In his article which I posted on my page yesterday, Advocate George Okello asserted that “…the decision of the majority Justices are, with the greatest respect, not binding on the Tax Appeals Tribunal and any Court below the Supreme Court either…[because] the decision of the majority Justices narrows the application of Section 15 of the TAT Act, as they refrained from pronouncing that the entire section is, in its entirety, unconstitutional.” While I appreciate the “practical difficulties in the application of the court decision”, I am of the view that the decision is nonetheless binding on TAT and any court below the Supreme Court.

My #alternativefacts

I stated in my earlier post that the majority of the Constitutional Court Justices, without outlawing the requirement to pay 30% of assessed tax prior to appeal as unconstitutional, adopted a fairer and just position out of the alternatives open to them, by identifying persuasive reasons that led to the conclusion that an alternative reading of the precedent represents a more accurate view of the law.

Mindful that Courts must adhere to binding precedent, the situation the Justices were confronted with presented several options especially in light of the fact that there are different ways of interpreting precedent and judges have discretion. The situation presented several options. They could have followed the precedent, even though they believed it is misguided and therefore unconstitutional. Alternatively, they could purport to overrule the precedent, despite the norm that lower courts lack authority to displace the rulings of higher courts. Finally, they could narrow the precedent from below by interpreting it not to apply partially, even though they think that the precedent is best read to apply; thus acknowledging that the precedent must remain binding in circumstances where it unmistakably applies, while also reducing the precedent’s scope of application in cases of where the precedent presents an ambiguity. The more pertinent question that arises, however, is whether the need to correct the error justified departing from the binding precedent since, according to the Justices, the precedent was decided per incuriam in the first place.

It is argued that stare decisis is not a straitjacket that condemns the law to being static. Judges have at least four options available to them when interpreting a precedent:

(a) They can #follow a precedent, which would entail interpreting it to apply where it is best read to apply;

(b) They can #expand a precedent, which would entail interpreting it to apply where it is best read not to apply;

(c) They can #narrow a precedent, which would entail deriving the “best” reading of relevant precedent; or

(d) They can #distinguish a precedent, which would entail interpreting it not to apply where it is best read not to apply.

From the above options which are legitimate under different conditions and as an interpretive exercise, when a court interprets a precedent to apply, it can follow or extend the precedent; and when it interprets a precedent not to apply, it can narrow or distinguish it. After all, lower courts have interpretive discretion and as the saying goes, judges must believe what they write and should write what they believe.

To the extent therefore, that the justices of the Constitutional Court did not overrule the binding precedent of the Supreme Court, but only narrowed its application by displacing its blanket application to all matters before TAT, the decision, in my humble view, ought to be binding on TAT and any other lower court. Any party not happy with the narrowed interpretation given to the precedent by the Constitutional Court should be free to appeal the decision.

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