Authored by: Anne Edith pepera & Amerit Timothy
Introduction and Background[1];
A precedent is every decision of one of the superior courts[2] which has not been reversed on appeal or overruled that is in the hierarchy binding on subordinate courts. It can also be a judgment or decision of a court of law cited as an authority for deciding a similar set of facts; a case which serves as an authority for the legal principle embodied in its decision.[3] The rule of adherence to judicial precedents[4] finds its expression in the doctrine of Stare decisis[5] which is simply that when a point or principle of law has been once or officially decided by a ruling of a competent court, it will no longer be considered as open to examination by the same court or by those bound to follow its adjudications unless it be by urgent reasons or in exceptional cases.[6] The above position be as it may, where there is no existing precedent, the court will “declare” the law and the case will become an original precedent[7]. Precedent provides consistency and predictability in the law.
The doctrine of judicial precedent is at the heart of the common law system of rights and duties. The courts are bound (within prescribed limits) by prior decisions of superior courts. Adherence to precedent helps achieve two objects of the legal order. Firstly it contributes to the maintenance of a regime of stable laws. This stability offers predictability to the law and affords a degree of security for individual rights. Secondly it ensures that the law develops only in accordance with the changing perceptions of the community and therefore more accurately reflects the morals and expectations of the community.
As noted above, the doctrine of precedents is historically associated with the common law[8] and Uganda being a former British colony, the British practiced the English common law to maintain the legal system of their colony. Indeed the doctrine of precedents was a colonial usage in Uganda hence among others in the case of Rex vs. Amkeyo[9] relying on the case of Hyde vs. Hyde[10] as a precedent in defining what amounts to a marriage, Hannington CJ held that such marriage in a accordance with the Ugandan custom was not a legal marriage; a case of wife purchase and did not give rise to a marriage as under stood by the civilized people. Interestingly so, the case of Amkeyo8 demonstrates the possibility of the formal legal system imposing its values and concepts on something that is governed by a different social-culture context, Hamilton CJ is quoted having said; “… in my opinion the use of the word marriage describe the relation entered into by an African Native with a woman of his tribe according to tribal custom is a misnomer which has led in the past considerable confusion of ideas…..” The irony of the case is that the English law eventually recognized the assertion that prior to marriage being recognized as a partnership of equals in England, a wife was regarded as the subservient chattel of her husband[11]. Hamilton further asserts, “… I do not thing that … it can be said that a native custom (marriage) approximates in any way to the legal ideas of marriage.”
There are two categories of precedents; these include; firstly,
Vertical vis-à-vis Horizontal precedents. A Vertical precedent means that a lower court is bound by the decisions of the higher court while a Horizontal precedent means that a court is bound by its own decision.
The second category is the
Binding vis-à-vis Persuasive precedents. A Binding precedent is a principle of law that is mandatory for courts to follow in their judicial hierarchy. A ratio decidendi[12] is the principle of law on which a decision is based. As noted already, a precedent that must be applied or followed is known as a binding precedent or mandatory precedent. Under the doctrine of state decisis, a lower court must have regard to mandatory precedent when deciding a case. Mandatory precedent is usually created by a higher court and is binding on lower courts. By definition the decisions of lower courts are not binding on higher courts, although higher courts may often adopt the legal reasoning of lower courts.
One law professor has described mandatory precedent as follows:
‘Given a determination as to the governing jurisdiction, a court is "bound" to follow a precedent of that jurisdiction only if it is directly in point. In the strongest sense, "directly in point" means that:
a) the question resolved in the precedent case is the same as the question to be resolved in the pending case,
b) resolution of that question was necessary to disposition of the precedent case;
c) the significant facts of the precedent case are also present in the pending case, and
d) no additional facts appear in the pending case that might be treated as significant.[13]’
The above position be as it may, in extraordinary circumstances a higher court may overturn or overrule mandatory precedent, but will often attempt to distinguish the precedent before overturning it, thereby limiting the scope of the precedent in any event. In a case of first impression there is no mandatory precedent for the court to consider.
According to Black’s Law Dictionary,[14] a Persuasive precedent or advisory precedent is one that is not binding on a court, but is entitled to respect and careful consideration. In a case of first impression, courts often rely on persuasive precedent from courts in other jurisdictions that have previously dealt with similar issues. Persuasive precedent may become binding through the adoption of the persuasive precedent by a higher court. Some of the examples of persuasive precedents include;
(a) Decisions of English courts lower in the hierarchy. For example, the House of Lords may follow a Court of Appeal decision, and the Court of Appeal may follow a High Court decision, although not strictly bound to do so; for instance, the marital rape case,[15] where the House of Lords followed the decision of the Court of Appeal and held the husband to be liable.
(b) Decisions of the Judicial Committee of the Privy Council, for example, The Wagon Mound case[16] which is the leading authority on remoteness of damage in the tort of negligence.
(c) Decisions of the courts in Scotland, Ireland, the Commonwealth (especially Australia, Canada and New Zealand), and the USA. These are usually cited where there is a shortage or total lack of English authority on a point[17].
In Uganda today, it can be said that the application of the doctrine of precedents ended with colonialism in Uganda basing on the following;
Following the independence of most African states, decisions of the Privy Council were no longer binding on the former protectorate states and significant legal decisions were taken to try and redress the imbalance and prejudice towards customary marriages. A good case is one of Alai vs. Uganda[18], where it was held, that “any married woman” in Sec 150 A penal code, means any woman married to any man irrespective of the form of such marriage, provided that such marriage has been conducted in one of the forms recognized by the people of Uganda, including marriages according to the customs of the people. Currently customary marriages have been legally accepted but that was not so until the year 1973 when the customary registration decree[19] was enacted, it supports polygamy and awards privileges of the law to those married under customary law as married persons.
Article 132 (4)[20] empowers the Supreme Court to depart from its previous decision when it appears to it right to do so. Under exceptional circumstances, the Court of Appeal and its subordinate courts may avoid ordinarily binding precedents. In the case of Attorney General vs. Uganda Law Society,[21] the Supreme court with reference to the Court of Appeal and its subordinate courts held that; “under the doctrine of Stare decisis a court of law is bound to adhere to its previous decisions except where the previous decision is distinguishable or was overruled by a higher court on appeal or was arrived at per incurium.”
A previous case is only binding in a later case if the legal principle involved is the same and the facts are similar. Distinguishing a case on its facts, or on the point of law involved, is a device used by judges to usually in order to avoid the consequences of an earlier inconvenient decision which is, in strict practice, binding on them. Of great importance to look at is the case where the defendants had stabbed the victim who received negligent medical treatment cases[22]. This case was distinguished from another case[23], where the victim died of pneumonia and the chain of causation broken. Further to, the renown case of Balfour v Balfour[24] was distinguished in Merritt v Merritt[25]. As a matter of judicial practice, any judge can distinguish a precedent on minute details and the differences can sometimes seem illogical. It’s worth of note still, that distinguishing does allow judges to develop the law and create exceptions to a general rule established in a previous case. If a judgment goes to appeal the appellate court will have the opportunity to review both the precedent and the case under appeal and perhaps overruling the previous case law by setting a new precedent of higher authority. This may happen several times as the case works its way through successive appeals. Lord Denning, first of the High Court of Justice, later of the court of appeal provided a famous example of this evolutionary process in his development of the concept of estoppels staring in the high tree case[26].
It’s noteworthy that the House of Lords was not bound by its own previous decisions until the case of London Street Tramways v London County County Council[27] when it bound itself in the interests of certainty. Then came the Practice Statement[28], issued by the LC, stated that although the House of Lords would treat its decisions as normally binding it would depart from these when it appeared right to do so.
However, the Practice Statement has seldom been applied by the House of Lords, usually only as a last resort. As of 2005, the House of Lords has rejected its past decisions no more than 20 times. They are reluctant to use it because they fear to introduce uncertainty into the law. In particular, the Practice Statement stated that the Lords would especially be reluctant to overrule themselves in criminal cases because of the importance of certainty in the law here. The first case involving criminal law to be overruled with the Practice Statement was Anderton vs Ryan[29], which was overruled by R vs Shivpuri[30], two decades after the Practice Statement. Remarkably, the precedent overruled had been made only a year before, but it had been criticized by several academic lawyers. As a result, Lord Bridge stated he was "undeterred by the consideration that the decision in Anderton v Ryan was so recent. The Practice Statement is an effective abandonment of our pretention to infallibility. If a serious error embodied in a decision of this House has distorted the law, the sooner it is corrected the better."[31] Still, the House of Lords has remained reluctant to overrule itself in some cases; in R v Kansal (2002), the majority of House members took the view that R v Lambert had been wrongly decided, but declined to depart from their earlier decision.
In the United States Supreme Court, the doctrine of precedent is most flexible in constitutional cases. Stare decisis is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than that it be settled right. But in cases involving the Federal Constitution, where correction through legislative action is practically impossible, this Court has often overruled its earlier decisions. This is strikingly true of cases under the due process clause[32]. For example, in the years 1946-1992, the U.S. Supreme Court reversed itself in about 130 cases.[33] The U.S. Supreme Court has further explained that ‘[W]hen convinced of former error, this Court has never felt constrained to follow precedent. In constitutional questions, where correction depends upon amendment, and not upon legislative action, this Court throughout its history has freely exercised its power to reexamine the basis of its constitutional decisions.’[34]
In light with the above argument, the Court of Appeal of Uganda is bound by decisions of the Supreme Court even if it considers them to be wrong. In Paul K. Ssemogerere and others vs. Attorney General,[35] Odoki CJ citing the case of Young vs. Bristol[36] held that the doctrine of precedent requires lower courts to follow decisions of higher courts on questions of law, but that the doctrine also laid down instances where a court isn’t bound to follow its own decisions. It was further stated that the principle of Stare decisis is followed by the court subject to the following qualifications; firstly, that the court is entitled and bound to decide which of two conflicting decisions of its own it will follow. Secondly, that the court would be bound to refuse to follow a decision of its own which though not expressly overruled cannot stand with the decision of the Privy Council or the House of Lords. Thirdly, that the court is not bound to follow a decision of its own if it is certified that the decision was given per incurium. By virtue of the above exceptions; courts may depart from what would ordinarily be binding precedents. This case in essence allowed the Court of Appeal to correct its mistakes, which is especially important as it hears the most appeal cases compared to the House of Lords. In the criminal division, in addition to the case of Young[37] exceptions, precedent is not followed as rigidly because a person's liberty may be at stake. In R v Taylor[38] the Court of Appeal held that if ‘the law has either been misapplied or misunderstood’ then it must reconsider the earlier decision.
In the case of Uganda Law Society vs. Attorney General,[39] the Court of Appeal sitting as the Constitutional court held among others that the General Court Martial is not subordinate to the High Court. In this decision the court departed from its earlier decision in Joseph Tumushabe vs. Attorney General,[40] where it held that the General Court Marital is subordinate to the High court for purposes of the provisions of Article 23 (6) of the Constitution.
The Judicature Act[41] provides among others that the common law shall be in force only in so far as the circumstances of Uganda and of it is people permit, and subject to such qualifications as circumstances way render necessary. The implication of this provision is reflected in the earlier case of Alai vs. Uganda,[42] where similarly to the case of Rex vs. Amkeyo, the definition of marriage in the English context could not suit the Ugandan situation. In this case however, it was held that marriage included marriage contracted in accordance with any customary law recognized by the laws of Uganda.
In Practice Directions (HL);[43] it was stated that their Lordships regard the use of precedent as an indispensible foundation upon which to decide what is the law and its application to individual cases: their Lordships nevertheless recognize that too rigid adherence to precedent may lead to injustice to a particular case and also restrict the proper development to the law[44]. They propose therefore to modify their present practice and while treating their former decisions as normally binding to depart from previous decisions when it appears right to do so.[45]It’s noteworthy that pursuant to the Human Rights Act 1998, English courts must have regard to decisions of the European Court of Human Rights. In light with that proposition the Court of Appeal of England in Re Medicaments[46] refused to follow a decision of the House of Lords in R v Gough[47] because it was different to decisions of the ECHR.
The aspect of Judicial Activism; by virtue of Article 126 (1)15 Judicial power is to be exercised in conformity with the law and with the values, norms and aspirations of the people. Judicial Activism is a judicial philosophy which motivates Judges to depart from strict adherence to Judicial Precedents in favor of progressive and new social policies which are not always consistent with the restraint expected of appellate judges.[48] The most important development in judicial activism was manifested in the case of Brown v Board of Education[49] when the court, under the leadership of Chief Justice Earl Warren, disallowed racial segregation in public schools and extended that prohibition to all public facilities, thereby overturning the earlier decision in Plessy v Ferguson[50] that blacks could be treated as a separate class but must be provided with equal facilities. Thus, in light of the above, the American government adopted the policy of affirmative action in order to improve the economic conditions of the blacks and also to remove the sense of injustice blacks as a group had nurtured. The supreme court therefore sustained the legislative measures enacted in this regard and in H. Earl Fullilove v Phillip m Klutzniok,[51] a provision in the Public Works Employment Act 1977 requiring states to procure services or supplies from businesses owned by minority group members was upheld declaring that it is a necessary step to effectuate the constitutional mandate for equality of economic opportunity.
In a Ugandan case of Tinyefuza V Attorney General,[52] the constitutional court held inter-alia, “...while the language of the constitution does not change, the changing circumstances of progressive society for which it was designed may give rise to new and fuller import to its meaning. A constitutional provision containing a fundamental right is a permanent provision intended to cater for all time and, therefore, while interpreting such a provision, the approach of the court should be dynamic, progressive and liberal or flexible keeping in view ideals of the people, social-economic and politico-cultural values so as to extend the benefit of the same to the maximum possible.” This reflects an interpretation beyond the provisions of the constitution.
In Uganda, judicial activism can be traced back as far as 1900 in the repugnancy doctrine. Under the 1902 Order in Council, the operation of native law was provided for in cases in which natives were party and the Order in Council enjoined the commissioners to respect existing native law in the process of making laws.[53] However, customary law was respected only in so far as it was not repugnant to “justice and morality” or inconsistent with colonial laws. For instance, the 1900 Buganda agreement subjected sentences made by native courts to the test of “humane principles.”[54]The rationale for the repugnancy doctrine was entrenched in the colonialists’ claims to be on a quest to civilize the ‘dark’ continent and to bring light to a continent where it saw life as nasty, brutish and short. This doctrine was applied with devastating effect to discredit or overturn African customary practices for being repugnant to justice and morality. In Mwenge v Migadde[55], the plaintiff had challenged the competence of the defendant to sell a piece of land on the basis that it was communal “bataka” land thus could not be disposed of by an individual. The court rejected the argument on the grounds that as a result of the Buganda Agreement, Bataka tenure no longer existed. The judge stated that “if the provisions of any law are repugnant to the continued existence of any custom…the custom must be treated as destroyed”
Judicial activism attempts to remove the barriers that prevent people from enjoying the full corpus of rights due to them. For instance, some legislation are not seen to reflect social values but rather pre-occupied with expediency and power politics with minimal protection to those who are politically powerless. Further, judicial activism is important because of the transitory nature of society. As such, the permanent values embodied in the constitution need interpretation in the context of the changing social and economic conditions which are transitory in nature. Through judicial activism, the constitutional court undertakes the delicate task of reconciling the permanent with the transitory. In Uganda for instance, efforts have been made to address imbalances to women created by cultures as well as often discriminatory and marginalising actions of the state,[56] such as lack of enabling legal and policy framework. In such circumstances, activists employ great creativity in addressing the often adverse conditions in which they find themselves. In the words of Mpagi-Behgeine J.A in Uganda Association of Women Lawyers v Attorney General[57], that “where parliament procrastinates, the courts of law should not hesitate to fill the void when called upon to do so or whenever the occasion arises.”
Judicial activism can occur when a judge ignores the principles of precedent and stare decisis. Humility and self restraint require the judiciary to adhere to its limited role and recognize that where applicable precedent exists, courts are not free to ignore it. Mere disagreement with a result is insufficient to justify ignoring applicable precedent, but reconsideration under appropriate circumstances is also necessary. There are clear examples like Brown v Board of Education[58], where revisiting a precedent is not only right, but it is also prudent. Any decision to revisit a precedent should follow only the most careful consideration of factors that courts have deemed relevant to that question. Thus, whether the prior decision is wrong is only the beginning of inquiry. Further to, the court must also consider other factors, such as whether the prior decision has proven unworkable, whether developments in the law have undermined the precedent and whether legitimate reliance interests to militate against the overruling. Judicial activism characterized by moderation and self-restraint is bound to restore the faith of the people in the efficacy of the democratic institutions which alone, in turn, will activate the executive and legislature to function effectively under the vigilant eye of the judiciary as ordained by the constitution.
However despite the above discussion, it is clear that the doctrine of precedents is still adhered to in Uganda today. This is expressed in the following;
By virtue of Article 132(4) and the doctrine of precedents which is now constitutionalised under this Article;[59] all other courts are bound to follow the decisions of the Supreme Court on questions of law and the Supreme Court may also opt to be bound by its own former decisions. It follows that the decisions of the Court of Appeal bind the High Court and all courts below it and the decisions of the High Court bind all the Magistrate courts. For example in Attorney General vs. Uganda Law Society[60] the Supreme Court opted to be bound by its earlier decision in Attorney General Vs. Joseph Tumushabe[61] in holding that the General Court Martial is not equivalent but subordinate to the High Court. This case[62] is a precedent binding on the Court of Appeal, the High Court and the lower courts and this decision also overruled the decision in Uganda Law Society vs. Attorney General,[63] where the Court of Appeal sitting as the Constitutional Court held that the General Court Martial is not subordinate to the High Court.
As a general rule, the Court of Appeal is bound by its own previous decisions and by the decisions of the Supreme Court. In Attorney General vs. Uganda Law Society,[64] the Supreme Court in discussing the circumstances under which the Court of Appeal sitting as the Constitutional Court in Uganda Law Society vs. Attorney General[65] departed from its earlier decision in Joseph Tumushabe vs. Attorney General,[66]stated that the court had no valid basis for departing from its previous decision and that to permit one panel of the Court of Appeal to overturn a precedent set by another on such pretext as in that case, would lead to the antithesis of the doctrine of Stare decisis and would be a recipe for uncertainty, instability and unpredictability of the law that the courts have the responsibility to interpret and apply.
A higher court can overrule a decision made in an earlier case by a lower court e.g, the Court of appeal can overrule an earlier High Court decision; just as much as the European Court of Justice (ECJ) and House of Lords can also overrule their own previous decisions.
Overruling can occur under any of the following instances;
a) Where the previous court did not correctly apply the law, for example, the overruling of Anderton v Ryan[67] by the House of Lords in R v Shivpuri[68] concerning the Criminal Attempts Act 1981; or
b) An instance where the later court considers that the rule of law contained in the previous case is no longer desirable. For example, the House of Lords' decision in Miliangos v George Frank Ltd[69] which overruled previous authority that judgments could not be given in foreign currency.
Essentially, over-ruling means proving the previous case was wrong and therefore changing the “leading case” in that aspect of law. However, the decision in the previous case is not actually changed itself.
Over-ruling can only be done by a court with authority to over- rule, eg, the HC cannot over- rule the Court Appeal but the Court Appeal can over-rule the High Court. Over-ruling can also be criticized on the ground that law making should be left to Parliament and not done by judges. It is a way o f correcting mistakes made by the lower courts.
Another mode in which a precedent can be avoided is through reversing a decision of court. Reversing is the overturning on appeal by a higher court, of the decision of the court below that hearing the appeal. The appeal court will then substitute its own decision. R v Kingston[70] where the House of Lords reversed the decision of the Court of Appeal and held that involuntary intoxication will not be a defence unless it prevents the defendant forming mens rea for the crime charged even though the defendant was not at fault for becoming intoxicated. This can only be carried out by a court with enough authority, such as a Divisional Court, the Court of Appeal or House of Lords. Most cases stop at the Court of Appeal and do not go to the House of Lords.A precedent may also be avoided when judges disapprove with the precedent. Judges may disapprove of a precedent, which they are nevertheless bound to apply, in the hope that it will be reconsidered. A superior court may also disapprove of a precedent created by a lower court without actually over- ruling it. An example of the former is Elliott v C[71] where Lord Justice Goff disapproved of the House of Lord’s decision in R v Caldwell[72] which established objective recklessness. An example of the latter is B v DPP[73] where the House of Lords disapproved of the strict liability case, R v Prince[74]. Criticism may persuade a court to overrule a heavily criticized precedent.
The practice Statement of 1966 is another mode in which the courts have been able to avoid precedents. The practice statement was accompanied by a press release, which emphasized the importance of and the reasons for the change in practice. Its rational was to enable the House of Lords to adapt English law to meet changing social conditions. It also aimed at enabling the House to pay more attention to decisions of superior courts in the Commonwealth. The change would bring the House into line with the practice of superior courts in many other countries. In the USA, for example, the US Supreme Court and state supreme courts are not bound by their own previous decisions. In the case of R v Howe[75] the HL declined to follow the decision in Lynch v DPP for N. Ireland [76] where they had held that duress was available as a defence to accomplices to murder. However, the practice statement has been rarely used by the House of Lords.
In determining the case of Uganda Law Society vs. Attorney General,[77] the case of Attorney General vs. Joseph Tumushabe in the Supreme Court had not yet been disposed hence the Court of Appeal decision in Joseph Tumushabe vs. Attorney General was the precedent binding on the Court of Appeal. The Court however departed from this decision.
The High Court is not bound by its own decisions however the High Court and its lower courts are by virtue of Articles 132(4), 137(6)[78] and the doctrine of precedents bound by the decisions of the Supreme Court and the Court of Appeal.
The Judicature Act,[79] also provides that the High Court in exercising its jurisdiction may among others apply the common law in adjudicating matters civil or criminal. This establishes the common law which is judgment law as a source of law in Uganda hence the doctrine of precedents.
In the case of Suzan Kigula and 416 others vs. Attorney General,[80]it was held that the decisions from foreign jurisdictions with similar Constitutions as ours and those of international Courts and bodies interpreting the inherent meaning of fundamental rights are relevant to the interpretation of the fundamental rights and freedoms of individuals in our Constitution and are useful in helping in the interpretation of our Constitution. These are persuasive precedents.
Obiter dictum[81] and Dissenting judgments may apply as persuasive precedents. A Dissenting judgment is the ruling of the minority whereas an Obiter dictum is where in the judgment, the judge goes on to speculate what his decision would have been had the facts been different. An example is in the case of Attorney General vs. Paul K. Ssemogerere and Hon. Zachary Olum,[82] where one of the issues raised concerned the application of the doctrine of prospective overruling and the Supreme Court despite finding that the doctrine did not apply in the given case, went ahead to in-depthly discuss it.
The doctrine of precedent has some merits and Relevancy in the legal conceptualizations, namely:-
a) It creates certainty and consistency, every time a similar situation comes up for decision before a lower court, the judges need not speculate on what the law is , they look at and stand by the decided cases. By looking at existing precedents it is possible to forecast what a decision will be and plan accordingly.
b) The doctrine provides details of the case. The judge normally gives a detailed reasoning for his decision unlike a mere section of the law which does not provide the rationale for its enactment. This element is helpful to legal researchers, lawyers and judges. Common law courts generally explain in detail the legal rationale behind their decisions with citations of both legislation and previous relevant judgments which constitute a precedent binding on other courts.
c) Case law is developed out of practical problems and as a result it keeps pace with the changing needs of society.
d) There is uniformity in the law. Similar cases will be treated in the same way. This is important to give the system a sense of justice and to make the system acceptable to the public.
e) Judicial precedent is flexible. There are a number of ways to avoid precedents and this enables the system to change and to adapt to new situations. Despite this position, many scholars have criticized case law as being rigid since it ignores the changing environment.
f) Judicial precedent is practical in nature. It is based on real facts, unlike legislation.
The fore captioned merit notwithstanding, one critique of the use of precedent has been made in a controversial 1997 book by attorney Michael Trotter. He blamed the tendency of American lawyers to cite both binding and persuasive authority as one of the major factors behind the escalation of legal costs during the 20th century. He argued that courts should ban the citation of persuasive precedent from outside their jurisdiction, with two exceptions:
i. cases where the foreign jurisdiction's law is the subject of the case, or
ii. instances where a litigant intends to ask the highest court of the jurisdiction to overturn binding precedent, and therefore needs to cite persuasive precedent to demonstrate a trend in other jurisdictions[83]
The doctrine of precedents has been discouraged and seen to be disadvantageous for the following reasons:-.
a) The doctrine of precedent is seen to be rigid
b) It destroys the original thinking or reasoning of the judge of a subordinate court because he has to follow what is already there. It undermines the thinking of the lower courts and judges.
c) When there a rises a conflict with the statute, the statute prevails.
d) It is an incomplete system without equity and justice.
e) Difficulties can arise in deciding what the ratio decidendi is, particularly if there are a number of reasons.
f) There may be a considerable wait for a case to come to court for a point to be decided.
g) Cases can easily be distinguished on their facts to avoid following an inconvenient precedent.
h) There is far too much case law and it is too complex.
It’s pertinent to note that in order for the doctrine of precedent to operate and expand, an efficient system of law reporting is required. The idea of law reporting can be traced in the following;
a) From 1535 –1865 cases were reported by individuals who sold them to lawyers but their accuracy varied from reporter to reporter.
b) The Incorporated Council of Law Reporting was set up in 1865 and controlled by the courts. It produces the official law reports which are written by trained barristers.
c) Other reports include the All England Law Reports published by Butterworths and The Times Law Reports.
d) Law reports are now available online from, e.g. the Court Service website and BAILII.
Law reporting in Uganda has been very weak and thus very few law reports have been published in Uganda since 1958. The law development center is mandated to prepare and publish law reports and other legal materials but so far have published only the High Court Bulletins, which incidentally is not a very exhaustive Law Report. As a result there has been avoid in the availability of published judgments as lawyers and other stake holders are forced to depend on photocopies of judgments which they request from the courts. That be as it may, Uganda judgments are notably reported in the following Law Reports:
East Africa Law Reports; the reports covered decisions of court of appeal for East Africa and superior courts of the continental territories, i.e. Kenya, Uganda, Tanzania, Aden, Seychelles and Somalia. The east Africa law reports were published from 1957 to 1975 when they collapsed following the dissolution of the east African community. They have been reintroduced by the law Africa with the launch of the EA 2000.
Uganda Commercial Law Reports- the reports cover decisions of the commercial division of the high court since its establishment in 1996. The first in series of the law reports was in 1997 – 1998 UCL was launched in November 2005 by the chief justice Benjamin Odoki.
Tax Appeals Tribunal Compendium of Judgments and Rulings. Covers decisions of the Tax Appeals Tribunal.
Kampala Law Reports-published by the private practicing lawyer[84].
High Court Bulletin- published by the Law Development Center.
Uganda Law Reports-last published in 1957.
Law Reports of the Court of Appeal of Eastern Africa- reporting decisions of the defunct Court of Appeal of Eastern Africa.
I think it’s pertinent for me to briefly outline the basic Criteria that is followed for reporting cases. Some of these criterions include;
a) When a case lays down a new principle of law not clearly stated before or recognized then there will be a need to include it in the law reports.
b) If it has departed from other cases then there will be need to report it.
c) When it explains a recognized principle of law to resolve uncertainty.
d) A case which involves application of English decisions in conditions of Africa
e) A case which merely reports statutory laws is not reported because it has nothing new to talk about.
f) It is reported if it expands or gives a new meaning to the statutory provisions.
g) A case where decision is based on facts only and no legal rule has come into play, then it is normally not reported.
h) A case laying down an important rule of practice may be reported.
i) A case which makes a statement about customary law may be reported because there is no other record on customary law.
j) Where a case comes up with principles which needs the attention of the legislature to amend a particular provision then it will be reported
Conclusion; In conclusion therefore, it’s proper to say that the doctrine of precedents although limited by a number of exceptions in its application, is still adhered to in Uganda today by virtue of the Constitution of Uganda, 1995, as Amended, the laws of Uganda and the doctrine of Stare decisis which is applicable in Uganda and is- as stated in the case of Attorney General vs. Uganda Law Society,[85] it is a cardinal rule in our jurisprudence.
BIBLIOGRAPHY:
Statutes:
1. The Constitution of the Republic of Uganda, 1995 as Amended
2. The Judicature Act Cap 13 as Amended.
Text Books:
1. Machaha Wandera Livingstone: A simple Guide to the Introduction of law.
2. Glanville Williams: Learning the Law 13th Edition
3. William M. Lile et al. Brief making and the use of law books 3rd Edition 1914 pg. 321
4. Black’s Law Dictionary, 8th Edition Bryan A Garner Editor in Chief.
5. Marjorie D. Rombauer, Legal Problem Solving: Analysis, Research and Writing, pp. 22-23 (West Publishing Co., 3d ed. 1978). (Rombauer was a professor of law at the University of Washington)
6. Michael H. Trotter, Profit and the Practice of Law: What's Happened to the Legal Profession (Athens, GA: University of Georgia Press, 1997), 161-163.
Cases:
1. Practice Directions (House Lords) (1966) 3 ALL E.R 77
2. Attorney General vs. Uganda Law Society. Supreme Court Constitutional Appeal No. 1 of 2006.
3. Attorney General vs. Joseph Tumushabe. Constitutional Petition No. 3/2006.
4. Uganda Law Society vs. Attorney General. Constitutional Petition No. 6. Of 2004.
5. Joseph Tumushabe vs. Attorney General. Constitutional petition No. 6. 2004.
6. Hyde vs. Hyde (1866) ARIPP 130
7. R vs. Amkeyo (1917) 7 APLR 14.
8. Alai vs. Uganda 1967 EA 596
9. Paul K. Ssemogerere and others vs. Attorney General Constitutional Appeal No. 1 of 2002.
10. Young vs. Bristol. Aero plane Company Limited 1944 KB 718
[1] Authored by: Anne Edith pepera & Amerit Timothy
[2]Article 129 (2) of the Constitution of the republic of Uganda, 1995, As Amended
[3]Machaha Wandera Livingstone: A simple Guide to the Introduction to Law. Page 46
[4] William M. Lile et al
[5]According to Black’s Law Dictionary (8th Edition 1914 pg. 1537): means to stand by the things decided.
[6]Brief making and the use of Law Books.3rd Edition 1914 page 321.
[7] See the cases of Airedale NHS Trust v Bland (1993) & Re S (adult: refusal of medical treatment) (1992).
[8] Also known as judgment law is defined under Section 2(n) of the Interpretation Act Cap 3 to mean the common law of England.
[9](1917) EAPLR.14
[10] (1866) ARIPP 130: In this case it was held that a marriage is the voluntary union for life of one man and one woman to the exclusion of others.
8 1917, 7, E.A.L.R. 14.
[11] Per Lord Kinkel in R V. R (1991)
[12] This is the reason behind a decision in a judgment which make the future precedent. The reason for a decision in the earlier case is normally found in the judgment and it becomes the principle of law to be applied in future cases.
[13] Marjorie D. Rombauer, Legal Problem Solving: Analysis, Research and Writing, pp. 22-23 (West Publishing Co., 3d ed. 1978). (Rombauer was a professor of law at the University of Washington)
[14] 8th Edition Bryan A Garner Editor in Chief
[15] R v R (1991)
[16] (1961)
[17]See Re S (adult: refusal of medical treatment)(1992).
[18] (9167) E.A 596
[19] Decree No. 16/1973, Laws of Uganda.
[20]The Constitution of the republic of Uganda, 1995, As Amended
[21]Constitutional Appeal No.1 of 2006
[22]R v Smith
[23] R v Jordan
[24] (1919)
[25] (1971)
[26] Central London Property Trust Ltd Vs High Trees House Ltd (1947) KB 130
[27] (1898) AC 375
[28] (1966)
[29] (1985)
[30] (1986)
[31] Martin, Jacqueline (2005). The English Legal System (4th ed.), p. 25. London: Hodder Arnold. ISBN 0- 340-89991-3
[32] Burnet v. Coronado Oil & Gas Co., 285 US 393, 406- 407, 410 (1932) (Brandeis, J., dissenting).
[33] Congressional Research Service, Supreme Court Decisions Overruled by Subsequent Decision (1992).
[34] Smith vs Allwright, 321 US 649, 665 (1944).
[35] Constitutional Appeal No.1 of 2002
[36] Aero plane Company Limited [1944] KB 718
[37] Supra
[38] [1950] 2 KB 368
[39]Constitutional Petition No. 18/05
[40] Constitutional Petition No. 6 of 2004
[41] Section 14 (3) Cap13 As Amended of the laws of Uganda
[42] [1967] E.A 596
[43](1966) 3 ALL E.R 77
[44] Glanville Williams: Learning the Law 13th Edition
[45] This position is reflected under Article 132 (4) of the constitution of the Republic of Uganda, 1995, As Amended.
[46] (2001)
[47] (1996)
[48]The Constitution of the Republic of Uganda, 1995, As Amended
[49] 347 U.S 483 (1954)
[50] 163 U.S 537 (1896)
[51] 448 U.S 448 (1977)
[52] Constitutional Petition No. 1 of 1996
[53] S.20 of 1920 Order in Council
[54] Article 6 stipulated that in case of any sentence imposed by the kabaka’s courts which seemed inconsistent with human principles, the representative of the crown had the right of remonstrance with the kabaka who was to reconsider the sentence.
[55] (1932-5)ULR 97
[56] Uganda Association of women lawyers V Attorney General, const petition No.2 of 2003, the court declared that grounds of divorce now apply to both men and women.
[57] Constitutional petition No.2 of 2003
[58] Supra
[59] Per Odoki CJ, In the case of Ssemogerere and others vs. Attorney General Constitutional Appeal No. 1 of 2002l
[60] Constitutional Appeal No. 1 of 2006
[61] Constitutional Appeal No. 3 of 2005
[62] Attorney General vs. Uganda Law Society (Ibid 21)
[63] Constitutional Petition No. 18 of 2005
[64] Supra 23
[65] Constitutional Petition No. 18/05
[66] Constitutional Petition No. 6 of 2004
[67] [1985] 2 All ER 335
[68] [1986] 2 All ER 334
[69] [1975] 3 All ER 801
[70] (1994)
[71] (1983)
[72] (1981)
[73] (2001)
[74] (1875)
[75] (1987)
[76] (1975)
[77] Supra 26
[78]The Constitution of the republic of Uganda, 1995, As Amended
[79] Section 14 (3) Cap 13 as Amended of the laws of Uganda
[80]Constitutional Petition No. 6 of 2003
[81] Is defined as the statement of law in a judgment which could not logically be a major premise of the selected facts of the decision, it is a conclusion based on a fact the existence of which has not been determined by court. It also constitutes persuasive authority but not technically binding; by contrast decisions in civil law jurisdictions generally very short referring only to statutes. The reasons for this that these civil law jurisdiction adheres to a tradition that the reader should be able to deduce to logic from the decision and statutes so that in some cases it is somewhat difficult to apply previous decisions to the facts presented in future cases.
[82]Constitutional Appeal No. 3 of 2004
[83] Michael H. Trotter, Profit and the Practice of Law: What's Happened to the Legal Profession (Athens, GA: University of Georgia Press, 1997), 161-163.
[84] Laudicious Rwakafuzi
[85]Constitutional Appeal No. 1 of 2006
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