Article by: Mwiine Andrew Kaggwa

Attorney General of the 20th Nkumba University Law Society, President of

the Nkumba University Research Club, Papa Lawyers Fellowship

THE MYSTERY BEHIND ARTICLE 126 (2) (e) OF THE 1995 CONSTITUTION:
Should Court disregard technicalities to administer Substantive Justice?

Introduction:

Article 126 (2) (e) of the 1995 Constitution of Uganda champions the principle of substantive
justice, urging courts to prioritize fairness and equity over strict adherence to procedural
technicalities. This provision raises a compelling question: to what extent should courts
observe this mandate to disregard minor procedural flaws in pursuit of just outcomes? While
the article seeks to ensure that justice is not derailed by technical errors, its application
challenges the balance between judicial flexibility and the need for procedural consistency.
How far should courts go in overlooking formalities to deliver substantive justice without
undermining legal certainty or opening the door to arbitrary discretion? This introduction
delves into the mystery of Article 126 (2) (e), exploring its transformative potential, its
implications for judicial practice, and the critical debate over the extent to which courts
should embrace this provision to make justice more accessible and equitable for all.

What is Substantive Justice?

In the context of Article 126 (2) (e) of the 1995 Constitution of Uganda, substantive justice
refers to the principle of achieving fair and equitable outcomes in judicial proceedings by
focusing on the merits of a case rather than being hindered by procedural technicalities.1 It
emphasizes the delivery of justice that upholds the rights and interests of the parties involved,
ensuring that the true essence of fairness prevails over rigid adherence to formal rules or
minor procedural errors. This approach seeks to make the legal system more accessible and
responsive, particularly for those who may lack technical legal knowledge, by prioritizing the
substance of a dispute its facts, evidence, and legal rights over strict compliance with
procedural formalities.

The framers of the 1995 Constitution placed a burden on the Courts of Judicature that was not
there before. In Article 126 they said that:

1
The definition of substantive justice in the context of Article 126 (2) (e) of the 1995 Constitution of Uganda is
derived from an interpretation of the constitutional provision itself and its intended purpose within the Ugandan
legal framework.
"(1) Judicial power is derived from the people and shall be exercised by the courts
established under this Constitution in the name of the people and in conformity with the law
and values, norms and aspirations of the people.
(2) In adjudicating cases of both a civil and criminal nature, the courts shall, subject to the
law, apply the following principle-
(a) justice shall be done to all irrespective of their social or economic status;
(b) justice shall not be delayed;
(c) adequate compensation shall be awarded to victims of wrongs;
(d) reconciliation between parties shall be promoted; and
(e)substantive justice shall be administered without undue regard to technicalities."

In the past, administration of justice without undue regard to technicalities was understood to
mean that rules of procedure were handmaidens of justice. What this meant in practical terms
was that the courts were charged with resolving disputes without being unduly hindered by
legal technicalities. In other words, rules of procedure are supposed to help the courts
expedite court business but are not supposed to be ironclad obstacles to all causes of action in
all circumstances.

Apart from this Article, the Constitution has other provisions of great significance in my
view. Article 41 gives the citizens of this country the right of access to information in the
hands of the State except if its release will,

"prejudice the security or sovereignty of the State or interfere with the right to
the privacy of any other person.”

Article 50 gives the right to anybody who claims that a fundamental right or freedom
guaranteed under the Constitution has been infringed to go to court for redress. The reason
for this article is that it is the duty of every citizen to defend the Constitution regardless of
whether he is personally aggrieved or not to go to court. The rationale here is that even if
one's personal rights are not threatened, you go to court to seek redress for public good. The
concept of locus standi in my view is demystified. This is what is popularly known as class
action litigation.

The last article, which I should mention, is Article 273, which saved all laws that were in
existence at the promulgation of the 1995 Constitution. The article charged the Courts to
construe these laws,

“with such modifications, adaptations, qualifications and exceptions as may

be necessary to bring it into conformity with this Constitution.”

This constitutional order presents the Judiciary a big challenge especially in areas of human
rights and fundamental freedoms, environmental law etc. It is now my duty to examine how
the Courts have faced this challenge. As we delve into the crux of the article, we should be
alive to the Stephen Mabosi v URA2 the principle articulated in Article 126(2)(e) of the
2
Civil Application No. 16 of 1995) (1996) UGSC 2 (2 Feb)
Ugandan Constitution, which directs courts to administer justice without undue regard to
technicalities, was addressed. While the Supreme Court in Mabosi did not explicitly rely on
Article 126(2)(e) to reach its decision, it did acknowledge the importance of avoiding
procedural technicalities that could hinder the delivery of substantive justice. The court
emphasized that procedural rules are meant to facilitate justice, and a mere irregularity in
procedure should not be used to deny a party a hearing if no injustice is caused to the other
side.

I shall start with some of the cases that have caused disquiet among the court users and the
public in general in regard to the provisions of this article.

Utex Industries Ltd. Vs Attorney General Civil Application No.52/95.

The application before the Supreme Court was the usual one seeking to enlarge time for
failure to take the right step at the right time under certain provisions of the Supreme Court
rules of procedure. The applicant sought to rely on Article 126(2)(e) in support of its case. In
rejecting the application, the Court said:

"Regarding Article 126(2)(e) and the Mabosi case we are not

persuaded that the Constituent Assembly Delegates intended to wipe out the
rules of procedure of our courts by enacting Article 126(2)(e). Paragraph (e)
contains a causation against undue regard to technicalities. We think that the
article appears to be a reflection of the saying that rules of procedure are
handmaids to justice meaning that they should be applied with due regard to
the circumstances of each case. We cannot see how in this case article 126(2)
(e) or Mabosi case can assist the respondent who sat on its rights since
18/8/1999 without seeking leave to appeal out of time. It is perhaps pertinent
here to quote paragraph (b) of the same clause (2) of Article126. It states;
"justice shall not be delayed". Thus, to avoid delays, rules of Court provide a
timetable within which certain steps ought to be taken. For any delay to be
excused, it must be explained satisfactorily. "

Kasirye Byaruhanga &Co Advocates Vs Uganda Development Bank (Civil Application

No.2/97)

This case was also before the same court on an application for enlargement of time. The
applicant also sought to rely on Article 126(2)( e) in support of its application. In rejecting
the application, the Court relied on the Utex case and stated:

" a litigant who relies on the provisions of Article 126(2)(e) must

satisfy the court that in the circumstances of the particular case before the
court it was not desirable to pay undue regard to a relevant technicality.
Article 126(2)(e) is not a magic wand in the hands of defaulting litigants."

It should be borne in mind that the court was being asked to exercise its discretion in favor of
the applicants. In exercising its discretion, the circumstances of each case are very important.
However, the right to be heard should always be a relevant consideration and therefore
should be considered before such applications are rejected on technical grounds. In some
instances, there may be no injustices that would be caused to the opposite party. In any case,
our judicial system should never permit a party to be driven from the judgement seat without
the court considering his/her/its/ right to be heard except in cases where the cause of action is
obviously and almost incontestably bad.

Constitutional Petitions.

Constitutional Petitions are a special category of civil litigation. This is reflected in the
creation of a court that is charged with the responsibility of determining constitutional
petitions although it also doubles as an appellate court. Article 137 of the Constitution
governs the jurisdiction of the Constitutional Court. This court can hear what causes? The
answer is found in sub-article (3) and the decided cases on the subject such as Attorney
General Vs Major General David Tinyefuza 3 and Ismail Serugo Vs Kampala City
Council & Another4. Both are decisions of the Supreme Court.

I will now examine some decisions which have judiciary considered Article 126(2)(e). The
first case that addressed this article in the Constitutional Court was Major General David
Tinyefuza Vs Attorney General (supra).

What is of interest here is the manner of how both the Constitutional Court and the Supreme
Court handled the technical objections that were raised by the Attorney General. The
objections raised related to affidavits sworn in support of the petition. The learned Solicitor
General considered the affidavit defective and in normal circumstances, they would have
been rejected leading to the striking out of the petition. The Constitutional Court rejected the
preliminary objections. Manyindo DCJ (as he then was) said:

"The case before us relates to the fundamental rights and freedoms of the
individual like the petitioner which are enshrined in and protected by the
Constitution. In my opinion it would be highly improper to deny him a hearing on
technical or procedural grounds. I would even go further and say that even where the
respondent objects to the petition as in this case, the matter should proceed to trial on
merit unless it does not disclose a cause of action. This Court should readily apply
the provisions of Article 126(2)(e) of the Constitution in a case like this one and
Administer justice without undue regard to technicalities. It is for the above reason
that I cannot uphold Mr. Kabatsi's objections.”

The other members of the Court wholly embraced this position and on appeal, the highest
court in the land could not fault the Constitutional Court. However, many petitions have been
dismissed on technical grounds. I shall briefly try to refer to some of them.

3
Constitutional Application No. 1 of 1997
4
Constitutional Application No.2 of 1998
The first was The Uganda Journalist Safety Committee & Kanabi Vs Attorney General-
Constitutional Petition No 6/97. This petition was filed seeking declarations that certain
provisions of the Penal Code Act were inconsistent with the Constitution and a violation of
the petitioner’s rights contained in certain provisions of the Constitution. When the matter
came before the court it was dismissed on technical grounds raised by the Attorney General.
The court contended that it was not the proper court for a party who is seeking redress under
Article 50 of the Constitution. Journalist challenging the constitutionality of certain
provisions of the Press and Journalist Statute filed the second case * This petition suffered the
same fate. It was dismissed on a similar technicality. What is interesting about these two
petitions is that they cited Articles 50 and 137 of the Constitution.

One of them could have been irrelevant and it is not unusual for litigants to cite a number of
provisions that may or may not be applicable to all the issues at hand. The court is in a better
position to sort out what is relevant and administer substantive justice. What is at stake is that
the parties were driven from the judgement seat without the court considering their rights to
be heard. The court also did not address the provisions of Article 126(2)(e) and determine
whether the technicalities that were being raised by the Attorney General could hinder the
administration of substantive justice as the same court in Tinyefuza case.

Election Petitions

It is trite law that all evidence at the trial of election petitions both presidential and
parliamentary is required by the rules governing the presentation of those petitions to be
adduced by way of affidavits. the Presidential and Parliamentary Election Petition Rules
specifically guard against technicalities. They state that:

"No proceedings upon a petition shall be defeated by any formal objection or

by the miscarriage of any notice or any other document sent by the Registrar to any
party to the petition.”5

During the trial of the petition filed by Dr Kiiza- Besigye against the current President -
Election Petition No.1/2001 the Supreme Court had to deal with a number of objections that
were raised by both sides. One of them concerned the affidavit evidence. In particular the
affidavits that were sworn under Order 19 rule 3 of the Civil Procedure Rules, which
provide that:

"(1) Affidavits shall be confined to such facts as the deponent is able of his own knowledge to
prove, except in interlocutory applications, on which statements of his belief may be admitted
provided that the grounds thereof are stated.

(2) The costs of every affidavit which shall unnecessarily set forth matters of hearsay or
argumentative matter or copies of extracts from documents shall unless the court otherwise
directs, be paid by the party filing them.”

5
Presidential & Parliamentary Act both cross referenced.
Odoki C.J (as he then was) in dealing with the objections raised stated that:

"From the authorities I have cited there is a general trend towards taking a
liberal approach in dealing with defective affidavits. This is in line with the
constitutional directive enacted in article 126 of the Constitution that the courts
should administer substantive justice without undue regard to technicalities. Rules of
procedure should be used as handmaidens of justice but not to defeat it. "

The other members of the court expressed almost similar views. I should perhaps mention
that the filing of affidavits went on throughout the trial including one affidavit from the
Registrar who had commissioned the affidavit of the President. The nature of the petition
itself and the allegations that were made by the petitioner were such those technicalities had
to take a back seat and the law to take its course.

Family Law

In earlier years, most family law statutes because of being modeled on common law and have
remained so even after the 1995 Constitution. The Divorce Act in particular had specific
provision, which if applied could deny women who are seeking divorce substantive justice. I
am glad that this fact was timely recognized by the High Court in the case of Annette
Nakalema Kironde V s Apollo Kaddu Mukasa Kironde &Another 6. The petitioner was a
woman and under section 5(2) of the Divorce Act (as it was then) she could only petition for
divorce on the ground that only her husband had committed adultery but also that he had been
cruel etc. In dealing with the problem at hand Kagaba J. after referring to various articles of
the Constitution said:

"The effect of all these provisions is to show that sections 5 and 6 of the
Divorce Act are inconsistent with the Constitution in that they create different sets of
rights, opportunities and treatment for men and women to the same institution of
marriage.”

The Judge in the same case found section 23 of the same Act void for being discriminatory
because it provides for payment of costs by the co-respondent to the husband if it is the
husband petitioning and not vice versa. Substantive justice was done in this case and
technicalities were ignored.

In conclusion, Justice Musa Ssekaana has consistently emphasized that Article 126(2)(e) of
the Ugandan Constitution, which mandates that substantive justice be administered without
undue regard to technicalities, is not a "magic wand" for defaulting litigants. He has made it
clear that while courts should strive to administer justice without undue emphasis on
technicalities, this provision does not negate the need for litigants to comply with procedural
rules. Ssekaana has often cited the Supreme Court decision in Utex Industries Ltd
Vs. Attorney General which clarified that Article 126(2)(e) was not intended to abolish

6
Divorce Cause No. 6 of 2001
procedural rules, but rather to guide courts in applying them with due consideration to the
circumstances of each case.

In essence, Ssekaana's interpretation of Article 126(2)(e) emphasizes that it is a guiding

principle for courts to ensure justice is done, but it does not allow parties to disregard
procedural requirements or escape the consequences of their actions.

Article 126 (2) (e) of the 1995 Constitution of Uganda remains a cornerstone in the pursuit of
substantive justice, challenging courts to prioritize fairness and equity over procedural
technicalities. This provision embodies a transformative vision, aiming to make justice
accessible and meaningful, particularly for those navigating the legal system without
technical expertise. However, the extent to which courts should apply this mandate sparks
ongoing debate, as balancing judicial flexibility with procedural consistency is critical to
maintaining legal certainty and fairness. Ultimately, the effective implementation of Article
126 (2) (e) requires judicial wisdom to ensure that overlooking minor formalities does not
compromise the integrity of the legal process. By thoughtfully embracing this provision,
Uganda’s judiciary can uphold the spirit of substantive justice, fostering a legal system that
truly serves the needs of its people while navigating the delicate interplay between flexibility
and structure.