Legal Methods and Legal Education in Uganda, Study notes of Law

Download Legal Methods and Legal Education in Uganda and more Study notes Law in PDF only on Docsity! The Fundamentals of Legal Education and Practice in Uganda Legal Methods Understanding Legal Methods Legal methods refers to a set of techniques used to analyze and apply the law, and to determine the appropriate weight that should be accorded to different sources of law. According to Simon Lee and Larry Fox, "the course or study of legal method can be used as the basis of a first year course or an intensive introductory course in the first year to develop skills throughout a four year course." Legal methods is an introduction to both the nature of the English legal system and its sources, as well as the techniques which lawyers use when handling these sources. Legal methods is made up of two words: 'Legal' and 'method.' The word "legal" means something relating to the law or anything deriving authority from or founded on law. "Method," on the other hand, is a systematic procedure, technique, or mode of inquiry employed by, or proper to a particular discipline of law. This is basically the 'mode of operation' or the means of attaining an object. The Latin phrase, 'modus operandi' (method/ mode of doing something) can also be used in the place of the word 'method,' although this maxim is mostly used under criminal law. Legal methods focuses on the orientation of students to legal studies from the point of view of basic concepts of law and legal systems. This helps students to think and act like a lawyer and respond to law studies accordingly. Harry W. Jones asserts that the beginning law student goes through an experience for which nothing in his past education has prepared him, and thus finds it hard to adjust to the way things are handled in law studies. He continues to elucidate that the beginning law student finds it hard to grasp just what is expected of him, what insights he is supposed to bring to the class discussions and exams. Traditional Legal Education Gold, in his article "Traditional Legal Education," has summed up the nature of traditional legal education as follows: "Traditional legal education (1) pursues the learning of legal facts, (2) through a process of analysis, (3) which teaches students to think like lawyers, (4) then asks questions about underlying fundamental principles, (5) and about policies. Almost all of this study engages the rational mind in an essentially objective analysis." Legal methods, under the umbrella of 'legal education,' teaches the students to engage with legal texts, to think critically about the law, and to familiarize students with theoretical debates on the nature of law and acquaint them with their real-world consequences. It equips students to gain a basic understanding of the legal system, the institutions, the nature of legal rules, the technique of legal and logical reasoning and analysis. The Common Law In our legal system, the phrase "common law" is most commonly used to refer to judge-made law as distinguished from statutory law. Our whole legal heritage derives from the common law, which originated at a time when the courts were the prime law-makers. Thus, by definition, the common law deals with problems which have not been resolved by legislative action. It is a part of the system of government of the nation in which it functions, and it has to justify itself by its ability to sub-serve the ends of government, that is, to help to promote the ordered existence of the nation and the good life of the people. The Legal Profession in Uganda The Legal Profession The legal profession is a vocation that is based on expertise in the law and in its application. Those who pursue these 'vocations' collectively form a body of individuals who are qualified to practice law in particular jurisdictions. Justice Remmy Kasule in Raymond Otucu v. Otwii Tom and others (HCT-02-029-2007) stated that the legal profession, more than any other profession, enjoins its members to exhibit the best proficiency of expertise when handling and pursuing instructions of their clients or the state at large. Justice Stephan Musota in Paul Mugoya v. Attorney General (Misc. Application No. 364 of 2015) stated that the Advocates Act Cap. 267 is one of the laws that regulates the legal profession and matters relating to the legal profession in Uganda. The Bench The legal profession is divided into two broad areas: (1) The Bench and (2) The Bar. The Bench is composed of judicial officers who are regulated by the Uganda Judicial Code of Conduct and the Judicial Service Act Cap.14. Article 126(1) of the constitution creates the stem of judicial power in Uganda by providing that judicial power is derived from the people and to be exercised by the courts established under the constitution. Under Article 257(b) of the constitution, a "court" is one established by or under the courts of judicature. A "judicial officer" was defined in the case of Masalu Musene v. Attorney General to mean all the persons and offices mentioned in Article 151, unless the context otherwise requires. Under Article 151 of the constitution, a Refusal to Issue or Renew a Practicing Certificate Section 12 of the Advocates Act outlines the grounds on which the Registrar may refuse to issue or renew an Advocate's Practicing Certificate, such as being of unsound mind, failure to pay costs or subscription, lack of approved chambers, criminal convictions, or lack of Continuing Legal Education points. Advocates Professional Conduct The Advocates (Professional Conduct) Regulations provide guidelines for the conduct that advocates should adhere to while carrying out their duties. However, the Advocates Act empowers courts to deal with advocates who violate the rules of ethics. The Disciplinary Committee of the Law Council is established under the Advocates Act to handle complaints arising from the misconduct of advocates. Therefore, all advocates are expected to comply with the code of conduct set out in the Advocates (Professional Conduct) Regulations. Regulations under the Advocates (Professional Conduct) Regulations Regulation against Conflict of Interest or Personal Involvement in the Client's Case Regulation 9 of the Advocates (Professional Conduct) Regulations restricts any advocate from appearing before any court or tribunal in a matter where the advocate has reason to believe that they will be required as a witness. In the case of Lwandasa v. Kyas Global Trading Company (2014), the court held that the involvement of the same law firm in the disputed transaction, sale agreement, and legal enforcement resulted in a conflict of interest, which was contrary to Regulation 9. Regulation against Acting for a Client without Instructions Regulation 2(1) of the Advocates (Professional Conduct) Regulations states that no advocate shall act for any person unless they have received instructions from that person. Regulation against Prejudicing Former Clients Regulation 4 of the Advocates (Professional Conduct) Regulations prohibits an advocate from accepting instructions in a matter that involves a former client, if the advocate is aware of any facts that may be prejudicial to the other client. In the case of Fred Nyeenya Mayambala v. Bisaso Nathan (2005), the court stated that for a conflict of interest to arise in respect of a former client, there must be a nexus between the two disputes that prejudices the position of the former client. Regulation against Using Fiduciary Relationship for the Advocate's Own Advantage Regulation 10 of the Advocates (Professional Conduct) Regulations prohibits an advocate from taking advantage of the fiduciary relationship with their client for their own gain. In the case of Uganda v. Ojangole (2014), the court held that it was forbidden for the advocate to turn around and seek to act on behalf of the accused in a matter arising from the same transaction, as the advocate had knowledge of the employer's financial status. Regulation against 'Res sub judice' Regulation 20 of the Advocates (Professional Conduct) Regulations restricts an advocate from making announcements to the media concerning any pending, anticipated, or current litigation in which they are not involved. Regulation against Coaching Witnesses Regulation 18 of the Advocates (Professional Conduct) Regulations prohibits an advocate from coaching a person whom they expect to be a witness in a matter the advocate is appearing before in any court. Regulation against Unlawful Arrangement with Public Officers Regulation 13 of the Advocates (Professional Conduct) Regulations restricts an advocate from entering into any arrangement with a public service employee to secure the acquittal of the advocate's client or the bringing of a lesser criminal charge against the advocate's client. Regulation against Presenting to Court False Affidavits Regulation 15 of the Advocates (Professional Conduct) Regulations prohibits any advocate from including in any affidavit any matter they know to be false. In the case of Re Ssesanga, the petitioner was struck off the roll of advocates for swearing a false affidavit. Regulation against Advertising Regulation 25 of the Advocates (Professional Conduct) Regulations restricts an advocate from using their name in the capacity of an advocate in any commercial advertisement. However, this rule has faced international challenges, as seen in the Kenyan case of Okenyo Omwansa v. Attorney General, where the High Court accepted the advertising by advocates. Regulation against Champerty or Contingent Fees Regulation 26 of the Advocates (Professional Conduct) Regulations prohibits an advocate from entering into any arrangement for the sharing of a proportion of the proceeds of a judgment. In the case of Shell (U) Ltd v. Rock Petroleum, Justice Mulyangoja held that champerty agreements, which involve buying into another's lawsuit or sharing in the spoils of litigation, are illegal at common law. Regulation against Charging Excessive Fees Regulation 28(1) of the Advocates (Professional Conduct) Regulations provides that no advocate shall charge a fee that is below the specified fee under the Advocates (Remuneration and Taxation of Cost) Rules. Duties of Advocates Duties of Advocates to their Clients Advocates have a duty to represent their clients in both civil and criminal proceedings, provide legal advice, communicate with clients, and manage their clients' legal files. They are also required to avoid representing clients in conflicts of interest. Duties of Advocates to the Court Advocates have a duty to act as officers of the High Court, not to submit false evidence, advise the court on matters within their special knowledge, and not to interfere with the due process of the court. Duties of Advocates to Opposing Counsel Advocates have a duty to communicate with opposing counsel about the details of the case, participate in the discovery process, and not provide misleading witnesses or false documents in court. Duties of Advocates to the State Advocates have a duty to take on cases of citizens against the state or capital offenses (known as "State Briefs") and to pay taxes. Duties of Advocates to the Public Advocates have a duty to help in the pursuit of justice for all, provide pro bono services, serve justice rather than pursue money, and promote public interest litigation. Duties of Advocates to the Legal Profession Advocates have a duty to protect the Constitution of Uganda, pay annual fees to the Uganda Law Society, East African Law Society, and the High Court, and comply with the Advocates Code of Conduct. Challenges Facing Legal Education in Uganda Non-accreditation of universities to teach law, leading to some institutions teaching law illegally. The high expenses of maintaining universities and the LDC, leading to admissions beyond the capacity of these institutions and endangering the quality of the product. Fraud and forgery within the legal education system, such as the forging of academic documents. High levels of competition between law schools in Uganda, with each trying to market itself as the best. Inadequate access to necessary legal materials, such as law books, law reports, and the expensive Uganda online law library. The mushrooming of private universities offering law degrees, with concerns about low teaching standards and the preparation of law graduates. Instabilities within some law universities, such as student or lecturer strikes, disrupting the delivery of legal education. High fees charged by some law institutions, making it difficult for some students to afford. Outdated curriculum and syllabus in law schools, not keeping up with the current context for lawyers. Issues with the examination assessment system, which may not adequately test the application of law. Lack of a practical approach to teaching law in some institutions, with a focus on theory rather than practical application. Inability of some law schools to provide students with international programs and experiences that could enhance their skills. Recommendations for Addressing the Challenges Regular notification of accredited legal institutions through the media to ensure transparency. Partnerships with fellow universities within and outside of Africa to facilitate student exchange programs and exposure to new legal knowledge. Upgrading the technology and library resources available to law students, such as well-stocked libraries, electronic information retrieval databases, and information and communications technology. Encouraging law students to enrich their knowledge in allied social sciences like economics, political science, sociology, and psychology to better understand the complex social structures, values, institutions, and processes. Focusing on building up the skills of analysis, language, drafting, and argument in law students. Encouraging moot court competitions to enable students to learn the practical aspects of legal practice. Assessment of law lecturers in different universities by the Law Council and the NCHE to ensure quality. 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 1. 2. 3. 4. 5. 6. 7. Legal Research Legal research is the process of identifying and retrieving information necessary to support legal decisions. It is an essential skill for lawyers and legal scholars, as it helps them find the relevant and authoritative material to solve legal problems. The importance of legal research includes: i. Collecting authoritative material that may be relevant to solving a legal problem. ii. Helping lawyers and legal scholars master the skill of knowing where to find the law, which is crucial for their work. Glanville Williams asserts that "Lawyers do not know much more law than other people but they know better where to find it." Therefore, legal research is a critical component of the legal profession and the development of legal education in Uganda. Legal Research: A Comprehensive Guide Purpose and Importance of Legal Research Legal research serves several important purposes: Acquiring Knowledge: It helps to acquire knowledge on a specific legal topic. Effective Preparation: It assists advocates in effectively preparing for their cases. Providing Legal Advice: It forms the foundation for providing sound legal advice. Steps in Conducting Legal Research Establishing the Purpose: One should first determine the reason for conducting the legal research. Identifying Legal Sources: This includes identifying sources of law, such as case law, statutory law, and ICT resources. Understanding the Facts: Researchers must have a thorough knowledge of the relevant facts. Analyzing the Facts: The facts must be analyzed to determine the key legal issues. Identifying Legal Problems: The legal problems that arise from the facts and analysis must be identified, which then allows the researcher to find solutions. Note-Taking Technique: Researchers must develop a systematic approach to note-taking to find the applicable law. Citation: This refers to the process of referencing legal sources as authority for the conclusions drawn in the research. 1. 2. 3. 1. 2. 3. 4. 5. 6. 7. Citing Legal Sources Citing Statutes: Show the section, subsection, name of the statute, and chapter. Section 15 of the Interpretation Act provides that any statutory instrument may be cited by reference to its short title or by reference to the number of the notice in the gazette. Citing Textbooks: Author names, book name, year of publication, edition, and page number. Citing Newspaper Articles: Name of newspaper, date, name of article, author, and page number. Citing Journal Articles: Author, title, journal title abbreviation, initial page number, and year of publication. Citing Electronic Case Law: Case name, name of database, court, and document number. Citing Internet Sources: Author or owner of website, title, pinpoint reference, URL, and date material was retrieved. Primary and Secondary Sources of Legal Research Primary Sources: - Case law: Decided cases are highly relevant in legal research, as Uganda follows the common law legal system. - Statutes: Legal researchers can base their research on statutes, which include the chapter name, short title, commencement date, long title, arrangement of sections, marginal notes, and schedules. Secondary Sources: - Dissertations: Research papers written by students completing degrees or masters. - Textbooks: Authoritative books that can assist in legal research. - Internet Sources: Modern forms of legal research, but factors such as authority and accuracy must be considered. - Customs: The rules and rights of customs can be relied upon, as they form part of customary law. - Law Dictionaries: Provide definitions of legal terms and are useful in legal research. - Journals: Academic documents on various legal subjects that can serve as sources of information. Challenges in Legal Research Expense: Legal research materials, such as law books and online database subscriptions, can be costly. Scarcity of Sources: Statutes are often amended, making research work more challenging. Time Consumption: Preparing legal research, such as dissertations, can be a time-consuming process. ICT and Legal Research Sources of ICT Legal Research: - Social media platforms (e.g., Barefoot Law on Facebook) - Legal databases (e.g., ULII, SAFLII) - Legal blogs (e.g., 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 1. 2. 3. the justices of the constitutional court must have taken the word 'leave' out of the context it was used in Article 127(1)(g), and tried to interpret it in isolation of the rest of the words used in Article 127(1)(g). Importance of Linguistic Reasoning It is important to note that linguistic reasoning is entirely based on applying the rules or legal provisions the way they are provided for under a given statute. In Attorney General v. Major general David Tinyefunza, Justice Kanyeihamba stated that legal professionals should not select one or two provisions or sections of a law or clauses of the constitution and then reach legal conclusions upon them, as this is not productive. Judicial Discretion Judicial discretion requires the knowledge of the law, and then applying such knowledge to the facts of a case in order to arrive at legal conclusions. Lawyers must identify the problem giving rise to a case so that they are in a position to identify the laws applicable. Lawyers then have to evaluate the problem based on the evidence available and then arrive at conclusions after careful observation and investigation. In Sam Kuteesa and others v. Attorney General, the court stated that it acts according to the rules of reason, justice, and law within the limits of legislation. Importance of Understanding the Legal Problem Lawyers must understand the legal problem very well before making conclusions so that they do not arrive at wrong conclusions. In Ssekikubo and others v. Attorney General, the constitutional court arrived at a wrong conclusion when the Justices interpreted the word "leave" to mean 'to go away, stop living in and, stop working for'. The Supreme court held that the constitutional court faulted in its reasoning while interpreting the word 'leave'. Legal Reasoning Based on the Law Legal reasoning must be based on the law and not on religious or biblical rules. In Julius Lwabinumi v. Hope Bahimbisomwe, the Supreme court stated that legal reasoning must be based on the law. Reasoning by Analogy Reasoning by analogy involves making arguments based on the fact that a case should be handled in a similar way another case with similar facts and ratio was handled by the court. In Amama Mbabazi v. Yoweri Kaguta Museveni and another (Presidential Election petition No.1 of 2016), the court followed the reasoning in Dr Kiiza Besigye's case and held that, even though there were irregularities in the electoral process, such irregularities could not substantially render the elections null and void. Importance of Evidence in Legal Reasoning Legal arguments must be based on the available evidence so that a valid legal argument is made. Section 4 of the Evidence Act emphasizes that evidence may be given in any suit or proceeding on the existence or non- existence of every fact. This can be illustrated based on criminal cases, such as in Uganda v. Kyamusungu, where the court relied on the evidence presented by the prosecution that the eye witnesses saw the accused raping the victim.