INTRODUCTION TO LAW - SOURCES OF LAW IN UGANDA скачать в хорошем качестве

INTRODUCTION TO LAW - SOURCES OF LAW IN UGANDA

Section 14 of the Judicature Act states the law applicable in Uganda and the list includes the Constitution, written law, common law and established and current custom or usage. Each of these applicable laws in Uganda deserves a brief comment. 1. The constitution The Constitution of The Republic of Uganda (1995) is the supreme law. Art 2 of the Constitution provides that the Constitution shall take precedent over all other laws. Any other law, custom that is inconsistent with the constitution is null and void to the extent of the inconsistency.Supremacy of the constitution binds the executive (President), Parliament (legislature) and the Judiciary. The courts (The Consatitutional Court of Uganda) can declare a provision of a law an action, policy practice, norm or cultural observance as unconstitutional and therefore invalid. In the case of Maj.Gen David Tinyefuza V AG (Constitutional Petition No.1 of 1996) [1997] and the case of Mifumi (U) Ltd & Anor V AG (Constitutional Appeal No.2 of 2014) [2015] UGSC it was held that the constitution is the supreme law of Uganda and all laws derive their legality from it. 2. Acts of Parliament The Constitution gives, in Art 79, parliament powers to enact laws for “peace”, order and development of Uganda. Parliament is the supreme law making organ. No other authority can make laws without the authority of parliament. Parliament makes laws by enacting Acts of parliament examples of Acts of parliament include the Local governs Act, the Public-Health Act, etc. The Acts of Parliament Act, provides for a thorough procedure and format for making laws by the Parliament. Parliament sometimes exercises its law making powers through delegation of its authority, a process that leads to the enactment of subsidiary legislation. 3. Subsidiary Legislation Under Art 79 of the Constitution, parliament can authorise any other public body (uauslly an executive authority) to make laws. The delegation of authority is normally justified because parliament does not have enough time, resources, and expertise to attend to all legislative issues in the country. Subsidiary legislation is subordinate to laws made by parliament. Subsidiary legislation may also be referred to as subordinate or delegated legislation. Subsidiary legislation is made by way of statutory instruments published in the Uganda Gazette. Power to make subsidiary legislation must be expreesly conferred by parliament in a statute e.g. The Hire Purchase Regulations made Under The hire Purchase Act. 4. Common Law Common Law means the reasoning of English Judges which have crystallised in to legal principles by their constant application in deciding cases. This common law is only applicable where the matter is not covered by the constitution, Acts of parliament or subsidiary legislation. Common Law is based on the doctrine of precedent (case law). The doctrine of precedent requires judges and courts to follow the reasoning laid down in older/pre-existing decisions. The doctrine of precedent gives rise to the doctrine of “Stare decisis” where the judges must abide by the decisions of higher courts, beginning with the High Court. Hence Magistrates Courts must follow the decisions and reasoning of the High Court, Court of Appeal and the Supreme Court. In the same manner, the High court follows decisions of the court of Appeal and the Supreme Court, just as the Court of Appeal must follow the decisions of the Supreme Court. The decision of The Supreme court binds all the lower courts, as the Supreme court is the highest appellate court in the land. The Doctrine of precedent is justified on the following grounds a) Written law does not cover all situations that are likely to lead to conflict. b) Reasoning in previous cases aid in interpretation of written laws that are not clear. c) Following precedent leads to certainty of what courts are likely to decide. d) Precedent ensures uniformity in decision making as like cases are treated in the same way. e) Precedent helps in quick dispensation of justice. The doctrine of precedent also allows Uganda courts to use (without being bound) the decisions of other higher courts and laws from other common law countries. 4. Customary Law S. 15 of the judicature Act provides that customary law shall be applicable in the following circumstances. (a) Where there is no written law on the point. (b) Where the customary law is not incompatible or repugnant to any written law (c) Where the applicable written law does not exclude the application of customary law. 5. Doctrines of Equity These are principles of fairness that were adopted by English courts (chancery courts) to minimise the effects of unfair common law principles. Those principles are based on consideration of equality and fairness. These principles are expressed by way of maxims (sayings)‪@lawschoolmusiimentalex‬