According to the Black’s Law Dictionary (8th Edition, p, 915), a legal practitioner is defined as a lawyer, who is also defined

by the
same dictionary on (p, 905) as one who is licensed to practice law. In Uganda legal practitioners are regulated by the Advocates Act
cap 267 as amended. The Advocates Act lays down the procedure through which one becomes a legal practitioner. Apparently, in
our jurisdiction a legal practitioner is one who represents clients in the courts of judicature and is at times referred to as an advocate.
The process of becoming an advocate is elaborately provided for in the Advocates Act (supra). It has been suggested by (Prof
Edward Khiddu Makubuya in his book (Introduction to law: 1983, page 427-428) like other professionals that have clearly defined
rules of practice, legal practitioners in their day to day work act in accordance with the accepted legal rules that guide the profession
as they represent litigants in the Courts of law, inter alia, legal practitioners are guided by particular principles of practice. So, it
follows the view that legal practitioners make different considerations before they make their arguments in courts to support their
respective cases. And, as it is going be demonstrated below, among the considerations made include such principle on which courts
premise their decisions which include those that were laid down by the Constitutional Court in the matter of Hon Sam Kuteesa & 2
Others Vs Attorney General, Constitutional Petition No.46 Of 2011. According to the brief facts of the case, the petitioners who
were jointly charged at the instance of the Inspector General of Government, with the offences of abuse of office and causing
financial loss C/s 11 and 20 of the Anti-Corruption Act, before the Chief Magistrate, Anti-Corruption Court, put questions before
the constitutional court as to whether the Inspector of Government can prosecute or cause prosecution in respect of cases involving
corruption, abuse of authority or of public office under Article 230 of the Constitution of the Republic of Uganda, when it is not
duly constituted inter alia as to whether committal proceedings by Magistrates in the Anti-Corruption Division and cancellation of
ibail under section 168 (4) of the Magistrates Courts Act do not violate Article 23 of the Constitution of the Republic of Uganda.
The constituticonal Court answered both questions in the affirmative. But, while delivering the decision it observed, “The court acts
according to the rules of reason, justice and law, within the limits and the objects intended by the particular legislation. Judicial
discretion is not private opinion, humor, arbitrariness, capriciousness or vague and fanciful considerations: See RV Board of
Education [1990] 2 KB 165” So, in light of the above observation, legal practitioners make different considerations before they
argue to support their respective cases as it can be demonstrated below.

First and foremost, legal practitioners consider the material facts of a case before they make their arguments to support their
respective cases. This follows the view that after ascertaining the material facts of a case it becomes very easy for them to identify
the issues concerning the law that they will have to put as questions of law to be resolved upon by the courts. Like it was observed
by the Constitutional Court in the matter of the Sam Kuteesa and two others (supra) that “judicial discretion is exercised by a court
when that court considers all that is before it…” Basically, it follows the view that legal practitioners as they make arguments to
support their cases it has to be premised on such material facts since it will be easy for the court to answer such issues on the point
of law as put before it by the parties to a suit. For instance, in the case of Sam Kuteesa (supra) after the legal practitioners
considered the material facts which were to the effect that; three petitioners, who were jointly charged, at the instance of the
Inspector General of Government, with the offences of abuse of office and causing financial loss C/s 11 and 20 of the Anti-
Corruption Act, before the Chief Magistrate, Anti-Corruption Court, and released on bail, had their bail cancelled by the chief
magistrate after they were committed for trial in the High Court. In challenge of bail application, the lawyers managed to frame the
respective questions for the court to answer “Whether committal proceedings by Magistrates in the Anti-Corruption Division and
cancellation of bail under section 168 (4) of the Magistrates Courts Act do not violate Article 23 of the Constitution of the Republic
of Uganda, which provides for protection of personal liberty, especially in view of section 51 of the Anti-Corruption Act, 2009,
which gives special jurisdiction to the Magistrates in the Anti-Corruption Division.” So, it is important to assert that legal
practitioners have to consider the material facts of case before they make their arguments since if the framed questions are not made
based on the material facts it becomes very hard for the court to rule on whether the plaintiff or petitioner has a cause of action. In
addition to the above, legal practitioners consider the law that applies to a particular set of material facts before they make
arguments to support their respective cases. For instance in the Kuteesa case, after considering the material facts it became easy for
the legal practitioners to know the law applicable which indeed also helped in the sustaining of the petitioners arguments and
eventually securing judgment in their favor. No wonder after consideration of counsel’s submissions court answered the petitioners
question in affirmative since Kabona’s argument was premised or hinged on the position contemplated by the law. Apparently, in
the consideration of laws applicable the legal practitioner is also to observe the branch of laws to be followed as well as the
procedural law that guides the legal profession and the judiciary or the court. Furthermore, consideration of material facts and
applying them to the respective applied laws also helps legal practitioners in the framing of the particular question as to be put
before the court for resolution. It should be noted that the way you frame your questions as a legal practitioner has an effect on how
the judgment is entered by a court of law. So, legal practitioners consider the frame of the questions that they have to put before
court as they prepare to make their arguments in court. This was demonstrated in the Kuteesa case where court observed that in
reaching the decision in regard of whether the IGG can prosecute as provided…it was not unmindful of its recent decision it took in
Constitutional Petition No.30 of 2011: Prof. GILBERT BALIBASEKA BUKENYA VS ATTORNEY GENERAL. Although the subject
matter in both cases, thus Kuteesa and Bukenya, were touching the same subject matter to do with challenging the powers the
Inspector General of Government to act as the Inspectorate of Government or Independently commence prosecution against anyone
when the Inspectorate of Government is not legally constituted, court reached different decisions because of the difference in the
framing of the question, as in the Bukenya petition, it was never addressed by counsel, and was not at all considered by court due to
the manner in which the questions were framed.

Thirdly, legal practitioners also have to consider the decided cases that have the same material facts as the case at hand or whose
material facts appear to have addressed some of the issues in the instant case. For instance, Counsel Kabona referred court to
Supreme Court of Uganda Constitutional Appeal No.1 of 1997: TINYEFUNZA VS THE ATTORNEY GENERAL, and the Kenyan
High Court PETITIONS NOS. 65, 123 & 185 OF 2011: JOHN HARUN MWAU & 3 OTHERS VS ATTORNEY GENERAL OF
KENYA & 20 OTHERS [2012] eKLR so as to interpret the Constitution as an integrated whole with no one particular provision
destroying the other but each sustaining the other. In so doing, the legal practitioners aim is to remind court that there are Court
precedents on the particular issues before it. And, since, it is a general practice under the common law system that courts are obliged
to follow previous decisions if the material facts are the same or decide cases the same way when they are of the same material
facts, it is part of a legal practitioner’s training always to know court decisions or precedents that have recently become authorities
on some legal principle (Granville, 2010:93). This practice is also known as the doctrine of stare decisis is the premise upon which
the rule of law which guides judicial discretion is founded. So, for instance, if the material facts of a case are to the effect that
someone was not heard before an administrative decision was carried out to his or her detriment, it would be proper for any legal
practitioner representing the plaintiff in such in a case if it is about a judicial review, to consider the constitutional court observation
in the matter of Ananias Tumukundhe V A.G, before they make their arguments in support of the case. However, it should be noted
that legal practitioners also consider the decision’s effect, that is to note, are those decisions of binding effect or persuasive effect.
And, this is ascertained based on the jurisdiction of the court they are appearing before and where the decision was carried out from.
For instance, if the Supreme Court of Uganda made a decision on the material facts and a precedent was set thereon forming part of
the ratio decidendi, the decision is binding on courts in Uganda except it as envisaged under article 132(4) of the constitution. This
also follows the view that decisions of the Court of Appeal are binding on the High Court and such other courts below it.
Meanwhile, decisions from foreign jurisdictions are not binding on Uganda’s court but they are of persuasive value.

Legal practitioners also consider the dictates or the position of Public Policy on a particular set of material facts before they make
arguments in support of their respective cases. It should certainly be stated that whenever a court of law makes a decision it is an
court’s assessment of the requirements of public policy (Makubuya 1983:430). This was demonstrated in the decision of Chief
Justice Benjamin Odoki in the matter of National Social Security Fund and Anor v Alcon International Limited, Civil Appeal no 15
of 2009, whereof after being persuaded by counsel Patricia Mutesi for the appellants, he ruled that the learned justices of appeal
erred in law in upholding an arbitration that was obtained illegally or contrary to public policy. In light of the aforementioned
observation by Justice Odoki (supra) as well as provisions of Article 126(1) constitution of the constitution which is to the effect
that Judicial power is has to be exercised by the courts in the name of the people and in conformity with law and with the values,
norms and aspirations of the people, legal practitioners are so guided to consider the dictates of public policy before they make their
arguments in court to support their respective cases, as so mentioned not to make such arguments which are contrary to public
policy since if they are to make such arguments the court will not be persuaded by their arguments.
Lastly, legal practitioners also have to consider the jurisdiction of the courts in which they are going to argue their cases before they
make their arguments in support of their respective cases. It is embarrassing for a legal practitioner to file a case in a court that has
no jurisdiction over the matter. This was observed by the Supreme Court in the matter of Sgt Kalemera Frank V Uganda, Criminal
Appeal No. 18 of 1994, where the appeal was dismissed as the court did not have jurisdiction over the matter. So, legal practitioners
consider court’s jurisdiction before they argue their respective cases as this has a bearing on the judgment. Besides, this also helps in
determining whether the decision of such a court is appealable or not. For instance, if a matter is settled by the supreme bench it is
final.
In conclusion it should be observed as explained above that legal practitioners make different considerations in making their
arguments in court to support their respective cases. And like it was observed in the Kuteesa Constitutional petition (supra), they
make those considerations so as to be in line with rules that guide judicial discretion as to be within the confines of rule of law.
Bibliography:
 Khiddu Makubuya (1983) Introduction to law; the case of Uganda, Kampala, Makerere University.
 Glanville Williams (2010) Learning the Law, London UK, Sweet & Maxwell.
 Bryan A. Garner Ed(2004) Black’s Law Dictonary,8th ed, united states of America, west publishing company, p 905 &915
 Hon Sam Kuteesa & 2 Others Vs Attorney General, Constitutional Petition No.46 Of 2011
 Sgt Kalemera Frank V Uganda, Criminal Appeal No. 18 of 1994
 National Social Security Fund and Anor v Alcon International Limited, Civil Appeal no 15 of 2009
 Ananias Tumukundhe V the Attorney General, constitutional petition No.04 of 2009
 Advocates Act cap 267
 The Constitution of the Republic of Uganda 1995, as Amended
 Mr. Bakayana [2013] lecture notes on precedent and legal reasoning.