Course work II

1 INTRODUCTION. According to GLANVILLE WILLAMS Glanville Williams learning the law Law as the “cement of society and also an essential medium of change” on the other Hand Roger Bird while referring to Hobbes defines law as” an obligatory rules of conduct, the commands of him or them that have coercive powers” Society on the other hand according to Wikipedia, A society is a group of people involved in persistent social interaction, or a large social grouping sharing the same geographical or social territory, typically subject to the same political authority and dominant cultural expectations. Human societies are characterized by patterns of relationships (social relations) between individuals who share a distinctive culture and institutions. Several philosophers have tried or did endeavor to the definition of Law. Famous personalities such as John Locke, Thomas Hobbes, Plato, Aristotle among others all gave definitions on what they thought Law was. When we say Law is socially constructed, it requires as to critically examining the relationship between the Law and the society. How they are mutually co-exist or how they Might not exist together. For purposes of this question I will focus my discussions on the Ugandan Jurisdiction 2 IN UGANDA IS LAW SOCIALLY CONSTRUCTED? One can make an argument, that Law was socially constructed in Uganda. The argument for this is that Ugandan society is a combination of different unique societies’ that had various forms of Laws that governed their society. In the following arguments below I intend to look at the different schools of thought, what they tried to advance to define law in comparison to Uganda in general and the societies with in. Before the Introduction or exposure of Uganda to the outside while inform of missionaries, traders et al Uganda was made of different Ethnic Diverse communities that had Laws which Governed everyday life. The most prominent of these societies were Buganda and Bunyoro. Each philosopher mentioned above had a view on what they thought Law ought to be defined. NATURAL SCHOOL OF LAW THEORY ST Thomas Aquinas (1225-1274), believed Law was a divine revelation, he was of the view that Man derives his Law from God, essentially he advocates that outside the Laws of Nature. In Uganda the learned priest view could hold water because before the coming of the missionaries, Indigenous societies of Uganda, had various forms of Deities they believed in for various reasons however there was belief in one Supreme Being. However this theory is challenged by the fact that the rulers of these indigenous societies were the Source of Law. Whatever they willed was made Law. This scenario is supported for example, King Mwanga II of Buganda. (1863-1903) www.wikipedia.org/King Mwanga II, who was alleged to have Homosexual tendencies, it is rumored he made sexual advances on some of his pages in his court yard, and he was enraged when they rejected his advances and thus decided to execute these pages. These pages had accepted the Christian faith. By the pages accepting the faith the pages had defied the King’s advances which was tantamount to disobedience of the King who was the Law. Therefore their actions were in conflict with ST THOMAS ACQUINAS who belief that Law came from God. Another example HM King Henry VIII of England and Wales www. Wikipedia.org/Henry VIII (28 June 1491 – 28 January 1547), HM had inherited his Late Brother’s wife, Lady Catherine of Aragon. Their union failed to bear a Male issue, who would automatically become Crown Prince, due to the failure of his wife top bear male child, he sought permission from the Pope to divorce his wife, the permission was denied, he went ahead to Divorce the Commonwealth of England and Wales, from the Catholic church, which led to the Establishment of Church Of England. These examples highlight how the Rulers of the Land dictate what Law should be, more so these examples are in line with Thomas Hobbes who said rulers have no obligation to the people and their only escape is death of the Rulers, JOHN LOCKE (29th August 1632-28th October 1704) He advocated for the state of nature. He was of the view that man lived in perfect state o0f nature, perfect freedom, meaning man was only accountable to himself, and he also advocated that no man gives up power through force rather he willingly devolves to other people out of his own free will. Locke also advanced a theory that all mankind were equal before each other, hence none was superior of the other. He further advocated for Penal system in which offenders of the Law, must be punished. This must be done in order to preserve the tranquility of the society. This theory of Locke was predominant factor in Ugandan Societies, which also had forms of punishments, for example in Ugandan indigenous communities pregnancy outside wedlock was a taboo, in fact in the Kigezi community ,the would be culprits would be thrown over a cliff. This was done as warning to others not to dare, engage in these acts. Much as this was a warning, it was unfair because the boy/man responsible for the pregnancy was not punished. This in my view betrayed the principles of Locke who advocated for equality before the Law. Article 21(i) of the 1995 Constitution of the Republic of the Uganda say ”all persons are before and under the law in all spheres of political, economic, social and cultural life and in every other respect and shall enjoy protection of the law 1995 Constitution of Uganda.” . Locke’s’ ideas of equality before the Law was confirmed by this article. In my view the ideas of Locke and St Thomas Aquinas had impact on Ugandan societies. Reason being that some of the ideas were either in directly or indirectly incorporated into Ugandan societies. The impact of Aquinas was felt in the form of the Missionaries who brought the concept of Religion and belief in one deity or Supreme Being. Aquinas teachings were exercised by the missionaries who taught absolute belief in the Bible; as the only source of Law. Locke’s influences on Ugandan societies was in the form of the Governance principles. Locke’s advocated for equality before the Law, he championed reasoning and dialogue. He advocated for punishment of crimes, which must be clearly defined, in principle he stated that for society to thrive individual liberties must be respected such as freedom of Speech, association and Religion among others his principles were enshrined in our Constitution; Article 29(i) (a) every person shall to; (a) freedom of speech and expression which shall include freedom of the press and other media, (b) freedom of thought, conscience and belief which shall include academic freedom in institutions of learning. (c) freedom to practice any religion and manifest such practice, which shall include the right to belong and participate in the practices of any religious body or organization in a manner consistent with this Constitution These provisions were in my view the indirect contribution of John Locke when he said man is in a state of Nature. Where he enjoys a perfect nature. HISTORICAL SCHOOL OF THOUGHT. This school of Law limited to western Law. This school of thought contended that law was developed as series of evolutions. These philosophers were of the view that the origins of law should be looked from a historical background. They were of the belief that our history would best define what law is and how it should be. This traces the social origins of the Law and its historical dimensions. They try to see how people in General came up with laws. Individuals such as SIR HENRY MAINE (1822-1888), argued and differed from their colleagues in the natural school of thought that is the Law is not derived from God as advanced the social contract theorist. The historical perspective was that at whatever moment in history law had a definition. In fact they believed that society and the people always defined what Law. Custom, was pronounced as the historical source of Law. When we look at Maine’s ideas in comparison to Uganda, they seem to resonate. The representatives of the school believed that law passes through three stages in its development: (1) The spontaneous, unconscious emergence of norms of customary law in the soul of a nation through the development of the “national spirit”; (2) The expounding by scholarly legal experts who perfect positive law as applied to increasingly complicated societal relations; and (3) Codified law, which represents the union of customary law and the law of legal experts. Legislation can only supplement standing law, These stages were in their view how law developed. This was the exact case in Uganda, the British Government between 1900-1905 signed a number of agreements with different indigenous societies of Uganda, and for example 1901 Buganda Agreement signed on 10th March 1900, The Ankole agreement of 1901, among others, these agreements had terms which the natives would abide by, these agreements made provisions which respected some of our native customs and disregarded some. The emphasis that Law must have been developed from a custom was crucial because these historical perspective found it prudent. Reason being that you cannot come from nowhere and impose a new Law among the people without assessing their customs and beliefs. These views would later be adopted by fascist leaders of German. The historical perspectives were criticized by their colleagues who turned to be the Positivists. POSTIVE SCHOOL OF LAW Positive law was school of thought was of the view that Law is made by the state. It is empirically verified and can be enforced by the state. The state is the only one which can enforce the law. That Law must be in the books with defined penalties. Article 28(12) of the Constitution of the Republic Of Uganda states as follow; “except for the contempt of Court no person shall be charged with a criminal offence unless the offence is defined and penalty for it prescribed by the law”. In my view the above article of the constitution is a reflection of the Positivists’ idea. The positivists also were credited with the founding of human rights which were pre dominant in Europe and North America. The idea of Human Rights I enshrined in the 1995 Constitution of Uganda from Article 28- Article 58 of the Constitution 1995 Constitution. with this brief background on the various philosophers I wish to discuss whether Law in Uganda is socially constructed?. The Ugandan society has evolved over time. And with its evolution so has the Law. From the primitive indigenous communities, the Ugandan state as we know it today was founded in 1894 when the country was declared a protectorate, by Imperial British East African Trading Company. As I had earlier mentioned several agreements were signed between the British Government and the several ethnic communities. These communities had their various laws and customs which they abided by. However when colonial rule was being entrenched, the colonial government enacted various Laws to administer the Colony. The first such Law was the 1902, Order in Council that was shipped to Uganda. This Law established a Commissioner with so much intense power. It made the commissioner so powerful and he was only answerable to the Secretary of State in UK. The order in council established Her Majesty’s High Court [Article 15(1)] in Uganda with Unlimited Jurisdiction over criminal and civil matters. The court was established as an appellant court to handle matters that would arise from native courts Article 20 of the order in council established the repugnancy clause, this clause in effect dealt with customary Law in the protectorate/colony. Some of the authoritative case on this repugnancy clause R v Amukeyo (1917) KLR 14 Kenya Protectorate Law reports, Amukeyo had been charged and convicted of the offence of possession of stolen property and the main witness against him was a woman whom he claimed to have married according to native customs. On the basis of the Law of evidence, the testimony of this woman should not have been admitted given the desire to protect marital confidence. The issue before the Court was whether a woman married under native custom was a wife in the strict sense of the word and in effect the relationship between Amukeyo and the woman could be construed as marriage. “………………Hamilton CJ(as then he was), took the view that the relationship between Amukeyo and the woman was for lack of a better phrase wife purchase and that it did not fit in the idea of marriage as generally understood in the civilized people and that the native custom was a supply to repugnant to good conscience and morality. The learned Judges, holding was in effect that if the Marriage was not understood in the terms of the “civilized society” then this union could not be recognized as legal. The ruling had far reaching effects on the doctrine of marriage in Kenya and East Africa in General. In Gawo Bin Kilimo v Kisssunda Bin Ifuti(1928) 1 T42 403 Tanzanian protectorate law reports, a government tax clerk named Mange received Shs 10, from Kisunda as poll tax and issued him with a false tax ticket and converted the money for his own personal use. Mange was charged and convicted in a Criminal Court. Subsequently Kisunda sued for return of his ten shillings and obtained a Judgment in his favour, thereafter Kisunda went ahead and took possession of two heads of cattle, which was not property of the accused but that of his father. The Father of the accused unsuccessfully, objected to this native custom and brought the matter to the High Court of the Republic of Tanzania. His Lordship Justice Wilson had this to say “it could never be expected that an individual should bear responsibility of the conduct of another adult person and therefore the Turu native law was repugnant to natural justice” In this case the Learned trail Judge rejected the above custom. This meant that it did not pass the repugnancy clause. However in Alai vs Uganda (1967) EA 596 East African law reports 1967 edition Sir Udo Udoma CJ (as then he was), restored customary marriage in Ugandan society by holding that marriage contracted under customary or Islam were legal and therefore a spouses could not testify against each other. The courts of law have time and again enshrined this test of repugnancy in many other cases. For example in Bruno Kiwuwa v Ivan Serunkuma & Juliet Nammazi HCCS 52/2005 High Court Bulletin 2005-2006 Editions, In the above case Plaintiffs’ father sued his daughter and her intended fiancé objecting their union on grounds that they belonged to the same clan and thus their union could not be sanctioned. Justice Remmy Kasule held in the affirmative that the fact second and third defendant belonged to the same clan they could not get married. According to the Cultural norms and practices most especially in Central Uganda, persons intending to contract a customary marriage must belong to different clans. The Learned Justices’ ruling is true testament to the Idea that Law is socially constructed. The Learned Justice, upheld a custom which I would agree in the affirmative that law is socially constructed because the laws made are always made according to the prevailing the conditions. The law moves along as the society grows, i.e., when the society grows, so must its laws. However in some cases that is not so for example the Witchcraft Act 1957 is still in force and so are its penalties however one the penalties was outlawed in the case of Savlotori Abuki & another v Attorney General Constitutional case no 02 of 1997 www.ulii.org. The accused person were charged and convicted under the Witchcraft Act in Grade II Magistrate Court of Lira. Both accused persons were sentenced to 22months imprisonment and banishment of 10 years from their villages. The petitioners challenged their sentences most especially the banishment of ten years from their villages. Court held in the affirmative that the punishment of ten years was harsh. Therefore the court upheld the 22month sentence however the declared that punishment of ten years banishment was inconsistent with the constitution. DCJ Mayindo as then he was made the following orders; (i) The section interpreting the Witchcraft that is S.2 and S.3 do not meet of the Witchcraft Act are void of being Vague and ambiguous and don’t meet the requirements of Article 28(12) of the Constitution (ii) The exclusion order is unconstitutional because it threatens the life of the petitioners by depriving him of means subsistence and deprives him access to property. Hence it was in human, as it is a threat to life and contravenes Article 24, 44(a), of the Constitution by depriving the petitioner of access to his property, the exclusion, order contravenes Article 26 of the Constitution as well. The learned Judges decisions were in my view the merger of the evolution between the laws and society. However some Laws have been amended to carter for the growing and emerging dynamics of the society. For Example the Penal Code Act of 1930 Cap 120, was amended in 2007, it also introduces a new section to known as child to child sex (S.129A) Penal Code Act Cap 120. This section was introduced to deal with cases of children in the eyes of the Law to deal with children engaged in sexual behavior were both parties were under the age of eighteen. The Anti- Terrorism Act 2001, The Domestic Violence Act 2005, The Anti-Corruption Act 2009, Public Order Management Act 2012, among others are some of the Laws that were passed to carter for the changing times of the society. However some laws like the Enguli Act 1964, has never been amended, the Law Development center Act 1970, has never been amended. Several amendments have also been made to the Constitution. Such as the removal of presidential term limits, the Removal of the Movement system of Government and re-introduction of multiparty elections in Uganda. These show how the society has changed and so have their laws. These changes are not only limited to politics but also other spheres of life like marriage. Marriage in Uganda is recognized under Customary, Civil, Hindu ad Religious. The most common form in Uganda is customary marriage. The courts have pronounced on this much more than any other in August 2015, The Supreme court in Constitutional appeal 02 of 14 Mifumi &12 others v Attorney General & Kenneth www.ulii.org.Kakuru Constitutional petition no 12 0f 2007, Court held in the Majority that bride price is legal and a valid custom in Uganda however the practice of bride price refund at dissolution of the Marriage was illegal and unconstitiuonal, the Court also held that the practice of bride price is legal in Uganda and not unconstitutional as had been prayed for by the petitioners. The Learned Justices decision is a true definition that Law in Uganda is socially constructed. 3 CONCULSION In conclusion Law is indeed socially constructed because it has always evolved with the society. Therefore the statement is valid because the as the Positivists put it Law cannot be imposed on the Society without understanding its History or cultures, therefore I agree with the Statement Law is socially constructed. REFRENCES CONSTITIUTION OF THE REPUBLIC OF UGANDA 1995. GLANVILLE WILLIAMS learning the Law 11th edition. Oxford publishers. EAST AFRICA LAW REPORTS. WILLIAM BURNET HARVEY. An Introduction to legal systems in East Africa, East Africa literature bureau 1975. 9 Glanville Williams learning the law.