Uganda Christian University School of Law Jurisprudence II Course

This course will introduce students to jurisprudential schools of thought and key jurisprudential concepts. It will revisit major theories of law and discuss their relevance and applicability in Uganda today. Students will learn to discuss legal and other societal issues in the context of jurisprudential theories, and assess the relation between the philosophical and the real world.

Course Objective

The overarching objective of this course is to train students to think critically about issues in the world around them. In addition, the course should enable the student to:

Identify, critically discuss and defend their view point about the philosophical assumptions underlying the law in general, and specific legislation, cases and their judgments and what they mean to a legal mind.
Gain insight on how these assumptions have changed over time.

Contact Hours and Course Delivery

Lectures for this course will be conducted twice a week for a two-hour period, complemented by tutorials held once a week for two hours. Therefore the total contact hours for this course will be six per week. You must attend at least 90% of all the lectures and tutorials throughout the semester to qualify for the exam at the end of the semester.

This course involves a blend of theoretical concepts and their relation to real life legal questions. It is a build-up from Jurisprudence I which introduced students to legal reasoning and the basis of law. This semester, that knowledge will be extended further by some additional theories and by the consideration of how those theories affect (or should) the development of law in Uganda. It should be noted that this outline is not an exhaustive representation of the content to be covered during the semester. Similarly, students should not expect to rely on hand-outs and notes from the course leaders, as these will be few and far between.

The course will be run in a discussion format with active, informed participation from students. Students will be encouraged to clarify and sharpen arguments and to critically assess other people’s perspectives. It is therefore imperative that adequate preparation be done before each class, based on the readings allocated for each week.

The Christian faith and its tenants will be incorporated throughout the course. Course lectures and discussions will refer to and incorporate Christian worldview for comparative purposes with the various schools of thought and ideologies addressed throughout the course. The lectures will address the application of the different concepts and ideas to Christian purposes and ideals. The lectures on morality and the law will address the efforts and practices for incorporating Christian principles and natural law into current legal systems.

Course Evaluation and Assessment System:

The award of grades for this course will be based on the following:

Course work which will be based on individual assessment and consist of least two parts. Students will discuss major topics, principles and cases, which will be the basis for oral assessment out of 15 marks. Each student will be required to submit a critical essay on one or two related sub-topics on the syllabus, to be graded out of 15 marks.
The final exam at the end of the semester will contribute 70% of the final mark.
Please note that the highest level of academic ethic is expected in this course, and all UCU rules and regulations on examinations and coursework will be followed to the letter.

COurse Content

The course will cover the following broad topics:

Marxism and Distributive Justice; Marxist Jurisprudence, Marxist Jurisprudence after Marx and other theories of Just Distribution.
Law and Equality: Feminism, Critical Race Theory, Affirmative Action and Collective Justice.
African Jurisprudence and Ubuntu
Religion and Morality in law: The separation and convergence of Church, Mosque and State, Morality and the law and customary law
Courts, Adjudication and Alternative Dispute Resolution: Appellant Courts and Common Law, Political pressure, freedom of speech, separation of powers and the Rule of law and popular justice
Legal Education and Legal Profession: Critical legal studies and postmodernism.
Ethic and Justice: Corruption and Civil disobedience, Lawyers as agents of change.
Post-colonialism: African thought in post-colonial Uganda.

Primary Reading:

Students are advised to read the main texts below for an overview of the course. Additional reading is indicated under each of the individual topics to be studied for this course. Students are advised to prepare their own notes for personal reference. Hand-outs and notes may occasionally be furnished by the course leaders, but these are not to be relied on solely for the course, and will only serve the purpose of guiding the students’ study.

The Constitution of the Republic of Uganda, 1995 (as amended);
D.A Freeman, Lloyd’s Introduction to Jurisprudence, 8^th Edition, Sweet and Maxwell, London, 2008;
Hernando Desoto Polar, The Mystery of Capital: Why Capitalism Triumphs in the West and Fails Everywhere Else, Black Swan, Reading, 2001;
M. Finnis, Natural Law and Natural Rights, Oxford University Press, Oxford, UK, 1980
Benjamin j. Odoki, The Search for a National Consensus: The Making of the 1995 Ugandan Constitution, Fountain Publishers, Uganda, 2005;
G. Riddall: Jurisprudence, 2^nd Edition, Oxford University Press, Oxford, UK, 2005;
Aili Mari Tripp, Women’s Movements, Customary Law, and Land Rights in Africa: The Case of Uganda, African Studies Quarterly, Vol. 7, Issue 4, 2004.
William Twining, Diffusion of Law: A Global Perspective, 2004.
Departed Asians Property Custodian Board v. Jaffer Bros., Supreme Court of Uganda, Civil App. No. 9 of 1998;
Mungereza v. PriceWaterhouseCoopers, Supreme Court of Uganda, Civil App. No. 34 of 2001;
Charles Onyango-Obbo and Andrew Mwenda vs. Attorney General, Supreme Court of Uganda, Const. App. No. 2 of 2002;
Sharon et al. v. Makerere University, Supreme Court of Uganda, Const. App. No. 2 of 2004;
Uganda v. Peter Matovu, High Court of Uganda, Crim. Session Case Bo. 146 of 2001;
Law & Advocacy for Women in Uganda, The Constitutional Court of Uganda, April 5, 2007;
Rwabinumi v. Bahimbisomwe, Court of Appeals of Uganda, No. 30 of 2007
Legal Action for People with Disabilities vs. Attorney General, Kampala City Council Authority sand Makerere University, MISC Cause No.146 available on http://www.ulii.org/ug/judgment/high-court/2014/42

Weekly Schedule

As far as is practicable, classes will follow the schedule below. Please note that it is not set in stone, and might change from time to time, with some topics being covered in different weeks from those indicated below.

Session 1 – Course Introduction

Reading Assignment: Key Philosophical Terms

Session Description: Describe the course syllabus and the lecturer’s and students’ expectations. Conduct a preview of the material to be covered. Discuss the role that Christianity and Christian Doctrine will play.

Week One and Two: Marxism and Distributive Justice

Marxist Jurisprudence

Reading Assignment: Lloyds, 1129-1155 (8^th Ed.) or 953-979 (7^th Ed.)

Session Description: Introduction to Marxism including its philosophical foundation and basic tenants.

Marxist Jurisprudence after Marx and Other Theories of Just Distribution

Reading Assignment: Lloyds 1155-1166 (8^th Ed.) or 979-990 (7^th Ed.), Finnis, 165-193

Session Description: Discuss evolution and application of Marxist ideology after Marx. Discuss other ideologies concerning the just use and distribution of property.

Week Three and Four: Law and Equality

Feminism

Reading Assignment: Lloyds 1285-1320 (8^thEd.) or 1122-1157 (7th Ed.); Aili Mari Tripp, Women’s Movements, Customary Law, and Land Rights in Africa: The Case of Uganda; Law & Advocacy for Women in Uganda vs. The Attorney General; Objective XV and Article 33 of the Uganda Constitution; The Marriage and Divorce Bill; The Anti-pornography Act 2014

Additional Reading: Bhe vs Magistrate, Kihayalitscha 2005, 1 SA 580 (CC) (male Primogeniture); Shilubana vs. Nwamitwa 2009, 2 SA 66 (CC) (Male ascension to tribal authority)

Session Description: Introduce and discuss feminist jurisprudence with an emphasis on the four schools of feminism discussed in the Cain article.

Critical Race Theory

Reading Assignment: Lloyds 1491-1496 and 1509- 1523 (8th Ed.) or 1352-1366 (7th Ed.); Ricardo Rene Laremont, Political Versus Legal Strategies for the African Slavery Reparations Movement; Fisher v. University of Texas, 507 U.S. (2013), Grutter v Bollinger, 539 US

Session Description: Introduce and discuss critical race theory. Discuss the relevance of critical race theory in United States of America with reference to the Fisher case while drawing examples from the Aparthied Policy in South Africa.

Affirmative Action and Corrective Justice

Reading Assignment: Objectives VI and XII and Articles 32 and 33 of the Ugandan Constitution. Schuette v. Coal, 572 U.S. (2014)

Session Description: Discuss the use of affirmative action in Uganda while drawing lessons from United States of America in line with the Schuette case.

African Jurisprudence and Ubuntu

Reading Assignment: J.Y. Mokgoro, Ubuntu and the Law in South Africa, paper delivered at the first colloquium on Constitution and the law held at Potchefstroom on 31^st October 1997; C. Himonga, M. Taylor and A. Pope, Reflections on Judicial Views of Ubuntu, PER/PELJ (2013)16 5

Session Description: Discuss the use of African Jurisprudence and Ubuntu in Uganda and analyse whether this principle can help us to bridge the aspect of division in our different societies.

This Topic will benefit from a guest speaker.

Week Five and Six: Religion and Morality in the Law

The Separation and Convergence of Church, Mosque and State

Reading Assignment: Objective XVIII and Articles 5 and 29 of the Ugandan Constitution; Sharon et al. v. Makerere University (Especially the Opinion of Odoki, CJ); James Boyd White, How Should We Talk About Religion? Inwardness, Particularity and Translation

Session Description: Discuss the historic relationship of the Christian Church and the State and discuss the aspect of religion in the context of a pluralistic society.

Morality and the Law

Reading Assignment: J.G. Riddall: Jurisprudence, pp. 291-321 “It shouldn’t be allowed: The enforcement of morality”; R. Wacks, Understanding Jurisprudence, pp. 150-162 “Law and Morality”; Articles 52(c)(3) and 225(1)(a) of the Ugandan Constitution; Rwabinumi v. Bahimbisomwe, (especially the Opinion of Twinomujuni, JA); Stella Ayoo and Victor Mukasa versus Attorney General of Uganda, Miscellaneous Cause No 247 of 2006, Sylvia Tamale, Out of the Closet: Unveiling Sexuality Discourses in Uganda, Feminist Africa, Issue No. 2 (2003); The Anti- Homosexuality Act, 2014

Session Description: Explore the relationship between morality and the law with a focus on the place of natural law based on the Rwabinumi case, along with a consideration of morally sensitive issues in Uganda, especially homosexuality and ‘common decency’. All these will be pitted against L.L. Fuller’s Morality of Law, for an understanding of what law really should be.

Week Seven: Adjudication, Politics, Democracy and the Rule of Law

Theories of Adjudication and Alternative Dispute Resolution

Reading Assignment: Lloyds, 1531-1586 (8^th Ed.) or 1375-1406 (7^th Ed.)

Session Description: Lecture on theories of adjudication and alternative dispute resolution.

Political Pressure, Freedom of Speech, Separation of Powers and the Rule of Law

Reading Assignment: John E. Jones, Our Constitution’s Intelligent Design, Litigation Magazine, Volume 33, No. 3, Spring 2007, pp. 3-6, 56-57; Charles Onyango-Obbo and Andrew Mwenda vs. Attorney General, (especially the Opinion of Justice Malinga); Andrew Mujuni Mwenda & Anor vs. Attorney General; George Kanyeihamba, “Judicial Independence and Accountability in a Democratic Society,” Kanyeihamba’s Commentaries on Law, Politics and Governance pp. 42-67

Session Description: Discuss the proper role of Judges and the problems faced by Judges in the political climate of democracies.

Week Eight: Legal Education and Legal profession

Critical Legal Studies and Postmodernism

Reading Assignment: Lloyds, 1209-1224 and 1236-1244 (8^th Ed.) or 1039-1056 and 1073-1081 (7^th Ed.), 1253-1264 (7^th Ed.), (Gordon, “Law and Ideology” 1056-1063, Gabel 1073-1081.

Session Description: Lecture on the key features of the Critical Legal Studies school of thought. Discuss the practical applications of Critical Legal Studies in general and by Christian lawyers. Lecture on the major tenants’ of Postmodernism and Postmodern Jurisprudence. Discuss the relevance of Postmodernism in Uganda.

Legal education in Uganda

Reading Assignment: The Odoki Report on Legal Education in Uganda; Joe Oloka-Onyango, Legal Education in Contemporary East Africa: Recasting the Debate on Pericles and the Plumber, Keynote address presented to the 1^st Inter-University Council of East Africa Conference on Legal Education in East Africa; Dar-es-Salaam, July 4-6 2005; A.V. Dicey, Can English Law be Taught at the Universities? 1883; Mark J. Dunne, The Rejuvenation of Legal Education, presented at the Inaugural Lecture of the 168^th Session of the Law Students’ Debating Society of Ireland; Brian Abel-Smith & Robert Stevens, Lawyers and the Courts: A Sociological Study of the English Legal System 1750-1965, Heinemann, London, 1967; Pamela Tibihikirra-Kalyegira, Liberalisation of Legal Education in Uganda – Policyy Considerations, 2010, Law Africa, Kampala.

Session Description: A discussion on the state of legal education in Uganda, where it is headed, and whether it is being done right in light of market needs and changing trends in practice and doing business in the world today. Class will also consider alternative ways of training lawyers and employment options for lawyers.

Week Nine: Ethics and Justice

Corruption and Civil Disobedience

Reading Assignment: John Mukum Mbaku, Bureaucratic Corruption in Africa: The Futility of Clean-ups, Cato Journal, Vol. 16, No. 1 (Spring/Summer 1996); J.G. Riddall, Jurisprudence, pp. 322-335 (“Two bites of the cherry: Civil Disobedience”)

Session Description: Discuss corruption from different jurisprudential perspectives. Review causes and effects of corruption in Uganda. Discuss strategies for addressing corruption. Discussion of civil disobedience

Lawyers as Agents of Change

Reading Assignment: First half of Making the Law Work for Everyone, Report issued by The Commission for the Legal Empowerment of the Poor

Session Description: Discuss the special role of the lawyer in effecting (and preventing) positive change.

Weeks Ten to Twelve: Post-colonialism: African thought in post-colonial Uganda

Frantz Fanon and Homi Bhabha

Reading Assignment: Chidi, A. Fanon, Cabral And Ngugi On National Liberation, Chapter 24, in Ashcroft, B., Griffiths, G., and Tiffin, H. (eds), Postcolonial Studies Reader – Pg 158; Bhabha, H.K. Cultural Diversity and Cultural Differences, Chapter 35, in Ashcroft, B., Griffiths, G., and Tiffin, H. (eds), Postcolonial Studies Reader – Pg 206; Fanon, F. On National Culture, Chapter 23, in Ashcroft, B., Griffiths, G., and Tiffin, H. (eds), Postcolonial Studies Reader – Pg 153; Achebe, C. Named for Victoria, Queen of England, Chapter 31, in Ashcroft, B., Griffiths, G., and Tiffin, H. (eds), Postcolonial Studies Reader – Pg 190

Session Description: This session will introduce postcolonial theory, trace its roots and tackle the first two core themes of the theory, namely decolonisation and hybridity. The works of Frantz Fanon, Ngugi wa Thiong’o, Amical Cabral, Homi Bhabha and Chinua Achebe will provide the basis for the discussion that will follow.

Gayatri Spivak, and Edward Said

Reading Assignment: Spivak, G.C. Can the Subaltern Speak?, Chapter 3, in Ashcroft, B., Griffiths, G., and Tiffin, H. (eds), Postcolonial Studies Reader – Pg 24; Said, E.W. Orientalism, Chapter 12, in Ashcroft, B., Griffiths, G., and Tiffin, H. (eds), Postcolonial Studies Reader – Pg 87; Ashcroft, B. and Ahluwalia, P. Edward Said (Routledge Critical Thinkers), 2001; Kincaid, J. A Small Place, Chapter 13, in Ashcroft, B., Griffiths, G., and Tiffin, H. (eds), Postcolonial Studies Reader – Pg 92

Session Description: The session will diagnose the core arguments made by Spivak’s theory of the subaltern and Edward Said’s Orientalism. A detailed discussion of Said’s influence on postcolonialism will follow just before a brain-storming session on the future of postcolonialism.

Postcolonialism and the Law

Reading Assignment: Alpana, R. “Postcolonial Theory And Law: A Critical Introduction”, Adelaide Law Review, pg 315, Vol 29, Issue No. 1/2 (2008); Seuffert, N. and Coleborne, C. “Law, History and Postcolonial Theory and Method”, Law Text Culture, 7(1), 2003; Otto, D. “Postcolonialism and Law?,” (1999) Third World Legal Studies: Vol. 15, Article 1.

Session Description: This session will delve into legal themes to which postcolonialism applies. Students will be taken through the colonial history of the idea of law in the third world and the justification for the application of postcolonialism to legal theory.

African contributions to postcolonial theory

Reading Assignment: Mamdani, M. “Citizen and Subject: Contemporary Africa and the Legacy of Late Colonialism”, (1996), Chapter Four

Session Description: Students will discuss Africa’s colonial experience, in as far as the form and content of law is concerned, during and after formal colonialism by Europe. The influence of colonisation on the language of ‘hierarchisation’ between customary/native law and colonial law will be explored.

NRM’s Popular Justice Policy as Legal Reform

Reading Assignment: Berkeley, A. “From Hyena to Shepherd: The State and Popular Justice in Uganda”, (1988), on file; Barya, J.J. & Onyango, J.O. “Popular Justice and Resistance Committee Courts in Uganda (1994)

Session Description: The session shall deal with NRM’s promise of an accessible justice as opposed to colonial law as part of its participation based approach to governance. The Resistance Committee courts are looked at in detail as NRM’s chosen tool to deliver indigenous justice.

Local Council Courts and the Decolonisation of the Law

Reading Assignment: The Local Council Courts Act, No. 13 of 2006; The Local Council Courts Regulations, Statutory Instrument No. 51 of 2007; United Nations Development Programme, “Review of the Outcomes and Impact of the Local Access to Justice Component (Final Draft Report)”, (2005), on file.

Session Description: The reform of the RC system into the LC system will be looked at through the lenses of the stated objective of the decolonisation of the law. Students will be required to identify the ways in which the LC system attempts to decolonise the legal system and to what extent this objective is achieved.