SOME EXAMPLES OF JUDICIAL LAW MAKING IN AFRICAN LEGAL SYSTEMS

AuthorE. Veitch
Published date01 January 1971
Date01 January 1971
DOIhttp://doi.org/10.1111/j.1468-2230.1971.tb02311.x
SOME EXAMPLES
OF
JUDICIAL LAW
MAKING IN AFRICAN LEGAL SYSTEMS
INTRODUCTION
THE
sterility
of
the argument of judge-made law versus legislation
was long ago exposed by Sir
C.
I<.>
Allen in his
Law
i)~
the
Making.'
In the same vein, the view that judges do make the law has gained
acceptance among the majority
of
both judges and writers.
Pro-
fessor Priedman has recently written,
"
The Blackstonian doctrine
of the
'
declaratory
'
function
of
the Courts, has long been little
more
than a ghost."' However, the extent
of
this judicial law
making,
as
seen in recent English case law, has provoked some
excellent opinions in article f01-m.~ As yet, however, nothing has
been said on this subject with respect to the English-speaking
African legal systems.
It
is clear that the role of the judge in
a
developing legal system
may differ from that of his counterpart in
a
developed system.
In
a
recent House of Lords judgment, Lord Reid, when speaking of the
historical role of the English judges, said
:
''
Courts have often introduced new rules when, in their view,
they we're required by public policy. In former times, when
Parliament seldom amended the common law, that could hardly
have been avoided. There are recent examples although,
for
the reasons
I
gave in
Shaw
V.
D.P.P.,4
I
think that this power
ought now
to
be sparingly used.''
5'
The first part of Lord Reid's dicta can readily be applied to the
English-speaking African legal systems. The volume of legislation
1
7th ed.
(1964)
at
p.
309.
2
"
Limits
of
Judicial Law-making and Prospective Overruling
"
(1966) 29
M.L.R.
593.
For
another opinion, see Sir Keuneth Roberts-Wray
[19GO]
J.A.L.
66:
''
I
am
old
fashioncd enough
to
find attraction in the contrary view,
the doctrine
ou
which
I
was nurtured as a
Jaw
student; that the
law
is
loclted
up
in the breasts
of
Ghe Judges who interpret
or
propound
it
bul
do
not make
it:
that the expression.
'
judge-made
'
law is strictly
B
misnomer; and that a
new principle which emerges from
a
judgment leaves
the
law
unchanged but
the lawyer enlightened."
3
Friedman,
loc.
cit.,
supra.
Stevens,
"
Role
of
e Final Appeal Court in
a
Democracy
"
(1965)
28
M.L.R.
509;
Ulorn-Cooper and Uremry,
I'
llcflections on
lhe Social Utility of Final Appellate Courts
"
(1969)
32
M.L.R.
262. The cases
discussed ere:
Shaw
v.
D.P.P.
[1962] A.C. 220;
IIedley,
Byriie
v.
Heller
[1963]
2
All
E.R.
575;
aud
Rookes
v.
Barnard
[1964]
1
All
E.R.
367.
4
[1962] A.C. 220.
5
Suisse
Atlantiqice
v.
N.V.
Rotterdantisclrc
[1966] 2
Amll
E.R.
61.
Both
Profes-
sor
Stevens and
Sir
C.
I<.>
Allen have mentioned Lord Reid's Scottishness in
his approach but only the latter writer hinted at but did not explain that
heritage in terms of the
nobile
offieizint of the Court
of
Session. These powers,
extant in limited
form,
were in former times the mode
of
judicial legislation in
Scotlend
ou
a wide scale.
42
JAN.
1971
JUDICIAL LAW MAKING IN
AFRICAN
SYSTEMS
43
passed in these systems following independence has been very great
but it is true to say that despite the flood most of the old law is still
in force.G That is to say, the new law has been administrative and
adjectival rather than substantive in nature, albeit that law reform
is
a
live issue.
It
is equally true
to
say that the laws of the bound
volumes often bear little relation to the day-to-day problems coming
before the courts. Tohis situation has therefore demanded that
the judges give broad decisions
to
effect
(‘
Africanisation
or
modernisation
of the received law both written and unwritten.
At present English law remains the general law; but customary
law and Moslem law still govern the lives of the vast majorities of
the peoples living outside of the urban areas in the African systems.’
And while customs have had
to
give way to the power
of
the alien
law, the policy of the governments now appears to be unification
of
the two kinds
of
laws by legislation. This legislation must also take
into account the political aims of the governments committed to
socialism.
Criminal law has already been codified: in some countries the
customary criminal law has been eliminated entirely
*;
in others
it
has been grafted on to the English derived law
9;
and in still others it
has formed the basis, to the considerable exclusion of the received
law.l0
Likewise in contract and tort law, where there were not strongly
competing customary principles, legislation has been enacted which
has drawn on both English and American sources.”
Attempts have been made to unify the law applying to land and
always there has been
the
ultimate promise of nationali~ation.~~
But the areas of matrimonial and succession law have proved
more difficult to rationalise: as
Mr.
Park has said.
These are sub-
jects which
it
is impossible for legislation
to
move very far in
advance of opinion and practice among the public. Any attempt
now to abolish that law in its application to them would be a
potentially dangerous exercise in futility.”
l3
The stubborn resistance of the customary personal law
to
‘‘
mod-
ernising
’’
is to be seen in both the legislative failures as well as in
the successes. Notable failures have included the Limitation of
6
J.
W.
Selacluse,
Brightening the Revolution,”
Africa
Report,
March
1968.
7
Por example there are some
700
courts
administering customary
law
in the
8
Tanzania (Inaiuland) and Malawi.
8
c.9.
Uganda.
’O
As
in
the
Northern States of Nigeria.
11
The Contract Act
of
Tanganyilia and the Sale
of
Goods
Act
of
Ghana provide
good
examples.
l2
Therefore no citizen should entertain the idea that the Government of
Uganda mnnot, whenever It is desirable in the interests
of
the people nahion-
alise
mailo and freehold land at any time for the benefit of. the people.” Para.
39,
‘I
The Common Man’s Charter,” by President
A.
Miltoh Obote, December
Noithern States
of
Nigeria
to
a
population
of
some
30-odd million.
19,
1969.
l3
Tlre
Sources
of
Nigerian
Law
(1963),
p.
142.
44
THE
MODERN
LAW
REVIEW
VOL.
3s
Dowry Law
l4
and the Abolition of the Osu System Law,ls both of
the former Eastern Region of Nigeria. In practice the amount
of dowry has increased and discrimination against persons belonging
to the Osu castes has not abated. Both laws remain law only on the
statute book. The tenacity of the customary law is also to be seen
in the omissions of the legislatures; all have wished to bring in legis-
lation more in keeping with their own social and economic condi-
tions; all have hoped to write laws which would engender the new
social values necessary not only for nation-building but also for
pursuing a socialist path.I6 But the unwillingness of the customary
law to yield is witnessed by the many reports, recommendations
and submissions of learned commissions which have never been
translated into law acceptable to the mass of the pe~ple.’~
Two examples illustrating the power of the practices of the people
and the corresponding difficulties of
a
government attempting to
construct a law accommodating both their progressive aims and the
ideas
of
the people, can be taken from Uganda.
The preamble to the Uganda Succession (Amendment) Bill of
1967
declared
:
. . .
the property of the majority of the people in Uganda
who die without making a will is subject to the customary laws
and that much too often the wives and children of persons who
die intestate are put in
a
desperate financial position because
the property which should be theirs is taken by persons claim-
ing heirship under customary laws. This Bill in seeking to
amend the Succession Act,
goes
much further than the Statu-
tory Instrument
181
of
19G6,
and abolishes the distinction
between those persons subject to customary law and others who
are not. Under the law
as
amended by this Bill the property
of
a person who dies without having made
a
will will be distri-
buted among the relatives according to clearly defined rules.
If
a person does not like the rules, he may make
a
will distributing
his property in the manner he wishes this to be done and
pro-
vided the will is properly made under the provisions of the
Succession Act, his wishes will be carried out regardless of any
conflicting customary law.”
This proposed amendment did not attract popular support and
thus has not reached the statute book. This was the fate
also
of
a
projected measure of reform
of
the matrimonial law. In
1065
there
was set up in Uganda
a
Commission on Marriage, Divorce and the
14
No.
23
of
1956,
Laws
of
Eastern Nigeria.
1.5
No.
13
of
1956,
Laws
of
Eaaterri
Nigeria.
16
“Some
of
these interests and jural ostulates
as
could be found
in
trsditionnl
dand
tenure,
or
in succession
and
interitance
under
cuotoinary ,law which still
obtains in
some
Ghanaian local communities.
are
both
opposed
and
inimical to
radical national and economic developments.’’
Dr.
Ogwurike
(1967)
4
U.G.L.J.
122.
17
See
Professor
A.
A.
Scliiller,
I‘
The
Draft
Legislation and Customary
Law
18
1Jnder
the
hand
of
(;.
I,.
13inaiss,
Q.C.,
Att.-Gen. April
28,
19G7.
Compare
[1969]
E.A.L.S.
88.
the opposite
result
in
Nigeria in
Yintcsa
v.
Adesubokait
discussed
infra.
JAN.
1971
JUDICIAL LAW MAKING
IN
AFRICAN
SYSTEMS
45
Status of Women under the chairmanship of
Mr.
W. W.
Kalema,
M.P.
It
was charged
to
consider the relevant laws of Uganda
bearing in mind the need to ensure that those laws and customs
while preserving the existing traditions and practices
as
far
as
possible should be consistent
with
justice and morality and appro-
In the report the members commented both on existing practices
and the existing law. They pointed out that
most are unaware
or
ignore the fact that
a
Marriage Act (English style) marriage
makes the husband incapable of contracting
a
valid marriage under
native law and custom
while the first marriage subsists.”
2o
Also
the members questioned the apparent discrimination between the
wife of
a
polygamous marriage and the wife of
a
monogamous
marriage contained in the Uganda Evidence Act.21
The Commission principally recommended that no person should
be allowed to register mme than one wife, which they justified in the
words
:
Though basically
a
polygamous society, there is
a
substan-
tial number of people who are monogamously married. The
various customs always give special place to the first wife, that
is, she is the wife. Human nature being what it is, Muslim
adherents are not capable of loving equally two
or
four wives.
One marriage only is demanded by the need for higher standards
of living, education and for spiritual advancement.”
22
The Commission’s report
has
not been acted upon and it seems
unlikely that it will form the basis of new legislation.
As
with the
Succession (Amendment)
Bill,
the report was not favourably
received throughout the country, the people being unconvinced of
the possibilities of material
or
spiritual advancement.
While the government legal officers have been largely unsuccess-
ful in their efforts to draft legislation modernising the matrimonial
law and the law of succession, they have had greater success, at least
19
Compare
the Introduction to th: Kenya Repopts of the Commissions
on
Mar-
iiage,
Divoice and Succession:
We
agreed that the new law should generally
be compatible with the African way of life, and should not be based
on
any
foreign model. On the other hand, the law should recognise that the traditional
African way of life is rapidly changing and should therefore cater for differing
conditions both in the rural and urban areas.
We
thought that the law should
iecognise that Kenya is
a
country of many races, tribes, communities and
religions, that the
laws
and customs of these different people
are
deep-rooted
and that any changes we suggest should offend
as
little
as
possible their
respective beliefs. On the other hand, we thought that the new law should
encourage national unity and the building of Kenya as one nation irrespective
of race
or
crced.” The reports are discussed at length in
a
Symposium in
[1969]
E.A.L.J.,
Vol.
V, Nos.
1
and
2,
pp.
5-145.
2o
Para.
29
;
and compare
Naniatovu
v.
Kiroiide Bakery
Ltd.,
infm.
21
At
para;,
193
of the Report.
S.
119
of
the Uganda Evidence Act (cap.
43)
reads: where
a
person charged with
an
offence is married
to
another by
D
marriage other khan a monogamous marriage such
a
last-named
person
shall be
a
competent and compellable witness
on
behalf either of the prosecution
or
the
defence.”
22
At
paras.
212
and
213
end comment; to be compared with the quote at
p.
90
of
Professor Schiller’s article.
loc.
cit.
note
17.
priate
to
the position of Uganda
as
an independent nation.
.
.
.
YY
19
46
THE
MODERN
LAW
REVIEW
ITOL
34
in sthe drafting, with legislation whose declared aim has been to teach
new social values, and in the instance below, to engender a greater
appreciation of the value of human life.
In the debates of the Uganda National House of Assembly on the
Penal Code (Amendment) Bill of
1968
arguments of this kind were
put forward. By the provisions of the Bill section
273
of the Penal
Code was redrafted
so
as to make the death penalty mandatory for
armed robbery with violence. In justifying the imposition of the
death penalty, the promoter of the Bill said:
I
venture to submit that there will be a time when the
generation that will come after us will say that this punishment
is no longer wanted.
I
am saying
. .
.
,
that values have got
to grow: that is what
I
mean by community growth.
. .
.
Our
task is made difficult by the fact that we are nation builders at
the foundation level.”
23
So
far there have been mentioned legislative failures such as the
Limitation of Dowry Law and the Abolition of the Osu System Law
where the laws were enacted but never made effective; also given
mere examples of legislative omissions in matrimonial and succession
law such as the Succession (Amendment) Bill and the Report of the
Kalema Commission which were never enacted; and then were noted
legislative successes such as the Penal (Amendment) Bill which was
enacted and has since been made effective.
Still to be examined is the approach of readjusting the received
law by the insertion of clauses accommodating customary law and
practices. This technique was adopted by some of the former
Regions of Nigeria.
For
example, in the fatal accidents law of the
former Northern Region provision is made for polygamous marriages
and for customary modes of distribution of the award.Z4
In section
2
immediate family
(those having a legitimate
claim)
is
defined
as:
(a) wife
or
wives, and (b) in relation
to
a
deceased person who was subject to the systems of native law and
custom known as Moslem, the persons who are entitled to share in
the award
of
diya prescribed by Moslem Law for involuntary
homicide.”
Section
4
recognises the legal status of customary representa-
tives
:
Every such action shall be
for
the benefit of the members
of
23
Vol.
83,
Parliametltary
Debates,
Second Session
1967-68,
cols.
3267
and
3339,
per
Doctor Zake, Minister
of
Health and Ag,r$ulhure, Att.-Gen. Like\\ ise the
preface
to
the Civil Code
of
Ethiopia
(1960)
:
The Civil Code has been polnu;-
gated by
Us
at
a
time when the progress achieved
by
Ethiopia requires the
modernisation
of
the legal framemork
of
Our
Empire’s social struoture
so
as
to
keep
pace
with the changing circumstances
of
the world today. The aim
of
Our Code mas, rather than
to
sanctify existing practices,
to
offer
a
unified legal
model
for the society
to
come.”
24
N.R. No.
16
of
1966:
and compare that
of
the Eastein Region,
E.R.
No.
1F
of
1956;
that
of
the Western Region (cap.
122)
of
1959;
and
that of the
Federal Territory
of
Lagos,
No.
34
of
1961.
JAN.
1971
JUDICIAL LAW MAKING IN AFRICAN SYSTEMS
47
the immediate family of the person whose death shall have been
so
caused and shall be brought,
(a)
by and in the name of the executor or administrator of
the deceased person
;
or
(b) in the case of
a
deceased person who was subject to any
system of native law and custom immediately before his death,
at the option of ,his immediate family by and in the name of
such person
or
persons
as
the court may be satisfied is or are
entitled
or
empowered to represent the deceased person
or
his
estate according to such native law and custom.’’
Whatever the legislative experience, be
it
enforced inactivity, or
gentle adjustment, or failure,
or
even success, there has been
a
considerable burden placed on the shoulders of the judges.
T.hey have had to contend with the gaps left where no new
law
has been forthcoming and thus with the divergence between the
ideas and practices of the people and the ideology of the unreformed
alien
law.
Here the judges have resorted, though not often, to inter-
preting the English derived law
as local circumstances render
necessary.’’ T,he broadness of some of these decisions, the grant
or
withdrawal of rights of whole classes in society, are clear examples
of judicial law-making.
Where the chosen mode of legislative change has been revision of
the received law by the grafting
on
of customary derived clauses,
still the judiciary have had to take the initiative since this technique
has
left untouched much of the pre-independence law including pre-
1900
English statutes of general application such as the Wills Act
of
1837.
Where the reforms have been ineffective
the
Bench have been
called upon merely to accept that fact. But where the new legisla-
tion has been both enacted and made effective the judges have had
to
apply the law in the knowledge of the fact that there is
a
con-
siderable distance between the opinions and habits of the people
and the values and aims embodied in that new law. They have
found it necessary to interpret that new law, through divining the
real intention of
the
legislature, in order to apply
it
in
a
manner
approaching
natural justice, equity and good conscience.”
THE
CASES
The unreported case of
Namatovu
v.
Kironde
Bakery
LMZ5
pro-
vides
a
clear example of the technique of interpreting the untouched
received law
as
local circumstances render necessary.”
2n
The
initiative of Sheridan
J.,
as
he then was, appears to run contrary to
the intention of the legislature with respect to the status of custom-
ary or polygamous wives. In Uganda the legislature, and often the
25
High Court
of
Ugauda, Civil Case
132/1061
(December
1961).
*6
Most
of
the English derived enactments were accompanied by
n
proviso
of
this
kind but they were rarely invoked despike the
dicta
of
Denning
L.J.,
as
he
then was,
in
Nyali
Ltd.
v.
Att.-Gen.
of
Kenya
[1957]
A.C.
253.
48
THE MODERN
LAW
REVIEW
VOI..
3.1.
courts in East Africa
as
a
whole, have refused to recognise these
wives
as
equal in status to Church or
‘‘
ring
’’
wives. This is to be
seen in the provisions of the Evidence Act and in the cases
of
R.
v.
Anakeyo
and
Abdulrahman
v.
R.zl
The facts of
Namatovu
were
as
follows
:
in
an
action arising from
a
fatal accident, brought under the Law Reform (Miscellaneous
Provisions) Act 1958, it was shown that the deceased had left six
sons, five daughters, three widows,
a
mother and
two
sisters
as
dependants. The point of law rested in the status of the three
widows; one was married to the deceased in Church, that is,
a
ring” wife, and therefore, under the law of Uganda, was the
legal wife, while the other two were married to the deceased by
custom.
Counsel
for
the defendant company did not question the joining
of
the two customary widows
as
claimants
;
however, Sheridan chose
to expand on the point.
He
said:
It
mig.ht have been argued that
as
this is
a
purely statutory
remedy, only the legal wife could be considered, but
as
against
that it would be illogical to include the illegitimate children
and
to
exclude their mothers; if necessary there could be
invoked the proviso to section
15
(2)
of the Uganda Order in
Council
1902
which enforces the application of statutes-the
Law
Reform (Miscellaneous Provisions) Act 1053 Part
2
repro-
duces the Fatal Accidents Act 184$6-t0 take into account
so
far
as
the circumstances of the Protectorate and its inhabitants,
and the limits of His Majesty’s jurisdiction permit, and subject
to
such qualifications
as
local circumstances render necessary.”
Here the court was extending the benefit of the received statute
to a whlole new class of persons, the class of polygamous and custom-
ary wives.z8 On the facts of the case the two claimants were not
wives by any construction of the laws of Uganda because of the
lawfulness preserved for the first
ring
wife akhough their ilk are
accepted as wives by great numbers of the people. This fact was
later underlined by the empirical research of the Kalema Commission
on Marriage, Divorce and the Status of Women mentioned earlier.
In the former region of Northern Nigeria
a
provision similar to
that of Uganda’s order in council has been interpreted by the High
Court of the Northern States so
as
to remove from
a
class of persons
a
once accepted right to dispose of their estate unfettered by will.
Section
84
(1) of the High Court
Law
reads
:
‘‘
The High Court shall observe, and enforce the observance of,
every native
law
and custom which is not repugnant to natural
27
Evidence Act (Cap. 43) 119
(1)
at
note 21,
supra,
[1914] E.A.L.R. 14
and
[1963]
E.A.
188
respectively.
For
comment, see
J.
S.
Read,
Journal
of
the
Denninq
Society,
December 1966, vol.
1.
And
J.
M.
N.
Kakooza,
[1968]
E.A.L.Q.
IV,
p: 1.
**
It is inheresting that
one
of
the
clear limitations
on
the exercise
of
the
nobile
officizcnt
of
the Court
of
Session
in
Scotland
in
modem times
is
to
the effect
that
ii‘a
statute gives rights
to
a
class,
that class cannot be extended by the exercise
of
that power.
J.w.
1971
JUDICIAL
LAW
MAKING IN AFRICAN
SYSTEMS
49
justice, equity and good conscience, not incompatible either
directly
or
by implication with any law for the time being in
force, and nothing in this law shall deprive any person of the
benefit of such native law and custom."
29
In the case
of
Yinusa
v.
Adesubolcan
30
the facts were as follows
:
The testator,
a
Moslem, made
a
will in terms of the Wills Act
cf
1837
under which he gave the plaintiff son
25
and
to
his other two
sons equal shares in his property and the residue
of
his estate. The
plaintiff son complained that the testator being
a
Moslem could not
make
a
will in terms of the Wills Act since the manner
of
distri-
bution was contrary to Moslem law; in short, the plaintiff was
deprived by the English-style will of his right under the customary
law
(ie.,
a
share equal to that
of
each
of
his
Bello
J.
held that
a
Moslem
of
the Northern Six States of Nigeria
is
entitled to make
a
will under the Wills Act
1837
but that he has
no rig,ht to deprive, by that will, any of his heirs who are entitled
to
share under Moslem law of any
of
their respective shares granted to
them by Moslem law.32
The effect
of
this ruling is that Moslems of the Northern
Six
States, some 20-odd million, may only dispose of the
"
free third
"
of their estate,
as
determined by Moslem law, by the provisions
of
an English-style will. In the course
of
his judgment the learned
judge observed that the mode of distribution laid down by the
Moslem law, equal shares for male heirs and equal half shares for
female heirs,
"
is far from being repugnant to natural justice, equity
and good conscience. On the contrary, it is well founded on these
three pillars of justice and fair play."
33
He
went on to say further that there was no incompatibility
between the freedom of testation of the Wills Act
1837
and the
restricted modes of the Moslem
"
It
seems to me that though there appears to be an incom-
patibility between the (Wills) Act and the Moslem law when
viewed through the spectacles
of
English domestic law in that
29
N.R.
No.
8
of 1955, now applicable to the Six Northern States.
3O
%/!?3/G7, heard at Zaria before Mr. Justice
Bel,lo,
judgment given October 30,
1968
;
as
yet unreported.
31
In
Kufai
v.
Igbi77a Native Arctlrority
(1957)
N.R.N.L.R.
178, in the converse
situation, the High Court
of
t.he Northern Region held that
a
custoin mhich
deprived
a
party
of
a
common law legal right was not, for that reason, contrary
to
natural justice.
32
In
Southern Nigeria the courts
had
arrived at the 0pposit.e conolusion
in
Apatira
v.
Akanke
(1914) 17 N.L.R..
149.
33
Compare
Dawnole
v.
Davlodu
[1062]
1
W.L.R.
1053 where the Judicial Com-
mittee
of
the
Privy Council cailtioncd
a
Nigerian judge on the efficacy
of
over-
ruling
a.
surviving custom of distribution
of
an estate in favour of "inodern
ideas."
34
The
\Vi,lls Act 1837
was
clearly
a
stahte of general application
"
for
the tiiiie
being in force.'' See
Braitltruaite
v.
Folarin
(1938)
4
W.A.C.A. 7G yd
Lazoal
v.
Younan
(1961)
1
A811 N.L.R.. 245 in which Brett
F.d.
said:
. .
.
the
Courts have in fact been enforcing them [English Acts including the Wills
Act], even though Bubjeot
to
reservations, and that is
8,s
strong
an
indication
as
there could be that local circumstances do perinit their application."
50
THE
MODERN
LAW
REVIEW
VOL.
31.
an Englishman has unlimited capacity
to
dispose of his proper-
ties by will in the manner he likes, closer examination of section
34
(1)
would show that the incompatibility is only apparent
under our domestic law.”
It
is true that when the received law in force in the Northern
States of Nigeria
is
viewed in the light of existing social conditions
it does require re-interpretation in the light of those conditions.
Certainly the Northern Region Government did not revise its laws
in force
as
the Western Region had done in
1959,35
and in the
absence of such
a
move by the legislature then the burden must fall
on the Bench.
Both
Namutovu
and
Yinusa
illustrate the attempts by the judges
to
bring the unreformed alien law into line with the realities, on the
one hand of
a
polygamous society, and on the other of
a
Moslem
or
customary society. These initiatives
are
to be seen against
a
background of either legislative inactivity
or
legislative failure
to
draft a law acceptable to .the mass of the people.
Where the legislatures have acted there is still
a
noticeable gap
between the new law and the practices of the people. Many govern-
ments have felt that legislation must be brought in to teach the
people new social values and to prepare them for the new society.
The members of the Kalcma Commission made
a
plea for monogamy
on the grounds that its adoption in law would lead to the benefits of
better living standards and increase educational opportunities for
children. Also
a
law outlining
a
mandatory death penalty for
armed robbery with violence was supported by the Government
spokesman
as
being
a
law which would encourage new values in
society.
T,he judges here are forced to attempt to bridge the
gap
between
the habits of the people and the aims of the government, and
also
to apply the law in accord with current ideas about crime and
punishment.
A
leading case here is that of
Opoya
v.
Uganda.36
The Uganda
Penal Code Act (of
1950)
stated in terms of section
273
(l),
any
person who commits the felony of robbery is liable to imprisonment
for fourteen years.” Section
273 (2)
stated,
If
the offender is
armed with any dangerous weapon
or
instrument
.
.
.
,
he is liable
to
imprisonrncnt for life, with
or
without corporal punishment.”
Over the years it
was
felt in Uganda that the number of
Western-style
hold-ups was dramatically increasing and the
legislature was
of
the opinion that really deterrent sentences ought to
be provided. This feeling was embodied in the Penal (Amendment)
Act
1966
in which section
273
was restated
:
273
(1)
Any person who
(a)
commits the felony of highway
robbery on any public highway, shall be liable on conviction to
In
the
Northern
States
common employment remains
a
defence
for
employers sued vicariously by
3r
workman injured by
the
tort
of
a
fellow
worker.
36
[1967]
E.A.
752.
35
The
Lam
of
England (Application)
Law
(cap.
GO)
1959.
JAN.
1971
JUDICIAL
LAW
MAKING IN AFRICAN
SYSTEMS
51
imprisonment for
a
term not exceeding fourteen years and not
being less than ten years.”
273
(2)
.
.
.
Where the offender
(a)
is armed with any dan-
gerous
or
offensive weapon
or
instrument, (b) is
in
the company
with one
or
more persons, (c) wounds, beats, strikes any person,
at, immediately before
or
immediately after the time of the
robbery, shall be liable on conviction to suffer death.”
This redrawn section
273 (2)
fell to be construed in the instant
case. The question was straightforward: was there
a
mandatory or
a
discretionary death sentence
?
In answering this question
the
court distinguished the earlier case of
Kichanjele
s/o
Ndumungu
v.
R.37
in which
it
had been held that the words
shall be liable
to
in the Kenya Penal Code was mandatory, on the ground that
the point had not been fully argued there. De Lestang
V.-P.
went
on to
say
that
shall be liable to
in its ordinary meaning is
clearly different from
shall be sentenced to death,” and thus the
death sentence was a maximum sentence leaving the judges with a
discretion.
He
did
say,
however,
If
the Legislature intended the penalty in section
273 (2)
to
be mandatory it has, in
our
view, signally failed to use the
appropriate language to achieve its object. Moreover, section
273
(2)
has been subject to repeated criticisms by the judges of
the High Court and justifiably
so
we think.
It
is not happily
worded and is likely to raise other problems in the future. We
can only express the hope that the
lam
on such
a
serious
offence will not be allowed to remain for long in such
a
state
of
uncertainty.”
38
The legislature was not slow
to
declare its intention: by the
Penal Code (Amendment) Act
1968,
section
273
was redrawn yet
again, the most important phrase being in section
273
(2):
where
an
offender uses a deadly weapon or causes death
or
grievous
harm to another, such offender and any other person jointly con-
cerned in committing such robbery shall, on conviction by the High
Court, be sentenced to death.”
It
is clear of course that if there is
a
discretion, then the judges
will not readily impose the death penalty. On the other hand,
if
there is no discretion then the burden lies on the legislature to define
exactly which sort of offender they wish to suffer that penalty and
to expressly exclude the purely technical offender from the list.
37
(1841)
8
E.A.C.A.
64.
38
At
p.
75.
39
Act
12
of
1968 (effective July 26, 1968).
Two
cases
have
60
far been decided
under the amendment and the penalty enforced, the
first
being
Uganda
v.
George
Kigoye
and
Two
Others,
C.S.C.
415
of
1969 which mill be fully reported
in
East
African
Reports.
Nevedhsless the
D.P.P.’s
Office appears
to
be using
its discretion in order
to
bring cases before the Chief Magistrate’s
Court
where
the maximum penalty prescribed by
s.
273
(1)
is
10
years’ imprisonment;
e.g.
Ochan
V.
Uganda,
Criminal Appeal
No.
824
of 1968 (January
13,
19G9).
A
similar ainendment
to
Kenya’s Penal Code
has
been vigorously debated in the
National Assembly in May
1970.
52
THE
MODERN
LAW
REVIEW
YOL.
34
T,here are differing views
as
to the efficacy of the death penalty
as
a
deterrent in Africa; marly are convinced that the experiences of
Europe and North America have libtle relevance to the differing
conditions prevailing in the developing systems. The Ugandan
legislators have stated theirs with no ~ncertainty.~~
The debates in the House suggested that the law was passed with
the aim of teaching new social values; until the total reception of
those values the Bench must exercise considerable initiatives to
apply the law within the ideas of equity and natural justice.
The second case to be considered here is that of
tllai
v.
The problem was one of interpretation of the law partially reformed
so
as
to bring it into line with the customs of the people. That is,
the Uganda Penal Code
has
been reformed in part by ,the insertion
of offences known to customary law; thus the offences of adultery
and elopement have been grafted on to the original Code.‘2
As
mentioned earlier the legislature of Uganda and the courts of
East A,frica had adopted
a
discriminatory attitude towards the
wives of polygamous marriages
as
opposed
to
wives of monogamous
marriages. In the principal case the court was concerned with the
interpretation
of
section
150A
of the Penal Code which states:
Any man who has sexual intercourse with any married woman
not being his wife commits adultery and is liable to imprisonment.
...
43
Counsel
for
the appellant argued that since section
4
of
the Code defines wife
as
wife of
a
monogamous marriage
then
tlie marriage of any believer in the Moslem faith could not be
a
monogamous marriage
because the man remains potentially
able to marry up to four wives. Had this submission been accepted
then the appellant could not have corhmitted an offence known to
the Penal Code because the Moslem complainant and the woman
accusedl were not husband and wife within the definition of the law.
The respondent’s counsel replied that there were at least three
forms of marriage recognised in Uganda44 and the question to be
40
The general public hare also expressed themselves: in an editorial in the
Uganda
Argus
of Kovembcr
5.
19G9,
under tPf heading
Brutality before
Jnstice
the following information was given: While the wave of robberies
with violence in Uganda is
on
the increase sections of the public have resorted
to brutal methods
of
eliminating anybody found stealing anything.
.
. .
The
method
of
rounding up suspected thieves and killing them en masse before they
were taken to
the
police, which started
in
the rural areas, appears to have
been (adopted in areas around Kampala. At Nakulabye trading cenkre on the
Kampala-Hoima road, seven people have either been beaten
or
slashed
to
death
within
a,
week. It appears that the residents of Naltulebye have changed their
nrttitudes towards thieves
or
alleged thieves. While formerly the crowd dis-
persed in flight when an assaulted victim pretended
to
be dead, it
is
now
no
longer
so.
The crowd goes on beating the victim until they are sure that
he
is
completely dead.”
41
[19G7]
E.A.
596.
42
See
8s.
1508
and
1218
respectively.
43
Penal Code Act (cap.
1OG).
44
Counsel referred to tlie Marriage Act (cap.
all)
s.
37:
‘I
.
.
.
nothing in this
Act shall affect tlie validity
of
any marriage contracted under
or
in
accordance
with any customary law, or in any manner applied
60
any marriage
so
contracted
.”
J.w.
1971
JUDICIAL LAW
MAKING IN AFRICAN SYSTEMS
53
determined was not the definition of
wife
but the definition of
marriage.”
Sir
Udo Udoma, formerly Chief Justice
of
Uganda, after the
manner of Lord Denning
M.R.,
said in his judgment
:
‘‘
In my opinion .the views expressed by the learned chief
magistrate
[sic],
are not only unsound in law, they are both
extraordinary and dangerous, having regard to the situation
and social structure of Uganda and the different and complex
forms of marriages recognised by the law of Uganda.
In
my
opinion,
it
is primarily the duty of the court
to
interpret an
Act
of
Parliament in such
a
manner
so
as
not to defeat the
intention of the Parliament and the purpose for which it was
enacted.
It
would be absurd to presume that, when section
150A was enacted by Parliament, the provisions there were
intended only to apply to
a
husband and wife of
a
monogamous
marriage, having regard to the fact that to the knowledge of the
members of the Parliament, there are several other forms of
marriage in Uganda. This knowledge must be presumed. In
any case, were it the intention of the Parliament to limit the
offences to monogamous form of marriage it should have said
so.
The intention can only be gathered from the Act itself.”
The Chief Justice determined that
‘(
any married woman
in
the words of section
150A
must mean any woman who is married to
any man irrespective of the form of the marriage and that the
definition in section
4
was therefore irrelevant. The learned Chief
Justice gave this broad judgment albeit that section
4
contains
a
rider,
In this Code, unless the context otherwise requires.
. . .
By overlooking this rider Sir Udo appears
to
have concentrated
more on the fact of the marked unwillingness of the Uganda legis-
lature to translate its knowledge of the forms of marriage in Uganda.
onto the statute book. The marriage laws, fatal accidents provi-
sions, the Workmen’s Compensation Act and the Evidence Act have
remained unchanged despite reforms in neighbouring Kenya and
The Chief Justice was willing to look at the social conditions in
order to give section 150A
force and life
by his divining of the
intentions of the honourable members.
,9
45
SUMMARY
The cases discussed above illustrate the determination of the judges
to reform the received law and bring it into line with social con-
ditions where the legislators have not intervened. They
also
show
that even where the law makers have acted it may be just
as
neces-
sary for the judges to take the initiative where the new law is no
45
This rider
was
also
over!ooked
by
the writer
but
mas
brought
to his notice
by
46
For
example,
the
Kenya
Evidence Aot,
s.
127
(4)
1
of
1963
and
the
Tanzania
the
learned
editors
of
this
joiirual.
Evidence Act
(1967)
6.
3.
54
THE MODERN
LAW
REVIEW
IT0L
31
more in line with the practices of the mass of the people nor
in
accord with accepted ideas about the administration of ju~tice.~'
But of course such initiatives are not without their dangers in
Africa, as one Chief Justice has pointed out:
".
. .
a judge should recognise that his discretion must affect
that society,
so
that such discretion
as
.he
has
should be exer-
cised toward helping rather than hindering the solutions
of
social problems.
To
fail to recognise this can only lead to
unhappy conflict, between the judiciary and the executive which
too often leads
to
a defeat
of
the judiciary and a lowering of its
prestige."
E.
VEITCH."
47
See the protest resignation
of
the Malanian Bench in Kovember 1969, in res-
ponse
to
the passing
of
a
Bill described in
The
Times
as follows
:
"
The
Bill
giving the local coiirts in Malawi the right
to
try
more serious criminal and
civil cases and to impose ths death penalty was
passed
by Parliament.
Regarded as
a
triumph for traditional African concepts
of
justice which accept
circumatantial evidence
as
sufficient
proof
of
guilt." (November
19,
1969).
48
Mr.
Justice ,Feorges, C.J. Tanzania in
"
The Court and the Tanzania
One
Party State in
East
African
Low
and
Social
Change
(11)67),
edit!:
G.
A.
Sawyer. [l9691
1
Zambia
Law
Journal
1.
*
M.A.,
LL.B.(Edinborgh), Lecturer
in
Law,
Makerere University College,
Ugandib.
And compare Glaire Palley,
"
Rethinking the Jiidlcial Role

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