Substantive law is the statutory or constitutional law that defines the legal relationship of citizens with other citizens or between the citizens and the state. Substantive law is different from procedural law, which states the rules by which a court hears and determines cases. Procedural law deals with the various methods and ways by which statutory law is made and dispensed. Substantive law defines crimes and punishment 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 defines the rules by which a court hears and determines what happens in civil (between citizens) and criminal 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 to a court. The validity of substantive law is tested through the procedures of procedural law.
In Uganda these two principles are laid down in the constitution article 126
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 that the constituent assembly did not intend rid the courts of procedure, but are to work hand in hand with the substantive law.
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 highlighting the phrase “subject to the law”. This the learned judges said was no license to ignore the present laws and that for an appellant to rely on this clause he/she must prove beyond reasonable doubt that there is no desire to uphold technicalities.
The procedural Clause serves two basic goals. One is to produce more accurate results. The other goal is to make people feel that the government has treated them fairly and justly in listening to their defense.
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.
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.
