MAKERERE UNIVERSITY

SCHOOL OF LAW
MODULE: INTRODUCTION TO LAW
What is Law?
The definitions
Law may vary from ideological, sociological, political or economic
standpoints. To add definitions
Objectives:
By the end of this session, you should be able to:
Define law, explain the different schools that attempt to define law,
demonstrate the purpose of law in society, understand the language
of law explain the different types of law, and explain/list the different
types of law that are applicable in Uganda, law making process, and
interpretation of statutes and deeds.

Here are some definitions:

Various schools influencing the definition of law
a) Natural law school believes that law is eternal and divine. Cicero, a
scholar 0f this school asserted that natural law is inborn, universal, and
unchanging (or immutable). Key also to the natural theory is a believe
that law should have internal morality (ethics)
b) Positivist scholars define law as the command of the sovereign
authority capable of maintaining law and order within a specified
geographical area. The sovereign authority could take the form of a
monarchy, a democratically elected leader or an autocrat/dictator. Key
to the positivist line of thought is that law is a command enforceable
by penal sanctions only. This has come to be known as the Austinian
scheme of law, after AI Austin, its main proponent. The positivistic
scholars also teach that law and morality are separate and must not be
mixed (i.e. The separability thesis)
c) The historical school as expounded by Savigny looks at law as a
product of historical developments in a particular society. This school
of thought believes that law is a developed by custom and popular
acceptance for the concerned society and not by arbitrary action.
d) The sociological school as advanced by Prof. Roscoe Pound looks at law
as a product of values and attitudes of a given society. According to his
theory of social engineering, law is a machine designed to meet the
requirements of a particular society. Other scholars under this same
school include Maximillien Webber (German scholar) and Emile
Durkheim (French scholar).

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 e) Legal realists advance the view that law should be looked upon from
the point of view of application of the rules by the courts.
f) Marxists: Karl Marx did not view law in the same way as other scholars.
He argued that law was a tool (or instrument) for promotion of the
interests of the dominant capitalist class. According to Marx, law and
the state were creations of the dominant class as an ideological tool for
purposes of perpetuating the exploitation of the lesser classes. His
theory of law has got a number of general themes which could be
summarised as follows:
1. Law is political and cannot be detached from politics.
2. Law and the state are closely connected though they can be
separated.
3. Law gives effect to the prevailing economic relations, Law is a
reflection of the prevailing economic relations at the material base
of society, and as such there is no independent theory of the law.
4. Law is potentially coercive and manifests the state’s control over
the means of coercion.
5. Law is an ideological tool meant to obscure power relations.

All the above definitions, however, have some common elements which can
help in the understanding of the meaning of law. They key elements capture
the idea of sources, application and effect of the law. These elements are:

(a) Law is a command. A command is a compulsory requirement. What it

lays down is not subject of discussion or modification. The purpose is
to maintain law and order. Norms as custom which are not commands
are not laws.
(b) The command must be complied with and binds all persons
irrespective of social, economic or political status/affiliation. Laws
have uniform application in terms of requirements. Exception to the
law can only be given by the law itself. All persons are therefore under
legal compulsion to obey the law.
(c) The law puts in place sanctions that may be imposed on those who do
not comply with it. Sanctions include fines, disqualifications,
imprisonment e.t.c.

General definition
Without hinging on a particular school of thought, law may therefore be
defined as “rules and regulations that govern a particular society”. According
to the concise dictionary of law: law is defined as an obligatory rule of
conduct and command of him or them that have coercive power , and as to
Glanville Williams in his book Learning the Law on p.1 defines law as ‘the
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cement of the society and also an essential medium of change’. It is
generally accepted that law is a body of rules for the guidance of human
conduct, which is imposed upon and enforced among the members of a
given society.

Law Applicable in Uganda / Sources of law

Section 14 of the Judicature Act states the law applicable in Uganda and the
list includes the Constitution, written law, common law and established and
current custom or usage. Each of these applicable laws in Uganda deserves a
brief comment.

1. The constitution
The Constitution of The Republic of Uganda (1995) is the supreme law.
Art 2 of the Constitution provides that the Constitution shall take
precedent over all other laws. Any other law, custom that is
inconsistent with the constitution is null and void to the extent of the
inconsistency. Supremacy of the constitution binds the executive
(President), Parliament (legislature) and the Judiciary. The courts (The
Constitutional Court of Uganda) can declare a provision of a law an
action, policy practice, norm or cultural observance as unconstitutional
and therefore invalid1.

2. Acts of Parliament/ Principle legislation

The Constitution gives, in Art 79, parliament powers to enact laws for
“peace”, order and development of Uganda. Parliament is the
supreme law making organ. No other authority can make laws without
the authority of parliament. Parliament makes laws by enacting Acts
of parliament examples of Acts of parliament include the Local
governments Act, the Public - Health Act, etc. The Acts of Parliament
Act, Cap 2, provides for a thorough procedure and format for making
laws by the Parliament. Principle legislation therefore includes Acts of Parliament,
Decrees (Passed during a period with no elected Parliament), Statutes (Passed by a
Legislative Assembly and not an elected Parliament)

Parliament sometimes exercises its law making powers through

delegation of its authority, a process that leads to the enactment of
subsidiary legislation.

Subsidiary Legislation
Under Art 79 of the Constitution, parliament can authorise any other public body
(usually an executive authority) to make laws. The delegation of authority is normally
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Article 137 of the Constitution.
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justified because parliament does not have enough time, resources, and expertise to
attend to all legislative issues in the country. Subsidiary legislation is subordinate to
laws made by parliament. Subsidiary legislation may also be referred to as
subordinate or delegated legislation.

The principle reason why Parliament delegates its law making powers is the
complexity of living in a civilized society and the necessity for so many laws containing
high levels of technical details. It would be impossible for Parliament to retain absolute
responsibility for all of it.

In recognizing the practical utility and necessity for delegated legislation, Parliament
routinely delegates its law making function. However, Parliament must be satisfied
that, in each case, the delegation can objectively be justified.

Types of Subsidiary Legislation

Subsidiary legislation include the following-

(a) Regulations; This is the term used to refer to subsidiary legislation which lays
down legislative requirements, it is in quality and nature like an Act but give
more details regarding to procedural issues.

(b)Rules; These are generally procedural requirements which indicate steps that
must be taken for a particular purposes e.g. Court Rules

(c) Orders;

(d) Legal Notice;

(e) Bye-laws/ Ordinances; Used to refer to laws made by local authority/ councils
and deals mostly with matters of health, sanitation, welfare, education at local
authority level. It may also be used to refer to rules for internal management of
bodies e.g. statutory corporations.

(f) Proclamation; refers to formal notice by a Head of State e.g. declaration of a

state of emergency. Since the executive arm of government does not make
laws, proclamation should strictly not be used to lay down the law.

(g) Executive instruments/ orders etc, used in some jurisdictions to

indicate executive acts the basis of which are found in specific Acts in the
jurisdictions e.g. deportation orders

3. Common Law
Common Law means the reasoning of English Judges which have
crystallised in to legal principles by their constant application in deciding
cases. The term common law was in use in the time of Edward 1 to
describe that part of the law common to the whole of England which was
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 not statutory. This common law is only applicable where the matter is
not covered by the constitution, Acts of parliament or subsidiary
legislation. In the case of John Nsereko v George Gitta [1975] HCB
152 It was held by Ssekandi Ag J. that common law meant the law which
was not as a result of legislation. It was the law which was created out of
the custom of the people and embodied in the decisions of judges.
Uganda of course inherited the common law doctrines concerning the
authority of judicial precedent as sources of law, because of the reception
of English law in ours laws.

4. Judicial Decisions.
When a judge decides a case he issues an order giving effect to his
decision which is entered on the record of the court. This is a judicial
decision or Judgment in the strict sense, and is binding only on the
parties to the case. But the judgment will have been based on some
legal principle (ratio decidendi) which should be applicable to all cases of
a similar kind, and it is inevitable that judges should to a greater or less
degree follow the former decisions of themselves and their colleagues
and predecessors under the doctrine of Precedent.

The doctrine of precedent requires judges and courts to follow the

reasoning laid down in older/pre-existing decisions. The doctrine of
precedent gives rise to the doctrine of “Stare decisis” where the judges
must abide by the decisions of higher courts, beginning with the High
Court. Hence Magistrates Courts must follow the decisions and reasoning
of the High Court, Court of Appeal and the Supreme Court. In the same
manner, the High court follows decisions of the court of Appeal and the
Supreme Court, just as the Court of Appeal must follow the decisions of
the Supreme Court. The decision of The Supreme court binds all the lower
courts, as the Supreme Court is the highest appellate court in the land.

The Doctrine of precedent is justified on the following grounds

a) Written law does not cover all situations that are likely to lead to
conflict.
b) Reasoning in previous cases aid in interpretation of written laws that
are not clear.
c) Following precedent leads to certainty of what courts are likely to
decide. That is persons and their legal advisers can have confidence in
the future action of the courts. It is better in the words of lord Eldon LC
“the law should be certain than that every judge should speculate
upon improvements in it”2
2
Sheldon v Goodrich (1803) 8 Ves.Jr 481, 497.
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 d) Precedent ensures uniformity in decision making as like cases are
treated in the same way.
e) Precedent helps in quick dispensation of justice. The doctrine of
precedent also allows Uganda courts to use (without being bound) the
decisions of other higher courts and laws from other common law
countries.

The doctrine of precedent however has its short comings. The doctrine
prevents the development of the law to cover new matters that have
not arisen before e.g. artificial fertility; the doctrine of precedent can
lead to injustice especially where courts adhere to a harsh principle of
law e,g freedom of contract; the doctrine also kills the spirit of judicial
activism as judicial discretion is taken away; the doctrine may also
leads to a lot delay as precious little time is spent on digging up
records of earlier decisions. Justice delayed is justice denied. The
discretion of the courts is fettered, and they quite frequently have to
give decisions of which they strongly disapprove but they are bound by
a binding precedent.

5. Customary Law
Meaning of customary law
There is no single definition of customary law agreed to by lawyers, jurists,
social anthropologists and others who may be concerned with it. Both
custom and law may be used in number of deferring senses depending on
the requirement of the writers approach. See White; African Customary
law: The problem of Concept and Definition Cited in William Burnett
‘An Introduction to legal systems in East Africa. However, Allott in his
article Customary Law: its place and meaning in contemporary African
Legal systems’, defines custom native law or native and custom to mean in
relation to a particular tribe or in relation to any native community outside
any tribal area the general law or custom of such tribe or community except
so far as the same may be incompatible with the due exercise of his
Majesty’s power and jurisdiction or repugnant to morality, humanity, or
natural justice, or injurious to the welfare of the natives. He adopted this
definition from Bechuanaland –native Courts Proclamation, 1942, section
1(2). See Harvey p. 444.

Section 1(a) of the Magistrates Court Act define Civil customary law as ‘
means the rules of conduct which govern legal relationships as established
by custom and usage and not by forming part of the common law nor
formally enacted by parliament.

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A brief background of customary law
As we have seen above, the first law to allow the application of customary
law the African Order in Council and later the order in Council 1902 which
provided that ‘all cases in which the parties are natives whether civil in
nature or criminal to which natives are parties, every court …shall be guided
by the 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.

The Magistrate Court Act, Act 38 of 1964 (Cap 36) section 15(1) thereof
provided that subject to the Constitution and provisions of this Act, the a
magistrates Court shall administer –
(a) The customary law prevailing in the area of its jurisdiction so far as it is
applicable and is not repugnant to natural justice, equity and good
conscience and not in conflict with any written law for the time being in
force within the area.

The Judicature Act, Act 11 of 1967 also implored court to apply customary.
Section 8(1) provided that ‘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.

(2) No party to the suit shall be entitled to claim the benefit of

any custom it appears from express contract or the nature f
the transaction out of which the suit or question has arisen
that such party agreed that his obligations in connection with
transaction shall be regulated exclusively by law, other than
by the customary law.

Statutory provisions on the applicability of customary law

The basis for the current applicability of customary law is premised in the
Constitution which provides for the law to be applied in Uganda. Article 2 of
the Constitution that the Constitutions is the supreme law of Uganda and
shall have binding force on all authorities and persons throughout Uganda.

Article 2(2) further provides if any other law or custom is inconsistent with
any the provisions of this constitution, the constitution shall prevail, and that
other law or custom shall, to the extent of inconsistency, be void.

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The Judicature Act, Cap 13, Section 15 reproduces the above provision. This
provision is the basis for the application of customary in Uganda. Also the
Magistrate Court Act 16, section 10 provides for the application civil
customary law and how it should be applied.

S. 10 (1) nothing in this Act shall deprive the Magistrates court of the right to
observe or enforce the observance of, or shall deprive any person of the
benefit of, any civil customary law which may applicable that is not
repugnant to natural justice, equity and good conscience and not
incompatible either in terms or by necessary implication with any written law
for time being in force.

S. 10(2) Notwithstanding subsection (1), No party to the a civil cause or

matter shall be entitled to claim the benefit of any civil customary law if it
appears, either from express contract or from the nature the transactions out
of which any civil cause or matter shall have arisen, that he or she agreed or
must be taken to have agreed that his or her obligations in connection with
all such transactions should be regulated exclusively by some law other than
civil customary law.

Generally in order for a custom to be applicable or to be legal custom it must

fulfill the following conditions;
1. Reasonableness A custom must be reasonable. The authority of
usage is not absolute, but conditional on certain measures of
conformity with justice and public utility. This does not mean that court
should disregard a customary a custom whenever satisfied as to
absolute rectitude and wisdom or whenever they think that a better
rule could be formulated in exercise of their own judgment.

This will be to deprive the custom of its authority. The true rule is that
a custom is to be deprived of its legal efficacy if it is so obvious and
seriously repugnant to right and reason that to enforce it would do
more mischief than that which will result from overturning it. Valid
custom therefore, must be reasonable.
2. Conformity with the law –in the second place a custom must not be
contrary to an Act of Parliament. In the words of Coke ‘no custom or
prescription can take way the force of an Act of Parliament. This can
be seen in the provisions of article 2 of the Constitution which provides
that if any other law or custom is inconsistent with any the provisions
of this Constitution, the Constitution shall prevail, and that other law or
custom shall, to the extent of inconsistency, be void.

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 Customary law ranks 3rd in the hierarchy of legal force, is subject to the
constitution and the written law. Where customary law conflicts with
written law, written law prevails and such custom loses the force of
law. Normally customary law is applicable in land matters, domestic
relations. It is also applicable in contracts e.g. loan contracts.

3. Observance as of right
The 3rd requisite of the operation of the custom as a source of law it
has been observed as a right. This does not mean that the custom
must be acquiesced in as a matter of moral right. This means that a
custom must be followed openly without the necessarily for force i.e
should not be forced upon the people. However, it must be compulsory
so that everybody regards it as law.
4. For a custom to have a force of law, it should be immemorial in nature
i.e it should have been in use for such a long time that nobody
remembers its origins. A recent or modern custom normally have no
legal effect.
5. A custom should be local in nature with a limited application within a
limited society. It should be certain as regards the subject matter,
locality and persons to benefit from it.
6. Consistency it must be consistent with other customs in the particular
community without contradiction.

IN WHICH/WHAT INSTANCES IS CUSTOMARY LAW APPLICABLE?

As already noted earlier the constitution restricts the application of

customary law to only civil disputes. (See the Constitution 1995 Art 28(2).
Similarly, all other relevant Statues are to the same effect limit the
application of customary law to some instances of civil relations of which the
salient ones where civil customary law applies being property and domestic
relations. Customary law also to a lesser extent applies in torts such as,
adultery, pregnancy, defamation and trespass to land and goods.

Customary law plays a very important role in spheres of land control,

holding, acquisition and disposal. Most of the land holding in Uganda are
under customary tenure which is one type of land holding recognized by the
Constitution see (Art.273 (3)). It therefore follows that the Constitution
recognizes the important role played by customary law in modern Uganda
thus entrenching the provision to safe guard the role and existence of
customary tenure vests rights of ownership in the tenant that is it can be
transferred, inherited or mortgaged like any other land under a different
holding.
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In the case of Mutamburire vs. Kimera, (Civil Appeal 33/72) it was held
that customary tenant or “Kibanja holder” for all purposes, enjoys security of
tenure and his title is as good as that of an owner of land under customary
tenure. He can sell his “kibanja” pledge it or even mortgage it at will.

Proof of customary law

Customary law should be proved by a person who intends to rely on it.
Where customary law is a question of fact then it has to be proved.

6. Doctrines of Equity
Equity is a body of rules of fairness or natural justices or public morality in a
particular community. These are principles of fairness that were adopted by
English courts (chancery courts) to minimise the effects of unfair common
law principles. Those principles are based on consideration of equality and
fairness. These principles are expressed by way of maxims (sayings)
Here below are some of the maxims that are applied in adjudication of
disputes according to the doctrine of equity.
a. Whoever comes to equity must come with clean hands
b. Equity does not allow a wrong to have no remedy
c. A person cannot benefit from his own wrong
d. Equity should follow the facts
e. Whoever seeks equity must do equity
f. Equity aids the vigilant
g. Equity regards that which ought to be done as done
h. He who comes to equity must come with cleans hands.
i. Equality is equity

Statutory provisions on the applicability of Equity

Equity is applicable in Uganda by virtue of statutory provisions for instance
section 10 (1) of M CA states that in every civil cause or matter before a
magistrate’s court, law and equity shall be administered concurrently and
section 14(5) of the Judicature Act states that 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. Thus equity is law in
the sense that it is part of the law of England applied in Uganda.

However, in the case of conflict or variance between the rules of common

law and the rules of equity, equity shall prevail as to section 14 (4) of the
Judicature Act that in every cause or matter before the High Court, the rules
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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.

Activity
 Find and read any case judgment from the nearest court or
library to where you stay. Identify the type of law that the
court applied.
 Identify any custom from any one culture you are well
knowledgeable about which is incompatible or repugnant to
any written law.

Language of the law.

Article 6 of the 1995 constitution spells the official legal language as English.
However, it is often difficult for students who begin studying law, because
law has its own language that creeds from the time law developed. Thus,
Latin maxims, abbreviations of law, particular way of phrasing the English
language differ while studying law. The reason why this so, is because there
is need to preserve law in its natural character and development. Otherwise
interpreting some of the words to a typical English phrasing would lead to
the disappearance of the rich language of law.

Classification/Division of the law

The word Law is used in broad terms. Law has classes or divisions that are
distinct and applicable only in specified circumstances. The classification of
law has many advantages:
1) It enables application of principles correctly and easily.
2) It makes easy reference.
3) It determines the appropriate court for settlement of disputes.
4) The classification of the law dictates the remedies to be awarded by
the courts,

Classification of laws may depend on content, applicability, origin or other

characteristics.
The usual classifications of law are the following:-

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1. Written law Unwritten Law
Constitution of Uganda Acts of e.g. Customary Law
Parliament e.g. Local
Governments Act Subsidiary
Legislation e.g ordinances and Bye
Laws Civil Law
Follows a code of principle written
2. Common Law down on a particular subject.
- Based on decided cases Sometimes called Napoleonic
following doctrine of precedent Code. Commonly applied in
(case law). continental Europe.
- Applicable in England and the - Does not follow doctrine
Commonwealth precedent
International Law
Law applicable and governing
3. Municipal Law relations between independent
Laws applicable within a particular states.
country and which do not affect Disputes resolved in International
other countries Courts e.g International Court of
Disputes are resolved in national Justice.
courts e.g. the High Court of
Uganda. Civil Law
Relates to disputes between
4. Criminal Law private persons e.g. contracts,
- Relates to crimes against to torts, divorce, property
state e.g. theft, Robbery, forgery, Aims at restoration or
treason compensation to the affected
- Aims at punishment of offender person. Awards include damages
or prevention of offence and other forms of compensation
- Punishable by fines, or Proof on the balance of
imprisonment probabilities
- Prof beyond all reasonable
doubt
5. Public Law Private Law
- Relates to matters in which the Regulates relation between
state has an interest. private persons.
- The state is usually a party to The state is not a party to dispute
the dispute before courts of law e.g. Family law (divorce),
e.g. constitutional law, Judicial commercial disputes etc. In such
reviews in Administrative Law cases the state may be a party as

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 if it was a private person.

Civil Law
6. Miltary (Marshall) Law Applicable to civilians who are not
Applicable to serving members of serving in the military forces e.g.
the military forces High Court and other courts of
Enforceable in military Courts judicature.
following military codes and
procedure e.g. UPDF Act.

7. substantive Law Procedural or adjectival law

This classification contains laws This classification contains laws
that provide the substance of a that prescribe the procedure for
legal mater. For example the enforcing a substantive law e.g.
Penal Code A ct provides for the Criminal Procedure Code
crimes and punishments. provides for the steps in the
enforcement of the Penal Code
Act.

THE LAW MAKING PROCESS.

This part introduces the student to procedures of making the laws
specifically Acts of parliament or principal legislation and regulations
made by minister or subsidiary legislation in Uganda. To enable
parliament carry out the mandated services, the 1995 constitution
gives them powers to make laws on any matter for peace, order,
development and good governance of Uganda [Article 79 of the
constitution].

THE ROLE OF LEGISLATION

The role of legislation is to stipulate rights and obligations. It lays down
powers, privileges and duties. It states what can and cannot be done.
The rule of law promotes good governance and stimulates
development for without law, there is chaos. High quality legislation is
enduring and does not need frequent amendment. It gives effect to
government policy and reduces the fiscal risks to the Government. It
avoids the courts having to decide on what it means and reduces
compliance costs for uses by limiting the scope for avoidance.

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High quality legislation should be drafted in accordance with the
following general principles.
1. Legislation should be drafted in clear, simple and precise
language. Clarity determines ease of understanding and removes
ambiguity. Simplicity requires that unnecessary elements are
excluded but should not result in legislation failing to have its
intended effect. Precision ensures there is certainty in the mind
of the reader.

2. 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. Members of Parliament should understand the statutes
that Parliament enacts and the Executive should understand the
statutory provisions it approves. End users range from the
population at large to specialists in specific fields, each should
expect that the legislation uses language they can understand.
Those implementing the law may range from public servants to
scientists and judges. The language of the Act should account for
this, where the law includes technical requirements, they must
be understood by the professionals who implement them.

3. Acts should be concise and the content should be as uniform as

possible. A good legislative style should express key ideas
succinctly. The language of the Act should be consistent .A basic
law should not contain detailed provisions; these should be
included in a Schedule or in subsidiary legislation. Acts should be
consistent with other legislation and should not overlap or
conflict with other legislation in a given field.

4. The legislative sentence should be simple. Each section should

contain a simple provision. Long sentences should be avoided.
The sentence may be split into sub divisions that follow the
progression of the reasoning, since a compact block of text is
hard for the eye to follow and the mind to absorb.

5. The terminology used in a particular legislation should be

consistent internally and with other laws, especially in the same
field. Identical concepts should be expressed in the same terms
as far as possible without departing from the meaning in ordinary
legal or technical language. Formal inconsistency requires that

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 the Act does not contain inherent contradictions between any of
its provisions. Defined terms must be used in a uniform manner.
Definitions only apply to the particular Act in question.

6. Legislation should use gender-neutral language; gender specific

words should be avoided. If however the substance of the
legislative sentence applies only to one gender, words that
identify that gender should be used.

7. When legislation is expressed in different official languages, the

different versions should be identical in structure and
substantive meaning. Each version of the text should be in
correct idiomatic meaning. The structure of the legislative
sentence should be the same in each language.

8. There should be good organisation of material.

 The material should be arranged in logical order
 General provisions should be followed by specific
provisions and exceptions
 Provisions that relate to the same subject matter should be
grouped together.
 Provisions should be arranged in temporal sequence
 Provisions that are significant should come before
provisions of lesser significance.
 Sections should be limited in the number of subsections
they contain and as a general rule should not have more
than six subsections.
 The Act should be divided into groups of sections under
headings
 Sections should be numbered.

POLICY AND LEGISLATION

1.0 What is a policy

Dictionary definition: A course of action adopted and pursued by a

Government, a party or a ruler.

Technical definition: The process by which Government translates its

political vision into programmes and actions to deliver desired
changes.

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Policies are responses to new goals and new values; policy provides
direction for the achievement of certain goals and the development of
certain sectors.

1.1 Why is Policy relevant

-All Governments are judged by how well they deliver results or how
well they handle issues such as:
 Widespread poverty
 Unemployment
 Access to education
 Health
 Environment degradation
 Crime prevention
 Transport infrastructure
 Taxes
 Corruption, etc.

-The capacity to deliver is part of the implicit contract between the

state and its citizens.

-Policies are one of the most important ways through which

Government delivers its programmes and services to the people.

1.2 Types of policy

(a) Well written (formal) policies

These are formally written and carefully named policy

documents. Usually, the process of formulating and making such
policies is protracted and involves thorough research and
analysis on such issues as-
 Clear identification of the problem
 Statistical trends
 Influencing factors in national and international
scene
 Draws experience from other countries
 Consultations with major stakeholders
 Assesses the impact of implementing the policy

The result is a well-researched, well-written policy document,

which is formally adopted and passed by Cabinet.

Examples of such policies include-

 National gender Policy

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  National Environment Policy
 Fish Policy
 Uganda Forestry Policy
 Population Policy

(b) Non formal policies

In this category, there is not a formally written or named policy.

The process of formulating these kinds of policies is not very
consultative. These policies typically respond to urgent social,
economic and political issues.

Examples include-
 Universal Secondary Education (USE)
 Policy on defilement

(c) Policies arising out of International obligations

Article 123 of the Constitution empowers the President or any
other person authorized by the President to make treaties,
conventions, agreements or any other arrangements between
Uganda and any other country or between Uganda and any other
international organization.

Consequently, Uganda has signed and ratified several

international agreements and is also a member of several
Regional and International groupings such as East African
Community, COMESA, WTO, African Union, etc.

These International Agreements usually impose certain

obligations, which member countries must comply with. One of
the basic rules governing treaties is that member states must
comply with treaty obligations. Governments thus adopt the
policy in those treaties and makes them part of their own,
normally through the process of domestication.

2.0 Policy Implementation

Policy implementation is the conscious conversion of policy plans into

reality. Without implementation, policy, however well written has no
significance.

Policy decisions may be implemented through the following

mechanisms:
 By means of legislation such as drafting of Bills and statutory
instruments

17
  Administrative measures such as guidelines and codes of
practice
 Economic measures such as giving incentives, tax inducements,
grants, loans or subsidies
 Information and sensitization through advise, guidance, threats
or persuasion by wide dissemination

The most common method of policy implementation is legislation. A

number of Government policies are however implemented through
administrative means or a combination of legislation and
administrative means.

Examples of Government policies implemented through means other

than legislation include-
 Universal Primary education
 Universal Secondary Education
 Immunization
 Voluntary Counseling and Testing (VCT)
 Bonna Bagagawale

3.0 Policy and Bills

Policy drives Bills. Bills are legislative proposals intended to implement

policy decisions or recommendations. Bills do the following-
 Give effect to Government policy which can only be effected by
enacting laws e.g. laws imposing taxes, creating or limiting
certain rights, laws creating statutory bodies and giving them
certain functions, laws prohibiting certain conduct, etc
 Tax laws passed annually to raise Government revenue to meet
Government’s expenses i.e. Income Tax and Value Added Tax
 Give the force of law in Uganda to international obligations under
treaties and conventions
 Implement recommendations for law reform arising from
recommendations of law reform Commission
 Individual Members of Parliament originate Private Members’
Bills to enact laws which they think are urgent but Government
has not given such matters due attention.

THE ENACTMENT PROCESS

KEY STATUTORY TERMINOLOGY.

Act: A law made by Parliament- an Act of Parliament.

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Amending Act: An act passed by Parliament to alter another existing
Act of Parliament or to alter an enactment

Assent: The approval given to an Act of Parliament by the President,

reigning King or queen of sovereign representative

Bill: The draft of a proposed Act of Parliament. Bill is the term used to
describe the draft before Parliament has passed it as an Act.

Consolidating Act: An Act passed to bring into one Act of Parliament

an original Act together with all amendments that have been made to
that original Act by various amending Acts of Parliament, or an Act
passed to bring into one Act of Parliament provisions which have
previously been scattered in various earlier Acts which it repeals.

Delegated Legislation: Law which is made by some person other

than Parliament and acting under the authority of an Act of Parliament.

Division: If an Act of Parliament is divided into parts, those parts may

themselves be divided into divisions each of which is likely to contain a
number of sections

Enactment: An Act

Hansard: The publication in which are recoded the speeches/

deliberations made in Parliament.

Heading: Words appearing at the top of a part or division of an Act of

Parliament, they approximate to the chapter heading in a book.

Long title: The longer of the two titles which are given to an Act of
Parliament, the long title sets out some indication of scope of the Act.

Marginal note: a note set in the margin of the Act; it sets out (not
always accurately) an indication of the matters dealt with in the
section or subsection.

Paragraph: a portion of a subsection

Part: For an Act of Parliament the part corresponds to the chapter of

a book

Schedule: A provision of an Act of Parliament appearing at the end of

the Act, it is most commonly used to prescribe a form that is to be
used in administering the Act or to prescribe rules for carrying some

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provisions of the Act into effect. It corresponds to an appendix in a
book.

Section: Every Act of Parliament is divided into sections which are

numbered consecutively and which approximate to the verse of a book
of the Bible.

Short title: the name of a particular Act of Parliament.

Side note: Another name for marginal note.

Statute: Another name for an Act of Parliament.

Subsection: A section may itself be subdivided into provisions which

are known as “subsections” and which are themselves numbered
numerically within the section.

Title: Each Act of Parliament has two titles- the Long title and the short
title.

General procedure for the enactment of substantive legislation

The process for the enactment of an Act of Parliament begins with a
request for policy approval from the Cabinet for the proposed
legislation by the Ministry concerned. The request must be in the form
of a Cabinet Memorandum setting out the following:
 the purpose of the memorandum
 the background for the legislation
 issues for consideration by Cabinet
 Inter-departmental or Ministerial consultations that have been
held with bodies or agencies of relevance.
 financial, considerations supported by a statement that the
Ministry of Finance has been consulted
 employment considerations, if any
 whether or not there is existing legislation
 whether amendment or new legislation is required, and the
recommended action to be taken by Cabinet.

The cabinet Memorandum must be presented by the sponsoring

minister to Cabinet under cover of a letter to the Secretary to the
Cabinet signed by the concerned minister.

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After consideration of the memorandum, Cabinet approval is
communicated in a letter signed by the Secretary to the Cabinet to the
sponsoring Minister and copied to the Attorney-General. This letter
gives direction for the preparation of the legislation concerned. It is
useful if a copy of the Cabinet memorandum is attached the Cabinet
approval to the Attorney-General because the explanatory
memorandum that goes with each Bill is prepared by the drafter on the
basis of the cabinet memorandum for policy approval.

The significance of the Cabinet approval is that it authorizes the

sponsoring Minister through the schedule officer to issue drafting
instructions to the legislative Drafting Division of the Attorney-
General’s Department.

The drafting instructions should follow the contents of the Cabinet

memorandum and should include the following:
 objectives intended to be achieved by the Bill
 reports on the matter including any relevant legal opinions
 references to existing legislation
 indication of any consequential amendments, transitional or
savings provisions required
 prospective commencement date if required, and the name of
the schedule officer in the Ministry, Department or Agency who is
to liaise with the Legislative Drafting Division of the Attorney-
General’s Department.

The draft Bill will be prepared by the Legislative Drafting Division in

close collaboration with the sponsoring Ministry through the schedule
officer. After consultation between the Legislative Drafting Division and
the sponsoring Ministry, the Bill is finalized. Upon finalization, the draft
Bill is submitted to the sponsoring Ministry with an Explanatory
memorandum attached.

The draft Bill with the memorandum unsigned is then submitted by The

Minister to Cabinet to seek approval for the Bill to be laid before

parliament. The Secretary to the Cabinet communicates the approval
of Cabinet to the Attorney- General and the sponsoring Ministry. After
that, arrangements are made by the Legislative Drafting Division for

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the printing and publication of the Bill in the Gazette for the statutory
fourteen day period as generally stipulated in the Constitution.

The Bill is then laid in Parliament by the sponsoring Minister and goes
through the Parliamentary process of passage into an Act of
Parliament. Which include the following;
 The 1st reading of the bill before the floor of parliament is made,
though there is no debate.
 The bill is then forwarded to the research committee, upon
completion of the research, the 2nd reading is made and debating
of the bill by parliament begins.
 Upon the 3rd reading, voting is done, and the bill is thereafter
forwarded to the president for assent [Article 91 of the
constitution]
 The question of how long each reading takes depends on
complexity of the bill or urgency the government puts to it.

If it is assented to by the President it comes into force after it has been

published in the Gazette in accordance with the provisions in the
Constitution. In the case of Uganda v Joseph [1972] ULR , court held
that an Act of parliament comes into force as is provided in the Act of
Parliament or on the date of its publication as provided in the gazette.

Where the draft Bill is sponsored by an agency or department or

private member which does not fall under a Ministry, the Attorney-
General takes responsibility to submit the draft Bill to Cabinet seek
approval for the Bill to be laid before Parliament.

The procedure for amendment of an Act of Parliament is similar to that

for fresh legislation, it begins with the sponsoring Ministry obtaining
approval from cabinet for the policy of the amendment and continues
in the same as the enactment of new legislation.

Where it is determined and certified by a Committee of Parliament that

Bill is of an urgent nature, that Bill may be introduced without

publication. A Bill may be laid in Parliament after it has been published
in the Gazette but before the statutory fourteen day period has
elapsed if Parliament considers the matter to be urgent. This often
applies to financial legislation.

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Procedure for the enactment of subsidiary legislation
Most subsidiary legislation, Orders, Rules or Regulations are procedural
in nature and often do not require prior Cabinet approval before the
policy proposal are submitted for drafting to the Attorney-General’s
Department. However, instruments that have financial implications for
the State or are by the nature of their contents likely to indicate a
policy shift or drastic change in an existing situation require Cabinet
approval and must therefore be submitted for prior Cabinet approval
before drafting begins.

After the proposals for the subsidiary legislation have been received
from the sponsors, the draft Order, Rule or Regulation will be prepared
by the Legislative Drafting Division in collaboration with the sponsoring
Ministry through the schedule officer.

In accordance with the provisions in. the Constitution, the draft order.
Rule or Regulation must be published in the Gazette on the day it is
laid before parliament and comes into force on the expiration of
twenty-one sitting days unless the parliament annuls the Order, Rule
or Regulation by the votes of not less than two- third of the members
of Parliament before the expiration of the twenty-one days. The
procedure for the amendment of subsidiary legislation is the same as
the making of fresh subsidiary legislation.

PROCESS OF MAKING ORDINANCES

Ordinances may be made to Implement government policy and
regulate behaviour in a particular community. Ordinances mean laws
made by district and city councils. When these ordinances are made,
they only apply to the boundary or within the districts when they are
made, they cannot extend to other districts. E.g. Regulation made in
Kampala City cannot apply to Wakiso district. They are supposed to
cover policies that have been developed at the city or district level and
should not be in conflict with national laws.

The process/stages
A bill for an ordinance may be introduced by any member of the
council

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Step 1 Who may introduce an ordinance
A member who intends to introduce legislation by ordinance consults
with the relevant department, causes a bill to be drafted

Step 2 Member of council may introduce a bill by motion

A member of the council moves a motion introducing a bill for an
ordinance, the motion is debated and if agreed the bill is published

Step 3 Bill must be published at the council offices

If the other members of the council agree with the motion and the Bill
attached the bill will be published in a conspicuous place at the notice
board of the council/outside the door of the district council office or
supply copies to the public.
The publication shall be accompanied by a memorandum stating the
policy objective and how the bill seeks to implement that policy

Step 4 Distribution of copies of the Bill to members

On publication the clerk is required to distribute copies of the Bill to
members of the council, to enable them study the bill and consult for
views from the public/constituencies

Step 5 Publication of Bill

Within 14 days from the date of publication, the member who
introduced the Bill shall reintroduce it to the council for debate

Step 6 Debating the Bill

The speaker of the council calls out the name of the member
introducing bill, to introduce it
The clerk then proceeds to read the title of the Bill and the member is
then called upon give an introductory speech stating the
justification/reasons of the bill
After the introductory remarks the members then proceed to debate
the Bill, based on the introductory remarks and the memorandum

Sept 7 Passing the Bill

After the debate the speaker is required to put questions to the
members of the council (clause by clause) as to whether they pass the
clauses as published or with amendments that may have been made
during the debate

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Step 8. Chairperson of the council to send copies of bill to
Attorney General
Upon passing the Bill, the Chairman is required to send a copy to the
Attorney General for advice. The attorney general may make
amendments or return it without amendments.

Step 9. Attorney General may return the copies with or without

amendments
When the Bill is returned by the Attorney General, the Chairman is
required to sign 5 copies of the ordinance and it shall be published in
the gazette

Step 10. Ordinance to come in force on date specified

On publication the ordinance shall be given a number and shall come
into force on the date specified as the date of commencement of the
bill.

FORM AND CONTENTS OF THE BILL FOR ORDINANCE

(a) Bill to have a title.

Each bill shall be identified by a title placed at the beginning of the bill,
the title of the bill shall include the subject matter of the ordinance in
general terms. E.G. “Dumping of Garbage Ordinance”

(b) Ordaining clause.

Each bill must have an ordaining clause placed immediately below the
title of the bill.
The ordaining clause usually reads as follows—
“BE IT ORDAINED by the council of the district of (name of district) as
follows:”

(c) Arrangement of clauses

The Bill must have clauses in descending order

(d) Head note

This states the brief of what is contained in the clause e.g. “
dumping of garbage” “offence for failure to dumb garbage”

(e) Clauses

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 The Bill must have ordaining clauses, provisions which provide in
detail what the ordinance says

(f) Repeal and saving

These provisions will save or repeal certain acts which are affected
by the new ordinance

MEMORANDUM ACCOMPANYING THE BILL

Each bill for an ordinance must be accompanied by a memorandum
stating the object and justification of the ordinance. Usually this
memorandum must state specifically the reasons of certain clauses of
the Bill and how they will be implemented. This is intended to give
members of the council and the general public the intention and
understanding of the Bill and usually it will form the basis of the debate
and discussions.

The memorandum must be signed by the member introducing the bill

for the ordinance.

INTERPRETING STATUTES AND DEEDS

The rules of interpretation are developed by the judges both to assist
the courts themselves and to eliminate any risk of arbitrary
interpretation. The text of a statute must be examined objectively. It
stands by itself and the intention of parliament must be ascertained
from the words of the statute.

The rules of statutory interpretation.

Literal
By the literal rule, words in a statute must be given their plain,
ordinary or literal meaning. The objective of the court is to discover
the intention of parliament as expressed in the words used. In the
case of R v judge of the city exparte Whitely Chappell [1868]
LR 4 court noted if the words of the statute are in themselves
precise and unambiguous, then no more can be necessary than to
expound those words in their natural and ordinary sense. The words
themselves alone do, in such case, best declare the intention of the
lawmaker.
In Sussex Peerage Case (1844) 8 ER 1034,cited with
approval in the case Stanbic Bank Of Uganda Ltd and others

26
vs Attorney General HMA-0645-2011, where court noted that
that:

“… the only rule for the construction of Acts of Parliament is, that they
should be construed according to the intent of the Parliament which
passed the Act. If the words of the statute are in themselves precise
and unambiguous, then no more can be necessary than to expound
those words in their natural and ordinary sense. The words themselves
alone do, in such case, best describe the intention of the
lawgiver.”Golden Rule
The golden rule provides that if the words used are ambiguous, the
court should adopt an interpretation which a voids an absurd result. In
Grey v Pearson [1857] 6 HL Cas 61 lord Wensleydad said “…..the
grammatical and ordinary sense of the words is to be adhered to,
unless that would lead to some absurdity, repugnance or inconsistency
with the rest of the instrument, in which case the grammatical and
ordinary sense of the words may be modified, so as to avoid that
absurdity and inconsistency.”

Mischief rule
The mischief rule is contained in Haydons Case [1584] 3 co Rep 7,
and allows the court to look at the state of the former law in order to
discover the mischief in it which the present statute was designed to
remedy. The court stated that for the true interpretation of all statutes
four things are to be considered;
- What was the common law before the making of the Act
- What was the mischief and defect for which the common law did
not provide
- What remedy parliament resolved and intended to cure
- The true reason of the remedy and then the function of the judge
is to make such construction as shall supress the mischief and
advance the remedy.

In the case of Smith v Hughes [1960] 2 ALLER 859 in the case six
women had been charged with soliciting and prostitution on streets
contrary to the law that prohibited prostitution on streets. However
one woman had been on the balcony and others behind the widows of
ground floor rooms. The issue was whether the law applied to them,
court held that they were guilty because the mischief aimed at was
people being molested or solicited by prostitutes.

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The Purposive approach
The purposive approach is one that will promote the general legislative
purposes underlying the provisions. There will be a comparison of
readings of the provision in question based on the literal or
grammatical meaning of the words with readings based on a purposive
approach. In the case of Jones v Tower Boot Co Ltd [1997] 2
ALLER 406. The complainant suffered racial abuse at work, which he
claimed amounted to racial discrimination for which the employers
were liable under section 32 of the racial discrimination Act 1976. The
court applied the purposive approach and held that the acts of
discrimination were committed in the course of employment. Any other
interpretation ran counter to whole legislative scheme and underlying
policy of section 32 of the Act.

Ejusdem Generis Rule

General words following particular words will be interpreted in the light
of the particular ones. The principal is based on the logical approach to
classification and definition by “genus et differential”. The principal
provides that where there is a list of particular species which under
one genus and these are followed by general words the potential scope
of the latter words is cut down to make them fit into the genus. The
principal is based on grammar, syntax and logic. In the case of Powell
v Kempton park Racecourse [1899] AC 143. It was an offence to
use a “house, office, room or other place for betting”. The defendant
was operating from a place outdoors. The court held that “other
places” had to refer to other indoor places because the words in the
list were indoor places and so he was not guilty.

The following should be considered in interpretation-

 Internal context- every word of a piece of legislation must be
read in context of the other words of the provision in which it
appears; the part of the legislation in which it is situated and the
scheme of the legislation as a whole;

 The provision- all provisions take colour from the words

immediately surrounding them;

 Part of the legislation- a provision must be read in the light of

the subject matter of the part of the legislation in which it
appears;

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  Scheme of the legislation- provision must be in context of the
Act as a whole i.e. purpose, theme, or philosophy which the
reader must understand;

 Indications- headings and marginal notes in legislation can

generally not be used for the purpose of interpreting legislation
unless otherwise stated, they are only guides and words of the
substantive provisions prevail ;

 Purpose provisions- many Acts now contain a purpose section

which states in some details, the purpose of the Act. The purpose
sections are key importance given that enactments are to be
interpreted in the light of their purpose;

 Interpretation sections- most Acts contain near the beginning

an interpretation section which provides a dictionary for the Act
by defining a number of key words and phrases which appear
throughout the body of the Act. The words and phrases defined
may be the ones which could otherwise rise ambiguity.

COURT SYSTEM IN UGANDA

Introduction
This session introduces you to Courts of Judicature in Uganda. It
explores the functions of various Courts in Uganda and their
limitations.

Objectives:
By the end of this session you should be able to:
 Define a Court
 Describe the work of the Supreme Court, Court of Appeal, High
Court and Magistrates Court.
 Advise a complainant of which Court would be most appropriate
to hear his/her case.
 Explain the nature and work of the Industrial Court, the Appeal
Tribunals, Human Rights Commission, Local Council Courts, and
military courts, among others.
 Explain how the Land Tribunal used to work and why its
jurisdiction was transferred to Magistrates Court.

29
A court is a forum used to adjudicate disputes in society. Section 2 (v)
of the Interpretation Act defines a court to mean a court of competent
jurisdiction in Uganda
Sec 2 (1) (a) of the Evidence Act defines court to include all
Magistrates functions and assessors and all persons except arbitrators
legally authorised to take evidence.
Article 126 of the Constitution provides further that judicial power is
derived from the people and shall be exercised by the courts in the
name of the people and in conformity with the law and with the values,
norms and aspirations of the people. Courts fall under the judiciary
which is an independent legal organ provided for under the
Constitution (Article 128). They are entrusted with the administration
of justice and courts of judicature include:-
 Supreme Court
 Court of Appeal
 High Court
 Magistrates Court

In addition there are Local Council courts and Tribunals like the
Industrial Courts, Tax Appeals Tribunal, Human Rights Commission and
in the past, Land Tribunals. These institutions also deal with the
resolution of disputes by they are either specialised or limited to
matters of fact, which is different from what courts of judicature are
and do. Unlike these specialised dispute resolution institutions/bodies,
courts of judicature are open to all people and all manner of disputes in
terms of subject matter. Similarly, courts of judicature are not merely
courts of facts, they are courts of law and form part of the judiciary
among the organs of the state.

Matters that were previously handled by Land Tribunals were

transferred to Magistrate Courts in 2006. This means that whereas the
land tribunals are not operational, the Magistrates courts have been
conferred with the powers they had in entertaining all matters relating
to land disputes.

The hierarchy of courts is provided for under Article 129 of the

Constitution and the Supreme Court is the highest followed by the
Court of Appeal, the High Court and finally all subordinate courts that
Parliament may by law established.

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Application of Common Law and the Doctrine of Precedent
Article 132(4) of the Constitution provides that the Supreme Court can
treat its decisions as binding, but it is allowed to depart from its earlier
decisions if it thinks right to do so. But all the other courts as well as
judicial and -quasi-judicial tribunals are bound to follow the decisions of
the Supreme Court. This is called the doctrine of precedent. The
rigidity of the doctrine of precedent is justified on the ground that it
ensures the demands of predictability and uniformity which are
essential to any system of law.

In Mohamed vs Bakari and others (2005) 2 E.A , it was held that a

High court Judge under the doctrine of precedent is bound by the
decisions of the Court of Appeal even if he may not approve of a
particular decision.

Magistrates Courts
Magistrates Courts- are established under Magistrates Court Act (Cap
16). They are important in trying to reduce the bulk of cases in the
higher courts in the country. It is for this reason that the country is
divided into Magisterial areas under the Magistrates Court (Magisterial
Areas) Instrument, Statutory Instruments 16-1.

Magistrate’s courts are divided into three layers i.e. Chief Magistrates,
Magistrate Grade I, Magistrate Grade II. The jurisdiction of this court is
determined by both geographical location and nature of the case. A
Magistrate who is assigned to a given magisterial area cannot sit in
another magisterial.

Criminal jurisdiction of magistrates.

Under the Magistrates Courts Act, jurisdiction of the Chief Magistrate
courts includes power to try all criminal offences other than those of a
capital nature that carries a death sentence [section 161(1) (a) MCA]
which are only triable by the High Court exercising original jurisdiction
and superior courts acting as appellate courts. Then the magistrate
Grade1 may try any offence other than an offence in respect of which
the maximum penalty is death or imprisonment for life and can pass a
sentence not exceeding 10 years or fine not exceeding four million
eight hundred thousand shillings or both. As to a magistrate Grade II
shall have jurisdiction to administer and enforce any of the provisions
of, any written law other than the offences and provisions specified in

31
the 1st Schedule to this Act and pass sentence of imprisonment for
period not exceeding 3 years or fine of not exceeding 500,000 shillings
or both. [Read section 161 & 162 of MCA].

Civil jurisdiction of magistrates

As far as civil claims are concerned, the jurisdiction of the court was
recently increased by the Magistrates Courts Amendment Act 2007
wherein it was stipulated that the Chief Magistrates' pecuniary
jurisdiction is now set at 50 Million Shillings and unlimited jurisdiction
in disputes relating to conversion, damage to property or trespass.
Grade 1 Magistrates can handle cases whose monetary values does
not exceed 20 million Shillings with unlimited jurisdiction on matters
governed by civil customary law and Grade II Magistrates handle
matters whose monetary values does not exceed 500,000/= [Read
section 207 of the MCA]

The High Court.

It is the third superior court in record possessing unlimited original
jurisdiction in both criminal and civil cases and exercising. In addition,
it hears appeals from Magistrates courts and exercises general
supervisory powers over them. Unlimited original jurisdiction means
that the High Court can try any case of any value, and crime of any
magnitude and kind.

Activity:
 How does the Supreme Court differ from the High
Court?
 How does the High Court differ from the Magistrates
Court?
 Read the Local Council Act of 2006 and explain/list
the powers of the local council courts.

The original jurisdiction of the High Court can only be excluded by the
parties express agreement and for this reason that parties usually
have a clause in agreement which deals with dispute resolution. It is
not enough for parties to state the law applicable. Unlimited
jurisdiction of the High Court has been subjected to cases in situations
where the matters taken to the High Court falls under the jurisdiction
of a specialised tribunal e.g the Tax Appeals Tribunal. In Rabo
Enterprises Uganda Limited vs Commissioner General, Uganda

32
Revenue Authority, Court of Appeal Civil Appeal 55/2003, the
issue was whether the High Court had unlimited jurisdiction in all
matters including matters that the
tax appeals tribunal had jurisdiction to handle. The Court of Appeal
decided that the High Court had unlimited jurisdiction in all matters
including the case that was before it even though a special Act of
Parliament had given jurisdiction to a statutory tribunal.

Supervisory powers of the High Court

The High Court also has the jurisdiction to exercise administrative
control over the decisions of the courts, bodies and tribunals below it.
Under Section 17 of the Judicature Act provides that the High Court is
empowered to exercise general supervisory powers over Magistrates
courts. With regard to such powers the High Court is empowered to
take all such steps required for preventing abuse of the process of the
court and preventing delays.

Functions of High Court

The Principal Judge is the head of the High Court and subordinate
courts and in that capacity assists the Chief Justice in the
administration of the High Court and subordinate courts. The High
Court is divided into several divisions
i. Civil
ii. Criminal
iii. Commercial
iv. Family
v. Land Division;
vi. War crimes and
vii. Anti corruption
viii.
The divisions of the High Court are not different courts. They are
simply administrative divisions to ease the flow of work. A Judge from
any division may exercise jurisdiction of other divisions when he is
appointed in such a division. Each Judge of the High Court is assigned a
particular division and is eligible for transfer to another division.
Although each division has its administrative Head they are all under
the supervision and control of the Principal Judge.

The Divisions

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a) Civil division is the largest and one of the oldest divisions of H.C.
The jurisdiction of the Civil Division mainly includes hearing appeals
from the Magistrate's Courts. There are however certain matters which
can only be heard by it including winding up petitions. The original
jurisdiction of the Civil Division comprises of torts committed against
persons, defamation, bankruptcy etc.

b) Criminal division has jurisdiction in all capital criminal offences

such as murder, rape manslaughter, defilement, arson and any other
offences carrying a death sentence, a life imprisonment or a larger
imprisonment term. Criminal Division has also appellate and revisional
powers dealing with proceedings on appeal and revision from
Magistrates courts. In addition, the division confirms sentences from
Magistrate Courts.

c) The Commercial division was established to deliver efficient,

expeditious and cost effective justice to the commercial and economic
sector of Uganda. The Jurisdiction of the division includes but is not
necessary limited to the supply and exchange of goods and services,
banking, negotiable instruments, international credit and similar
financial services, insurance and re-insurance, the operations of stock
and foreign exchange markets, the carriage of goods by water, land
and air, foreign judgments and commercial arbitration requests.

Activity:
 List the functions of the Civil, Criminal, Commercial
and family division of the High Court.
 State five reasons that could justify the creation of
different divisions of the High Court.
 State five reasons for the justification of the
tribunals and other courts which are not part of the
courts of judicature.

The procedures in the commercial courts are more flexible than in

normal ordinary courts, thus promoting speed and simplicity and
thereby dispensing substantive justice more efficiently.

d) The Family division:-

It was established to handle all causes and matters connected with the
status and welfare of families. The jurisdiction of the division includes

34
probate and administration causes, custody, guardianship, adoption,
paternity or maternity causes, issues involving trusts as well as
matrimonial causes such as petitions for divorce and judicial
separation or any other causes as may be conferred to the division by
the Principal Judge.

e) Land Division
This deals with land matters e.g. trespass, fraud, in-land transfers, and
unlawful evictions e.t.c.

The Court of Appeal

It is the third court of record and is between the Supreme Court and
the High Court. It has appellate jurisdiction over the High Court. It is
not a court of first instance except when hearing constitutional cases
since it also doubles as the Constitutional court. Article 134 establishes
the structure of the Court of Appeal to consist of: - Deputy Chief Justice
and such number of Justices of appeal not being less than 7 as
Parliament may by law prescribe. However the Judicature
(amendment) Act, 2011 section 2 amending section 9 of the Act the
court of appeal shall consist of the deputy chief justice and fourteen
justices of appeal.

Article 134(2) gives the Court of Appeal jurisdiction to hear appeals

from decisions of the High Court. The provisions of Article 134 were
incorporated in the Judicature Act as well. For purposes of hearing and
determining of appeals, the Court of Appeal is given all the powers,
authority and jurisdiction vested under any written law in the court of
original jurisdiction from which the appeal originally originated.

Activity:
 State two reasons to justify the existence of the court of
Appeal.
 State three reasons for requiring more judges to
determine cases in the court of Appeal unlike in the High
Court and Magistrates Court.
 In your opinion, give five reasons to explain the
importance of the creation of High Court Circuits?

Constitutional court

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The Court of Appeal does not exercise original jurisdiction in any civil
and criminal matters. It only exercises original jurisdiction when sitting
as a Constitutional Court under powers conferred on it by article 137(1)
of the constitution which provides that:- "Any question as to the
interpretation of the constitution shall be determined by the Court of
Appeal sitting as the Constitutional Court" In AG vs Major General
David Tinyenfuza (Constitutional Appeal No. 1 of 1997). It was
stated that ... the Constitution gives the constitutional court jurisdiction
to interpret the constitution in the sense of giving meaning to words
and expressions as used in it.

In executing the above powers, the Constitutional Court can declare

unjust or discriminative laws to be unconstitutional or may read them
and bring them in conformity with the Constitution. The Constitutional
Court can also declare laws to be un-constitutional as was the case
Uganda Association of Women Lawyers and others vs A.G
(Constitution Petition No. 2 of 2003) where the court held that
certain provisions of the Divorce Act were inconsistent to the
Constitution. These included articles only entitling alimony to be paid
to wives on divorce.
Article 50 of the Constitution provides for the enforcement of rights
and freedoms by courts. Under the Article, any person, who claims that
a fundamental or other right or freedom guaranteed under the
Constitution has been infringed or threatened, is entitled to apply to a
competent court for redress which may include compensation.

In Text Question:
Can a person go to the Constitutional Court to
challenge a bill before it becomes an Act of Parliament?

Operation of the Court of Appeal

The court cause lists civil and constitutional cases in one month and
criminal matters in the following month. The alternative cause listing
goes on throughout the year.

The Supreme Court (S.C)

The S.C is established by Article 130 of the Constitution and is the
court of last instance of the whole judicial realm and certainly the most
powerful court in the land. The S.C only decides cases on appeal from
lower courts save for Presidential Election Petitions, where the S.C has

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original jurisdiction which means that an aggrieved candidate in a
presidential election has to petition the S.C directly and no other court.
The decisions of the S.C form precedents which all lower courts are
required to follow.

The Chief Justice is the Head of the Supreme Court and presides at its
full sitting and in his absence the most senior member of the court
present. When hearing appeals from the Court of Appeal sitting as the
constitutional court, the S.C is required by law to be constituted by a
full bench of members of the court. Where any of the Justices is unable
to attend then the President shall for that purpose appoint an acting
Justice.

The decision of the court is usually given in a single judgment. In case

of a unanimous decision but where the presiding justice states that
there was a dissenting view, a separate judgment is given as well for
the Justice who is dissenting. The S.C has powers to confirm or vary the
decision of the Court of Appeal with such directions as may be
appropriate. It may alternatively order a retrial. There is no appeal
from the decision of the S.C. and according to the Judicature
(Amendment) Act 2011 the Supreme Court shall consist of the chief
justice and ten justices of the Supreme Court.

Military Courts
A parallel judicial system exists for the Military with the Court Martial
Court established under the UPDF Act 2005. The panel judges in the
Court Martial consist of serving army officers headed by the Chairman
but who are not necessarily trained in law. The panel of judges largely
depends on the counsel guidance of the Judge Advocate who directs
court on matters of law but leaves the panel to decide as it deems
right.

Activity:
 Give five reasons that explain the supremacy of the
Supreme Court
 Do you think a court can render justice when its
judges are not trained in law? If so, give five
reasons in support of your answer.

Summary:
In this session you have learnt about the operations of

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Courts namely, Supreme Court, Court of Appeal, High
Court, Magistrates Courts and a few others like
Commercial Courts, Human Rights Commission. The
differences amongst all of them have also been shown.

Further Reading:
The constitution of
Uganda
The Judicature Act
The UPDF Act

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