The rules of how courts take judicial notice of any fact as laid out in the Evidence Act and the
court decisions pronounced thereunder, should be techinicalities taken as technicalities other than
as matters of substantive law. They should not, therefore, in appropriate cases, defeat the courts’
pursuit of substantive justice in strict obeyence of the commands of Article 126 (2) (e) of the
Constitution.
It is the duty of courts in this country to accept and recognize the view that under Article 126,
(1) and2 (b) of the Constitution, customary law was constitutionally elevated from the inferior
position the colonial judiciary had apparently relegated it to in comparison with the other
laws, including common law as was known in the United Kingdom and as was applied to
Uganda by the 1902 Uganda Order In Council.
African Customary Law, under the traditional approach, was regarded as foreign law and
apparently inferior to the other law of the land, hence the requirement of strict proof of the same
under very strict rules. That positioning was most unfortunate. There was, in my opinion, no
other law more legitimately applicable in Uganda than the various indigenous Customary Laws
that were in place in the country before the advent of colonialism. Yet African Customary Law
was not to be taken judicial notice of with the same laxity as was with the other law. The test was
stricter for Customary Law than with any other law including English Common Law as applied
to Uganda. That liberal test for other law other than Customary Law is stated in Halsbury’s laws
of England 3rd Edition Vol 15 thus:“Judicial notice is taken of facts which are familiar to any judicial tribunal
by virtue of their universal notoriety or regular recurrence in the ordinary
course of nature or business. As judges must bring to the consideration of
the questions they have to decide their knowledge of the common affairs of
life, it is not necessary on the trial of any action to give formal evidence of
matters with which men of ordinary intelligence are acquainted whether in
general or in relation to natural phenomenon.”
InR.V. Field JJ, Experte while [1895] 64 LTJ M.C.158. the court PerWILLS J.observed:“In the nature of things, no one in determining a case of this kind can
discard his own particular knowledge of a subject of this kind. I
might as well be asked to decide a question as to the sufficiency of an
alpine rope without bringing my personal knowledge into play.”
This, I believe, is what is referred to by my brother A. Twinomujuni JA in his judgment in this
petition when he says:“However this court composed of Ugandans who were born, lived, worked and
practiced law in this country during a period of over half a century should be
able to take judicial notice of a notorious fact that the practice of bride price
has caused untold suffering to thousands of women throughout
Uganda………some of us have witnessed even worse experiences than the
witnesses from Tororo.” (Sic)
42
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