Uganda’s Legal System and Legal Sector

 

By Brenda Mahoro

 

Brenda Mahoro is a Ugandan lawyer and legal editor working as a Consultant with the High Court of Uganda, Commercial Division as editor for the Court Reporting Office.  She is the editor of the Uganda Commercial Law Reports.

 

Published August 2006

 

Table of Contents

Introduction

Structure of the Government

Applicable Law

Legal Sector

                The Ministry of Justice and Constitutional Affairs

                The Judiciary

                Supreme Court

                Court of Appeal / Constitutional Court

                High Court

                Sources of Legislation

                Sources of Case Law

                Law Libraries

                Online Legal Resources

Present Structure of Legal Education in Uganda

                The Legal Profession

                Main Legal Reference Books and Legislation

 

Introduction

General knowledge

Uganda is a landlocked country located in East Africa .  The country is a republic, and achieved this status on October 9, 1962 when the country attained independence from British colonial rule. Uganda had been a protectorate of the United Kingdom from 1894 to 1962.  Since 1962, Uganda has had 6 presidents and suffered political instability and turmoil. Currently, President Yoweri Kaguta Museveni is the President of Uganda. He came into power in 1986 after an armed struggle against the regime of the late Gen. Tito Okello.  In 1996, presidential elections were held and Museveni was elected as president.  He won the subsequent elections held in 2001, and the recent elections held in February 2006. 

 

Structure of the Government

The 1995 Constitution established Uganda as a republic with an executive, legislative, and judicial branch. The three branches operate as follow:

 

• The Executive branch Cabinet. The Executive branch is headed by the President who is assisted by the Vice President, the Prime Minister and Cabinet Ministers.
• The Judiciary. It is formed by the various courts of judicature, which are independent of the other arms of government. They include the magisterial courts, High Court, Court of Appeal and the Supreme Court.  The Judiciary is headed by the Chief Justice and deputized by the Deputy Chief Justice.
• The Parliament: This is the legislative arm of the government. It consists of 305 members most of whom were elected through the ballot box except a few special interest groups like the army, women, youth and the disabled whose representatives were elected by Electoral Colleges.

 

The roles and powers of each of the Government arms are enshrined and spelt out in the Uganda Constitution 1995.

 

Applicable Law

Given that Uganda was a British colony, the English legal system and law are predominant in Uganda .  Uganda 's legal system is based on English Common Law and African customary law. However, customary law is in effect only when it does not conflict with statutory law.   The laws applicable in Uganda are statutory law, common law; doctrines of equity and customary law are applicable in Uganda .  These laws are stipulated by the Judicature Act. [1]

 

The Constitution is the supreme law in Uganda and any law or custom that is in conflict with it is null and void to the extent of the inconsistency. Uganda has adopted 3 constitutions since her independence. The first was the 1962 constitution which was replaced by the 1967 constitution. In 1995 a new constitution was adopted and promulgated on October 8, 1995 . The constitution provides for an executive president, to be elected every 5 years. Parliament and the judiciary have significant amounts of independence and wield significant power. Formerly, the constitution limited the president to two terms. However, in August 2005, the constitution was revised to allow an incumbent to hold office for more than two terms.

 

The other written law comprises statutes, Acts of Parliament and Statutory Instruments.  These are published in the national Gazette.

 

Legal Sector

The legal sector in Uganda comprises of various institutions concerned with the provision of legal services, the administration of Justice and the enforcement of legal instruments or orders.  The main institutions as established by the Uganda Constitution of 1995 include the Ministry of Justice and Constitutional Affairs, the Judiciary, the Parliament, the Uganda Police Force, the Uganda Law Reform Commission, the Uganda Human Rights Commission.  Furthermore, there are the legal education institutions such as faculty of law – Makerere University , the Law Development Center , professional bodies such as the Uganda Law Society, the Judicial Service Commission, and other organizations involved in legal sensitization, and advocacy.

 

The general the structure of Uganda ’s legal sector appears as follows:

·         Ministry of Justice and Constitutional Affairs

·         The Judiciary

·         Judicial Service Commission

·         The Law Reform Commission

·         The Electoral Commission

·         The Uganda Land Commission

·         Uganda Registration Services Bureau

·         Uganda Human Rights Commission

·         Kampala City Council

·         The Law Council

·         The Law Development Centre

 

The following institutions and departments are key players in the implementation of legal provisions and administration of Justice.

·         Uganda Police Force

·         Uganda Prison Service

·         Inspector General of Government

·         Parliamentary Commission

·         Ministry of Local Government

·         Ministry of Ethics and Integrity

·         Ministry of Water, Lands and Environment

·         National Environment Management Authority

The Ministry of Justice and Constitutional Affairs

The mandate of the ministry is:

 

“To promote and facilitate effective and efficient machinery capable of providing a legal framework for good governance and delivering legal advice and services to the Government, its allied institutions and the general public”.

 

Some of the roles of the Ministry include initiating and facilitating the revision and reform of Ugandan laws, providing an effective mechanism for their change, Advising the government on all legal matters; Drafting all proposed laws and legal documents; Instituting or defending civil suits in which Government and/or its allied institutions are party and ensuring that court decisions are satisfied; Overseeing the training of Lawyers; Promoting legal advice of the constitution, and Disseminating legal information to the public.

 

These are carried out through various directorates and departments of the Ministry such as the Directorate of Civil Litigation, the Directorate of Public Prosecution, Office of the First Parliamentary Counsel, the Administrator General’s office, and the Office of Legal Advisory Services.

The Judiciary

The Judiciary is an independent legal organ comprised of Courts of Judicature as provided for by the Constitution [2] . The Judiciary is entrusted to administer justice through courts of judicature including the Supreme Court, the Court of Appeal, the High Court and other courts or tribunals established by Parliament. The highest court in Uganda is the Supreme Court. The Court of Appeal is next in hierarchy and it handles appeals from the High Court but it also sits as the Constitutional Court in determining matters that require Constitutional interpretation. The High Court of Uganda has unlimited original jurisdiction.

 

Subordinate Courts include Magistrates Courts, and Local Council Courts, Qadhis' courts for marriage, divorce, inheritance of property and guardianship, and tribunals such as those established under the Land Act (Cap 227), Communications Act (Cap 106) and Electricity Act (Cap 145), and Tax Appeals Tribunal Act.

Supreme Court

The Supreme Court is the highest Court in Uganda , and is the final court of Appeal. The Supreme Court only decides cases on appeal from lower courts save for presidential election petitions, where the Supreme Court has original jurisdiction, which means that any aggrieved candidate in a presidential election has to petition the Supreme Court directly.  The decisions of the Supreme Court form precedents which all lower courts are required to follow.

 

The Supreme Court bench is constituted by the Chief Justice and not less than six Justices. Five Justices are sufficient to hear most cases, but when hearing appeals from decisions of the Court of Appeal, a full bench of seven justices has to be present. The decisions of the Supreme Court form precedents that all lower courts are required to follow.

Court of Appeal / Constitutional Court

The Court Appeal was established by the 1995 Constitution. It is an intermediary between the Supreme Court and the High Court and has appellate jurisdiction over the High Court. It is not a Court of first instance and has no original jurisdiction, except when it sits as a Constitutional Court to hear constitutional cases.

 

The Court of Appeal consists of: the Deputy Chief Justice and such number of Justices of Appeal not being less than seven as Parliament may by law prescribe.

 

Cases coming before the Court of Appeal may be decided by a single Justice.  Any person dissatisfied with the decision of a single Justice of Appeal is, however, entitled to have the matter determined by a bench of three Justices of Appeal, which may confirm, vary or reverse the decision.  Cases decided by the Court of Appeal can be appealed to the Supreme Court, but the Court of Appeal is the final court in election petitions filed after Parliamentary elections or elections provided for by the Local Government Act. When deciding cases as a Constitutional Court it sits with a bench of five judges.

High Court

The High Court of Uganda is the third court of record in order of hierarchy and has unlimited original jurisdiction, which means that it can try any case of any value or crime of any magnitude. Appeals from all Magistrates Courts go to the High Court. The High Court is headed by the Principal Judge who is responsible for the administration of the court and has supervisory powers over Magistrate's courts.

 

The High Court has five Divisions: the Civil Division, the Commercial Division, the Family Division, the Land Division and the Criminal Division.

 

Subordinate Courts include the Chief Magistrates Court , Industrial Court Magistrates Grade I and II Local Council Courts levels 3-1 (sub county, parish, and village).

 

Magistrate Courts

Magistrate's Courts handle the bulk of civil and criminal cases in Uganda . There are three levels of Magistrates courts: Chief Magistrates, Magistrates Grade I and Magistrates Grade II. These are subordinate courts whose decisions are subject to review by the High Court. Presently the country is divided into 26 Chief Magisterial areas administered by Chief Magistrates who have general powers of supervision over all magisterial courts within the area of their jurisdiction.

 

Tribunals

Specialized courts or tribunals form part of the judicial structure e.g. Industrial Court , Tax Appeals Tribunal, NPART Tribunal, Land Tribunals, Tax Appeal Tribunal and the Human Rights Tribunal. A parallel judicial system exists for the military with a hierarchy of courts established under the NRA Act and Regulations. The only link from the military system to the mainstream judicial system arises from an appeal from the Court Martial Appeal Court (the highest appeal court in the military system) to the Supreme Court where a death sentence or life imprisonment has been meted.

 

Appointment of Judges

The judges are appointed by the President on recommendation of the Judicial Service Commission and approval of Parliament.

 

More information about the Courts of Judicature of Uganda can be obtained at the official website.

Sources of Legislation

All Acts of parliament, statutes, legal amendments and practice directions is first published in the Uganda Gazette which is published every week.  Other information published in the Gazette includes rules, draft bills, proclamations and legal notices. The Uganda Gazette is published and printed by the Uganda Government Printers.

 

Ugandan legislation is available in print in the set of Uganda Laws Volume. The Uganda Law Reform Commission [3] in 2003 published a Revised Edition of the Laws of Uganda, containing 350 revised Acts from 1964 to 2000, with the subsidiary legislation. 

Sources of Case Law

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 in Uganda is mandated to prepare and publish law reports and other legal material but so far have published only High Court Bulletins. As a result there has been a void 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.

 

Ugandan judgments are reported in the following law report series:

·         East Africa Law Reports – The reports covered decisions of the Court of Appeal for East Africa and the superior courts of the constituent territories, namely, Kenya , Uganda , Tanzania , Aden , Seychelles and Somali-land. 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 Law Africa with the launch of EA 2000 and EA 2001 [4] .

·         Uganda Commercial Law Reports – The reports cover decisions of the Commercial Division of the High Court of Uganda since its establishment in 1996.  The first in series of the law reports, 1997 – 1998 UCL was launched in November 2005 by the Chief Justice, Justice Benjamin Odoki. 

·         Tax Appeals Tribunal Compendium of Judgments and Rulings – Covers decisions of the Tax Appeals Tribunal.

·         Kampala Law Reports – Published by a private practicing lawyer

·         High Court Bulletin – Published by the Law Development Centre.

·         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

 

Law Libraries

The following are some of the useful law libraries in Uganda :

• High Court library in Kampala
• Ministry of Justice and Constitutional Affairs Reference library
• Makerere University Law library
• Legal Informatics Centre at Faculty of Law Makerere University
• Law Development Centre library

 

Online legal resources

The Uganda Constitution 1995 is available online (also at www.parliament.go.ug and http://www.loc.gov/law/guide/uganda.html).

 

Law Africa produces electronic versions the East Africa Law Reports which contain Ugandan precedent.

 

Present Structure of Legal Education in Uganda

To pursue a legal career in Uganda, one must first obtain a Bachelors degree in law, followed by a Post Graduate Diploma in Legal in Practice from the Law Development Centre which is in essence the bar course.  After passing the bar, one has to apply to be enrolled as an advocate of the bar and can appear in all Courts of Judicature in Uganda .

 

Since 1968, Makerere University has been the only Government University in Uganda where a degree in law could be obtained.  Currently other private universities such as Mukono University , Kampala International University , Grotius University , Nkozi University and Nkumba University have a faculty of law. 

 

The requirements for joining the faculty of law and the Law Development Center are highlighted below.

 

(a) Entry into Faculty of Law

To be admitted to the Law program at the Faculty of Law Makerere University, on Government Scholarship, a candidate must score at least two (2) Principal Passes at the Advanced Level Examination conducted by the Uganda National Examination Board (UNEB) leading to the award of a Uganda Advanced Certificate of Examination.

 

The entry scores for students applying for Private sponsorship and evening programs, are not as high as students applying to the government sponsorship day program.  Admission to the Law Program is open to; Advanced Level Certificate Holders [5] , Holders of a Diploma in Law from the Development Centre with or without working experience and other diploma holders with at least a Second Class Diploma, Graduates of other disciplines, and Mature Age entrants following an examination conducted by the Institute of Adult and Continuing Education of the University.

 

The LL.B. lasts 4 academic sessions or 8 semesters and should in any case be completed within 6 academic sessions or 12 semesters. Completion of the LLB program takes a minimum of 4 years.

 

The following are some of the major subjects that are studied in the LL B program

·         Civil procedure

·         Criminal law

·         Constitutional law

·         Administrative law

·         Equity & trusts

·         Land law

·         International law

·         Tort

·         Evidence

·         Environmental law

·         Human rights

·         Taxation

·         Business law

·         Health law and policy

·         Commercial law

·         Contract law

·         Family law

 

(b) Entry into the Law Development Centre

By regulations made under the Advocates Act, 1970, to qualify for admission to pursue the Diploma in Legal Practice at the Law Development Centre (a perquisite for practicing Law in Uganda), a candidate must hold the LL.B. Degree of either of the Universities of Dar-es-Salaam, Makerere University, Nairobi or Zambia or be admitted as barrister or solicitor in the United Kingdom.

 

Legal reform is underway to widen category of graduates who are eligible to pursue the Diploma in Legal Practice.  The Diploma in Legal Practice lasts nine months.

 

Most of the Law Graduates, following completion of the Diploma in Legal Practice, are either absorbed in the public service as State Attorneys, Magistrates, or find outlet in the private sector working with private Law firms, Companies or Non-Governmental Organizations (NGOs).

 

The Legal Profession

Legal professionals may be in private practice or public practice. Private practitioners are advocates employed in private law firms and they represent individuals in litigation and other legal matters.  Information about private law firms may be got from the Uganda Law Society.

 

Advocates in public service are employed by the Government and serve as state attorneys in the Ministry of Justice and Constitutional Affairs.

 

All practicing lawyers can subscribe to the Uganda Law Society which is the main legal professional organization in Uganda .  At regional level, one can join the East African Law Society.  The main functions of the law society include maintenance and improvement of the standards of conduct and learning of the legal profession, and to facilitate the acquisition of knowledge by the legal profession.  More information about the Uganda Law Society can be obtained at the official website.

 

Other professional bodies which lawyers can subscribe to include; the Uganda Women’s Lawyers Association, Advocates Coalition for Development and Environment, and Uganda Christian Lawyers Association.

 

Main legal reference books and legislation

The list below contains only some of the main legal reference material in Uganda .

Legislation

• the Uganda Constitution 1995
• the Civil Procedure Act
• the Civil Procedure Rules
• the Penal Code Act
• the Land Act
• the Evidence Act
• the Local Government Act
• the Judicature Act and Statute
• the Magistrates’ Court Act
• the Trial on Indictments Decree
• the Companies Act
• the Bills of Exchange Act

 

Legal Reference books

• High Court Bulletins
• Practice Manual Series by Paul Kiapi
• An introduction to Judicial Conduct and Practice by B. J Odoki
• Elements of the law of contract by W.I Tumwire
• Partnership law in Uganda by D.J Bakibinga
• Law of Contract in Uganda by D.J Bakibinga
• Essays in African Banking law and Practice by Grace Patrick Tumwine Mukubwa
• A guide to Criminal Procedure in Uganda by B. J Odoki
• Law of Contract in East Africa by R.W Hodgin
• Evidence in East Africa by Morris H
• Handbook for Magistrates published by the Law Development Centre

 

All the above mentioned legislation and reference books, and many others can be easily obtained at the Law Development Center Publishing House and Book Centre, Uganda Bookshop, Mukono Bookshop and Aristoc Bookshop.