(2018) 2 African Human Rights Yearbook
129
also explain EU law’s unduly prominent presence in Ugandan judicial
decisions, relative to AU law.
Thirdly, EAC law appears to enjoy a potentially significant
advantage over AU law in terms of the scope for a more reflexive
interaction between that system and the domestic order. Under the
EAC Treaty, domestic courts are entitled to refer matters relating to
EAC law to the EACJ, which allows domestic courts to engage, in the
judicial function, with their counterparts at the EAC level.257 This
interaction might then form a natural basis for greater attention to, and
respect for, EACJ jurisprudence relative to the more apparently
extrinsic jurisprudence of the AU. However, todate this right does not
seem to have been invoked by any of the domestic courts in the East
African Community, and there is no record of the EACJ having
delivered any such preliminary rulings in the context of domestic
litigation. Relatedly, service on the EACJ by Judges concurrently
engaged by the Ugandan judiciary also seems to have created a window
for enhanced familiarity with, and receptiveness to, EAC law. The EACfriendly decision in the 2013 High Court case of Nalima258 might, for
instance, in part be explained by this factor. By contrast, Ugandan
jurists who have served on the African Commission have typically not
been serving Judges in the Ugandan judiciary, potentially negatively
affecting the permeation of that law into the domestic system.259
The above factors might explain – to different extents – the
relatively weak imprint of AU law as a feature of the jurisprudence of
Ugandan courts. However, on their own, they cannot fully explain the
trends identified in this article. This is an important enquiry – one
which merits more detailed research, one which preferably seeks the
views of serving and retired Ugandan Judges. Ultimately, only they are
256
257
258
259
years with support from JLOS and EU under the Commercial Justice Reform
Programme’). See also, Uganda Judiciary ‘Denmark supports access to justice in
Uganda’ 28 May 2014 http://judiciary.go.ug/data/news/99/6850/Denmark
%20Supports%20Access%20to%20Justice%20in%20Uganda..html
(accessed
15 January 2019). The report recounts that Denmark, through its international
development arm – the Danish International Development Agency (DANIDA) has
supported Uganda’s judiciary, including through, ‘providing technical expertise’
at least since 1989. It further notes that Denmark has ‘constructed most of the
Ugandan courts’ and has trained more than 200 judicial officers, including
Judges. These have received training in such areas as ‘human rights, commercial
transaction, management of courts, commercial law, European law and
administration of Justice in Nordic countries’ and that this training has been ‘with
a view of comparing and replicating it in Uganda’.
Art 34 of the Treaty for the Establishment of the East African Community appears
to straddle the line between requiring such a reference and making it subject to
the discretion of national courts. In the end, the language used points towards
both obligation and discretion, with the latter being narrowly favoured. According
to that provision: ‘Where a question is raised before any court or tribunal of a
Partner State concerning the interpretation or application of the provisions of this
Treaty or the validity of the regulations, directives, decisions or actions of the
Community, that court or tribunal shall, if it considers that a ruling on the
question is necessary to enable it to give judgment, request the Court to give a
preliminary ruling on the question’.
n 203.
For instance, the current Ugandan member of the Commission, Hon. Meddie
Kaggwa, is Chair of the Uganda Human Rights Commission.