There are several principles of lawmaking that countries must follow. If lawmakers gloss over these principles, it may lead to undesirable consequences in legislation. In lawmaking, certain principles must never be ignored, especially the requirement for a reasonable quorum before debating and eventually passing a bill that will become an Act of Parliament.
Without skirting around the subject, both words impugned and expunged are legal concepts used in a variety of ways.
An impugned law may eventually become expunged, depending on the court ruling in the matter. In its basic sense, an impugned law refers to a law that is under contestation or challenge—typically resisted by the community as unfair. In such cases, concerned petitioners may seek redress by petitioning the court. Usually, these are Acts of Parliament that are challenged by the public or any aggrieved person on legal or constitutional grounds.
A law is impugned when a section of the community or an individual petitions the court to declare that law illegal, oppressive, or in contravention of fundamental principles of lawmaking. If the court agrees, the law is then expunged, removed from the law books. A good example of such a case in Uganda is the Narcotic Drugs and Psychotropic Substances (Control) Act.
In that instance, the Government of Uganda enacted the Act to stop the growing of khat in Wakiso District. However, individuals involved in the cultivation, sale, and consumption of miira (khat) challenged the government. To them, the law stifled their economic rights as enshrined in the Constitution of Uganda and other municipal laws on the economic rights of citizens.
The aggrieved parties collectively sued the Attorney General in a vicarious capacity, and the court agreed with the petitioners. It found that the law had been passed in violation of parliamentary procedures—specifically, due to insufficient quorum when the law was being enacted.
An expunged law is one that the court has declared null and void. Once expunged, the law is effectively removed from the statute books and is no longer in force. While the court expunges laws, Parliament repeals them. Although these actions are performed by different institutions, they carry similar legal weight and are often synonymous in effect.
Expunged laws are those struck down by the courts because they compromise fundamental principles of natural justice or are repugnant to established legal norms. As highlighted above, an impugned law—once proven unjust or unlawful can be expunged.
Some other examples of laws expunged or struck down by the courts in Uganda include:
- The Karamoja Development Agency Act,
- Critical sections of the Public Order Management Act (POMA), and
- The Narcotic Drugs and Psychotropic Substances (Control) Act, as mentioned earlier.
Among the Bamasaaba cultural institution, there has been considerable debate over whether the Bamasaaba have the authority to enact their own laws, particularly in light of Article 79(1) and (2) of the Constitution.
Lawmaking in Uganda is primarily the preserve of the Government. I would even posit that it may be a criminal offense for any Ugandan to unilaterally create laws for their community without legal backing.
In Uganda, lawmaking authority is vested in Parliament under Article 79(1) and (2), and in Local Governments under Section 38 of the Local Government Act. Ministries are also empowered to propose amendments to existing laws and, where necessary, to develop policies that regulate the functioning of institutions within their mandates. A case in point is the National Cultural Policy, developed within the framework of the Institution of Traditional or Cultural Leaders Act, 2011.
There are different types of laws, including rules, orders-in-council, and statutory laws. Each serves a distinct purpose.
Globally Recognized Principles of Good Lawmaking
- Across the world, good lawmaking is guided by basic principles, including:
- Political Legitimacy: Good laws should be enacted by legitimate political actors.
- Publicity: All laws must be gazetted to ensure they are accessible to the public.
- Flexibility: Good laws must allow room for future amendment when necessary.
- Clarity: A good law should be clearly worded to avoid ambiguity. Vague laws create room for misinterpretation, which may distort legislative intent.
- Permanency: A good law should be stable and not subject to frequent or unnecessary amendments or repeals.
The writer is a lawyer and spokesperson of the Bugisu Cultural Institution.
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