(2018) 2 African Human Rights Yearbook
127
At first blush, it might appear as if AU law has had the greatest
success in influencing the adjudication of cases in Uganda, since it
appears to have been referred to more frequently (31 times) than EAC
law (15 times) and EU law (25 times). This initial assessment must,
however, be tempered by two immediate observations. In the first
place, as Uganda is obviously not a member of the EU, the frequency of
citation, of EU law by Ugandan courts is disproportionately high
relative to the reference to AU law. Secondly, given the only relatively
recent re-establishment of the EAC, and the much longer uninterrupted
existence of the AU (and its predecessor the OAU), the citation of AU
law would be expected to be much higher compared to that of the newer
EAC.
In addition, if one is to further analyse the disaggregated data
contained in the preceding individual tables, the challenges of AU law
in terms of its judicial reception in Uganda become even more
apparent. In the first place, the majority of citations of AU law have
arisen from references to the African Charter (12 times) and the African
Children’s Charter (8 times). In the latter case, these have mainly been
very passing mentions – often a single, apparently pro forma, reference
to the ‘best interests of the child’-principle usually in the context of
guardianship and adoption cases. Indeed, if the references to the
African Children’s Charter were to be discounted, AU law would fall to
second place after EU, in terms of frequency of citations. Secondly, the
influence of AU jurisprudence is relatively weak as compared to that
from the EU and the EAC. For instance, decisions of the African
Commission on Human Rights have only been cited 3 times, while
Ugandan courts are yet to cite any decisions of the African Court or the
African Children’s Rights Committee. On the other hand, EU
jurisprudence has been considered a total of 10 times (5 times for the
European Court of Human Rights and 5 times for the European Court
of Justice), while EACJ jurisprudence has been referenced 10 times.
Thirdly, with the exception of one reference – to the AU Convention on
Preventing and Combating of Corruption – the reception of AU law in
the Ugandan judicial system has almost exclusively related to human
rights law. By contrast, EU law and EAC law appear to have influenced
not just human rights law but a broader variety of the legal landscape,
including commercial and civil litigation.
On the whole, therefore, AU law appears to have had a
disproportionately weak impact in the Ugandan legal system, relative
to its longevity, reach and potential. A number of factors might account
for this trend. In the first place, as a general matter, international law’s
reception in national courts may depend on the nature of the obligation
in question, that is to say, whether it primarily seeks to influence
domestic action or action on the international plane.251 As
Tzanakopoulos has noted:
… the ‘directionality’ of the international obligations assumed by states … has
consequences for the position of domestic courts. What is meant by ‘directionality’
251
A Tzanakopoulos ‘Domestic courts as the “natural judge” of international law: a
change in physiognomy’ in J Crawford and S Nouwen (eds) (2011) Select
Proceedings of the European Society of International Law 155-168.