The Ugandan legal system, rooted in the English common law tradition, is built upon the principle of stare decisis; the principle that lower courts must follow the decisions of higher courts and that courts should generally abide by their own previous rulings to ensure certainty and stability.
However, a growing chorus of legal practitioners and scholars suggests that this principle is cracking. For a law student in the “old school” tradition, a reported judgement was more than just a conclusion; it was a guide about the practical application of laws.
We were taught that to read a decision by a jurist like justices George Kanyeihamba, Joseph Kakooza, Bart Katureebe, Kenneth Kakuru, Jotham Tumwesigye or Christopher Madrama was to witness the clinical application of a legal principle to a set of facts.
However, the contemporary landscape of the Ugandan judiciary is undergoing a seismic and troubling shift. The “tone” of modern judgements has moved from the cold, analytical brilliance of legal merit to a more populist, emotive, and sometimes overtly political resonance.
Where we once looked for the “spirit of the law”, we now often find the “spirit of the moment”.
Today’s judicial officers frequently appear to be writing for the headlines rather than the Law Reports. There is a growing tendency to prioritise judicial activism fuelled by personal emotion or political expediency over the grounded constraints of stare decisis.
Instead of being the “anchors” of legal certainty, some benches have become legal “hitmen” for the government, shifting their interpretation of settled law to suit the political climate or to exhibit a performative intellectualism.
This departure not only just confuses the law student but also erodes the very foundation of the rule of law, replacing predictable justice with the subjective whims of the person behind the robes.
You are poisoning us!
At the Law Development Centre, where future practitioners are prepared, we have come across judgements which many of the students no longer read from certain judicial officers. For anyone who has attended law school, you can tell from the four corners of the judgement that the judge was either incompetent or manipulated by only looking at facts, evidence and issues of the case.
I cannot forget the “distinguishing” trap: a novice way to bypass a precedent these days is to claim the facts are “distinguished” from a previous case, even when the legal principle is identical. My favourite word is “Mutatis Mutandis.”
I write this article not to condemn the bench but to call it back. Please don’t treat my opinion with contempt or use it to block my future opportunities!
I believe the problem is rooted in, inter alia, the rising trend of judicial individualism. The bench should be collective; that is how it is able to defend its independence from all external influences.
In the past, a judgement was a collective contribution to a steady stream of law. Today, there is a perceptible hunger for “immortality” and who is for the people.
Many judges no longer want to simply apply the law; they want to be the law. There is a drive to write lengthy, flowery prose loaded with international citations—often irrelevant to the Ugandan context—just to sound intellectually superior.
Instead of sticking to the “ratio decidendi” (the reason for the decision), some judgements wander into the realm of obiter dicta (incidental remarks), creating confusion for lower courts who might struggle to find the actual binding rule. Some brag about writing judgements that you cannot appeal and succeed.
The questionable promotions of some judicial officers can be a cause of the departure from the doctrine; leaving the experienced justices behind, I think, makes them close their eyes and disregard a superior decision from those they consider to have been their juniors. Is the recruitment criteria failing?
Critics argue that modern judicial recruitment may be veering toward academic over practical merit: a judge might have a PhD but lack the “courtroom DNA” required to understand how a departure from precedent destabilises the banking or land sectors.
The rising political and administrative considerations: When loyalty or administrative efficiency is prioritised over “black-letter” legal expertise, the quality of jurisprudence inevitably thins out.
Citizens only have hope in courts of law because all other arms of government are political and cold. When the court becomes political, then citizens have no mother to report to but to die in silence.
In conclusion, the death of precedent is not just a theoretical problem for lawyers; it is a crisis for the citizen. If the law changes depending on which judge is sitting in the “hot seat” that morning, the law becomes an instrument of chance rather than justice.
The writer is a youth leader and lawyer