Ojambo Steven Odemo
The doctrine of stare decisis which means “stand by what has been decided” is applied in common law courts system – also referred to as the doctrine of precedents. It is the practice of applying the decision(s) and principles of the past case/s to the current one. It originates in circuit courts established by King Henry II, where the Appellant court made decisions as binding precedents for lower courts. This historical foundation underscores the doctrine’s role in maintaining a stable and coherent legal system.
The applicability of the doctrine is based on the hierarchical arrangement of common law courts, with courts of records making binding decisions for lower courts. For instance, in Ugandan jurisprudence, the Supreme Court is the highest ranking court followed by the Court of Appeal (which also constitutes the Constitutional Court), and the High Court.
It’s on such a background that a decision(s) passed by the higher out of the three respectively has a binding force over lower courts, the Magistrates and Local Council Courts not being out of the game but offering total subjection to the application of such reasoning. It is alleged that the structure ensures consistency and uniformity in the application of the law across the judicial systems.
Judicial officials have, however, interpreted the doctrine as an avenue of relaxation. Since principles are borrowed from one case/s to another, court officials deploy less effort in finding the new principle, suitable to the current situation from the current laws.
They prefer relaying on precedents of 1770s, 80s and 90s which were made basing of different laws within different jurisdictions than thinking outside the box. The doctrine is therefore opened to a number of questions, focused primarily upon two problems: (1) how to derive legal norms from past cases, that is to say, among the many sayings of the judge/s which one is ratio decidendi (rationale/reason for the judgment) or obiter dictum (something said in passing)? and (2) how to apply those norms to present cases being that two cases cannot contain similar facts. This have left many legal scholars in doubt concerning the effectiveness of the doctrine in the present legal system.
The art of applying the old principles or decisions to the present cases has blocked the discovery of new legal ideas. Despite the rapid evolution of new laws, courts have stiffened their necks to old opinions of the founders of the law. The question is, how can the new rule, promulgated in relation to the current mischief be married or other ways overridden by a ‘mere opinion’ of 1770s.
Of course it’s a question of no doubt that the old principles are still alive, with and without their errors. When courts adhere strictly to precedents, they risk perpetuating past mistakes, let’s say, the House of Lords (Court of Records) made an error in the case of A, the same is likely transferred to B’s case.
For instance, historical rulings that were influenced by discriminatory views and laws may continue to impact marginalized groups adversely if not re-evaluated. This can maintain systemic injustices and hinder progress towards more equitable legal standards because Judges often only consider the letters of the precedent.
The shifting of old decisions has left Common law rigid.
The fact that courts are bound to consider already existing precedents, even when they no longer serve the interests of justice or reflect societal advancements. This rigidity can perpetuate outdated or unjust laws, making it difficult for courts to adapt to new social, technological, and moral landscapes. Common law principles are the same in all Common Wealth Members or States regardless of the jurisdiction; this has left less change and the former harshness of Common law prevailing to date.
Common law courts which prioritize adherence to precedent have often adopted a conservative approach to decision making, avoiding bold or progressive rulings that could be perceived as judicial activism. This has resulted in a slower pace of legal development and hinder the courts’ ability to address emerging societal needs effectively per the current laws. Such conservatism can also discourage judges from rectifying past wrongs, even when there is a clear necessity for change.
Stare decisis can create a disconnect between the law and contemporary societal values, leading to public dissatisfaction and a perceived lack of legitimacy in the legal system. Over time, mostly in Africa, social values and norms evolve often faster than legal doctrines. It is always, an even first then the law. It is also worth noting that, most precedents are as aspirations of the whites, that is, out of their believes and norms. Therefore, when outdated precedents bind courts in Africa, they may fail to reflect current public sentiments and needs of Africans which undermines the law’s relevance and effectiveness.
Someone said, the new broom sweeps better, yes, I concur, if we are to have a better and suitable legal systems, it is high time courts be free from the spell of strict application of old precedents. I don’t ignore the fact that stare decisis provides a framework for stability and predictability in the legal system, its negative impacts cannot be overlooked.
The doctrine’s inflexibility, potential to perpetuate past injustices, impediment to judicial innovation, complexity, encouragement of conservative decision-making, and discrepancy with social values all pose significant challenges. To mitigate these drawbacks, it is crucial for courts to strike a balance between respecting precedents and adapting to the dynamic nature of society. This balance will help ensure that the legal system remains fair and responsive to the evolving justice needs.
Written by,
Ojiambo Steven Odemo.
A student of law,
At Nkumba University, LLB 3:1
Reach at; ojimbostevenodemo68@gmail.com
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