Africa-Press – Uganda. The concept and analogy of justice and fairness has been variously misinterpreted and under-estimated as far as the complexity and vitality of the subject matter.
This reflection can be evoked from the various concepts regarding substantive justice and justice based on procedural technicalities, for instance, as procedure has been correctly adhered to is to define a fair race, which is a race in which the competitors start together and no one elbows the other.
A fair fight is one where no contestant is allowed to get away with fouls. To put this in context, many jurisdictions worldwide had adopted a system that stifles realisation of justice.
A system where cases were dismissed summarily on technicalities without any recourse to the merits of the case and even where the law provided remedies, the conditions thereon would make justice an impossibility.
Recently, however, judicial activism all over the world, has prompted a shift in the delivery of justice, which is aimed at promoting substantive justice at the expense of technicalities.
For instance, in the Nigerian case of Dapianlong vs Dariye (2008) 8 NWLR part 1036) 322, the erstwhile Chief Justice Walter Onnohogen JSC (as he was then), stated that “The reign of technical justice is over, on the same throne now sits substantive justice, long may you reign, substantive justice.
Similarly, more subtly Lord Denning in Packer vs Packer [1953] 2 AER 127, stated “And what is the argument for the other side? Only this that no case has been found in which it has been done before. That argument does not appeal to me in the least. If we never do anything, which has not been done before, we shall never get anywhere.
The law will stand still while the rest of the world goes on and that will be bad for both.” This means it is within the power of the judicial officer to make fair conclusions on ideal grounds depending on the issues at hand and not rigidly on the law as it is even though it creates a miscarriage of justice.
A more apt analogy is reflected in the symbol of justice, which consists of a “Blindfolded Lady” holding weighing scales and a sword, which depicts delivery of justice as noble act of fairness and thus symbolises the daily activity of judges of balancing competing interests and rendering justice impartially, fairly and expeditiously.
This is not a mere accident for it lies in the nature of the difference between substantive justice and technicalities. This is because Parliamentary legislation can have no such knowledge of all the possible combinations of circumstances, which the future may bring.
This inability to anticipate creates a judicial role to make more elucid, fair and rational judgement in determination of cases and this can only be achieved if cases are determined basing on their merits for there is no issue that can be resolved without looking at the issues ie it is like ignoring the clay and looking at the pot.
Nevertheless, the spirit of substantial justice is rooted in the principle of fiat Justitia ruat caelum (meaning let justice be done though the heaven falls).
Lastly many of these so-called modern principles of law are simply a sugarcoat of our African civilisation. For instance, in Buganda before the coming of the British, there were principles like Tosala gwa kawala nga tonawuliriza gwa kalenzi (meaning hear the other side out in modern jurisprudence where it is a cornerstone in law).
This meant our local courts could decide all matters based on their merits and not procedural or technical mistakes, a system that is essential in realisation of justice.
Patrick Gukiina Musoke,[email protected]
