The application of African Union (human rights) law in Uganda: trends and prospects from a comparative review

2.1 Case identification and data set

The review considered cases available online, primarily those contained in the Uganda Legal Information Institute (ULII) database.8 A search was made through the ULII records, using all possible permutations of relevant code words and combinations thereof, so as to identify all applicable case law. The various cases highlighted were then appropriately categorised, and subsequently analysed.

This approach - of reliance on an online search rather than a survey of print law reports - was adopted for two reasons. In the first place, the tradition of law reporting in Uganda has been neither consistently nor rigorously maintained, especially after the late 1980s. The result is that many key decisions of courts of Judicature (High Court, Court of Appeal and Supreme Court) remain unreported. Some of these have been availed online either through fee-charging portals, such as Uganda Online Law Library or the open-access ULII database. Secondly, the ULII database allowed for a more systematic and quicker collection and analysis of relevant case law, through a relevant key word search, than might have been possible with print reports.

The study is, therefore, based upon and limited to this particular data set. The reliance on case law available online, and the ULII database in particular, admittedly presents a limitation upon the comprehensiveness of the study findings. At the same time, if understood as an in-depth examination of a specific sample - Ugandan jurisprudence available through ULII covering a particular time period - then it is possible that the insights provided herein might provide some useful indicators as to the more general position.

2.2 The finer distinctions implicated by the term ‘reference’

It is also important, at the outset, to point out that ‘reference’ by courts to AU law, or to other legal orders, can take several forms, with varying implications. There are at least five different forms that such reference can take: i) reference in a case record as part of a judicial summary of arguments made by counsel, with no subsequent reliance by the court in its own determination of the matter; ii) a passing reference in the court’s decision, by a way of a footnote or as one of a list of several authorities, whether or not this is accompanied by actual or specific reliance on the authority in the court’s final determination; iii) substantial engagement by the court in terms of discussing the authority without any actual or specific reliance on it in the final determination or finding, that is to say, engagement by the domestic court with a treaty or decision as part of obiter dicta; iv) substantial engagement with a provision or decision, with specific reliance being placed upon it in the final determination by the court, and the domestic court agreeing with such treaty or decision; v) substantial engagement with a provision or decision, with specific reliance being placed on it it the court’s final determination of the matter, but with the domestic court disagreeing with that treaty or provision. In addition, ‘reliance’ can take various additional forms. For instance, a court may rely on a treaty or decision as an aid to the interpretation of domestic law, or might apply such treaty in its own right, that is to say, as a self-executing provision.

In the narrative parts of this article - in which the specific cases are reviewed - an attempt is made to distinguish as a minimum, between ‘reference’ in the sense of i) above, from that implicated in ii) to v). The account also points out instances in which reliance took the form ‘direct application’ as opposed to being in the nature of use of AU, EU or REC law as an aid to the interpretation of Ugandan law. However, in the tabular representations of the data, and the brief analysis that follows therefrom, ‘reference’ (or ‘citation’) is used as a catch-all phrase, covering all five variations of the term.

3.1 The African Union

There seems to be a paucity of references, in Ugandan case law, to the AU as an institution or law-generating entity. Indeed, we could only find one case that specifically mentioned the AU - the High Court decision in John Kagwa v Kolin Insaat Turizm and Another.9 Even then, this was not a reference to the AU, as such, but rather to the AU Convention on Preventing and Combating Corruption.10

3.2 The African Charter on Human and Peoples’ Rights

In contrast to the general silence in Ugandan case law relating to the AU, as such, there is a substantial body of judicial decisions referring to the African Charter on Human and Peoples’ Rights (African Charter).

One of the earliest decisions that referred to the African Charter was that in the 2002 case of Uganda Law Society and Jackson Karugaba v Attorney General.11 The petition challenged the constitutionality of the indictment, trial and execution - all conducted in one day, 25 March 2002 - of two soldiers of the Uganda Peoples’ Defence Forces, for the alleged murder of three civilians. In upholding the petition, Justice Twinomujuni, who wrote the lead judgment of the Constitutional Court, observed that during the course of the proceedings, counsel on both sides apparently thought the UPDF Act did not allow for the right of appeal against a decision of a Field Court Martial.12 To Justice Twinomujuni, this was an erroneous view, given that the African Charter was ‘part and parcel’ of the Ugandan Constitution.13 As such, article 7(1) of the Charter, which provided for the right of appeal, read together with article 45 of the Constitution (on the inexhaustibility of the Bill of Rights) created an ‘automatic’ right of appeal - including with respect to proceedings of the Field Court Martial - the denial of which was ‘clearly unconstitutional’.14 There was, however, was no unanimity on this particular point. In a separate opinion, Justice Kavuma felt that while the African Charter was ‘part of our law’, it did not by virtue of article 286 of the Constitution, ‘automatically become part of our Constitution although it remained part of the law of the land’.15 That said, in his view the Charter, as part of the law of the land, had ‘play[ed] the role of being the equivalent to an operationalizational law to article 28 of the Constitution’ and ‘[came] in handy to provide the necessary bridge between the UPDF Act and article 28 which calls for confirmation of the death sentence by the Highest Appellant Court’.16 In this way, the African Charter ‘remove[d] an apparently serious lacuna in our law’.17

Similarly extensive reference to the Charter was made by the Supreme Court in the 2002 case of Charles Onyango Obbo and Another v Attorney General,18 when it had to determine the scope of the right to freedom of expression under article 29 of the Constitution. Justice Mulenga, who wrote the lead judgment, referred to article 9 of the African Charter .19 In his concurring opinion, Justice Oder also referred to the Charter, alongside the International Covenant on Civil and Political Rights (ICCPR), to support his rejection of the Attorney General’s argument that Uganda’s ‘democracy’ had to be defined using a subjective test. According to Justice Oder, the meaning of ‘democracy’ as used in article 43 of the Uganda Constitution had to be understood based on an objective test, in part because Uganda was a party to a number of international treaties on fundamental and human rights, including the African Charter, which provided for ‘the universal application of those rights and freedoms and the principles of democracy’.20

Regard may also be had to the 2005 decision in Uganda Law Society v Attorney General.21 In this case, the petitioner argued that the action of security forces, who had re-arrested 22 accused persons granted bail by the High Court, was a violation of their right to liberty under article 23 of the Constitution as well as a violation of the constitutional guarantee of independence of the judiciary under article 128. The majority of the Constitutional Court upheld the petition,22 with one Justice of the Court specifically referring to the African Charter in this regard. In his concurring opinion, while considering the substance of article 23 of the Constitution, Justice Okello observed that ‘[t]o recognize the universality of human rights, it is important to note that the above article is similar to article 6 of the African Charter on Human and Peoples’ Rights to which Uganda is signatory’.23

The African Charter was also relied upon in the 2005 High Court case of Hon. Okupa Elijah and 2020 Others v Attorney General and 3 Others.24 The case concerned the failure of the State to disarm the Karamojong, a cattle-keeping people who were alleged to periodically raid neighbouring communities for cows to expand their herds. The applicants - who were from the Itesot community, and who were led in this action by a Member of Parliament from the area - faulted the Ugandan state for failing to take legislative and other steps to protect them from the Karamojong. In upholding the claim, Judge David Batema invoked article 5 of the African Charter, on the right to dignity.25 He also referred to article 28 of the Charter, ostensibly on the right to non-discrimination, in deciding that the state had not been consistent in its (non)enforcement of the Firearms Act in different parts of the country. 26

Further, in the 2006 decision in Caroline Turyatemba and 4 Others v Attorney General and Another,27 the Constitutional Court referred to articles 7(1)(c) (right to be heard) and 8 (freedom of conscience and free practice of religion) of the Charter28 in considering the petitioner’s claims to constitutional violations relating to land allocation. Although the petition was dismissed, the Court drew upon these African Charter provisions in articulating the nature and scope of the relevant constitutional rights, partly on the basis that the Charter preceded the 1995 Uganda Constitution and had inspired its provisions.29 The reference also appears to have been based on the Court’s appreciation for the need for Ugandan law to be consistent with relevant international standards.30

The Charter was additionally invoked by the Supreme Court in the 2006 case of Attorney General v Susan Kigula & 417 Ors,31 which concerned the constitutionality of the death penalty in Uganda. In finding that the death penalty was not, in itself, unconstitutional, the majority of the Supreme Court referred to the Charter. The majority observed, in particular, that simply because the Charter, among other international instruments, guaranteed the rights to life and to freedom from torture, it did not thereby follow that these rights were inconsistent with the death penalty.32 According to the Court, the insertion of the word ‘arbitrarily’ in article 4 of the African Charter (relating to the right to life), among other similarly worded treaties, constituted a recognition that the death penalty could be applied, in certain instances and with appropriate procedural and substantive guarantees.33 This proved to be an important consideration for the Court, especially since this formulation was similar to that in the Ugandan Constitution. 34

More recently, in the 2011 case of Centre for Health, Human Rights and Development (CEHURD) and Daniel Iga v Attorney General,35 the Constitutional Court also referred to various provisions of the African Charter in finding that a number of Ugandan statutory law provisions violated the constitutional rights of persons with intellectual and psychosocial disabilities. In particular, the Court cited articles 2 (enjoyment of Charter rights without discrimination), 3 (equality before the law and equal protection of the law), 5 (right to dignity) and 6 (right to liberty) of the Charter. 36

In another 2011 case, Omar Awadh Omar and 10 Others v Attorney General,37 before the Constitutional Court, the petitioners invoked, among others, article 6 of the African Charter (on the right to personal liberty and protection from arbitrary arrest). The matter had its antecedents in a terror attack at two places in Uganda on 11 July 2010, during the screening of the World Cup finals. The attacks left several people dead and countless others injured. Initial investigations indicated that the attacks had been planned across a number of countries, including Somalia, Kenya, Tanzania, Uganda and the United Kingdom. The petitioners had been arrested from various places in Kenya, Uganda and Tanzania, charged before a Chief Magistrate’s Court in Uganda, and on 30 November 2010, committed by that Court to the High Court of Uganda for trial. They were ultimately indicted before the International Crimes Division of the Uganda High Court on a number of counts of terrorism, murder and attempted murder. In this constitutional case, the petitioners challenged several aspects of their arrest, rendition and prosecution, and invoked a number of international treaties, including article 6 of the African Charter. For its part, after setting out the provisions of article 6 of the Charter, along with the article 9 of the ICCPR, the Constitutional Court noted that it would ‘bear [these] in mind in the ensuing discussion’,38 especially since those provisions were ‘largely echoed in the constitutional provisions in articles 23 regarding the protection of personal liberty and article 24 relating to respect for human dignity and protection from inhuman treatment’.39 Ultimately, the Court felt that there had not, in fact, been a violation of article 6 of the African Charter, on the facts of the case .40

A more controversial consideration of the African Charter occurred in the 2012 High Court decision in Jacqueline Kasha Nabagesera and 3 Others v Attorney General and Another,41 in which Judge Musota (as he then was) appeared to emphasise the claw-back clauses in the Charter rather than its more progressive aspects. The case challenged the closure, by the Ugandan Minister of State for Ethics and Integrity, of a workshop organised by the applicants. The Minister alleged that the workshop implicated illegal activities, namely the ‘promotion of homosexuality’. For their part, the applicants argued that the closure violated, among others, their freedoms of assembly, association and expression. In dismissing these human rights-based claims, the Judge opined that the promotion of morals was a generally recognised ground for the restriction of rights in public interest - one which found expression in the African Charter.42 In particular, the Judge relied on article 27 of the African Charter (requiring rights to be exercised ‘ with due regard to the rights of others, collective security, morality and common interest’); article 17(3) (concerning the duty of the state to promote and protect morals and traditional values recognised by the community) and article 29(7) (the duty of the individual to ‘preserve and strengthen positive African cultural values and to contribute to the moral well-being of society’).43 To him, the workshop organised by the complainants was unlawful since it had been convened to promote illegal activities.44 In these circumstances ‘since the applicants in the exercise of their rights acted in a manner prohibited by law, it was not a valid exercise of these rights’ and ‘was also prejudicial to public interest’.45 The Judge then went ahead to emphasise that rights had to be exercised ‘within or according to the existing law’ and that the exercise of rights could ‘be restricted by law itself’46 citing article 9(2) of the African Charter (to the effect that individuals have the right to express and disseminate opinions only ‘within the law’).47

The Kasha decision is particularly important - and problematic - insofar as it demonstrates the potential for the African Charter to be used to restrict rather than realise human rights in national contexts. Indeed, by emphasising the Charter’s claw-back clauses, and its references to morality, the Judge imposed a lower standard for human rights adjudication than that actually provided under the Ugandan Constitution.48 In addition, in so doing, the Judge ignored a chain of jurisprudence of the African Commission, which has interpreted the Charter broadly and progressively, to overcome the restrictions presented under the Charter’s claw-back clauses. 49

The Charter was also referred to, in passing, in two cases, in 2013 and 2014 respectively. In the 2013 case of Centre for Health, Human Rights and Development (CEHURD) and 2 Others v The Executive Director, Mulago National Referral Hospital and Another,50 (Mulago case) the High Court in dealing with a matter concerning the disappearance of a new-born baby, briefly mentioned articles 5, 16, 61 and 62 of the African Charter.51 Similarly, in the 2014 case of Prof J Oloka Onyango and 9 Others v Attorney General,52 the Constitutional Court mentioned the African Charter, as it enumerated the grounds upon which the petitioners had challenged the constitutionality of the Anti-Homosexuality Act.53 Ultimately, however, the Court invalidated the 2014 Act on a procedural ground, rather than based upon the substantive bases urged by the petitioners.

Finally, the Charter seems to have been referenced in Patrick Kaumba Wiltshire v Ismail Dabule, a civil appeal from a High Court decision.54 In considering the right to a fair hearing, the Court of Appeal referred not only to articles 28, 44(c) and 45 of the Ugandan Constitution, but also to the ‘African Commission’: ‘ The African Commission on Human and Peoples’ Rights provides for principles and guidelines on the right to a fair hearing which include inter alia an entitlement to an appeal to a higher judicial body’.55 Although the Court referenced the Commission, it would appear, on balance, that the reference was in fact intended to be to the African Charter.

3.3 The Protocol to the African Charter on the Rights of Women in Africa

There has also been some reference, in Ugandan jurisprudence, to the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Women’s Rights Protocol).56

An early instance of this was in the 2003 Constitutional Court decision in Uganda Association of Women Lawyers and Others v Attorney General.57 In that case, Justice Mpagi-Bahigeine was of the view that the 1995 Constitution was ‘the most liberal document in the area of women’s rights than any other Constitution South of the Sahara’ and that it was ‘fully in consonance’ with international and regional treaties relating to women’s rights, including the Women’s Rights Protocol.58 According to her, the remaining challenge was its implementation, which ‘ha[d] not matched its spirit’.59

In the Mulago case,60 the High Court, in addition to findings based on Ugandan law, also found that the actions and omissions of the respondents constituted a violation of articles 2(a) and (b) of the Women’s Rights Protocol, which, according to the Court, ‘require[d] state parties to take appropriate measures to provide adequate, affordable and accessible health services, including information, education and communication programs to women especially those in rural areas; establish and strengthen existing pre-natal and post-natal health and nutritional services for women during pregnancy and while they are breast-feeding’.61 This holding is particularly significant, in so far as the Judge seems to have enforced the Protocol in its own right, rather than using it as an aid in the interpretation of relevant Ugandan law.

Finally, in Oloka Onyango,62 the Constitutional Court also recognised that the Women’s Rights Protocol had been one of the instruments invoked by the petitioners in their constitutional challenge to the 2014 Anti-Homosexuality Act.63 As noted above, however, the Court eventually nullified the Act on a technical ground: the absence of quorum in Parliament at the time of its passage.

3.4 The African Charter on Democracy, Elections and Governance

We could find only two instances - both relating to parliamentary election petitions, and rendered on the same day by High Court Judge Rubby Opio Aweri (as he then was) - in which a court referred to the African Charter on Democracy, Elections and Governance (Democracy Charter).

 In Akidi Margaret v Adong Lilly and Electoral Commission,64 Judge Opio Aweri observed that the world was ‘now a global village’ in which the ‘global family’ of the world was interested in the social, political and economic life of each country, including Uganda.65 In this regard, he noted that Uganda was bound by a number of international treaties on democracy and good governance, including the Democracy Charter .66

Judge Opio Aweri also invoked the Democracy Charter in Toolit Simon Akecha v Oulanyah Jacob L’Okori and Electoral Commission.67 In this case, he observed that Chapter 7 of the Charter required that states hold democratic elections, and that article 17 of the Charter obliged states to hold transparent, free and fair elections in accordance with the AU’s Declaration on the principles Governing Democratic elections in Africa.68 He further noted that, to achieve this, states were mandated: i) to establish and strengthen independent and important national electoral bodies responsible for the management of elections; ii) to establish and strengthen national mechanisms that redress election - related disputes in a timely manner; iii) to ensure fair and equitable access by contesting parties and candidates to State controlled media during elections; and iv) to ensure that there is a binding Code of Conduct governing legally recognised political stakeholders, government and other political actors prior, during and after elections, which Code had to include a commitment by political stakeholders to accept the results of elections or challenge them through exclusively legal channels. 69 The above decisions are particularly interesting, since Uganda is, in fact, todate yet to ratify the Democracy Charter.70

3.5 The African Charter on the Rights and Welfare of the Child

The African Charter on the Rights and Welfare of the Child (African Children’s Charter), and its article 4 in particular, has been cited in a number of cases in the High Court Family Division, in support of the proposition that the best interests of children and their welfare must be the paramount consideration in all decisions concerning them. 71

In addition, in Turyatemba,72 the Constitutional Court invoked article 9 of the Charter (on freedom of conscience and free practice of religion) as a relevant international standard in adjudicating a constitutional claim based on religious freedom. 73

3.6 The jurisprudence of the African Commission on Human and Peoples’ Rights

The jurisprudence of the African Commission on Human and Peoples’ Rights (African Commission) has featured prominently in some Ugandan decisions, although the reception in this regard has been decidedly mixed.

In the Mulago case,74 Judge Mugambe felt that an evaluation of the right to health ‘[could not] be complete without a discussion of the internationally accepted ideas of the various duties or obligations engendered by it as an economic, social and cultural right’.75 She then cited the African Commission’s findings in Social and Economic Rights Action Centre (SERAC) and Centre for Economic and Social Rights (CESR) v. Nigeria76 as authority for various propositions regarding the nature and scope of the right to health in Uganda, and the state’s obligations in this regard.77 Judge Mugambe further made reference,78 in the same context, to the Commission’s decision in Purohit and Moore v The Gambia.79 After this extensive review, the Judge concluded that: ‘[c]learly the notion of progressive realization within available resources must not be viewed as an excuse to defeat or deny economic, social and cultural rights like the right to health’. Ultimately, the Judge found the defendants to have violated a number of constitutional provisions, and stipulated several wide ranging specific and structural remedial orders.

Similarly, in the CEHURD and Iga case,80 the Constitutional Court made extensive reference to the African Commission’s decision in Purohit81 in finding a range of expressions and terms in statutory law to be inconsistent with the rights of persons with intellectual and psychosocial disabilities to dignity (under article 24 of the Constitution). The Justices of the Constitutional Court expressly stated that they had ‘drawn inspiration from’82 the Purohit case, and especially the Commission’s determination that the right to human dignity was to be enjoyed by all persons, including persons with intellectual or psychosocial disabilities, without discrimination of any kind.83 The Court noted that the Purohit decision was consistent with, and based upon, the Commission’s previous decisions in Media Rights Agenda v Nigeria and John K. Modise v Botswana - relating to freedom from torture and the right to human dignity.84 The Court also felt that the Purohit decision was ‘a persuasive authority’ in so far as it construed a provision of a Gambian statute which was similar to section 45(5) of the Trial Indictments Act of Uganda, one of the statutes challenged before the Court.85 The Court also later drew upon Purohit with regard to the right to liberty - in the context of the involuntary detention of persons with intellectual or psychosocial disabilities - again noting that the Purohit reasoning in this respect was ‘persuasive’ especially given the similarity between the African charter provision on liberty and article 23 of the Ugandan Constitution .86 Finally, the Court also relied on the Purohit case to strike down derogatory language in the Penal Code Act (referring to persons with intellectual and psychosocial disabilities as ‘idiots’ and ‘imbeciles’), again noting that it had found the decision to be ‘persuasive’ and that its decision in the instant case was made expressly ‘following the reasoning and decision’ in Purohit .87

A notable departure from the above approach - of receptiveness to African Commission jurisprudence - was the decision of High Court Judge Musota in the Kasha case,88 in which he distinguished a number of Commission decisions from the matter before him. He, for instance, felt that the case of Law Office Ghazi Suleiman v Sudan II,89 which had been cited by counsel for the applicants, was inapplicable, in that Mr Ghazi Suleiman had not sought to exercise his freedom of expression to promote any illegality. In the instant case, according to Judge Musota, the applicants ‘were using the pretext of training in human rights advocacy to promote homosexual acts which were prohibited by the Ugandan laws’. 90 Later in the judgment, Judge Musota similarly distinguished the Commission’s decision in Civil Liberties Organizations v Nigeria91 from the matter before him. According to him, while the Civil Liberties case concerned state interference in the establishment of the Nigerian Bar Association, in the case before him there had been no interference in the formation of the applicants’ various organisations - and ‘their activities were only restricted when it was established that they were using the workshop to promote prohibited and illegal acts’.92

The rather strained distinctions made by Judge Musota in the Kasha case, between the Commission’s case law and the matter before him, might have been occasioned by the Judge’s reluctance to uphold the applicants’ claim in that particular case - which broadly related to the rights of sexual minorities in Uganda - rather than a more doctrinally grounded objection to the applicability of that jurisprudence. In any case, it is significant that he distinguished, rather than rejected, the Commission’s jurisprudence urged upon him by the applicants.

The above circumstances, taken together with the more robustly receptive approaches by the courts in Mulago and CEHURD and Iga, suggest that, going forward, there is a great potential role for use of the Commission’s jurisprudence in constitutional and human rights litigation in Uganda.

On a related note, it is of some significance that we were unable to find any domestic decisions referring to decisions rendered by the African Court or the African Committee of Experts on the Rights of the Child (African Children’s Rights Committee). This may be, in part, due to the relatively more recent establishment of the African Court93 and African Children’s Rights Committee,94 as compared to the African Commission.95

3.7 Other soft law instruments in the AU system

Aside from the African Charter, related treaties and the Commission’s jurisprudence, we identified two cases in which courts had referred to AU soft law instruments - in both cases generated by the African Commission.96

In the first place, in Onyango Obbo,97 Justice Mulenga, who wrote the lead judgment, noted that while article 9 of the African Charter simply provided for the right to receive information and disseminate opinions, the African Commission had, in October 2002, adopted a Declaration on Principles on Freedom of Expression in Africa (FoE Declaration) in order ‘to elaborate and expound on the nature, content and extent of the right provided for under article 9’.98 He then cited and relied upon Principles 1 and 2 of the Declaration which, according to him, had provided greater clarity regarding the scope of the right under article 9 of the African Charter .99 In the end, the Supreme Court made far reaching pronouncements on the nature and scope of the right to freedom of expression in Uganda (article 29 of the Constitution), in a decision which continues to be the classic case on this point in Uganda’s constitutional jurisprudence.

Similarly, in Mulago,100 Judge Mugambe referred to the African Commission’s Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter,101 (Ecosoc Guidelines) in determining a matter implicating the right to health in Uganda. 102

The foregoing enumeration and analysis suggests that AU law has made some inroads into the jurisprudence of Uganda courts. As Table 1 below shows, different kinds of AU law have had different fortunes in this regard, with the African Charter and the African Children’s Charter appearing to have had the most impact. However, the references to the African Children’s Charter have been mainly pro forma, formulaic and in passing - being in the nature of a standard recitation of the Charter, part of a statement of the ‘best interests’ principle, as a preamble to the determination of family causes.

4.1 The European Union

EU law has been referred to on a number of occasions, especially in the context of commercial litigation. Aside from a number of passing references to the EU as such,103 and to the European Community (EC),104 as shown below, Ugandan courts have extensively referred to, and relied upon, various aspects of EU law.

4.2 The East African Community 170

Like EU law, EAC law has also been frequently invoked before, and relied on by Ugandan courts in the context of both commercial and human rights-related litigation. It is noteworthy, in this respect, that a number of EAC laws have been domesticated, and thus strictly speaking, now apply as Ugandan law. These include: the East African Community Customs Management Act, 2004 (EACCMA); the East African Community Act (Commencement) Instrument, 2005; and the East African Community Customs Management Regulations, 2005.171 The EACCMA has, in particular, generated significant commercial litigation;172 and has in fact also created criminal liability.173 Interestingly, the EAC is also present in the judicial system in terms of litigation arising from the collapse of the original Community in 1977.174

4.3 Other Regional Economic Communities in Africa

We were unable to find any references, in Ugandan case law, to the laws of ECOWAS, AMU, CEN-SAD, ECCAS and IGAD. There were, however, some references to COMESA law and, curiously, to that of SADC, which are discussed below.

Table 5: Frequency of citation of AU law relative to the citation of the laws of other integration efforts

At first blush, it might appear as if AU law has had the greatest success in influencing the adjudication of cases in Uganda, since it appears to have been referred to more frequently (31 times) than EAC law (15 times) and EU law (25 times). This initial assessment must, however, be tempered by two immediate observations. In the first place, as Uganda is obviously not a member of the EU, the frequency of citation, of EU law by Ugandan courts is disproportionately high relative to the reference to AU law. Secondly, given the only relatively recent re-establishment of the EAC, and the much longer uninterrupted existence of the AU (and its predecessor the OAU), the citation of AU law would be expected to be much higher compared to that of the newer EAC.

In addition, if one is to further analyse the disaggregated data contained in the preceding individual tables, the challenges of AU law in terms of its judicial reception in Uganda become even more apparent. In the first place, the majority of citations of AU law have arisen from references to the African Charter (12 times) and the African Children’s Charter (8 times). In the latter case, these have mainly been very passing mentions - often a single, apparently pro forma, reference to the ‘best interests of the child’-principle usually in the context of guardianship and adoption cases. Indeed, if the references to the African Children’s Charter were to be discounted, AU law would fall to second place after EU, in terms of frequency of citations. Secondly, the influence of AU jurisprudence is relatively weak as compared to that from the EU and the EAC. For instance, decisions of the African Commission on Human Rights have only been cited 3 times, while Ugandan courts are yet to cite any decisions of the African Court or the African Children’s Rights Committee. On the other hand, EU jurisprudence has been considered a total of 10 times (5 times for the European Court of Human Rights and 5 times for the European Court of Justice), while EACJ jurisprudence has been referenced 10 times. Thirdly, with the exception of one reference - to the AU Convention on Preventing and Combating of Corruption - the reception of AU law in the Ugandan judicial system has almost exclusively related to human rights law. By contrast, EU law and EAC law appear to have influenced not just human rights law but a broader variety of the legal landscape, including commercial and civil litigation.

On the whole, therefore, AU law appears to have had a disproportionately weak impact in the Ugandan legal system, relative to its longevity, reach and potential. A number of factors might account for this trend. In the first place, as a general matter, international law’s reception in national courts may depend on the nature of the obligation in question, that is to say, whether it primarily seeks to influence domestic action or action on the international plane.251 As Tzanakopoulos has noted:

... the ‘directionality’ of the international obligations assumed by states ... has consequences for the position of domestic courts. What is meant by ‘directionality’ is whether a given international obligation addresses the state with respect to its actions towards other states, i.e. whether it prescribes or proscribes certain conduct exclusively on the international level, or whether it addresses the state with respect to taking certain conduct or guaranteeing certain results within its domestic jurisdiction. In the former instance the international obligation is ‘extrovert’ or ‘outward-looking’: it addresses the state in its conduct on the international level towards other states. In the latter it is ‘introvert’ or ‘inward- looking’, it mandates conduct within the domestic jurisdiction. The prohibition of the use of force and the prohibition of intervention are obvious examples of outward-looking obligations, while obligations under human rights law, or under the law of immunity, are inward-looking obligations.252

In this regard, the fact that a significant number of obligations under AU law are directed towards Uganda’s conduct on the international plane may explain the relatively limited presence of this body of law in the jurisprudence of Ugandan courts. This is also a convincing explanation for the predominance of AU human rights law in Ugandan judicial decisions, since those obligations are quintessentially ‘inward-looking’.253 This further explains the relatively strong showing of EAC law, a great degree of whose obligations are directed towards changing the domestic landscape in member states in a range of fields (ranging from free movement of goods to free movement of persons).254

Secondly, few Ugandan law schools, if any, teach ‘Integration Law’ as a distinct area - much less ‘AU Law’. This reality is also reflected in scholarship - with no Ugandan-authored book on AU law.255 On the other hand, AU human rights law seems to have had more traction - perhaps because it is usually a standard staple of international human rights law courses. Similarly, there are a great number of EU law courses across the world, which Ugandan Judges might have undertaken in the course of post-graduate studies. The sheer volume of EU-focused legal texts, widely available in Uganda, as well as EU-supported capacity building courses for lawyers and Judges,256 might also explain EU law’s unduly prominent presence in Ugandan judicial decisions, relative to AU law.

Thirdly, EAC law appears to enjoy a potentially significant advantage over AU law in terms of the scope for a more reflexive interaction between that system and the domestic order. Under the EAC Treaty, domestic courts are entitled to refer matters relating to EAC law to the EACJ, which allows domestic courts to engage, in the judicial function, with their counterparts at the EAC level.257 This interaction might then form a natural basis for greater attention to, and respect for, EACJ jurisprudence relative to the more apparently extrinsic jurisprudence of the AU. However, todate this right does not seem to have been invoked by any of the domestic courts in the East African Community, and there is no record of the EACJ having delivered any such preliminary rulings in the context of domestic litigation. Relatedly, service on the EACJ by Judges concurrently engaged by the Ugandan judiciary also seems to have created a window for enhanced familiarity with, and receptiveness to, EAC law. The EAC-friendly decision in the 2013 High Court case of Nalima258 might, for instance, in part be explained by this factor. By contrast, Ugandan jurists who have served on the African Commission have typically not been serving Judges in the Ugandan judiciary, potentially negatively affecting the permeation of that law into the domestic system.259

The above factors might explain - to different extents - the relatively weak imprint of AU law as a feature of the jurisprudence of Ugandan courts. However, on their own, they cannot fully explain the trends identified in this article. This is an important enquiry - one which merits more detailed research, one which preferably seeks the views of serving and retired Ugandan Judges. Ultimately, only they are in position to shed light upon the reasons for leaning more strongly upon certain legal orders than others in the adjudication of the matters arising before them. It would also be interesting, and important, to replicate the assessment undertaken in this article in the context of other domestic systems in Africa, to obtain a fuller picture of the trends in this regard. This panoramic view of the trends of judicial reception of AU law within the member states of the Union - especially if accompanied by a comparative review in the style undertaken in this article - might also provide important insights into some of the issues under-explored in this very preliminary study.