A Closer Scrutiny of the Procedural Flaw in Florence Nyesigaomwe Ubriza v James Mugisha: Are Our Courts Prioritising Pragmatism Over Textualism in Determining Cases?

While I was preparing the usual court updates on Lawpoint Uganda, something immediately caught my attention in the judgment Florence Nyesigaomwe Ubriza v James Mugisha (Divorce Cause No. 41 of 2017) [2025] UGHCFD 154. Initially, I dismissed it as a minor procedural detail. However, when a senior advocate, Mr. Karugaba Philip, independently approached me and we discussed the same, it became clear that the issue warranted closer scrutiny.

Overview of the Judgment

In October, Justice Celia Nagawa delivered the ruling in Ubriza v Mugisha, addressing the evidentiary significance of bride price paid prior to a church wedding. The court reaffirmed established principles concerning matrimonial property, emphasising that property rights depend on both monetary and non-monetary contributions, as well as the treatment of the property as a shared home.

Justice Nagawa referenced various precedents, including Muwanga v Kintu, Rwabinumi v Hope Bahimbisomwe, Komore v Komore, and Ayiko Mawa Solomon v Lekuru Annet Ayiko, which uphold individual property rights while allowing equitable sharing when joint contributions are evident. The court clarified that, for properties not jointly registered, the beneficial share of each spouse relies on their proven financial contributions.

However, a significant concern arises from the court’s exclusive focus on the parties’ interests, while neglecting to address the fact that the parties had previously entered into a partial consent Judgment on June 24, 2019, which dissolved the marriage and resolved custody arrangements, while leaving the division of matrimonial property for judicial determination.

The court proceeded on the assumption that the dissolution was appropriately resolved, directing its attention solely to property identification, valuation, and allocation.

This judicial oversight is troubling, as the court did not scrutinise whether the consent-based divorce adhered to Uganda’s fault-based divorce framework under the Divorce Act. This omission raises critical questions regarding the court’s adherence to binding legal precedents and constitutional requirements.

Although the Advocates Act of Uganda enjoins legal counsel to inform the court on matters of law and guide the court accordingly during court proceedings, the judiciary maintains an independent duty to ensure the legality of the proceedings before it.

Senior Advocate Karugaba’s view, and one with which I agree, is that the Court could have initiated its own examination of the validity of the partial consent to divorce. In legal terms, the Court ought to have acted sua sponte to conduct a de novo inquiry into the legality of the purported dissolution before proceeding to determine the remaining matrimonial disputes.

This, therefore, raises the question whether Ugandan courts are embracing judicial pragmatism at the expense of legal textualism.

Pragmatism as a Judicial Philosophy

Pragmatism, as a legal philosophy, is commonly associated with American jurists such as Oliver Wendell Holmes Jr. and later developed by legal realists and scholars like Roscoe Pound. It emphasises practical outcomes, efficiency, and real-world consequences over rigid adherence to formal rules. Pragmatic judging prioritises resolving disputes in a manner that appears fair, expedient, and responsive to the lived realities of litigants.

In this case, the Court’s decision reflects a pragmatic instinct, accepting the parties’ apparent consensus on dissolution and focusing on resolving the remaining property dispute without reopening settled issues. Given the chronic backlog and resource constraints facing the Ugandan judiciary, such an approach may appear sensible and humane.

However, pragmatism becomes problematic when it supplants clear statutory commands and constitutional boundaries. Efficiency, while desirable, cannot justify bypassing mandatory legal thresholds, particularly in areas like divorce, where jurisdiction and legality are foundational.

By prioritising party consent over statutory and constitutional mandates, the court effectively evaded the established legal framework governing divorce in Uganda. This issue is particularly pertinent, given the Constitutional Court’s ruling rendered just two months earlier.

Textualism as a Judicial Philosophy

Textualism is a theory of legal interpretation most prominently associated with jurists such as Justice Antonin Scalia. It insists that courts must give effect to the plain meaning of statutory and constitutional text as enacted, rather than relying on perceived purpose, convenience, or policy considerations.

Under a textualist approach, the Divorce Act’s fault-based requirements are not optional procedural formalities but binding legal conditions precedent to dissolution. Consent of the parties, however genuine, cannot replace statutory proof of matrimonial offence. The text of the law governs, not the preferences of litigants or the pressures of judicial administration.

Uganda’s Constitutional Court reaffirmed this position in Innocent Ngobi Ndiko & Others v Attorney General & Others (Constitutional Petition No. 23 of 2020) [2025] UGCC 11, holding that marriage is a regulated social institution and that dissolution cannot occur through mutual consent alone. Any shift to a no-fault divorce regime lies within Parliament’s exclusive legislative authority.

Viewed through this lens, the High Court’s failure to interrogate the validity of the divorce in Ubriza v Mugisha represents a departure from textual fidelity and constitutional discipline.

Pragmatism, Textualism, and Ugandan Jurisprudence, Which Matters More?

While pragmatism has an important role in shaping remedies and managing procedure, textualism must remain paramount in Ugandan jurisprudence where jurisdiction, legality, and constitutional structure are concerned. Uganda operates within a constitutional order grounded in legislative supremacy and separation of powers. Courts derive their authority from statute and the Constitution, not from party agreement or judicial convenience.

In a developing constitutional democracy such as Uganda’s, strict adherence to statutory text and binding precedent promotes legal certainty, equality before the law, and institutional legitimacy. When courts prioritise pragmatic outcomes over textual and constitutional fidelity, they risk creating uncertainty, encouraging inconsistency, and effecting substantive legal change without democratic mandate.

Accordingly, while pragmatism may guide how courts manage cases, textualism must govern how courts decide them. In the context of divorce law, where the Constitution, statute, and public interest intersect, textualism is not merely preferable; it is essential.

The lesson from Ubriza v Mugisha, read in light of Ndiko, sends a chilling message that efficiency cannot override legality, and judicial compassion cannot substitute statutory compliance.

Ugandan courts must resist the temptation to resolve disputes at the expense of constitutional order, lest pragmatism quietly erode the rule of law.

By

Waboga David

Legal Researcher