School of Law (S.Law) Collections
Permanent URI for this collection
Browse
Recent Submissions
1 - 5 of 165
-
ItemThe impact of the quasi-judicial powers of the electoral commission on parliamentary election petitions in Uganda: a critical analysis from 2016 to 2022(Makerere University, 2024)The study examined the quasi-judicial powers of the Electoral Commission (EC) in adjudicating pre-election/nomination complaints on the determination of parliamentary election petitions by courts. It took the Court of Appeal‘s decision in the case of Kasirye Zzimula Fred v. Bazigatirawo Kibuuka Francis Amooti and Electoral Commission which set a precedent for the courts‘ decisions in parliamentary election petitions based on nomination complaints in 2021 and 2022. This qualitative and doctrinal research was conducted through several interviews. The sample surveyed consisted of advocates and judicial officers who participated in prosecuting and determining parliamentary election petitions following the 2021 national elections. The questions interrogated concerned the ability of the EC to adjudicate nomination complaints and whether the courts are justified in declining to adjudicate parliamentary election petitions grounded on nomination complaints. The study analyzed the situation in other jurisdictions with similar electoral terrains; in particular, it highlights the approach of Electoral Commissions and courts in deciding parliamentary election petitions in Kenya and Tanzania. The study notes the dangers of courts refusing to entertain parliamentary election petitions grounded on nomination complaints and attempts to address the gap in the law and in the courts' recent practice dealing with parliamentary election petitions. The study findings provide practical solutions in dealing with nomination complaints by both the EC and the courts of law in Uganda in order to ensure that mandatory requirements for qualification by any person as a Member of Parliament as required by the 1995 Constitution of Uganda are actually achieved. The study makes various proposals and recommendations to the EC, Courts, and Parliament.
-
ItemAn examination of the nexus between politics and the right to court bail in Uganda(Makerere University, 2024)This study examines the relationship between politics and the right to bail in Uganda with particular reference to criminal defendants that have a political relationship with incumbent power. The study analyzes international, regional and domestic legal materials as well as primary data on related aspects of politics and bail. Participants drawn from the JLOS, politics and civil society were interviewed during the months of October and November 2022, and May 2023. The study findings indicate that the international and regional norms on pretrial rights provide an enabling framework within which criminal suspects in Uganda can claim their pretrial rights, including the right to bail. The domestic framework, however, only guarantees the right to apply for bail, the grant of bail itself being the discretional province of the courts. Unfortunately, this discretion has in politically charged cases been exploited to the detriment of criminal suspects. Over the last two decades, the government has used bail as a weapon against the people it perceives to represent a political threat. This it does by framing unresolved political conflicts as political questions in order that the courts may not adjudicate over them, or as security questions in order that they be subjected to military mechanisms. The imposing nature of the Executive over the Judiciary has meant that some political detainees are denied bail and kept in indefinite pretrial detention. The scheme of denying opponents bail is perfected in the Court Martial, where the time for release on bail is a matter of politics rather than military law. The controversial Bail Guidelines 2022 were issued against this politico-judicial backdrop. Although the Guidelines introduce some novel features, they are largely a replica, and often degradation, of preexisting provisions on bail. From the foregoing findings, the study concludes, briefly, that: (i) the political and security questions underlying bail controversies are a function of the political power contests between the ruling elite and the opposition; (ii) the ruling elite deliberately escalate political conflicts in order to justify the use of military force and exert political control over bail; (iii) judicial independence is greatly compromised in cases involving political opponents of the regime, thanks to the subordinate status of the Judiciary against the executive in reality if not in law; (iv) the Bail Guidelines limit rather than enhance the powers of magistrates and the applicants’ access to bail; and (v) effective implementation of the Bail Guidelines will require some changes in the substantive law on bail. The study makes a number of policy recommendations. These include, briefly, that the Bail Guidelines be revised to harmonize with existing provisions of the MCA and TIA; the law enabling the Chief Justice to issue directives and guidelines should spell out the procedure for doing so, which should be participatory; multi-stakeholder deliberations should be promoted under the JLOS on all important matters of law in order to protect the sanctity of judicial decisions from raw politics; The study also makes a number of more general recommendations.
-
ItemApplicability of the HIV/AIDS prevention and control Act Cap 126 in protection and promotion of the right to non-discrimination among people living with HIV/AIDS: a case of Mulago National Referral Hospital(Makerere University, 2024-11)Since the establishment of the HIV/AIDS Prevention and Control Act, intended for protection and promotion of the right to non-discrimination among People Living with HIV (PLHIV), its success especially in public health facilities is very questionable due to the increasing levels of social stigma. This study sought to examine the potency of the Act, in protecting the right to non-discrimination among PLHIV, to find out factors affecting the effectiveness of the Act and to suggest measures that can be adopted to enhance the effectiveness of the Act. The study adopted a qualitative research approach based on a cross-sectional research design. According to the study findings, few people know the Act’s anti-discrimination provisions. Furthermore, the study revealed that despite the provisions of the Act especially sections 32 to 40 that bar any form of discrimination on grounds of HIV status, discrimination against PLHIV still exists. Findings further revealed that discrimination against PLHIV is practiced majorly by persons living without the condition, medical personnel like doctors, nurses and support staff especially in lower hospital facilities. This discrimination is in form of delayed treatment, poor service quality, denial of services, high service charges, some people being made to buy ARVs and other drugs which are supposed to be for free, that some persons get their drugs delivered to their homes yet others travel long distances to be able to access the drugs. The research also discovered that hospital management bodies strive to maintain equality and non-discrimination against PLHIV. Staff in Mulago hospital who handle PLHIV unlike other medical facilities across the country are knowledgeable about human rights issues in addition to requirements of the Act. However, some staff still discriminate against PLHIV. The study found out that the Act is not being implemented by the relevant authorities. It also reveals that societal attitudes and general weak healthcare systems exacerbate the challenge of discrimination of persons living with the condition. The study recommends that addressing these challenges requires concerted efforts from various stakeholders including government bodies, healthcare institutions, civil society organizations, and international partners. The Act should be amended to among others; include provisions that expressly grant the implementation function of the Act including on promotion of equal treatment to the Uganda AIDS Commission (UAC). There is also need for strengthening of the implementation mechanisms of the Act through adoption of effective and efficient monitoring mechanisms, enhance budgetary allocations to UAC, conducting trainings for medical personnel and raise more public awareness on the provisions of the Act, the right to equal treatment to avert the rampant discriminatory practices.
-
ItemStop scandalising the court: revisiting the concept of contempt in the administration of justice in Uganda(Makerere University, 2024-11)The concept of Contempt of Court encompasses a range of intricate issues, including compromise and inequities within the administration of justice. These challenges arise despite the primary objective of the concept, which is to safeguard the judiciary and its officers from potential threats and to foster the effective administration of justice. This study highlights the historical progression of the concept. To establish its relevance and applicability, the research adopts a comparative framework, drawing upon the experiences and practices from India, Nigeria, and the United States; these case studies provide compelling insights into the administration of justice as it pertains to contempt of court in Uganda. Utilizing a qualitative research design, the study assesses various practices and the significance of contempt of court. It elucidates the conceptual definitions and proposes a theoretical framework upon which the concept may be founded. The research identifies the issue as one that demands meticulous consideration and critical analysis if contempt is to achieve its intended objectives. The findings reveal that the concept of contempt of court is quite abstract and ambiguous, even among judicial officers. However, its judicious application is essential, as it offers opportunities for enhancement within the justice system of the country. Nonetheless, the study underscores the necessity for checks and balances to ensure that the application of contempt provides consistency and equity within the Ugandan justice system. It is recommended that the concept of contempt can effectively promote the ends of justice if clear legislative guidelines are established, the competencies of judicial officers are improved, and the perception of contempt as a punitive measure is transformed. Moreover, it is imperative to ensure that the application of contempt remains insulated from external and political influences, in addition to conducting extensive research and documentation that would lead to a more meaningful implementation of the concept. Finally, courts should adopt a more open stance towards constructive criticism from legal counsel regarding the judiciary and its personnel.
-
ItemHuman rights in times of crisis: the case of COVID 19 in Uganda(Makerere University, 2024-11)In crisis situations, states can limit rights without declaring a state of emergency or derogate from human rights after declaring a state of emergency. Agamben traces the practice of electing a temporary dictator to offer ad hoc leadership in a national emergency to the Roman Empire.14 Following the Second World War, Clinton preconized the advent of a dictator of a constitutional nature that is limited in time, with the mission to preserve the constitutional order and who remains within constitutional boundaries.15 He argued for a de facto normalization of emergencies, in the sense that states of emergency have become 'the dominant paradigm of government in the 20th century' where, the state of emergency is not a state where law continues to be created, although without democratic methods, but a true state of anomie, or space without law. Scott P. Sheeran notes that the state of emergency is now a frequent practice in all parts of the world.17 Modern constitutions provide in overwhelming numbers the possibility to declare a state of emergency and do so by equipping the constitutional architecture of the state with certain boundaries and built-in safeguards with parliamentary oversight. This prohibition seems to confirm the conservative nature of states of emergency which derives from the Roman archetype,18 whereby in cases of emergency the senate could entrust the consul to appoint a dictator with the power to enact the necessary actions (suspend rights, engage military action or suppress insurrection). The conservative aspect of emergency powers in the Roman experience was inherent like the emergency dictator's office, which was limited to six months, after which the dictator was expected to step down and the status quo ante to be restored. Posner and Vermeule revisited the issue of emergency powers,19 claiming that the exercise of emergency powers by the executive became unbound, especially after the 11 September terrorist attacks in the United States of America. The executive is the only state organ that has the resources, power, and flexibility to tackle an emergency while balancing it with civil liberties. The executive seems therefore to be the best and perhaps the only institutional actor that can manage emergencies of a security character. They therefore advocate for an 'unbound executive' power in times of crisis