112 Kabumba/Application of African Union (human rights) law in Uganda Organization of African Unity (OAU).146 The provision also obliged the Commission to take into account African practices consistent with international norms, customs generally accepted as law, legal principles recognised by African states and legal precedents and doctrine.147 To the Judge, therefore, international jurisprudence could only be ‘considered as a legal precedent depending on whether the cited rules and legal principles [were] expressly recognized by African states and reflect[ed] African practices’.148 In the instant case, to the Judge, ‘the recognition of homosexuals as a minority whose acts [were] legitimately protected [was] not a principle of law and norm generally recognized by all African states nor [were] homosexual acts recognized as an accepted African practice’.149 In such circumstances, the Court would not place any reliance on the European Court’s jurisprudence presented to it.150 In the same vein, in a posture generally uncharacteristic of Ugandan courts, the Judge rejected the invitation to consider comparative jurisprudence as a guide for the determination of the extent to which morality could be a valid restriction on rights.151 4.1.4 The European Court of Justice Aside from the European Court, decisions of the ECJ have also been referenced by Ugandan courts, particularly in commercial and civil litigation. One of the earliest instances of such reliance appears to be in the earlier referenced AON case,152 a tax dispute, brought by way of judicial review, before the High Court Commercial Division. Counsel for the defendant cited the ECJ decisions in Card protection Plan Ltd v Customs and Excise Commissioner153 (hereafter referred to as the ‘Card Protection Plan case’) and Re Forsakringsaktiebolaget Skandia (Publ)154 as authorities for the proposition that a tax exemption could 146 147 148 149 150 151 152 153 154 As above. As above. As above. As above. As above. At 18 (‘In Uganda, the only forum which can determine if protection of public morals is justifiable as a basis for limiting homosexual rights under art 43 or if legal restrictions such as sec 145 of the Penal Code Act is inconsistent with Uganda’s obligations under International Law are our National Courts. Decisions from South Africa, India and Hong Kong which learned counsel for the applicants relied on reflect what those national courts have determined as to what amounts to public interest of those countries and as such are not binding on Uganda. Since public interest is defined by a country’s fundamental values, it differs between countries. In as far as there is no legal challenge to the validity of sec 145 of the Penal Code Act, it is still valid and bidding on all courts in Uganda, regardless of whether there are foreign precedents stating that prohibition of homosexual acts as offences against morals is unjustified restriction on rights of the homosexuals’). n 105. [1999] STC 270 at pages 291 – 292. [2001] STC 754.