss the above statement in relationship
to the law making process in Uganda as provided for under the Constitution.

Approach; Discuss the process by which parliament enacts laws clearly indicating the role played
by the President in that process.

Subsidiary legislation.
This derives its authority from principle legislation. Principle legislation is higher than subsidiary
legislation.

The main reasons which result in the need for delegated legislation are;
Although it is frowned upon by the traditional conservatives because of its infringement on the
doctrine of separation of powers, it is nonetheless a necessary evil. According to Wade –
Administrative Law, it is more possible to justify it in theory than it is to do without it in practice.

i) Parliament has no sufficient resources, time and personnel to attend to all matters. Thus it is
enough for Parliament to concern itself cult principles but their application in the detailed
regulations is left to the administrative bodies. Besides, there is need not to be too much detail in
the Act itself which can lead to difficulty, for example, the Town and County Planning Act imposes
planning controls on building operations. However, the details of planning controls are provided
for under rules and regulations made by responsible Minister.

ii) There is need to deal with emergencies and unforeseen circumstances by allowing for flexibility.
Consequently, departments, ministries and local authorities have to be armed with powers to make
orders and regulations to deal with emergencies such as animal diseases, wars and other economic
crises. Thus, subsidiary legislation enables the executive to authorize certain actions.

iii) Sometimes the subject matter on which legislation is required is of too technical a nature for
Parliamentarians to understand. Thus legislation in such cases needs to be entrusted to experienced
and professionals who have expertise in the quiet areas.

iv) Parliament has a bulk of business to attend to due to increased activities in the state life. For
instance, it has to approve budgets, government appointments as well as attending to other national
business, thus there is no time for Parliament to legislate on everything.

v) It enables a specialized approach to local issues applicable to a geographical area and this
especially with regard to byelaws and ordinances made by the sub-county councils and district
councils under the Local Governments Act.

vi) There is flexibility in delegated legislation, because if a ministerial order proves impracticable
then it can be revoked quickly

vii) Future difficulties are better dealt with delegated legislation specifically when new schemes
e.g. service charges are introduced

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 Criticism of Delegated Legislation

i) As already stated, subsidiary legislation is incompatible with the doctrine of separation of powers
because it invites the executive branch of government to legislate. This infringes on the principles
of democracy since people are not allowed to make laws through their elected representatives.

ii) Both parliamentary and judicial controls which are supposed to regulate subsidiary legislation
are inadequate and they cannot keep watch of all the byelaws and inadequate.

iii) One of the advantages is that it allows for flexibility but this is at the expense of uniformity.
Local authorities make laws suited to their particular circumstances which lead to different byelaws
in different areas. This sometimes thus defeats the objectives of the Parent Act.

iv) It is generally unavailable to lawyers and the public. This is because too many volumes are
produced every year and keeping an eye on every byelaw or statutory instrument is difficult.
v) Sometimes the ministers are given the powers to legislate on matters of principle. Such matters
must be dealt with by the parliament
Vi) In some cases the powers are given to ministers to impose taxes e.g, local rates. The authority
to impose taxes should remain in the hands of Parliament
Vii) Publicity of delegated legislation is inadequate so the individuals may not be aware about the
rules and orders passed by the Ministers
Viii) The delegated powers are so wide, thus creates uncertainty about the prevailing laws

Procedure for making subsidiary legislation.

Apart from the particular procedures prescribed by Acts of Parliament authorizing subsidiary
legislation, for instance the 3rd Schedule to the Local Governments Act, there are generally
procedures which must be compiled with when making subsidiary legislation.

i) Consultation – This is normally done among the people who are likely to be the subjects of the
subsidiary legislation or a body of experts in that field. It takes various forms ranging from public
discussions to allowing members of the public submit written views in form of memoranda.

ii) Publication – This normally makes two forms, antecedent publication whereby the instrument
is supposed to be published before it becomes law. For instance, under S. 38(4), a bill by a District
Council is supposed to be published both in the Gazette and the local media.

The second form of publication is subsequent publication. This is where subsidiary legislation has
been passed but must be published in the Gazette and the local media before it enters into force.
iii) Approval – Most of the Parent Acts put in place approval as a requirement for subsidiary
legislation. This is normally done by a higher authority. For instance, under Section 38(2) a District
ordinance must be submitted to the Attorney General

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for approval before it can enter into force. Similarly, most statutory instruments made by Ministers
are approved by the Cabinet.
Approval may also be required to be obtained from Parliament. This may involve laying the
statutory instrument before Parliament for an affirmative resolution or simply to be tabled for
notification of Parliament. It is expected that Parliament may resolve on the statutory instrument if
it does not promote the intended objectives.

The failure to comply with any of the above requirements may render the resulting Ordinance,
Byelaw or statutory instrument invalid. Thus in R Vs. Wakiso Estates (1955) 7 ULR 137, the
Employment Ordinance gave powers to the Governor to make regulations but such regulations after
being made had to be read before the Legislative Council for approval before entering into force.
The rules which the accused had breached were made at Entebbe on 21st May 1946 and approved
by the Legislative Council on 30th April 1946. The issue before court was whether the non-
compliance with the procedure was fatal to the validity of the rules. Court held that the rules were
invalid because they did not comply with the procedural requirements under the Employment
Ordinance. To arrive at that ruling, court stated that there is nothing which was approved on 30th
April 1946 because the rules had not been made and were only made on 21st May 1946.

Detailed procedure as provided for under the Third Schedule of the Local Government’s Act.

Procedure for making Ordinances.

15. Members may introduce bills for ordinances.
(1) Every member of the district council or city council has a right to introduce a bill for an
ordinance in the council.
(2) A councillor introducing a bill for an ordinance shall be afforded reasonable assistance by the
council’s department whose area of operation is affected by the bill.
(3) A bill for an ordinance introduced by a member shall, before its publication, first be introduced
by a motion to which the proposed bill is attached, and if the motion is carried then the bill will be
published.

16. Method of publication of a bill.

(1) The council shall, not later than fourteen days before a bill is to be debated by the council,
publish the draft—
(a) by fixing a copy of the bill in a conspicuous place on or near the outer door of the office of the
district council during office hours;
(b) by including the bill as a supplement to an official local publication, if any;
(c) by availing copies of the bill to the public; or
(d) in any other manner as is customary in the area.
(2) There shall be attached to the bill for publication a short memorandum signed by the person
introducing the bill, setting out the policy matter of the bill and how the bill seeks to implement that
policy.

17. Bill to have a title.

(1) Each bill shall be identified by a title placed at the beginning of the bill.
(2) The title of the bill shall include the subject matter of the ordinance in general terms.

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18. Ordaining clause.
(1) Each bill shall have an ordaining clause placed immediately below the title of the bill.
(2) The ordaining clause shall read as follows—
“BE IT ORDAINED by the council of the district of (name of district) as follows:”
19. Distribution of copies of a bill to members.
On publication of the bill, the clerk shall distribute copies to the members ensuring that each
councilor gets a copy to enable the members to study the bill and consult on it in their constituencies.

20. Debating the bill.

(1) Debating of the bill shall take place at least fourteen days after its publication.
(2) In case of a public emergency, subregulation (1) of this regulation may be waived by a resolution
of the council.
(3) At the beginning of the debate, the speaker shall call the name of the member introducing the
bill to introduce it.
(4) The clerk shall then read the title of the bill after which the member called upon shall give the
introductory speech giving reasons for introducing the bill.
(5) A full debate shall then follow on the basis of the memorandum and the introductory speech.
(6) Amendments to the bill may be moved by members, in writing, at any time before the closure
of the debate.
(7) At the close of the debate the speaker shall put the question in respect of each clause of the bill
as published or as is amended by any member.
(8) The bill shall be passed if all clauses are passed by the members as published or as amended by
the council.

21. Signing a bill into an ordinance and publication.

(1) On the return of the bill from the Attorney General with or without amendments, the chairperson
shall place his or her signature on five copies of the bill which copies shall be kept as follows—
(a) the chairperson, one copy;
(b) the speaker, one copy;
(c) the Minister, one copy;
(d) the Attorney General, two copies one of which shall be for publication in the Gazette.
(2) On publication of the ordinance the date of signature and the date of commencement shall be
indicated, and the ordinance shall be given a number in order of publication of the ordinances.
(3) An ordinance shall be published in the Gazette and also in the district in the same manner as the
bill is published in the district.

22. Procedure for making byelaws.

(1) Every councillor has a right to introduce a byelaw in his or her council.
(2) A councillor wishing to introduce a byelaw shall forward the byelaw to the chairperson who
shall—
(a) distribute or cause to be distributed copies to members of the council at least fourteen days
before the byelaw is to be debated;

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(b) publish or cause to be published a notice of the intention of making the byelaw and invite
representation in writing by any person who objects to the making of the byelaw within three weeks
from the date of the notice;
(c) publish or cause to be published in a manner specified in subregulation (6) the relevant byelaw
at the same period as the notice under paragraph (b).

(3) Subregulation 20(2), (4), (5), (6) and (8) shall apply to a meeting making a byelaw.
(4) During a debate on a byelaw any representation made under subregulation (2) shall be circulated
to members and shall be taken into consideration.
(5) After the passing of a byelaw and after the fulfilment of the provisions of section 39 of the Act,
the byelaw shall be signed by the chairperson and published in the manner specified under
subregulation (6).
(6) The provisions of regulation 16 relating to the method of publication of a bill shall apply to the
publication of a byelaw under this regulation.

From the above, the following are general requirements relating to the making of subsidiary
legislation.

 Consultation,
 Discussion
 Publication
 Approval; it has to be approved by a higher authority i.e parliament, office of the Attorney
General. S. 38(2) LGA

Question,
Although it is frowned upon by the traditional conservatives because it infringes on the doctrines
of separation of powers, it is nonetheless a necessary evil.” Discuss this statement in regard to
arguments for and against subsidiary legislation. Indicate the general procedures involved in this
type of legislation.

Control of delegated legislation

There is the danger of the subordinate abusing the powers of legislation given to him by statute. In
view of this danger, the law steps in to exercise some control
The delegated legislation may be controlled by
a. Courts
b. Parliament
Most of subsidiary legislation require approval by parliament as a requirement for passing of a
subsidiary legislation. Eg under S. 38(2) of the Local Government’s Act, an ordinance requires the
approval of the Attorney General.

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Also most statutory instruments must be approved by cabinet.
Approval may also be required to be obtained from parliament before coming into force.
Failure to comply with any of the above requirements may render any ordinance, bylaw or statutory
instrument invalid.

Judicial controls
The courts are endowed with powers to check on the excesses of administrative authorities which
are entrusted to make subsidiary legislation through a process called judicial review. According to
Oluyede, Administrative Law in East Africa, judicial review is a process by which courts control
the exercise of a power to make delegated legislation. The courts are concerned with whether
subsidiary legislation is constitutional and whether it complied with the procedural requirements
laid down by law after which they may invalidate the purported legislation. Other defects are
uncertainty, unreasonableness and the doctrine of ultra vires.

Some instances where Court may invalidate Subsidiary Legislation

i) Incompatibility with the Constitution

Art. 2 of the Constitution emphasizes the supremacy of the Constitution and provides that any other
law inconsistent with it is null and void to the extent of the inconsistency. Thus, laws made by
administrative authorities are also subjected to the Constitution.
Sometimes conflict with the Constitution is embodied in a wider principle of ultra vires which also
includes other defects like unreasonableness.

In Nanalal Damodar Kanji Vs. Tanga Township Authority (1940) 1 TLR 239, the accused
owned a house and papers were found outside it. He pleaded not guilty to a charge under Township
Rules which had been made under the Local Government Ordinance and contained a provision
stating “No one shall deposit any dust, refuse or obnoxious matter on the streets. If any
accumulation of rubbish is found near any person’s house, it will be prima facie evidence that the
owner of the house put it there”. It was held unconstitutional because it contravened the
constitutional presumption of innocence.

ii) Conflict with the Parent Statute or any other law made by a Higher Authority

Section 18(1) of the Interpretation Act Cap 3 provides that any statutory instrument which is
inconsistent with any provision of the Act under which it was made shall be void to the extent of
the inconsistency. This came up for adjudication in Koinange Mbui Vs R where the Crop
Production and Livestock Ordinance allowed the governor to fix by name all areas to which rules
for controlling crops might apply. He made rules stating that no coffee shall be grown by an African
except on a plantation approved by the Director of Agriculture. Court held that the rule was invalid
because it conflicted with the coffee industry Ordinance which allowed any person to plant coffee
anywhere as long as he obtained a licence.

iii) The Rule against Sub-delegation

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In pure legislative matters there is a rule that “delegates non potest delegare” which means a
delegate cannot delegate. Thus authorized sub-delegation will result in the invalidation of the
resulting ordinance, byelaw or statutory instrument.

In Gulamani Vs R, the governor was given power to make byelaws for the destruction of cotton
plants harbouring pests and diseases but this power was exercised by the Director of Agriculture.
The accused contravened it and was fined 300/-. His conviction was quashed on the ground that the
exercise of the power was unlawful.

iv) Uncertainty

A law which is uncertain as to its scope and application will be pulled down by the courts. This is
because laws must have no doubt as to what is prohibited and their application. In R Vs Hermitte
(1938) 18 KLR 55, the provision stated, “No one shall make any disturbance so as to be an
annoyance to the residents or passengers. It was held invalid for want of certainty because it was
not clear on what had been prohibited.

v) Unreasonableness

This ground of invalidity includes such instances as the prohibition being too wide or too narrow
or the punishment prescribed being too heavy or too light.

In Sheik Bros Vs Hotels Authority, by a regulation, the Hotels Authority was empowered to fix
accommodation percentages and entertain complaints and adjudicate upon them for the residents.
The Authority fixed 100% instead of the previous 85%. It was held that the Hotels Authority had
clearly exceeded its powers.
vi) Publication, both Antecedent and Subsequent

Under Section 16 of the Interpretation Act, every statutory instrument shall be published in the
Gazette and judicially noticed. Thus, failure to comply with such a requirement can render
subsidiary legislation invalid.

In Mwangi Vs R, the proprietor of an African barber shop was charged with overcharging in hair
cutting services. In 1948, an order had been made fixing the price at Shs 1 and published in the
Gazette. In 1949, it was repealed by Order 20 of 1949 which fixed the price at 50 cents but was not
published. Court held that it was invalid for want of publication.

vii) Failure to comply with Procedural Requirements

As already stated, failure to comply with procedural requirements will render subsidiary legislation
null and void (R Vs Wakiso Estates).
Thus in R Vs. Wakiso Estates (1955) 7 ULR 137, the Employment Ordinance gave powers to the
Governor to make regulations but such regulations after being made had to be read before the
Legislative Council for approval before entering into force. The rules which the accused had
breached were made at Entebbe on 21st May 1946 and approved by the Legislative Council on 30th

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April 1946. The issue before court was whether the non-compliance with the procedure was fatal
to the validity of the rules. Court held that the rules were invalid because they did not comply with
the procedural requirements under the Employment Ordinance. To arrive at that ruling, court stated
that there is nothing which was approved on 30th April 1946 because the rules had not been made
and were only made on 21st May 1946.

COURT SYSTEM
The Judiciary is a creation of the 1995 Constitution of the Republic of Uganda under Chapter 8
article 126 to 150. The Judiciary is the third arm of government under the doctrine of separation of
powers; the other two are the legislative which makes laws and the executive which enforces them.

The judicial power of the Ugandan Government is exercised by the Courts of Judicature, consisting
of the Supreme Court, The Court of Appeal/ Constitutional Court, and the High Court (three courts
of record) and other subordinate courts established by Parliament which include; Chief Magistrate’s
Court, Grade I Magistrate’s Court, Grade II Magistrate’s Court, Local Council Courts, Court
Martial and Family and Children Courts.

The Mandate of the Judiciary is as enshrined in Article 126 (1) of the Constitution of the Republic
of Uganda which states that judicial power is derived from the people and shall be exercised by the
Courts established under this Constitution in the name of the people and in conformity with the
laws and with the values, norms and aspirations of the people.

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UGANDA COURT HIERARCHY: COMPOSITION

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Source: Judiciary website21

HIERARCHY, COMPOSITION AND FUNCTION

A court is a permanent organised body with independent judicial powers defined by law, meeting
at a time and place fixed by law for the judicial public administration of justice22
In Uganda the hierarchy, composition and functions of the Courts are provided for under Chapter
VIII of the Constitution and in the Judicature Act.
These courts perform the following duties;
- Adjudication of cases (both civil and criminal)
- Interpret the Constitution and the Laws
- Promote human rights, social justice and morality

Article 129 provides that the following Courts are established in Uganda: The Supreme Court,
Court of Appeal, the High Court and other subordinate courts.
The subordinate courts include: The Chief Magistrates’ Court, Grade I Magistrates’ Courts and
Grade II Magistrates’ Courts. These are established under the Magistrates’ Courts Act Section 2.

Note:
In Uganda Courts take precedence over each other in that order; therefore the Supreme Court is
the last Court of appeal and also the court of last resort
The Constitution also stipulates that the Supreme Court, Constitutional Court/ Court of Appeal and
the High Court are superior courts and their decisions are binding on all subordinate courts in order
of their hierarchy of judicial superiority – Article 132

Hierarchy of courts in uganda

 Supreme court; it is headed by the chief justice and the justices of the Supreme Court shall
not be less than six meaning the total number is seven justices.

21 http://www.judicature.go.ug (accessed on 11/04/2012)

22 Blacks Law Dictionary, p.356

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  Court of Appeal ; It is headed by the deputy chief justice and any number of justices not
being less than seven.

The court of Appeal also sits as the constitutional court.

 Constitutional Court; The quorum for the constitutional court is five members.

It deals with any questions that regard the interpretation of the constitution.

 The High Court of Uganda ; It consists of the principal judge and such number of justices
as may be prescribed by parliament.

Basics of the Ugandan Courts System

All courts of law in Uganda derive their power from the constitution.

The Constitution provides for the establishment of the courts of judicature under Article 129.

Supreme Court

The Supreme Court is provided for in Article 130 and it is headed by the chief justice and
the justices of the Supreme Court shall not be less than six meaning the total number is seven
justices.

The Supreme Court is duly constituted or its quorum is an uneven number not being less
than five members of the court.

When dealing with appeals from the constitutional court the Supreme Court shall consist of
a full bench of all members of the Supreme Court and incase one is not able to attend, the president
shall appoint an acting justice for that purpose.

The Chief Justice is supposed to preside at every sitting of the Supreme Court and incase he
is absent the most senior member of the court shall preside.

The Supreme Court shall be the final court of Appeal.

The Supreme Court may depart from its previous decisions when it appears to it right to do
so and all other courts are bound to follow its decision.

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 The chief justice is the head of the judiciary and is responsible for its supervision and
administration of all courts in Uganda.

Incase the chief justice is absent; the deputy chief justice shall perform his/her duties.

The chief justice of Uganda is called Bart Katureebe. The previous chief justice was called
Benjamin Odoki. The first chief justice was called Sir udo Udoma. The first black chief justice was
called Benedicto Kiwanuka.

The chief justice is appointed by the president with the recommendation of public service
and the approval of parliament.

The Supreme Court has original jurisdiction to handle presidential election petitions.

Court of Appeal

It is headed by the deputy chief justice and any number of justices not being less than seven.

The court of Appeal also sits as the Constitutional Court.

The quorum of the constitutional court is three members.

Incase the deputy chief justice is absent ,his/her functions shall be performed by a justice of the
supreme court or a justice of appeal designated by the president after consultation with the chief
justice.

The deputy chief justice of Uganda is Dollo Owiny. The former deputy chief justice was called
Steven Kavuma.

Constitutional Court

The quorum for the constitutional court is five members.

It deals with any questions that regard the interpretation of the constitution.

The High Court of Uganda

It consists of the principal judge and such number of justices as may be prescribed by
parliament.

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Other terms

A court martial is an adhoc military court convened under military authority to try someone
accused of violating the uniform code of military justice.

Court of Exchequer is a former English superior court responsible primarily for adjudicating
disputes about the collection of public revenue.

A jury is a group of persons selected according to law and given power to decide questions
of fact and return a verdict in the case submitted to them.

A retrial is a new trial of an action that has already been tried.

Repeal is an abrogation of an already existing law by legislative act.

Repugnancy is an inconsistency or contradiction between two or more parts of a legal

instrument.

A deferred judgment is a judgment placing an accused on probation, the successful

completion of which will prevent entry of the underlying judgment of conviction.

Prerogative of Mercy may be defined as the powers given to the president to pardon
prisoners who have been convicted for capital offences. There is advisory committee on the
prerogative of mercy and is headed by the Attorney General and six prominent citizens of Uganda
appointed by the president.

Judicature is the action of judging or administering justice through duly constituted courts.

A trial judge is a judge before whom a case is tried.

A visiting judge is a judge appointed by the presiding judge of an administrative region to

sit temporarily in a given court.

A judgment is a court’s final determination of rights and obligations of the parties in a case.

An appellate court is one with jurisdiction to review decisions of lower courts or

administrative agencies.

A civil court is one with jurisdiction over non criminal cases.

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 A commercial court is a court that hears business disputes under simplified procedures
designed to expedite the trials.

A consular court is a court held by the consul of one country within the territory of another.
They are created by treaty and their jurisdiction is usually limited to civil cases.

Court of competent jurisdiction is a court that has power and authority to do a particular act;
one recognized by law as possessing the right to adjudicate a controversy.

A court of equity is a court that has jurisdiction in equity, administers and decides
controversies in accordance with the rules, principles and precedents of equity and follows the
forms and procedures of chancery.

A full court is a court session that is attended by all the courts judges.

A court of limited jurisdiction is a court with jurisdiction over only certain types of cases.

Court of last resort is a court having the authority to handle the final appeal of a case. e.g
the Supreme Court.

A kangaroo court is a self appointed tribunal or mock court in which the principles of law
and justice are disregarded.

A local court is a court whose jurisdiction is limited to a particular territory such as a state,
municipal or county court.

Military court is a court that has jurisdiction over members of the armed forces and that
enforces the code of military justice.

A trial court/court of first instance/court of instance is a court of original jurisdiction where the
evidence is first received and considered.

The duty of assessors is to assess and advise. They assess or weigh the evidence as a whole
and decide whether the accused is guilty or not in the light of their special knowledge as to the
habits, modes of thought.

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The High Court of Uganda

It is established by Article 138 of the Constitution and stands as a symbol of Justice. It is the third
highest in the hierarchy of the court system of Uganda headed by the Honourable Principal Judge
who is responsible for the administration of the court and has general supervisory powers over
Magistrate’s courts and overall administrative bodies.

It has unlimited original civil, criminal and territorial jurisdiction. This means it can try any case
from Uganda of any of the subject matter and can impose any penalty conferred by law (See Section
14 (1) of the Judicature Act). It even has the power to do anything or to issue an order to further
justice. See 101 of the Civil Procedure Act

To improve the delivery of justice in all areas of Uganda, 12 High Court circuits have been created
and they include; Kampala High Court, Nakawa High Court, Mbarara High Court, Fort Portal High
Court, Jinja High Court, Gulu High Court, Masindi High Court, Kabale High Court, Mbale High
Court. Masaka High Court, Arua High court and Soroti High Court. See Sections 18 – 20 of the
Judicature Act on Sitting and Circuits
This is also intended to ensure that there is no part of the country which is more than 150Km from
a High Court circuit.
Each High Court Circuit is headed by a Resident Judge who is answerable to the Principle Judge.

Administrative Divisions of the High Court

The work and operations of the High Court are concentrated in the Administrative divisions which
are the basic administrative and professional units of the High Court,

Divisions are specialized units with clearly demarcated jurisdiction over the nature and kind of
cases handled in each of them. Each division has a substantial measure of autonomy in the sense
that each has its own specially designated support staff and Registry.

Commercial Division

The Commercial Court was established in 1996 as a division of the High Court of Uganda devoted
to hearing and determining commercial disputes with current jurisdiction (as established under
Legal Notice No.4 of 1996 and Instruction Circular No.1 of 1996),

 Plus company causes,

 Bankruptcies,
 And intellectual property.

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The mission of the court is to deliver to the commercial community an efficient, expeditious and
cost-effective mode of adjudicating disputes that affect directly and significantly the economic,
commercial and financial life of Uganda

In order to achieve its mission, the Court has a number of Objectives, viz

- Make litigation faster, cheaper, fairer and more accessible to Commercial community.
- Help attract foreign investment in Uganda through improving investor confidence in
Uganda's legal system.
- Develop and introduce commercial-friendly rules of Court and encourage the use of
Settlement methods including negotiation and mediation.
- Improve the Court's performance through applying modern Case management and modern
Technology such as court recording.
- Create an effective institution with clear l'J1anagerial and Administrative structures run by
honest, competent, motivated well-trained staff, supported by good facilities and equipment.
- Effectively supervise and monitor Bailiffs and all those involved in the Obtaining money or
Property owed under a Court judgment.

The day to day management of the court is in the hands of the head of the court, assisted in this
regard by a management committee composed of all the Judges of the court and the registrars, two
working groups on Practices, and Procedures of the court and Information Technology and
Training, and the Registrar of the Court.

Land Division

The Land Division is a new Division created at the High Court Head office at Kampala. The
Division is charged with the following functions

- Responsibility of supervising the work of Land Tribunals.

- The adjudication of all land related dispute fall under this Division.

The land Division is established with three judges with a separate registry for the Division .There
is a Registrar for the Land Division who doubles as the Registrar of the Land Tribunals. A desk
office was also established under the office of the Registrar to handle the activities of the District
Land Tribunals.

The Division has jurisdiction to entertain all actions arising out of or connected with any land
transaction, including but not limited to:

 Sale,
 purchase and transfer of real property;
 Leasing and rental of real property;

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  Hypothecation and securitization of land,
 other than as a mortgage involving a bank loan or credit facility;
 Destruction or degradation of land;
 Compensation paid for the compulsory acquisition of land;
 Minerals and mineral rights and Environmental disputes or causes.

Family Division

This Division was created in April 2005 and handles

 Administration causes,
 Family causes, (Adoption, Guardianship, Affiliation/maintenance),
 miscellaneous causes,
 miscellaneous applications,
 civil suits,
 civil appeals,
 originating summons,
 civil revisions and Divorce causes.

Civil Division
The functions of the Division include:
 Hearing appeal cases from the Magistrates’ courts in connection with torts committed
against the person,
 Defamation,
 Bankruptcy and company winding up matters,
 Partnership matters,
 Companies matters,
 Real and personal property.

Criminal Division
This is Responsible for hearing all serious criminal offences referred to it by the Magistrates’
Courts.
All criminal offences such as:
 Murder manslaughter,
 Rape,
 Defilement,
 Treason and other offences carrying death sentence or life imprisonment.

According to the Principal Judge's Circular, except for Commercial Court Judges who must attend
to only Commercial Court cases, the rest of the Judges of the High Court who are based in Kampala
are members of the Criminal Division irrespective of the other Divisions of the High Court that
they belong to.

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Each of the above judges is supposed to do, at least, one High Court Criminal Session in a year at
Kampala.

Anti-corruption court
Establishment
In July 2008, the Judiciary administratively established the Anti-corruption Division of the High
Court as a specialised Division to adjudicate corruption and corruption related cases. The Division
commenced hearing cases in December 2008.
The Establishment of the ACD was a deliberate step by the Judiciary, in response to demands by
Government and other institutions engaged in fighting corruption, to take drastic action against the
corrupt by strengthening the adjudicatory mechanism for fighting corruption.
The Principal Judge administratively set up the ACD, as a specialised Division of the High Court
to adjudicate corruption cases. The Chief Justice would like to formally establish the ACD through
a Practice Direction.

Objective and Rationale of the ACD

The objective of the ACD is to provide an orderly mechanism for the adjudication of corruption
cases based on merit, speed, efficiency and fairness of corruption cases.

Principles
The Directions are made by the Chief Justice under article 133(1) (b) of the constitution, which
gives the Chief Justice power to issue orders and directions to the courts necessary for the proper
and efficient administration of justice.

The ACD is intended to provide an adjudication mechanism for the timely and expeditious disposal
of corruption and corruption related cases.
Unlike other Divisions of the High court, the ACD will have two chief magistrates and four
magistrates Grade 1

Note:
Constitutionally; magistrates cannot be members of the High court. This lacuna can be addresses
by the Chief Justice designating magistrates, under section 6 of the Magistrates Court Act to
assist the ACD. The ACD will supervise the magistrates.

The ACD will be administratered by a Head of Division, who shall be responsible for the overall
supervision, administration and coordination of the Division.

War Crimes Division

Establishment

The International Crimes Division is a special Division of High Court of Uganda which was
established in July 2008. Hon. Justice James Ogoola the principal Judge of the High Court as he

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then was pursuant to Article 141 of the constitution of the Republic of Uganda 1995 established
War Crimes Division (now the International Crimes Division of the High Court).

Its establishment was away of fulfilling the Government of Uganda’s commitment to the
actualization of Juba Agreement on Accountability and Reconciliation. Considering the civil wars
and a series of other internal conflicts, which Uganda has experienced in the recent past, it decided
to establish the WCD (now ICD) to try the perpetrators of war crimes and crimes against humanity
including commanders of the LRA and other rebel groups.

Under Section 6 of The High Court (International Crimes Division) Practice Directions, Legal
Notice No. 10 of 2011, the division is intended to deal with those who have committed serious
crimes. Those are, War Crimes, Crimes against Humanity, Genocide, terrorism, human trafficking,
piracy and other international crimes.

While originally meant to be part of a comprehensive peace agreement with the LRA, the
international crimes division has now come to be viewed as a court of ‘’complementarity’’ with
respect to the international criminal court, thus fulfilling the principle of complementarity stipulated
in the preamble and Articles 1, 15 and 17 of the Rome Statute for an International Criminal Court.
At the same time, the DPP formed an international crimes unit comprising six senior state Attorneys
headed by Ms Joan Kagezi. Furthermore the police also established a Special Investigative Unit of
twelve senior police Investigators.

During the month of June 2009, the Judges, Prosecutors and investigators launched an outreach
strategy initially targeting the areas badly affected by the war in the Acholi, Lango and Teso Sub-
Regions as well as the District of Adjumani, where they interacted with stake holders in the war
including local leaders and those in IDP Camps. The major outcome of the outreach was that
majority of the people welcomed the creation of the Division and expressed eagerness to give
evidence to the investigators.

In June 2009, the relevant members of the Court, the DPP, ULRC, ULS, Religious leaders,
academia, UHRC and Head of the Prosecution Unit for International Crimes Division and Judge
from the ICC met the legal and parliamentary Committee to present their views on the
domestication of the Rome Statute. Uganda’s ICC Bill became Law on 25th May, 2010 and thus
commenced on 25th June, 2010. It is cited as the International Criminal Court Act No.11 of 2010.

The Rome Statute has been domesticated. The Act entered into force on 25th June 2010 which is
now The ICC Act of 2010 that allows Ugandan courts to try crimes against humanity, international
crimes and Genocide. The Act is to give effect to the Rome Statute of the International Criminal
Court, to provide for offences under the law of Uganda corresponding to offences within the
jurisdiction of that court.

The Act’s objectives include:

- To implement Uganda’s obligations under the Rome Statute of the ICC;

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 - To make further provision in Uganda’s law for the punishment of the international crimes
of Genocide, Crimes against Humanity and international crimes;
- To enable Ugandan courts to try, convict and sentence persons who have committed crimes
referred to in the statute.(Article 2 of the ICC Act,2010)

Mission and Vision of the ICD

The ICD’S mission is to fight impunity and promote Human Rights, Peace and justice. The Vision
is to have a strong and independent Judiciary that delivers and is seen by the people to deliver
justice and contribute to the Economic, social and political transformation of society based on Rule
of Law.

Composition and Proceedings of the ICD

Located at Plot 8 Mabua Road, Kololo in Kampala, the Division currently has four Judges, a
registrar and other support staff. The Hon.Judges are; Hon. Justice Akiiki Kiiza Dan –Head of
Division; Deputy Head of Division - Hon. Justice Elizabeth Ibanda Nahamya; Hon. Justice Owiny
Dollo; Hon. Justice Ezekiel Muwanguzi; His Worship Tadeo Asiimwe is the Registrar of the
Division and he is assisted with a team of legal assistants and staff.

The proceedings before the ICD are open to the public and press subject to the enumerated
exceptions in Article 28(2) of the Uganda Constitution.

The Division may sit as a panel of a minimum of three Judges, as may be designated by the Head
of the Division as per section 4(2) of the High Court (International Crimes Division) Practice
Directions, Legal Notice No.10 of 2011, but the Division consists of five Judges. Such individuals
shall be persons of high moral character, impartiality, and integrity.

The Division shall adopt Rules of Procedure and Evidence applicable to criminal trials in Uganda.
Where no express provision is made under any written law, the Court shall adopt such other
procedure as it considers to be justifiable and appropriate in all the circumstances taking into
account of Section 141 of the Trial on Indictments Act, Cap 23 and Section 39 of the Judicature
Act, Cap 13, and having regard to rights and views of the parties.
Appeals from the decisions of the ICD lie to the Court of Appeal, and then to the supreme court of
Uganda in accordance with the procedures of Ugandan law governing appeals.

Laws applicable by the ICD and Jurisdiction

The law which shall be applied by the ICD comprise of the existing criminal laws such as:-

 The Constitution of the Republic of Uganda, 1995,

 The Trial on Indictment Act, Cap 23,
 The Penal Code Act, Cap 120,

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  The Evidence Act Cap 6,
 The International Criminal Court Act, 2010 Act No.11 of 2010.
 The Geneva Conventions Act, Cap.363

Section 6 of The High Court (International Crimes Division) Practice Directions No.10/2011,
is to the effect that without prejudice to Article 139 of the Constitution, the Division shall try any
offence relating to genocide, crimes against humanity, war crimes, terrorism, human trafficking,
piracy and any other international crime as may be provided for under the Penal Code Act, Cap
120,The Geneva Conventions Act, Cap 363,The International Criminal Court Act, No.11 of 2010
or under any other penal enactment.

To date the division has tried one case i.e. Uganda v.Thomas Kwoyelo alias Latoni HCT-00-ICD-
Case No. 02/10

Execution and Bailiff’s Division

The Execution and Bailiffs Division is comprised of at least one Judge as its Head and a Registrar
to handle all matters relating to the enforcement of court orders, execution of court decisions and
to· regulate the operations of Court Bailiffs in execution of the Court process in Uganda, provided
that as space and other facilities become available, more judicial staff will be attached thereto to
provide appropriate judicial authority. Being a new Division its activities only cover the following
areas:

 High Court Divisions (namely: Civil, Commercial, Criminal, Family, Land, Anti-
Corruption and International Crimes Divisions);
 High Court circuit Nakawa
 Kampala Chief Magisterial Area (Buganda Road and Mengo Chief Magistrate Courts);
 Nabweru Chief Magisterial area
 Makindye Magisterial area

The business of the Division comprises all actions arising out of or connected with enforcement of
Court orders through execution; the Division also has the additional role of supervising and having
oversight over the operations of Court Bailiffs in such matters.

Jurisdiction of the High court

Appellant Jurisdiction
According to section 16 of the Judicature Act and subject to the Constitution, or any other law, the
High Court has jurisdiction to hear and determine appeals which lie to it by virtue of any enactment
from decisions of magistrate’s courts and other subordinate courts in the exercise of their original
or appellate jurisdiction.

Supervisory Jurisdiction

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Section 17 of the Judicature Act the High Court has supervisory powers over Magistrate’s courts
and other subordinate courts.
In the discharge of its supervisory powers the High Court can issue the following prerogative orders
– now referred to as powers of Judicial Review.
In John Jet Tumwebaze V Makerere University Council & Ors Civil Application No. 353 of
2005 (unreported) Kasule J, noted that;
“Prerogative orders look to the control of the exercise and abuse of power by those in public offices,
rather than at providing final determination of private rights which is done in normal civil suits…”
The orders be they for declaration, mandamus, certiorari or prohibition are discretionary in nature.
In exercising its discretion with respect to prerogative orders, the court must act judicially and
according to settled principles. In the John Jet Tumwebaze case (supra) such principles may
include;
- Common sense and justice
- Whether the application is meritorious
- Whether there is reasonableness
- Vigilance and not any waiver of rights by the Applicant

1. Habeas Corpus
This is a prerogative remedy, which is available from the High Court, and it is directed against
persons or Institutions, which are alleged to be detaining a particular person in a manner that is
contrary to the established law.
The Constitution protects all persons from any form of illegal detention. The circumstances for
lawful detention are specified under the law, i.e. in gazetted areas and for a maximum of 48 hours
(See Article 23 (2) & (4)). Therefore Public Authorities which abuse their powers by engaging in
unlawful detention of citizens can, can be subjected to habeas corpus proceedings and a purpose of
the writ of habeas corpus is to command the detaining authority to appear before Court and present
the alleged victim with a view of establishing reasons for the continued detention of such victim.
In the case of Re a Reference From High Court Of Uganda And in Re Sheik Abdul K Sentamu
& Anor Constitutional Petition No. 7/1998 Twinomujuni J.A, held that habeas corpus is a
constitutional right that secures the right to be tried according to law or to be released. The writ of
habeas corpus is used to question the legality of restraint and thereby facilitate the release of persons
in unlawful custody. Whereas the application for the writ may be made from the moment of arrest,
where there have been valid proceedings subsequent to the arrest, which are offered in justification
of detention, a prisoner will not get redress by habeas corpus. Court has jurisdiction to deal with a
person before it no matter how improper the procedure that brought that person before it
2. Mandamus
This is an order issued to any person or body of persons directing them to carry out a public duty
according to the law. In R v. Dunsheath, Ex p. Meredith (1950) 2 ALL ER 741 it was stated that
mandamus is issued where an injured party has a right to have anything done and has no other
specific means of compelling its performance. Mandamus is neither a writ of course but will be
granted if the duty is in the nature of a public duty and specifically affects the individual, provided

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there is no appropriate remedy. The person to whom it is issued must be under a statutory duty to
do something.
In Christopher Sebuliba v. Treasury Office of Accounts; High Court MA 127/92, it was stated
that a prerogative writ of mandamus is a presumptive writ whose purpose is for the Court to protect
the citizen against government and the abuse of executive power by forcing the arm of government
to function in order that the citizen is not put at a loss.

3. Prohibition
This is an order issued to an inferior Court, tribunal or a public body or person, prohibiting the
doing of a certain thing either without power or in excess of its power or jurisdiction or where the
rules of natural justice have been infringed.
Prohibition is usually called for in situations where the alleged Act of a Public authority is likely to
lead to either loss or damage or other inconvenience to the aggrieved party. The order is therefore
meant to minimize the consequences of an act alleged to be illegal e.g. awarding of tenders by local
authority, contrary to established procedure.
4. Certiorari
This is an order directed to inferior courts, tribunals or administrative bodies exercising judicial
functions, to have the record of the proceedings presented to the High Court for scrutiny. An order
of Certiorari may squash the decision or correct errors found in the lower courts judgment. In the
case of Charles Sserunjogi v. the Returning Office, Electoral Commission & Bbosa Kiyingi
Miscellaneous Cause No. 7/2001; The Returning Officer was in breach of S.55 of the
Parliamentary Elections Act No.8/2001, when he ordered for a re-count of votes after the Applicant
had been declared winner and the results submitted to the Electoral Commission. Upon service on
the Applicant, of a notice of intention to recount, the Applicant applied to the High Court for an
order of certiorari to quash the decision of the Returning Officer and the same was granted.
It should be noted that in a case such as Charles Sserunjogi the High Court also has powers to give
prerogative remedies such as specific performance and injunctions.

Magistrates’ Courts

The Magistrates courts are established under Section 2 of the Magistrates Courts Act. These are
important to the delivery of justice in Uganda because they do the bulk of civil and criminal cases.
They are empowered to do their duties in conformity with the law with which the High Court is
required to conform in exercising its jurisdiction by the Judicature Act.

Initially, these were divided into four grades but these have since been revised to three grades; Chief
Magistrate; Grade I Magistrate; and Grade II Magistrate

According to the Magistrates Courts Act, Uganda is divided into magisterial areas. These are
currently twenty six and these serve as the areas of jurisdiction of each respective magistrate’s court.

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The court is considered duly constituted when presided over by one magistrate empowered to
adjudicate in the court. The Chief Magistrate Courts and Magistrate Grade I Courts are presided
over by qualified lawyers whereas Magistrate Grade II Courts are presided over by a Person who
has had some form of recognized training in law as a Lay- Magistrate from Law Development
Centre.

Since the Magistrates Courts are subordinate courts, their jurisdiction is limited and guided by
Section 161 of the Magistrates Courts Act in criminal cases and Section 220 of the same in civil
cases.

For example, a Chief Magistrate may try any criminal case apart from one where the maximum
penalty is death and a Grade II magistrate cannot hear a case involving an offence against relations
with a foreign state or an offence like treason.
Under Section 220(1) (b) of the MCA, an appeal may lie for the Chief Magistrate from the decision
and orders whether interlocutory or final presided over by a Grade I magistrate.

Furthermore, under Section 32(d) of the Local Council Courts Act 2006, an appeal may lie to a
court presided over by a Chief Magistrate from the judgments and the orders of a sub county Local
Council court.

Appeals from the Chief Magistrates’ courts and Grade I magistrates’ courts lie before the High
Court which supervises the work of all Magistrates courts with regards to its own procedure and
that of magistrates courts.
It does this by exercising its inherent powers to prevent abuse of the process of the court by
curtailing delays, including the powers to limit and stay delayed prosecution as may be necessary
the administration of Justice.

Other Courts/ Special Courts

In Uganda, there are also Local Council Courts also known as Executive courts. They were
established by Section 3 of the Local Council Courts Act of 2006 although they were initially
introduced in Uganda in the early days of the Resistance Government under the Executive
Committee Judicial powers Act (Cap.8). They were established to bring justice closer to the people
and to demystify the idea of justice and the law in the eyes of the average Ugandan.

Today, these courts are governed by the Local Council Courts Act, 2006 and supervised by the
Chief Magistrates courts on behalf of the High Court in accordance with Section 40 of the above
Act. These courts are established at every village, parish, town, division and sub-county level and
these are the jurisdictions within which each respective court at each level may operate. Where on
is dissatisfied with a decision at the village court may appeal to the parish court till the sub county
court. If not satisfied still he or she is then free to appeal to the Chief Magistrates Court and then
the High Court.

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The courts are generally composed of five members of their jurisdiction chosen by the respective
executive council of that area apart from the village and parish courts where all the members of the
executive council of either the village or parish form the court. At least two of the members of each
of these courts should be women. The qualifications to be a member of the court are set out in
Section 5 of the Local Council Courts Act and include; proven integrity and ability to speak the
local language.

The legal jurisdiction of these courts is strictly cases of civil nature and as land matters, issues
related to the children’s act and others set out extensively in Section 10 of the above mentioned Act
As remedy, these courts may cause reconciliation, make declarations order restitution or even cause
one to apologize.

Despite the good intentions of those that set up such an elaborate structure of Local council courts,
they have been criticized for being places marred with gross corruption and bribery ‘where justice
goes to the highest bidder.’

General Court Martial

These are courts of law and they administer justice like civil courts, although they were set up to
deal with a specific institution – the military. They are designed to deal with the internal affairs of
the military. They have concurrent jurisdiction with civil courts. Their jurisdiction is essentially
penal and disciplinary.

In Uganda the court-martials were set up by the Uganda Peoples Defence Forces Act (Cap 307).
Section 15 spells out persons who are subject to military law.
The Act contains a wide range of offences that are not even found in the Penal Code Act. They are
defined as service offences under the Act.
The Act sets up many court-martials namely; The Filed Court-Martial, Division Court – Martial,
the General Court – Martial and the Court – Martial Appeal Court.

There are also unit disciplinary committees that have power to try and determine all cases under the
Act, except those involving –
1. Murder
2. Manslaughter
3. Robbery
4. Rape
5. Treason
6. Terrorism and
7. Disobedience of lawful orders resulting in loss of life.
It has power to impose any sentence authorised by law.
The next court-martial is the Filed Court – Martial which is authorised to operate, according to
Section 78(2), only in circumstances where it is impracticable for the offender to be tried by a unit
disciplinary committee or division court-martial.

The Division Court-Martial is set up by Section 80 and it has unlimited jurisdiction to try any
offence under the Act including treason.

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The General Court-Martial is established by Section 81. It has original and appellate jurisdiction
over all offences and persons under the Act. This court is the equivalent of the High Court of
Uganda as established by the Constitution and the Judicature Act.

The last court is the Court-martial Appeal Court. It is established by Section 84. It has jurisdiction
to hear and determine all appeals referred to it under the Act from decisions of the general court-
martial. The decisions of this court are appealed to the Court of Appeal and eventually the Supreme
Court where a death sentence has been imposed.

In conducting proceedings under the Act and the regulations made under it, Section 90 enjoins
court-martials to observe as far as practicable the rules of evidence and procedure that apply to civil
courts.

READ ON

East African court of Justice.

International court of Justice
European Court of Justice
International Criminal Court

THE EAST AFRICAN COURT OF APPEAL

Established in 1909 by the East African Protectorates Order in Council (Art 2) as the Court of
Appeal for Eastern Africa. A court of superior record and shall exercise appellate jurisdiction.
Had no permanent judges but High Court judges of member countries.
Appeals went to the Privy Council.

After independence it was for Kenya Uganda and Tanzania. The name was changed to East African
Court of Appeal. It was established by Art 80 of the treaty of East African Corporation. It was
reviewing decisions of national courts.

When it broke up in 1977, all the East African countries established their own courts of appeal.

JUDICIAL TITLES
 MR - Master of the Rolls – the judge who presides over the court of appeal in England.
 QC - Queen’s counsel
 LC - Lord Chancellor – a member of the government and cabinet who presides over
the debates in the House of Lords, is responsible for the administration of justice, plays an
importing role in appointing judges and who is the most important judge in England.

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  LCJ - Lord Chief Justice – the chief judge of the QBD of the High Court and second
most important judge after the Lord Chancellor.
 LJ - Lord/Lady Justice – the title given to a judge who is a member of the House of
Lords
 LP - Lord President
 KC - King’s Counsel- when monarch is male
 PC - Privy Counselor
 LJC -Lord Justice Clerk
 LJJ’ - Lords Justices – used in reference to more than one judge

JUDICIAL TITLES FOR UGANDAN COURTS

 CJ - Chief Justice
 JJSC – Justices’ of the Supreme Court
 DCJ – Deputy Chief Justice
 JSC – Justice of the Supreme Court
 JA – Justice of Appeal
 PJ – Principle Judge – a title given to the judge who heads the High Court of Uganda
 J – Justice
 CM – Chief Magistrate
 G 1 M – Grade One Magistrate
 G 11 M – Grade Two Magistrate

PRECEDENTS AND LEGAL REASONING

Judicial power in Uganda is exercised by the courts as established under the Constitution. Art
126(1). These court’s role not only relates to administering justice but also relates to re-shaping the
law and guiding its evolution.
The courts as established by the Constitution include; the Supreme Court, Court of Appeal, High
Court and all other subordinate courts. Art 129
The rule of adhering to judicial judgment finds its expression in the doctrine of stare decisis, lat8in
meaning stand by the things decided. The doctrine simply means that ‘ when a point or principle of
law has been once officially decided or settled by the ruling of a competent court in a case in which

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it is directly and necessarily involved, it will no longer be open to examination or to a new ruling
by the same tribunal or by those which are bound to follow its adjudications, unless it be for urgent
reasons and in exceptional cases.
Black’s law dictionary defines the term precedent to mean a decided case that furnishes a basis for
determining later cases involving similar facts or issues; "In law a precedent is an adjudged case or
decision of a court of justice, considered as furnishing a rule or authority for the determination of
an identical or similar case afterwards arising, or of a similar question of law. The only theory on
which it is possible for one decision to be an authority for another is that the facts are alike, or, if
the facts are different, that the principle which governed the first case is applicable to the variant
facts”

This doctrine dictates that all cases in which the material facts are similar should be decided in a
similar way for purposes of consistency and saving time.

K. Makubuya opines that the doctrine of precedent requires that a court should follow the rules and
principles established in earlier decisions when deciding subsequent cases. That a subordinate
courts in the court hierarchy do decide causes and matters in accordance with earlier decisions, if
any, of courts superior in hierarchy. The ratio decidendi of a case is deemed binding.

Art 132 (4) The Supreme Court may, while treating its own previous decisions as normally binding,
depart from a previous decision when it appears to it right to do so; and all other courts shall be
bound to follow the decisions of the Supreme Court on questions of law.

Types of precedents;

Binding precedent. A precedent that a court must follow.• For example, a lower court is bound by
an applicable holding of a higher court in the same jurisdiction. - Also termed authoritative
precedent; binding authority

Persuasive precedent. (1905) A precedent that is not binding on a court, but that is entitled to respect
and careful consideration .• For example, if the case was decided in a neighboring jurisdiction, the
court might evaluate the earlier court's reasoning without being bound to decide the same way

Declaratory precedent. A precedent that is merely the application of an already existing legal rule.

Original precedent. A precedent that creates and applies a new legal rule.

.
Reasons for relying on precedent
To ensure consistence in the judgment
To save time

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Cases on Precedent

Young v Bristol Aeroplane Co Ltd [1944] 2 All ER 293

Whether Court of Appeal bound by its own earlier decision?

Held; the Court of Appeal is bound to follow previous decisions of its own as well as those of
courts of co-ordinate jurisdiction with 3 exceptions:
(a)it may choose between two conflicting decisions of its own; (b) it must refuse to follow a decision
of its own which, though not expressly overruled, is inconsistent with a decision of the House of
Lords; (c) it is not bound to follow a decision of its own given per incuriam.

Practice Directions House of Lords [1966] 3 All ER 77

Held;
Their lordships regard the use of precedent as an indispensable foundation upon which to decide
what is the law and its application to individual cases.
It provides at least some degree of certainty upon which individuals can rely in the conduct of their
affairs, as well as a basis for orderly development of legal
Rules.
Their lordships nevertheless recognise that too rigid adherence to precedent may lead to injustice
in a particular case and also unduly restrict the proper development of the law. They propose
therefore to modify their present practice and, while treating former decisions of this House as
normally binding, to depart from a previous decision when it appears right to do so.

Paul K. Ssemogerere and Ors v Attorney General Constitutional Appeal No.1 Of 2002
Per Kanyeihamba; held;
I note that in the judgments of the majority Justices of the Constitutional Court, great reliance
was placed on the decisions of that same court in Dr. Rwanyarare and Wegulo v. Attorney
General, Constitutional Petition No. 5 of 1999, (Const. Court), (unreported), Uganda Law
Society and Justine Semuyaba v. Attorney General, Constitutional Petition No. 8 of 2000,
(Const. Court), (unreported), Karuhanga Chapaa and Two Others v. Attorney General,
Constitutional Petition No. 6 of 2000, (Const. Court), (unreported). It is also evident from
both the record of proceedings and the judgments of the Constitutional Court that other
authorities including binding ones from this Court were cited by Counsel for the appellants.
In these other authorities such as Major General Tinyefuza v. Attorney General, (supra),
Paul Ssemogerere and Zachary Olum v. Attorney General, (supra) and Ismail Serugo
v. Kampala City Council and Another, Constitutional Appeal No. 2 of 1998, (S.C),
(unreported), judicial interpretation of constitutional instruments and other legal documents

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 was extensively and, in my opinion, exhaustively examined, explained and pronounced upon
by this Court. Other leading authorities were cited and relied upon by this court.
Moreover, in guiding the Constitutional Court, some of these authorities were cited by
Counsel in favour of the appellants' petition.

With great respect, the majority of the learned Justices of the Constitutional Court do not
appear to have taken into account counsel's submissions and relevant authorities cited to that
court. The approach they adopted is almost tantamount to taking a maiden voyage into the
mystery of interpretation.
When a Court ignores or overlooks a binding precedent and decides a case as if that
precedent does not exist, its decision is said to be a decision per incuriam. In my opinion,
the majority of the Justices of the Constitutional Court were in error and their decision, in
so far as it holds that that Court has no jurisdiction to adjudicate on a provision of the
Constitution in relation to others, is a decision per incuriam. In this context, it is my view
that petition 5 of 1999, Dr. James Rwanyarare and Haji Badru Wegulo v. The Attorney
General, and Petition No. 8 of 2000, The Uganda Law Society and Another v. The
Attorney General, were wrongly decided

Res Judicata
The doctrine of precedent should not be confused with the doctrine of res judicata. If an issue has
been settled by judicial decision, then this doctrine is a defence that bars same parties from litigating
a second law suit on the same principle or any other claim arising from the same transaction or a
series of transactions that could have been raised but were not. S.7 of the Civil Procedure Act.
Lord Dennnig MR put this was in Fidelitas Shipping Co. ltd v V/O Exportchleb23; that; “if one
party brings an action against another for a particular cause and judgement is given on it, there is a
strict rule of law that he cannot bring another action against the same party for the same cause.”
The rule then is that once an issue has been raised and distinctly determined between the parties,
then as a general rule, neither the party can be allowed to fight that issue all over again.”

In Posiyano Semakula Vs Susane Magala [1979] HCB 90 the Court of Appeal held that the
doctrine of res judicata is a fundamental doctrine to the effect that there must be an end to litigation
and therefore every matter should be tried fairly once and having been so tried all litigation about
it should be concluded as between the same parties. That the test is whether the plaintiff in the
second suit is trying to bring before the court in another was in the form of a new cause of action
a transaction which has already been presented before Court of competent jurisdiction in earlier

23 (1966) 1 QB 630, (1965) 2 ALL ER 4

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proceedings and which has been adjudicated upon. If this is answered affirmatively the plea of res
judicata will then not only apply to all issues upon which the first court was called upon to
adjudicate but also to every issue which properly belonged to the subject of litigation and which
might have been raised at the time through the exercise of due diligence by the parties”.

The application of the rule as stated by Wigram can be seen in the case of Julian Galton Fenzi V
Nabbosa Natasha Marie; The grounds of the application are that the applicant and the respondent
got divorced on 10th May 2011 vide Divorce Cause 9 of 2010 where the applicant was granted
custody of the two children in the marriage aged 17 years and 11 years respectively and that since
then, the respondent being mother of the children has failed to support them financially
notwithstanding the fact that she was granted all the property which is valued at approximately US
$ 1 million and that it is just and equitable that the application for maintenance be granted as it is
in the best interest of the children. It was held that the matter was res judicata and should have been
brought under the divorce proceedings.

K. Makubuya gives the following as differences between Res Judicata and Precedent.

Differences.
a. Res judicata applies to the decision in dispute while stare decisis operates as to the ruling of
law involved.
b. Res judicata normally binds only the parties and their successors; stare decisis binds
everyone including those who come before the courts in other cases
c. Res judicata applies to all courts. Stare decisis is brought into operation only by the
decisions of the High Court and other higher courts. (courts of record)
d. Res judicata takes effect after the time has passed. Stare decisis operates at once.

Legal reasoning.
This refers to making decisions according to the rules, treating certain sources as authoritative,
respecting precedent, being sensitive to the burden of proof and thereby coming to the right
conclusion.
Treating certain sources as authoritative referring to the Constitution; Art 1, 2, and 3, S. 14
Judicature Act, S. 101-103 Evidence Act.
Reasoning refers to the process of thinking making particular arguments to persuade the judges into
making a particular decision.
Lawyer’s reasoning involve the following;
i. Reasoning by analogy; this is where a cases A was decided in a particular way and a
consequent case comes up with similar material facts, then this consequent case must be
decided in a similar way.
ii. Linguistic reasoning; in this the meaning is discernible from the words used in the statutes
and then that meaning applied to the facts to persuade a judge in that case to arrive at a
particular conclusion.

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 iii. Judicial discretion; the exercise of a judge’s discretion in a matter to arrive at a conclusion
that supports public policy. Eg the decision in Rowe v Wade that allowed women to
abort.
Legal reasoning entails the state of law or principles and applying the said law or principles to the
fact before court and then making a logical conclusion. In the application of the law to the facts
especially relying on a prior decision, one must look at a case and satisfy himself of the relevant
material similarities usually premised on the principle on which the first case was decided.
The process of making arguments in court is premised on critical thinking i.e reasoning logically,
the ability to locate underlying assumptions or the ability to be curious, to be flexible and skeptical.
It involves the ability to find the assumptions behind, beliefs, actions and behaviours and then
bringing creativity to the activity of thinking.
This process entails the following;
 Receipt of information
 Evaluation
 Taking appropriate action
Critical thinking must be premised on; careful observation, investigation, and consideration.
For one to make a sound argument, they need to;
a. Competently identify the nature of the problem
b. Competently identify the applicable rules
c. Competently evaluate the problem
d. Draw conclusions.

Distinguishing cases
In some instances a judge may lay down a rule which is so wide that it does not consider its
consequences or the same judge may lay down a narrow rule. At other times a judge may even lay
down an unacceptable rule such that a later court may want to interpret as narrowly as possible.
The process of cutting down on the applicability of an earlier decision is referred to as
distinguishing. It can either be restrictive or non-restrictive. The latter will arise when a later court
recognizes the ratio expressed in an earlier decision but finds that the material fact is missing in the
later court.
Restrictive distinguishing on the other hand, when a later court regards as material a particular fact
which an earlier court had earlier regarded as immaterial or the later court introduces a qualification
to the earlier ratio.
Obiter dictum is a by the way remark, a chance mark that is never binding on future courts.

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In R v Howe (1987) Ac 47, the House of Lords contemplated altering the law of duress for murder
cases such that it may be treated as reducing murder to manslaughter when successfully pleaded.
At times depending on the judge’s eminence, such opinions may be taken out later in future opinions
such that the principles therein become binding on the lower courts.

CUSTOMARY LAW
Customary law is part of the law applicable in Uganda. See Judicature Act S. 14(2), 15 and s.10
MCA.

What is a custom?
A custom has been defined in the Hindu marriage and Divorce act cap 250 s. 1(a). “custom” means
a rule which, having been continuously observed for a long time, has attained the force of law
among a community, group or family, being a rule that is certain and not unreasonable or opposed
to public policy and, in the case of a rule applicable only to a family, has not been discontinued by
the family.

In the Marriage Act 251, a custom has been defined as a practice that has been followed by a
particular locality in such circumstances that is to be accepted as part of the law of that locality.

Black’s Law Dictionary defines a custom as a practice that by its common adoption and long,
unvarying habit has come to have the force of law. ordinarily customary law is a combination of
customs.

Essentials of a valid custom.

1. In order for a custom to qualify as a source of law, it must fulfil the following essentials.
A custom must be reasonable in nature. A custom must not conflict with fundamental principles of
right or wrong. E.g. there can never be a customary right to commit a crime.

2. A custom must have been followed continuously and since time immemorial, you cannot
invent a custom.
3. Certainly and clarity. For a custom to be valid, it must be certain and clear. It should not be
vague or ambigous.
4. A custom must have been applied in particular locality and being generally accepted in that
locality.
5. The custom must have been exercised as matter of right and not commit (courtesy or
considerate behavior) (optional).
6. The observance of the custom must have been and must be obligatory.
7. There must be consistence on the part of the inhabitants of that community in observing the
same custom so as to be given the force of law for it to be recognized by the court.
8. A Custom must confirm with statutory law for it to be valid. Any custom which is in conflict
or in consistence with the statutory law shall not be part of the law applicable.

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 Extract from O.K Metacalfe; Genral Principles of English Law; 1980 page 7.

Although the common law was in origin the universal custom of the realm, some local
customs still survive and in so far as they have received judicial recognition, they constitute
qualifications upon the common law and in the matters to which they relate and in their own
locality, replace the common law.

Judicial recognition will be afforded if the following conditions are satisfied.

i. Immemorial existence; the custom must have existed at the commencement of

legal memory which will be readily presumed unless it can be shown that the
custom could not have existed at that date.
ii. Continuity. i.e unbroken observance
iii. Locality; the custom must be confined to some district known to law
iv. Reasonableness
v. Certainty, i.e as to the subject matter, locality and persons to be benefited by it.
vi. Peaceable use i.e it must not have been the subject of dispute.
vii. Compulsory; once established the custom must be the local common law
viii. Consistence; obviously contradictory customs cannot be recognized.

CUSTOMARY LAW

A set of customs is what constitutes customary law of a given locality/ society. There is civil
customary law and criminal law.

Civil customary law is defined by S.1 of the MCA. civil customary law” means the rules of conduct
which govern legal relationships as established by custom and usage and not forming part of the
common law nor formally enacted by Parliament;

Local Council Courts Act 2006, customary law means the rules of conduct established by custom
and long usage having the force of law and not forming part of the common law nor form any
enacted by any formal legislation.

In Uganda when say customary law refer to civil customary law.

Customary law must be accepted, established and binding on a given society or tribe in their social
relations. It may be uniform to a number of societies or it may vary from one area to another but
where societies are similar e.g. Bantu, Luo, Nilo Hamites. Some customs may be similar.

Customary law has no role to play in criminal matters article 28(12).

For it to be customary law, it must not be part of the common law and any statutory law.

Areas to which customary law is applicable

Customary law is a matter of personal law. It deals with personal matters that concern the family
and the clan such as land, art 237, customary tenure is part of the land tenure in Uganda, marriage;

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customary marriage (registration) act cap 248 which defines a customary marriage to mean a
marriage celebrated according to the rights of an African community and one of the parties to which
one is the member of that community.
Divorce; those who married customarily must divorce customarily and succession.

Mark Kajubi V Kabali

There was a Kiganda custom which applies to succession to land on intestacy, children both
illegitimate and legitimate are entitled to share on their father’s estate on intestacy. Whether this
custom was to be upheld? The court held that there was nothing repugnant to natural justice equity
and good conscience in allowing an illegitimate child in taking a share of the estate of their deceased
father.

PROOF OF A CUSTOM.

The general rule is that he who alleges must prove. S.s 101, 102, 103 of the Evidence Act.
The party who seeks to rely on a custom as a source of law has the burden of proving both the
existence and validity of the custom he/ she seeks to rely on because under the evidence act cap
106 S.101, he who alleges must prove.

Exception is where judicial notice has been given to a particular custom.

S.s 55-56 of the Evidence Act, that facts judiciary noticeable need not to be proved.
Judicial notice is a rule of evidence which states that where a fact is so notorious and well known
to almost all the people in a given area then such a fact may not need proof before the courts of law.
The courts can simply take notice of such a fact.
S.56 Evidence Act gives examples where the court is bound to take judicial notice.
In Kimani v Gikanga 1965 EA 735, held; i) where African customary law is neither notorious nor
documented it must be established for the court’s guidance by the party intending to rely on it, and
this the appellant had failed to do; ( ii) as a matter of practice and convenience in civil cases the
relevant customary law, if it is incapable of being judicially noticed, should be proved by evidence
or expert opinions adduced by the parties

THE HISTORY OF CUSTOMARY LAW

Customary law has been in existence in Uganda right from pre-colonial period. In pre-colonial
Uganda, customs regulated the affairs of the native / indigenous.
Communities in Uganda, marriage inclusive and all the other branches of law.

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Traditional Africa was described by K. Makubuya The Concept Of Human Rights as meaning
Africa or Uganda as it originally was before invasion by or contact with European or other foreign
influence. i.e. pre-colonial Uganda refers to traditional Uganda/ Africa.
The colonial state / administration in Uganda gave the recognition to the same customs where it
was appropriate.
Using the 1902 Order in Council, the colonial administration was to perfect existing native laws
and customs that were not repugnant to justice and morality.
S20 of the 1902 Order in Council provided that in all cases civil and criminal in which natives are
parties every court shall be guided by native law in so far as it is not repugnant to justice and
morality or inconsistence with any order in council or ordinance.
S.12 of the 1902 Order in Council empowered to commissioner to make ordinances and other laws
but in the exercise of this legislative power he was to respect. The existing law and in so far as they
were favoring the individuals over the community.
According to Prof. Kakooza, this enabled the Uganda administration in the colonial days to
assimilate the native customs and laws with the received law. The colonialists respected the existing
customs in order not to upset the status quo.
An Excerpt from Morris and Read; Uganda; the Development of its laws and the
Constitution; Chapter 10 on Customary law.

The imposition of foreign law and enactment of local ordinances did not entail the
supersession of the indigenous customary law.
Through treaties and ordinances, the protectorate government provided for the existence of
Native Courts to enforce the local native law and customs of the area. However, subject to
certain restrictions; no customary law had validity which was repugnant to justice or
morality or in principle in conflict with the territorial law.

Customary law is unwritten.

A characteristic of customary law was the importance of compensation paid by the wrong
doer or his family or lineage to the injured party or to his family or lineage.

During British rule, customary law had to be proved by evidence unless it was so notorious
as not to require proof.

However, in African courts, it is not normally necessary to prove customary law since the
members of the native courts are familiar with the custom.

Customary law must not be assumed from statements of assessors or from the knowledge
and experience of the judge.

Customary law has in some of its branches undergone a metamorphosis. Customary law
was flexible enough to adapt itself also to the changing social life and attitudes of the mind
of the people.

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 Rules of English procedure and actual contents of English law were adopted by customary
law. Eg in Buganda there was prosecution of cases taken for the riding of a bicycle without
a light as an offence against native law and custom.

A certain amount of the customary law is now in enacted form as laws and by-laws of the
kingdoms and districts.

The fact that customary law is able to survive hand in hand with the Statute is indicative
that the statute does not reflect the values and norms of the people that is why they still go
back to customary law.

Customary law is defined as a body of customs and traditions which regulates various kinds
of relationships between members in a community.

The key factors in determination whether the custom has acquired the force of law are usage
and acceptance.

The Uganda Magistrates Act says; “civil customary law” means the rules of conduct which
govern legal relationships as established by custom and usage and not forming part of the
common law nor formally enacted by Parliament; S. 1 MCA

Ensuing cases
Natives were to be tried using native laws before native courts.
Gwao Bin Kilimo VN Kisunda Bin Ifuti (1938) ITLR 403, the custom in question made the father
liable for his son’s debts. It was held that it is not just for a person to compensate the inured party
on behalf of his son who is full of age and fully responsible in law for his actions
Mwenge V Migade (1933) ULR 97.
The plaintiff had challenged the competence of the defendant to sell.
This argument was rejected based on the 1900 Buganda agreement.
It was held that if the provisions of any law…….
Rex V Amkeyo (1914) KLR 14
The issue was whether a married woman under customary law would properly be regarded as a
wife for purposes of giving evidence in court. Court held that customary marriage was not valid
due to payment of bride price which was interpreted as wife purchase. Hence it was held that she is
not a wife and was compelled to give witness.
Repugnancy test
The repugnancy clause /test is reproduced in the 1968 Judicature Act No. 11 of 1967 S.3

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Subject to the provisions of the Constitution and this Act, the jurisdiction of the high court shall be
exercised.
a) Subject to the written law and in so far as does not extend or apply in conformity with (ii)
any established and current custom or usage.
The successor of the Judicature Act cap 13 S.15 of the Judicature Act cap 13. S.15 thereof has saved
the repugnance clause. It states; Nothing 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.

What is fate of S.15 of the Judicature Act 13 in light of article 2(2) of the constitution?
Best Kemigisha v Mable Komuntale 1998 court rejected that Tooro custom that denied a widow
of the Omukama from administering his estate.
Bruno kiwuwa v Ivan Serunkuma and Juliet namazzi. Court upheld the Kiganda custom that
prohibited people of the same clan from marrying each other.

RELATIONSHIP BETWEEN EQUITY AND CUSTOMARY LAW

In spite of the introduction of the English law in Uganda as you may see in the judicature statute
1967, S.4(1) MCA, S.10,11, and the courts are enjoined or obliged to observe and enforce the
observance of any existing custom which is not repugnant to natural justice, equity and good
conscience and not incompatible with any written law . S. 15 Judicature Act, S. 10 MCA;
An existing custom can only be enforced if it does not infringe on principles of natural justice and
good conscience. What is the purpose? The purpose is to achieve social justice in administration of
law.
As the general rule English technical equity does not apply to customary but equity in the broad
sense has made remarkable inroad in the territory of customary law.
Rex v Amkeyo was decided based on English technical equality.
How has equity influenced customary law; how have the courts in Uganda applied equity?
Koykoy v Mena and Anov S.C Gambia. A group of people wanted to import the culture of female
circumcision into a community that did not practice. The Gambia Supreme Court held that it was
repugnant to justice, good conscience and morality.
Mairura V Bosire Anginde 1958
A lady who was married under Roman Catholic rites but deserted her husband. She had other 8
children by other men. The applicant, the estranged husband, claimed the other 8 children as his
under customary law and the return of the wife on the ground that the marriage subsisted.

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The court had that in applying natural justice to the relevant customary law, it would certainly be
contrary to natural justice that the children of the respondent and his wife should belong to the
former husband.
R V Luke Malagula:
There was a custom of parading the deceased’s coffin in the town to discover who had caused death.
Such was held to be repugnant to natural justice.
Ole OlossoV N. Ole Kidoki
The court held that the Masai custom that a moran who wishes to leave his tribe may not weaken
the wealth of his tribe by taking cattle with him was not in any way repugnant to justice or morality.
Mark Kajubi V Kabali
There was a Kiganda custom which applies to succession to land on intestacy, children both
illegitimate and legitimate are entitled to share on their father’s estate on intestacy. Whether this
custom was to be upheld? The court held that there was nothing repugnant to natural justice equity
and good conscience in allowing an illegitimate child in taking a share of the estate of their deceased
father.
N.B Make cases very brief
The repugnancy test has been applied from 1902 up to present.S.20 was retained with slight
modifications in the 1967 judicature statute now present Judicature Act cap 13.
The enduring and endearing nature of the repugnancy doctrine.
It has been able to endure from 1902 to 1955 (art 2(2)).
Bruno Kiwuwa, above
How did the repugnancy doctrine impact on the development of customary law?
THE IMPACT OF CUSTOMARY LAW ON HUMAN RIGHTS
Human rights are covered in chapter 4 of the constitution.
How does custom relate with human rights?
Culture, custom and tradition in relation to the rights of women and girl child, gender equality and
freedom from discrimination on grounds of sex.
Constitutional provisions in the bill of rights (chapter iv).
i. Marginalized groups.
Art 21 talks about equality and non- discrimination.
Any custom that promotes discrimination would not be upheld.
32 (2) affirmative action in favor of marginalized groups.

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Customs against dignity welfare or interest of women which undermine their status are prohibited
by the constitution.
33-rights of women.
33(4):
Uganda women lawyers’ association v AG constitution.
It was challenging the Divorce Act which provided that a man to divorce needed one ground of
either adultery, cruelty and desertion but the woman needed only two of the three grounds. It was
discriminatory by art 21, on gender, sex. The constitutional court held that the provisions were
discriminatory and ruled that as a man needs one ground so as the woman.
Art 37, every person has a right to culture.
On culture-women and their access to land?
Other customs have been abandoned article 2(2). Any custom inconsistence with the constitution
is void.
The custom of the Nakku was abandoned by the Baganda IN 1999.
Ephraim v. Pastory and Kaizingele,. In that case, the Tanzanian High Court held that a local custom
prohibiting females from inheriting and administering clan land flies in the face of the country’s
Bill of Rights and therefore discriminatory on the basis of sex and contrary to the principles of the
UDHR.

Such a decision could plausibly be made in a Ugandan court. In the case of Best Kemigisa v. Mabel
Komuntale, the plaintiff was the Queen mother and widow of the late king of Toro Patrick Kaboyo
Olimi III who died intestate in 1995. Her right to inherit her husband’s estate was challenged by
her sister-in-law. Justice J.B.A. Katutsi held that as a general matter, a widow is entitled to apply
to court to grant letters of administration to administer the estate of her late husband for the benefit
of her children and herself and under the law she has first priority especially when the children are
minors. He thus ordered that the caveat be lifted/removed. He concluded his judgment with the
following observation:-

As we enter the third millennium the survival of kingdoms will depend on the whims and mercy of
politicians… I protest against the claim that we should remain chained to medieval conceptions
and cling to customs which would ignore reality by refusing people like the plaintiff a grant of
letters of administration to administer the estates of their late husbands for the benefit of their
children and themselves. A legal system ought to be able to march with the changing conditions
fitting it into aspirations of the people, which it is supposed to safeguard and serve. Fortunately, I
read nothing in our law which compels courts to follow blind and backward looking customs
The custom was therefore repugnant.
Re Kibiego [1972] 1 EA 179

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The issue was whether the widow of an African of the Nandi tribe who died intestate may apply for
a grant of letters of administration? According to Nandi Custom, on intestacy the family elders will
always appoint the eldest son of the deceased as administrator.
Held; A widow is the most suitable person to obtain representation to her deceased husband’s
estate. In the normal course of events she is the person who would rightfully, properly and honestly
safeguard the assets of the estate for herself and her children. It would be going back to a mediaeval
conception to cling to a tribal custom by refusing her a grant which is obviously unsuited to the
progressive society of Kenya in this year of grace. A legal system ought to be able to march with
the changing conditions fitting itself into the aspirations of the people which it is supposed to
safeguard and serve
Maliam Adeku and Anor v James Opaja and Anor constitution petition no. 1 1987
There was a custom of widow inheritance among the Iteso of eastern Uganda. The petition sought
to challenge the custom. It was dismissed on preliminary grounds.
Unity Dow V A G Botswana HC 1992SC
Unity Dow had married an American. Marriage by Botswana woman could not give citizenship to
foreign man while woman married by a man from any culture would be granted citizenship. It was
held to be discriminatory. The AG host.
ii. Sexual offences-Rape and adultery.
Law and advocacy for women const. petition no. 13 of 2005.
The constitutional court held that the provisions of the penal law on adultery were discriminatory
due to the elements of the offence.
When parties opt to be governed by customary law in their marriage they are presumed to be
governed by the same rules before, during and after marriage.
A customary marriage (Registration Act), is a marriage celebrated according to the rites of the
African community and one of the parties to which is a member of that community.
THE CHALLENGES FACING CUSTOMARY LAW
Non-codification =it is not written
For a custom to be applied it must be conflict free with other laws, S.15 (1) JA S10-11MCA
Globalization/ modernization: education, modern technologies, social media.
Education
Inter marriages
Rural urban migration
Imitation of other culture
Neo-colonization

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Economic challenges –poverty
Super imposing communities against smaller communities
Religion e.g. monogamy
Collapsing democracies - periods of war
Influence of elders/ traditional leaders
Radicalism-terrorism-I slam on education, urbanization
HOW MAY THESE CHALLENGES BE OVERCOME
Culture can be modernized
Mixing religion acceptable. Cultural practices e.g. songs, musical instruments
Ref. a hand book for magistrates
(History of applicability of customary law)

APPLICATION OF CUSTOMARY LAW

S. 10 MCA a person has a right to customary law if it passes the repugnancy test. S. 15(1) Judicature
Act
Customary law applies to Africans. Non-Africans are not subject to customary law.
S. 15(2) Judicature Act, a person who has chosen to be governed by another law is not entitled to
claim the benefit of civil customary law. Thus customary law will not apply where parties expressly
or by conduct agree that their relationship shall not be governed by customary law but by another
law.

Conflict of laws
A general law and a customary law. Where customary law is in conflict with any written law, it will
not be enforced S.9.MCA and S. 14 Judicature Act;
Where there is a conflict between common law and customary law, the latter prevails. It was stated
in Kabaka’s Government v Musa Kitonto that since common law applies in Uganda only in so
far as the local circumstances render necessary, customary law prevails over common law where
there is a conflict between the two.
Combining customary law marriages with statutory law (marriage act); where customary marriage
is converted into statutory marriage, divorce can only take place under statutory marriage. Yona
Katali v Yosam Mwerere. The respondent married under customary law but went through a second
marriage ceremony in church hence converting to statutory marriage. When his wife left him, he

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sought to claim bride price that he paid. The Chief Magistrate held that the respondent could not
sue for the return of bride price because the marriage was still subsisting under statutory marriage.
Divorce=those who are married customarily shall divorce according to the customs.
Conflict arising from different customary laws. Bruno Kiwuwa v Serunkuma and Juliet
Namazzi. The kiganda custom prevented marriage of members of the same clan yet there are some
clans in Buganda which allow it. Court held the custom to be valid.

Validity of customary law

He/ she who wants to rely on a custom has the burden of proving the existence and validity.
S.15 (1) Judicature Act, S. 10 MCA incompatibility and repugnancy test
Customary law is applied if it is not repugnant to justice , equity and good conscience or not
incompatible either in terms or by necessary implication with any written law for the time being in
force.
Incompatibility.
Where there is incompatibility between the written law and customary law, the former prevails. S.
14(1) Judicature Act, Art 2 Constitution.
The written law under s. 2 of the Interpretation Act means the Constitutional Instruments, Acts of
Parliament, Statutory Instruments and any other legislative instruments having effect in Uganda.
S. 36 of the Marriage Act; any person married under the Act in continuance of such marriage, shall
be incapable of contracting a valid marriage under customary law.
Art 28912) criminal law should be written hence customary law is incompatible since it is not
written.
Repugnance Clause;
The phrase not repugnant to “justice, equity and good conscience’ is a positive source of law to be
resorted to when other sources fail. S. 14(2) Judicature Act.
The jurisdiction of the High Court shall be exercised where no express law or rule is applicable to
any matter in issue before the High Court, in conformity with the principles of justice, equity and
good conscience.
Gwao Bin Kilimo v Kisunda Bin Ifut, the custom in question made the father liable for his son’s
debts. It was held that it is not just for a person to compensate the inured party on behalf of his son
who is full of age and fully responsible in law for his actions.
Under common law; a parent is legally responsible for a minor but not for an adult.
Ascertainment and proof of customary law

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Most customary cannot be ascertained and proved.
During colonial period, native courts required no evidence since justice was administered by high
officials who were familiar with customs.
In Uganda today, no judge or magistrate may rely on his or her personal knowledge of customary
law to the extent of applying a rule of customary law without evidence on the record to support it.
Permissible evidence.
I. Partial codifications of customary law and reported judicial decisions (Buganda only)
II. Textbooks of customary law
Njirwa v Kagangama, the judge relied on Roscoe’s book “The Banyankore Concerning Naming
of a heir by Banyankore; the issue was whether under the customary law of Ankore a man had
power by Will to name as his heir an uncle who was not a member of his clan, the court relied on
Roscoe’s statement that “ a man might name as his heir anyone he chose”
iii. Oral testimony; The most common means of ascertaining and proving a customary law
is through oral testimony by expert witnesses on customary law; S. 46 of the Evidence
Act
Rex V Ndembera s/o of Mwandawale it was held that the native custom must be proved in
evidence. It cannot be obtained from the assessors or from the knowledge or experience of the trial
judge.
Duffus JA in Kimani v Gikanga held; The difficulty remains how are these customary laws to be
established as facts before the courts? In some cases the court will be able to take judicial notice of
these customs without further proof as for instance in cases where the particular customary law has
been the subject of a previous judicial decision or where the customary law is set out in a book or
document of reference as provided in sub-s. (2) above, but usually in the High Court or in a
magistrate’s court, the relevant customary law will, as a matter of practice and of convenience, have
to be provided by witnesses called by the party relying on that particular customary law in support
of his case.
The case was dismissed as the appellant called no evidence to prove establish the customary law
on transfer of land.
In Kigozi v Lukiiko, the High Court suggested that a high customary political official (senior Saza
chief of Buganda) could be regarded as qualified.
iv. Elders community.
v. Parties are encouraged to produce their own experts . S. 146 Evidence Act, Court has
power to call its own expert.
In Kimani v Gikanga the court held in effect that the burden of proof on a question of customary
law lies on the party who relies on the rule in question.
LAW AND CULTURE

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Position of culture
Uganda national culture policy
Constitution of republic of 1962, 1967, 1995
Institution of traditional and cultural leaders act 2011
Traditional rulers (institution of assets and properties act) cap 207 1993
The equal opportunities commission act 2007
Land act as amended international
Universal declaration of human rights
The UNESCO convention concerning protection of world cultural heritage 19
UNESCO convention for safeguarding the tangible cultural heritage 2003
UNESCO convention of protection of diversity
UN declaration of the rights of the indigenous 2007
Culture has been left to the institution of traditional and cultural leaders where they exist.
Before colonial rule centralized kingdoms and chiefdoms1900 Buganda agreement 1902 o/c
At independence some traditional leaders assumed office 1963
1966 crisis S.74-45 1962 constitution power to make laws-kingdoms.
Native courts –native law
Aliens’ court- English law
1966 interim constitution -1967 republican constitution abolished kingdoms art 118 properties
rested in central government.
They remained non-function tin restoration by NRM in 1993
1995 Constitution art 2, 37, 1, 21, 32,(3&4) 26
246 institution of traditional cultural leaders
Art 10 indigenous communities
S. 2&3 of the Institution of Traditional and Cultural Leaders Act operationalize Art 246
S. 7 capacity of traditional leaders
They can sue of be sued in their name
S. 7(2) they can own property privately
S. 8, may abdicate the throne

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S.9 to promote and preserve cultural norms, values and practices for the well being of the people.
s. 14 restricted from norms repugnant to any other law eg Nakku was abandoned in August 1999
by Buganda
S. 13 not to join partisan politics
s. 17 have personal liability
in 1993 they were to receive their properties back.

International instruments
UDHR art 27 everyone has a right to freely participate in cultural life
Art 25 ICESCR provides for the right to participate in culture.

LAW EXAM
 Particular structure
 Problem shocking
 Name, place, age, time
 Issues
 State the law, authorities
 Never start the opposite way
 Brief facts
 Be straight
Essay requires analysis and critical
Sentence structure
First give an approach
Non -compulsory questions =attempt it if you know it
Refer to the law
Instructions
Timing

THE LANGUAGE OF THE LAW

History.
It is traced in the medical period when law was developing.
Latin and French were used together, Latin words very short.

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Latin words had no equivalent to English. However it is not understood by local people (art 127).
Every trade has its own language and so is the law (K Makubuya).
Reasons for language of law
It is historical
To protect the profession from impostors
Desire to maintain monopoly for lawyers.
Article 6 of the constitution- official English language
S.88 Civil Procedure Act= language of courts shall be English. Evidence in oral courts of law shall
be recorded in English, written application is English.
Lawyers’ English
This is the language of law which even if not in Latin, Greek or French is used in a lawyerly manner.
Mugoya Wilson v Uganda= before we take leave of this case.
Holden= sitting at
I beg to differ= disagree
Judge has misconstrued the provision of the law= judge has misinterpreted.
I have not addressed my mind to this issue= don’t know
I rest my case= I have finished
Submit= finish to say
Am seeking courts leave= seeking permission
You are enjoyed= obliged
Give judgement on notice= judge will give notice when he is ready to deliver
May it please you my lord= my lordship
Trite law= settled law
Over stepped= beyond jurisdiction
Appeal allowed
Appeal dismissed
Objection my lord-objection sustained/ over ruled
Sentence, conviction, judgement evidence inadmissible=evidence not allowed in court.
Conviction= upheld (maintained)

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Sentence= upheld, ruling upheld
Conviction= quashed
Cross appeal= when a defendant appeals and the plaintiff also appeals.
Counter claim= P claims and D claims
Associate myself= concur with the lead judgement.
LATIN FOR LAWYERS
Relevance of Latin as a language of law.
Latin is a very important language for lawyers and most lawyers either on the bench or at the bar,
make close reference to l Latin.
Latin is so entrenched on the law books that it’s almost impossible to do away with it i.e history
binds lawyers.
Latin is a beautiful language and it is convenient. It has one word meaning one and only exact
thing/phrase.
It is precise and concise, eg the matter is res judicata= meaning the matter is between the same
parties on the same facts and it has been tried by a court of competent jurisdiction.
It is the language of official documents i.e most documents have Latin phrases eg Art 44(d) habeas
corpus, 132(4) stare decisis.
Law is based on maxims of law derived from Roman law created by medieval jurists. Many of these
expressions are now deeply woven into the fabric of the law.
Latin is the engine of the law
Latin is useful and is a short hand
International tribunals also use Latin.
Even our qualifications as lawyers are in Latin.
Lawyers use Latin terms because they are a convenient shorthand. Some Latin terms have been
given judicial or statutory meanings and have become "terms of art". Some lawyers argue that Latin
is more precise than English. Blackstone said that: "Law Latin" was a technical language calculated
for eternal duration, and easy to be apprehended both in present and future times; and on those
accounts best suited to preserve those memorials which are intended for perpetual rules of action.”

Lawyers also use Latin out of habit.

LATIN PHRASES

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 Glossary of Legal Latin
A fortiori
'From stronger argument' – Used to express a conclusion for which there is stronger evidence than
for a previously accepted one
Ab initio
‘From the beginning’ – If a contract is void (say for mistake) ab initio, this has the consequence
that no innocent third parties can acquire rights under any subsequent contract (Bell v Lever Bros
[1932] AC 161 (HL) (Lord Atkin).
Actus reus
‘A guilty act’ – The prohibited conduct or behaviour that the law seeks to prevent. Although
commonly referred to as the “guilty act” this is rather simplistic, as the actus reus includes all the
aspects of the crime except the accused's mental state (see mens rea). In most cases the actus reus
will simply be an act (e.g. appropriation of property is the act of theft) accompanied by specified
circumstances (e.g. that the property belongs to another). Sometimes, however, the actus reus may
be an omission to act (e.g. failure to prevent death may be the actus reus of manslaughter: R v Stone
and Dobinson [1977] QB 354) or it may include a specified consequence (death resulting being the
consequence required for the actus reus of murder or manslaughter). In certain cases the actus reus
may simply be a state of affairs rather than an act (Winzar v Chief Constable of Kent (1983) The
Times 28 March 1983).
Ad hoc
'To this' – Created or done for a particular purpose as necessary:
Ad idem
‘Towards the same’ – Indicates that the parties to a transaction are in agreement.
Ad litem
‘As regards the action’
ad litem is the appointment by a court of a person to act on behalf of an estate in court
proceedings, when the estate's proper representatives are unable or unwilling to act.
ad litem is the former name for a litigation friend responsible for the conduct of legal
proceedings on behalf of someone else.

Ad referendum

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‘Subject to reference’ – Denoting a contract or other matter that is subject to agreement by other
parties and finalisation of the details.
Alibi
‘Elsewhere’ – A defence to a criminal charge alleging that the defendant was not at the place at
which the offence was committed at the time of its alleged commission and so could not have been
responsible for it. If the defendant proposes to introduce alibi evidence, details of his alibi should
be provided to the prosecution.
Alieni juris
‘Of another's right’ – Describing the status of a person who is not of full age and capacity
Aliunde
‘From elsewhere’ – From a source outside the document currently under consideration. Evidence
aliunde may be considered where the meaning of a document (e.g. a will) is otherwise unclear.
Amicus curiae
‘Friend of the court or tribunal’ – A non-party who gives evidence before the court so as to assist
it with research, argument, or submissions. For example, in the House of Lords decision on whether
to allow the extradition of General Pinochet their lordships sought an independent expert opinion
on the matter of diplomatic immunity. For that purpose they called upon an expert in this field,
David Lloyd Jones QC, to assist the court.
Animus
‘Intention’ - The term is often used in combination; for example:
animus furandi – the intention to steal;
animus manendi – the intention to remain in one place (for the purposes of the law relating to
domicile);
animus donandi: – the intention to transfer property.
Ante
‘Before’
Bona vacantia
‘Empty goods’ – Property not disposed of by a deceased's will and to which there is no relation
entitled on intestacy. Under section 46 of the Administration of Estates Act 1925, such property
passes to the Crown, the Duchy of Lancaster, or the Duke of Cornwall.
Bona fide
‘With good faith' – Genuine; real

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Caveat
‘Let him beware’ – A notice, usually in the form of an entry in a register, to the effect that no action
of a certain kind may be taken without first informing the person who gave the notice (the caveator).
Caveat emptor
‘Let the buyer beware’ – A common-law maxim warning a purchaser that he could not claim that
his purchases were defective unless he protected himself by obtaining express guarantees from the
vendor. The maxim has been modified by statute: under the Sale of Goods Act 1979 (a consolidating
statute), contracts for the sale of goods have implied terms requiring the goods to correspond with
their description and any sample and, if they are sold in the course of a business, to be of satisfactory
quality and fit for any purpose made known to the seller.
Certiorari
‘To be informed’
Cf (confer)
‘Compare'
Compos mentis
‘Possessed of mind’ – Of sound mind: sane. A valid contract must be made by someone who is
compos mentis.
Cor (coram)
'In the presence of the people'
Corpus delicti
‘The body of the offence’ – The proof that the crime has been committed. Originally this referred
literally to the corpse of a murdered person. It now refers to the factual evidence of the crime.
Cur. adv. vult/Curia Advisari vult
The court wishes to consider the matter before giving judgment, as when time is needed to consider
arguments or submissions made to it.
De bene esse
‘Of well-being’ – Denoting a course of action that is the best that can be done in the present
circumstances or in anticipation of a future event.
De facto
‘In fact’ – Existing as a matter of fact rather than of right.
De jure
‘Of law’ – As a matter of legal right; by right.

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De lege ferenda
‘Of (or concerning) the law that is to come into force’ – A phrase used to indicate that a proposition
relates to the law as it is.
De lege lata
‘Of (or concerning) the law that is in force’ – A phrase used to indicate that a proposition relates to
the law as it is.
De minimis (non curat lex)
‘The law is not concerned with trivial matters’
Dictum
‘A saying’ – An observation by a judge with respect to a point of law arising in a case before him.
Dissentiente
'Differing in opinion' – Dissenting from one's brother judges and making a speech to this effect. It
is often abbreviated to ‘diss’ in citations of cases.
Doli (in)capax
'(In) capable of wrong' – A child under the age of 10 is deemed incapable of committing any crime.
Above the age of 10 children are doli capax and are treated as adults, although they will usually be
tried in special youth courts (with the exception of homicide and certain other grave offences) and
subject to special punishments.
Erratum
An error in printing or writing.
Ex gratia
Done as a matter of favour – An ex gratia payment is one not required to be made by a legal duty.
Ex officio
By virtue of holding an office – Thus, the Lord Chief Justice is ex officio a member of the Court of
Appeal.
Ex parte
1. On the part of one side only – An ex parte hearing is defined in the Glossary to the Criminal
Procedure Rules as a hearing where only one party is allowed to attend and make submissions.
However, the term ex parte is no longer generally used in civil proceedings, having been replaced
by the phrase without notice.

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2. On behalf of – This term is used in the headings of law reports together with the name of the
person making the application to the court in the case in question, for example in applications for
judicial review.

Ex post facto
'In the light of subsequent events' – Describing any legal act, such as a statute, that has retrospective
effect
Habeas corpus
'You shall have the body (in court)' – A prerogative writ1 used to challenge the validity of a person's
detention, either in official custody (e.g. when held pending deportation or extradition) or in private
hands. Deriving from the royal prerogative2 and therefore originally obtained by petitioning the
sovereign, it is now issued by the Divisional Court of the Queen's Bench Division, or, during
vacation, by any High Court judge. If on an application for the writ the Court or judge is satisfied
that the detention is prima facie unlawful, the custodian is ordered to appear and justify it, failing
which release is ordered.
1 An order issued by a court in the sovereign's name directing some act or forbearance. Originally,
a writ was an instrument under seal bearing some command of the sovereign.
2 The special rights, powers, and immunities to which the Crown alone is entitled under the
common law. Most prerogative acts are now performed by the government on behalf of the Crown.
Some, however, are performed by the sovereign in person on the advice of the government (e.g. the
dissolution of Parliament) or as required by constitutional convention (e.g. the appointment of a
Prime Minister). A few prerogative acts (e.g. the granting of certain honours, such as the Order of
the Garter) are performed in accordance with the sovereign's personal wishes.
Ibid
‘In the same place’ – Used to save space in textual references to a quoted work which has been
mentioned in a previous reference.
Ignorantia juris non excusat
‘Ignorance of the law does not excuse’ – i.e. no defence against criminal or other proceedings
arising from its breach.
In camera
‘In the chamber’ – In private. A court hearing must usually be public but the public may be barred
from the court or the hearing may continue in the judge's private room in certain circumstances; for
example, when it is necessary in the interests of national security or to protect the identity of a
witness unwilling to give evidence in public. Part 39 of the Civil Procedure Rules and Part 16 of
the Criminal Procedure Rules deal with in camera hearings.
In curia

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‘In open court’
In limine
‘Preliminary’ – Used, for example, to describe an objection
In loco parentis
‘In place of a parent’ – used loosely to describe anyone looking after children on behalf of the
parents, e.g. foster parents or relatives. In law, however, only a guardian or a person in whose favour
a residence order is made stands in loco parentis; their rights and duties are determined by statutory
provisions.
In personam
‘Against the person’ – Describing a court action or a claim made against a specific person or a right
affecting a particular person or group of people (compare in rem). The maxim of equity “equity
acts in personam” refers to the fact that the Court of Chancery issued its decrees3 against the
defendant himself, who was liable to imprisonment if he did not enforce them.
3 A court order
In re
‘In the matter of’ – A phrase used in the headings of law reports, together with the name of the
person or thing that the case is about (for example, cases in which wills are being interpreted). It is
often abbreviated to re.
In rem
‘Against the thing’
1 Describing a right that should be respected by other people generally, such as ownership of
property, as distinct from a right in personam.
2 Describing a court action that is directed against an item of property, rather than against a person
or group of people. Actions in rem are a feature of the Admiralty Court.
Inter alia
‘Among other things’ – The phrase is used to make it clear that a list is not exhaustive.
In situ
‘In the original place’
Intra
‘Inside’
Intra vires

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‘Within the powers’ – Describing an act carried out by a body (such as a public authority or a
company) that is within the limits of the powers conferred on it by statute or some other constituting
document (such as the memorandum and articles of association of a company).
Inter vivos
‘Between living people’ – If a trust is created inter vivos it is created during lifetime, as distinct
from upon death.
Ipso facto
‘By that very fact or act’
Locus in quo
‘The place in which’ – The place where an event took place. Fact finders may visit the locus in quo
in order to understand the evidence and the judge and jury may inspect it as part of court
proceedings.
Mens rea
‘A guilty mind’ – The state of mind that the prosecution must prove a defendant to have had at the
time of committing a crime in order to secure a conviction. Mens rea varies from crime to crime; it
is either defined in the statute creating the crime or established by precedent. Common examples
of mens rea are intention to bring about a particular consequence, recklessness as to whether such
consequences may come about (R v Cunningham [1957] 2 QB 396), and (for a few crimes)
negligence. Some crimes require knowledge of certain circumstances as part of the mens rea (for
example, the crime of receiving stolen goods requires the knowledge that they were stolen). Some
crimes require no mens rea; these are known as crimes of strict liability. Whenever mens rea is
required, the prosecution must prove that it existed at the same time as the actus reus of the crime
(coincidence of actus reus and mens rea: R v Le Brun [1992] QB 61). A defendant cannot plead
ignorance of the law, nor is a good motive a defence. He may, however, bring evidence to show
that he had no mens rea for the crime he is charged with; alternatively, he may admit that he had
mens rea, but raise a general defence (e.g. duress) or a particular defence allowed in relation to the
crime.
Non est factum (suum)
‘It is not my deed’ – A plea that an agreement mentioned in the statement of case was not the act of
the defendant. It may be applicable where the person signing a document had no real understanding
of the character or effect of that document.
Obiter dictum
‘A remark in passing’ – Something said by a judge while giving judgment that was not essential to
the decision in the case. It does not form part of the ratio decidendi of the case and therefore creates
no binding precedent, but may be cited as persuasive authority in later cases.
Onus (probandi)

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‘Load or burden’ – Something that is one’s duty or responsibility (burden of proof).
Pari passu
‘With equal step’ – Proportionally, without preference. The principle that where there are competing
claimants, (e.g. in bankruptcy proceedings) assets should be distributed on a pro rata basis, in
accordance with the size of the claim.
Per
‘Through, by means of’
Per curiam (per. cur.)
‘By the court’ – A proposition per curiam is one made by the judge (or, if there is more than one
judge, assented to by all).
Per incuriam
‘Through lack of care’ – A decision of a court is made per incuriam if it fails to apply a relevant
statutory provision or ignores a binding precedent.
Per se
‘By or in itself or themselves; intrinsically’
Post
‘Subsequent to; after’
Prima facie
‘At first appearance’ – on the face of things
Quasi
'As if, almost'
Qui facet per alium facit per se
‘He who acts through another, acts through himself’ – The traditional basis of vicarious4 liability.
It means, for example, that an employer is liable for the consequences of any act done by employees
in the ordinary course of their duties and responsibilities.
4 Acting or done for another
Ratio decidendi
‘The reason for deciding’ – The principle or principles of law on which the court reaches its
decision. The ratio of the case has to be deduced from its facts, the reasons the court gave for
reaching its decision, and the decision itself. It is said to be the statement of law applied to the
material facts. Only the ratio of a case is binding on inferior courts, by reason of the doctrine of
precedent.

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Res judicata
‘A matter that has been decided’ – The principle that when a matter has been finally adjudicated
upon by a court of competent jurisdiction it may not be reopened or challenged by the original
parties or their successors in interest. It is also known as action estoppel. It does not preclude an
appeal or a challenge to the jurisdiction of the court. Its justification is the need for finality in
litigation.
Res ipsa loquitur
‘The thing speaks for itself’ – A principle often applied in the tort of negligence. If an accident has
occurred of a kind that usually only happens if someone has been negligent, and the state of affairs
that produced the accident was under the control of the defendant, it may be presumed in the absence
of evidence that the accident was caused by the defendant's negligence (Scott v London and St
Katherine Docks Co (1865) 3 Hurl. & C. 596).
Sic
'So, thus' – Used in brackets after a copied or quoted word that appears odd or erroneous to show
that the word is quoted exactly as it stands in the original.
Stare decisis
‘To stand by things decided’ – A maxim expressing the underlying basis of the doctrine of
precedent, i.e. that it is necessary to abide by former precedents when the same points arise again
in litigation.
Sub judice
‘In the course of trial’ – The sub judice rule:
1 A rule limiting comment and disclosure relating to judicial proceedings, in order not to prejudge
the issue or influence the jury. See contempt of court.
2 A parliamentary practice in which the Speaker prevents any reference in questions or debates to
matters pending decision in court proceedings (civil or criminal). In the case of civil proceedings,
he has power to waive the rule if a matter of national interest is involved.
Sui generis
‘Of its own kind’ – Forming a class of its own; unique.
Ultra vires
‘Beyond the powers’ – Describing an act by a public authority, company, or other body that goes
beyond the limits of the powers conferred on it. Ultra vires acts are invalid (compare intra vires).
The ultra vires doctrine applies to all powers, whether created by statute or by a private document
or agreement (such as a trust deed or contract of agency). In the field of public (especially
administrative) law it governs the validity of all delegated and sub-delegated legislation. This is

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ultra vires not only if it contains provisions not authorized by the enabling power but also if it does
not comply with any procedural requirements regulating the exercise of the power.
The doctrine also governs the validity of decisions made by inferior courts or administrative or
domestic tribunals and the validity of the exercise of any administrative power. The decision of a
court or tribunal is ultra vires if it exceeds jurisdiction, contravenes procedural requirements, or
disregards the rules of natural justice (the power conferring jurisdiction being construed as requiring
the observance of these). The exercise of an administrative power is ultra vires not only if
unauthorized in substance, but equally if (for example) it is procedurally irregular, improperly
motivated, or in breach of the rules of natural justice (substantive vs. procedural ultra vires). The
remedies available for this second aspect of the doctrine are quashing orders, prohibiting orders,
declaration, and injunction (the first two of these are public remedies, not available against
decisions of domestic tribunals whose jurisdiction is based solely on contract).
Volenti non fit injuria
‘No wrong is done to one who consents’ – The defence that the claimant consented to the injury or
(more usually) to the risk of being injured. Knowledge of the risk of injury is not sufficient; there
must also be (even if only by implication) full and free consent to bear the risk (Simms v Leigh
Rugby Football Club Ltd [1969] 2
All ER 923). A claimant who has assumed the risk of injury has no action if the injury occurs. The
scope of the defence is limited by statute in cases involving business liability and public and private
transport.

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