Makerere Law Journal

Customary Law
Constitutional Law

Why Africanist Judges Must Trash Repugnancy Tests

Article by Kabazzi Maurice Lwanga

Abstract

The theme is that the doctrine of repugnancy via customary law is irrational and must be abandoned. The repugnancy doctrine was used as a hegemonic control of African laws. It lacks clear guidelines for the invalidation of customary law. This note argues that the repugnancy test has no doctrinal value and normative standards capable of articulation. Otherwise, the judges’ power under Article 126 (2) (e) of the Ugandan Constitution to administer justice in accordance with the aspirations and values of the people need to be guided in respect to customary law. It concludes that the retention of the repugnancy principle is unconstitutional and should be replaced by judicial flexibility applying the National Objectives and Directive Principles of State policy under the 1995 constitution.

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Long Walk To Justiciability: Article 8a And Uganda’s National Objectives And Directive Principles Of State Policy

Kansiime M. Taremwa and Lisandra Kabagenyi

The 1995 Constitution of the Republic of Uganda was lauded by many commentators as one of the best in the region. Much of these sentiments of admiration gained traction because of the comprehensive nature of the Bill of Rights in Chapter 4 of the Constitution. However, the main body of Chapter 4 did not include a number of economic, social and cultural rights and they were instead included as part of the manifesto of aspirations code named, the “National Objectives and Directive Principles of State Policy.” Judicial enforcement of ESCRs became difficult because of the fact that these National Objectives were not considered justiciable. In 2005, the Constitution was amended, introducing a new Article 8A in its main body that seemed to suggest that NODSPs were not merely aspirations. Notwithstanding some victories, the experience that the courts have had with Article 8A has left a lot to be desired.

To Grant Or Not To Grant Bail Pending Appeal: A Review Of The Supreme Court’s Decision In Magombe Joshua V. Uganda

Gerald Ndobya & Bruno E. Amanya

The recently decided case of Magombe Joshua v Uganda declared the concept of bail pending appeal nonexistent in the Ugandan Human rights regime on ground that there is no constitutional basis upon which the Supreme Court or lower appellate court could grant the same. This decision departs from earlier decisions of the Supreme Court that had allowed bail applications pending appeal. This paper elucidates that the decision in Magombe v. Uganda upsets the constitutionally recognized law on right to apply for bail. The paper also highlights the various factors left in issue by the decision, paying particular interest to the scope of the presumption of innocence and the need for a liberal and general approach to constitutional interpretation.