MAKERERE UNIVERSITY BUSINESS SCHOOL

Business Law Department

INTRODUCTION TO LAW GUIDANCE NOTES

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.”

Why should we study law?

It is very important for people living in a community where there is rule of law to have
knowledge, understanding and appreciation of the law that governs them. We study the
law to attain knowledge and to appreciate the law, this knowledge enables us to; know
our rights and obligations/duties under the law and also to know where to go for redress
when our rights are violated.

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Rules of law and morals
Rules of law are distinct from morals. Morals can be denied as standards of behaviour or
beliefs concerning what is and is not acceptable to do in a particular society. As such, we
have legal wrongs and moral wrongs. Moral wrongs are those wrongs which are
committed but the wrong doers are not punished in courts of law. It is the society that
perceives such acts to be morally wrong for example in most Uganda communities it
perceived immoral to walk while eating.

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.

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NB. Cases involving abuse of office and corruption by public officers are prosecuted by the
IGG.

ii) Civil law

Civil law provides for the rights and duties of persons (humans beings or artificial
persons/legal entities/government) towards each other. For example the law of contract
provides for the obligations, rights of the parties to a contract and the consequences in case
of breach. The law of torts which is also part of civil law concerns civil wrongs for which
a remedy lies in damages e.g. motor accidents, accidents at work places among others. The
law of property which involves land rights, ownership, and transfer, the law of succession
which involves property inheritance on death etc. The sanctions in civil law are in form of
remedies like damages, specific performance, injunction, rescission, rectification etc.

Distinction between Civil and Criminal law

In civil law, legal action is commenced by a private person, or entity called the Plaintiff
against another who has violated the right called the Defendant/ Respondent. Suits by or
against government are brought by or against the Attorney General.

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.

Concurrency of criminal and civil wrongs

Sometimes a case may fall under both criminal and civil law e.g. civil suit in negligence
versus a criminal case for negligent or reckless driving, Malicious damages to property,
Trespass. There is no bar against bringing a case in criminal and civil law.

iii) Public law

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Public law refers to rules regulating the relationship between the government/ state and
the individual or between or among states. It includes international law, administrative
law, constitutional law and criminal law.

(a) Constitutional law

This is a body of rules regulating the structure of the principal organs of government, their relation
to each other and also forms the basis for the validity of other laws

(b) Administrative law

Administrative law regulates the rights and duties emanating from the exercise of powers and
functions conferred on government organs or officers (statutory powers granted under written
law). For example local authorities and institutions.

iv) Private law

Private law governs the relationship between individuals. Private law is that part of the
law which is primarily concerned with rights and duties of persons towards persons. Private
law is also called civil law.

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.

vi) Procedural law

Procedural law entails rules governing the manner in which a right is enforced under the
law or a crime is prosecuted under criminal law for example the Civil Procedure Rules, the
Evidence Act, the Criminal Procedure Code Act and statutory instruments passed to
operationalise provisions of substantive law etc.

vii) Municipal law

Municipal law is also known as the national law. It is law which has its application to one state or
to a specific or a particular city or county. For example the constitution of Uganda, The Public
Order Management Act, the Anti-Pornography Act are all part of Uganda’s municipal law.

viii) International law

This is the law that governs the relations between states. International law is a body of rules
established by custom or treaty recognized by nations as binding in their relations with one another.
International law applies to more than one state and it is derived or sourced from international
treaties and conventions e.g. the Convention against Torture, the Kyoto Protocol, the East African
Community Treaty etc. International law applies to Uganda if a particular instrument has been
ratified or domesticated in its laws.

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What is a case?
A case may be a Civil Case, Criminal case or a Constitutional case.
A case is a situation whereby different persons who have a dispute between them or a
complaint appear before a court of law and seek redress, a remedy, settlement or for court
to determine what party has a legal right to whatever is in dispute between them. Case
law is law that comes from decisions made by judges in previous cases.

Steps to be followed in enforcing legal action

Civil matters:
i) Notice of intention to sue should be communicated to the other party,
ii) A plaint should be filed by the Plaintiff or his or lawyer and summons be
extracted (obtained) from court.
iii) A mediation case summary is also required to be filed at the same time
iv) The summons, plaint and the mediation case summary should be served on the
Defendant within the time stipulated under the law.
v) The Defendant then files his or her defence and the mediation case summary
and serves them on the Plaintiff.
vi) The Plaintiff has a right to file a reply if they so wish.
vii) The case is then fixed for hearing.

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

THE STRUCTURE OF THE COURTS & ADMINISTRATION OF JUSTICE IN THE

UGANDAN LEGAL SYSTEM

Important Terminologies.

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Jurisdiction. This refers to scope of powers vested in a particular Court relating to what
kind of cases it can handle and is determined on the basis of the value of the subject matter,
location and nature of a particular offence.

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.

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Facts are the circumstances that give rise to a claim; only material facts are relevant. Facts
must be distinguished from evidence; facts are allegations and evidence is proof that may
be from oral testimonies or documents.

Issues: These are points of contention e.g.

 Whether there was a contract between the plaintiff and the defendant
 If so, whether the defendant breached the contract.
 Whether the plaintiff is entitled to the remedies prayed for

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 HIERARCHY OF THE COURT SYSTEM IN UGANDA

Courts are the organs which are charged with the administration of justice. They fall under
the Judiciary, one of the three arms of the state. Courts are presided over by justices, judges
and magistrates, Local Council Courts are presided over by the Executive Committee
Chairpersons under the Local Council Courts Act 2006.

The civil/ criminal justice system is structured in form of a hierarchy of courts with specific
jurisdiction/power/limits to handle specified cases.

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Under Article 129 of the Constitution, it is provided that judicial power shall be exercised
by the courts of judicature which shall consist of the Supreme Court, the Court of Appeal
[COA], the High Court and such subordinate courts as Parliament may by law establish.

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 Supreme Court

The Supreme Court is the highest appellate court under Article 132 (1) of the Constitution.
It has original jurisdiction in matters of presidential election petitions. An appeal can lie to
the Supreme Court from the decisions of the Court of Appeal as may be prescribed by law.
The Supreme Court consists of the Chief Justice and other Justices of the Supreme Court.
The Chief Justice is the head of the judiciary and is responsible for the administration and
supervision of all courts in Uganda (Art 133(1) (a). It has original jurisdiction only in
Presidential election petitions. For example Amama Mbabazi vs. Yoweri Museveni & Ors.

The Court of Appeal (COA)

The Court of Appeal consists of the Deputy Chief Justice and other Justices of Appeal
(Article 134). An appeal can lie to the Court of Appeal from the decisions of the High Court
as may be prescribed by law. It can also sit as a Constitutional Court to determine questions
regarding the interpretation of the constitution (Article 137 (1). The court is headed by the
Deputy Chief Justice whose role is to assist the Chief Justice in its administration (Article
136 (1(b) of the Constitution.

The High Court

The High Court is established under Article 138 of the Constitution. Subject to the
provisions of the Constitution, the High Court has unlimited original jurisdiction in all
matters and such appellate jurisdiction and other jurisdiction as may be conferred on it by
the Constitution (Article 139(1)). The decisions of courts lower than the High Court are
appealable to the High Court as provided by the law. The High Court is headed by the
Principal Judge (Article 141 (1(a). The Principal Judge assists the Deputy Chief Justice in the
administration of the High Court and subordinate courts.

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

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of civil and criminal cases. Currently sessions are held in Nakawa, Masaka, Mbarara, Gulu,
Jinja, Mbale, Fort Portal, Masindi etc.

The Magistrate’s Courts

These are established under the Magistrates Court Act. The High Court is empowered by
the Judicature Act to supervise them. They consist of grades ranging from Chief Magistrate,
Grade I, II while grade III was phased out. A Chief Magistrate is empowered to supervise
all Magistrates’ Courts within the area of his jurisdiction.

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

The Family and Children Court

Section 13 of the Children Act provides that there shall be a Family and Children Court in
every district which shall be presided over by a magistrate Grade I and II. The jurisdiction
of the court extends to power to hear and determine applications relating to child care
and protection (e.g. custody, maintenance and parentage) as well as criminal charges
against a child except any offence punishable by death or any offence for which a child is
jointly charged with a person over eighteen years of age;

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.

Local Council Courts

These are established under Section 3 of the Local Council Courts Act 2006 for the
administration of justice at every village, parish, town, division and sub-county. They are
supervised by the High Court although the Chief Magistrate may exercise this function on
its behalf. The territorial jurisdiction of LC Courts extends only to matters arising in the
territory of the council where the court is established or to matters arising elsewhere if the
defendant or accused ordinarily resides in that territorial area except where the law
provides otherwise.

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

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Magistrates Court to High Court with leave (permission) of the Chief Magistrates Court or
the High Court.

The Military courts

These are established under the UPDF Act to try all those persons subject to military law
e.g. every officer and militant of the reserve forces when he is in uniform, on duty, on
active service, present at any training of a unit of the Defence forces etc.
They include the Division Court Martial, the Unit Disciplinary Committee, the General
Court Martial, the Court Martial Appeal Court and the Field Court Martial.

THE NATURE OF THE UGANDAN LEGAL SYSTEM

 The Judicature Act provides for the sources of law applicable in Uganda an these
include;
• The 1995 Constitution of the Republic of Uganda
• Acts of Parliament/Legislation
• Principles of Common Law and Equity.
• Case Law
• Customary Law

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

Legislation refers to law enacted/made by parliament and other bodies or authorities

vested with such powers by law. The key forms of legislation are Acts of Parliament and
delegated legislation.

Acts of Parliament (formerly called statutes)

These are the supreme source of legislation, over and above the common law and equity.
Acts are written law enacted by Parliament as primary legislation. An Act arises from a Bill.

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.

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Delegated or subordinate or secondary or indirect legislation.
Parliament normally passes an Act setting out the general laws without details hence
leaving it to bodies, authorities or persons to make rules to give effect to the law.

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

Types of Delegated Legislation

Statutory Instruments. Normally called rules, regulations or orders, Statutory Instruments
are laws made by authorized persons mainly Ministers in charge of government
departments upon whom such power has been vested by the Parent Act. In other words,
there must be a provision in the Parent Act authorizing such legislation.
Statutory Instruments normally relate to commencement dates of Parent Acts, rules of
procedure, fees etc.

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

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entities derive their authority from an enabling provision in the Parent Act. Under the
Cooperative Societies’ Act, cooperative societies are empowered to make bye laws as a
condition for registration.

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.

Advantages of delegated legislation

 Parliament is busy analyzing policy issues and therefore it requires time off for this
purpose

 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

 Delegated legislation ensures flexibility as it is simpler and in case of impracticability or

unfairness, it can easily be revoked or amended.

Disadvantages of delegated legislation

 Delegated authorities are at times given powers to legislate on matters of principle
which should only be dealt with 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.

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 Delegated powers may be so wide and this may create uncertainty about the prevailing
laws as well as leading to a multiplicity of laws that may be contradictory.

 There is a risk of an authority to which power is delegated to exercise those powers

beyond the permitted limits in which case any law thereby passed will be void (ultra
vires)

 The publicity of delegated legislation is inadequate so people may not be aware of the
rules and orders passed by ministries.

Controlling Delegated Legislation

There are mechanisms put in place to control delegated legislation.

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.

b) The consultative Process.

Before a proposed statutory instrument is concluded, the interested parties are normally
consulted for views and comments.

c) Judicial Scrutiny. Courts are normally invited to scrutinize the validity of statutory
instruments on grounds relating to:

 The content falling outside the scope of the Parent Act

 Failure to comply with the requisite procedure

 Incompatibility with convention rights. For example in Raymond V Honey

(1983), whilst the Home secretary had powers to make rules for the
management of prisons, he was not permitted to deny prisoners the right to
access to the Courts.

 Also see the mechanisms under ordinances and bye/laws above.

The ultravires doctrine. One effective way of controlling delegated legislation is by

application of the ultravires doctrine. A piece of delegated legislation is ultravires if it
exceeds the powers contained in the enabling Act or if it offends certain presumptions of
the law. These presumptions include the following:

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 (i) The person who has been given powers of delegation cannot delegate
them to another person. (A delegate cannot sub-delegate ie delegatus
non protest delegate)
(ii) The enabling Act does not give power to make unreasonable rules or
those which infringe basic constitutional rights.

Common Law and Equity

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

What were the defects in the common law?

a) The procedural technicalities.

Common law required claimants to commence their actions by way of a writ/claim form setting
out the terms of the claim and failure to comply [however minor the non-compliance] therewith
rendered the action bad in law and therefore unsustainable. Form was much emphasized than
substance. The writ provided for specific claims that could be commenced by such method and any
claim not provided for therein was untenable in law.

b) Limited number of remedies

A limited number of remedies were available at common law; basically damages/ monetary
compensation for loss or damage. If a claim required some form of remedy other than damages, it
would fail.

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Equity therefore has its genesis embedded in the rigid nature of the common-law. The rules
of equity were first developed by the King through petitions that were brought to him and
later the Lord Chancellor. The King was guided by the desire to be fair and to do justice
so where no remedy existed at common law, new remedies were created. Subsequently,
a court of Chancery was established to administer equity and its rulings are the foundation
of the multiplicity of equitable rules/doctrines applied today. Examples include; equity
helps the vigilant and not the indolent, he who seeks equity must do equity; equity looks
at substance rather than form, delay defeats equity, equity does not act in vain.

The common law and equity are today concurrently administered in all courts but are all
subject to and cannot prevail over written law.

Case law or judicial precedent.

Being a common law country, Uganda applies precedent as a source of law. Precedent
means earlier decisions of the courts of record that are relied upon by courts in deciding
cases of similar facts and issues. In Uganda, courts of record are the Supreme Court, Court
of Appeal and High Court. Case law is therefore referred to as judge-made law. Precedent
is based on the legal principle of stare decisis which requires subordinate courts to stand by
earlier decisions with similar facts. The principle behind the doctrine of precedent is that in
each case the judge applies existing principles of law by following the example or precedent
or earlier decisions.

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.

Advantages of case law:

 Precedent creates certainty in the law once judges make a decision on a particular
matter. The law thus becomes predictable as a party can predict the likely outcome
of a case basing on its facts and an earlier decision on a similar case.

 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.

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  Precedent supplements parliament in its law making function. Since Parliament
cannot make provision for everything, judge-made law can fill in the gaps

 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.

For a custom to qualify to be applied as customary law:

a) It must be in existence with uninterrupted and harmonious application which should

have dated from time immemorial. This is the antiquity test which has been fixed
way back to 1198 BC. A custom is immemorial when its origin was so ancient that
the beginning of it is beyond human memory so that no testimony is available as
to a time when it did not exist. Such a custom will be taken to have force law and
thus customary 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

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 c) It must be consistent with written laws. Where a custom contradicts with or is not
in line with other written laws it cannot qualify as customary law. In R vs. Amkeyo
(1917) the accused was an African native who was convicted of being in possession
of stolen property. The Chief witness called was a woman who he had married
under native custom. Upon objection by the accused to his wife giving evidence,
the issue was whether the accused and the witness were married within the meaning
of section 12 (now section 120) of the Evidence Act. Hamilton C.J stated that the
word marriage could not be used to describe the relationship entered inti by the
African woman and the accused. The customs of the accused approved the marriage
as a valid marriage but they were not in line with the written English laws of
marriage which were applicable to Uganda at the time.

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

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