(2018) 2 African Human Rights Yearbook
91
considers, broadly, the application of international law in Uganda.4
There is, however, relatively less work which considers the extent to
which AU law and ‘REC law’ have been received and applied in national
legal orders generally,5 and even less so with regard to the particular
context of Uganda.6 The present work, therefore, is an attempt to
contribute to the investigation of an under-researched, and yet critical,
legal question – the judicial reception of AU law in Uganda. For
avoidance of doubt, this article specifically addresses the approach of
Ugandan courts to AU law, and does not focus on the related, but
separate, question as to the nature and extent of the domestication of
this law through legislative and other means.
This assessment is done through a review of case law from 1995 to
the present. The year 1995 is used as starting point as it witnessed the
promulgation of a new Constitution in Uganda, which has provided the
foundation for robust constitutional and human rights litigation. As a
guide to assessing the extent of judicial reliance on AU law, the article
also considers the courts’ reception of European Union (EU) law – that
jurisdiction being perhaps the most advanced global effort towards
supranational integration. As an additional comparator, the article also
considers judicial reference to legal orders created under the eight
Regional Economic Communities (RECs) traditionally viewed as
3
4
5
6
Information for Africa and other regional instruments: soft law and human
rights in Africa 165; ME Olivier ‘The role of the African Union law in integrating
Africa’ (2015) 22 South African Journal of International Affairs 513; F Viljoen
(2012) International human rights law in Africa at 151; E Ugirashebuja,
JE Ruhangisa, T Ottervanger and A Cuyvers (eds) (2017) East African
Community law: institutional, substantive and comparative EU aspects;
KD Magliveras and GJ Naldi (2018) The African Union; and EF Ssempebwa
(2015) East African Community law.
This includes B Kabumba ‘The application of international law in the Ugandan
judicial system: a critical enquiry’ in M Killander (ed) (2010) International law
and domestic human rights litigation in Africa 83; J Obitre-Gama ‘The
application of international law into national law, policy and practice’ Paper
presented at WHO international conference on a global tobacco control law, 7-9
January 2000, New Delhi, India and S Namwase (2011) The principle of legality
and the prosecution of international crimes in domestic courts: lessons from
Uganda unpublished LLM Dissertation, University of Pretoria. Two papers
presented at a conference on the application of international law in regional and
domestic courts, 29 July 2010, Kampala, Uganda are also relevant: I MulyagongaKakooza ‘International human rights and the courts in Uganda’ and H Onoria
‘Application of international law in domestic courts: perspectives from practice’.
Examples include T Maluwa ‘Ratification of African Union law treaties by member
states: law, policy and practice’ (2012) 13 Melbourne Journal of International
Law 636 and F Viljoen and L Louw ‘State compliance with the recommendations
of the African Commission on Human and Peoples’ Rights, 1994-2004’ (2007) 101
American Journal of International Law 1. In addition, the important and specific
enquiry into the reception and impact of AU soft law has also begun to be
undertaken. See, for instance, J Biegon ‘The incorporation of the thematic
resolutions of the African Commission into the domestic laws of African countries’
in Shyllon (n 3) 190.
Preliminary work in this area includes S Serumaga-Zake and M Ilyayambwa ‘The
“promise” of ratification: a Uganda-EAC perspective’ (2014) 5 Mediterranean
Journal of Social Sciences 2172 and S Arach-Amoko ‘Relationship between the
domestic courts and regional and sub-regional courts’, also presented at the
Kampala conference referenced in n 4 above.