AKAMPURIRA JUSTUS

18/U/36638/EVE

1800736638

JURISPRUDENCE COURSEWORK

14 October 2023
A Poundian socio-legal inquiry into Ugandan Post-1995 Case Law.

“Take any demand, however slight, which any creature, however weak, may make. Ought it not,
for its own sole sake, to be satisfied? If not, prove why not. The only possible kind of proof you
could adduce would be the exhibition of another creature who should make a demand that ran the
other way. The only possible reason there can be why any phenomena ought to exist is that such a
phenomenon actually is desired. Any desire is imperative to the extent of its amount; it makes itself
valid by the fact that it exists at all.1

1. INTRODUCTION.

Hon. Mbidde Mukasa2 and a one Martha (an ordinary businesswoman) had a sale agreement where
the former failed to pay about ten million Uganda shillings in breach of the agreement. Martha
didn’t go to court to enforce her rights. Instead, she took her case to a social community on a
social media platform (Twitter) which compelled Hon. Mbidde to comply with the terms of the
agreement. Similarly, activists seeking to hold the government accountable to its obligations in
respect especially of the Economic, Social and Cultural Rights (ESCRs) under the Constitution
and various international law instruments, are increasingly resorting to the same device (for
example #KampalaPotholeExhibition)3 instead of the courts of law. Moreover, empirical
evidence4 shows that over 95 percent of disputes (such as the Martha case above) do not come to
court. Furthermore, only a small percentage of the Ugandan citizens have a basic understanding
of their rights.

Against the above context, it is significant to interrogate: What is law and what does law do in
Uganda? What is and what ought to be the province of law? Or how is and how ought law be
taught by law schools in Uganda? How do and how ought courts decide disputes that come before
them? These and other related questions were the main concern of Roscoe Pounds and other
sociological jurists. Admittedly, answering the above questions would require a long and fully-
fledged study. What this essay provides instead is a sneak peek of the influence of social historical
factors on decision making of the Ugandan Courts of record.

1The Sociological Jurisprudence of Roscoe Pound (Part I) James A. Gardner

2Hon. Mbidde Mukasa is a two times former Member of the East African Legislative Assembly (EALA).
3 There has been in Uganda several Twitter based Exhibition calling out the government to account such as the
#EducationExhibition, #HealthExhibition, #KidnapsExhibition etc.
2. METHODOLOGY.
This discussion is based 10 Ugandan decided post-1995. The selection is based on the frequency
of a case on the Course Reading lists of some of the core subjects taught at Makerere University
Law School, with the cases selected being those that appear most frequently. These cases are then
critically studied with a view of understanding the extent to which they apply (consciously or
unconsciously), or how the decision could have been different had they applied Roscoe Pound’s
sociological legal theory.

The structure and gist of this discussion will be such that the most salient aspects of Pound’s
sociological jurisprudence will be covered, each with an illustration of how courts in Uganda have
engaged it. The illustrations will serve to show instances where aspects of his theory have been
applied or deduced, either directly in the Court’s reasoning or generally through surrounding
circumstances. In other, fewer, cases, we shall show missed opportunities for judges; by showing
in what ways the cases would have made more ‘judicial sense’ had Pound’s principles been applied.
Lastly, we shall also demonstrate, in light of criticisms and further refinement of Pound’s theory,
the proper limits of the sociological school of jurisprudence.

3. A BRIEF NOTE ON SOCIO-HISTORICAL CONTEXT OF UGANDAN LAW.

It is almost impossible to fully appreciate why Pound’s fervent campaign for prioritizing
sociological jurisprudence in law schools is essential to Uganda’s context without a brief overview
of Uganda’s legal socio-historical background of Uganda’s law. As will be shown below, this socio-
historical trappings have had and continue to bear significant impact both on legislation and court
decisions.

First is to note that Uganda, just like other former British colonies has been struggling with the
legacy of the received law (By virtue of 1902 Uganda Order in Council, the English statutes of
General application were made applicable in Uganda with necessary modification). This meant that
most statutes made by the British Parliament were immediately law applicable in Uganda as if they
were made by the people of Uganda. The significance of this is that one the one hand, the law of
Uganda has for over the last 120 years developed as a hybrid law comprised of English law and
the Uganda customary law with a glaring consequence of alienating many of the citizens which it
governs. On the other hand, the subtle violence, coercion, and some cases discrimination that
accompanied the introduction and implementation of British law in Uganda, further alienated
ordinary citizens from the psychic integration of this hybrid law as part and parcel of social being.

It is not surprising therefore, as we shall see below, that most of the most influential court cases
in the constitutional, marriage and divorce law of Uganda have been mainly about whether this
hybrid law truly reflects the aspirations, needs and values of the current Uganda society.

Second important note is the domination of Ugandan law by a small class of the ruling elite
(comprised mainly of the politicians, religious leaders and the rich) over the greatest majority of
the citizens (or as Prof. Mamdan has aptly described them, ‘the subjects’). This small ruling elite
determine which law is passed or not passed in parliament. For example, the Marriage Bill, 2017
(despite clear empirical evidence that majority of Ugandan citizens especially women support it)
has for over ten years been lying in parliament simply because this ruling class, especially the
religious leaders do not support it. Moreover, it is mostly members of the ruling elites who are
most likely to bring a dispute before courts of law. Empirical data shows that of all the disputes
that arise in Uganda, only 5 percent of them come to courts of law.

It is arguable therefore, that when one speaks of law (formal law) in Uganda, they are in fact
referring to that social institution that regulates a small class of people (about 5 percent of
Ugandans). As for the rest of the citizens who fall in the category of Martha in the Hon. Mukasa
Mbidde v. Martha case above, whose day-to-day behaviours and conduct are regulated by
informal mechanisms (such as rules of etiquette, public opinion, and socialization) live outside
what say the positivists conceive of as law. If that be the case, is there therefore a moral obligation
on Uganda’s legal education to recognize, study and teach both institutionalized mechanisms (law)
and informal mechanisms of social control?

4. REFLECTION OF ROSCOE POUND’s JURISPRUDENCE.

Roscoe Pound is regarded as one of the most influential sociological jurists of the last over 100
years.5 From the onset, it is apposite to note that Pound’s target audience was not exclusively

5Lloyd's introduction to jurisprudence Michael D. A. Freeman London: Sweet & Maxwell. Edited by Lloyd of Hampstead &
Dennis Lloyd (1994) at page 1,362
jurisprudents but legal academics generally. His immediate goal in the initial call for sociological
jurisprudence was to change how law was taught.6 He emphasized that:

“ a modern teacher of law should be a student of sociology, economics and politics as well; he should know
not only what the courts decide and the principles by which they decide, but quite as much the circumstances
and conditions, social and economic, to which these principles are to be applied; he should know the state
of popular thought and feeling which makes the environment in which the principles must operate in
practice”.7

He believed that if lawyers were taught to see law in social terms, future judges would develop law with
conscious consideration of social implications, in contrast to present judges who did so subconsciously at
most”8 Sociological jurisprudents accorded relatively little attention to law because they considered informal
modes of social control far more influential.

4. 1. What is law?

Pound understood the law in three senses, as: (1)"a highly specialized form of social control in a
developed politically organized society" obtained by the application of force of that society; (2) a
body of authoritative guides to decision; and (3) a judicial and administrative process, in which the
guides to decision are developed and applied by authoritative techniques, in the light of received
authoritative ideals”9

4.2. Judicial decision making as social engineering.

Pound observed that the judicial search for law is to be governed, as in the past, by ideals of the
end of law and the legal order. That judges must be conscious that what hey are doing is "social
engineering”10. Pound repeatedly stressed this ideal element. For this purpose, according to him,
judges had to view law functionally, as a technique of social control with a changing purpose in
view; it must draw upon other disciplines for insights. Ethics, economics, political science,
sociology, social psychology, history, psychology, and philosophy are the disciplines which can be
used advantageously to further the purposes of law.

This approach is common in Ugandan case law most notably the famous case of Uganda
Association of Women Lawyers (FIDA) & 5 Ors v. Attorney General11 and the Supreme court
case of Fred Ntambala v. Uganda.

The FIDA case challenged the various sections of the Divorce Act (a colonial law) as being
unconstitutional due to the facts it provided among others a discriminatory standard for divorce

6 Sociological Jurisprudence Past and Present Brian Z. Tamanaha

7 Ibid
8 ibid
9 POUND, MY PHILOSOPHY Op LAW 249-62, at 249 (Sixteen American Scholars, 1941)
10 ibid
11 Constitutional Petition No. 2 of 2003) [2004] UGCC 1 (10 March 2004)
between men and women. Justice Twinomujuni, writing for the whole court, started by recounting
the colonial history of the Divorce Act, being an Act based in the sociological, and historical
aspects of Victorian England that were not consistent with the values, aspirations, and standards
under the Uganda Constitution. He noted that:

“The Divorce Act which was enacted in Uganda in 1904 has got its origins in the Matrimonial Causes. Act
of 1857 of England. That Act also had its roots in the Common Law of England whereby a valid marriage
could only be terminated by the death of one of the parties to it or by a divorce decree pronounced by a
court of competent jurisdiction. The Matrimonial Causes Act 1857 provides that a party to a marriage could
obtain a decree of divorce on proving that the spouse had committed a matrimonial offence. The only
offence that entitled a husband to obtain the decree was aduhery. For a wife, it was not enough for her to
prove adultery against her husband. She had to prove that the husband was guihy of aggravated aduhery
(which meantiaduhery plus another offence e.g. incest. bigamy. cruehy. desertion etc)[ or he had changed his
faith from Christianity to some other faith ai|d gone. through a form of marriage with another woman…”

The above quote from Justice Twinomujuni is significant for sociological jurisprudential analysis
of case law in Uganda because of what is the court is basing its decision. The justice is not appealing
to logical analysis of applicable rules, as positivists would proceed, but rather to history. In
otherwards, the court could easily have found that it unreasonable, unfair, unjust, and therefore
unconstitutional to discriminate on the basis of sex, but he instead (and rightfully so) appealed to
historical and sociological aspects of both the Divorce law and Uganda to underscore the
importance of equality between man and woman. Ironically, the justice had to appeal to the fact
the same provisions of the Divorce Act had long been repealed in England (where they came from
in the first place) perhaps to convince a significant number of men in Uganda, especially religious
leaders, who according to their cultural and religious beliefs man is superior to woman. Here,
clearly the justice is alive to the sociology and dominant cultural believes of the society within
which the new law is going to apply.

In the Supreme Court case of Fred Ntambala v. Uganda12, court considered the sociology and
history of the cautionary rule in sexual offences which provided that court must warn itself of “the
danger” of acting on the uncorroborated evidence of a complainant in a sexual offence. Justice
Lilian Tibatemwa, writing for majority, started her judgement by a strong appeal to the sociological
and historical roots of the rule. She stated that:

“…as I observed in my book - Criminal Law in Uganda: Sexual Assaults and Offences Against
Morality at page 381 -the reasons historically given for the need for corroboration of evidence in a
sexual assault prosecution was that women are by nature peculiarly prone to malice and mendacity
and are particularly adept at concealing it. I further noted therein that the origin of the rule lies in
the opinion of Sir Mathew Hale (Kings Bench England) in 1671 when he said that rape must be
examined with greater caution than any other crime as it is easy to charge and difficult to defend”.

12 CRIMINAL APPEAL NO. 34 OF 2015

She then appeals to empirical evidence as the basis for her decision. She noted that:
“It is a statistical fact that the majority of victims of sexual assaults are women and therefore the
effect of applying the cautionary rule on corroboration in sexual offences affects far more women
than it does men.”
Based on history and empirical data she concludes that the cautionary rule in sexual offenses is
discriminatory and therefore unconstitutional. What is at play here is clear that the judge is not
appealing necessarily to the naturalist notion of reason in the right direction (pure reason) or strict
positivist application of rules, but rather to the social context within which the rule operated.

4.3. Legal interests.

According to Pound, there are three categories of legal interests, namely, individual, public and
social interests. Individual interests are “claims or demands or desires involved immediately in the
individual life and asserted in Public interests are ‘demands or desires involved in or looked at from the
standpoint of life in a politically organised society, asserted in title of political life. Social interests are ‘those wider
demands or desires involved in or looked at from the standpoint of social life in civilised society and asserted in title
of social life.

4.3.1 The balancing of interests

From a functional point of view, argues Pound, law is really an attempt to reconcile, harmonise or compromise
overlapping or conflicting interests:

‘either through securing them directly and immediately, or through securing certain individual
interests...so as to give effect to the greatest number of interests, or to the interests that weigh most
in our civilisation, with the least sacrifice of other interests.’

This view of the law by Pound can be seen at play in the case of Charles Onyango Obbo and
Andrew Mujuni Mwenda v. Attorney General where court devised a formula weighing
individual interests against public interests. Court noted that effect of Article 43(2) of the Uganda
constitution was to set a high bar for the limitation of human rights. Any such limitation had to
be shown to be such as was ‘acceptable’ and ‘demonstrably justifiable’ – not just in any society,
but in a ‘free and democratic one’. Justice Mulenga in his dictum quite remarkably noted as follows:

“…The yardstick is that the limitation must be acceptable and demonstrably justifiable in a free and
democratic society. This is what I have referred to as ‘a limitation upon the limitation’. The limitation on the
enjoyment of a protected in defence of public interest is in turn limited to the measure of that yardstick….
The co-existence in the same constitution, of protection and limitation of the rights, necessarily generates
two competing interests. On the one hand,there is the interest to uphold and protect the rights guaranteed
by the Constitution. On the other hand, there is the interest to keep the enjoyment of the individual rights
in check, on social considerations, which are also set out in the Constitution. Where there is conflict between
the two interests, the court resolves it having regard to the different objectives of the Constitution …
 protection of the guaranteed rights is a primary objective of the Constitution. Limiting their enjoyment is an
exception to their protection, and is, therefore, a secondary objective.”

Justice Mulenga’s widely accepted idea that where there is a conflict between public interests and
individual interests, unless there are exceptional circumstances, individual interests should always
trump public interests fits well with Poundian view of balancing individual, social and public rights.
This view is also shared by Ronald Darwin.

Another famous case that involves balancing of interests is Bruno Kiwuwa v. Ivan Serunkuuma
and Juliet Namazzi,13 where the High Court of Uganda barred the respondents from getting
married on the basis that it would violate the local marriage customs of their tribe. The plaintiff,
Kiwuwa, was the biological father of the female respondent, Namazzi. He sought a permanent
injunction against a marriage by the respondents under the Marriage Act on the grounds that the
respondents both belonged to the Ndiga(sheep) clan by virtue of the fact that their parents were
both members of that clan and that same clan marriages were prohibited by Kiganda customs to
which the clan belonged.

The plaintiff claimed that such a union was against custom, 'abominable' and 'illegal' and further
that on the basis of Article 37 of the Constitution, the court was enjoined to enforce the custom
in issue. The court indeed found for the plaintiff, and its decision turned on whether or not, even
if the defendants were to procure a marriage under the Marriage Act, there existed a lawful
impediment or just cause to the marriage under that Act, as provided in sections 10, 12, 13 or 21
and whether the plaintiffs claim comprised such an impediment.

Clearly, this decision was made with strong cultural sentiments. No attempt was made at weighing
the competing interests that is the Kiganda cultural beliefs on the one hand and individual liberties
protected under the constitution. According to Pound, deciding judicial matters necessitate
reference to rules, principles, conceptions, and standards. As Ronald Dworkin has argued,
contrary to the positive view of law as strictly posited rules, these are part and parcel of the
province of the law. Dworkin’s conception of the dominion of law is of a gapless legal universe,
where in every adjudication, even in the so-called “hard cases”, there are controlling standards
which judges are obligated to follow14. It is apposite to note several provisions of this decision
were outlawed by the Supreme Court in MIFUMI v. Attorney General.

In Hope Ahimbisomwe v. Julius Rwabinumi and Bruno Kiwuwa, commenting on Article

31(1) of the Uganda Constitution in relation to property rights of married persons, Twinomujuni,
J.A. observed as follows:

“In 1995, for the first time in our history, the Constitution of Uganda clearly put into reality the
equality in marriage principle contained in Genesis Chapter 2 verse 24 (supra) and what those who
choose to contract marriages under the Marriage Act undertake to practice. My conclusion is that
matrimonial property is joint property between husband and wife and should be shared equally on
divorce, irrespective of who paid for what and how much was paid...”

It is clear in this case that justice Twinomujuni is relying on religious norms not only to allocate
the individual property interests involved in the case but is also to create ‘new law’.

This Hope Ahimbisomwe case and Bruno Kiwuwa case above are significant for our analysis
because they on the one hand underscores why because of the social character of law, Pound
constantly reasserted, that law schools, lawyers and judges should be grounded in empirical studies
to enhance the functioning of law as a mechanism of social engineering and social control. On the
other hand (because law is a social phenomenon; social in origin, in purpose or end, and in
application), they reveal that consciously or unconsciously social factors always have a bearing on
the judge’s (and parliament’s) decision making; and why therefore it is essential that strong checks
and balances are erected to ensure that the power of judges (and parliament) is used in a democratic
manner in accordance with well-established, ascertainable and generally acceptable principles.

To demonstrate the dangers of unguided social character of law but in the legislative arena, is the
Anti-Homosexuality Act, 2023 (AHA) and the Marriage Bill, 2017. The AHA criminalizes
homosexuality acts in Uganda while the Marriage Bill,2017 is intended among others to legalise
cohabitation and sharing of property, address marital rights and duties, and divorce in Uganda.
What is common about AHA and the Marriage Bill,2017 is the manner in which the ruling elite
have manipulated the so called ‘African Culture’ to deny minority rights and continue gender-
based discrimination respectively.

14
Lloyd's introduction to jurisprudence Michael D. A. Freeman London: Sweet & Maxwell. Edited by Lloyd of
Hampstead & Dennis Lloyd (1994) at Page 1,166
While it is true that it generally accepted the majority of Ugandans do approve of homosexuality,
it is problematic to make laws based on the values of the majority. Law must be first and foremost
be rooted in sound reason and then social considerations such as majority opinion. Where the two
conflict, sound reason should trump majority opinion. Thus, in the case of AHA, the long standing
of criminal law principle that where there is no harm there is no offence, should have guided
parliament on the right position. It is worth noting, that whereas parliament recognises that AHA
is discriminatory, it nevertheless went ahead to pass the law for what they believed was in tandem
with Carl von Savigny’s volkgeist.

The AHA, 2023 and the Marriage Bill,2017 exemplify why Pound (and other legal sociologists)
enlisted empirical legal studies to assist jurists in the normative project of advancing law’s well-
being. Beyond the court room, examining law-related matters of sociological concern (i.e., social
order, social change, social integration, crime and punishment, regulation, legal profession) is part
and parcel of a modern jurist.

Consider for example the case of Prof. J Oloka-Onyango & 9 Ors v. Attorney General.15 In
that case petitioners challenged the constitutionality of the Anti-Homosexuality Act, 2014
(AHA,2014) both on procedural and substantiative grounds. Court found in favour of the
petitioners on the procedural ground that the enactment of the AHA, 2014 by Parliament without
quorum in the house was in contravention of Articles 2(1) & (2), 88 and 94(1) of the Constitution
of Uganda and Rule 23 of the Parliamentary Rules of Procedure. Court further noted that:
“…The Act itself so enacted by this reason is unconstitutional. The issue therefore of disposes of
the whole petition. Having found in the affirmative on Issue 1, we find that that has the effect of
resolving the entire Petition. The Petition is, therefore, hereby allowed”

According to Pound, empirical legal studies should be applied to such and related cases to discover
why the constitutional court abdicated its duty of deciding the matter on both procedural and
substantive grounds. The court could have used Pound’s theory on recognition of new claims to
rights to decide on the legal position on the lesbian, gay, bisexual, transgender, queer (LGBTQ+)
rights in Uganda. Law is strongest where reason and the volkgeist coincide. Law is strong enough
where it is reasonable even if it doesn’t coincide with the volkgeist. Law is weakest where the
volkgeist trumps reason.

15 CONSTITUTIONAL PETITION N0. 08 OF 2014.

In Col. Dr. Kizza Besigye v. Attorney General16 after merely referred to a quote from Craig R.
Ducat book: Constitutional Interpretation, 9th edition Wadsworth Publishers page 134-135 and
note that;
“…we agree with and adopt the above reasoning as it can be used in this petition as well as policy and
standards can be seen from the same perspective. Clearly, what is involved here is a question of balancing
interests and judicial self-restraint.”
No attempt at explaining the legal interests at hand was made by court. Again, the court, perhaps
owing to the challenge of attaching weights to competing individual, social and public interest,
chose not to answer the legal question before and pleaded judicial restraint as a defence. Such
evident difficulty buttresses the legal sociologistic stance that because is not self-sufficient, because
it is a social phenomenon, judges need empirical tools to assist in their analysis.

5. Conclusion.
As shown above, because law is a social phenomenon, sociological jurisprudence is essential to
Uganda’s legal education. Furthermore, the traditional formalistic definition of law is insufficient.
Informal mechanisms such one by Martha in Hon. Mukasa Mbidde v. Martha case above,
which regulate most Uganda’s citizens are vital and need to be included jurisprudential inquiry.

The Law, just like its creator, the human being, has various components with varying levels of
significance. Some critical, others are less critical. Just as a human being cannot operate without a
heart, there is no law without its social component. The law is as much a living thing as a human
being. To emphasis in legal study only a few of its components leads to improper development of
and undermines the integrity and legitimacy of the law.

6. REFERENCES.
1. Brian Z. Tamanaha, Sociological Jurisprudence Past and Present.
2. Lloyd's introduction to jurisprudence Michael D. A. Freeman London: Sweet & Maxwell. Edited
by Lloyd of Hampstead & Dennis Lloyd (1994)
3. The Sociological Jurisprudence of Roscoe Pound (Part I) James A. Gardner

16 CONSTITUTIONAL PETITION NUMBER 0013 OF 2009