Ainembabazi Anita Asasira, 2025 1

FROM INK TO LIFE: A MEDITATIVE INTRODUCTION TO UGANDA'S

DYNAMIC LEGAL LANDSCAPE
About the Author.
Ainembabazi Anita Asasira is a passionate first-year Bachelor of Laws (LLB)
student at Uganda Christian University-Mukono-Uganda . Driven by a keen
interest in understanding the legal landscape of Uganda, she embarks on this
research as part of her foundational studies. She is committed to developing a
strong grasp of legal principles and contributing to the discourse on justice and
governance.
Acknowledgement.
I extend my sincere gratitude to Ms. Martha Uwizeye and Reverend Ronald
Musoke my Introduction to Law lecturers. Their insightful guidance, clarity in
explaining complex legal concepts, and unwavering support have been
instrumental in shaping my understanding of the foundational principles of
law. Their lectures have not only enlightened me but also inspired a deeper
appreciation for the legal profession. I am truly thankful for their invaluable
contribution to my academic journey.

A Note to the Reader.

As a first-year Bachelor of Laws (LLB) student, this research document
represents my earnest endeavour into the field of legal scholarship. While every
effort has been made to ensure accuracy and thoroughness, I humbly
acknowledge that it may contain inadvertent errors or omissions. This work is
part of my ongoing learning process, and I am continuously striving to improve
my research and analytical skills. Your understanding and constructive
feedback are greatly appreciated as I continue my legal education.

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INTRODUCTION TO LAW.
According to the black's Law Dictionary, law is ;
"A body of rules of action or conduct prescribed by controlling authority, and
having binding legal force."
It often expands on this by adding: "That which must be obeyed and followed by
citizens subject to sanctions or legal consequence is a law."
Here's a breakdown of the concepts you've outlined, structured for clarity and
incorporating the requested elements:
The Idea (Concept) of Law
Natural Law:
Posits that there are inherent, universal moral principles that form the basis of
all legitimate legal systems. These principles are discoverable through reason
and are independent of human enactment. Think of concepts like the right to life
or justice as being fundamental and not merely creations of government.
Man-made (Positive) Law:
In contrast, positive law emphasizes that law is what is formally enacted by a
sovereign authority (e.g., legislatures, courts). Its legitimacy comes from the
process of its creation and enforcement, rather than from an alignment with
external moral principles.
African Indigenous Concept of Law and Justice
Communalism:
Emphasis on the well-being of the community over individual rights. Disputes
were often seen as harming the social fabric, and resolutions aimed at restoring
harmony.
Restorative Justice:
Focus on repairing harm, reconciliation, and reintegration of offenders rather
than solely on punishment. Compensation, apologies, and community service
were common remedies.
Oral Tradition:
Laws were often passed down through generations orally, relying on proverbs,
customs, and the wisdom of elders.
Consensus-Based Decision Making:
Many societies utilized participatory processes where elders and community
members discussed and reached agreements on legal matters.

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Role of Elders and Chiefs: Traditional leaders played crucial roles as

arbitrators, judges, and enforcers of customary law.
Supernatural Beliefs: In many societies, spiritual beliefs and ancestral
veneration influenced legal norms and dispute resolution. Oaths and divinations
were sometimes used to ascertain truth.
Their Application to Modern Society (Uganda)
Formal/State Law: Based largely on inherited English common law and
statutory law, applied through courts, police, and prisons.
Customary Law: Recognized to varying degrees, particularly in matters of
personal law (marriage, inheritance, land disputes) within specific communities.
Community Participation: Modern alternative dispute resolution (ADR)
mechanisms, like mediation and conciliation, share similarities with traditional
consensus-building approaches.
Sociological Background, Social-Political Structure of Uganda, and Cultural
Patterns
Uganda is a diverse nation with over 50 ethnic groups, each with its unique
customs and traditions. This diversity significantly impacts the application and
perception of law. Urbanization, migration, and economic changes also influence
social norms and legal needs.
Social-Political Structure: Uganda operates under a presidential republic
system. The legal framework includes the Constitution, Acts of Parliament,
common law, and customary law. The judiciary is independent, though its
autonomy can be a subject of debate. Traditional leaders still hold significant
social influence, particularly at the local level, even if their formal legal powers
are limited by the state.
Cultural Patterns: Deep-seated cultural values, such as respect for elders,
communal solidarity, and family honour, continue to shape how individuals
interact with the law and justice system. These patterns can sometimes be at
odds with individualistic Western legal principles, leading to complexities in legal
application and enforcement.
The Law in Theory and the Law in Action
Law in Theory: Refers to the written statutes, judicial precedents, legal
doctrines, and constitutional provisions. It's the ideal or intended application of
the law.
Law in Action: Refers to how the law is actually implemented by police, courts,
lawyers, administrative bodies, and the public. This can be influenced by:
What is Law to the Ordinary Man?
• A set of rules they must follow: To avoid punishment or maintain order.

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• A source of protection: Ensuring their rights and safety are upheld.

• A means of resolving disputes: A system to turn to when conflicts arise.
• Sometimes a burden or an obstacle: When it seems complex, unfair, or
inaccessible.
• Influenced by their personal experience: Whether they have had positive
or negative interactions with the legal system.
• Often associated with "justice": Though the two are not always
synonymous, there's an expectation that law should deliver fair outcomes.
Divisions of Law
1. Natural Law v Man-made (Positive) Law: (As discussed above) This
division focuses on the source and legitimacy of law.
2. Civil Law v. Criminal Law:
Civil Law: Deals with disputes between individuals or organizations, where
the goal is typically to compensate the injured party or resolve a private
grievance. Examples include contract disputes, property disputes, family law,
and torts (personal injuries). The state is not typically a direct party, but provides
the forum for resolution.
Criminal Law: Deals with offenses against the state or society as a whole.
The state prosecutes individuals for breaking laws that are deemed harmful to
public order or safety. The goal is to punish offenders and deter future crime.
Examples include theft, assault, murder, and fraud.
3. Private Law v. Public Law:
Private Law: Regulates relationships between individuals or private entities.
It primarily concerns private rights and obligations. This largely overlaps with
Civil Law. Examples: contract law, property law, family law, corporate law.
Public Law: Governs the relationship between individuals and the state, and
between different branches of government. It concerns the interests of society as
a whole. Examples Constitutional Law Administrative Law, Criminal Law and
International Public Law.

SCHOOLS OF THOUGHT
The Views of Jurists and Legal Philosophers in General
Jurists and legal philosophers engage in jurisprudence, which is the theoretical
and philosophical study of law. Their views aim to answer fundamental questions
such as:
• What is law?
• Where does law come from?
• What is the relationship between law and morality?
• How does law function in society?
• What is the purpose of law?

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Different schools of thought have emerged over centuries, each emphasizing

particular aspects and leading to diverse understandings of law.
1. The Natural Law School
Natural law posits that there are inherent, universal moral principles and an
immutable law of nature that forms the basis for all legitimate human laws.
Arguments.
• Law is discovered, not created, by human beings.
• It is rooted in reason, human nature, or divine will.
• There is an intrinsic connection between law and morality.
• Certain rights and duties are inherent and universal.
Prominent Thinkers:
St. Thomas Aquinas: Integrated natural law with Christian theology,
positing a hierarchy of eternal, natural, divine, and human law.
John Locke: Linked natural law to individual rights, particularly to life,
liberty, and property.
Modern Relevance: Influences human rights discourse, constitutionalism,
and debates about universal moral standards.
Relevant case
Centre for Health, Human Rights and Development (CEHURD) & Others v.
Attorney General (Constitutional Petition No. 16 of 2011):
The state has a fundamental, almost inherent, obligation to ensure basic
healthcare (maternal health, in this case) for its citizens, touches upon natural
law principles of the right to life and inherent human dignity, which transcend
mere statutory provisions. The petitioners argued that the failure to provide basic
emergency obstetric care violated fundamental rights.
Attorney General v. Susan Kigula & 417 Others (Constitutional Petition No.
6 of 2003, and later Supreme Court Constitutional Appeal No. 3 of 2006),
Natural law posits an inherent, inalienable right to life, and the intrinsic dignity
of every human being, regardless of their actions. The petitioners argued that
the death penalty, in its mandatory form and with prolonged delays, violated
fundamental human rights, particularly the right to life (Article 22(1) of the
Ugandan Constitution) and the right to freedom from cruel, inhuman, and
degrading treatment (Article 24 and 44(a) of the Constitution).
By striking down the mandatory death penalty, the courts effectively said that
even if the state has the power to take a life, it must do so with due process,
fairness, and allow for individual circumstances and mitigation. This reflects a
natural law inclination that justice requires individualized consideration and
that human dignity must be respected even in punishment. To mandate death

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without allowing judicial discretion to consider mitigating factors would be

inherently unjust and dehumanizing.
While the Kigula case did not abolish the death penalty in Uganda, its significant
outcome (making it discretionary and limiting death row delays) was achieved
through judicial reasoning that strongly invoked and interpreted constitutional
rights in a manner consistent with fundamental principles of human dignity,
fairness, and the right to be free from cruel and inhuman treatment – all
hallmarks of Natural Law thinking.
2.The Analytical (Positivist) School
Legal positivism asserts that law is a social construct, distinct from morality. It
focuses on "what the law is" as enacted by a sovereign authority, rather than
"what the law ought to be" based on moral principles.
Arguments.
• Separation of Law and Morality: A law can be valid even if it is morally
unjust.
• Command Theory (Early Positivism): Law is essentially a command from
a sovereign, backed by the threat of sanctions.
• Rules of Recognition (Later Positivism): Law is a system of rules, including
primary rules (rules of conduct) and secondary rules (rules about how to
make, change, and adjudicate primary rules), with a "rule of recognition"
validating the legal system.
• Emphasis on empirical observation and logical analysis of legal systems.
Prominent Thinkers:
Jeremy Bentham: Criticized natural law and advocated for codification of law
based on utilitarian principles.
John Austin: Often considered the "father of English jurisprudence,"
famously defined law as a "command of the sovereign, habitually obeyed, and
enforced by sanction."
H.L.A. Hart: Refined Austin's theory, introducing the concept of primary and
secondary rules and the rule of recognition.
Modern Relevance: Forms the basis of modern legal systems that emphasize
parliamentary supremacy, judicial precedent, and statutory interpretation.
RELEVANT CASE
Utex Industries Ltd. Vs. Attorney General (Civil Application No. 52/95)
(Supreme Court)
As seen in the search results, this case involved the Supreme Court's refusal to
"wipe out the rules of procedure" by overly relying on Article 126(2)(e) of the
Constitution (which cautions against undue regard to technicalities). The court
adhered to established procedural rules, demonstrating a positivist commitment

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to the existing framework of law, rather than bending it for perceived

"substantive justice" in that specific procedural context.
* **Kasirye, Byaruhanga and Co Advocates v Uganda Development Bank SCCA
No. 2 of 1997: This case reinforced the positivist stance of Utex Industries,
further emphasizing adherence to procedural rules as laid down.
* Cases Upholding the Supremacy of the Constitution (as the highest positive
law):
* Many constitutional petitions where the court simply verifies whether an Act
of Parliament or governmental action conforms to the express provisions of the
1995 Constitution. This is a positivist exercise of validating lower norms against
a higher, enacted norm.

3.The Historical School

The Historical School argues that law is not an arbitrary creation of a legislature
but rather an organic product of the historical development, customs, traditions,
and "spirit of the people" (Volksgeist) of a particular nation.
Arguments
• Law evolves gradually from the habits, beliefs, and practices of a
community.
• Legislation should reflect the popular consciousness and not impose
artificial rules.
• Customary law is seen as the primary source of law.
• Rejects universal legal principles in favor of context-specific legal
development.
Prominent Thinkers:
Friedrich Karl von Savigny: The founder of the Historical School, famously
argued against codification in Germany, believing law should emerge organically.
Sir Henry Maine: Studied the evolution of law in archaic societies, observing
a progression from status-based societies to contract-based societies.
Modern Relevance: Highlights the importance of customary law, the historical
context of legal development, and the challenges of imposing foreign legal
systems on different cultures (relevant in post-colonial contexts like Uganda).
4.The Sociological School
The Sociological School views law primarily as a social phenomenon, a tool for
social control, social engineering, and the resolution of conflicting interests
within society. It focuses on the actual effects of law in society rather than just
its formal rules.
Arguments

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• Law is a means to an end, serving social purposes and addressing social

problems.
• Emphasis on empirical research and studying "law in action" rather than
just "law in books."
• Legal institutions should be studied in their social context.
• Advocates for using law to balance competing interests and achieve social
justice.
Prominent Thinkers:
Roscoe Pound: Developed the concept of "social engineering," where law is
used to balance competing individual and societal interests.
Eugen Ehrlich: Argued for the "living law" – the actual practices and customs
that govern social life, which may differ from formal state law.
Modern Relevance: Influences legal reforms, public policy, and the
interdisciplinary study of law and society. This is particularly relevant in
understanding the application of law in a diverse social and cultural context like
Uganda.
5.The Realist Movement
Legal Realism, primarily an American phenomenon, is often seen as an offshoot
or extreme wing of the Sociological School. It emphasizes the practical realities
of judicial decision-making, arguing that law is essentially what judges, lawyers,
and legal officials do rather than what abstract rules say.
Arguments
• Skepticism about legal rules: Rules alone do not determine outcomes.
• Focus on judicial behaviour: Judges are influenced by personal biases,
policy preferences, and social factors, not just legal precedents.
• Prediction of judicial decisions: Law is what judges will decide in a
particular case.
• Emphasis on empirical study of legal processes.
Prominent Thinkers:
Oliver Wendell Holmes Jr.: Famously stated, "The prophecies of what the
courts will do in fact, and nothing more pretentious, are what I mean by the law."
Jerome Frank: Emphasized the psychological factors influencing judges.
Modern Relevance: Contributes to critical legal studies, understanding judicial
discretion, and the importance of factual contexts in legal outcomes.
6.The Pure Theory of Law
Developed by Hans Kelsen, the Pure Theory of Law aims to create a "pure"
science of law, free from any moral, sociological, historical, or political elements.
It focuses on law as a system of norms.

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Arguments
• Normative Hierarchy: Law is a hierarchy of norms, with each lower norm
deriving its validity from a higher norm.
• Grundnorm (Basic Norm): At the top of this hierarchy is a hypothetical
fundamental norm (Grundnorm) that gives validity to the entire legal
system, but it is not a positive (man-made) law itself; it's a
presupposition.
• Validity vs. Efficacy: A law is valid if it is part of the normative system,
regardless of its moral content. Efficacy refers to whether a law is actually
obeyed and enforced.
• Separation of "is" (Sein) from "ought" (Sollen).
Prominent Thinker:
Hans Kelsen: Developed this theory to establish a truly objective and scientific
approach to law, unpolluted by extraneous considerations.
Modern Relevance: Provides a rigorous analytical framework for
understanding legal systems and their internal structure, influencing
constitutional theory and international law.
7.The Marxist or Economic Theory of Law
Rooted in the philosophy of Karl Marx, this theory views law as a superstructure
reflecting the economic base of society. It posits that law is primarily an
instrument of the ruling class to maintain its power and suppress the
subordinate classes.
Arguments
• Base and Superstructure: The economic structure (means of production,
class relations) forms the "base," and legal, political, and cultural
institutions form the "superstructure."
• Class Instrument: Law serves the interests of the dominant economic
class (e.g., the bourgeoisie in capitalist societies) to protect private
property and facilitate exploitation.
• False Consciousness: Law often creates an illusion of fairness and
equality, masking the underlying class inequalities.
• Withering Away of Law: In a future communist society, where class
distinctions disappear, the need for law as an instrument of coercion will
also wither away.
Prominent Thinker:
Karl Marx: While not a legal theorist in the conventional sense, his analysis
of society profoundly influenced this view of law.
Modern Relevance: Provides a critical lens for analyzing power dynamics in
legal systems, drawing attention to issues of economic inequality, social justice,
and the political uses of law. It's particularly relevant when examining legal

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frameworks in countries with significant socio-economic disparities, or historical

contexts of class struggle.
II. Sources and Reception of Law in Uganda
Non-legal factors facilitating the reception
The Berlin Conference of 1884:
European powers carved up the continent into spheres of influence, leading to
the establishment of protectorates and colonies. For Uganda, it effectively
legitimized British claims and paved the way for British administration, which
inherently brought British legal concepts and structures. The conference's
principles of "effective occupation" necessitated the establishment of
administrative and, by extension, legal systems.
The Commercial Enterprises:
British commercial interests, such as the Imperial British East Africa Company
(IBEAC), were often the precursors to direct colonial rule. These companies
needed a stable environment for trade, the protection of their investments, and
mechanisms for dispute resolution. They introduced rudimentary forms of
administration and justice based on their home country's laws to regulate their
operations and interactions with local populations. Their presence created a
demand for predictable legal rules.
The search for Knowledge (Exploration and Scientific Endeavours):
The age of exploration and scientific inquiry often went hand-in-hand with
colonial expansion. Explorers and researchers mapped territories, studied local
customs, and documented resources, which in turn provided information that
facilitated colonial administration. This knowledge, even if not directly legal,
contributed to the understanding and categorization of African societies, making
them "legible" for colonial governance, which then imposed its own legal
structures.
The religious factor
Christian missionaries played a significant role in softening the ground for
colonial rule. They introduced Western education, healthcare, and moral values,
which often challenged existing indigenous social and legal norms. Their
presence sometimes led to requests for British protection from local conflicts or
perceived injustices, thereby providing a moral justification for intervention.
Furthermore, missionary activities sometimes led to the adoption of certain
Western legal principles, particularly in areas related to family law (e.g.,
marriage).
The Humanitarian factor:
Closely linked to the religious factor, humanitarian concerns (e.g., ending the
slave trade, promoting "civilization") were often cited as justifications for colonial
intervention. While often a veneer for economic and political motives, these

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concerns did necessitate the establishment of new legal frameworks to address

issues like slavery, promote "justice" as understood by the colonizers, and
enforce new social norms.
The cultural patterns in East Africa (Pre-colonial Legal Systems):
East Africa, including the area that became Uganda, had diverse and
sophisticated indigenous legal systems based on customary law, traditions, and
practices. These systems varied widely among different ethnic groups (e.g.,
Buganda, Bunyoro, Ankole, Acholi). The reception of foreign law was not a
vacuum; it interacted with, sometimes superseded, and sometimes co-existed
with these pre-existing legal orders. The nature and strength of these customary
laws influenced how readily or resistant communities were to the imposed legal
framework. For instance, the highly centralized Buganda kingdom had a more
developed customary legal system that interacted differently with British law
compared to more decentralized societies.
The Legal framework
These are the direct legislative instruments and administrative structures
through which foreign law was formally introduced and applied.
The Foreign Jurisdiction Acts (e.g., Foreign Jurisdiction Act 1890):
These Acts were fundamental. They empowered the British Crown to exercise
jurisdiction in territories outside of its dominions (like protectorates, where
Uganda initially was). These Acts effectively provided the legal basis for Britain
to legislate for and administer justice in territories where it did not have full
sovereignty. They allowed for the extension of English law to these territories,
often with modifications.
The African Order in Council 1889:
It laid down general principles for the administration of justice, often stipulating
that British law should be applied so far as circumstances permit, and that
native laws and customs should be respected as long as they were not repugnant
to "justice and morality." This "repugnancy clause" became a cornerstone of legal
reception, allowing colonial courts to invalidate customary laws deemed
incompatible with British standards.
The Separate Territorial Orders in Council (e.g., Uganda Order in Council):
As British administration became more established and specific to particular
territories, more detailed Orders in Council were issued for each protectorate.
The Uganda Order in Council (and subsequent amendments) was the primary
constitutional and legal instrument for the protectorate. It defined the powers of
the colonial administration, established the judiciary, and specified which laws
would apply in Uganda, usually by extending English common law, doctrines of
equity, and statutes of general application in force in England at a specific "date
of reception" (e.g., August 11, 1902, for Uganda).
The Separate Territorial Judicature Statutes (e.g., Uganda Judicature Act):

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Complementing the Orders in Council, specific Judicature Acts (or Ordinances,

as they were often called during the colonial period) were enacted to establish
the structure and jurisdiction of the courts within the protectorate. These
statutes defined the hierarchy of courts (e.g., High Court, subordinate courts),
their powers, the procedures to be followed, and explicitly stated the sources of
law to be applied by these courts (e.g., English common law, doctrines of equity,
statutes of general application, and customary law where applicable and not
repugnant). They formalized the dual system of justice – one based on English
law for Europeans and "natives" who opted into it, and another for customary
law.

Law Making and its Evolution over the Colonial Period to Independence and
Thereafter
The Law Making Authority
1. Colonial Period (1894 - 1962):
During the protectorate era, the ultimate law-making authority rested with the
British Crown and Parliament in the United Kingdom. However, this authority
was delegated and exercised through various mechanisms:
• Orders in Council: These were legislative instruments issued by the
British Privy Council (on behalf of the monarch). The Uganda Order in
Council of 1902 was particularly significant, serving as Uganda's first
colonial constitution. It empowered the Commissioner (later Governor) to
make laws.
• The Commissioner/Governor: Initially, the Commissioner, as the
representative of the British Crown, had broad powers to enact
Ordinances (the colonial term for laws). This was a form of "personal
decree" by the highest colonial official.
• The Legislative Council (LEGCO): Established in 1920, the LEGCO
became the primary legislative body within the protectorate.
• Composition: Initially, it was exclusively composed of European officials
(the Governor as President, and other official members like the Chief
Secretary).
• Evolution of Membership: Over time, the LEGCO saw the gradual
inclusion of non-official members, first Asians (from 1926) and then
Africans (from 1945). These appointments were initially by nomination,
reflecting the colonial administration's control.
• Limited Power: While it was the formal law-making body, the LEGCO's
power was constrained. The Governor retained significant influence, and
the ultimate authority remained with the Colonial Office in London.
• Native Authorities and Kingdoms: Through the policy of "Indirect Rule,"
the British allowed existing traditional leaders and institutions (like the
Kabaka and Lukiiko in Buganda, and other native authorities in different
kingdoms/districts) to retain some legislative powers, particularly over

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customary law and local administration. However, these powers were

always exercised subject to colonial oversight and the "repugnancy clause"
(where customary laws could be invalidated if deemed "repugnant to
justice and morality" by colonial courts). The Buganda Kingdom, for
example, had significant autonomy to legislate, but with the consultation
and approval of the British colonial regime.
2. Independence (1962) and Thereafter:
Upon gaining independence on October 9, 1962, Uganda adopted a new
constitutional framework, and the law-making authority shifted significantly:
• The Independence Constitution of 1962: This constitution established
a parliamentary democracy with a federal system (though
disproportionately favouring Buganda).
• Parliament (National Assembly): The LEGCO was replaced by the
National Assembly, which became the supreme legislative body, elected
by direct universal suffrage (though Buganda representatives were
indirectly elected through the Lukiiko).
• Cabinet: The Cabinet, drawn from and responsible to Parliament, played
a key role in initiating legislation.
• Head of State (initially the Queen, then President): The Queen of
England was the ceremonial head of state, represented by a Governor-
General. In 1963, Uganda became a Republic, and the President became
the head of state.
3.Post-Independence Constitutional Turmoil and Centralization (1966-
1980s):
• 1966 Abrogation and 1967 "Republican" Constitution: Prime
Minister Milton Obote abrogated the 1962 Constitution in 1966,
abolished the kingdoms, and introduced a new, highly centralized
Republican Constitution in 1967. This significantly shifted law-making
power towards the central government and the executive. Parliament's
role was diminished, and the President gained sweeping powers.
• Military Regimes (Idi Amin, etc.): During periods of military rule (e.g.,
Idi Amin's regime from 1971), law-making was largely by decree or
proclamation from the Head of State, effectively bypassing parliamentary
processes.
4.The 1995 Constitution and Modern Era:
• Parliament of Uganda: The 1995 Constitution (the current supreme
law) re-established a strong, independent Parliament as the primary
legislative body. It is composed of directly elected members and
representatives of special interest groups.
• Executive (President and Cabinet): The Executive proposes most
legislation (Bills), which then go through the parliamentary process.

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• Judiciary: While not a primary law-making body, the judiciary plays a

crucial role in interpreting laws and developing case law (common law),
thereby shaping the application and understanding of legislation. The
Supreme Court and Court of Appeal issue binding precedents.
• Uganda Law Reform Commission (ULRC): Established by Article 248
of the 1995 Constitution, the ULRC's core mandate is to review and
recommend reforms to existing laws, ensuring they remain relevant, fair,
and up-to-date with societal needs. This is a vital mechanism for
systematic law development.
• Local Councils (LCs): At the grassroots level, Local Council Courts have
powers to adjudicate minor civil disputes, giving them a role in the
application and interpretation of local laws and customs.
Terminology Used
The terminology for laws and law-making bodies evolved with Uganda's
constitutional status:
Colonial Period:
• Orders in Council: Legislation issued by the British Crown.
• Ordinances: Laws enacted by the Commissioner/Governor or the
Legislative Council in the Protectorate.
• Native Laws/Customary Laws: Indigenous legal rules recognized and
applied, albeit sometimes modified, by colonial courts.
• LEGCO (Legislative Council): The colonial legislative body.
Post-Independence:
• Constitution: The supreme law of the land, establishing the framework
for governance and law-making.
• Acts of Parliament: Laws enacted by the Parliament of Uganda
(formerly National Assembly).
• Statutory Instruments (S.I.s): Subsidiary legislation (e.g., regulations,
rules) made by ministers or other authorized bodies under the authority
of an Act of Parliament.
• Decrees/Proclamations: Laws issued by military or authoritarian
regimes, bypassing normal legislative processes.
• Customary Law: Continues to be recognized, but must not be
inconsistent with the Constitution or statutory law.
• National Assembly/Parliament of Uganda: The post-independence
legislative body.

Customary Law in Uganda

Customary law refers to the unwritten rules, practices, and norms that have
been observed by a community over a long period, gaining the force of law
through general acceptance and continuous application. In Uganda, customary

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law plays a significant role, particularly in matters of personal law (like marriage,
divorce, and inheritance), land tenure, and some aspects of dispute resolution
at the local level.
Proof of Customary Law
Since customary law is largely unwritten, proving its existence and content in a
court of law can be challenging. Generally, it can be proven in the following ways:
• Judicial Notice: If a customary law has been frequently applied and
interpreted by the higher courts (like the High Court, Court of Appeal, or
Supreme Court) in previous cases, it may become so well-established that
a court can take judicial notice of it. This means the court accepts its
existence without requiring formal proof.
• Expert Evidence: This is the most common method. Individuals
recognized as experts in the customary practices of a particular
community can be called to testify. These can include:
• Elders: Respected members of the community who have deep knowledge
of its traditions.
• Chiefs or Traditional Leaders: Persons holding traditional authority
who are custodians of customary norms.
• Anthropologists or Sociologists: Academics who have studied the
customs of specific communities.
• Textbooks, Treatises, and Reports: While customary law is unwritten,
it might be documented in academic texts, commissioned reports (like
those by the Uganda Law Reform Commission), or historical accounts.
These can be used to corroborate oral evidence.
• Previous Court Decisions: Even if not sufficient for judicial notice, past
decisions of lower courts that applied or discussed a particular custom
can be presented as evidence to show its existence and content.
• Witness Testimony from Community Members: Ordinary members of
the community can testify to the widespread observance and acceptance
of a particular custom.
The burden of proving a customary law generally lies with the party asserting its
existence.
Validity of Customary Law
For customary law to be recognized and applied by a formal court in Uganda, it
must meet certain criteria for validity:
• Existence and Acceptance: It must be proven that the custom is indeed
a long-standing, consistently observed, and generally accepted practice
within the particular community. It must have attained the "force of law"
in that community.
• Certainty: The custom must be reasonably certain in its content and
application, not vague or ambiguous.

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• Consistency: The custom should generally be consistent with other

established customary laws within the same community, unless there's
evidence of its evolution or supersession.
• Reasonableness: While not always a strict test, courts may implicitly
consider whether the custom is "reasonable" in a broad sense, though
this is often subsumed under the "repugnancy test."
Incompatibility and Repugnancy Test
This is the most critical hurdle for the validity of customary law in the Ugandan
formal legal system. The "repugnancy test" stems from colonial-era legislation
(like the various Orders in Council and Judicature Acts) which stipulated that
customary law would be applied unless it was repugnant to natural justice,
equity, and good conscience, or incompatible with any written law.
Repugnant to Natural Justice, Equity, and Good Conscience:
It essentially means that a customary law will not be enforced if it violates
fundamental notions of fairness, impartiality, and morality as understood by the
formal legal system (often reflecting common law principles or Western moral
standards).
• Examples of customs often found repugnant: Practices that
discriminate arbitrarily (e.g., against women or specific groups), those that
are inherently cruel or inhuman, or those that violate basic human rights
as enshrined in the Constitution.
• Incompatible with any Written Law (Statutory Law): The 1995
Constitution is the supreme law of the land, and any law, including
customary law, that is inconsistent with it is void to the extent of the
inconsistency (Article 2(2)). This has been particularly relevant in cases
involving gender equality, children's rights, and land rights.
The repugnancy test has been criticized for being a tool of colonial imposition,
often leading to the invalidation of indigenous practices that did not conform to
foreign ideals. However, in post-independence Uganda, the focus has shifted to
its role in ensuring that customary law aligns with constitutional human rights
provisions.
Cases Illustrating Customary Law Principles
Bruno L. Kiwuwa v Ivan Serunkuma & Juliet Namazzi HCCS No. 52 of 2006:
The case dealt with whether an agreement (introduction ceremony) between
families constituted a binding customary marriage, particularly when the woman
later decided not to proceed with the marriage. The court had to delve into the
requirements of Buganda customary marriage and consider whether certain
payments or rituals created a binding union. The case highlighted the complexity
of proving the elements of customary marriage and the challenges when parties
disagree on its existence or validity. It touched upon the concept of "bride price"
and whether its return or non-return affects the marriage's validity.

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Best Kemigisha v Mable Komuntale & Anor HCCS No. MFP5/1998:

This case is crucial for customary succession and inheritance, particularly in
the context of the Tooro Kingdom. It dealt with the question of who was the
legitimate heir to the late King Patrick Kaboyo Olimi and the property involved.
The court had to extensively examine Tooro customary laws of succession,
including the role of the King's will, the position of children born out of wedlock,
and the traditional processes for determining a successor. The case
demonstrates the High Court's role in interpreting and applying specific
customary laws in inheritance disputes and the challenges of reconciling
customary practices with statutory provisions (like the Succession Act) and
constitutional principles of equality.
Rex v Amkeyo, EACA (1917) p. 14:
The case dealt with the legal status of a customary marriage. The court famously
(and controversially) held that an African customary marriage was not a
"marriage" in the English legal sense, but rather a "union which, for want of a
better term, we have called marriage." This led to the classification of women in
such unions as "concubines" in some legal contexts, affecting their legal rights
(e.g., giving evidence against their "husbands"). It is a prime example of the
application of the repugnancy test and the colonial courts' tendency to invalidate
or diminish customary practices that did not fit English legal paradigms.
Kabali v Kajubi (1944) 11 EACA 34:
This is a Ugandan case that dealt with Buganda customary law, concerning
land or succession. Cases from this era often highlighted the complex interaction
between the Buganda Agreements, customary law, and the Protectorate's formal
legal system. It would demonstrate the courts' attempts to interpret and apply
customary rules within the colonial framework.
Gwao Bin Kilimo v Kasunda Bin Ifuti 1T.L.R 403:
This is a Tanzanian (Tanganyika) case. It's a significant case in East African
jurisprudence regarding the repugnancy clause and the application of customary
law. It specifically dealt with the customary law of blood money (compensation
for homicide). The court held that while the custom of paying blood money for
homicide existed, the formal legal system could not recognize it as a substitute
for criminal punishment. It illustrated that while a custom might exist, it could
be deemed "repugnant" or incompatible with statutory criminal law, and
therefore would not absolve a perpetrator of criminal liability.
Malefestsane v Mpho (1959) HCTLR 107:
This is a High Court of Basutoland (now Lesotho) case. It's an important
Southern African case on customary marriage and the validity of a marriage
where bride wealth (lobola) had not been fully paid. Such cases often explore the
specific requirements of customary marriage in different communities and when
a union gains full legal recognition under custom, and how these customs
interact with statutory marriage laws.

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Classification/ Sources of Law Applied in Uganda

Uganda's legal system is pluralistic, meaning it draws from various sources. The
primary legal framework is established by the Constitution of the Republic of
Uganda, 1995, which is the supreme law of the land (Article 2). All other laws
must be consistent with it.
key sources:
1. Statutory Law – Principal and Subsidiary
Statutory law refers to written laws enacted by a legislative body. In Uganda, this
is primarily the Parliament.
• Principal Legislation (Acts of Parliament): These are the primary laws
made directly by the Parliament of Uganda. They cover broad areas of law
and policy, such as criminal law (e.g., Penal Code Act), contract law (e.g.,
Contracts Act), land law (e.g., Land Act), family law (e.g., Marriage Act,
Divorce Act), and environmental law. They are the foundational legal
instruments passed through the full parliamentary process.
• Subsidiary Legislation (Statutory Instruments): These are laws made
by bodies or individuals (e.g., ministers, local governments, regulatory
agencies) to whom Parliament has delegated law-making authority under
a principal Act. They are often referred to as Statutory Instruments (S.I.s)
and include regulations, rules, orders, by-laws, and notices. Their
purpose is to provide detailed rules and procedures necessary for the
implementation and enforcement of the broader principles laid down in
the principal Acts. They must be consistent with the parent Act and the
Constitution.
2. Common Law
Common law refers to the body of unwritten law developed by judges over
centuries through judicial decisions, rather than through legislative statutes. It
originates from England and was received into Uganda through colonial
legislation (e.g., the Judicature Acts).
It consists of legal principles and rules that emerge from the judgments of courts.
When judges decide cases, they often refer to previous decisions (precedents) to
ensure consistency and predictability.
Application in Uganda: The Judicature Act (Cap 13) explicitly provides for the
application of common law and doctrines of equity in Uganda. This means that
where there is no specific statutory law covering a particular matter, Ugandan
courts can look to common law principles for guidance, especially in areas like
torts (civil wrongs), contract law, and property law.
3. Case Law (Precedent)
Case law, also known as precedent, is a direct outcome of common law. It refers
to the body of legal principles established by previous judicial decisions.

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• Doctrine of Stare Decisis: This Latin phrase means "to stand by things
decided." It is the fundamental principle of precedent, requiring courts to
follow decisions made by higher courts in similar cases.
• Binding Precedent: Decisions of higher courts (e.g., Supreme Court,
Court of Appeal) are binding on all lower courts.
• Persuasive Precedent: Decisions of courts of equal standing, lower
courts, or courts from other jurisdictions (e.g., other Commonwealth
countries) can be persuasive but are not binding.
* Role in Uganda: Ugandan courts apply the doctrine of stare decisis. This
means that when a higher court makes a ruling on a point of law, that ruling
becomes part of the law of the land and must be followed by all lower courts
when faced with similar facts. This ensures consistency and predictability in the
application of law.
4. Customary Law
Customary law comprises the traditional, unwritten rules and practices that
have been observed and accepted as binding by specific indigenous communities
in Uganda over time.
Application: It is primarily applied in matters of personal law (marriage,
divorce, inheritance, family relations), land tenure, and some minor civil
disputes, especially at the local council court level.
Validity: For customary law to be applied by formal courts, it must meet certain
conditions:
• It must be in existence and generally accepted by the community.
• It must not be "repugnant to natural justice, equity, and good conscience"
(the repugnancy test).
• Crucially, it must not be "incompatible with any written law" (especially
the Constitution, which is supreme). The Constitution's emphasis on
equality and human rights has led to the invalidation of certain
customary practices (e.g., discriminatory inheritance practices against
women).
5. Principles of Equity (Maxims of Equity)
Equity is a body of principles and rules developed in England to supplement and
correct the rigidities and perceived injustices of the common law.
It arose to provide remedies where common law remedies (primarily damages)
were inadequate or unfair. Equitable remedies include injunctions (court orders
to do or stop doing something), specific performance (ordering a party to fulfill a
contract), and rectification (correcting a written document).
Maxims of Equity:
These are guiding principles that underpin equitable relief. Examples include:

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• "He who comes to equity must come with clean hands." (Requires the
claimant to have acted fairly.)
• "Equity will not suffer a wrong to be without a remedy." (Aims to provide
a remedy where common law might not.)
• "Delay defeats equity." (Prompt action is usually required for equitable
relief.)
• "Equity looks to the intent rather than the form." (Focuses on the
substance of a transaction rather than strict formalities.)
Application in Uganda: Like common law, the principles of equity are expressly
applied in Uganda through the Judicature Act. Ugandan courts use these
principles to achieve fairness and justice, particularly in contract, trust, and
property disputes, where common law remedies might be insufficient.
6. Statutes of General Application
These refer to English statutes (Acts of the UK Parliament) that were in force in
England on a specific "reception date" and were deemed to be applicable to the
general circumstances of the Protectorate.
Reception Date: For Uganda, the key reception date is August 11, 1902. This
means that English statutes that were in general application in England on or
before this date, and were suitable for application in Uganda, became part of
Uganda's law.
Nature: These are not just any English statutes but those of general application,
meaning they dealt with fundamental aspects of law (e.g., certain aspects of
contract, property, or criminal procedure) rather than highly specific or localized
English issues.
Diminishing Importance: While historically very important, their significance
has gradually diminished as Uganda has enacted its own comprehensive
legislation. Many areas previously covered by English Statutes of General
Application are now covered by specific Ugandan Acts of Parliament. However,
in the absence of a specific Ugandan statute, a relevant English Statute of
General Application from before 1902 might still be invoked.
7. Public International Law
Public International Law refers to the body of rules, principles, and norms that
govern the relations between states and other international actors (like
international organizations).
Sources: Treaties (conventions, agreements), customary international law
(general practices accepted as law by states), general principles of law recognized
by civilized nations, and judicial decisions and scholarly writings as subsidiary
means.
Application in Uganda:

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• Treaty Law: Uganda is a signatory to numerous international treaties

and conventions (e.g., human rights treaties, trade agreements). For a
treaty to become part of Ugandan domestic law and be enforceable by its
courts, it generally needs to be ratified and then domesticated through
an Act of Parliament (i.e., transformed into national law).
• Customary International Law: Some aspects of customary
international law are considered to be part of Ugandan law without
specific domestication, particularly those widely accepted as jus cogens
(peremptory norms) like the prohibition of genocide or torture, or those
that form part of the general principles of law.
• Constitutional Basis: The 1995 Constitution (e.g., Objective XXIX of the
National Objectives and Directive Principles of State Policy, and Article
123 on treaties) recognizes the importance of international law. Ugandan
courts increasingly refer to international human rights instruments
when interpreting constitutional provisions.
Classification of Law
1.National Law (Domestic Law):
Law that applies within the borders of a single sovereign state (e.g., the laws of
Uganda). It regulates relations between citizens, and between citizens and the
state.
2. International Law:
Law that governs the relations between states and other international actors.
Includes Public International Law (e.g., treaties, customary international law on
human rights, warfare) and Private International Law (Conflict of Laws), which
determines which national law applies when a legal dispute has connections to
more than one country.
3.Public Law:
Deals with the relationship between individuals and the state. It governs the
organization of the government and the protection of public interests. Examples:
Constitutional Law, Administrative Law, Criminal Law, Taxation Law.
4. Private Law (Civil Law): Deals with the relationships between private
individuals or entities. It focuses on resolving disputes and protecting private
rights. Examples: Contract Law, Tort Law, Family Law, Property Law, Succession
Law.
5. Common Law:
A legal system originating from England, characterized by judge-made law
(precedent/case law) as a primary source, an adversarial court system, and an
emphasis on procedural fairness. Uganda's legal system is fundamentally a
common law system.

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6.Civil Law: A legal system originating from Roman law, characterized by

comprehensive, codified statutes as the primary source of law, an inquisitorial
court system, and often less reliance on judicial precedent. Many European and
Latin American countries operate under civil law systems.
7.Substantive Law:
Defines rights, duties, and prohibitions. It specifies what actions are legal or
illegal, what contracts are binding, what constitutes a tort, etc. It provides the
"substance" of the law. Examples: The Penal Code Act defines crimes and their
penalties. The Contracts Act defines the elements of a valid contract.
8. Procedural Law: Lays down the rules and methods by which substantive
laws are enforced. It dictates how legal proceedings are conducted. Examples:
The Civil Procedure Act and Rules govern how civil lawsuits are filed and tried.
The Criminal Procedure Code Act governs arrests, trials, and appeals in criminal
cases. The Evidence Act governs what evidence is admissible in court.
THE LAW MAKING PROCESSES.
1.GOVERNMENT BILL
The power to make laws is primarily vested in the Parliament of Uganda.
• Article 79(1): "Parliament shall have power to make laws on any matter for
the peace, order, development and good governance of Uganda."
• Article 79(2): "Except as provided in this Constitution, no person or body
other than Parliament shall have power to make provisions having the
force of law in Uganda except under authority conferred by an Act of
Parliament." This clause underscores parliamentary supremacy in law-
making and the concept of delegated legislation.
• Article 91: Outlines the process of presidential assent to Bills.
• Article 94: Deals with the Rules of Procedure of Parliament, which guide
the legislative process.
• Article 93: Restricts Parliament from proceeding on Bills that impose
taxes, or charge money on the Consolidated Fund, or alter any
appropriation, or affect the public debt unless the Bill is introduced by or
with the recommendation of the government. This is why most "money
Bills" are government Bills.
Stages of Law Making (for a Government Bill):
Most Bills originate from the Executive (Government Ministries) as Government
Bills. There are also Private Members' Bills introduced by individual Members of
Parliament, but these have specific restrictions, particularly concerning financial
implications (Article 93).
1.Policy Formulation and Cabinet Approval (Pre-Parliamentary Stage):
A Ministry identifies a need for new legislation or amendment to existing law.

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A Cabinet Memorandum outlining the policy principles and objectives of the

proposed law is prepared and submitted to Cabinet.
Cabinet debates and approves the principles of the Bill.
Relevant Provisions: Section 2 of the Public Service Standing Orders 2021
(governs cabinet procedures).
2. Drafting of the Bill:
Once Cabinet approves the principles, the responsible Minister instructs the
First Parliamentary Counsel / Attorney General's Chambers to draft the Bill. The
Bill is drafted in precise legal language, incorporating the approved policy.
A Certificate of Financial Implication must be obtained from the Minister of
Finance, planning, and Economic Development for any Bill that incurs public
expenditure or charges on the Consolidated Fund (Section 10 of the Budget Act
2001, Rule 118 of the Rules of Procedure). This certificate must accompany the
Bill when it is introduced to Parliament.
3.Publication in the Uganda Gazette:
Before being introduced to Parliament, the Bill must be published in the
Uganda Gazette, the official government publication. This is to ensure public
awareness of the proposed law.
Relevant Provisions: Rule 117 and 120 of the Rules of Procedure of Parliament.
4.First Reading in Parliament:
The responsible Minister formally introduces the Bill to Parliament. The Clerk
to Parliament reads out the title of the Bill. No debate takes place at this stage.
The Bill is then referred to the relevant sessional committee of Parliament for
scrutiny.
Relevant Provisions: Rule 128 of the Rules of Procedure.
5. Committee Stage (Committee Scrutiny):
This is a crucial stage where the Bill is examined in detail. The sessional
committee (e.g., Committee on Legal and Parliamentary Affairs, Committee on
Education) conducts thorough scrutiny. They invite stakeholders (government
ministries, civil society organizations, experts, the general public) to submit their
views and present proposals. Public hearings are common here.
The committee can propose amendments to the Bill's clauses. The committee
then prepares a report on the Bill, including its recommendations and proposed
amendments, and tables it before the plenary.
Relevant Provisions: Rule 129 of the Rules of Procedure. Rule 129(2) states
that a Committee should not consider a Bill for more than 45 days, though
extensions can be sought.
6.Second Reading:

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The Minister or Member in charge of the Bill moves a motion for the Second
Reading. The Chairperson of the Committee presents the committee's report to
the plenary.
General debate on the principles and policy of the Bill takes place in the full
House. Members discuss the merits and demerits of the Bill as a whole, taking
into account the committee's report.
Relevant Provisions: Rule 130 of the Rules of Procedure. Rule 130(5) requires
at least 14 days between gazetting and Second Reading.
8.Committee of the Whole House (Consideration of Amendments):
After the Second Reading, the Speaker leaves the Chair, and Parliament
resolves into a Committee of the Whole House to consider the Bill clause by
clause.
Members propose and debate specific amendments to individual clauses or
schedules of the Bill. Votes are taken on each proposed amendment.
Relevant Provisions: Part XX of the Rules of Procedure (Rules 131-133).
9.Third Reading:
The Minister or Member in charge moves a motion for the Third Reading. This
is typically a formal stage where Parliament votes on the Bill as a whole,
including all accepted amendments. No further debate on the substance usually
occurs, unless there are critical issues.
If the Bill passes the Third Reading, it is deemed to have been passed by
Parliament.
Quorum: For voting on any question, including passing a Bill, the quorum is
one-third of all Members of Parliament entitled to vote (Rule 23 of the Rules of
Procedure). However, if the President returns a Bill and Parliament passes it a
second or third time without Presidential assent, a two-thirds majority of all
members is required (Article 91(7)).
10.Presidential Assent:
Once passed by Parliament, the Bill is presented to the President for assent. The
President has 30 days from the date the Bill is presented to him/her to:
• Assent to the Bill: Sign it into law. It then becomes an Act of Parliament
and is published in the Uganda Gazette.
• (b) Return the Bill to Parliament: Request Parliament to reconsider the
Bill or a particular provision. The President must provide reasons for the
return.
• (c) Notify the Speaker in writing: That he/she refuses to assent to the
Bill.
If Returned: Parliament must reconsider the Bill. If it passes the Bill again, it
is presented to the President a second time. If the President returns it a second

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time, and Parliament passes it for the third time with the support of at least two-
thirds of all Members of Parliament, the Bill shall become law without the
President's assent.
Relevant Provisions: Article 91 of the Constitution is critical here.
11.Commencement:
An Act of Parliament comes into force on a date specified within the Act itself,
or on a date appointed by the Minister responsible through a Statutory
Instrument, or on the date of its publication in the Uganda Gazette if no specific
date is mentioned.
Recent Renowned Cases on the Law-Making Process in Uganda
1. Human Rights Network Uganda v. Attorney General (Constitutional
Petition No. 56 of 2013):
This case challenged the constitutionality of Section 8 of the Public Order
Management Act (POMA), 2013. While not solely about the process of law-
making, the court's decision on the constitutionality of the provision itself,
particularly regarding the arbitrary power it gave to police to prevent and
disperse public gatherings, has implications for how laws are drafted and
enacted to comply with human rights. The court found the provision
unconstitutional as it violated rights to freedom of assembly and association.
This case emphasizes the judiciary's role in reviewing the outcome of the law-
making process against constitutional standards.
2. Fox Odoi-Oywelowo & 21 Others v Attorney General and 3 Others
(Constitutional Petition No. 49 of 2023):
This highly recent and prominent case challenged the Anti-Homosexuality Act,
2023. The petitioners raised both procedural (e.g., alleged lack of quorum during
passing, insufficient public participation) and substantive constitutional
grounds. The Constitutional Court upheld the validity of the Act on most
grounds, though it found Section 14 (the reporting requirement for homosexual
acts) unconstitutional due to its "chilling deterrent effect" on access to
healthcare. The court extensively dealt with arguments regarding quorum and
public participation, affirming that while public participation is crucial, its extent
depends on the nature of the Bill. The judgment underscored that Parliament
has wide latitude in conducting its business, but adherence to constitutional
imperatives (like fundamental rights) remains paramount. This case is crucial
for understanding judicial review of the legislative process in Uganda today.
Constitutional Petitions challenging the removal of Presidential Age Limits
(e.g., Male Mabirizi Kiwanuka v. Attorney General, Constitutional Petition
No. 49 of 2017 and Uganda Law Society v. Attorney General, Constitutional
Petition No. 52 of 2017 - consolidated and appealed up to the Supreme
Court):

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These petitions challenged the constitutionality of the Constitution

(Amendment) Act, 2017, which, among other things, removed the presidential
age limit (Article 102(b)) and extended the term of Parliament. The challenges
included arguments about:
• Lack of adequate public participation: Petitioners argued that the
process was rushed and denied meaningful public input.
• Procedural irregularities: Allegations of violence in Parliament during the
passing of the Bill, failure to follow due process.
• Substantive unconstitutionality: That the amendments fundamentally
altered the basic structure of the Constitution.
Outcome: Both the Constitutional Court and the Supreme Court ultimately
upheld the amendments (though there were strong dissenting judgments on
various points). These cases are pivotal as they deeply explored the boundaries
of parliamentary power to amend the Constitution, the meaning of "public
participation" in law-making, and the application of parliamentary rules versus
constitutional principles. They demonstrate the judiciary's role in scrutinizing
legislative action, even if the eventual outcome upheld the challenged law.

2. PRIVATE MEMBERS BILL

While the majority of Bills originate from the Government (Executive), individual
Members of Parliament (MPs) have the right to introduce Private Members' Bills.
This is the closest equivalent to "private" initiative in the legislative process.
Constitutional & Procedural Provisions:
• Article 93 of the 1995 Constitution: This is the most crucial article for
Private Members' Bills. It states that Parliament shall not proceed on a
Bill introduced by a private member if it requires charging money on the
Consolidated Fund, imposing a tax, or making any appropriation, unless
the Bill is introduced by or with the recommendation or consent of the
Government.
Rules of Procedure of the Parliament of Uganda (11th Parliament):
• Rule 121: Private Members’ Bill: Outlines the procedure.
• Rule 121(1): A private member desiring to introduce a Bill must seek leave
of Parliament through a motion supported by a sworn affidavit stating
that the Bill has no financial implications, or that if it does, a certificate
of financial implication has been obtained.
• Rule 121(2): The motion for leave is subject to debate and vote.
• Rule 121(3): If leave is granted, the Bill proceeds through the same stages
as a Government Bill (First Reading, Committee Stage, Second Reading,
Committee of the Whole House, Third Reading, Presidential Assent).

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• Rule 121(5): If a Private Member's Bill is referred to a committee, the

committee may seek the advice of the Attorney General or the Ministry of
Finance.
Process for a Private Member's Bill (Key differences from Government Bill):
1.Motion for Leave:
The MP first tables a motion seeking leave of Parliament to introduce the Bill.
This motion must be accompanied by a sworn affidavit regarding financial
implications (Rule 121(1)).
Debate on Leave: Parliament debates whether to grant leave.
2.Certificate of Financial Implication: If the Bill has financial implications,
the MP must obtain a Certificate of Financial Implication from the Minister of
Finance. This can be a major challenge, as the government may refuse to issue
it, effectively blocking the Bill.
3. Drafting:
If leave is granted and financial implications are cleared, the MP can then get
assistance from the First Parliamentary Counsel or other legal drafters.
4.Subsequent Stages:
From publication in the Gazette onwards, the process is largely the same as for
a Government Bill (First Reading, Committee Scrutiny, Second Reading,
Committee of the Whole House, Third Reading, Presidential Assent,
Commencement).
Recent Renowned Cases on Private Members' Bills
1.Hon. Gerald Karuhanga & Others v Attorney General, Constitutional
Petition No. 34 of 2013:
This case challenged the payment of emoluments (allowances) to Members of
Parliament beyond their basic salary, which were contained in resolutions
passed by Parliament. While not directly about a Private Member's Bill's process,
it dealt with Parliament's power over public finance and whether certain financial
decisions required initiation by the Executive, touching on the principles
underlying Article 93. The court ruled that Parliament cannot pass resolutions
with financial implications without prior Executive consent.
2.Hon. Ssemujju Ibrahim Nganda v. Attorney General, Constitutional
Petition No. 2 of 2017:
This case challenged the payment of emoluments to Speakers and other
parliamentary leaders, arguing it was an appropriation requiring Executive
initiation. The court largely upheld the existing arrangements, but the case again
highlighted the importance of Article 93 in constraining parliamentary actions
that affect public funds.

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While there may not be many successful challenges directly resulting in the
nullification of an entire Private Member's Bill due to Article 93 alone, the Article
serves as a significant gatekeeper. Cases like the ones above, concerning
parliamentary financial powers, indirectly reinforce the strict interpretation of
Article 93, making it challenging for Private Members' Bills with financial
implications to proceed without government blessing.
3. Male H. Mabirizi & Others v. Attorney General, Constitutional Appeal No.
2, 3 & 4 of 2018 (arising from Constitutional Petition Nos. 49 of 2017, 3 of
2018, 5 of 2018, 10 of 2018, and 13 of 2018 - consolidated):
This landmark case, popularly known as the "Age Limit Case," challenged the
Constitution (Amendment) Act, 2017. A key aspect of the challenge was that the
amendments originated as a Private Member's Bill (introduced by Hon. Raphael
Magyezi) that had significant financial implications (e.g., re-instating presidential
term limits, extending parliamentary and local government terms all had various
financial or procedural implications).
The petitioners argued that the Bill contravened Article 93(a)(ii) and (iii) because
it purported to impose a charge on the Consolidated Fund or alter an existing
charge without being introduced by or with the recommendation/consent of the
Government. Specifically, they questioned the validity and timing of the
Certificate of Financial Implication.
Both the Constitutional Court and the Supreme Court extensively deliberated on
the meaning and application of Article 93. While the courts ultimately upheld
the amendments on the whole, they affirmed the strict requirements of Article
93. The Supreme Court notably clarified that a Bill does have financial
implications if its implementation creates a cost beyond what is already budgeted
for. However, if the costs can be absorbed within existing budgetary provisions,
it might not necessarily trigger the Article 93 prohibition. The specific arguments
around the sufficiency and timing of the Certificate of Financial Implication for
this Private Member's Bill were heavily scrutinized, demonstrating the judiciary's
gatekeeping role.
4. Uganda Law Society v. Attorney General, Constitutional Petition No. 4
of 2020 (re: Judiciary (Administration) Act, 2020):
This petition challenged various provisions of the Judiciary (Administration)
Act, 2020. While the Act was a Government Bill, the petition raised broader
issues of Parliament's financial independence and powers, which are often at the
heart of Private Members' Bill disputes.
The petitioners argued that certain sections of the Act, which gave the Executive
(specifically the Secretary to the Treasury) control over the Judiciary's budget
beyond what was constitutionally permissible, contravened Article 155(2) and (3)
of the Constitution (which grants the Judiciary autonomy over its budget) and
implicitly Article 93 principles regarding the separation of powers in financial
matters. While not a Private Member's Bill per se, the principles discussed about
the Executive's role in financial initiation (Article 93) and the limits of

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parliamentary action in this regard are highly relevant. The court emphasized
that financial provisions must respect constitutional principles and procedures.
5.Hon. Gerald Karuhanga & Others v Attorney General, Constitutional
Petition No. 34 of 2013:
This case challenged Parliament's decision to increase emoluments
(allowances) for Members of Parliament through a resolution, rather than
through a Bill introduced by the Executive.
The core issue was whether Parliament, through a resolution, could effect a
financial charge on the Consolidated Fund without it being initiated by the
Executive, as required by Article 93 for Bills and Motions with financial
implications.
The Constitutional Court ruled that Parliament acted unconstitutionally by
determining emoluments through a resolution without the Executive's initiation,
emphasizing that financial matters impacting the Consolidated Fund must follow
the strictures of Article 93. This case, while not directly on a Private Member's
Bill, strongly reinforces the principle that any parliamentary action (including a
Bill or Motion) that has a financial charge on the Consolidated Fund must
originate from or be sanctioned by the Executive. This has direct implications for
any Private Member's Bill that would lead to new public expenditure.
3. ORDINANCES AND BYELAWS.
These are forms of delegated legislation made by Local Governments in Uganda.
These are distinct from Acts of Parliament, as they are laws specific to a local
area and made under authority granted by a central Act.
The primary legal framework governing this process is the Local Governments
Act, Cap. 243, as amended.
Law-Making Process for Ordinances and Byelaws in Uganda
Distinction:
• Ordinances: Laws made by District Councils and City Councils. They
apply to the entire district or city.
• Byelaws: Laws made by Lower Local Governments, including
Municipalities, Towns, Divisions, and Sub-counties, as well as Parish and
Village Councils. They apply to their respective smaller administrative
areas.
Primary Legal Framework:
The 1995 Constitution of the Republic of Uganda:
• Article 176(1): Establishes a system of decentralization and local
governments.
• Article 178: Provides for the functions and powers of local governments,
implicitly granting legislative authority within their delegated functions.

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• Schedule Two of the Constitution: Outlines the functions and services for
which local governments are responsible, providing the subject matter for
their legislative action.
The Local Governments Act, Cap. 243: This is the enabling Act that details the
powers and procedures for making ordinances and byelaws.
• Section 38: Grants power to District Councils to make Ordinances for the
"better carrying into effect of the functions and services of the district
council."
• Section 39: Grants power to Lower Local Councils (municipalities, towns,
divisions, sub-counties, parishes, villages) to make byelaws "not
inconsistent with the Constitution or any Act of Parliament or an
ordinance of a district council, for the better carrying out of the functions
and services" within their areas.
• Section 40: Deals with the assent and publication of ordinances and
byelaws.
• Section 41: Stipulates that every byelaw made by a lower local council
must be certified by the relevant higher council (e.g., a sub-county byelaw
by the District Council) to ensure it's not inconsistent with national or
district laws.
Process of Making Ordinances (District/City Councils - Section 38, 40
LGA)
1. Initiation:
The need for an Ordinance is identified by a department, committee, or
individual councillor within the District/City Council.
2.Drafting: The proposed Ordinance is drafted. Often, this requires legal
expertise, sometimes from the office of the District Attorney/City Attorney or
hired consultants, as local governments may lack in-house capacity.
3.Committee Scrutiny: The draft Ordinance is usually referred to a relevant
committee of the District/City Council for detailed examination, amendments,
and possibly public hearings or consultations with stakeholders within the
district/city.
4. Council Debate and Passing: The committee's report and the draft
Ordinance are presented to the full District/City Council for debate. Councillors
discuss its merits, propose further amendments, and then vote. For an
Ordinance to pass, it typically requires a simple majority vote of the councillors
present and voting.
5. Assent (Minister's Assent): Once passed by the District/City Council, the
Ordinance does not go to the President. Instead, it is forwarded to the Minister
responsible for local governments (currently the Minister of Local Government)
for assent.

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• Section 40(1) LGA: States that "An ordinance passed by a district council
shall be assented to by the Minister and shall be published in the
Gazette."
The Minister's role is to ensure that the Ordinance is not inconsistent with the
Constitution or any Act of Parliament.
6. Publication:
After receiving the Minister's assent, the Ordinance must be published in the
Uganda Gazette. Publication is crucial for the Ordinance to come into force.
• Section 40(3) LGA: "An ordinance shall not have effect until it has been
published in the Gazette."
7. Commencement:
The Ordinance comes into force on the date of its publication in the Gazette or a
later date specified within the Ordinance itself.
Process of Making Byelaws (Lower Local Councils - Section 39, 41 LGA)
1. Initiation & Drafting:
Similar to Ordinances, the process begins with identifying a need and drafting
the Byelaw at the relevant lower local council level (e.g., Sub-county, Town
Council).
2.Council Debate and Passing:
The draft Byelaw is debated and passed by the respective lower local council.
3.Certification (Crucial Step):
This is a key difference from Ordinances. A Byelaw made by a lower local council
(e.g., sub-county, town, division, parish, village) must be certified by the next
higher council.
• Section 41(1) LGA: "A byelaw made by a lower local council shall be
submitted to the next higher council for certification."
• Section 41(2) LGA: The higher council certifies that the byelaw "is not
inconsistent with the Constitution or any Act of Parliament or an
ordinance of the district council." This is a conformity check.
For example, a sub-county byelaw needs certification from the District Council.
A parish byelaw needs certification from the sub-county council.
4. Approval (Minister's Approval for some urban byelaws):
While not explicitly in Section 41 for all byelaws, in practice, and particularly
for municipal/city byelaws on certain matters, the Minister of Local
Government's approval might be sought or required by subsidiary legislation
under the LGA.

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5.Publication: After certification (and any required higher-level approval), the

Byelaw must be published. This is typically done through local gazettes, public
notice boards, or other local means of dissemination to ensure residents are
aware.
• Section 40(3) LGA (applies broadly): Implies publication is essential for
effect. Practical guidelines (like those from ACODE) often specify public
notice boards as a common method.
6. Commencement:
The Byelaw comes into force on the date of its publication or a later date
specified within it.
Cases.
1.Akayo v. Kamuli District Local Council, Civil Appeal No. 0005 of 2014
(Uganda Court of Appeal) (Appealed from High Court):
While this specific case dealt with the interdiction of a District employee by the
CAO, it highlights challenges to actions taken by local government officials, often
on grounds of ultra vires. The appellant argued that the CAO acted outside
powers vested by the Local Governments Act and the Constitution, which grant
disciplinary powers to the District Service Commission.
This case underscores the principle that local government bodies and officials
must act strictly within the powers conferred upon them by the Local
Governments Act and the Constitution. While not directly about making a bylaw
or ordinance, the same ultra vires principle applies: if a local government enacts
a bylaw/ordinance without the requisite power or in excess of it, that
bylaw/ordinance will be invalid.
2.Municipal Council of Kampala v. Semogerere [1962] EA 244 (East Africa
Court of Appeal):
It dealt with a bylaw made by the Kampala Municipal Council concerning
building control. The case examined whether the bylaw was ultra vires the
powers granted to the Council by its enabling statute (the then Municipalities
Ordinance). Courts frequently scrutinize whether local government laws
genuinely relate to the specific functions and powers delegated to them. It's a
foundational case for interpreting the limits of delegated legislative power.
3. Attorney General v. Uganda National Roads Authority (UNRA),
Constitutional Petition No. 010 of 2017:
While this isn't a direct challenge to a bylaw, it's relevant because it concerned
UNRA's powers to levy road tolls, and whether such powers could be exercised
without specific legislation.
Courts often examine whether fees, taxes, or charges imposed by subordinate
legislation (like ordinances and byelaws under Sections 40-41 of the Local
Governments Act) are expressly authorized by the enabling principal Act and are

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not inconsistent with national taxation laws. Local governments are specifically
empowered to levy local taxes and fees, but these must be within the framework
of the Local Governments Act and other national tax laws. Challenges often arise
when local governments try to impose levies not clearly permitted.
COURTS AND COURT SYSTEMS IN UGANDA
The hierarchy of courts ensures a system of appeals and consistency in the
application of law through the doctrine of stare decisis (precedent).
Breakdown of the courts and their jurisdiction:
1. The Supreme Court of Uganda
Composition: Composed of the Chief Justice (who is the head of the Judiciary
and the Supreme Court) and not less than six other Justices of the Supreme
Court, as Parliament may prescribe. For hearing an appeal, it is duly constituted
by an odd number of Justices not less than five. For presidential election
petitions or constitutional appeals, a full bench (seven justices) usually sits.
Establishment: Article 132 of the 1995 Constitution.
Jurisdiction:
Primarily Appellate Jurisdiction: It is the highest court of appeal in Uganda. It
hears appeals from the Court of Appeal (including when the Court of Appeal sat
as the Constitutional Court).
Original Jurisdiction (Sole Exception): It has original and exclusive jurisdiction
to hear and determine presidential election petitions. This means a presidential
election petition is filed directly in the Supreme Court and cannot be heard by
any other court at first instance.
Key Function: It is the final arbiter of legal disputes in Uganda, setting binding
precedents for all lower courts.
2. The Court of Appeal / Constitutional Court
Composition: Composed of the Deputy Chief Justice (who heads the Court of
Appeal) and such number of Justices of Appeal as Parliament may prescribe. For
hearing appeals, it is constituted by an odd number of not less than three
Justices.
Establishment: Article 134 of the 1995 Constitution.
Jurisdiction:
Appellate Jurisdiction: It is the second highest appellate court. It hears
appeals from the High Court.
Constitutional Court (Original and Exclusive Jurisdiction): When hearing
matters concerning the interpretation of the Constitution, the Court of Appeal
sits as the Constitutional Court (Article 137 of the 1995 Constitution). In this

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capacity, it has original and exclusive jurisdiction to determine questions as to

the interpretation of the Constitution, including whether an Act of Parliament or
any other law, or anything done under the authority of any law, or any act or
omission by any person or authority, is inconsistent with or contravenes a
provision of the Constitution. A bench of five Justices constitutes the
Constitutional Court.
3. The High Court of Uganda
Composition: Composed of the Principal Judge (who is the head of the High
Court) and such number of Judges as Parliament may prescribe. It usually sits
with a single judge.
Establishment: Article 138 of the 1995 Constitution.
Jurisdiction:
Unlimited Original Jurisdiction: The High Court has unlimited original
jurisdiction in all matters (Article 139(1)). This means it can hear any case, civil
or criminal, regardless of its monetary value, complexity, or severity, as a court
of first instance. This is a crucial aspect of its power.
Appellate Jurisdiction: It hears appeals from Magistrate Courts and other
subordinate courts/tribunals.
Supervisory Jurisdiction: It has general powers of supervision over all lower
courts and tribunals.
Divisions: The High Court operates through various specialized divisions to
handle specific areas of law more efficiently (e.g., Civil Division, Criminal
Division, Commercial Division, Family Division, Land Division, International
Crimes Division, Anti-Corruption Division).
4. Magistrates' Courts
Magistrates' Courts form the backbone of the judicial system at the local level
and handle the vast majority of cases. They are established by the Magistrates
Courts Act, Cap. 16. They are subordinate to the High Court.
Geographical Jurisdiction: Uganda is divided into magisterial areas, with
Magistrates' Courts established in each.
Hierarchical Structure within Magistrates' Courts:
Chief Magistrate's Court:
Criminal Jurisdiction: Can try all criminal offenses except those whose
maximum penalty is death (e.g., murder, treason, aggravated robbery).
Civil Jurisdiction: Has jurisdiction where the value of the subject matter in
dispute does not exceed 50 million Uganda Shillings. Unlimited jurisdiction in
cases relating to conversion, damage to property, or trespass.

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Supervisory and Appellate Role: Exercises general powers of supervision

over Grade I and II Magistrates' Courts within their area and hears appeals from
Grade I Magistrates' Courts.
Qualifications: Must be a qualified lawyer.
Magistrate Grade I Court:
Criminal Jurisdiction: Can try all offenses except those whose maximum
penalty is death or life imprisonment.
Civil Jurisdiction: Limited to matters where the value of the subject matter
does not exceed 20 million Uganda Shillings.
Qualifications: Must be a qualified lawyer with a Law Degree and a Diploma
in Legal Practice.
Magistrate Grade II Court:
Criminal Jurisdiction: Limited to lesser offenses, generally those not specified
in the First Schedule of the Magistrates Courts Act (e.g., petty theft, common
assault).
Civil Jurisdiction: Limited to cases where the value of the subject matter does
not exceed 500,000 Uganda Shillings.
Territorial Jurisdiction: Limited to their specific county. Qualifications:
Typically requires a Diploma in Law.
5. Local Council (LC) Courts
Establishment: Established under the Local Council Courts Act, 2006,
replacing the old RC (Resistance Council) courts. They are the lowest tier of
formal judicial administration and are intended to provide accessible and
affordable justice at the grassroots level.
Hierarchy:
• LC I Court (Village Level): The lowest court.
• LC II Court (Parish Level): Hears appeals from LC I courts and has some
limited original jurisdiction.
• LC III Court (Sub-county/Division Level): Hears appeals from LC II courts
and has some limited original jurisdiction.
Composition: Composed of the elected local council members.
Jurisdiction:
Limited Civil Jurisdiction: Primarily handles small civil disputes, often those
governed by customary law. The pecuniary limit for the value of the subject
matter in dispute is generally very low (e.g., not exceeding UGX 2,000,000 for LC
I courts).

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Customary Law: Play a significant role in adjudicating disputes concerning

land held under customary tenure, marriage, divorce, parentage of children, and
customary heir identity.
No Criminal Jurisdiction: Unlike the old RC courts, LC Courts generally do
not have criminal jurisdiction to try offenses (except minor ones like assault or
causing damage, if specified). Their focus is on reconciliation and remedies like
compensation, restitution, or apologies.
Supervision: Under the general supervision of the Chief Magistrate on behalf
of the High Court.
Specialized Courts/Tribunals (Examples, not exhaustive)
Parliament has power under Article 129(1)(d) to establish other courts or
tribunals. These include:
• Industrial Court: Deals with labour disputes.
• Tax Appeals Tribunal: Hears disputes concerning tax assessments.
• Courts Martial: Military courts that try members of the Uganda People's
Defence Forces (UPDF) for service offenses.
• Family and Children Courts: Specialized courts at the Magistrates' Court
level that deal with matters concerning children (e.g., child protection,
adoption, juvenile offenders) as provided for under the Children Act.
CASES.
1. Nakivubo Chemists (U) Ltd (1977) HCB 311
The facts involved a dispute among the directors/shareholders of Nakivubo
Chemists (U) Ltd. The central issue was a complaint by some shareholders or
directors (likely a minority) that they were being oppressed by the majority or by
certain actions of the company. A common point of contention in such cases is
the denial of participation in company affairs, exclusion from meetings, or
diversion of company assets.
The High Court held that the actions complained of constituted oppression of
the minority shareholders. The court likely granted remedies to the aggrieved
party, which could include ordering a buy-out of shares, winding up the
company, or other equitable relief to remedy the oppressive conduct. This case
is a key precedent in Uganda for the interpretation of Sections relating to
oppression of minority shareholders under the Companies Act (then and now).
2. A.G. v Olwoch [1972] E.A. 392 (C.A. – K)
The case involved Pius Olwoch, a public officer (then a Magistrate in Kenya), who
was dismissed from his service without being afforded a proper hearing or due
process. His dismissal was challenged as a violation of natural justice and the
procedures laid down in the then-Public Service Commission Regulations.
The East Africa Court of Appeal held that Mr. Olwoch's dismissal was unlawful
and void because he was not given an opportunity to be heard before the decision

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was made, violating the the right to be heard, a fundamental principle of natural
justice. The court emphasized that even where disciplinary procedures exist, the
principles of natural justice must always be observed.
Alternative Dispute Resolution (ADR)
What is ADR?
Alternative Dispute Resolution (ADR) refers to a range of processes and
techniques used to resolve legal disputes outside of the traditional court system.
The primary goal of ADR is to provide more efficient, cost-effective, confidential,
and amicable ways for parties to reach a mutually acceptable resolution.
The most common forms of ADR
1. Arbitration:
A process where disputing parties present their case to a neutral third party (the
arbitrator or arbitral tribunal) who, after considering evidence and arguments,
makes a final and binding decision (an arbitral award).
2.Conciliation:
A process where a neutral third party (the conciliator) facilitates communication
between the parties and assists them in reaching a mutually agreed resolution.
The conciliator may suggest solutions but does not impose a decision. The
outcome is often a settlement agreement.
3 Mediation:
Very similar to conciliation, often used interchangeably. A neutral third party
(the mediator) facilitates communication, negotiation, and helps parties explore
options for resolution. Like conciliation, the mediator does not impose a decision,
and the outcome is a mutually agreed settlement. Mediation is often mandatory
for certain cases in Uganda's Commercial Court.
4 .Negotiation:
The most informal form of ADR, where parties directly communicate with each
other to resolve their dispute without the involvement of a third party. This can
occur at any stage and often precedes other ADR methods or litigation.
Arbitration and Conciliation Act, Cap. 4
It is largely based on the UNCITRAL Model Law on International Commercial
Arbitration, which aims to promote uniformity in international arbitration laws.
Key provisions of the ACA include:
Part II: Domestic Arbitration:
• Section 3: Defines an "arbitration agreement" as an agreement by the
parties to submit to arbitration all or certain disputes which have arisen

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or which may arise between them in respect of a defined legal

relationship, whether contractual or not.
• Section 5: Provides for the power of the court to refer parties to arbitration
where there is a valid arbitration agreement, unless the agreement is null
and void, inoperative, or incapable of being performed.
• Section 10: Deals with the composition of the arbitral tribunal (number
of arbitrators).
• Section 19: Grants the arbitral tribunal the power to determine the
admissibility, relevance, materiality, and weight of any evidence.
• Section 34: Outlines the limited grounds on which an arbitral award can
be set aside by the High Court (e.g., incapacity of a party, invalid
arbitration agreement, lack of notice, award dealing with matters beyond
the scope of arbitration). It emphasizes non-interference by courts in the
merits of the award.
Part III: International Commercial Arbitration:
• Section 50: Specifies when an arbitration is "international" (e.g., parties
have places of business in different states, or the place of arbitration is
outside their state of business).
• Section 56: Provides for the enforcement of foreign arbitral awards,
typically based on the New York Convention on the Recognition and
Enforcement of Foreign Arbitral Awards, 1958.
Part IV: Conciliation:
• Section 64: Applies the provisions of this Part to conciliation of disputes
arising out of a contractual or other legal relationship where the parties
agree to resort to conciliation.
• Section 68: Emphasizes the role of the conciliator in assisting parties to
reach an independent and mutually satisfactory settlement.
The 1995 Constitution of the Republic of Uganda
* Article 126(2)(d): This is the foundational constitutional provision encouraging
ADR. It states that "In exercising judicial power, the courts shall be guided by
the following principles—... (d) reconciliation between parties shall be promoted."
This article provides the constitutional underpinning for all ADR initiatives,
especially mediation and conciliation.
The Judicature (Mediation) Rules, 2013 (S.I. No. 59 of 2013)
These rules formalize court-annexed mediation in Uganda, particularly for the
Commercial Division of the High Court, making mediation a mandatory first step
for most civil cases.
• Rule 3 (Mandatory Mediation): States that all civil actions filed in or
referred to the High Court and any courts subordinate thereto shall be
subjected to mediation.

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• Rule 5 (Referral): The court shall refer any civil action to mediation, either
on its own motion or upon application by a party.
Significance: This makes mediation an integral part of the civil litigation process,
aiming to decongest courts and encourage amicable settlements.

How Does ADR Operate?

1. Negotiation:
Process: Parties directly engage in dialogue, discussion, and bargaining to
reach a voluntary agreement. There is no neutral third party.
Outcome: A mutually agreed settlement, often documented as a contract.
Legal Basis: Informal, but if a settlement is reached, it is enforceable as a
contract.
2. Mediation/Conciliation:
Process:
• Agreement to Mediate/Conciliate: Parties voluntarily agree to submit
their dispute to mediation/conciliation.
• Appointment of Neutral: A neutral mediator/conciliator is chosen by the
parties or appointed by an institution (e.g., Centre for Arbitration and
Dispute Resolution - CADER).
• Sessions: The mediator facilitates communication, explores underlying
interests, helps parties identify common ground, and generates options
for resolution. This often involves joint sessions and private caucuses
with each party.
• No Imposition: The mediator does not impose a solution but guides the
parties to find their own.
• Outcome: If successful, a settlement agreement is signed by the parties,
which is legally binding as a contract and can often be made a consent
judgment of the court if the dispute was already before a court.
• Legal Basis: Arbitration and Conciliation Act, Cap. 4 (Part IV for
conciliation), High Court (Commercial Court Division) Mediation Rules,
2013 (S.I. No. 59 of 2013), Practice Directions on ADR by the Chief
Justice.
3. Arbitration:
Process:
• Arbitration Agreement: Parties must have a written agreement to
arbitrate (often a clause in a contract).
• Appointment of Arbitrator(s): Parties agree on a sole arbitrator or a
panel.

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• Hearing: Similar to a court process but more informal. Parties present

their cases, submit evidence, and may call witnesses. The arbitral
tribunal manages the procedure.
• Award: The arbitrator makes a binding arbitral award which is final and
enforceable, subject to limited grounds for setting aside (Section 34
ACA).
• Outcome: A legally binding arbitral award, which is generally final and
cannot be appealed on its merits. It can be enforced by the High Court
as if it were a judgment of the court.
• Legal Basis: Arbitration and Conciliation Act, Cap. 4.

Renowned Ugandan Cases Using/Interpreting ADR Methods

Cases on Arbitration:
1. Aya Investments (U) Ltd v. Industrial Development Corporation of South
Africa Ltd, High Court Misc. Application No. 876 of 2007 (and subsequent
appellate decisions in related matters, including Court of Appeal and
Supreme Court cases):
This long-running dispute involved a construction project where Aya
Investments was the contractor and Industrial Development Corporation (IDC)
was a financier. The contract contained an arbitration clause. When disputes
arose, IDC initiated arbitration proceedings, which led to an arbitral award. Aya
Investments then sought to challenge the award in Ugandan courts.
These cases have consistently upheld the principle of minimal court
intervention in arbitral awards. The courts have emphasized that an arbitral
award can only be set aside on the very specific and limited grounds provided in
Section 34 of the Arbitration and Conciliation Act. The courts have refused to re-
examine the merits of the dispute or substitute their judgment for that of the
arbitrator, affirming the finality of arbitral awards. They also stressed that the
seat of arbitration determines which court has the power to set aside an award.
2. Lakeside Dairy v International Centre for Arbitration and Mediation in
Kampala v Midland Emporium (Mubiru J.) - (High Court - Commercial
Division):
This case dealt with the validity and enforceability of a "bare" arbitration clause
– one that simply states disputes shall be referred to arbitration but lacks details
like the number of arbitrators or the place of arbitration.
The court ruled that such a bare arbitration clause remains valid and binding
if the parties have shown a clear intention to settle any dispute by arbitration.
This case reinforces the courts' willingness to uphold arbitration agreements
even if they are not perfectly drafted, prioritizing the parties' intent to arbitrate.
This promotes access to arbitration even for parties who may not have
extensively detailed arbitration clauses.

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Cases on Mediation:
1.Tumusiime Paul & 3 Ors v Semakula (2017) UGCommC 84:
This was a land and estate dispute that was referred for court-annexed
mediation. The mediation failed due to non-attendance of the parties and their
counsel. The case then proceeded to a full trial.
While the mediation failed, this case illustrates the process of court-annexed
mediation and how cases are handled when a settlement is not reached. It
demonstrates that failure at mediation does not preclude litigation, but it
reinforces that the attempt at mediation is part of the mandated process. It also
highlights the importance of party and counsel attendance in mediation.

Introduction to law.