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Published: Fri, 02 Feb 2018


Substantive law is the statutory or written law that governs rights and obligations of those who are subject to it. Substantive law defines the legal relationship of people with other people or between them and the state. Substantive law stands in contrast to procedural law, which comprises the rules by which a court hears and determines what happens in civil or criminal proceedings. Procedural law deals with the method and means by which substantive law is made and administered. The time allowed for one party to sue another and the rules of law governing the process of the lawsuit is examples of procedural laws. Substantive law defines crimes and punishments (in the criminal law) as well as civil rights and responsibilities in civil law. It is codified in legislated statutes or can be enacted through the initiative process.

Procedural law comprises the rules by which a court hears and determines what happens in civil lawsuit, criminal or administrative proceedings. The rules are designed to ensure a fair and consistent application of due process (in the U.S.) or fundamental justice (in other common law countries) to all cases that come before a court. The substantive law, which refers to the actual claims and defenses whose validity is tested through the procedures of procedural law, is different than procedural law.

In context of procedural law; procedural rights may also refer not exhaustively to rights to information, rights to justice, rights to participation which those rights encompassing, general Civil and Political rights. In environmental law, these procedural Rights have been reflected within the UNECE Convention on “Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters” known as the Aarhus Convention (1998).

In Uganda these two principles are laid down in the constitution article 126 which states that:

1. Judicial power is derived from the people and shall be exercised by the courts established under this Constitution in the name of the people and in conformity with law and with the values, norms and aspirations of the people.

2 .In adjudicating cases of both a civil and criminal nature, the courts shall, subject to the law, apply the following principles—

justice shall be done to all irrespective of their social or economic status;

b) Justice shall not be delayed;

c) Adequate compensation shall be awarded to victims of wrongs;

d) Reconciliation between parties shall be promoted; and

e) Substantive justice shall be administered without undue regard to technicalities.

However there have been several issues raised concerning 126(2) (e). Many cases have popped up due to this clause. This clause in its literal meaning states that substantive justice must be applied with complete disregard to procedures of the court. It is a clause cited by many a lawyer when procedures of the court have been faulted. The courts, however, in respect of substantive law do not always adhere to this clause. This can be seen in the case Utex Industries Ltd. Vs. Attorney General (Civil Application No.52/95). The application before the Supreme Court was the usual one seeking to enlarge time for failure to take the right step at the right time under certain provisions of the Supreme Court rules of procedure. The applicant sought to rely on Article 126(2) (e) in support of its case. In rejecting the application the Court said:

“Regarding Article 126(2)(and the Mabosi case we are not persuaded that the Constituent Assembly Delegates intended to wipe out the rules of procedure of our courts by enacting Article 126(2)(e). Paragraph (e) contains causation against undue regard to technicalities. We think that the article appears to be a reflection of the saying that rules of procedure are handmaids to justice meaning that they should be applied with due regard to the circumstances of each case. We cannot see how in this case article 126(2)(e) or Mabosi case can assist the respondent who sat on its rights since 18/8/1999 without seeking leave to appeal out of time. It is perhaps pertinent here to quote paragraph (b) of the same clause (2) of Article126. It states; “justice shall not be delayed”. Thus to avoid delays, rules of Court provide a timetable within which certain steps ought to be taken. For any delay to be excused, it must be explained satisfactorily. “

Such is the importance of procedure that it is said to lie at the heart of the law by providing the necessary armoury to the parties for presenting and conducting their cases. In the graphical exposition of Sanghi he analogises the importance of procedure to justice to that of a human body and soul. The body viz. the procedure vibrates with life because of and to the extent it protects justice and justice depends upon and cannot be achieved without the body viz. the proper and health procedure. It thus goes without saying that in order to operationalize the elements of civil justice; the civil justice system must be able to effectively give just solutions for substantive law disputes by applying appropriate rules of procedural law. The procedural law must therefore have the capacity to ensure that the rights guaranteed are enforced at law without any imbalance between the rights that people enjoy at law and the rights that they enjoy in practice.

In the case of Utex the court applied a wholistic approach to the interpretation of this clause. In which any delay in the dispense of justice must be explained satisfactory in accordance with article 126(2) (b).

It is moreover intriguing to note that this state of affairs began in the Supreme Court with the case of Stephen Mabosi versus Uganda Revenue Authority SCCA No.16 of 1995. In that case the respondent in an application to strike out its notice appeal for failing to take certain essential steps within the prescribed time, sought in aid Article 126(2)(e) urging that the objections of the applicant were mere technicalities meant to defeat substantive justice. The Supreme Court did not in its decision consider Article 126(2)(e) but proceeded to construe and apply the rules liberally in order to give a just decision lest it would be unjust to drive the respondent away from the judgment seat. It can be seen from this judgment that it could after all have been better not to have Article 126(2)(e) as the court did not rely on it but yet came to a just decision by ignoring the procedural technicalities.

This can also be seen in the case of Kasirye, Byaruhanga and Co Advocates v Uganda Development Bank SCCA No. 2 of 1997.The Supreme Court went ahead to reinforce their decision in Utex Industries and set a locus classicus. In this case the appellant had complied with all the other rules save serving the letter of request on the respondent. Counsel for the appellant even conceded the lack of service of the written request but sought in aid Article 126(2)(e) contending that no injustice had been occasioned to the respondent. The Supreme Court in upholding the preliminary objection had this to say after quoting Article 126(2)(e) and underlining the words “subject to the law”.

“We have underlined the words subject to the law. This means that clause (2) is no license for ignoring existing law. Rules 81(1) and 81(2) are existing laws…… Clearly sub-rule (2) of rule 81 disentitled the appellant from relying on the proviso to sub-rule (i) if such appellant failsto serve the respondent with a copy of the request for proceedings. There are many decided cases on this point. And after quoting their interpretation of Article 126(2) (e) made in Utex, the Supreme Court further held that: “We adopt the same reasoning here and say that a litigant who relies on the provisions of Article 126(2)(e) must satisfy the court that in the circumstances of a particular case before the court it was not desirable to pay undue regard to a relevant technicality. Article 126 (2)(e) is not a magic wand in the hands of defaulting litigants”.

The procedural Clause serves two basic goals. One is to produce, through the use of fair procedures, more accurate results: to prevent the wrongful deprivation of interests. The other goal is to make people feel that the government has treated them fairly by, say, listening to their side of the story.

The Due Process Clause is essentially a guarantee of basic fairness. Fairness can, in various cases, have many components: notice, an opportunity to be heard at a meaningful time in a meaningful way, a decision supported by substantial evidence, etc. In general, the more important the individual right in question, the more process that must be afforded. No one can be deprived of their life, for example, without the rigorous protections of a criminal trial and special determinations about aggravating factors justifying death. On the other hand, suspension of a driver’s license may occur without many of the same protections.

The Civil Procedure Act and the rules that were made under it contain specific provisions that are supposed to promote the concept of administering substantive justice. Enlargement of time is provided under section 99 and rule 47. The power given is discretionary. It is given to enable the court to enlarge time in favour of a party who fails to meet the deadline set by the Act and the rules. This is intended to avoid a situation where a litigant can easily be driven from the court before his or her complaint is investigated.

The above point is what that the framers of the constitution kept in mind when drafting the 1995 constitution section 126, that justice belongs to all, irrespective of guilt. This is in line with natural justice which states that everyone has a right to be heard and without bias. Thus procedural rules are made to uphold these principles and if they are disregarded then justice would not have been done.

With concerns to the interpretation of 126 (2) (e) most lawyers tend to take it in the literal sense which has had bitter consequences with regards to some cases. This rule gives all the words in a statute their ordinary and natural meaning. Under this rule the literal meaning must be followed, even if the result is absurd.

The Literal rule has been the dominant rule, whereby the ordinary, plain, literal meaning of the word is adopted. Lord Esher stated in 1892 that “… if the words of an act are clear, you must follow them, even though they lead to manifest absurdity…”

There are, however, a number of disadvantages in using this rule. It is often called the ‘dictionary rule’, but dictionary definitions can attribute several meanings to one word. It also restricts judicial creativity and holds back development of the law in keeping with changing social conditions. With the literal rule it must be remembered that in extreme cases the statute may be drafted where certain words in isolation can have several meanings.

In recent times, the judiciary tends to take the interpretation of statutes or specific clauses in the purposeful manner they were meant to taken by the original draftsmen. In other words, they consider the original purpose of the entire clause or section. Denning stated his view in Factortame (1990):

“We do not sit here to pull the language of Parliament apart to pieces and make nonsense of it ………… We sit here to find out the intention of Parliament and carry it out, and we do this better by filling in the gaps and making sense of the enactment than by opening it up to destructive analysis”

Blackstone also believed that the mischief/purposive approaches should prevail as, in his opinion, the ‘fairest and most rational method to interpret the will of the legislator is by exploring his intention at the time the law was made…’

Justice professor Kanyeihamba in James Rwanyarare & Anor V A.G emphatically expressed this approach when he said that Article 126(2)(e) is not a magical article that was intended to wipe the away the rules of procedure and that the petition would be dismissed if it did not comply with procedure. Article 126 was by no means a cure for the defects and was just an excuse for lazy lawyers.

In conclusion, it’s important to note that the framers of the constitution did not in any way want rid the courts of procedure but enable substantive justice to be carried out in respect to both sides through the due process. Due process is a tool in which the courts administer natural law.

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