Why Ugandans should worry about impugned, expunged laws in contemporary times

By Steven Masiga

There are several principles of law-making that countries must follow, and if lawmakers gloss over them, it may lead to undesirable consequences in legislation. In law-making, there are certain principles that lawmakers must not trample over while enacting laws for their countries, especially the requirement of a reasonable quorum before debating and eventually passing a Bill that will become an Act of Parliament.

Without skirting around, both words impugned and expunged are legal concepts used in a variety of ways. An impugned law will eventually become expunged depending on the court ruling in such a matter.

In its basic sense, an impugned law means a law that is under contestation or challenge and is being resisted by the community as either unfair or unconstitutional. Petitioners with such concerns often seek court redress, usually by challenging an Act of Parliament on grounds of legality or fairness. If court finds merit, such a law may eventually be expunged, as it is declared inconsistent with legal principles, either local or international.

Impugnment of a law means that a section of the community or an aggrieved person has petitioned court to declare that such a law is illegal, oppressive, or in contravention of certain basic principles of law-making and should therefore be expunged from the law books. A clear example in Uganda is the Narcotics and Psychotropic Substances Act, which was impugned and later expunged.

In that case, Government had enacted the law to stop the growing of khat in Wakiso District. Those engaged in the cultivation, sale, and consumption of miira challenged Government, arguing that the law stifled their economic rights as enshrined in the Constitution of Uganda and other municipal legislations. The aggrieved community collectively sued the Attorney General in a vicarious capacity, and court agreed that the law was passed in open violation of parliamentary rules of procedure, since there was insufficient quorum when the law was being passed.

An expunged law, therefore, is one that court has declared null and void, effectively removing it from the statute books. While court may expunge a law, Parliament on the other hand repeals. Though expungement and repeal are executed by different actors, both carry the same legal weight and are in many respects synonymous.

Expunged laws are those struck out because they compromise basic principles of natural justice, or are repugnant or inimical to fundamental principles of law-making. The two concepts — impugned and expunged — are closely related. The main point of departure is that one leads to the other: an impugned law, once proven, will eventually be expunged.

Some of the notable laws expunged by Ugandan courts include the Karamoja Act, critical sections of the Public Order and Management Act, and the Narcotics and Psychotropic Substances Act.

Among the Bamasaaba cultural institution, there has been friction on whether Bamasaaba are vested with authority to enact their own laws in the face of Article 79(1)(2) of the Constitution. Law-making in Uganda is a preserve of Government, and I may posit that it could even be a criminal act for any Ugandan to arbitrarily enact laws for their community.

In Uganda, law-making is vested in Parliament under Article 79(1)(2) and Local Governments under Section 38. Ministries are equally clothed with authority to propose changes to existing laws and, where necessary, develop policies to regulate entities within their docket. An example is the National Cultural Policy, developed under the Cultural Leaders Act, 2011.

There are different types of laws, such as rules, orders in council, and statutory instruments, each serving a specific purpose. Across the world, some of the basic principles of good law-making include: Political legitimacy – good law should be enacted by elected politicians, Publicity – all laws must be gazetted to ensure they are in the public domain, Flexibility – good laws should allow room for amendment in future, Clarity – laws should be clear to minimize ambiguity and misinterpretation and Permanency – good laws should function for a reasonable period and not be subjected to unnecessary amendments or repeals.

The writer is a lawyer and spokesperson of the Bugisu Cultural Institution.