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Introduction To Law
Introduction To Law
Definition of Law
Law is defined as a body of rules and regulations governing or regulating society, the
enforcement of which is effected by way of sanctions. In order for everyone in the society
to live in harmony there is need for the law to exist. For anything to pass as law three
common aspects must be present and these are;
a) There must be an order/command
b) The order/command must be enforceable.
c) The orders/commands must create sanctions to wrong doers.
The above three aspects are what distinguishes law from habits, norms and morals. In the
past when there was no written law, various societies had rules and regulations which
governed their people. These were in form of do and don’ts which the people in such
communities had to live and abide by. This is what was and is referred to as “customary
law.”
Classification of law
Laws are classified into a variety of forms;
i) Criminal law vs. Civil law
ii) Public law vs. Private law
iii) Substantive law vs. Procedural law
iv) Municipal law vs. International law
i) Criminal law
Criminal law emanates from the term ‘crime’ that signifies an act of disobedience to the
law and such disobedience is normally punishable by sanctions ranging from death,
imprisonment, fine or even a caution etc. Criminal law is made to protect the public against
wrongs done by bad elements/ certain individuals in the society. Criminal law characterizes
certain conduct, acts or omissions (wrongdoing) as offences against the state. Under
Criminal law, a person is innocent until proved guilty or until he/she pleads guilty (Article
28 (3) (a) of the Constitution of the Republic of Uganda 1995). The burden of proof lies
on the prosecution (Woolmington vs. D.P.P. (1935) A.C 462 at P.481).
Criminal law is normally enforced by police and the Directorate of Public Prosecutions
(DPP) However; in some cases a private person can also commence criminal proceedings.
This is called private prosecution. Where private prosecution has been commenced, the
DPP has powers under the Constitution to take over the conduct of the proceedings. For
example in 2016, a total of 20 lawyers led by Mr. Abdullah Kiwanuka from Lukwago &
Co Advocates working under the Network for Public Interest Lawyers (NETPIL) by way of
private prosecution filed a criminal case against Gen. Kale Kayihura, the Inspector General
of Police. Gen Kayihura and seven of his senior officers and commanders were being
prosecuted in their individual capacity for alleged torture against the victims of the July
12th and 13th 2016 police beatings of civilians at Kalerwe Market and Busabala Road on
Entebbe Road.
Criminal law is enforced on behalf of the state and in the name of the state e.g. R v James,
The Queen v John. In Uganda, the Constitution under article 250 (4) provides that the
Prosecutor should be designated as Uganda e.g. Uganda vs. Matthew Kayamunyu & Ors,
Uganda vs. Shanita Namuyimbwa. The person against whom criminal proceedings are
brought is called the accused.
In criminal law, the standard of proof is one beyond reasonable doubt while in civil matters
it is based on probabilities.
NB. In both criminal and civil law, a party who appeals is called the appellant and the
party against whom the appeal is made is called the respondent.
v) Substantive law
This is a branch of law that spells out the legal rights, duties, obligations and liabilities of
parties among themselves and government. Examples include contract law, the Companies
Act etc.
Criminal matters:
i) The matter is reported to police
ii) Investigations are carried out by the police, a file is prepared and sent to a state
attorney to advise whether the evidence is sufficient or not
iii) Where the evidence is found to be sufficient to support the charge against the
accused it is sanctioned by the resident state attorney.
iv) The accused is then formally charged by reading out the offence to him to which
he pleads either guilty, not guilty or he may keep quiet implying not guilty.
v) Where the accused pleads not guilty, he is reminded of his right to apply for bail,
he is remanded (if he does not apply for bail or if the application fails), brought
from time to time for hearing, till judgment and sentencing.
vi) If found not guilty, he is acquitted. If found guilty, he is convicted (he becomes a
convict) and sentenced
Important Terminologies.
Pecuniary jurisdiction means the monetary value of the subject matter which a Court is
allowed to handle for example under the Magistrates’ Court Amendment Act, a Chief
Magistrates Court can hear cases the value of whose subject matter is of up to a maximum
of 50,000,000/= while a Magistrate grade one can handle case of up to 20,000,000/=
Geographical or territorial jurisdiction means the Court exercises power over cases that
arise within the local area where the Court is situate.
In criminal law, jurisdiction extends to the power of court to handle a particular criminal
offence. For example under S.161 of the Magistrates’ Court Act, a Magistrate’s Court
presided over by a Chief Magistrate may try any offence other than an offence carrying a
death penalty e.g. rape, murder…A Magistrate Grade I may try any offence other than an
offence carrying a death penalty or life imprisonment.
Courts of first instance are courts where an action is originally commenced and heard. In
that case, the court will be said to be exercising its original jurisdiction.
Appellate Court: This is the higher court in hierarchy to which an aggrieved party may seek
remedy by way of challenging the decision made against him by a lower Court.
Appellate Jurisdiction: refers to the power of a higher court in hierarchy to either affirm
or reverse a decision of a court below in a case brought to it by a party (parties) dissatisfied
with the decision of that latter court. The appellate court after considering an appeal may
reverse the decision of the lower court on a successful appeal in which case it is said to
allow the appeal or it may affirm/ uphold the decision of the lower court in the event of
an unsuccessful appeal in which case it is said to dismiss the appeal. In doing so, it is
exercising its powers/jurisdiction as an appellate court.
Distinguishing cases – when court’s attention is drawn to a previous case with almost similar
facts, it seeks out material differences in the facts, reasoning or approach and will not
follow that case.
Over ruling a case occurs when a higher court decides a similar case on the basis of a
different legal principle. The previous rule of a lower court is said to be overruled/ceases
to have legal effect.
Law Applicable refers to the relevant Act of Parliament, delegated legislation, case,
common law, equity, custom or authoritative text books to be relied upon in resolving the
dispute.
Decision of Court. This refers to the conclusion that Court draws from the summing up of
the facts, evidence and the law e.g. a judge may say: “on the basis of the law and evidence
as analyzed above, I find that the Plaintiff has proved negligence and the Defendant is thus
liable [in civil cases] or that the accused is guilty [in criminal matters]
Ratio Decidendi. This refers to the reasoning of the court, the justification for reaching a
particular conclusion. It is also referred to as the statement or principal of law e.g. In
Donoghue V Stevenson Lord Artkin stated the famous ‘my neighbour principle’ thus;
“Every person who stands in a direct relationship with another in such a way that his
actions or omissions are foreseably likely to cause injury to that other [a neighbour] owes
a duty of care to that person and will be held liable if such acts or omission are the
proximate cause of the other’s injury”.
Suit means a claim that has been duly filed in court. The process of filing is commonly
referred to as suing or commencing proceedings. Different claims may be instituted through
various procedures.
The civil/ criminal justice system is structured in form of a hierarchy of courts with specific
jurisdiction/power/limits to handle specified cases.
Article 128 provides that in the exercise of judicial power, the courts shall be independent
and shall not be subject to control or direction of any person or authority (judicial
independence)
The High Court has divisions ranging from the commercial, criminal, family, land, civil,
anti-corruption, war crimes, execution divisions each with a registry and a registrar. The
High Court holds sessions in various parts of Uganda called High Court Circuits for the trial
The powers and jurisdiction of a particular magistrate are determined by the grade of his
or her appointment and the powers and jurisdiction conferred upon that grade by the
Magistrates Courts Act. (S.4 (3). An appeal lies to the High Court from the Chief Magistrate
or Magistrate Grade I
NB. The Children Act provides that unless otherwise provided, matters of a civil nature
concerning children are dealt with by the village Local Council Courts where the child
resides or where the root of the complaint arises.
The language of the court is the language widely spoken in the area of jurisdiction of the
court. LCCs can give remedies including compensation, restitution, attachment and sale.
Appeals lie from village LCC to Parish LCC; from Parish LCC to town, division or Sub
County; from town, division or Sub County to the Chief Magistrates Court; from Chief
The 1995 Constitution is the supreme law of Uganda from which all other laws derive their
validity. Accordingly any law or custom which is inconsistent with it is void to the extent
of the inconsistency. The constitution regulates the relations between the state and its
citizens as well as between state organs. It defines the duties of the citizens to the state and
the duties of the state to the citizens.
Sources of Law include the Constitution, primary and delegated legislation, Common law
and Equity, case law and customary law
A Bill is a draft of a proposed Act of Parliament which has been formally tabled before
Parliament for consideration. The Bill becomes an Act (law) when Parliament has approved
it and the President had assented to it.
However, ordinarily the power to make secondary legislation is usually vested in the
specific authority by the Parent Act meaning that such legislation should conform to the
Parent Act or other related Acts lest it will be rendered null and void to the extent of its
inconsistency.
Delegated legislation is law made by subordinates deriving their powers from an Act of
parliament. A parent Act or enabling statute is the Act of Parliament from which a
subordinate derives legislative powers
Ordinances
These are laws passed by the District Council. Section 38 (I) of the Local Government Act
provides that a District Council shall have power to pass local bills into ordinances signed
by the Chairperson. However the bill is required to be first forwarded to the Attorney
General through the Minister to ensure that it is not inconsistent with the Constitution and
any other Act of Parliament before the Chairperson signs it. Once the chairperson signs, it
becomes an ordinance and is published in the gazette and in the local media. An ordinance
may be made to apply to the whole district, any part of the district, a particular section or
profession of the people.
An ordinance is made for matters which are not adequately provided for by the
constitution or Act of Parliament. Examples include The Wakiso Revenue Ordinance,
Kiruhura Diary and Cooling Ordinance, Pader District Education Ordinance etc.
Bye- Laws
These are made by local authorities or other authorized bodies and are only binding on
persons or entities coming within their scope [limited geographical scope].The law making
Under the Local Governments Act, an urban, sub county, division or village council is
empowered to make a bye law which must not be inconsistent with the constitution, or
any Act of Parliament, or ordinance passed by a District Council, or a bye law passed by a
higher council. The bye law has to be sent first to the relevant authority to certify that it
is not so inconsistent with the constitution.
Some matters are so urgent that they require immediate attention to be addressed. This
situation may require that a law be passed immediately for which Parliament may not
have time
Matters to be legislated on may be so technical that they may require technical persons
to handle. Not all parliamentarians are technical enough to handle all matters and so
expert knowledge can be got by delegating the power to legislate e.g. nurses and
midwives regulations.
Future difficulties are better handled with delegated legislation especially where service
charges are involved e.g. payment of fees like stamp duty.
Delegated legislation addresses the detailed aspects of the law which may have been
overlooked by parliament
Parliament, the supreme law making organ of the state, may lack control over
delegated legislation and this may lead to passing of dangerous laws.
The publicity of delegated legislation is inadequate so people may not be aware of the
rules and orders passed by ministries.
a) Parliamentary Veto.
Parliament reserves the power to withdraw authority to the delegated person or institution
if such authority is misused. Parliament normally subjects any subsidiary legislation to
scrutiny before it comes into force.
c) Judicial Scrutiny. Courts are normally invited to scrutinize the validity of statutory
instruments on grounds relating to:
Common law
This refers to a body of rules that have over time been developed by English judges from
English customs which became the basis of fundamental legal principles.
From earliest times, certain oral customs in England came to be recognized as having
general application. Over the years, principles of law were slowly evolved from these
customs and because they were of general application, they yielded what came to be
known as the common law of England thus common law consists of the ancient customs
and usage of England which have been recognized and given the force of law. Common
law is unwritten law. It can be ascertained from judgments and books of authority etc.
however, some common law rules have been codified by statute and now form part of
the written law of the land…see the Partnership Act
Equity
This refers to a body of discretionary rules and remedies devised by Chancery Courts on
the basis of fairness, rules of natural justice and good conscience to remedy the lacuna/gap/
defects created by the common law. They are laid down in form of maxims/doctrines
The common law and equity are today concurrently administered in all courts but are all
subject to and cannot prevail over written law.
Under the system, decisions are recorded in law reports so as to facilitate a degree of
continuity and predictability. Law reports in Uganda include Uganda Law Reports (ULR),
Kampala Law Reports (KALR), High Court Bulletins (HCB), and Uganda Law Society
Reports (ULSR). English reports include the Weekly Law Reports (WLR), Kings Bench
Division (KBD), Queens Bench Division (QBD), Chancery Reports (ChD), Probate Division
etc. Cases are also now available online for example in Uganda they are available on the
Uganda Legal Information Institute Website (www.ulii.org) and on the Uganda Online
Law Library Website.
Precedents allow the growth and development of the law so that it does not remain
static. This arises from the aspect of overruling and distinguishing precedents.
Case law is based on real/ factual situations. It is therefore more practicable unlike
statutes which are not easily ascertainable. For example whereas unnatural offenses
are criminalized, no lesbian has ever been tried in the courts of law.
Disadvantages
Case law is rigid. Once a rule has been laid down by a court of record, it is binding
on the lower courts even if it is thought to be wrong
Case law is bulky and complex. It is found scattered in so many law reports that
one has to widely research if he seeks to rely on a particular precedent till he comes
up with the current legal position on the matter.
Customary law
Customary law is the law which governs the behaviour and conduct of people of a given
community. It develops through customs and use of such customs for a long period of time
customary law is an unwritten source of law in Uganda. The Section 15 (1) of the Judicature
Act permits the High Court to apply customary law as long as it is not inconsistent with
natural justice, equity and good conscience. Customary law is limited to civil matters and
does not apply to criminal matters since the constitution provides that except for contempt
of court, no person shall be convicted of a criminal offence unless the offence is defined
and the penalty for it is prescribed by law. Customary law should also be compatible with
written law.
b) The courts will take judicial notice of the custom because of its notoriety. This means
the existence of a custom will be taken for granted without any need for further
proof if it has earlier on been frequently proved
d) It only applies in civil matters. There is nothing like customary criminal law
e) It only applies where it has not been excluded by parties whether by express
contract or by the nature of the transaction in question
f) It must not be repugnant to natural justice, equity and good conscience e.g. in Gwao
bin Kilimo v Kisunda bin Ifuti, a custom that allowed a man’s property to be
attached in satisfaction of his son’s debts was held to be inapplicable