By: Mwiine Andrew
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. 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) 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 URA the principle articulated in Article 126(2)(e) of the 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 can