CASE BACKLOG AND THE RIGHT TO DUE PROCESS:
THE UGANDA JUDICIARY
BY
GODFREY KAWEESA
SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS
FOR THE AWARD OF A DEGREE OF MASTERS OF LAWS
OF MAKERERE UNIVERSITY
OCTOBER 2012
DECLARATION
I Godfrey Kaweesa declare that this thesis is an original work and has not been
presented to any institution before for any award of a degree.
Candidate:
--------------------------------------------------
GODFREY KAWEESA
Date
This thesis has been submitted with our consent:
Prof. Frederick Jjuuko
SUPERVISOR
Date
Assoc. Prof. Christopher Mbaziira
SUPERVISOR
Date
i
DEDICATION
This work is dedicated to the Kaweesa family, to all the Judicial Officers who toil to
dispense proper justice and to all persons whose human rights are violated through
delayed justice.
ii
ACKNOWLEDGEMENT
I would like to acknowledge the efforts of all persons who worked tirelessly towards the
success of this work. Special thanks go to my supervisor. Professor Fredrick Jjuuko and
his co-supervisor Associate Professor Christopher Mbaziira whose guidance made this
work successful. Special thanks also go to the Judiciary and the Faculty of Law
Makerere University for the support.
Acknowledgement goes to my parents Mr. Ignatious Kirabira and Mrs. Nabisubi
Catherine who rendered much support to the knowledge that led to this work.
Special thanks also go to Judicial Officers and support staff at the High Court Kampala,
the Judicial studies institute and Fortportal Magisterial area.
iii
TABLE OF CONTENTS
Declaration .............................................................................................................i
Dedication ...............................................................................................................ii
Acknowledgement ..................................................................................................iii
Table of Contents ...................................................................................................iv
List of Tables ..........................................................................................................ix
Appendices ............................................................................................................x
List of Acronyms .....................................................................................................xi
List of International and Regional Instruments ......................................................xii
Abstract ..................................................................................................................xiii
CHAPTER ONE: ....................................................................................................1
BACKGROUND TO THE CONCEPT OF CASE BACKLOG AND DUE PROCESS
OF LAW ..................................................................................................................1
1.1
Background ..................................................................................................1
1.2
Statement of the Problem .............................................................................5
1.3
Objectives of the Study .................................................................................6
1.4
Research Questions .....................................................................................7
1.5
Scope of the Study .......................................................................................7
1.6
Significance of the Study ..............................................................................8
1.7
Conceptual Framework ................................................................................9
1.8
Methodology .................................................................................................10
1.9
Definitions .....................................................................................................13
1.10
Literature Review .........................................................................................14
1.11
Structure of the study ...................................................................................25
CHAPTER TWO: ....................................................................................................27
DUE PROCESS OF LAW, LEGAL & POLICY FRAMEWORK OF THE JUDICIARY .......27
2.0
Introduction..................................................................................................27
2.1
Major Aspects of the Right to a Fair Trial ....................................................30
2.1.1
The Right to Access or Recourse to the Courts/Tribunals...........................30
iv
2.2.2
The Right to due Process Requires that a trial be Conducted within a
Reasonable Time ........................................................................................32
2.2.3
Competence and Impartiality of National Tribunals/courts ..........................33
2.2.4
The Right to Defence Counsel ....................................................................35
2.2.5
Presumption of Innocence ...........................................................................36
2.2.6
Protection Against Ex post facto Legislation ...............................................36
2.2.7
Rights of a Person Charged with a Criminal Offence ..................................37
2.2.8
Juvenile Persons .........................................................................................41
2.2.9
Review by a Higher Tribunal ......................................................................42
2.2.10 Compensation in Cases of Miscarriage of Justice ......................................43
2.2.11 Ne Bis in ldem ............................................................................................44
2.3
The Legal and Policy Framework of the Judiciary .......................................45
2.3.1
The Need for Reform...................................................................................50
2.3.2
Changes Introduced by the Reformed Civil Procedure Rules .....................52
2.4
Administrative Mechanisms to improve Case Management ........................54
2.4.1
Election matters...........................................................................................55
2.4.2
Creation of Specialized Divisions of the High Court ....................................55
2.4.3
Expansion of Powers of the Registrars .......................................................56
2.4.4 Use of Sessions in both Civil and Criminal Cases ........................................56
2.4.5
Use of Settlement Weeks ............................................................................57
2.4.6
Use of Alternative Dispute Resolution .........................................................57
2.5
Mediation ......................................................................................................58
2.5.1 Mediation Process ........................................................................................59
2.6
Conclusion ...................................................................................................60
CHAPTER THREE ..................................................................................................61
THE CAUSES OF CASE BACKLOG IN THE UGANDA JUDICIARY ...................61
3.0
Introduction .................................................................................................61
3.1
Administrative Causes of Case Backlog ......................................................62
3.1.1 The Winding Structure of the Formal Court system......................................62
3.1.2 The 2 Tier System of Administration ............................................................71
v
3.1.3
Conflicts at Different Courts .......................................................................73
3.1.4
Duplicity of Roles in the Judiciary and the Judicial Service Commission ...74
3.1.5
Irrational Deployment of Judicial Officers ...................................................75
3.1.6
Few Judges and Magistrates......................................................................76
3.1.7
Abuse of the Complaints Procedure ...........................................................77
3.1.8
Clog on Judicial Independence ..................................................................78
3.1.9
Inadequate Budgetary Allocation and Prioritization Challenges ................83
3.1.10
Other Operational Funds ...........................................................................89
3.1.11
Low Pay ....................................................................................................91
3.1.12 Computerization and its Challenges ...........................................................91
3.2
Procedural Causes of Case Backlog ..........................................................95
3.2.1
Bad Legislation and Complicated Rules of Procedure ...............................95
3.2.2
Case Management and its Challenges .......................................................96
3.2.3
The Situation Before the Lord Woolf Reforms in Uganda ...........................97
3.2.4
Traditional Approaches to Case Disposal in Common Law Jurisdictions ...99
3.2.5
Lack of Quick Disputes Resolution Mechanisms ........................................102
3.2.6
Plea Bargaining ..........................................................................................102
3.2.7
Instant Justice Mechanisms .......................................................................105
3.2.8
Lack of a Small Claims Procedure in Uganda ...........................................106
3.2.9
The Jurisdiction Question in the Judiciary ...................................................108
3.3
Behavioural Causes of Case Backlog .........................................................111
3.3.1
Judicial Integrity...........................................................................................111
3.3.2
Reluctance to Change .................................................................................116
3.3.3
Courage Versus Intimidation .......................................................................116
3.3.4
Behavioural Independence ..........................................................................117
3.3.5
Late Coming and Absenteeism ..................................................................118
3.3.6
Causes of Case Backlog by the Bar and Other JLOS Stakeholders ...........118
CHAPTER FOUR:...................................................................................................121
THE IMPLICATIONS OF CASE BACKLOG ON THE RIGHT TO DUE PROCESS ..........121
4.0
Introduction ....................................................................................................121
vi
4.1
Violation of Constitutional Guarantees Under the Bill of Rights .....................121
4.2
Loss of Trust in the Judiciary .........................................................................122
4.3
Lawlessness ..................................................................................................125
4.4
Increased Costs of Litigation .........................................................................127
4.5
Domestic and Foreign Investment Hampered ...............................................131
4.6
Other Effects of Delayed Justice ...................................................................133
4.7
Conclusion ....................................................................................................133
CHAPTER FIVE: CONCLUSION AND RECOMMENDATIONS .............................135
5.0
Conclusion..................................................................................................135
5.1
Recommendations ....................................................................................137
5.1.1
Reorganization of Labour in the Judiciary ..................................................137
5.1.2
Jurisdiction Question ..................................................................................137
5.1.3
The Court of Appeal/Constitutional court ....................................................138
5.1.4
Appropriate Title for Judicial Officers ..........................................................139
5.1.5
Judiciary Administration .............................................................................139
5.1.6
Finances .....................................................................................................140
5.1.7
Funding to JLOS stakeholders ...................................................................142
5.1.8
Information Technology (IT) .......................................................................142
5.1.9
Independence of the Judiciary ...................................................................143
5.1.10 Small Claims Procedures ...........................................................................144
5.1.11 The Judicial Service Commission...............................................................145
5.1.12 Appointments and Promotions ...................................................................146
5.1.13 Judicial Corruption and Misconduct............................................................147
5.1.14
Public Service College ..............................................................................149
5.1.15
Alternative Dispute Resolution ..................................................................150
5.1.16
Plea Bargaining ........................................................................................151
5.1.17
Demystifying the Courts ...........................................................................151
5.1.18
Court Proceedings in Local Languages .....................................................152
5.1.19
Innovations in Procedures ........................................................................153
5.1.20
Criminal Proceedings ................................................................................153
vii
5.1.21
Re-introduction of Summary of Witness Statements .................................154
5.1.22
Instant Penalty Schemes ..........................................................................154
5.1.23
Civil Proceedings.......................................................................................154
5.1.24
Practical Decentralization of Sessions ......................................................155
5.1.25
Engaging the Youth About the Law and Justice .......................................156
5.1.26
Transfers and Judicial Business ...............................................................156
5.1.27
Performance Policy Formulation and other Measures for Improvement ....157
BIBLIOGRAPHY .....................................................................................................158
viii
LIST OF TABLES
Table 1:
Cases brought forward from January 2004, filed, disposed, and
pending by 31st December 2007............................................................4
Table 2: The court‟s case statistics for the past 6 years .......................................62
Table 3:
The Court‟s cases statistics for the past 6 years ............................................. 63
Table 4:
The court‟s case statistics for the past 6 years ................................................. 64
Table 5:
Magistrate‟s Performance for the passed 6 years ............................................ 65
Table 6: Movement of Criminal Cases from the High Court to the Supreme
Court ............................................................................................................... 67
Table 7:
Movement of Civil Cases from High Court to the Supreme Court. .........69
Table 8: Vote function details ...............................................................................85
Table 9:
Salaries, allowances and benefits for judges as amended by a
resolution of parliament passed on the 3 March 2009. ...........................87
Table 10: Allowances for furniture for certain specified officers .............................88
Table 11: Consolidated Monthly Package for Registrars and Magistrates.............88
Table 12:
Remuneration package for members of the Kenya Judiciary ........................ 89
ix
APPENDICES
1. Interview guide for consumers of justice in Uganda .........................................173
2. Focus group discussion guide for Judicial Officers ...........................................175
x
LIST OF ACRONYMS
CCAS
Court Case Administration System
JLOS
Justice Law and Order Sector
DPP
Director of Public Prosecutions
RSA
Resident State Attorney
FGD
Focus Group Discussion
UHRC
Uganda Human Rights Commission
JSI
Judicial Studies Institute
JSC
Judicial Service Commission
CO
Criminal Offence
CS
Civil Suit
Cap
Chapter
S.I
Statutory Instrument
CPR
Civil Procedure Rules
F/Y
Financial Year
MTEF
Medium Term Expenditure Framework
DANIDA
Danish International Development Agency
SIP
Strategic Investment Plan
xi
LIST OF INTERNATIONAL AND REGIONAL INSTRUMENTS
International Instruments
1. African Charter on Human and People‟s Rights.
2. Universal Declaration of Human Rights.
3. American Convention on Human Rights.
4. European Convention on Human Rights.
5. International Covenant on Civil and Political Rights.
6. International Covenant on Social and Economic Rights.
7. Rome Statute on the International Criminal Court.
Domestic legislation
1. The 1995 Constitution of Uganda.
2. Judicature Act Cap. 13 Laws of Uganda 2000 Edition.
3. Magistrates courts Act Cap 16, Vol. 2 Laws of Uganda 2000 Edition
4. Penal Code Act Cap 120 Vol. 6 Laws of Uganda 2000 Edition.
5. Criminal Procedure Code Act Cap 116 Vol. 6 Laws of Uganda 2000 Edition.
6. Trial on Indicturents Act Cap 23 Vol. 2 Laws of Uganda 2000 Edition.
7. Civil Procedure Act Cap 71 Vol. 4 Laws of Uganda 2000 Edition.
8. Civil Procedure (Amendment) Rules S1 71-1.
9. Advocates Act Cap 267, S.81.
10. Legal Notice No.7/2003.
11. The Judicature (Commercial Court Division) (Mediation) rules 2007 S1 58 of 2007.
12. Salaries and Allowances (Specified Officers) Act Cap 291 Vol. 2 2000 Edition
13. The Administration of Estate (Small Estates).(Special Provisions) Act Cap156.Vol. 7.
14. Evidence Act Cap 6 Vol. 2 Laws of Uganda 2000 Edition.
15. The Judiciary Administration Bill 2012.
xii
ABSTRACT
Across the world, the right to a fair trial has been the subject of interpretation and
adjudication than most of the other rights. The Judiciary in any given democratic
state is the body mandated to interpret the law, and to ensure that citizens benefit
from due process. Unfortunately every Judiciary in the world is bogged down with
the menace of case backlog. The study investigates the concept of case backlog
and its impact on the right to due process, before advancing different strategies in
mitigation. Studies from around the world are relied on so as to provide a more
reliable analysis of the subject under study. The study primarily employs a qualitative
methodology, covering the period 2004 to 2011.
xiii
CHAPTER ONE
BACKGROUND TO THE CONCEPT OF CASE BACKLOG AND DUE PROCESS
OF LAW
1.1
Background
The right to a speedy trial is one of the major facets of the general right to fair hearing,
which prompted jurists to coin the maxim "justice delayed is justice denied.”1 In the case
of Uganda, one may need to first institute a suit in one of our courts of judicature before
they can experience and appreciate the pain of delayed justice. Indeed this study is
motivated by the researcher‟s own experience when he instituted a land claim in 2004
and a defamation cause in early 2007 and to date not even a scheduling conference
has taken place2.
The right to a speedy hearing is enshrined in international conventions, protocols and
domestic legislation. For instance Articles 10 and 11 of the Universal Declaration of
Human Rights provides for an individual‟s right to a fair and public hearing by an
impartial and independent court or tribunal in the determination of his or her rights and
obligations. The same is the position under Article 14 of the International Covenant on
Civil and Political Rights (ICCPR), Article 8(1) and 25 of the American Convention on
Human Rights and Article 7(d) of the African charter which provides,
"every individual shall have the right to have his cause heard within a
reasonable time by an impartial court or tribunal."
1
Sserwanga, M. (2009 July). Justice Delayed is Justice Denied. (Editorial. Saturday Monitor, 5.
His Worship Kaweesa Godfrey Vs Hon Alintuma Nsambu Masaka H.C.S No. 196 /2007, Ignatious Kirabira & 2
Others Vs Semanda Godfrey and Another Luweero Chief Magistrates Court CS No. 0041/2009 first filed at
Nkasongola Land Tribunal in 2004 (Claim No. 13/2004).
2
1
These international instruments are binding on Uganda which has ratified most of them
and where it has not, like the American Convention, the effect is persuasive.
On the domestic plane the right to a fair trial is provided for under article 28(1) of the
1995 Constitution and article 126(b) which provides that;
"justice shall not be delayed".
Currently there are 13 core institutions in Uganda involved in the law and administration
of justice namely the Judicial Service Commission, Ministry of Justice and Constitutional
Affairs, Uganda Police Force, Judiciary, Directorate of Public Prosecutions, Uganda
Prisons Service, Ministry of Internal Affairs, Law Reform Commission, Ministry of Local
Government (Local Council Courts), and Ministry of Gender Labour and Social
Development (Probationary Services rendered by the Department of Youth and
Children Affairs.)3
This research concentrates on the Judiciary to explore why it has continued to perform
poorly in respect to the area of study.
According to the findings of the Second National Integrity Survey 2002/03 compared
with the first in 1998, the speed of service delivery in the Judiciary reduced from 36% to
23%4. The Chief Justice has also reported that Uganda's case backlog clearance rate is
117th in the world and 21st in Africa5.
Uganda's justice system is perforated. The police is overstretched, which means that
when a crime is committed, it may not be properly investigated and processed in a
timely manner and neither is it a well paid and motivated force meaning that it is
3
Judicial Service Commission (2007 January) Law and Administration of Justice in Uganda Citizens handbook First
Ed Kampala. Author composition changes whenever need arises.
4
Inspector General of Government (2004 ) Second National Integrity Survey Report Kampala. Author
5
Nambazira, N. (News Anchor (2009. WBS News at 7.00pm Kampala WBS
2
vulnerable to all manner of interference from those accused and their accusers. If
justice was a relay where one runner passes the baton to another, Uganda would be
among the latecomers. This is because along the chain, the courts are also
overstretched. At the very end of the line for justice is the Supreme Court which for over
2 years has not had quorum on the bench, thereby stalling the hearing and quick
determination of several legal and constitutional matters6.
The Mission Statement of the Judiciary is:
“ an independent, competent, trusted and accountable judiciary that
administers justice to all"7.
Delays in trials and delivering judgments with the resultant case backlog are seen to be
some of the major problems facing the Judiciary8.
Indeed data from the High Court Data Centre Kampala suggests that case backlog is
steadily on the rise in Uganda.
The table below for cases in the whole country brought forward, registered and
completed from the 1st January 2004 to the 31st of December 2007 illustrates this
position.
6
Monitor News paper 7-11-2009 at Page 5-Editorial.
Judiciary (2012) Judiciary Strategic Investment Plan III (2011/12-2015/16. Registry Planning and
Development/DANIDA. The Judiciary’s vision is “Justice for All” and its care values are independence and
Impartiality, transparency, professionalism, integrity, accountability, equality and respect. The core functions of
the judiciary are: administer justice though resolving disputes between individuals and between the state and
individuals, interpret the constitution and the laws of Uganda, promote the rule of law and contribute to the
maintenance of order in society, safeguard the constitution and uphold democratic principles, protect human
rights of individuals. Article 126 (1) of the Constitution provides for the judiciary’s mandate.
8
Ibid at page 3.
7
3
Table 1: Cases brought forward from January 2004, filed, disposed, and pending
by 31st December 2007
B. Forward Filed
Disposed
Pending
Backlog
Growth
Rate
Total from
33132
30,473 29,441
34164
-3.1%
Increasing
1-1-2004
31-12-2004
01-1-2005 to
33,773
29,610 26,339
37,044
-9.7%
Increasing
31-12-2005
01-1-2006 to
36,841
33786
31,516
39,111
-6.2%
Increasing
31-12-2006
01-1-2007 to
38,731
30966
25,204
44,495
14.9%
Increasing
31-12-2007
The increase in backlog means that Ugandans are not receiving justice on time. This is
despite principle 6.2 of the Uganda Code of Judicial Conduct, which makes it mandatory
for judicial officers to dispose of cases promptly and to deliver judgments within 60
days.9
Furthermore, the situation has been portrayed as bleak by recent remarks from high
ranking officials in the Judiciary. The Judiciary spokesperson Elias Kisawuzi was quoted
in one of the leading dailies saying that;
"it would take the current workforce in the Judiciary 30 years to dispose of
the pending case backlog".10
In a recent televised talk show, the Chief Justice of Uganda Benjamin Odoki
categorically stated that case backlog can never be completely eradicated in Uganda
just like in developed economies like Britain.11
9
The Judiciary Integrity Committee (2003) The Uganda Code of Judicial Conduct Courts of Judicature, Kampala
Mubangizi,M. (2009 August 24-26). Seventy Six Percent of Court Cases Remain Unresolved. The Observer, 1.
11
Kasyate, S. (Presenter), (2008) State of Affairs in the Uganda Judiciary (On the Spot. Television Broadcast)
Kampala NTV.
10
4
Such a scenario is inspite the fact that there is a case backlog project that has been
rolled out to six High Court Circuits and to 29 magisterial areas12.
Best practice guidelines which include a limitation on the number of adjournments,
targets for case completion, hearing of matters on a day to day basis and cross
institutional consultation in scheduling of cases, have been employed by the judiciary
but to no avail13.
Therefore there is an urgent need to investigate the causes of this case backlog
phenomenon and what its implications are to the people of Uganda in this study. Could
the problem be self created within the Judiciary, or understaffing and underfunding?
Could the cause be a question of lack of communication, cooperation and coordination
among the stakeholders of JLOS? Is it poor case management, or outright lack of
respect for the Judiciary by the Executive and the Legislature? An independent and
efficient Judiciary is one of the pillars of any democratic society. This study therefore
tries to interrogate what the implications of an ineffective Bench are to issues like
delayed justice, prison congestion, mob injustice and economic development in the
country. Possible solutions are then advanced in a bid to tackle the research problem.
1.2
Statement of the Problem
In order to have a semblance of a modern democratic state that respects human rights,
the government of Uganda has ratified a number of international conventions which
safeguard the right to a fair trial. In the domestic domain, Article 28 of the 1995
12
13
Amanda. S. (2003). Background Paper on Justice Law and Order Section in Uganda Kampala
JLOS report Ibid Pg.4.
5
Constitution specifically guarantees the right to a speedy and fair trial with the Judiciary
as the main institutional framework establishment to execute this mandate.
However, despite foresight from the framers of the Constitution, the Judiciary has not
been effective enough at ensuring that the public enjoys the right to due process. In
particular the slow trial processes has resulted in a steady increase in case backlog
thereby conforming to the famous maxim;
"justice delayed is justice denied".
On top of the Judiciary being underfunded, it is heavily understaffed and many a time
ridiculed by the Executive as corrupt and inefficient.
The lack of confidence in the Judiciary has led to a number of negative consequences,
which include a scenario where some individuals have taken the law in their hands and
committed offences. The slow disposal of cases also stifles economic development by
discouraging investment, let alone undermining democracy. This research therefore
explores the causes of case backlog and the implications that follow vis a vis the right to
due process with a view of mitigating the problem.
1.3
Objectives of the study
The broad objective of the study is to examine the causes of case backlog in the
Judiciary and its implications on the right to due process in Uganda.
The specific objectives are;
i.
To investigate why case backlog is steadily increasing in the Judiciary.
ii. To evaluate the effects of case backlog on the right to due process.
iii. To explore and recommend urgent interventions to alleviate the problem.
6
1.4
Research Questions
i.
What factors have led to an increase of case backlog in the Judiciary?
ii.
What are the implications of case backlog on the right to due process?
iii.
What interventions can be put in place to remedy the situation?
1.5
Scope of the study
The study was conducted at the headquarters of the Judiciary located at High Court
building Kampala where court case statistics for the whole country are accessed from
the Data Centre. The head of the Judiciary the Chief Justice together with a number of
senior judges, registrars, magistrates and other Judiciary administrators were
interviewed about the research problem.
In addition, two courts, one from the Higher Bench and another from the Lower Bench
were selected for comparison purposes. This was the High court of Fort-Portal, and
Fort-Portal Chief Magistrate‟s Court which covers other courts in Bundibugyo,
Kamwengye, Kyenjojo and Kyegegwa districts. To select them, the main consideration
was proximity to the researcher who is a senior principal magistrate grade 1 in charge of
Bundibugyo court and the variant levels of administration and workload levels.
Officials from the Justice Law and Order Sector (JLOS) where other stakeholders in the
justice system like prisons, police and policy makers fall were also consulted
to
highlight how these institutions may impact on the research problem. A sample of
selected court users in the identified courts were interviewed for their views and
experiences on delivery of justice in Uganda.
7
The study investigates the meaning of the right to due process with emphasis on the
facet of the right to a speedy trial. The causes of case backlog and its implications to the
right to due process are then explored followed by the interventions needed to alleviate
the situation.
The period of study is the workload handled by the Judiciary between 2004 to 2010.
1.6
Significance of the study
The main objective of the Judiciary is to deliver justice to the public by adjudicating upon
disputes. This study will enable the Bench to evaluate itself with the aim of exploring the
factors affecting the execution of its core function and the interventions in mitigation.
An independent and efficient Judiciary guarantees the citizens‟ enjoyment of the right to
a speedy and fair trial. It also improves the image of the state as being democratic.
Highlighting the Judiciary's problems will therefore enable government to make strategic
interventions as an urgent remedy. Quick disposal of disputes especially of a
commercial nature creates a friendly investment atmosphere, which stimulates
economic development.
In addition this study highlights the major facets of the right to due process which are
not well appreciated by the Ugandan populace. The findings therefore help in
dispensing knowledge about international and domestic legal regimes on the subject, so
that the public is empowered to demand for their rights. Students especially those
pursuing legal disciplines and other researchers are meant benefit.
8
The research is also meant to help policy makers in government, the donor community
and non government organizations know the factors impeding the performance of the
Judiciary and to intervene where necessary.
1.7
Conceptual framework
The study generally examines the right to a fair trial with specific emphasis on the
element of a speedy hearing, the challenges faced and how they may be addressed.
According to Sotirious Sarankakos14 a conceptual framework explains either graphically
or in narrative form the main concepts to be studied, the key factors, constants or
variables and the presumed relationship among them.
According to Baron de Montesquieu‟s tripartite system, division of political power in a
democratic state is between the executive, legislature and judiciary.15
The role of the Executive for purposes of this study is to ratify international instruments
and initiate domestic legislation16. It also appoints and facilitates judicial officers with the
recommendation of the Judicial Service Commission and the Legislature.17
The Executive also enforces judicial decisions in conjunction with enforcement agencies
under JLOS.
The Legislature on its part gathers views from the public and works with the Executive
to enact laws. Should the laws be wanting or the appointed staff be inadequate, or
14
nd
Sotirios Sarantakos (1994). Social Research 2 Ed Charles Stuart University Australia 1994 pal Gave Press at 106.
15
th
Baron de Montesquieu (n.d). Separation of Powers. Retrieved September 29 2011. From
http://www.en.wikipedia.org/wiki/seperationofpwerscached
16
1995 Constitution Article 99
17
Article 142 1995 Constitution
9
should the Judiciary be underfunded, then its independence and ability to function
effectively shall be curtailed leading to delay in justice delivery.
The Judiciary on its part interprets the laws of the land, confirms members of the
Executive and the Legislature in their appointments, gathers evidence from the public
and JLOS stakeholders with the help of advocates before adjudicating upon disputes18.
Any sector breakdown at this stage impacts negatively on the right to a speedy and fair
trial.
The public which then sustains the other sectors through payment of fees to advocates
and taxes is the recipient of justice from the Judiciary. In the ideal situation it is
supposed to receive expeditious and impartial justice as a sign of accountability. The
public cooperates with the Bench, the Bar, JLOS in terms of evidence gathering and
presentation, and also influences law making through its representatives in the
Legislature.
Therefore it is pertinent that the above different organs communicate, cooperate and
coordinate (the 3C's)
19
in order to foster to due process by unclogging the justice
system. A break down at any one point will have the effect of increasing case backlog
1.8
Methodology
Denis Asiimwe Katebire20 describes methodology as one of the most important parts of
any given research. It refers to the detailed technical or scientific activities, tools and
procedures taken to plan, gather and analyze data. In this study a qualitative
methodology encompassing a comparative case study design was used to collect and
18
Article 126 1995 Constitution
Horizons Lines Ltd (2005). The Chain Linked Users’ Handbook. Kampala. Author.
20
Katebire, D. A. (2007) Social Research Methodology. An Introduction. Kampala: Makerere University Press.
19
10
analyse data. This enabled the researcher to obtain a comparative analysis of court
jurisdictions from urban to rural areas in Uganda.
Since the design required a face to face contact with respondents, first hand information
of their understanding and experiences about the research problem in the Ugandan
legal system was achieved.
The methodology further involved both a field study using data collection tools like
questionnaires, unstructured interviews and library research using secondary sources of
data.
Some respondents during the field study were purposively chosen because of their
proximity and some because of their respective urban and rural settings. Library
research was by way of studies by other scholars, statistics from the High Court Data
centre of cases in the country, and quotations from newspapers. Studies from across
the world enriched the primary data and provided a comparative analysis. Internet
sources were valuable in this regard.
Guided interviews using an interview guide and a focus group discussion using a focus
group discussion guide were some of the instruments and tools used for data collection.
The nature of respondents and categories of data needed made these instruments
suitable for collection of reliable and accurate data. The FGD enabled collection of more
diverse and reliable information based on experiences and responses from diverse
respondents within a shorter time.
A purposive selection of respondents was made of subjects who are either
knowledgeable or have experienced phenomena under investigation and so were
11
interviewed face to face to obtain indepth data. Their emotions were also observed to
strengthen the reliability of data.
Data was gathered from respondents at national and local levels which involved the
heads of the Judiciary, policy makers from the Ministry of Justice and Constitutional
Affairs, JLOS stakeholders,
court users, judges and magistrates especially in the
Magisterial areas of Kampala and Fort Portal.
Accidental sampling of litigants was made to gauge their experiences about the area of
study because it is not easy to find all court users in a given period at the same time. A
tape recorder was used to facilitate in recording information for data analysis.
Data collected was analyzed manually because of the small number of respondents that
was not above 500. This made coding easy. However a computer was also used for
accuracy. The data gathered was categorized according to themes and sub themes in
each chapter. Categorizing varying responses on each topic in the interview guide and
focus group discussion guide was then done followed by an in-depth analysis of the
varying answers. Conclusions were then made.
On data quality control, the interview guide and FGD guide were pre-tested on a small
group of respondents for suitability and accuracy before proceeding to the field.
On ethical considerations, the researcher envisaged some cases of abuse of office and
incidents of corruption within the Judiciary. So permission had to be obtained from
certain quarters followed by assurances of confidentiality before some respondents
provided data. Other respondents and responsible officers were not cooperative, citing
the sensitivity of this study.
12
1.9
Definitions
Backlog - a quantity of work that should have been done already but has not yet been
done21. In Uganda case backlog refers to cases that have stayed in the judicial system
for two years and beyond.22
Due process of law - the right of citizens to be treated fairly especially the right to a fair
trial23. It also refers to a fundamental, constitutional guarantee that all legal proceedings
will be fair and that one will be given notice of the proceedings and an opportunity to
be heard before the government acts to take away one‟s life, liberty or property. Also a
constitutional guarantee that a law shall not be unreasonable, arbitrary or capricious24
Judiciary- the judiciary (also known as the judiciary system or judicature) is the system
of courts that interprets and applies the law in the name of the state. The judiciary also
provides a mechanism for resolution of disputes. Under the doctrine of separation of
powers, the judiciary generally does not make law (which is the responsibility of the
legislature) or enforce law (which is the responsibility of the executive), but rather
interprets law and applies it to the facts of each case. This branch of government is
often tasked with ensuring equal justice under the law. It usually consists of a court of
final appeal (called the Supreme Court or constitutional court) together with other lower
courts25.
21
th
Oxford Advanced Learner’s Dictionary (7 ed) © 1997 India. Oxford University Press.
th
Nyongesa, W. A (2010). March 28 ) Justice Ogoola Launches Casebacklog Clearance Programme for Western,
Central and Eastern Uganda. Kampala-The Monitor, 4.
23
Supra note 21.
24
th
Definition of due process (n.d). Retrieved on September 29 2011 from
http://www.enwikipedia.org/wiki/dueprocesscached.
25
th
Definition of Judiciary (n.d). Retrieved on September 29 2011 from
http://www.enwikipedia.org/wiki/judicarycached.
22
13
Rights- rights are legal or social ethical principles of freedom or entitlement, that is
rights are the fundamental normative rules about what is allowed of people, according to
some legal system, social convention or ethical theory. Rights are often considered as
fundamental to civilization, being regarded as established pillars of society of culture,
and the history of social conflicts can be found in the history of each right and its
development26
1.10
Literature Review
Introduction
The scholarly literature on case backlog available shows that no serious studies have
been conducted in this crucial area. Studies from Uganda that were accessed are
primarily based on perceptions about the existence of case backlog in the justice
system and suggesting recommendations. The studies were nevertheless reviewed
because they are relevant to this research. Scholarly work mainly from outside Uganda
was also reviewed on the subject of due process.
The Uganda Code of Judicial Conduct 27in sub section 6.2 provides that;
"a judicial officer shall promptly dispose of the business of the court, but in
so doing must ensure that justice prevails. Protracted trial of a case must
be avoided whenever possible, where a judgment is reserved, it should be
delivered within 60 days unless for good reason it is not possible"
The above provision with the principles of competence, impartiality, integrity, propriety
and equality is meant to ensure the effectiveness of the Judiciary, which is a positive
development.
26
27
th
Definition of rights (n.d).Retrieved on September 29 2011 from http://www.enwikipedia.org/wiki/rights
Supra note 9.
14
However, the Code falls short on substantiating on why a case should be completed
within 60 days and not less or more. It further enjoins the Judicial Integrity Committee,
Peer Committees and the Judiciary as a whole to encourage all judicial officers to
comply with its provisions, but falls short of outlining penalties for non compliance,
which this study proposes .
The Chainlinked Users Handbook28 came up with an informal forum of bringing
together stakeholders of the Justice Law and Order Sector (JLOS) where they are
supposed to work as a chain connected to each other in areas of cooperation,
coordination and communication. This is effected through bi-monthly meetings of
stakeholders through District Chainlinked Committees (DCCS). These then make
recommendations to the Advisory Board on better justice delivery in their respective
departments. The end result is that teamwork is enhanced and efficiency created.
In the Handbook it is further reported that the Advisory Board came up with the
performance standards and guidelines for Criminals Justice Agencies in
Uganda29meant to guide stakeholders in the execution of their duties so as to make
them more effective. For instance it is suggested that minor offences should not be
mentioned for more than 3 months and investigations in capital offences should be
completed within 6 months lest proceedings are terminated from court or referred to the
DPP for action. It is also suggested that no persons should be held in police cells for
28
Developed by the Advisory Board composed of high profile persons from key departments in the Justice Law and
Order Sector like the Chief Justice (head), Inspector General of Police (IGP), Commissioner General of Prisons,
Attorney General, Resident Judges from High Court Circuits, Registrar High Court. Other sources are the Technical
Committee and District Coordination Committees comprised of stakeholders of JLOS of lower rank like
Magistrates, State Attorneys, District Police representatives, District Prisons representatives RDCs office Local
Administration, probation officers, District medical staff, elders and other stakeholders. Supra note 19.
29
Ibid.
15
more than 48hours and that all police files should be sanctioned by the Resident State
Attorney (RSA) before registration at court to control backlog. Whereas these guidelines
can help enhance the right to a speedy trial, it is not clear what criteria the Advisory
Board used in arriving at the same. This study employs guided interviews and focus
group discussions with stakeholders to arrive at more accurate conclusions.
This study further recommends that the provisions in the Handbook be made mandatory
and not informal as suggested.
The Justice Law and Order Sector Report 200330 recommended that efficiency and
effectiveness are to be achieved by lowering the cost of the administration of justice and
decreasing the inflow of cases into the justice system through crime prevention
strategies. While the lower courts receive a significantly lower budgetary allocation, than
the higher courts, the case through pull for judges at the High Court and higher levels is
much lower than that of the lower courts such as Magistrates courts and Local Council
Courts31. While the complexity of cases at higher court levels contributes to delays,
increased pecuniary and criminal jurisdiction to the courts with higher case through pull
shall limit growth of the case backlog, and allow for quicker disposal of cases thereby
reducing the cost of administering justice. Even if the revelation depicts the injustice to
the Lower Bench which accounts for a greater case workload but with limited budgetary
allocation than the higher courts, the report does not highlight the methodology used to
arrive at this conclusion. The current study has clear tools and instruments of data
collection and analysis
30
Sserumaga .A. (2003 July). Justice Law and Order Sector. Background Paper Presented to Magistrates during an
Induction Course at the Uganda Management Institute. Kampala
31
Ibid page 3.
16
David Wangutusi in his paper, Case Flow Management and Scheduling Judiciary
Work32 found that those who come to court come for a purpose, redress of which must
come as fast as possible. He stresses that;
"quick justice is sweet justice”33.
He also notes that case flow management is not only a Ugandan issue but of
international concern.
Citing the Council of the International Bar Association in
Montreal Canada in a meeting on 6th June 199, it was resolved as follows;
"the right to a speedy resolution of disputes is a fundamental aspect of
justice itself. Delayed litigation may itself constitute denial of justice"
The researcher concurs with these views, although the realization of quick justice has
been evasive in practice to a greater number of litigants in Uganda. This study
investigate why this has been so.
Masalu Musene in his paper the Art of Judgment writing34 argues that judicial process
is a system of intense communication among litigants, advocates, a judge or magistrate
and where applicable assessors.
He further notes that the outcome of the
cases and indeed the success of our system of justice is dependent upon the judges‟
comprehension of the facts and the law, and that listening is therefore crucial to an
efficient judging process.
32
Wangutusi, D. (2003, July). Case Flow Management and Scheduling Judiciary Work. Paper Presented during an
induction course for Magistrates Grade one at the Uganda Management Institute Kampala
33
Ibid at page 21
34
Masalu, M. W. (2003 July). Art of Judgment Writing. Paper Presented during an induction course for Magistrates
Grade one at the Uganda Management Institute Kampala
17
Joseph Mulenga in his paper "Towards strengthening Judicial Integrity in Uganda,
New Approaches35 notes that delay in disposal of cases in court continues to cause
concern and calls for a plan of action for strengthening judicial integrity, not only
because of the principle that justice ought to be dispensed expeditiously but also
because of the popular belief that delays result from corrupt intentions on the part of the
Judicial officers. He further noted that virtually every category of actors in the court
system such as the public, advocates, judicial officers, clerks contribute to the problem.
Interviews are employed in this work to test these assertions.
In The Judiciary Today,36 the then Chief Registrar of the Courts of Judicature
Lawrence Gidudu reported that much as the Judiciary was besieged by a huge case
backlog, the problem was partly attributed to rebel activities in Northern Uganda where
the resident judges had deserted their stations.
All the above pieces of work from high-ranking judicial officers buttress the urgency to
conduct this study. However they again fall short of disclosing the methodology used for
their data. This research employs guided interviews and FGDs among other data
collection methods to test these theories.
Henry Onoria in his paper United Nations’ Initiatives to Combat Judicial Corruption
and the Relevancy to Uganda37 notes that the indicators of judicial corruption as
35
Mulenga, J. (2004 September). Towards Strengthening Judicial Integrity in Uganda, New Approaches Paper
Presented at the Sixth Judicial Officer’s Forum organized by the Foundation for Human Rights’ Initiative at Lake
View Regency Hotel Mbarara
36
Courts of Judicature 2005 March. The Judiciary. Today: The Judicature Monthly Staff Newsletter Kampala Vol.
19, 3 Author
37
Dr. Henry Onoria is a senior lecturer at the Faculty of Law Department of Public and Comparative Law Makerere
University Email:[email protected]. Onoria. H. (2003) United Nations’ Initiative to Combat Judicature
18
perceived by the public include delays in execution
of court orders; unjustifiable
issuance of summons and granting of bails, prisoners not being brought to court, lack of
public access to records of court proceedings; disappearance of files, variations in
sentencing; delays in delivery of judgments; high acquittal rates; conflicts of interest;
prejudices for or against a party witness, or lawyer; prolonged service in a particular
Judicial station, high rates of decision in favour of the Executive; appointments
perceived as resulting from political patronage; and frequent socializing with particular
members of the legal profession, Executive or Legislature (with litigants or potential
litigants). He notes that invariably, a good number of these indicators actually mask
other reasons for public dissatisfaction with courts, like the cost, accessibility and
fairness of justice; delays and the cumbersome and daunting procedures involved in
going to court. Judicial corruption compromises and negates "due process of law"
including a right to a fair and public hearing by a competent, independent and impartial
tribunal established by law. He recommended fair and adequate remuneration as one of
the many ways of dealing with judicial corruption.
In many aspects Onoria is right that corruption causes delays in the Judiciary, but his
findings were based on public perceptions. The current study is based on empirical
research methods to test such perceptions.
In the work "Modern Judicial Ethics,"38 it is reported in the commentary at page 44
that in disposing of cases promptly, efficiently and fairly, a judge must denominate due
st
th
Corruption and the Relevancy to Uganda, Paper Presented at Lake View Regency Hotel Mbarara 21 -24 March
2004. Theme. Towards Strengthening Judicial Integrity in Uganda: New Approaches.
38
National Judicial College (1990). Modern Judicial Ethics. Affiliated with the American Bar Association. University
of Nevada Reno, USA.
19
regard for the rights of the parties to be heard and to have issues resolved without
unnecessary costs or delay. Prompt disposition of the courts business requires a judge
to devote adequate time to judicial duties, to be punctual in attending court and
expeditious in determining matters under submission, and to insist that court officials,
litigants and their lawyers cooperate with the judge to that end. Much as this work may
have inspired principle 6 of the Uganda Code of Judicial Conduct on competence and
diligence by the courts, the conditions of work surrounding the American Judiciary in
one of the most powerful economies in the world may not be the same to those by the
Judiciary in a third world country like Uganda. So judicial ethics recommended under
the American system may not be necessarily appropriate to the Ugandan situation.
The Human Rights Committee under the International Covenant on Civil and
Political Rights (ICCPR)39 in general comment No. 32 discussed article 14 of the
Covenant on the right to equality before courts and to a fair trial noting that derogating
or attaching reservations to the right to a fair trial would be incompatible with the object
and purpose of the covenant40. Deviating from fundamental principles of fair trial,
including the presumptions of innocence is prohibited at all times41. At paragraph 27 the
Committee noted that an important aspect of the fairness of a hearing is its
expeditiousness and that delays in both criminal and civil cases are caused by lack of
resources and chronic underfunding. It was recommended that to a great extent
39
Ninetieth Session Geneva 9-27 July 2007
General Comment No. 24 on issues relating to reservations made upon ratification of Covenants and Protocols)
41
General Comment No.29, 2001 on Article 4: Derogation during a state of emergency para 11.
40
20
possible, supplementary budgetary resources should be allocated for the administration
of justice42.
The Human Rights Committee findings give this literature review an international
comparison and make positive commendations about the non-derogation of the right to
fair trial including adequate funding. The current study places these international
standards into the local context and highlights whether they are appropriate or not.
There is also need to review literature on the subject of due process or fair trial, as it is
one of the major components of this study.
From Protection to Violation? Analyzing the Right to a Speedy Trial at the
Uganda Human Rights Commission43. This working paper is concerned with the
extent to which the right to a speedy trial is being realized within context of the
operations of the Uganda Human Rights Commission (UHRC). It notes that although
the UHRC has played a significant role in the protection and promotion of human rights
to
in the country, it has taken unduly long to dispose of several matters before it
thereby breaching the right to a speedy trial that it is under Constitutional obligation to
protect. The paper falls short of highlighting the empirical tools employed to arrive at its
deductions which are in respect of the UHRC and not the Judiciary.
42
Concluding observation in the Democratic Republic of Congo Case CCPR/C/COD/CO/3 2006 21 AND Central
African Republic CCPR/C/CAF/Co/2 PARA 16.
43
Bakayana .I. (November 2006) HURIPEC Working Paper No. 2. From Protection to Violation? Analyzing the
Right to a speedy Trial a the Uganda Human Rights Commission
21
The Justice Oteng inquiry.44 The Judicial Tribunal of Inquiry into the conduct of Mr.
Justice Emmanuel A. Oteng provides a concrete example in the case of Uganda of
circumstances that would give rise to a violation of the right to a speedy trial. The
tribunal considered a number of cases the judge had handled like Kigozi V Attorney
General45 and concluded that there was inordinate and unreasonable delay. The matter
had taken five years largely because of the failure to fix dates on which it would be
disposed of. In Kitariko V Katama,46 though this matter was as a result of the 1980
Parliamentary elections, it had not been disposed of by 1987, having taken the whole
term of Parliament and witnessed two coups d‟état in the interim. The inquiry noted that
long delay defeated the object of the petition and went against the letter and spirit of the
provision of the law which were intended to protect the interests of justice.
The inquiry did not seek to define exactly what a speedy trial was although one may
draw conclusions, from the duration and the reasons for the delay. This study labours to
highlight other studies that define a speedy trial.
The Right to a Fair Trial under the Universal Declaration of Human Rights and the
International Covenant on Civil and Political Rights47
The book examines the origins of the right to a fair trial as articulated in the Universal
Declaration of Human Rights and the International Covenant on Civil and Political
Rights. It illustrates that the right to a fair trial has been the subject of more
interpretation and adjudication than other rights in the Covenant.
44
Legal Notice No. 4 of 1987. Report of the Judicial Tribunal of Inquiry into the conduct of the Honourable Mr.
Justice E.A Oteng December 1988)
45
Blasio Kigozi V Attorney General HCCS 672/80
46
Robert Kitariko V Twino Katama HC MISC Petition NO. MKA 2/8
47
Weisbrodt, D. (2001). The Right to Fair Trial under the Universal Declaration of Human Rights and the
International Covenant on Civil and Political Rights USA Maximus Nijhoff Publishers.
22
Accordingly, the book analyses the fair trial jurisprudence of the Human Rights
Committee under the Covenant. The
book also explores the process by which some
aspects of the right to a fair trial have gradually been considered non derogable, that is
not subject to suspension even in times of public emergency. This research illustrates
how the right to a fair trial has been interpreted in the African and Ugandan context in
particular.
Fair Trial Rights of the Accused. A documentary History (Primary Documents in
American History and Contemporary Issues).48
The book traces the evolution of trial rights from English and colonial beginnings to the
contemporary understanding of their meanings. Court cases and other documents bring
to life the controversies that have historically surrounded the rights of those who have
been accused in the American legal system. This research examines how trial rights
have been applied in Africa and Uganda in particular.
Free Press V Fair Trial; Television and other media in the court room (An Impact
Book)49
The book surveys the debate over whether radio, television, and other media in the
court room interfere with a defendants‟ right to a fair trial. The study shows that
electronic media in the Ugandan court room is in its infant stages.
48
Banaszaki. R. Fair Trial Rights of the accused. A documentary History (Primary Documents in American History
and Contemporary Issues). USA, Greenwood Publishers.
49
Kroneweller, M. (1986 April). Free Press V Fair Trial, Television and Other Media in the Courtroom. (An Impact
Book. UK. Library Binding Edition Fountain Watts Publishers.
23
The Right to a Fair Trial (International libraries of Essays on Rights)50
The book stresses the fact that the right to a fair trial is often held as a central
constitutional protection. It nevertheless remains unclear what precisely should count as
a “fair” trial and who should decide verdicts, especially for defendants charged with
terrorism offences. The book informs both scholars and students of the importance and
complexity of the right to a fair trial, as well as shed light on how the trial might be
further improved. The researcher in this work examines the nemesis of case backlog vis
a vis ones right to due process, and makes necessary recommendations to improve the
Uganda judicial system.
Fair trial rights.51 This work provides a comprehensive and authoritative treatment of
the law relating to fair trial rights in the UK, with detailed analysis of the wider impact of
the Human Rights Act 1998. The 2nd edition of this book is updated to highlight how
human rights legislation continues to be tested in the courts. This research illustrates
how human rights legislation has been interpreted by the courts in Africa and Uganda in
particular.
UN in Countering Terrorism: An analysis of the Rights to a Fair Trial of Detainees
in Guantanomo Bay52. This work emphasizes the need for all states to cooperate with
the UN in combating terrorism from the stand point of international human rights. The
work also reveals whether detainees held at Guantenamo Bay have been given access
50
Thorn, B. (2009 September). The right to a fair trial (International Libraries of Essays on rights). UK. Ashate
Publishers
51
Clayton, R. (Q.C), Tomlinson, H.(Q.C), (2010 February Fair trial rights UK. USP Oxford ed Publishers
nd
2 ed.
52
James Opoku Aggemany (2010 October) UN in Countering Terrorism: An Analysis of the Rights to a fair trial of
detainees in Guantanamo Bay. USA, Lambert Academic Publishers.
24
to due process of the law by the US government. It also provides an overview of how
the UN handles terrorism. It concludes by providing recommendations for governments
and scholars for consideration in combating terrorism. In the Ugandan context, this
research highlights the context in which domestic and international human rights law
has been applied to provide for the rights of persons charged with terrorism and other
offences.
Free Press V Fair Trials: Examining publicity’s Role in Trial Outcomes (LEA’s
Communication Series) 53
The book emphasizes the fact that current research on media and the law has generally
been theoretical and contradictory. It explains why pretrial publicity is unlikely to affect
the outcome of most jury trials, despite many experimental studies claiming to show the
influence of publicity. This study is not only restricted to the media and the law, but
covers other legal aspects as well.
1.12
Structure of the Study
The study is presented in five chapters. Chapter one is the introduction. It highlights the
background to the study, the purpose and justification of the study, the objectives and
scope of the study, as well as the methodology and the study approach including the
means of data collection, report dissemination and literature review.
Chapter two espouses the major tenets of due process drawing experiences from
decided cases in the domestic and international domain. A review of the existing legal
53
Jon Bruschke, William (2003 December). Free Press V Fair Trials: Examining Publicity’s’ role in trial outcomes
st
(LEA’s Communication Series) UK. 1 ed. Loges Routledge Publishers.
25
and institutional framework governing the administration of justice in Uganda is then
made.
In the third chapter, an interrogation of some of the most notorious causes of case
backlog in the administration of justice is done. The review compares the interventions
against the barriers identified and then highlights the need for major reform in the
administration of justice in the country.
The fourth chapter highlights the effects of an inefficient judicial system vis a vis an
individuals‟ right to due process.
The last chapter wraps up the study by proposing strategies of eliminating or reducing
case backlog in order to improve justice delivery in Uganda
26
CHAPTER TWO
DUE PROCESS OF LAW, LEGAL AND POLICY FRAMEWORK OF THE JUDICIARY
2.0
Introduction
This chapter examines the major tenets that comprise what a fair trial should be. It
details the extent to which the law and policies governing the Judiciary and the
administration of justice in Uganda have been tailored to suit those tenets of due
process. The principles examined are the right to access to courts, the competence and
impartiality of the courts, the conduct of trials within a reasonable time, the right of an
accused persons to defence counsel and to appeal to higher courts, protection against
ex post facto legislation, the general rights of persons charged with offences, rights of
juvenile offenders, compensation in cases of miscarriage of justice and the principle of
ne bis in idem. Decisions from international bodies like the International Court of
Justice, the United Nations Committee Against Torture (CAT), the African Commission,
and those from Uganda were examined to provide a comparative analysis
The right to a fair trial is guaranteed in international instruments like the Universal
Declaration of Human Rights1, American Convention on Human Rights2, African Charter
on Human and Peoples Rights3, the European Convention on Human Rights
the local context articles 23 and 28 of the Uganda 1995 Constitution.
1
UDHR- Art. 9 & 11
ACHR- Art, 7, 9 and 25
3
ACHPR -Art. 7 and 26
4
ECHR Art. 6, 7 and 13)
2
27
4
and in
According to human rights scholars like Henry Onoria,5 the right to a fair trial traditionally
arises from the fact that the individual who is the subject of rights and duties is endowed
with the capacity for the enforcement and prosecution of those rights and duties, and
before formal bodies in the character of judicial or administrative tribunals. Inevitably
those judicial and administrative processes themselves should be seen to reflect
impartiality and independence. The individual should be aware of his/her liabilities under
the law and they should not be subjected to post facto legislation.
The right to a fair trial has been the subject of resolutions and declarations in the
context of both the African system like “the Right to Recourse to Fair Trial6, the Right to
trial and Legal Assistance in Africa7, Respect and the strengthening of the
independence of the Judiciary8, a seminar on the Right to a Fair Trial in Africa and,9 the
Dakar Declaration and Recommendations on the Right to a Fair Trial in Africa 199110.
At the International level is the United Nations basic principles on the Independence of
the Judiciary and the Right to Information on consular Assistance in the Framework of
the circumstances of the due process of law.
According to the United Nations Human Rights Committee deliberating on article 14 of
the International Covenant on Civil and Political Rights ICCPR,11 while reservations to
5
th
Interview with Dr. Henry Onoria, Senior Lecturer Faculty of Law, Makerere University, Uganda, on 29 September
2009
6
th
Adopted at the 11 Ordinary session, Tunis, Tunisia March 1992)
7
th
Adopted at the 26 Ordinary session, Kigali, Rwanda, November 1999
8
th
Adopted at the 19 Ordinary Ouagadogou, Burkina Faso, March 1996
9
Held in collaboration with the African Society of International and Comparative Law and Interrights Dakar Senegal
9-11 September 1999
10
The Dakar Declaration and Recommendations on the Right to a Fair trial in Africa 1991
11
th
90 Session Geneva 9-27 July 2007
28
particular clauses of article 14 may be acceptable, a general reservation to the right to a
fair trial would be incompatible with the object and purpose of the covenant12.
The guarantees of fair trial may never be made subject to measures of derogation that
would circumvent the protection of non derogable rights.13 Deviating from fundamental
principles of fair trial including the presumption of innocence is prohibited at all times14.
It should be noted that the violation of any of the aspects of the right to a fair trial often
gives rise to the violation of other rights. Thus in the case of Krishna Achuthen on behalf
of Aleker Banda V. Malawi15 one of the victims was denied recourse to the courts to
challenge his right to personal liberty under article 6. The African Commission found
that Mr. Banda‟s right to a fair trial and the right to personal liberty had been violated.
The right to recourse to courts has been crucial in situations where the state seeks to
deport or expel individuals from its territory. The failure to accord individuals the right to
appeal to judicial organs has been regarded as arbitrary and therefore in violation of
Article 7 of the African Charter. This was the reasoning in Amnesty International V
Zambia16 and Union Inter African V. Angola17.
12
General Comment No. 29 1994 on issues relating to reservations made upon ratification or accession to the
covenant on the optional protocol thereto, or in relation to declarations under Article 41 of the Covenant para 8
13
General Covenant No. 29/2001 on Article 4: Derogations during state of Emergency para 7 and 15
14
General Comment No. 29/2001 on Article 4: Derogations during state of Emergency, para 11
15
Communication No. 64/92
16
Communication No. 62/92 at page 11
17
African Commission Communication No.159/96para 36 & 52
29
2.1 Major Aspects of the Right to a Fair Trial18.
2.1.1 The Right to Access or Recourse to the Courts/Tribunals.
According to renown international human rights law scholars like Henry Onoria19 this
aspect of the right to due process requires that the individual be afforded an opportunity
to litigate his or her case before the courts or tribunals established by law. The right of
access to courts and tribunals and equality before them is not limited to citizens of state
parties, but must also be available to all individuals, regardless of nationality or
statelessness or whatever their status, whether asylum seekers, refugees, migrant
workers, unaccompanied children or other persons, who may find themselves in the
territory or subject to the jurisdiction of the state party20.
A situation in which an individual attempts to access the competent courts or tribunals
and is systematically frustrated de/jure or de/facto runs counter to the guarantee of
article 14 paragraph 1 of the ICCPR21.
The availability or absence of legal existence often determines whether or not a person
can access the relevant proceedings or participate in them in a meaningful way. Article
14(3) (d) of the ICCPR explicitly addresses the guarantee of legal assistance in criminal
proceedings. States are encouraged to provide free legal aid in other cases for
individuals who do not have sufficient means to pay22.
18
Due process
Supra note 5
20
th
Human Rights Committee 90 Session 2007 Geneva General Comment No. 32
21
Communication No. 469/1991 Olo Baharronder V. Equatorial Guinea Para 14
22
General Comment No. 32 Para 10 Ibid
19
30
Similarly the imposition of fees on the parties to proceedings that would prevent their
access to justice might give rise to issues under article 14 paragraph123
The right to equality before courts and tribunals also means equality of arms. This
means that the same procedural rights are to be provided to all the parties unless
distinctions are based on law and can be justified on reasonable grounds, not entailing
actual disadvantage or other unfairness to the defendant24. There is no equality of arms
if for instance only the prosecutor but not the defendant is allowed to appeal a certain
decision, as was the case in Weiss. V. Austria25. Similar cases should also be dealt with
using similar proceedings26.
In the African context, the African Commission in a number of authorities like
International Pen and others on behalf of Ken Sarowiwa Jr V. Nigeria 27, Constitutional
Rights Project (in respect of Zamani Lekwot) & 60 others V. Nigeria 28, Civil Liberties
Organization in respect of the Nigerian Bar Association V. Nigeria29has found Ouster
Clauses issued during decree rule under Nigeria‟s military regimes as foreclosing
avenues of appeal or suffocating national organs. In this respect, the ousting of the
jurisdiction of courts in favour of special tribunals created under various decrees was
held to violate the right to a fair trial under article 7(1)(a) of the ACHPR.
23
Communication No. 646/1995, Lindon V Australia para 6,4
Communication No. 134/2005 Dukko V Australia para 7,4
25
Communication No. 1086/2002 para 9,6
26
Concluding Observations, United Kingdom of Great Britain and Northern Ireland CCPR/CO/73/UK 2001 para 18
27
International Pen & Others on behalf of Ken Saro-wiwa Jr. Nigeria AC Communication No. 52. Para 19-20, No.
137/94, 154/96 & 161.
28
ACHRR Communication No.87/93 paras 25-33
29
ACHPR Communication No. 01/93 para 18-22
24
31
The right of access to courts places the duty on the state to ensure that those
responsible for violation of human rights are held accountable. The failure to investigate
and commence proceedings against perpetrators of violation of human rights has been
held to amount to a denial of the right of access to the courts in violation of Article 7 (1)
(a) ACHPR. This was the position in National Commission for Human Rights V. Chad
communication No.74/92 para 50-5130 where the state had failed to investigate and
bring to book those that murdered a leading human rights activist.
Furthermore, the right of access to the courts includes the obligations on the part of the
state to respect decisions and orders of its courts. In Media Rights Agenda &
Constitutional Rights Project, V. Nigeria,31 the Nigerian government had refused to
respect certain court decisions. The African Commission held that the right to have an
individuals case heard by a competent and impartial court must naturally comprise the
duty of all persons including the state to respect and abide by judgments of the courts.
2.2.2 The Right to due Process requires that a trial be conducted within a
Reasonable Time32.
The denial of the right arises where the case delays in the trial process itself. What is
reasonable time is not defined but will depend on the facts of each case. In Louis
Mekonyo V. Cameron,33 the Commission considered the lapse of 12 years for pending
appeals as a violation of the complainant‟s right to be tried within a reasonable time. In
Constitutional Rights Project V. Nigeria,34 the Commission held that to wait for four
30
Communication No. 74/92para 50-51
ACHPR Communication Nos. 140/94, 141/94, 145/95 paras 50-51
32
Art. 7 and ACPRA, Art. 28 (1) Uganda 1995 Constitution
33
ACHPR Communication No. 59/91 paras 28-32
34
ACHPR Communication No. 60/90
31
32
years for a judgment to be delivered was not within a “reasonable time” and thus
violated article 7 (1) (d) of the African Charter. In Krishna Achuthan on behalf of Aleke
Banda the indefinite detention of Mr. Banda35 without trial was held to violate article 7
(1) of the said charter. This was also the position in Odyonoriby Cossi Paul v Benin36
2.2.3 Competence and Impartiality of National Tribunals/Courts37
The requirement of competence and impartiality of courts or tribunals in the sense of
article 14 paragraph 1 of the ICCPR is an absolute right that is not subject to any
exception38. The requirement of independence refers in particular to the procedure and
qualifications for the appointment of judges, and guarantees relating to their security of
tenure until a mandatory retirement age or the expiry of their terms of office, the
conditions governing promotion, transfer suspension, and cessation of their functions,
and the actual independence of the Judiciary from political interference of the Executive
branch and Legislature.39 States should take specific measures guaranteeing the
independence of the Judiciary, protecting judges from any form of political interference
through national constitutions or adoption of laws establishing clear procedures and
objectives for the appointment, remuneration, tenure, promotion, suspension and
dismissal of the members of the judiciary and disciplinary sanctions against them.40
Judges may be dismissed only on serious grounds of misconduct or incompetence, in
accordance with fair procedures ensuring objectivity and impartiality set out in the
35
ACHPR Communication No. 64/92
ACHPR Communication No. 199/97
37
ACHPR Communication No. 199/97
38
Art. 7(1) (a) & Art. 26 (ACHPR, Art, 141 International Convention on Civil and Political Rights.
39
th
ICCPR 90 Session 2007 Geneva General Communication No. 32 Para 19
40
Concluding Observation Slovakia, CCPR/79 Add, 79 1997 para 18
36
33
constitution of the land. The dismissal of judges by the executive for instance before the
expiry of the terms for which they have been appointed without any specific reasons
given, and without effective judicial protection being available to contest the dismissal, is
incompatible with the independence of the judiciary41.
In authorities like Constitutional Rights Project V. Nigeria,42 Constitutional Rights Project
(in respect of Zumani Lekwot) & 6 others V. Nigeria,43 International Pen on behalf of
Ken Sarowiwa V. Nigeria,44 the African Commission dealt with the issue of impartiality
with reference to the composition of the courts or tribunals created under various
decrees by the Nigeria military regimes, which were often composed of a judge, an
officer of the army, navy, air force and the police. It was held that this amounted to
transfer of jurisdiction from the normal courts to tribunals chiefly composed of persons
belonging to the executive branch of government, which made their impartiality
questionable.
Courts and tribunals in a judicial system should be possessed with adequately trained
officers who are guided by satisfactory procedural rules. Thus, in Krishnan Achuthan on
behalf of Banda V. Malawi,45 a trial before a Malawian traditional court composed of
judges with no legal training and to which ordinary rules of evidence were inapplicable
was found by the African Commission as violating articles 7 and 26 of the African
Charter.
41
Communication No. 468/1998) Pastukhov V. Balara S. para 7.3
Communication No.60/91 para 37 Ibid
43
Communication No. 87/93 para 25-33
44
Supra Note 27
45
Krishnan Achutthan on behalf of Aleke Banda V Malawi Communication No. 64/92.
42
34
2.2.4 The Right to Defence Counsel 46.
In the first place this right entails an individual being informed of the case against him or
her in order to enable them prepare a legal defence. In William Counson V Equatorial
Guinea47 the African Commission held that the right to defence includes the right to be
informed of the charges as well as evidence of the said charges so that one can
adequately prepare their defence in time.
In the second place the right enjoins legal representation by counsel of an individual‟s
choice and this should be from the moment one is arrested and detained while awaiting
V. Nigeria48 it was held that the pretrial
trial. Thus in Constitutional Right Project
access to legal representation enables the availing of advice that is necessary for the
preparation of the case.
It must be noted that this right also accrues even in circumstances where the individual
is in detention. In Media Rights Agenda and Anor V. Nigeria 49 the Africa Commission
found that denial of the accused access to an advocate of his or her choice was in
violation of Article (1) (c) even if there were no charges against the individual.
In the final analysis the right to legal defence further places an obligation upon the state
not to harass or intimidate the chosen legal representative of the individual. Thus in
Constitutional Right project (in respect of Zamani Lekwot), and 6 others V Nigeria,50 it
was found that
defence
lawyers had to withdrawal from the trial on account of
46
Art. 7 (1) (c) ACHPR, Art. 28 (3) of 1995 Constitution
Communication No. 144/95 para 20
48
Communication No. 60/91 Ibid
49
Communication No. 105/93 Ibid para 88
50
Communication No. 87/93 para 29
47
35
harassment by state officials and the Commission found this a contravention of Article 7
(1) of the Banjul Charter.
Due process further entails an obligation not to prejudice the innocence of an individual
and it extends to acts that seem to infer that the individual is guilty. Thus in International
Pen on behalf of Ken Sarowiwa V. Nigeria51 at various national and international fora,
the Nigerian government had made pronouncements on the guilt of Sarowiwa and his
colleagues prior to and during their trial. This was seen by the African Commission as a
violation of the right to the presumption of innocence.
2.2.5 Presumption of Innocence52
The onus of proof of the guilt of an accused person is placed on prosecution which was
the position in the case of Interrights on behalf of Bosch V. Botswana 53. This right also
means defendants should normally not be shackled or kept in cages during trials or
otherwise presented to the court in a manner indicating that they may be dangerous
criminals54. The media should avoid news coverage undermining the presumption of
innocence. Furthermore, the length of pretrial detention should never be taken as an
indication of guilt and its degree.
2.2.6
Protection Against Ex post facto Legislation55.
Due process also embodies the general prohibition against retroactivity and it embraces
the principle that individuals must at all times be fully aware of the law under which they
51
Supra Note 27
Art. 7 (1) (b) ACHPR, Art 28 (3) (a) 1995 Constitution
53
Communication No 52/94 Para 96
54
Communication No. 240/2001 para 22-29
55
Art. 7 (2) ACHPR. Art. 28 (7) of Uganda 1995 Constitution
52
36
are living. Thus, in Civil Liberties Organization in Respect of the Nigeria Bar Association
V. Nigeria56, the Nigerian military government issued a decree establishing a new
governing body of the Nigerian Bar Association called the Body of Benchers, dominated
by nominees of the government. The African Commission was of the opinion that the
retrospective effect of the decree, issued in February 1993 but promulgated to have
come into force in July 1992 constituted a violation of Article 7.2 of the African Charter.
This was the reasoning in other authorities like Amnesty International V. Zambia 57 and
Sir Dawda Jawara V. The Gambia.58 In the case of Uganda Law Society V Attorney
General, the Constitutional Court held that one could not be charged for a crime that
was not codified into law at the time they are alleged to have committed it59.
2.2.7 Rights of a Person Charged with a Criminal Offence60
The right of all persons charged with a criminal offence to be informed promptly and in
detail in a language which they understand of the nature and cause of criminal charges
brought against them, enshrined in paragraph 3(a)61 is the first of the minimum
guarantees in the initiation of criminal proceedings under article 14.
In Khachatrian V. Armenia62 it was held that this guarantee applies to all cases of
criminal charges, including those of persons not in detention, but not to criminal
investigations preceding the laying of charges. In Marques de Morais V. Angola63 it was
held that the right to be informed of the charge “promptly” requires that information be
56
Communication No. 101/93 para 20-22.
Communication No. 212/98 para 36.
58
Sir Dadwa Jawara V The Gambia Communication No. 147/97 para 36-7.
59
Constitutional Petition No. 18/2005.
60
Art. 23 Uganda 1995 Constitutions, Article 14 ICCPR.
61
Art. 14 of ICCPR Ibid.
57
62
63
Communication No. 1056/2002 para 64.
Communication No. 1128/2002 para 5.4 and Kelly V. Jamaica Communication No. 253/87.
37
given as soon as the person concerned is formally charged with a criminal offence
under domestic laws.
In the case of trials in abscentia, it was found in Mbenge V.Zaire64 that notwithstanding
the absence of the accused, all due steps have to be taken to inform the accused
persons of the charges and to notify them of the proceedings.
Accused persons must have adequate time and facilities for the preparation of their
defence and to communicate with counsel of their own choosing. In Smith V. Jamaica 65,
Mclean and Mclean V. Jamaica66 it was held that the above provision is an important
element of the guarantee of a fair trial and an application of the principle of equality of
arms. What counts as “adequate time” depends on the circumstances of each case and
in Morais V. Angola67 and Wright V. Jamaica68 it was held that if counsel reasonably
feel that the time for the preparation of the defence is insufficient, it is incumbent upon
them to pray for the adjournment of the trial. In Chan V. Guyana69 it was held that there
is an obligation to grant reasonable requests for adjournment, in particular, when the
accused is charged with a serious criminal offence and additional time for preparation of
the defence is needed.
“Adequate facilities” must include access to documents and the evidence and this
access must include all materials70
64
Communication No. 16/77/para 14.1
Communication No. 282/88 para 10.4 and Sawyers, Mclean and Mclean, V. Jamaica
66 Communication No. 256/1987 para 13.6
67 Communication No. 1128/2002 para 5.6
68 Communication No. 349/89 para 5.6
69 Communication no. 913/2000 para 6.3
70 See Concluding Observations, Canada, CCPR/C/CAN/CO/5 para 13
65
38
In Khomidora V. Tajikistann71 and Sirager V. Uzbekistan72together with Gridin V.
Russian Federation73 it was held that the right to communicate with counsel requires
that counsel meet their client in private and in conditions that fully respect the
confidentiality of their communications.
The right of the accused to be tried without undue delay, provided for by article. 14(3)
(k) of ICCPR is not only designed to avoid keeping persons too long in a state of
uncertainty about their fate and if held in detention during the period of the trial, to
ensure that such deprivation of liberty does not last longer than necessary in the
circumstances of the specific case, but also to serve the interest of justice. In Sextus V.
Trinidad and Tobago,74 it was held that what is reasonable has to be assessed in the
circumstances of each case, taking into account mainly the complexity of the case, the
conduct of the accused and the manner in which the matter was dealt with by the
administrative and judicial authorities. In cases where the accused are denied bail by
the court, they must be tried as expeditiously as possible.75 The right to an expeditious
trial relates not only to the time between the formal charging of the accused and the
time by which a trial should commence, but also the time until the final judgment on
appeal76. All stages, whether in first instance or on appeal must take place “without
undue delay”.
71
Communication No. 1117/2002 para 6.4
Communication No. 907/2000 para 6.3
73 Communication No. 770/1997 para 8.5
74 Communication No. 818/1998 para 7.2
75 Sextus V. Trinidad Tobago Communication No. 818/98 para 7.2
76 Rouse V. Philippines Communication No. 1089/2002 para 7.4
72
39
The right to a fair hearing further entails that accused persons should be present during
their trial
77
. In Mbenge V. Zaire78 it was held that a trial in the absence of the accused
could only be compatible with article 14(3) (d) if necessary steps are taken to summon
the accused persons in a timely manner and be informed of the time and place, but they
decline to exercise their right to be present79.
In addition an accused person has a right to defend him or herself in person or through
legal counsel of their own choosing and to be informed of this right 80. Where the interest
of justice requires and the accused cannot afford the cost of legal representation then
the state should provide the same. In Lindon V. Austria,
81
it was held that the gravity
of the offence is important in deciding whether counsel should be assigned “in the
interest of justice”.
The right to due process also means the right for an accused to examine, have
examined the witnesses against them and to obtain the attendance and examination of
witnesses on their behalf under the same conditions as witnesses against them82.
An accused person also has a right to have the free assistance of an interpreter if they
cannot understand or speak the language used in court83.
Finally, an accused person has a right not to be compelled to testify against him or
herself or to confess guilt84. This safeguard must be understood in terms of the absence
77
Article 14 (3) (d) ICCPR
Communication No. 699/16 para 14.1
79
Communication No. 699/1996 para 9.3
80
Article 14 (3) (e) ICCPR
81
Communication No. 646/95 para 6.5
82
Article 14 (3) (e) ICCPR
83
Article 14 (3) (f) ICCPR and Communication No. 219/1986 Guesdon V. France Para 10.2
78
40
of any direct or indirect physical or undue psychological pressure from the investigating
authorities on the accused, with a view to obtaining a confession of guilt
2.2.8
85
.
Juvenile Persons
States should take measures to establish an appropriate juvenile criminal justice system
in order to ensure that juveniles are treated in a manner commensurate with their age. A
minimum criminal liability age should be established taking into account their physical
and mental immaturity.
In case of criminal proceedings, juveniles are to enjoy at least the same guarantees and
protection as are accorded to adults under Article 14 of the ICCPR, however procedures
should take into account their age and the desirability of promoting their rehabilitation.86
Juveniles should in particular be informed directly of the charges against them and if
appropriate though their parents or legal guardians, be provided with appropriate
assistance in the preparation and presentation of their defence and be tried
expeditiously. Detention before and during the trial should be avoided to the extent
possible.87
Whenever appropriate, measures other than criminal proceedings, between the
perpetrator and the victim, conferences with the family of the perpetrator, counseling or
community service or educational programmes should be considered provided they are
compatible with relevant human rights standards.
84
Article 14 (3) (g) ICCPR.
Kurmbonor V Jajikistan Common 1208/2003.
86
Article 144 ICCPR.
87
General Comment No. 17/89/ on Article 24 (Rights of the Child) Para 4.
85
41
2.2.9 Review by a higher tribunal88
Article 14 (5) of the ICCPR provides that any one convicted of a crime shall have the
right to have their conviction and sentence reviewed by a higher tribunal according to
law. In Gomaviz Kalera V. Spain,89 it was held that the phrase „according to law‟
relates to the determination of the modalities by which the review by a higher tribunal is
to be carried out, as well as which court is responsible for carrying out a review in
accordance with the covenant. However, article 14 (8) does not apply to procedures
determining rights and obligations in a suit at law, 90 or any other procedure not being
part of a criminal appeal process, such as constitutional motions91
The right for review is not only violated if the decision by the court of first instance is
final, but also where a conviction imposed by an appeal court92 or a court of final
instance,93 following acquittal by a lower court, according to domestic law, cannot be
reviewed by a higher court. Where the highest court of a country acts as first and only
instance, the absence of any right to review by a higher tribunal is not offset by the fact
of being tried by the supreme tribunal of the state party concerned, rather, such a
system is incompatible with the covenant, unless the state party concerned has made a
reservation to this effect94. A review that is limited to the formal or legal aspects of
conviction without any consideration whatsoever of the facts is not sufficient under the
88
Art. 14 (5) ICCPR, Art 1281995 Constitution of Uganda Article 14 (5)
Communication No. 1995/2002 para 7.1
90 I.P.V.V. Finaland Communication No. 450. 91 para 6.2
91 Communication No. 352/98, Douglas, Gentiles, Ken, V. Jamaica para 11.2
92 Communication No. 1095/ 2002 Gumariz Kalera V. Spain Para 7.1
93 Communication No. 1073/2002 Terron. V Spain para 7.4
94 Ibid note 93
89
42
covenant95. However article 14 (5) does not require a full retrial or a “hearing” as long
as the tribunal carrying out the review can look at the factual dimensions of the case96.
The right to have an accused‟s conviction reviewed can only be exercised effectively if
the convicted person is entitled to have access to a duly reasoned, written judgment of
the trial court, and at least in the court of first appeal where domestic law provides for
several instances of appeal, also to other documents such as trial transcript, necessary
to enjoy the effective exercise of the right to appeal97.
The right to have an accused‟s conviction reviewed is also violated if defendants are not
informed of the intention of their counsel not to put any arguments to the court, which
then deprives them of the opportunity to seek alternative representation in order that
their concerns may be ventilated at the appeal level 98. The effectiveness of this right is
also impaired, and article 14 violated if the review of the higher instance court is unduly
delayed in violation of paragraph 3 (c) of the same provision99.
2.2.10 Compensation in cases of Miscarriage of Justice100
In Vebenganga V. Australia101 and W.J.H. V. Netherlands,102 the court while
interpreting article 14 (6) of the ICCPR held that compensation according to the law
shall be paid to persons who have been convicted of a criminal offence by a final
decision and have suffered punishment as a consequence of such conviction, if their
95
Communication No. 701/1996 Gomez Vazquez V Spain para 11.1
Communication No. 1110/2002, Rolando. V. Philippines para 4.5
97 Communication No. 662/95 Lumley V Jamaica para 7.5
98 Communication No. 750/97 Daley V. Jamaica Para 7.5
99 Communication No. 845/98 Kennedy V Trinidad and Tobago Para 7.5
100 Art. 14 (6) ICCPR, Art 126(a) 1999 Constitution
101 Communication No. 963/2001 para 4.2
102 Communication No. 408/1990 para 6.3
96
43
conviction has been reversed or they have been pardoned on the ground that a newly
discovered fact shows conclusively that there has been a miscarriage of justice.
However, no compensation would be due if the conviction is set aside upon appeal
before the judgment becomes final103, or by a pardon that is humanitarian or
discretionary in nature or motivated by considerations of equity, not implying that there
has been a miscarriage of justice104.
2.2.11 Ne Bis in Idem 105
Article 14 (7) of the ICCPR provides that no one shall be liable to be tried or punished
again for an offence of which they have already been finally convicted or acquitted in
accordance with the law and penal procedure of each country under the principle of ne
bis in idem. However, this article does not prohibit retrial of a person convicted in
absentia who requests it, but applies to the second conviction. It does not apply if a
higher court quashes a conviction and orders a retrial106. Furthermore, it does not
prohibit the resumption of a criminal trial justified by exceptional circumstances, such as
the discovery of evidence, which was not available or known at the time of the acquittal.
However, this guarantee applies to criminal offences only and not to disciplinary
measures that do not amount to a sanction of a criminal offence within the meaning of
article 14 of the Covenant107.
103
104
105
106
107
Communication No. 880/1999 Irving V Australia Para 8.4 No. 868/1999 Wilson V Philippines para 6.6
Communication No. 89/1981 Muhoven V. Finland Para 11.2
Article 14 (7) ICCPR, Article 28 (9) of 1998 Constitution, Art. 14 (7)
Communication No 277/1988 Teran Jijon V. Equator para 5.4
Communication No. 1001/2001, Gerardus & Strik V. The Netherlands Para 7.3
44
Furthermore, it does not guarantee ne bis in idem with respect to the national
jurisdiction of two or more states108. This understanding however should not undermine
efforts by states to prevent retrial for the same criminal offence through international
conventions109.
2.3
The Legal and Policy Framework of the Judiciary
The legal regime and policies governing the Judiciary and the administration of justice
are designed in such a manner that they embody accepted universal principles
concerning the right to fair trial, as seen above.
The Uganda Judiciary is provided for under chapter eight of the 1995 Constitution110
Before the enactment of the 1995 constitution, the Judiciary‟s mandate was to serve as
the adjudicating authority in Uganda and to administer justice through courts of law111.
The Judiciary then went though
various restructuring exercises mainly under the Civil
Service Reform program during the period 1992 to 1995. Consequently the mandate of
the Judiciary changed as follows “The courts shall endeavour to educate the people
with a view of establishing a spirit of voluntary and conscious observance of the law and
referring disputes to courts for adjudication112
This new mandate changed the role of Judiciary from that of merely adjudicating cases
to that of delivering adjudication and administering justice to the population.
108
Communication No. 692/1996, A.R.J.V Australia para 6.4
Rome Statute on the International Criminal Court Article 20 Para 3
110
Articles 126-151
111
st
Courts of Judicature (2006). Judiciary Staff Handbook 1 ed. Kampala. Author
112
Ibid
109
45
A mission statement highlighting the development of an efficient and effective judicial
system was developed in line with the above stated mandate.
The changes left the Chief Justice with the responsibility for the administration and
supervision of all the courts in Uganda including those that do not administratively fall
within the Judiciary, assisted by the Deputy Chief Justice who heads the Court of
Appeal/ Constitutional Court and the Principal Judge who heads the High court and
Magistrate‟s courts113
The High Court has been divided into five Divisions that is Civil, Criminal, Commercial,
Land and Family each headed by a High Court Judge.114
The day to day management of the Judiciary is charged with the Chief Registrar at the
level of a Permanent Secretary, assistant by a management team of Registrars in the
registries of the Supreme Court, Court of Appeal, the High Court and in the different
divisions, Research and Training, the Inspectorate of courts, Planning and
Development115
Following the 1997-1998 Post Constitution Restructuring Report, which addressed the
issue of decentralization of judicial services, five positions of resident High Court Judges
and their Deputy Registrars were created to manage five regions namely, Western,
113
Article 129-141 of the 1995 Constitution of Uganda
Supra note 111
115
Ibid
114
46
South, South Eastern and Eastern and Northern.116 Today these High Court circuits
have been expended to 12117
There is hardly now any area in Uganda that is more than 150km from a High court
circuit a thing intended to deliver quality justice to the public.
The Judiciary also has a parallel level of authority with the Chief Registrar heading the
technical branch consisting of judicial activities of the organization and the Secretary to
the Judiciary heading the administration and finance branches where judicial support
staff fall118.
In order to improve service delivery, the Judiciary management undertook a number of
other strategic interventions.
Since 1995, the Danish International Development Agency (DANIDA) has implemented
the Strengthening of the Judiciary Project (SJP) with the first phase covering
rehabilitation
and maintenance of court buildings, rationalization of courts through
streamlined court procedures, training and human resource development. The second
phase covered support to the administration of justice while the third consolidated the
first 2 phases with emphasis on strengthening the planning and development functions
of the Judiciary119. The Judiciary has also implemented the sector wide Approach
(SWAP) in the justice law and order sector (JLOS), covering ten institutions which
depend on each other to achieve efficient administration of justice120
116
117
Ibid p.g 38
Central High Court Circuit Mukono, Western High Court Circuit Mbarara, South Western High Court Circuit Fort Portal. Eastern High Court
Circuit Jinja High Court Circuit, Gulu, Kampala High Court Circuit Kampala, Masindi High Court Circuit Masindi, Kabale High Court Circuit Kabale,
Mbale High Court Circuit Mbale, Masaka High Court Circuit Masaka, Arua High Court Circuit Arua and Soroti High Court Circuit Soroti
118
Ibid pg 34
Ibid pg 36
120
Ibid chapter 1
119
47
With many of the activities deriving inspiration from the JLOS programme, the Judiciary
developed a medium term strategic plan 2002/03-2006/07, which outlined an ambitious
reform program towards the fulfillment of its mandate121
This was followed with the introduction of result-oriented management (ROM) under the
Ministry of Public Service, and Performance Management Systems (PMS) in the region
of research and training with emphasis on training and development of judicial staff122.
Alternative dispute resolution (ADR) was introduced to increase case disposal rates123.
The Judiciary just like any other government department is run by different committees
established by the Chief Justice. Currently there are 11 committees that is the Senior
Managerial Committee, Planning and Development Committee, the Judiciary Monitoring
Committee
(JMC),
Library Committee, Contracts Committee Judicial Integrity
Committee (JIC), Peer Committees, Terms and Conditions of Service Committee,
Judicial Training Committee, Rules committee, Finance Committee and Technology
Committee.
121
Ibid pg 45
Ibid pg 44
123
Order 12 of the Civil Procedure Rules S171-1
122
48
Membership on those committees comprises senior members of the Judiciary who may
appear on more than one committee.124
In summary, the Judiciary has developed three major strategic plans125. The First
Strategic Plan run from 2002/3 to 2006/7 and focused on building appropriate structures
and ensuring efficient administration. SIP one also mentioned the need for the
development of performances standards.
124
Ibid page 58-65- The Chief Justice chairs the senior management committee with the principal Judge, Secretary
to Judiciary, Chief Registrar under Secretary, Registrar High Court, Registrar court of appeal, Registrar Commercial
court, Inspectors of courts. Registrar Research and Training as members, Planning and development committee is
chaired by the Chief Justice with other members being the Deputy Chief Justice, Principal Judge, Secretary to
Judiciary, Chief Registrar and Solicitor General; The Judicial Monitoring Committee is chaired by a representative of
the Supreme Court, with a representative from the Court of Appeal, representative of the High court,
representative of the Chief Registrar, representative of the Judiciary, representative of the training and any other
suitable person as members; the Library, Committee is chaired by the Deputy Chief Justice, with the justice in
charge of the Supreme Court Library Justice in charge of the Court of Appeal Library, Judge in change of the High
Court library the chairman Judicial Training Committee, Chief Registrar , Registrar research and Training, President
Uganda Judicial officers Association, Librarian Supreme court. Librarian Court of Appeal, and Librarian High Court
as members, the Contacts Committee is chaired by the Chief Registrar with Registrar Supreme Court, Under
secretary, principal accountant and Assistant Secretary as members; the Judicial Integrity Committee (JIC) is
chaired by a justice of the Supreme Court with Deputy Chief Justice, one Judge, Chief Registrar, Registrar supreme
court Registrar High court Registrar court of Appeal Inspector of courts, Registrar Research and Training , Estates
manager and Principal Information Management Officer, as members; the Terms and conditions of service
committee is chaired by a justice of the Supreme Court, with a justice of the Court of Appeal, the Principal Judge, a
Judge of the High Court, and Secretary to Judiciary as members; the Judicial. Training committee is chaired by a
justice of the Supreme Court, with 2 Judges, Chief Registrar Secretary to Judiciary, Register High court Secretary
Judicial service commission, Secretary Public Service Commission, President U.J.O.A, President U.L.S, Registrar
Research and Training, Assistant project coordinator and assistant Registrar training/public affairs as members; the
Rules committee is chaired by the Chief Justice with the Deputy Chief Justice, the Principal Judge, Attorney general,
Director Law Development Centre and one advocate as members, the Finance Committee is chaired by the Under
Secretary with all Registrars and senior members of staff at the Judiciary headquarters as members (total of 15
members), the Technology Committee is chaired by a High court Judge with the Deputy Chief Justice, one Judge,
Chief Registrar, Registrar Supreme Court, Registrar Court of Appeal, Registrar High Court Inspector of Courts,
Registrar Research and Training, Estates Manager and Principal Information Manager office as members, then are
Peer Committees in all cadre of Judicial officers with all this work load. It is only human and natural that many
Judicial officers affected may be over whelmed and my not execute their key function of case adjudication
effectively.
125
Supra chapter 1 note 7
49
The second SIP, the “Strategic Plan and Development Program (SPDP) from 2006/07
to 2010/11 and focused, in addition to the long-term priorities of infrastructure and
efficiency also on the demand-side by aiming to improve access to justice and to
strengthen ethics and integrity in the Judiciary.
The third SIP launched in 2012 focuses on key activities to be implemented by the
Judiciary grouped under its four key result areas of strengthening the legal and
regulatory framework, enhancing access to justice, improving public trust in the
Judiciary and enhancing institutional capacity.
2.3.1 The Need for Reform
According to Mr. Gadenya,126 in 1997 the Rules Committee under the chairmanship of
the Chief Justice of Uganda met and discussed the impasse in the civil justice system
with a view of finding solutions. The committee was influenced by the enactments in the
1995 constitution that is. articles 28 (1) which provides that in the determination of civil
rights and obligations or any criminal charge a person shall be entitled to a fair, speedy
and public hearing before an independent and impartial court or tribunal established by
law.
Article 126 (2) which fortified article 28 (1) provides that;
“in the adjudicating cases both of a civil and criminal nature, the courts
shall, subject to the law, apply the following principles; justice shall be
done to all irrespective of their social or economic status , justice shall not
be delayed, adequate compensation shall be awarded to victims of
wrongs, reconciliation between parties shall be promoted and substantive
justice shall be administered without undue regard to technicalities”.
126
Gadenya W.P. (2008 March). Case Management. Journal of Uganda Judicial Officers 14, 21-47
50
The core principles echo the mandate of the judiciary in article 126 (1) of the
constitution, which provides that;
“judicial power is derived from the people and shall be exercised by the
courts established under this constitution in the name of the people and in
conformity with the values, norms and aspirations of the people”.
The Rules Committee was also influenced by the Lord Woolf Committee which set out
to reform the Civil Procedure Rules in England and Wales.127 Justice Odoki‟s
Committee found that the main encumbrances to the civil justice system were that the
Civil Procedure Rules made it more difficult to prosecute or defend cases in time, the
adversarial system which we inherited from United Kingdom did not provide a quick
medium of resolving cases.
Lawyers/ parties instead of the court were setting the
agenda for the courts, lawyers were abusing interlocutory orders and applications to
delay cases, lawyers and judicial officers were not always prepared to hear the cases,
courts were very quick to grant adjournments, the lawyers and courts were reluctant to
use alternative dispute resolution to resolve cases, and the courts were not using the
civil procedure rules to avoid delay of cases and punish litigants who were not keen to
take up their cases.
The Committee was of the view that the biggest problem of dealing with delay of cases, lay
in parties failing to start cases in court especially in the area of pretrial stages of the case. It
was also found that using alternative dispute resolution to settle some of the cases would in
a way clear out some of the cases where parties were willing to settle. However, although
the civil procedure rules were amended to expedite pretrial proceedings of a case,
127
Access to Justice Interim Report Chapter 5, Ibid
51
advocates and judicial officers the researcher interviewed found that the same were still too
complex and therefore reluctantly implemented to bring about the desired change. It was
also felt that the case disposal would still remain low as long as the procedural pieces of
litigation like the Evidence Act, the Magistrate‟s Court Act, the Penal Code Act among
others were not reformed.
2.3.2
Changes Introduced by the Reformed Civil Procedure Rules128
Order 5 (2),(3) imposes a limit on the service of summonses and gives court powers to
dismiss cases where summonses remain unserved for 21 days after issue. Interviewees
questioned the rationale behind the 21 days period and wondered whether the time could
not be reduced to 14 days; Order 5 rule 3 removed the requirement for a defendant to enter
appearance instead of directly filing a written statement of defence; Order 5 rule 2(b)
imposes a duty on litigants to provide a written summary of evidence, a list of witnesses, list
of documents and a list of authorities to be relied upon. The subject of the rule is threefold,
to ensure that parties adequately prepare their cases before they are filed, that parties give
their adversaries notice of their case to avoid the element of surprise and to give the court
an opportunity to adequately prepare for the hearing of the case. From the researcher‟s
experience, from the relatively rural courts of Mubende, Ntungamo, Masaka, Fortportal and
Bundibugyo, litigants who are in most cases unrepresented do present their plaints with no
attachments, which still defeats the objective of the amendment. Order 6 rule (1) and (2)
like the preceding order requires the defendant to write a brief statement of the material
facts on which the party pleading relies for claim or defence as the case may be; Order IX
rule 3 on jurisdiction is to the effect that, a defendant who wishes to dispute the jurisdiction
128
S.1 26/1998; The Civil Procedure Amendment Rules 1998
52
of the court shall within the time limited for service of a defence apply to court for such
orders; Order XII introduced the concept of a scheduling conference before the trial starts
and alternative dispute resolution within 7 days after the order of interrogatories and
discoveries has been made under rule 1 of Order X of the Rules, or where no application
for interrogatories and discoveries has been made under Rule 1 of Order X, then within 28
days from the date of the last reply or rejoinder referred to in Rule 8 of the Rules.
According to Mr. Gadenya, the objectives of a scheduling conference are, to sort out points
of agreement and disagreement, then discover possibilities of promoting mediation or for
the court to refer the case to an arbitrator for settlement or settle the case through any
other form of alternative disputes resolution
In terms of ADR Rule 2 (1) empowers a member of the Bench or Bar appointed by Court to
conduct ADR. Rule 2(2) imposes a time limit of 21 days within which to conduct ADR,
although for sufficient cause the time may be extended to an extra 15 days.
Interviewees especially litigants wondered why the days here could not be less when
issues were still fresh in everyone‟s mind. Judicial officers interviewed confessed that they
rarely follow such time frames when handling cases in their day to day schedules.
Under Order XII r(3), the Chief Justice may issue directions for the better implementation
of ADR. It should be noted that the Chief Justice is yet to issue rules under this provision
and this perhaps may explain why ADR has not yet been widely appreciated.
Interlocutory applications. As earlier observed advocates were previously using them to
delay litigation. The Rules Committee therefore amended the CPR to put time limitations on
when one can apply for interlocutory orders.
53
Accordingly O.XII rule 3 (1) provides that all remaining interlocutory applications shall be
served within 21 days from the date of completion of ADR and where there has been no
ADR within 15 days after completion of the scheduling conference. Rule 3 (3) provides that
an interlocutory application shall be fixed for hearing within 21 days from the date of service
of the reply on the applicant while Rule 3(4) provides that all interlocutory applications shall
be heard and finished within 45 days from the date fixed for hearing of the application
unless the court extends the time.
According to Mr. Gadenya, from the foregoing exposition of the law, the objectives of the
amended Civil Procedure Rules are several that is; the rules place the management of the
case in the hands of the judge; case management in the management of cases was
introduced, the courts were empowered to control the pace of litigation; and to submit
cases to ADR; prevent the abuse of interlocutory applications and orders by limiting the
time for making and resolving them; ensure that parties give as much information to their
adversaries before the trial, to avoid trial by ambush and unnecessary adjournments;
empower courts to dismiss without notice unmeritorious cases; empower litigants and
practitioners to effectively use ADR; philosophically re-orient the landscape of civil
litigations from any other aggressively adversarial system to one which is collaborative and
engaging; fast track cases and; reduce the cost of civil litigation.
2.4
Administrative Mechanisms to Improve Case Management
Whether the courts in Uganda are reaping from these advantages is another matter to be
considered later on below. After the amendment of the CPR the Judiciary in September
2003 enacted two pieces of legislation; The Constitutional Commercial Division (mediation
54
pilot project rules/ practice directions129 whose aim was to deliver to the commercial
community an efficient, expeditious and cost effective mode of adjudication of commercial
disputes in order to stimulate the economy of Uganda and the Commercial Court Division
(mediation pilot project) rules130.
These Rules laid out the procedure for the carrying out of mediation by the Centre for
Arbitration and Dispute Resolution (CADER). The Commercial Court has since initiated inhouse mediation under Order XII Rule 1 and 2 of the CPR. Interviewees felt that this
selective treatment of commercial disputes to benefit from specialized mediation efforts
over other civil disputes in the country, like land matters which are so numerous and
contentious does not serve the purpose of case backlog reduction in the country.
2.4.1
Election Matters
The Chief Justice amended the Parliamentary Elections (election petitions) amendment
Rules S.I 29 of 2006 to provide for alternative dispute resolution of election petitions. This
method of case management has not yet been widely accepted by politicians and the legal
fraternity as statistics from 2006-2009 will indicate in the next chapter.
2.4.2 Creation of Specialized Divisions of the High Court.
The Principal Judge divided the High court registries into civil, land, family, and criminal
Divisions131 . The objective of the divisions is to create highly specialized manpower so as
to expedite disposal of cases. The Judiciary appears to have borrowed a leaf from the
129
Legal Notice Number 7 of 2003
S. 171 of 2005
131
Administrative Circular No. 2 of 2004
130
55
Woolf Reforms in England and the success engendered by the commercial court of
Uganda to create specialized divisions.
2.4.3 Expansion of the Powers of the Registrars.
The Chief Justice expanded the jurisdiction of the registrars mainly to handle interlocutory
matters with the objective of freeing judges from such matters so that they can concentrate
on substantive issues. As seen in the next chapter132 interviewees noted that for one to be
appointed a judge, they should have served as public officers for which qualification as an
advocate is required for ten years, even though one was not a holder of a practicing
certificate133. All cadres of registrars in the country have ten years experience in judicial
service. They wondered why they should be relegated to handling interlocutory matters,
instead of being appointed judges to handle both interlocutory and substantive matters.
This underutilization of this cadre of judicial officers leads to case backlog.
2.4.4
Use of Sessions in both Civil and Criminal Cases
Criminal cases in the High Court are generally disposed of through criminal sessions. The
High Court has introduced sessions for civil cases and election petitions. The idea of
sessions is slowly being introduced to the Lower Bench with about 2 million shillings to
chief magistrates and shillings 1.200.000/= to Grade One Magistrate‟s every quarter being
provided towards the disposal of case backlog.
Chief Magistrate‟s courts are also
facilitated to conduct sessions for cases where life imprisonment may be imposed as a
sentence.
132
133
See Chapter 3 note 1
Article 143 (1) (e) (2) of the 1994 Constitution
56
2.4.5
Use of Settlement Weeks
The High Court has introduced settlement weeks to cater for litigants who want to resolve
their disputes through out of court settlements or with the aid of court. So far settlement
weeks conducted by Justice Arach Amoko show that such an initiative which is budget
friendly can do wonders in reducing case backlog and indirectly enhancing the courts
management of cases. This initiative is alien to the legal fraternity in upcountry stations.
2.4.6 Use of Alternative Dispute Resolution
All courts have been implored to use alternative dispute resolution as a case backlog
reduction strategy134 and to give effect to Article 126 (2) of the 1995 constitution, which
enjoins courts to promote reconciliation. Unfortunately courts have for various reasons not
taken up ADR135.The researcher entirely concurs with the above finding because the
situation on ground is rather discouraging. For instance at Fort Portal High Court judicial
officers and advocates interviewed appeared to have an idea about ADR although
implementation remained a problem. In most cases both in the High Court and the Chief
Magistrate‟s court, the order of the day is that advocates simply file a case scheduling
memorandum as a matter of routine with no serious effort to explore areas like mediation
and arbitration. For instance, of the 26 Civil Suits registered at the court between January
2009 to October 2009, only 8 were settled by way of consent. Of the 115 miscellaneous
applications registered in the same period, only 7 were settled by way of consent, 3
withdrawn, 2 overtaken by events, 26 by way of judgment delivery and the rest pending
disposal136
134
Principle Judge Ogoola’s Remarks during the Judges Annual Conference Report to the Judges in the Annual
Conference 2008.
135
See next note.
136
Court case summary statistics from Fort portal High Court Registry between January 2009 to October 2009. A
th
Physical counting of these files was done on 19 November 2009.
57
2.5
Mediation
As noted, above, the Uganda Judiciary also employs mediation in case management.
With the increasing backlog of cases in the Uganda Judiciary reported at 44595 civil cases
at the beginning of 2008,137 and with the recent enhancement of the jurisdiction in
magistrate‟s courts
138
alternative dispute resolution especially mediation should be
emphasized in light of meaningful case management.
Mediation can be defined as “a process by which a neutral person facilitates
communications among the parties to a dispute and assists them in reaching a mutually
agreed resolution”139. As noted earlier the Civil Procedure Rules also provide for alternative
dispute resolution, which may include mediation before any member of the bar or bench in
deserving cases140. According to one of the registrars in charge of mediation at the Uganda
commercial court,141 a mediator has neither the power to impose a settlement nor the
responsibility to counsel the parties. He only has good sense and power of persuasion.
A mediator should attempt to make the proceedings manageable: develop an atmosphere
conducive to the problem at hand through negotiations; gather all the information available
about the interests of the parties; help the parties to create options; help the parties to
narrow the options and move towards agreement and to help the parties make rational
decisions between agreement and pursuing a claim.
137
th
Speech of the Chief Justice His Lordship Benjamin Odoki at the opening of the New Law year on 15 February
2008
138
The Magistrate’s Court (Amendment) Act No. 7 of 2007
139
The Judicature (Commercial Court Division) (Mediations) Rules 2007 S. 158 of 2007
140
The Civil procedure (Amendment) Rules 1998 Order 10B now Order 12 Revised of Uganda 2000
141
Vincent Emmy Mugabo, Senior Magistrate Grade one in charge of Mediation in 2008, now Chief Magistrates
Buganda Road Court
58
A mediator therefore helps the parties to focus more on the true basis of their dispute and
on future remedies than on punishment, revenge or responsibility for past events142
2.5.1
Mediation Process143
The mediator meets parties in a joint mediation session. The role of a mediator, the
mediation process and advantages are then fully explained to the parties. The explanation
on confidentiality is of paramount importance for the parties to open up. The initial joint
session will be held with all the parties. Here the mediator gathers information that is
general facts and positions, each party‟s wish list. The mediator allows parties to hear each
other. At this stage a break can be allowed to involve parties in private sessions. The
purpose is to gather more information, elicit sensitive facts and identify interests. Options
are also developed.
In the private sessions, the mediator‟s role would be to start with issues important to that
party, open ended questions are asked, empathy shown and translations made. In the
following subsequent sessions it is important to move parties towards narrow options of
agreement. The mediator has to transmit information using hypothetical questions to
communicate possible settlements. In the final joint session the mediator has to clarify any
agreement reached and any remaining steps to finalize or to acknowledge the lack of
agreement and then clarify the remaining issues to the dispute. Additional details of
implementation can be worked out then.
142
Michael K Lewis Lindu R. Singer- Mediation for the Professional Training Materials 2007
59
2.6 Conclusion
Uganda has ratified most of the International instruments that guarantee the right to due
process and adopted several policies to enhance the administration of justice. What
remains as a challenge is the reality that different stakeholders including the State have
either flouted or neglected to implement the said principles, leading to injustice. The next
chapter unravels why implementation has remained a challenge, before a panacea is
advanced.
60
CHAPTER THREE
THE CAUSES OF CASE BACKLOG IN THE UGANDA JUDICIARY
3.0
Introduction
The cause of case backlog in the Judiciary cannot be attributed to one factor alone, but
rather a combination of variables. This chapter examines the situation in our justice
system before Uganda adopted the Lord Woolf Reforms, and the extent of compliance
with those reforms. The chapter further investigates the formal justice system in
Uganda, the administrative system of the Judiciary and the attitudes of different
stakeholders towards enhancing due process.
The survey in this research was conducted between June 2008 to July 2009 targeting
the general public and court users at different High Courts in the area of Kampala,
Fortportal and Masaka, together with their corresponding magistrates courts.
Interviews1 were used to capture a representative sample of both the consumers and
dispensers of justice. Two Focus Group Discussions (FGD) were employed in order to
elicit views from judicial officers.
A total of three hundred fifty (350) face to face
interviews were conducted. Purposive sampling targeting views from senior judicial
officers and other policy makers was employed together with accidental sampling of
ordinary court users. Majority of the respondents were aged between 23 and 45 years.
Forty five percent of the respondents were female while 55% were male. The men and
women appeared willing to respond to the questions in the same measure
1
See Interview guide appendix 1, see FGD interview guide appendix 2
61
According to Justice Stella Amoko2 judicial delay is caused by both external and self
generated factors which are not easy to exhaust. The researcher has divided these into
administrative, procedural and behavioural causes.
3.1
Administrative Causes of Case Backlog
3.1.1 The winding structure of the Formal Court System
Seventy four percent of the respondents felt that the winding structure of the formal
court system leads to apathy among the litigants3. As a result case backlog results
when they reluctantly fail to prosecute their cases. There are five categories of formal
courts in Uganda namely; the Supreme Court, Court of Appeal, High Court, Chief
Magistrate‟s Courts, Grade I Magistrate‟s Courts and Grade II Magistrate‟s Courts.
The Supreme Court
This is the highest appellate court in Uganda, headed by the Chief Justice with a corum
of 6 other justices4.
Table 2: The courts case statistics for the past 6 years5
Court
Level
Year
Supreme 2004
Court
2005
2006
2007
2008
2009
B/Forward
(B)
Filed
(F)
89
74
82
104
128
114
78
62
46
80
33
102
Disposed Pending
(D)
(P)
93
54
24
56
47
118
2
74
82
104
128
114
98
Caseload
Growth (PB)/B)
-16.9
10.8
26.8
23.1
-10.9
-14
Remarks
Reducing
Increasing
Increasing
Increasing
Reducing
Reducing
Arach, A. S (2009). Towards an efficient and effective commercial Justice system. Where there is a will there is a
way. A paper presented at the East African Judges and Magistrates conference Nairobi -Kenya.
3
Supra note 1.
4
Article 130 of the 1995 Constitution.
5
th
Records from data centre High Court Building Kampala Uganda Retrieved on 4 April 2008.
62
The table shows that the Supreme Court handles the least number of cases compared
to other categories of courts. Case backlog keeps increasing and reducing.
The Court of Appeal
This is the second appellate court in the country headed by the Deputy Chief Justice
with membership of Justices not less than seven6
Table 3: The Courts’ case statistics for the past 6 years7
Court
Year
Level
B/Forward
Filed
(B)
(F)
Disposed Pending Caseload
(D)
(P)
Remarks
Growth
(P-B)/B)
Court of 2004
528
0
0
528
0
Constant
Appeal
2005
528
986
398
1,912
262.1
Increasing
2006
1,912
819
1,048
1,683
-12
Reducing
2007
1.683
272
158
1,802
7.1
Increasing
2008
1,802
440
147
2,095
16.3
Increasing
2009
2,095
686
467
2,314
10.5
Increasing
The table shows that on average the Court of Appeal handles more cases than the
Supreme Court. Case backlog is on a steady increase.
The High Court
The High court is headed by the Principal Judge with membership of such number of
judges as may be prescribed by Parliament.8 Presently it has 49 Judges9. The High
Court enjoys both appellate and unlimited original jurisdiction in all matters10.
6
Article 134 of the 1995 Constitution
Supra note 5
8
Article 138 of the 1995 Constitution
9
th
Human Resource Department High Court Building Kampala Uganda .Retrieved on April 4 2009
10
Article 139 of the 1995 Constitution
7
63
Table 4: The court’s case statistics for the past 6 years11
Court
Year
Level
B/Forward
Filed
(B)
(F)
Disposed Pending Caseload
(D)
(P)
Remarks
Growth
(P-B)/B)
High
2004
11,471
6,508
6,464
11,515
0.4
Increasing
Court
2005
11,515
9,502
7,504
13,513
17.4
Increasing
2006
13,513
13,450
10,138
16,825
24.5
Increasing
2007
16,825
15,976
11,479
21,322
26.7
Increasing
2008
21,322
15,626
14,373
22,575
5.9
Increasing
2009
22,575
17,023
17,485
22,113
-2
Reducing
The table shows that the High Court handles more cases compared to the Court of
Appeal and Supreme Court. On average case backlog is on a steady increase.
Registrars
These are provided for under Article 138 of the 1995 Constitution. In the Judiciary today
there are 7 Registrars, 15 Deputy Registrars and 9 Assistant Registrars12 . Apart from
their administrative functions, their powers and duties are provided under the Judicature
Act and Civil Procedure Rules13.
A close analysis reveals that they handle basically pretrial matters like hearing
preliminary objections, and post trial matters like taxation of bills of costs and delivery of
judges‟ rulings. They also organize High Court sessions and account for disbursed
funds. It is not easy to quantify their work because their duties are fused with judges‟
cases.
11
Supra note 5.
th
Records from the Judiciary Human Resource Department retrieved on 4 April 2009
13
S. 43 Judicature Act Cap 13, Order XL VIII, L, Civil Procedure Rules, S. 171-1
12
64
All registrars are above the rank of Chief Magistrate which makes them senior judicial
officers. Interviewees felt that because they have limited powers, it contributes to
increase of case backlog given that the majority of cases before them cannot be
determined conclusively.
The Magistracy
This cadre is provided for under the category of other judicial officers in the
constitution14 and are commonly referred to as “the Lower Bench”. Their powers are
specifically provided for under the Magistrates Court Act15. Currently there are 39 Chief
Magistrates, 6 Senior Principal Magistrates Grade I, 6 Principal Magistrates, 8 Senior
Magistrates Grade I, 98 Magistrates Grade I, 3 Principal Magistrates Grade II, 112
Magistrates Grade II16.
Table 5: Magistrates’ Performance for the passed 6 years17
a) Chief Magistrates’
Court
Level
2004
34,000
Disposed Pending Caseload
(D)
(P)
Growth
(P-B)/B)
37,516
33,981
37,535
10.4
Magistrates 2005
37,535
35,775
31,893
41,418
10.3
Increasing
Court
2006
41,418
42,310
39,848
43,880
5.9
Increasing
2007
43,880
45,154
38,428
50,606
15.3
Increasing
2008
50,606
56,446
42,874
64,178
26.8
Increasing
2009
64,178
58,771
48,797
74,152
15.5
Increasing
Chief
Year B/Forward
(B)
Filed
(F)
14
Remarks
Increasing
Article 129 (d) and 148 of the 1995 Constitution.
S. 161 and 207 Magistrates Court Act Cap 16, S.4 Penal Code Act Cap 120, S. 19 and 20 Criminal Procedure Code
Act Cap 116
16
Supra note 12.
17
Supra note 12
15
65
The table shows that Chief Magistrates‟ Courts handle more cases in the Lower Bench
category. On average case backlog is on a steady increase.
Grade I Magistrates
Court
Level
2004
5,102
Disposed Pending Caseload Remarks
(D)
(P)
Growth
(P-B)/B)
14,360
12,847
6,615
29.7
Increasing
Magistrates 2005
6,615
14,936
13,069
8,482
28.2
Increasing
2006
8,482
19,194
19,216
8,460
-0.3
Increasing
2007
8,460
21,527
18,631
11,356
34.2
Increasing
2008
11,356
24,140
21,412
14,084
24
Increasing
2009
14,084
28,056
25,600
16,540
17.4
Increasing
Grade I
Year B/Forward
(B)
Filed
(F)
The table shows that on average case backlog is on a steady increase among Grade I
Magistrates Courts.
Grade II Magistrates
Court
Level
Year
B/Forward
(B)
Filed
(F)
Grade II
2004
3,076
Disposed Pending Caseload Remarks
(D)
(P)
Growth
(P-B)/B)
9,546
9.239
3,383
10
Increasing
Magistrates 2005
3,383
7,793
7,266
3,910
15.6
Increasing
2006
3,910
9,706
9,046
4,570
16.9
Increasing
2007
4,570
7,546
7,425
4,691
2.6
Increasing
2008
4,913
6,913
6,429
5,175
10.3
Increasing
2009
8,591
8,591
7,715
6,051
16.9
Increasing
The table shows that on average case backlog is on the rise among Grade II
Magistrates Courts.
66
The above illustrations show that in the past six years out of a total of 1,474,530 cases,
the Supreme Court completed 1,384 cases which is 0.093%, the Court of Appeal
13,436 cases which is 0.91%, the High Court 267,192 cases which is 18.12%, Chief
Magistrates Court 783,441 cases which is 53.12%, Grade I Magistrates Court 287,087
cases which is 19. 46% and Grade II Magistrates Court 122,020 which is 8.27%. The
Higher Bench disposed of 19.123% while the Lower Bench completed 80.85%. It
therefore means that the Lower Bench accounts for the disposal of the majority of cases
in the country compared to the Higher Bench. The case statistics also reveal that the
number of litigants reduces as you ascend the hierarchy of the court system. This
confirms the notion of apathy to use the courts among litigants.
Table 6: Movement of Criminal Cases from the High Court to the Supreme
Court18.
Case No.
CA4/2009
Parties
Uganda V
Year of
Year of
Year of
Position in
Registration completion completion Supreme Court
in High
in High
in Court of
Court
Court
Appeal
2000
29/12/2003 2010 Hearing
Nandudu &
Another
CA21/2007
Ongona John
2000
12/11/2002
2007
2010 Hearing
2004
10/3/2005
-
2010
BOsco V Uganda
CA03/2008
Kakooza Goefrey
V Uganda
CA
Namwanje Pauline
14/2009
V Uganda
judgment
on notice
2001
2009
2010
Judgment
on notice
18
th
The researcher sampled criminal and civil cases from the Supreme Court of Uganda Registry on 19 September
2009
67
CA 7/2008
Tongola Musa V
2002
13/8/2003
19/9/2008
Uganda
Judgment
delivered on
15/7/2010
CA
Wafula Charles V
12/2007
Uganda
CA
Opola Simon V
20/2007
Uganda
CA
Oryem Richard V
22/2004
Uganda
Sekabiito Kassim
2003
29/2/2005
23/4/2007
2010 Judgment
on notice
2001
14/5/2002
05/10/2007
2010
Judgment
on notice
2000
6/6/2001
14/10/2004
2010
Judgment
on notice
2003
9/3/2004
15/10/2007
CA16/2007 V Uganda
13/7/2010
judgment
delivered
CA
Mugisha Dasan V
17/2007
Uganda
2002
4/11/2002
05/10/2007
13/7/2010
judgment
delivered
CA
Muhwezi Alex V
21/2005
Uganda
2000
2003
23/3/2005
2010
judgment
on notice
This table and the one below show that criminal cases move slightly faster from the
High Court, Court of Appeal, to the Supreme Court, compared to Civil Cases. The
Supreme Court reserves judgments to be delivered on notice. This creates uncertainty
about when the cases will be completed. It also delays delivery of justice leading to
backlog.
68
Table 7: Movement of Civil Cases from High Court to the Supreme Court.
Case No.
Parties
SCCA
13/2006
1. Muijibhai Madvani
& Co Ltd
2. Steal Corporation
of E.A Ltd
V
Francis Mugalula &
others
SCCA NO
23/2007
Dr. Kaijuja Mutabuzi
Emmanuel
V
Fang Min
Brigadier Henry
Tumukunde
V
1. Attorney General
2. Electoral
Commission
AIG Ltd V Insurance
Co of East Africa
ICA No.
22006
SSCA No.
8/2009
SCCA No.
17/2009
SCCA No.
18/2009
SCCA No.
16/2009
Year of
Year of
Year of
Position in
Registration completion completion
Supreme
in High
in High
in Court of
Court
Court
Court
Appeal
1994
10/11/2003 3/11/2006
20/10/2010
judgment
delivered
2002
10/11/2004
16/11/2007
20/1/2009
Judgment
delivered
2008
Judgment on
notice
25/8/2005
2002
Rwakashaija
Azarious & 2 others
V
Uganda Revenue
Authority
1. Oliver Seribiri
2. Peter Seguya
V
1999
Administrator General
1. Noble Health Ltd
2. Tony Badedye
3. Suzan Munahwa
2003
V
4. Sungi Pharm U
Ltd
Norathan Bhatia
1998
V
Boutigue Shazim Ltd
19/1/2004
-
3/5/2006
30/3/2006
8/10/2009
69
2010
Judgment
delivered
2010
Judgment on
notice
4/3/2010
judgment
delivered
13/15/2005
5/4/2009
29/3/2010
Judgment
delivered
20/10/2005
8/10/2009
2010
judgment
notice
on
SCCA No.
20/2009
SCCA No.
10/2007
SCCA N0.
6/2009
SCCA No.
1/2010
1. NSSF
2. W.H Sentoogo &
Partners
3. Alcon
International Ltd
Ibero U. Ltd
V
Mbale Imported and
Exporters
Hon Sitenda Sebula
V
Hon Sam Kalega
Njuba
Rita Daisy
Kyalikampa
V
Hoima District Local
Government
1998
30/9/2003
25/8/2009
2010 pending
hearing
2000
5/10/2005
28/3/2007
2009
Judgment on
notice
29/5/2008
1/6/2009
14/5/2009
judgment
delivered
2/12/2008
2010
Hearing
2005
The table shows that the Supreme Court reserves civil judgments to be delivered on
notice which leads to uncertainty and delay.
These case statistics show that on average it takes a criminal case over 7 years and a
civil case not less than 8 years to move from the High Court, through the Court of
Appeal to the Supreme Court. This does not take into account cases that may have
emanated from Magistrates Courts to the Higher Courts. Litigating respondents were
not only fatigued about the process of litigation, but also decried the high costs involved.
There is therefore no doubt that the winding structural set up of the formal justice
system in Uganda makes cases delay in the hierarchy and therefore creation of
backlog.
70
3.1.2
The 2 Tier system of Administration
As noted in the previous chapter the Judiciary has parallel centres of authority at the
level of permanent secretary with the Chief Registrar heading the technical branch
consisting of judicial activities of the organization, and the Secretary to Judiciary
heading the Administration and Finance branch19. This means a split between
management of judicial staff and administrative staff even though both sets of staff work
on many of the same activities on a day to day basis.
The authors of this split sought to create a more efficient Judiciary by separating the
management of judicial work from finance and other support staff 20. However the
situation in reality is rather different as there is great duplicity of work.
It must be noted that most of the courts in the country have accounts assistants or
persons acting as such, whose role mainly is to receive and account for disbursed funds
on behalf of the Secretary to Judiciary. The reality is that because the courts are
headed by Judges, Registrars and Magistrates, these are taken as sub accountants21
tasked to manage financial resources.
It must be noted that judicial officers are not qualified in financial administration and it is
no wonder that several audits in the Judiciary have revealed billions of shillings
unaccounted for. Members of Parliament on the Public Accounts Committee (PAC)
want the
Judiciary to issue arrest warrants for magistrates who use court bail cash
collected from suspects and charged in the Anti Corruption Court. This was an
19
Chapter 2 note 111 supra.
th
Interview with Justice Yorokam Bamwine on 28 September 2008. The Justice is newly appointed principal judge
courts of Judicature Uganda.
21
According to Mrs. Dorcas Okalany Secretary to Judiciary while addressing officers during the first Annual
st
Magistrates Conference at Colline Hotel Mukono 18-21 March 2010.
20
71
instruction to the Secretary to Judiciary Ms. Dorcus Okalany. The Committee found that
more than shs. 100 million bail money had been borrowed
by different court officials
who were yet to pay back. For instance the Supreme Court borrowed 3.4 million,
Mbarara Court shs.11.9 million, Fortportal High court shs. 9.9 million, Kabale Court shs
7 million, Jinja High Court shs 4 million, Hoima Grade One magistrate‟s court shs. 5.6
million, Ntungamo Grade One magistrate‟s court shs. 3.5 million, Kisoro court shs. 2
million, Rukungiri court shs. 1.2 million, Kamuli court shs. 15.7 million and Kasese court
shs. 1.5 million. Ms Okalany reported that judicial officers feigned ignorance that they
were not supposed to use the non tax revenue (bail money). Mr. Gaudioso
Tindamanyire the Kibondo Bunyoruguru member of Parliament was of the view that
because judicial officers had a high propensity to steal public funds and were addicted
to money, then they should stop handling public funds22.
Indeed the Judiciary is considering a new policy of ensuring that judicial officers facing
audit queries appear in person before the Public Accounts Committee of Parliament for
clearance.23 Coupled with the above in the fact that judicial officers is charge of stations
have to supervise all the judicial and non judicial officers who are currently numbering
about 1546.24
There is no doubt therefore that the burden of administering finances at the different
country courts together with the human resources and other logistics coupled with the
judicial work overburdens the concerned judicial officers. The end result is inefficiency
and case backlog. Fifty four percent of the respondents felt that freeing judicial officers
22
th
Mugerwa, Y. (2009 March 30 ). Magistrates face arrest over bail cash. Daily Monitor, 5.
23
Ibid note 21.
24
Human Resource Department High Court Kampala Uganda.
72
from administration would create more efficiency in the Judiciary. Sixty six percent of
the judicial officers felt that the Judiciary was biased towards having more judicial
officers doing administration than case adjudication.
3.1.3 Conflict at Different Courts
Ninety five percent of the judicial officers interviewed admitted having conflicted with
fellow judicial officers and support staffs at their court stations25.
The cause of the friction was primarily the failure to equitably utilize the operational
funds and other logistics allocated to the courts. Some officers reported incidents of
superiors refusing to allocate case filed to them, following disagreements.26 Malicious
reporting then follows.
Others complained of superiors who allocated their subordinates “dry files”, while
retaining “juicy files”27 There was another concern of other judicial officers lobbying or
being favoured by administration to serve at the so called “juicy stations.”
The complication is that such officers favour corruption and unjust enrichment over the
administration of justice.
Some judicial officers reported cases of insubordination from their support staffs
primarily caused by the fact that these are hired and disciplined by the Public Service
Commission and not the Judicial Service Commission.
25
Supra note 1.
The researcher has also experienced this scenario. In 2006, he had a disagreement with his chief magistrate at
Masaka court over methods of work. For almost six months, no work was allocated to him supposedly as a way of
punishment, until he was transferred to another station.
27
By Juicy files, judicial officers meant cases where one would derive personal economic advantage, and “dry files”
to mean cases where no such advantage can be derived.
26
73
There is no doubt that the above state of affairs creates, discontent, lack of team work
and leads to unbalanced distribution of cases among judicial officers. The result is
inefficiency and case backlog.
3.1.4 Duplicity of Roles in the Judiciary and the Judicial Service Commission
The Judicial Service Commission is the body created
to oversee the activities of the
Judiciary.28 Its functions among others include the preparation and implementation of
programs for the education and dissemination of information to judicial officers and the
public about the law29. It is also responsible for receiving and processing the publics‟
recommendations and complaints concerning the Judiciary and the administration of
justice and generally to act as a link between the people and the Judiciary 30
From the above it is clear that the mandate to train, handle complaints and liaise with
the public generally lies with the Judicial Service Commission. Yet the Judiciary has
come up with parallel entities like the Judicial Studies Institute in charge of continuous
training of judicial officers31
The Judicial Studies Institute is headed by an executive director who is a judge
deputized by a registrar and a host of other Judicial and non judicial staff, a thing that
28
29
30
Article 146 of the 1995 Constitution.
Article 147 (1) (d) of the 1995 Constitution.
Article 147 (1) (d) of the 1995 Constitution.
31
The Judicial Studies Institute educational prospectus 2005-2006 lists the following course modules - cultural contextual education, judicial
training modules, judicial officers induction modules, , judicial offices continuous education module, judicial impartiality Independence and
accountability course, judicial efficiency course, sentencing course commercial justice course civil justice course special aspects of the law of
evidence course. Life skills, Registry staff training module, court registry staff induction course registrar staff special skills course. Registry staff
management /life skills course, Judiciary non judicial staff induction training unit modules, specially tailored training unit modules for
accounting officers and all personnel managing judicial resources, specially tailored judiciary non core and support staff training unit modules,
ITC training unit modules for professional judicial secretaries specially, individually tailored training unit modules for judicial training personnel,
land tribunals paralegals training, advocates, appellant Judges course, legal secretaries, effective judicial legal secretaries, court Bailiffs and
Auctioneers, state Attorneys probation and welfare officers, prisons and police- reported in the judiciary staff hand book at pages 78-79.
Publication of the Courts of Judicature P.O. Box 7085 Kampala with the assistance of DANIDA Judiciary Support Project.
74
further decreases the workforce dedicated specifically to case adjudication. The
Judiciary also has an Inspectorate Department currently manned by 3 registrars in
charge of inspecting judicial officers especially of the Lower Bench,32 and a public
relations office headed by another registrar33.
3.1.5
Irrational Deployment of Judicial Officers
The public has through different fora complained that the courts especially in up country
stations, do not operate on Mondays and Fridays. 34 Judicial officers interviewed
admitted that although this observation may be partly genuine, they have to make it to
meet their families in Kampala and other distant areas away from their stations35. Other
judicial officers complained of redundancy at some stations which are less busy than
others where the business of the day is disposed of as early as midday. They noted that
the Judiciary‟s failure to redeploy officers at less busy courts to relieve those in busier
ones even if temporarily ultimately leads to inefficiency and case backlog36.
In order to assist the Chief Justice, Deputy Chief Justice and Principal Judge carry out
their duties, each has been assigned a judicial officer from the Lower Bench to act as
personal assistants. Their duties include escorting their lordships both on foreign trips
and in the country, handling correspondences, research, speech writing to mention but
a few. Some respondents from the Judiciary felt those roles could effectively be
32
st
Courts of Judicature (2006) Judiciary Staff Handbook 1 ed. Kampala. Author.
Ibid.
34
Following complaints from the Public concerning Judicial Officers, who do not work Mondays and Fridays, the
th
Chief Justice of Uganda Hon Benjamin Odiki issued a circular to all Judicial Officers dated 18 - February 2009. He
warned that such acts are offences under Regulations 21 (e) of the Judicial Services Commission Regulations 2005
and also contravene Chapter 1 Section F-C of the Government of Uganda Standing Orders1991 Edition.
35
Judicial Officers who gave this response were magistrates working in up country courts. They requested to
remain anonymous for fear of facing disciplinary action.
36
(Interview with Mr. Charles Sserubuga Chief Magistrate Kasese on 25-11 2010).
33
75
executed by secretaries and police escorts who are non judicial officers, that are
already in place37. The researcher concurs because the affected judicial officers would
be redeployed to handle case adjudication.
Again from time to time different magistrates are assigned roles of acting registrars to
man newly created divisions like the Anti Corruption Court, and the War Crimes Court
among others. In most cases those judicial officers usually undertake administrative
work and are kept redundant due to lack of business and logistics. A case in point is the
War Crimes Court, which is yet to try any suspect from the LRA conflict over 2 year
since its creation38
Some respondents from the Bench39 were of the view that the Judiciary‟s policy of
sometimes using transfers as a means of punishment and the failure to consult officers
before transfer may lead to disgruntlement and therefore inefficiency. They thought that
in some cases officers could first be afforded a hearing and ample time and logistics to
prepare before a transfer is effected.
3.1.6 Few Judges and Magistrates
While meeting the Legal and Parliamentary Committee at the High Court, the Chief
Justice reported that Uganda with a population of about 33 million people, has a total of
255 judicial officers, and that 199 judicial officers more were required to clear the case
backlog in the courts40. He noted that of those 32 were judges five of whom were to be
37
38
Seventy of all judicial officers interviewed expressed this sentiment. Supra note 1.
th
Nyongesa, W. A (2009 September 27 ). War Crimes Division Court may try LRA’s Kwoyelo First. Sunday Monitor
1.
39
40
Supra note 1.
Maseruka, J. (2009. August 19). More Judges wanted in court. The New Vision, 5.
76
assigned to the Supreme Court, seven to the Court of Appeal and 20 to the High court.
Also required were 29 Registrars more, 11 Chief Magistrates and 115 Grade one
Magistrates.
Ninety two percent of the respondents were also of the view that the limited number of
judicial officers in Uganda meant that the Judiciary was not up to the task of handling
the different cases that are on the increase.
Records indicate that some judicial officers are not actively engaged in Judiciary work 41.
Recent population statistics indicate that there are about 32 million Ugandans42. The
recommended ratio of judicial officers to the public is about 1:16582.05 and yet in
Uganda its about 1:300000.43
It is therefore not surprising that the small number of judicial officers is overstretched
and overwhelmed to serve the ever increasing population. The end result is the
inevitable ineffectiveness and therefore case backlog.
3.1.7 Abuse of the Complaints Procedure
Seventy six percent of the respondents interviewed felt that flaws in the movement of
case files from one court to another following complaints, led to delay of such cases44 .
The Magistrates Courts Act confers powers on Chief Magistrates and the High Court to
41
Justice Julia Sebutinde of the High Court is on the International Court, of Justice at the Hague, Justice Solome
Bbosa Sits on the War Crimes Tribunal in Arusha, Justice Egonda Ntende, is acting Chief Justice of Sychelles, Justice
Onega is the Head of Amnesty Commission, H/W Gaswaga is acting Judge of the High Court in Sychelles etc.
42
Records from Uganda Bureau of Statistics House Kampala Uganda. In developed countries like Austria, there is
41.6 judges to 1,000,000 people which is a ratio of 1:24038.4, Canada 75.2: 1,000,000 which is a ratio of 1:13297.8.
United Kingdom 50.9: 100,000 which is a ratio of 1:19646.3, USA 107:1,000,000 which is a ratio of 1:9347.7, the
average is 1:16582.05. India has the lowest ratio in the World with 10.5:1,000,000.
Seewww.unodc.org/pdf/crime/gpacpublications.
43
Recommendation ratio of police officers to the population (n.d) retrieved March 12, 2011 from
http://www.unode.org/pdf/crime/gpacpublications.
44
Supra note 1.
77
call for and examine records of lower courts.45 There is also provision to reserve
questions of law for interpretation by the higher courts.46 If this power to call for records
is not exercised judiciously, then trials would inevitably be delayed. For instance, the
trial of prominent ministers accused of embezzling global funds meant for treatment of
different ailments in Uganda has stalled since 2005, because the case was referred to
the Constitutional Court for interpretation47
The researcher observed that in Bundibugyo district unscrupulous litigants tend to raise
unrealistic complaints concerning their files with the High Court located 75 kilo meters
away in Fortportal town.48 Sometimes referred files either go missing or lose position
and remain undisposed, thereby creating unnecessary case backlog.
3.1.8 Clog on Judicial independence
A well reknown constitutional scholar notes that for a society to thrive under an
environment of freedom, democracy, justice and respect for human rights, it is important
for it to have and believe in a culture of a respected, independent, impartial and fearless
Judiciary49. He went on to underscore the principle of judicial independence by quoting
the remarks by the chief justice of Canada at an international conference for refugee
law judges held in Ottawa;
“the basic theme which is basic for the protection of human rights and the
law is the independence of the judiciary which in Canada is underscored both
by the provisions of the constitution and respect for human rights of the
citizens”
45
Section 171, 221, 218, 206, of the Magistrates Courts Act, Cap 16.
Supra Section 206 of Cap 16.
47
Uganda V Brigadier Jim Muhwezi and 3 others HCT-00-AC-0097/2010.
46
48
49
Uganda V Tomusange Tom co o. 542/2010 of Bundibuygo Magistrate’s Court.
Kanyeihamba, G (2007 March). Independence of the Judiciary Journal of Uganda Judicial Officers Association 13,
8-19.
78
The learned chief justice then spelt out 3 major aspects of a constitutionally
independent Judiciary as security of tenure, financial security of both judicial officers
and the institution of the Judiciary and institutional independence, which concerns the
relationship between the Judiciary, the public and other branches of government50.
Therefore one of the tests whether a country enjoys a high standard of justice is the
independence of the Judiciary. By independence is meant that the courts and judges
are free to function without fear from or favour to any individual or authority51.
The Judiciary is regarded as the Third Arm of the Government following the Parliament
and Executive. However, in terms of its powers to make decisions and adjudicate finally
on matters affecting persons, institutions and governments, the Judiciary is pre-eminent.
In making and unmaking of laws, Parliament may be said to be sovereign, in the
execution of policies, the Executive is all powerful, but in determining the
constitutionality and legality of those laws and policies and determining the legal
propriety of every act or behaviour of anyone including members of Parliament,
ministers, cabinet and the president, the Judiciary is supreme52.
Resolution no. 40/32 of the United Nations General Assembly adopted on 29/11/1985
set out tenets of an independent Judiciary53. These principles were given preeminence
by the Uganda Constitution54 which in a nutshell provides for the independence of the
courts without control or directions from other authorities, assistance to the Judiciary by
50
Ibid
nd
Kanyeihamba, G. (2010 2 ed) Constitutional and Political History of Uganda; From 1894 to Present. Dar-esSalaam, Tanzania. LawAfrica Publishing (T) Ltd.
52
Supra note 49.
53
Colonel Rtd. Dr. Kiiza Besigye and 22 others V AG Constitutional Petition No. 72/2006.
54
Article 128 and 144, 1995 Constitution Uganda.
51
79
other agencies, protection of judicial officers exercising judicial powers from liability, self
accountability of the Judiciary and, non variance of salaries and allowances of judicial
officers to their disadvantage. It is noted that any Judiciary, which has been consistently
undermined by members of the other organs of state and by the members of the public
with general accusations, which are unsubstantiated, will lack the courage and the
credibility to do justice and a Judiciary, which is perceived as tainted by corruption,
abuse of office or incompetence is no judiciary likely to perform its duties happily. 55
In Uganda today some commentators have observed that most institutions that serve
the needs and comfort of ordinary people like the police, the Judiciary, hospitals and
sectors
like
agriculture
have
become
impotent
due
to
underfunding
and
mismanagement under President Museveni‟s rule.56.
Others have asserted that under the Movement Act 1995 all state institutions, the
Judiciary, police, army, state intelligence, prisons and civil service from national to
village levels are fused with the ruling National Resistance Movement so corruption
would get more institutionalized.57
Indeed the National Governing council of the African Peer Review Mechanism has
expressed concern at the way political influence infiltrates the decisions of judicial
officers noting that most judges are appointed as cadres of the National Resistance
Movement, making them susceptible to external influence58. Executive interference with
judicial independence is further highlighted by the number one executive of the state
55
56
57
58
G. Kanyeihamba in Journal of UJOA Supra at page 16.
Sengooba, N. (2009 November 24) plainly speaking. Corruption. Daily Monitor 12.
Akaki (2009 November 24). Corruption institutionalized under Museveni Rule Daily Monitor, 10.
th
Niringiye, Z. (2009 November 24 ). Peers Question naming of judicial officers. Daily Monitor, 3.
80
who has during different fora been quoted as saying he would “sort out” the Judiciary
which is “too independent” for governments‟ liking59.
In June 2004 when the Constitutional Court nullified the referendum and other political
systems Act 2000 the president once again attacked Judges;
“their judgment reveals absurdity and does not make sense….. the courts are
making mistakes but these will be sorted out politically, legally and
legislatively through constitutional amendment”
In addition when delivering his first ever address before the annual judges
conference, the President called for the establishment of an agency that would
audit judgments that seem wrong or biased and that some judges and magistrates
were lenient to hardcore criminals 60.
It is not surprising that the Judiciary through the Chief Justice rejected this proposal
arguing that performance and standards will be set up to make the institution more
accountable but not to compromise its independence61. And indeed the Executive has
gone ahead to disregard several court decisions prominent of which was the case in
which the so called “Black Mamba” besieged the Kampala High Court in 2005 to rearrest treason suspects who had been released on court bail. One judge was of the
opinion that such a despicable act had not been seen since the days of dictator Idi
Amin,62 while the Principal Judge described the episode as rape of the temple of
justice.63
59
60
61
62
63
th
Ssemujju I. N. & Muteekani, K. (2008 February 28 -March 5). Judiciary Tamed? The Weekly Observer 3.
th
Muhumuza, R & Bareeba G. (2009, January 16 ) Rulings Can’t be audited-judges. Daily Monitor, 1.
th
Muhumuza, R. & Bareeba, G. (2009 January 14 ) Museveni wants judgments audited. Daily Monitor 2.
Supra note 57.
Ogoola ,J. M (2007 March) Rape of the Temple: Journal of Uganda Judicial Officers Association. 13.109-112.
81
When the President stated that land related cases would become a no go area for
judges and magistrates because of “lopsided judgments” handed down by “corrupt
elements” in the Judiciary who connive with landlords against tenants, and that this
would change in the coming Land Amendment Act 1998, it was not surprising that
Uganda Law Society responded in a letter reminding the Executive to appreciate and
understand that the administration of justice the world over, (if it be a democratic state)
is a preserve of the Judiciary64. It should not be up to the Executive to determine when,
how and if the aims of justice have been served, for there was already rich
jurisprudence and precedents against which delivery of justice could be tallied and
evaluated. The lawyers concluded by asking the President to respect and honour all
lawful court orders passed against the government by the Judiciary, to disband all
“Kangaroo courts” and prosecute all persons who had been purportedly running those
institutions and to desist from utterances that could be interpreted as inciting public
dissatisfaction and revolt against the Judiciary. When it comes to resources the African
Peer Review Mechanism has noted that the Executive uses its control and
disbursement of resources to the Judiciary through the Ministry of Justice and
Constitutional Affairs to exert influence and take away the institutional independence 65
At the same forum the Executive Director of the Uganda Judicial studies institute was
quoted as saying that the failure to promote judges had undermined the independence
of the Judiciary.66
64
65
66
th
Bogere, H. (2007 October 18 ). Museveni land remarks anger Lawyers. Daily Monitor, 4.
th
Anyoli, W. (2009 October 16 ) Free Judges from Influence-Monitoring body. The New Vision, 7.
Justice David Wangutusi is also a High Court Judge.
82
Indeed the Chief Justice is on record as having requested the government to increase
funding for the Judiciary to at least 1% of the National GDP, while the Principal Judge
has likened the ever unending song of lobbying for adequate funding to the Judiciary as
that of a beggar cap in hand calling for alms.67
Seventy seven percent of the respondents from the Bench reported that prominent
members in society from the Executive like Resident District Commissioners,
parliamentarians, army, local government officers have ever tried to influence their
decision making in court.68 Forty seven percent said they disregarded the influence. The
respondents opined that they cannot be efficient when there is interference with their
judicial independence and this inefficiency leads to slow disposal of cases which
translates into case backlog.
3.1. 9 Inadequate Budgetary Allocation and Prioritization Challenges
Amos Twinomujuni a justice of the Court of Appeal of Uganda is of the opinion that the
Judiciary has been made undesirable and unpleasant through the bad propaganda by
President Museveni and his Executive who deliberately refuse to treat this third arm of
government as an equal69. The judge was quoted saying;
“it is no secret that many operatives of the ruling party regard the Judiciary
as an opposition political party. They regard judicial officers as enemies of
the people. With this sustained campaign in high gear since 1986, you
cannot wonder why some people have come to believe that the Judiciary
is a waste of time and resources just as the opposition parties... the
president does not like the Judiciary, he has attacked it whenever he gets
67
The Chief Justice of Uganda Benjamin Odoki and Principal Judge Justice Ogoola Addressing Magistrates at
st
Colline Hotel Mukono March 18-21 2. 2010, during the 1 Magistrates Annual Conference.
68
Supra note 1.
69
Justice Amos Twinomujuni is a Justice of the Court of Appeal of Uganda. These remarks were made during the
th
rd
12 Annual Sir Udo Udoma Symposium at Makerere University on 3 April 2009. Reported in Sunday Monitor
th
Newspaper April 5 2009 by Flavia Lanyero
83
the opportunity, he regards it as an opposition party, he could have
allocated it enough funds, if he thought that it was useful but he does not,
the executive take the cue from His Excellency. Whenever he attacks the
Judiciary, they undo themselves in doing the same. In delivery of justice,
the Judiciary collaborates with government agencies like police, prison,
Ministry of Justice, and others. If these agencies are not enabled to play
their part efficiently, there is no way the Judiciary can be efficient alone.”
Ninety four percent of the respondents were of the view that inadequate funding to the
Judiciary affects delivery of justice in the country. The Constitution of Uganda provides
that the Judiciary shall be self accounting and may deal directly with the Ministry
responsible for finance in relation to its finances.70 Eighty eight percent of the
respondents felt that the Judiciary is less efficient and less independent because it is
not self accounting71
Inadequate funding to the Judiciary affects the delivery of justice in the country.
While presenting the institution‟s policy statement to Parliament for financial year
2009/10, the Secretary to Judiciary reported that the sector required 67.1 billion shillings
for recurrent expenditure, 21.1 billion for development expenditure and 12.5 billion
categorized under other projects. However, Only 48.9 billion was provided for recurrent
expenditure, 1.3 billion for development and 6.3 billion for other projects 72.
According to the Judiciary‟s policy statement73 the other great challenge facing the
Judiciary is the MTEF ceiling. Despite the increase in the non-wage budget component,
the MTEF ceiling is still inadequate to enable the institution meet its full mandate. The
inadequate MTEF provision has a direct bearing on operations of the courts. Besides,
70
Article 128 (6) of the 1995 Constitution.
Supra note 1.
72
th
Oluput , M. (2009 July 24 ). 110,000 court cases pending, MPs told. The New Vision, 5.
73
Ministerial Policy statement Vote 101 Judicial service (Statutory) presented to Parliament for debate. The
estimates of the revenue and development expenditure Kampala. Author.
71
84
construction of the appellate court may not be possible since this vote is not captured
within the MTEF ceiling provided for FY2009/10. No adequate provision was made for
other capital investment (vehicles inclusive). This was seen as a major challenge
considering the impending appointment of new judges.
Table 8: Vote function details74
Category
Wage
10.801
14.092
14.192
Increase
FY
2009/10(bn)
0.100
Non wage
10.227
22.755
34.480
11.725
Development GOU
4.213
1.341
1.341
0
Total
25.241
38.188
50.013
11.825
Recurrent
2007/8
2008/9
Outturn(bn) Approved(bn)
2009/10
METF(bn)
The table shows that Government is steadily increasing funding to the Judiciary in every
financial year although the funds are not adequate.
In addition, the Chief Justice has questioned the rationale behind the States‟ selective
funding of the minority (capital) over non capital offences which are the majority, despite
the provision concerning equality before the law in the Constitution75. Indeed he went on
to blame government for the congestion in prison and the huge backlog of cases in the
Judiciary.
It is the researcher‟s considered opinion that all cases are the same regardless of
whether they are handled by the higher courts, or lower courts. However, it is not clear
why higher courts handling less cases are allocated more funding compared to lower
74
75
Ibid
rd
Amoru, P. (2008 November 3 ) Rights Body launches free legal services. Daily Monitor, 4.
85
courts. For instance records show that in FY2009/10 the Supreme Court was allocated
3.377 billion shillings to dispose of a total 106 cases, the Court of Appeal 3.530 billion to
handle 594cases, the High Court 19.092 billion to handle 2256 cases and only 13.056
billion to Magistrates‟ Courts to handle a whooping 47,174cases in the country76 This
trend is unfortunate and affects the delivery of justice in the country.
The policy also reveals that more money is allocated to the non core components of the
Judiciary over the main item of case disposal. In F/Y 2009/2010, 63.823 billion shillings
was allocated on votes like capacity building of staff, Judiciary support services,
buildings, vehicles, transport, office and IT equipment, machinery and equipment,
together with furniture and fixtures. Only 39.005 billion shillings was allocated to the
core component of case disposal.77
The above situation is exacerbated by the Salaries and Allowances (Specified Officers)
Act (Cap 291) that takes the discrimination against judicial officers of the Lower Bench
(and indeed other civil servants) to another level, a thing that affects morale and
contributes towards corruption.
Whereas judges in Uganda receive relatively higher salaries and allowances, Registrars
and Magistrates do not. The tables below illustrates this position. A comparison is made
with the remuneration package for members of the Kenya Judiciary.
76
Supra note 73
86
Table 9: Salaries, allowances and benefits for judges78 as amended by a
resolution of parliament passed on the 3 March 2009.
CATEGORY
Chief Justice
SALARY
(SHILLINGS PER
MONTH)
5,859,000
Deputy Chief
Justice
5,338,200=
Principal Judge
5,077,800=
Justices of the
Supreme Court
4,910,400=
Justices of the
Court of Appeal
4,743,000=
Justice of the
High Court
4,575,000=
ALLOWANCE (IN
SHILLINGS)
BENEFITS
Medical allowance of
3,600,000 per year
Furnished house.
Transport:
Chauffeur driven
car, security, travel
1st class,
3,000,000= in lieu of
official residence
Housing allowance of Transport:
2,500,000= per
Chauffeur driven
month.
car, security, travel
Medical allowance of 1st class.
3,000,000= per year
Housing allowance of Transport:
2,300,000= per
Chauffeur driven
month.
car, security, travel
Medical allowance of Club class,
3,000,000= per year
Housing allowance of Transport:
2,200,000= per
Chauffeur driven
month.
car, security, travel
Medical allowance of Club class,
2,400,000= per year
Housing allowance of Transport:
2,100,000= per
Chauffeur driven
month.
car, security, travel
Medical allowance of Club class,
2,400,000= per year
Housing allowance of Transport:
2,000,000= per
Chauffeur driven
month.
car, security, travel
Medical allowance of Club class,
2,400,000= per year
The table shows that members of the Higher Bench earn some mandatory allowances
besides salary. These reduce from the Chief Justice downwards to High Court Judges.
78
Part 1,2
nd
Schedule Cap 291.
87
Table 10: Allowances for furniture for certain specified officers
Office
Benefits
Deputy Chief Justice
The Deputy Chief Justice shall on appointment be
given seventeen million shillings for the procurement
of furniture
Principal Judge
The Principal Judge shall on appointment be given
sixteen million shillings for the procurement of
furniture
Justice of the Supreme Court
A justice of the Supreme Court shall on appointment
be given fifteen million shillings for the procurement
of furniture
Justice of the Court of Appeal
A justice of the Court of Appeal shall on appointment
be given fourteen million shillings for the
procurement of furniture
Judge of the High Court
A judge of the High Court shall on appointment be
given thirteen million shillings for the procurement of
furniture
The table shows that members of the Lower Bench are not entitled to furniture.
Table 11: Consolidated Monthly Package for Registrars and Magistrates 79
Chief Registrar
3,850,000
Registrar
3,257,000
Deputy Registrar
2,920,000
Assistant Registrar
2,750,000
Chief Magistrate
2,490,000
Grade one Magistrate
1,100,000
Grade Two Magistrate
472,500
Clerical Officer
100,000
79
Ministry of Public Service (2009 July Standing Instruction No. 1/2009. Salary Structure for the Financial Year
2009/2010 Kampala. Author.
88
The table shows that Registrars and Magistrates are not entitled to earn mandatory
allowances.
Table 12: Remuneration package for members of the Kenya Judiciary in Uganda
shillings80
Salary
(Ug Shs)
15,736,840=
Allowances
Ug Shs)
13,408,504=
8,353,196= to 8,512,664=
8,227,320=
1.
Chief Justice
2.
Judges of the Court of Appeal
3.
High Court Judges
3857295= to 9,866,272=
6,727,784=
4.
Magistrates
561,216= to 2,488,028=
Nil
5.
Paralegal
130,980= to 2,112,404=
Nil
The table shows that judges in Kenya earn higher than their counterparts in Uganda.
Magistrates in Kenya earn more or less the same as their counterparts in Uganda
3.1.10
Other Operational Funds
According to the Judiciary finance department, High court circuits receive an average of
3 million shillings per month as operational funds and between 15 to 30 million shillings
where criminal sessions of about 20 to 30 cases are to be conducted. A Chief
Magistrate‟s court receives an average of 2 million shillings as operational funds per
month, Grade One magistrates in charge of stations between 500,000 to 800,000, while
other Grade Ones receive 250,000= and 175,000 for Grade II Magistrates respectively
as operational funds per month. Mileage, night allowances, lunch allowance and
80
International Commission of Jurists (2007). Strengthening Judicial Reforms in Kenya. Public Perceptions for the
Magistrates Courts, Vol. V. Author.
89
footage allowances ranging from 300,000/= to 35,000/= are sometimes paid to Judiciary
staff where funds permit81
Judicial power is derived from the people and is exercised by the courts established
under the 1995 constitution in the name of the people and in conformity with the law
values, norms and aspirations of the people82. All judicial officers subscribe to the same
judicial oath before assuming office83 and their administrative expenses, including
salaries, allowances, gratuities are charged on the Consolidated Fund.84 It is against
this background that judicial officers appear to be discriminated when it comes to
resource allocation. Eighty eight percent of the respondents did not think that the
current terms of service of the Magistracy were satisfactory.85 Seventy nine percent of
the respondents though that unsatisfactory terms of service of the Magistracy influenced
its corruption.
In conclusion it appears that the Salaries and Allowances (Specified officers) Act cap
291 is in conflict with Article 21 of the 1995 constitution which provides for all persons
being equal before and under the law in all spheres of political, economic, social,
cultural life and in every other respect. Discrimination is defined as giving different
treatment to different persons attributable only or mainly to their respective descriptions
81
Judiciary staff Handbook first Edition. Published by Court of Judicature. Appendix 2 Revised rates of duty
st
Facilitating allowances with effect from 1 July 2005.
82
Article 126 (1) 1995 Constitution.
83
Article 149 supra.
84
Article 128 supra.
85
Supra Note 1.
90
by sex, race, colour, ethnic, origin, tribe, birth, creed or religion, social or economic
standing, political opinion or disability86.
3.1.11 Low pay
David Wangutusi87 notes that low pay is one of the aspects that greatly affects a
Judiciary. Where there are little returns for hard work, the most intelligent will not train in
it. A Judiciary with low pay will have the best-trained and most capable lawyer
graduates inclined to pursue careers in private practice. Consequently, lawyers with
uncompetitive
institutional
pedigrees,
undistinguished
records
of
professional
experience and modest social economic backgrounds tend to pursue careers on the
Bench. The above observations gets support from judicial surveys from Mexico
conducted in 1985 and 1993. The survey revealed that an average of 93.15% of Mexico
federal judges and magistrates graduated from what are generally considered to be
inferior quality law programs88. What happens is that people go about with the
perception that bribery will supplement salaries. The work will be slow in coming and
poor. As president Lee Kwan Yen of Singapore said in 2003;
“you pay peanuts you get monkeys”89.
A very interesting phenomenon is that the leadership in a Judiciary can work against
independence of individual judges. Judges who stand out and aggressively challenge
the ideas of their superiors might find themselves stagnating and or deployed in stations
that are not of their liking and may spend a good time of their career without achieving
86
Article 21 (3)
Wangutusi, D. K. (2009 April). The Role of the Judiciary in Social Economic Development. Journal of Uganda
Judicial Officers, 15. David Wangutusi is a Judge of the High Court of Uganda.
88
Kossic K 2004 742 Ibid.
89
Asian Development Bank Report page 19 Ibid.
87
91
any prominent position or promotion. Such legal culture certainly works against the
judges‟ independence thereby affecting their efficiency. Whereas the president of the
Uganda Judicial Officers Association commended government for the timely
enhancement of salaries of judicial officers during the 2007/2008 financial year, he
condemned the discriminatory manner in which it was done90.
He noted that the
decision to enhance the salaries of other cadre of judicial officers apart from the 112
Grade II magistrates in the system because the latter are being phased out, although
these officers perform similar judicial duties, amounts to discrimination. This created
disharmony,
discontent,
suspicion,
and
apprehension
which
had
negative
consequences on the efficient and effective delivery of judicial service in the country. He
called for the enhancement of salaries of the Judiciary support staff in order to fight
against corruption.
3.1.12 Computerization and its Challenges
It is reported that there are about 16,000 remand prisoners in Uganda, partly because
the courts use an old system of writing down advocates‟ arguments and other court
proceedings meaning that cases cannot be disposed of quickly. 91
The deputy Chief Justice has reported that the lack of proper recording facilities is partly
to blame for the misreporting of court proceedings and that soon the Judiciary was to
install electronic recording equipment in all the courts countrywide92.
90
th
Araali , K, M. (2008 February 15 ). Speech by Persistent of the Uganda Judicial Officers Association at the
opening of the new law year. Kampala.
91
th
Landu, M.I. (2009 November 9 ) Lack of recording equipment affecting Court scribes. Daily Monitor, 4.
92
Ibid.
92
Indeed the urgency of the matter was given support by the President who during the
inauguration of the commercial court in Kampala promised to purchase electronic
equipment for the courts so that judges do not have to write as they listen to cases.93
This primitive and archaic method of recording court proceeding therefore is a cause of
case backlog94
However, experience at the Uganda Commercial Court where recording was piloted
shows that the analogue equipment in use there is rather slow due to the substantial
amount of time taken by transcribers to get out manuscripts95.
The Judiciary has developed a database system called Court Case Administration
System (CCAS) to generate court case statistics which allows for greater transparency
and accountability96 The Judiciary has also introduced management information system
(MIS) to support the decision making function that ensures the most efficient use of
resources to achieve timely administration, planning, budgeting, monitoring and
evaluation at management level97.
93
Mugisha A. (2009 May 15) Museveni wants Corruption Suspects Denied bail. The New Vision, 1.
Ibid.
95
Justice James Ogoola in an interview reported that on average it takes six months to transcribe. That the
Secretaries could not understand the legal jargon and although members of the Bar had offered to assist, there
was a risk of giving evidence to third parties. The system was too costly and staff usually sought greener pastures
after training. He called on Uganda to emulate Zambia, which has a well developed recording system. This was
during an annual review workshop for grade one Magistrate’s in charge stations at the judicial studies Nakawa
Kampala 1-3 October 2008).
96
Alividza, J. (2009 April). Using ICT to Drive the Judiciary Strategic Mission. Journal of Uganda Judicial Officers
Association 15, 77-97
97
Ibid.
94
93
However, the Judiciary management has never considered it as one of the crucial
components requiring systematic budget allocation, despite the increasing dependence
on automation systems in the day to day activities of judicial work.
98
This may explain why despite huge donor investments in the Judiciary Information
Technology projects the expected outcomes have not been forthcoming.
Today when one visits courts around the country, it is not uncommon to find printers out
of toner, unserviced computer equipment, outdated programmes and untrained staff in
IT99.This explains why despite advancement in automation systems, the Judiciary
employees still greatly depend on manual systems, a thing that is causing the Judiciary
double expenses and a waste of scarce resources.
Sixty seven percent of the respondents employed by the Judiciary said they were either
computer illiterate or did not have adequate training in computer technology100
In addition the Judiciary and JLOS institutions like the prisons department have not
explored the possibility of employing teleconferencing in the administration of justice.
While in Denmark the researcher witnessed trial of cases using teleconferencing
technology without the burden and expense of transporting suspects to courtrooms101
98
Ibid page 92
Ibid
100
Supra note 1
101
In 2005 the researcher undertook a one month course that is the law and justice course. Sponsored by the
Danish Development Agency (DANIDA)
99
94
3.2 Procedural Causes of Case Backlog
3.2.1 Bad Legislation and Complicated Rules of Procedure
There is no doubt that inappropriate or obsolete and complicated rules of procedure
inevitably contribute to case backlog.
A number of laws Uganda adopted from the United Kingdom at the onset of
independence though obsolete are still in use because they have not yet been repealed
or reviewed.102
For instance some respondents argued that the 48 hour timeframe a suspect is
supposed to remain in police custody before arraignment in court was not adequate to
complete investigations effectively103. Consequently, the courts are bogged by non
deserving cases. Other respondents were of the view that committal proceedings of
suspects charged with certain offences to the High Court were not necessary because
professional magistrates could handle those cases.104
Some unrepresented litigating parties interviewed were of the view that complicated
rules of procedure employed in the courts which were not translated into local
languages made it difficult for them to purse their cases to the end. Abandoned cases
in the court system lead to a creation of case backlog. Seventy eight percent of the
respondents considered the current legal system in Uganda to be complicated.
102
For instance the Administration of estates (small estates) special Provisions Act Cap 156 S.2 Magistrates Could
deal with estates whose monetary value did not exceed one hundred thousand shillings. Grade One Magistrate can
now deal with estates valued at 20 million shillings and a Chief Magistrate 50 million shillings see the Magistrates
Courts Amendment Act 2009 Cap 16. Before the Amendment, much of backlog in this areas related to estates
handled by Magistrates beyond their pecuniary Jurisdiction.
103
Ibid note 1, also see article 23 of the 1995 Constitution.
104
See the Magistrate’s Courts Act Cap 16.
95
It is noted that one of the interesting reasons leading to backlog is legislation105. The
new Uganda constitution expanded the rights of people including the kind of litigants
commonly known as public interest litigating parties. Although the promulgation of the
constitution was timely given that it increased access to courts, the State did not
foresee the litigal floodgates burst open to prepare for the same. The cases that went to
courts unfettered created such backlog that one could say that “unfettered access had
produced no access” since what entered the courts remained undisposed. Together
with the above was the law on administration of estates which almost barred the
magistracy from issuing Letters of Administration,106 seventy eight percent of the
respondents considered the current legal system to be complicated.107
3.2.2 Case Management and its Challenges
Case flow management connotes the supervision or management of the time and
events involved in the movement of a case though the court system from the point of
initiation to disposal regardless of what type of disposal.108
The same process has also been referred to as case tracking, case control, court
management or court control in some jurisdictions.109
According to Stella Arach Amoko110 research in the US, Canada and Australia has
shown time and again that active case flow management works.
105
Supra note 81
The Administration of Estates (Small Estates). Special Provision Act Cap 156 S. 2 Magistrates could deal with
Estates whose monetary value did not exceed one hundred thousand shillings. A Grade One Magistrate can now
deal with estates valued at 20 million shillings and a Chief Magistrate 50 million shillings see the Magistrates
Courts Amendment Act 2009 Cap 16.
107
Ibid note 1
108
Towards an Efficient and Effective Commercial Justice System. Where there is a will there is a way. A paper by
Hon Justice Arach Amoko presented to the East African Judges and Magistrates Conference in Nairobi Kenya-2009
109
Mugisha , J. M (2002). Integrity in the Court Process. A paper presented at a workshop on Integrity to judicial
officers. Kampala
106
96
The system once implemented ensures equal treatment of all litigants by the court,
timely disposal constant with the circumstances of the individual case, enhancement of
the quality of the litigation process, let alone building public confidence in the court
system.
3.2.3 The Situation before the Lord Wolf Reforms in Uganda
According to a senior judicial officer,111 for a very long time judicial staff and legal
practitioners were content to use the Civil Procedure Rules as handmaidens of justice.
Many of them had crammed those rules, and certain court precedents by heart. One
was considered a good lawyer if they knew the rule by heart and a bad lawyer if the
reverse was true.
Cases continued to delay in the courts and so did judgments and rulings. Trials
continued to be by ambush, as legal practitioners pulled tricks on their learned friends to
win cases by hook or crook. Adjournments came to be the order of the day. Judges and
magistrates who should have been in the driving seat sat back and watched as legal
practitioners took charge of the judicial process. It was like someone watching an
ancient Roman arena as slaves fought beasts. One trial judge observed and regretted
that judges under the old Civil Procedure Rules regime felt very frustrated that the
initiative was left in the hands of the parties and it was difficult for the court to exercise
any kind of grip on what was happening112.
110
Supra note 106 She is a justice of court of Appeal of Uganda .
Gadenya ,W. P. (2008 April) Case Management Journal of Uganda Judicial Officers’ Association Vol. 14, 38-74
112
Ibid
111
97
In the registries files gathered dust because either the judicial staff were not ready to
hear the cases or the parties were not enthusiastic about setting down the cases for
hearing.
Indeed it was common for litigants to file cases to stop an intending litigant from
pursuing his/her rights, because many Ugandans fear the courts. In land matters a
lawyer filed a case today and got a perpetual injunction and sat back because he had
what his client wanted.
On the side of state attorneys they sat back too either because they were not facilitated
to travel or were simply not prepared to defend or prosecute their cases. Witness on
their part were difficult to come by in court because either their lawyers did not summon
them or they knew that the court would not punish them if they failed to keep court
appointments. Judges on their part either did not come to court in time, never reported
for duty or they were simply too lazy to attend to their cases. Some surprisingly would
look forward to applications for adjournments. Lawyers felt that the system had left too
much scope for the defendants to manipulate cases especially where the plaintiff had
an inexperienced lawyer.
Indeed his lordship Wilson Tsekoko JSC113 identified some major weakness in the
system as the failure by some judicial officers and advocates to effectively apply the
standard guidelines like the Civil Procedure Amendment Rules; negligence and failure
of judicial officers to supervise subordinate staff so as to improve on case management,
absence of a uniform system in the conduct of scheduling conferences; poor time
management and lack of training, proper facilitation and poor work methods.
113
th
Centre for Basic Research (2002 December 15 , Recommendations on Judicial Integrity. Kampala Author
98
There was simply no case management as cases were being handled in court like a
ship without a captain.
A case moved if the parties wanted it, if the parties did not then they made the case to
sleep or caused chronic delays in disposing of the case.
The adversarial system that we adopted from the common law tradition only helped to
compound the problem further. No one, let alone lawyers and judicial officers, was
willing to discuss the case or attempt alternative dispute resolution. If a litigant saw a
lawyer discuss with a lawyer of the opposite party, then he would immediately suspect
that the adversary had compromised his lawyer. It is therefore not surprising that the
President made the following remarks about justice in Uganda114
“we are opposed to a situation where justice is a preserve for (of) the
privileged few and where it is sold like a commodity to the highest bidder.
Justice is not for sale. The moment you make justice for sale then it is not
justice. Justice must be made easily accessible for every Ugandan that
requires it; this principle is a cornerstone of our judicial policy, justice for all
not for just a few. There is an outcry about delays in hearing and completion
of cases. I am informed that Hon. Kitariko, our minister of Agriculture is still
waiting for his judgment in respect of an election petition he filed in 1981. I
think there have been four or five governments since he filed the case”.
3.2.4 Traditional Approaches to case disposal in Common Law Jurisdictions
Common approaches traditionally taken by common law countries like Uganda which
result in case backlog have been categorized into 3 dimensions.115
Non-management
This is where the judges define the narrowest role for themselves. It is also known as
the traditional method described by Lord Woolf, where the conduct, pace and extent of
114
115
Proceedings of a seminar on the administration of justice in Uganda held in 1987, Supra note 111.
Supra note 108, page 7-9.
99
litigation are left almost completely to the parties with no effective control over their
worst excesses.
This is where the judge will be in the courtroom at the designated time or even late. If
the lawyers who asked to appear at that time are ready to proceed, the case will go
forward. If they prefer to adjourn to a future date, they may do so. This type of non
management is controlled by lawyers.
Non management can then easily occur not only through under booking, but also
thought overbooking. In the former, court officials schedule too few cases and if a case
fails to take off the judge is left idle for the rest of the day, while in the latter the cases
are overbooked in most instances after the clerk has taken a bribe from the anxious
litigant in order to get onto the cause list of that week.
As a result the judge faces a crowded courtroom and feels compelled to spend time
readjusting the times for counsel and the parties.
The judge readily accepts adjournment requests often sending litigants and advocates
home without hearing their cases.
Calendar Management
At this stage courts normally attempt to control the flow of cases deemed ready for trial
by listing them on given dates or putting them on a trailing calendar. At this stage the
lawyers still retain full control over all matters from filing up to the point of readiness.
This stage is mainly used in criminal matters where the prosecution brings to court only
those cases that it deems ready for trial. The expressions “investigations are
100
incomplete, “no police file”, “case adjourned” are quite common on criminal court files,
which explains the problem of case backlog in that area.
Calendar management works where a lawyer is keen to have the case disposed of but
not where a lawyer is engaged in delaying tactics, as is often the case. In practice
judges quite often face great difficulty at this stage due to lack of information about
pending cases. This in turn produces a recurrent situation when courts do not dispose
of cases as scheduled.
As this continues to happen over time lawyers are less likely to be prepared and the
number of “necessary” adjournments is likely to increase. In turn court backlogs
increase leading to an even larger number of cases that cannot be handled until the
situation resembles the model in stage one.
Case flow management
This is beyond the first two stages. Rather than dividing the flow of cases in half up to
the stage of readiness and leaving the first half to the control of lawyers and the
remainder to judges, stage three sees the flow of cases as part of a systematic process
that must be monitored from the point when the matter was initiated up through to
disposal. Rather than seeing the litigation process as one in which the Bench and the
Bar are adversaries, case flow management requires the coordinated joint effort of
judges, lawyers and the court administrative personnel.
Accurate information must be developed and must be shared to enhance the
predictability of the process to ensure that scheduled events can take place as
101
scheduled, to the mutual benefit of the court and the clientele. Judicial leadership is
essential but effective only when it is used to promote coordination and sharing of
information necessary to manage the flow of the cases.
To that end, case flow management policies must be developed in consultation with
lawyers and court officials whose co-operation is essential if they are to succeed.
The researcher observed proceedings in the courts of Masaka, Fort-Portal, Kyenjojo
and Makindye during the research period. It was clear that Magistrates still faced case
management challenges. There was a tendency to fix many cases on a given day, and
the Magistrates willingly granted adjournments in a bid to refix them. Eighty six percent
of the respondent litigants did not think that the courts were managing their cases well.
3.2.5
Lack of Quick Dispute Resolution Mechanisms
Although the Judiciary has embraced Alterative Dispute Resolution (ADR) in handling of
civil cases, 78% of the respondents thought that the lack of other mechanisms to
resolve disputes quickly like plea bargaining, small claims procedures, instant fines
schemes, also leads to case backlog.
3.2.6 Plea Bargaining
In the recent past one of the leading dailies in Uganda had this as a subtitle: “Stubborn”
Jinja suspects anger Justice Kabiito” in relation to a High court judge who was
disappointed that in a new criminal session with suspects forming a backlog of cases as
102
far as 2003, only one out of the 37 suspected capital offenders had pleaded guilty 116.
The judge was quoted telling the suspects:
“you should avoid wasting the limited time we have; if you know that you
committed the offence, please tell court without any hesitation instead of
waiting for court to establish the truth , you know your selves. This is going to
squander our little time yet some of you will be proved guilty”.
The Judiciary publicist Mr. Omar Elias Kisawuzi was quoted on the same day in the very
paper saying;
“the judge would have acted in line with the proposed plea bargaining
scheme soon to be fully implemented in the court, system. We expect people
to plead guilty. If you have not wasted court’s time, the courts are
lenient….plea bargaining must be done by other people because it may be
unjust for a judicial officer to plead with a suspect;”
From the above it is clear that some pro-active judicial officers in reality do employ pleabargaining although the practice is not expressly provided for by legislation. Indeed
speaking at a stakeholders‟ roundtable organized by Uganda Human Rights
Commission (UHRC) to mark the rights of detainees week, Justice James Ogoola 117
was quoted as saying that plea bargaining does not only ensure that people spend less
time on remand, it also saves tax payers‟ money spent on long investigations and
facilitating witnesses. He noted that in a recent session in Lira District he had cleared
200 cases in about 2 weeks and at a cost of about 2million shillings and yet in a
traditional trial, only 30 cases can be disposed of in a month by one judge at a cost of
about 15 million shillings. Indeed the judge blamed the technicalities in the adversarial
system of litigation Uganda adopted from the United Kingdom that has led to delayed
116
7.
117
st
Kirunda, A. & Gulumaire. A. (2009 October 21 ) “Stubborn” Jinja Suspects Anger Justice Kabito. Daily Monitor,
th
Amoru, P. (2008 October 13 ) Jails overcrowded says Justice Ogoola. Daily Monitor, 2.
103
justice and prison congestion118 The 2008/2009 ministerial statement on the Judiciary
reported that 27411 inmates had spent from one to several years on remand. The
Commissioner General of Prisons Dr. Johnson Byabasaija confirmed that most people
in prison had spent years incarcerated without being produced in court119. Having seen
the benefits of plea-bargaining let us try to understand what it really entails.
Plea bargaining is an agreement in criminal cases where by the prosecution offers the
defendant (accused) the opportunity to plead guilty usually to a lesser charge with a
recommendation of a lighter than the maximum sentence120. Plea bargaining gives the
criminal defendant the opportunity to avoid sitting through a trial risking conviction on
the original more serious charge. For example Wikipedia reveals that in the United
States of America a criminal defendant charged with a felony of theft the conviction of
which would require imprisonment in state prison may be offered an opportunity to
plead guilty to a misdemenour theft charge which may not carry jail time. In cases such
as car accidents where there is potential for civil liability the defendant may agree to
plead “no contest” or “guilty with a civil reservation” which essentially is a guilty plea
without admitting civil liability.
In Santobello V New York121 the US Supreme Court recognized plea bargaining as an
essential part of the criminal justice system.
In People V Glendenning122 it was held that plea bargaining provides relief against court
congestion, alleviates the uncertainties of a trial, and has information gathering value.
118
Ibid
rd
Mugerwa, Y. (2009 February 3 ) 16,000 Remanded for over three years. Daily Monitor, 5.
120
th
Plea Bargaining. (n.d) Retrieved March 15 , 2010, from http://www.en.wikipedia.org/wiki/pleabargaining
121
Santabello V New York 404 US 257-261, 1971.
119
104
However, some scholars have declared the practice as being unconstitutional because
it takes away a persons‟ right to a trial by jury or court
123
. Outside the US the practice
has been criticized on grounds that its close relation with threats and coercion
potentially endangers the correct legal outcome124
There are three types of plea bargaining two of which are most commonly used; charge
bargaining is used where a defendant pleads guilty to a less serious criminal offence
than the one originally imposed; count bargaining is used when the offender pleads
guilty to a fewer number of charges while sentence bargaining is used where the
offender pleads guilty well knowing what sentence will be imposed125.
In Uganda there is no doubt that lack of provision for plea-bargaining in the criminal
justice system has led to backlog of such cases.
3.2.7 Instant Justice Mechanisms
In the United Kingdom the Government was toeing a policy where a million criminals a
year could avoid going to court under plans for instance Justice”.126
The Solicitor General then Mr. Mike Obrien explained that offenders who admitted their
guilt to petty offences like criminal damage, shop lifting and theft, lesser drug offences
and minor traffic offences would be handed punishments by police including fines and
community punishments. All serious and violent crimes would still be dealt with in court
and anyone could still opt for a court appearance if they preferred. Although critics
122
People V Glendenning 127 MISC 2d 880-882, 1985
th
Hugo Black: (2003) (n.d) challenges of Plea Bargaining. Retrieved on June 14 2010 from
htt://www.eats.org/puts/regulations/regu26n3/v26n3-7regulationmagazine
124
th
The Times online. November 28 2007
125
Outlaw news Feb. 16 2007
126
th
Mathew Hickley (n.d). In start fines could take 1 million cases out of court. retrieved on April 8 2011, from
daily mail on line http://www.dailymonitor.co.uk/news/article37423/instantfines
123
105
argued that victims would be denied the satisfaction of a court hearing, let alone the
extra police bureaucracy, a lot of money spent during prosecution could be saved.
Uganda has adopted a mechanism for instant justice but only under the traffic express
penalty scheme.127 On average the scheme generates about four billion shillings per
year128 . Spreading the mechanism for instant justice to cover other petty offences in
Uganda could reduce the work load of cases in the courts and this could therefore
have a positive effect on case backlog.
3.2.8 Lack of a Small Claims Procedure in Uganda
During a workshop in Kampala to examine draft procedures and guidelines for the
establishment of a new court, the Chief Justice reportedly announced the
commencement of informal courts within the Judiciary as early as January 2009 129. He
emphasized that the process would be informal, simple, cost friendly and expeditious
with litigants spending a day or less to have their matters not exceeding ten million
shillings solved. To further justify the establishment of the said procedure, Geoffrey
Kiryabwire led other consultants to conduct a study which also referred to earlier studies
recommending the same.130 The follow up survey on commercial justice reports the
ratio of judges (High Court) to business enterprises at 3:100000131, suggesting a limited
access for the business community from whom the majority of small claims come. The
127
The Traffic and Road Safety Act 1998 (Express Penalty Regulations)
Interview with Mr. Kasolo Anthony Inspector of Police Acting Officer in Charge traffic Masaka Police Station on
24-4-11
129
Amoru , P. (2008 Novemebr 3) Judiciary to open informal courts, Daily Monitor, 5.
130
Kiryabwire, G. Muduwa, P. and Nakachwa, F. D. (2008 November). Final Report on the establishment of a small
claims procedure in Uganda, Kampala, Author Geoffrey Kiryabwire is High court judge in charge of the
Commercial court of Uganda
131
Ibid
128
106
survey puts the ratio of access to chief magistrate‟s courts at 3:100,000132. By the end
of 2003 there were 80 Magistrates Grade One and the survey puts their ratio of
accessibility at 8:100,000133. The ratio of accessibility of Magistrates Grade Two was
put at 33:100,000134, and Local Council Courts at 417:100,000135. The survey showed
that Local Council Courts and Magistrates Courts are the most accessible for both the
informal and formal sectors (i.e. 43% and 59% respectively). The same surveys show
78% in the informal sector and 64% in the formal perceive legal services as too
expensive136. Only about 13% of the informal sector and 40% of the formal sector use
the services of lawyers137. These statistics depict a need and a level of demand for a
small claims procedure, which is simple, efficient and cost friendly. Several other
studies of the state of access to justice in Uganda have revealed public dissatisfaction
with the civil justice system with a demand for the courts to become more accessible in
terms of the principal elements of access to justice, procedure, cost, speed, certainty,
fairness, ease of enforcement of judgments and generally in responsiveness to the
needs of the people, especially the ordinary people. Those are the globally agreed
components of an accessible justice system. Justice Kiryabwire team then came up with
a draft bill for small claims.
138
There is no doubt that this small claim procedure which provides for filing of a claim in
court on one form, with a brief record of proceedings followed by the judgment on one
132
Ibid
Ibid
134
Ibid
135
Ibid
136
Ibid
137
Ibid
138
Ibid
133
107
form within 14 days and minimal costs will go along way in the fight against case
backlog.139 The lack of this procedure which is practiced in countries like the United
States of America, Canada, South Africa, United Kingdom leads to slow disposal of
cases and backlog as a result.
3.2.9 The Jurisdiction Question in the Judiciary
“This is a capital offence only triable and bailable by the High Court. I have
no powers to hear this case. In this court, you only come for mention…,”
Chief Magistrate Joyce Kavuma of Makindye Court was quoted while declining to hear
a plea from three suspects who allegedly kidnapped a certain grandson of a city
businessman in Kampala140. This is what goes on in Magistrate‟s Courts all over the
country to the disappointment of suspects accused of capital offences appearing there,
and the public who expect quick justice.
The 1995 constitution and other enabling laws 141 confer different jurisdictions for the
different categories of judicial officers. While the High Court enjoys unlimited original
jurisdiction in all cases, the Lower Bench is relegated to trying petty offences and
pretrial matters. The recent enhancement in jurisdictions has seen the Chief Magistrates
Courts trying simple defilement and civil cases whose pecuniary jurisdiction does not
exceed 50 million Uganda shillings142 up from five million, while Magistrates Grade I
139
See Sections S.7, 14, 20, 21, 23, 26, 27 and 31 of the draft bill for a small claims procedure rules. Supra note 130.
Okanya, A. (2010 August 11). Court Rejects Plea of Kidnap Suspects. The New Vision, 7.
141
Articles 132, 137, 139 section 4, 10, 14 Judicature Act Section, 161, 207 of the Magistrates Court Act Cap 16, 51
trial on Indictment Act Cap 23)
142
S. 161, 207 MCA Cap 16
140
108
now can try cases of attempted defilement and civil matters whose pecuniary
jurisdiction does not exceed 20 million shillings up from 2 million143.
It must be noted that those cases were previously a preserve of the High Court.
Magistrates Grade II largely try civil matters whose pecuniary jurisdiction does not
exceed 500000 Uganda shillings and other simple criminal offences mainly involving
juvenile offenders144.
Registrars apart from their administrative roles act as secretaries to judges. They
handle preliminary matters like miscellaneous applications and post trial matters like
delivering judge‟s judgments and taxing bills of costs145
Currently the Judiciary is striving to professionalize the Bench by recruiting young
professional advocates as Magistrates Grade I who are replacing Grade II Magistrates
(non advocates). However while a newly enrolled advocate can effectively handle all
cases in all courts including the Supreme Court,146 their colleagues recruited on the
Lower Bench are limited by jurisdiction.
Seventy seven percent of the respondents could not distinguish between the roles of a
judge and a magistrate147. They wanted magistrates to try all case regardless of
whether they were capital offences or not. They felt it as unnecessary and unjust to
143
Ibid
Ibid
145
Civil Procedure Rules Cap 70-1
146
Advocates Act Cap 267, S. 81
147
Ibid Note 1
144
109
commit capital offenders to the High Court where suspects spend long periods on
remand before trial148
Seventy nine percent of the respondents who were judicial officers from the Lower
Bench felt they could effectively handle cases reserved for judges, because they all had
the same basic qualifications which is a degree in law and diploma in legal practice. In
adjudicating disputes judges and magistrates use the same primary pieces of legislation
which are the Evidence Act, Penal Code Act and the Civil Procedure Act and Rules.
Other laws like the Judicature Act, Trial on Indictments Act, Magistrates Courts Act,
Criminal Procedure Code Act ,were merely procedural.
To further fortify the above findings, statistics from Fortportal court indicate that between
January 2009-October 2009, of the 116 criminal cases that were transferred from the
High court to the Magistrate‟s courts following the enhancement in jurisdiction in the
lower courts, 67 were disposed of and 49 remained pending. Sixty one civil cases were
transferred downwards. Of those 29 were disposed of in that period with 32 pending.
Eighteen were disposed of by way of ADR149
Seventy seven percent of these judicial officers felt redundant and underemployed.
There is no doubt that the underutilization of judicial officers contributes to case
backlog. Eighty one percent of the judicial officers felt that stress resulting from heavy
work load, little pay and long working hours affected their output. Seventy one of the
148
Case statistics from Katojo Prison in Fortportal Kabarole District, and Luzira Prison in Kampala District where
analysed to arrive at this conclusion. It takes an average of not less than 5 five years to commence trial of
committed cases to the High Court. This was between January 2009- January 2010.
149
The researcher made a physical counting of the cases that moved from the High Court Division of Fort Portal to
the Chief Magistrates Courts between January 2009 to October 2009.
110
respondents felt that younger persons aged between 35 years to 55 years could
perform better as judges.
3.3
Behavioural Causes of Case backlog
3.3.1 Judicial Integrity
The Uganda Code of Judicial Conduct in principle number 3 enjoins every judicial officer
to observe integrity during their day to day activities 150. Yet the Judiciary just like any
other government department in the country has not gone without being accused of
unethical practices. Indeed the just concluded Third Integrity survey Report by the
Inspector General of Government has ranked the Judiciary as the second most corrupt
institution of government after the police151
Referring to corruption in the Judiciary, while inaugurating the new commercial court in
Kampala, the President said that judicial officers should not only be independent but
also upright and this is why he pushed for their higher salaries. He was further quoted:
“if you have independent judges and they are corrupt, that is a recipe for
disaster….separation of powers is on the understanding that everyone is
doing his work correctly.”152
The former Inspector General of Government at the 11th Annual Judges Conference at
Entebbe revealed that she knew corrupt judges and magistrates although she fell short
of revealing their identities in order not to destroy their character153. In response the
Principal Judge and the Deputy Chief Justice reported that the Judiciary was more than
ready to deal with any cases of corruption among its ranks, but, that perceptions do not
150
Uganda Code of Judicial Conduct
rd
Inspectorate of Government (2008 October) Final report. The 3 National Integrity Survey (NIS 111). Kampala.
Author.
152
Magisha. A. (2009 May 15). Museveni wants corruption suspects denied bail. The New Vision, 1.
153
Mugisha , A & Nsamba, H. (2009 January 16) I know Corrupt Judges, says IGG. The New Vision, 1.
151
111
provide evidence on which to act.
At an annual forum while meeting the Legal
Parliamentary Committee the Deputy Chief Justice regretted the continued maligning of
the Judiciary on radio over corruption, insisting that it was not true that mob justice had
risen because of loss of trust in the Judiciary.154
At the same event the Chief Justice admitted that while corruption was a problem in the
Judiciary, he wanted facts in order to fight it and not perceptions. On the subject, the
Secretary of the Judicial Service Commission reported that delayed judgments
especially in civil suits155 were mainly due to the rampant corruption in the Judiciary156.
He further noted that following several complaints to the Commission by the public,
several magistrates were dismissed, severely reprimanded or retired for misconduct.
Maria Madraa Dropia who was acting Assistant registrar was retired in public interest,
while Okiria Okua was dismissed for questionable academic papers. Agnes Nkonge
was reprimanded while those severely reprimanded were Moses Baligeya, Robert
Imalinyat, Joshua Maruk, Grace Balituma and Charles Sserubuga. Their offences
ranged from absconding from duty, delayed judgments or failure to make judgments,
drunkenness, late coming and abuse of the code of conduct157. In yet another
development magistrate Ndifuna of Mbarara was convicted by the Anticorruption court
and sentenced to 2 years imprisonment after receiving a bribe of 200,000/=,158 while
three other magistrates in the same Magisterial area that is Mr. Baker Rwatooro (Chief
Magistrate) Mr. Moses Baligeya (Grade 2 Isingiro) and Mr. Mathew Tumwijukye (Grade
154
Masereka. J. (2009 August 19). Judiciary Decries Under funding. The New Vision, 4.
Some dating back to 1999, Mr. Muhanguzi Kashaka reported.
156
Maseruka, J. (2009 March 25). Delayed Judgments to be probed-officer. The New Vision 4.
157
Mugisha, A. (2009 January 16). Judge Choudry Asked to defend himself. The New vision, 3.
158
Anyoli, E. (2009 November 17) Mbarara Magistrate Jailed for taking Bribe. The New Vision, 1.
155
112
1) were sent on forced leave by the Chief Registrar Ms Flavia Anglin on October 19
following a dossier detailing their mishandling of files and corruption from a group of 18
lawyers in the South Western region of Uganda159
In a recent interview by the Daily Monitor Newspaper justice Stella Arach Amoko in
Arua,160was of the view that widespread corruption scandals by judges and magistrates
and inappropriate political interference in the judicial system are denying people their
right to “a fair and impartial trial, and the lower courts were the most affected. Many
magistrates receive bribes from litigants and charge high fees in order to get rich quickly
because corruption has been entrenched in the Judiciary. She added that other means
of judicial corruption are in the form of judges who are bribed to settle cases out of court
in favour of a particular party, and clerks who are bribed to direct cases to a favourable
judge or magistrate.
The judge added that the continuous erosion of values in public life and the all
pervasive corruption have made many honest nationalistic citizens wonder whether
there is any hope for improvement in the quality of governance in the country.
In addition according to internal sources in the Judiciary, some of the recently appointed
judges are not without blemish.161. Some nominees were reported to have been passing
gifts (bribes) to magistrates from corrupt litigants in order to influence cases in their
favour. Another was reportedly reprimanded by a senior judge for inappropriately
159
Masige, J & Tumushabe, A. (2009 December 2) Crisis at Mbarara Magistrate’s Court. Daily Monitor, 1.
Okello , W. F. (2008 October 22) Judicial Corruption undermines legal systems, says judge. Daily Monitor, 6.
161
th
th
Ssemujju. I. N & Muteekani K. P.(2008 February 28 - March 5 ) Judiciary tamed? The Weekly Observer 3
160
113
soliciting sexual favours from a female judge who is married. When the senior judge
asked why he was pestering the judge for sex, the judge replied;
“i did not approach her as a judge but as a woman.”
For the sake of the Judiciary‟s reputation the matter was resolved administratively and
he was asked to apologize. Another nominee was a few years ago caught in the act of
marital impropriety with a senior colleague and was forced to jump out of the window in
Bugolobi flats to flee for his dear life. Another known to be married is alleged to be
sleeping with bar maids in Kampala suburbs. In the recent past a senior judicial officer
was accused of raping a secretary in the Chief Justices chambers while another judge
is being investigated by the Judicial Service Commission for financial impropriety while
in the United Kingdom where he originally run a law firm162
According to Dr. Nsaba Butuuro,163 the courts have trouble convicting corrupt
bureaucrats because colleagues help destroy incriminating evidence in a “scratch my
back, I will scratch yours” syndicate.
A senior journalist164has observed that one would ordinarily put their trust in the judicial
system. Yet the Judiciary is only in competition with police in perpetrating corruption.
Some magistrates have been known to take bribes to muzzle cases and deliver
favourable judgments for a price. Others have been accused of forging court
proceedings (for trials that never took place) leading to conviction of innocent persons at
the behest of influential “clients” who pay handsomely for the service. He then
162
163
164
Ibid.
Butagira, T. (2009 November 18). Report: Uganda More Corrupt. Daily Monitor, 4.
Nnyago , K. O. (2008 September 12) Corruption is the biggest threat to Democracy in Uganda. Daily Monitor,
10.
114
wondered whether it was not yet time to launch a commission of inquiry into the
Judiciary just as there was one for the police. It must be noted that the Judiciary is not in
isolation in terms of corruption. According to Mr. Labelle Huguette Chairperson of
Transparency International,165 no region of the world is resistant to the threat of
corruption. The 2009 corruption perception index (CPI), a measure of citizens opinion of
public sector corruption shows Uganda slipping from position number 126 th in 2008 to
130th out of 180 countries surveyed world wide. According to the head of the European
Union Vincent De Visscher, Uganda is losing 500 million dollars annually through
corruption166
A renown constitutional law professor167 is of the view that the primary task of the
Judiciary is to determine the legality of the different kinds of behaviour in society.
However a Judiciary whose reputation is undermined or whose tainted character is not
quickly reformed cannot administer justice that is acceptable to the population.
Eighty nine percent of the respondents rated the Judiciary as a corrupt institution168. At
the courts the respondents rated court clerks as the most 1corrupt at 30% followed by
magistrates and court bailiffs at 16%, State Attorney/Prosecutors at 15%, the public at
14%, police court orderlies at 10%, judges at 08%, advocates at
04%. Least was
prisons at 03%. All the respondents agreed that a corrupt judicial system inevitably
leads to delayed justice and therefore case backlog.
165
th
Daily Monitor Newspaper Tuesday November 24/2009 at page 19 and the same paper of 18 November 2009
at page 4 Reported by Tabu Butagira.
166
Supra note 163
167
Kanyeihamba G.W. (March 2007) Independence of the Judiciary- the Journal of Uganda Judicial Officers
Association Vol. 13 at page 14-15 Supra.
168
Supra note 1.
115
3.3.2
Reluctance to Change
David Wangutusi169 notes that its not uncommon for judicial officers to oppose reforms.
It is known that some judges lack enthusiasm for actually implementing reforms. Thus
when a recording system was installed in one of the courts and worked very well under
one judicial officer, it came to a sudden halt when a different one was taken to the same
station although staff that used to operate the equipment remained at the station under
the judge.
Computers and case management systems in some jurisdictions are
frowned at. Management information systems that would promote transparency are
frowned at. They all backfire because they are viewed as distorting the “existing
misgoverned regime and vested interests”. The reason is simple. The feared
transparency will expose inefficiency, past inaccuracies and in some jurisdictions
unsupportable financial faults.
3.3.3 Courage Versus Intimidation
The judge170 further notes that one of the biggest tests of the Judiciary arises when the
court has to deal with cases where government officials have an interest. The press at
times begins to predict the outcome while the public and all the parties watch with keen
interest.
The question that arises is whether the Judiciary is independent enough to effectively
administer justice. The judges may be analyzed and their status and competence
questioned. Thus during the 2006 presidential elections in Uganda, one of the leading
papers in the press lined up the justices of the Supreme Court and detailed their
169
Wangutusi, D. K. (2009 April). The role of the Judiciary in Social Economic Development. Journal of Uganda
Judicial Officers Association. Kampala Vol. 15, 31-40
170
Ibid
116
backgrounds, some political inclinations and went as far as reporting who was likely to
decide for or against the petition.. This was quite intimidating and if one was not a firm
judicial officer, he or she was bound to be derailed.
3.3.4
Behavioural Independence
David Wangutusi171 further notes that behaviour independence contributes to judicial
efficiency. The behaviour of judges in courts is not necessarily imposed by legislation,
but rather the education values and prestige that one acquires in a judicial career. The
education career together with his or her personal bearing determines the behaviour of
many a judge. They will determine his ability to be impartial, to resist political pressure,
resist temptation to corruption and direct his output. These are normally propped up by
his economic security, education, natural instincts and career experience. Provision for
permanency in office contributes to the judge‟s independence. It is noted that nothing
can contribute so much to firmness and independence as permanency in office and a
power over man‟s subsistence amounts to a power over his will172.
A judge must also in his personal capacity conduct his work to deserve permanency.
Where a Judiciary for example favours regimes in power, it should not be surprised to
find some of its judges tumbling down with a change of regime. A Judiciary that is
identified with the ruling body say by siding with electoral fraud will have public opinion
favour its ouster when change occurs. For instance in Argentina between the 1940s to
1994, the Supreme Court has been replaced six times and the public appeared to be in
171
Ibid
th
Alexendar Hamilton. The Complete Federalist Papers (1987-1800) , retrieved 19 /11/2011 from
http://www.let.nl/usa/thefederalistpaper
172
117
favour of ouster because the courts tended to side with certain parties involved in
electoral fraud.
3.3.5
Late Coming and Absenteeism
After receiving several complaints from the public, the Chief Justice of Uganda has
noted with great concern the persistent breaches of conduct by judicial officers.173
Judicial officers report late for duty and in some cases as late as 11:00am, read
newspapers and then start court at 11:30am instead of 9:00am. They then retire by
12:00 noon. The Chief justice further notes that most judicial officers are part time
residents at their stations of work and abscond for several days without the knowledge
and permission of their supervisors. Many judicial officers do not work on Mondays and
Fridays urging that Friday is for travelling to their families for the weekend while Monday
is for travelling to their duty stations. Some judicial officers attend to personal
commitments during working hours while others delay to write and deliver judgments
sometimes up to six years or more. These findings are given credence by a prominent
member of the Bar in Uganda174 when he notes that many judicial officers are simply
not prepared to attend to court business. As a result, they are ill prepared, causelist
many cases on a given day, write incompetent judgments and delay to deliver them.
The end result is inefficiency and case backlog.
3.3.6
Causes of Case back log by the Bar and other JLOS Stakeholders
The researcher through his nine years of experience on the Bench has noticed the
following conduct unbecoming of advocates, which is contrary to the Advocates Act Cap
173
th
Odoki, B. (2009 February 18 ) Attendance on Duty and Officer hours. Circular to all Judicial Officers. Kampala.
174
Mugisha , J. M. (2009 April). Trouble Shooting Areas in Civil Cases, areas to Watch out for –a view from the Bar.
(Journal of Uganda Judicial Officers Association, 15, 98-125.
118
262. Some advocates will not hesitate to employ delaying tactics in court either to
prolong trials in order to earn more fees or when they are not prepared to proceed.
Others file too many unnecessary interlocutory applications. Some advocates have had
their clients cases dismissed for want of prosecution because they cannot attend court
in time. Others employ archaic tools of trade and have failed to employ ADR. They look
at attempts to promote mediation as a ploy to deprive them of business. Others practice
a culture of “sole” practitioners meaning that they cannot be efficient when they take on
many cases. Many advocates lack specialization in any given field and do not attend
continuous legal education programmes (CLE). Others lack professional ethics and
have had to be disciplined by the disciplinary committee of the Uganda Law Council.
Many have failed to account for their clients‟ money, failed to carry out instructions,
charged excessive fees, which is conduct unbecoming of advocates175
In addition the researcher has also observed that the police causes delay of criminal
justice when they register cases in court without completing investigations. Summoning
of witnesses then becomes a nightmare. At times they register hopeless cases that
have not been sanctioned by the Director of Public Prosecution (DPP), which end up
being dismissed after consuming the limited time and resources of the Judiciary, let
alone infringing on the rights of the suspect. State attorneys almost have similar
problems as seen above by advocates. They sometimes take long perusing the files
before sanctioning and at times do not keep time in court. Several cases have been lost
because state attorneys are either unprepared to proceed or are too incompetent to
handle the tasks at hand. The prisons department generally tends to obey orders from
175
John Mary Mugisha Supra
119
the court relating to suspects but they are too constrained financially to function
efficiently. Many prisons produce suspects in court late because of lack of transport. For
example in Kyenjojo because Butiti government prison is about 30 kilometers from
court, suspects are transported to prison once a month. In Bundibugyo District where
the researcher is based, suspects trek a total of 18 kilometers to and from the court. As
a result, it was agreed that they attend court only on Tuesdays and Thursdays. Day to
day today trial is impossible because inmates are too tired to walk that long on a daily
basis. The public including members of the Executive, Legislature, civic leaders, and
non governmental organisations are generally ignorant about court procedures and the
law. Many do not know how to file cases while others on filing fail to prosecute their
cases as witnesses. The end result is delay or failure of justice.
120
CHAPTER FOUR
THE IMPLICATIONS OF CASE BACKLOG ON THE RIGHT TO DUE PROCESS
4.0
Introduction
In the first and second chapters, the term case backlog and what is meant by the right
to due process were defined. In the third chapter, it was illustrated that among other
factors, it is an inefficient and ineffective judicial system that results in the creation of
case backlog. This chapter therefore examines the implications of an inefficient judicial
system vis a vis an individuals‟ right to due process. The implications may be legal,
social, economic and even political. The analysis is based on the researcher‟s
experience on the Bench as a judicial officer and experiences from other targeted
respondents. Findings from different surveys on the subject are also examined
4.1
Violation of Constitutional Guarantees under the Bill of Rights 1
Julia Mashella of South Africa who had been charged with murder, robbery and drug
trafficking had all charges dropped after spending six years on remand. 2 She paid
dearly as a victim of South African‟s cruel justice system. Her children dropped out of
school, the husband divorced, businesses collapsed, houses and cars were auctioned
by creditors. She was stigmatized after prison in that the public and even her family did
not want to identify with her. This is the plight of the nearly 50,000 remandees awaiting
trial in South Africa and nearly 30,000 in Uganda. A slow judicial process violates an
individuals‟ right to a speedy and fair trial under article 28 of the Constitution of Uganda
1
Chapter 4 of the Uganda 1995 Constitution Protection and Promotion of Fundamental and Other Human
Rights and freedoms
2
th
Price of delayed justice (n.d) retrieved on September 19 2010 from
http://wwwtaipeitious/com/news/world/achieve/2007/07/2003369508
121
1995, respect for human dignity and protection from inhuman treatment under article 24,
together with the right to privacy of person, home, and to own property under article 27.
Unjustified imprisonment further deprives an individual of his right to found a family
under article 31, protection of freedom of movement, religion, association and assembly
under article 29, and enjoyment of economic rights under article 40. Although article 126
provides for adequate compensation to victims of wrongs, the majority of remandees
who are ignorant of their rights cannot afford to pursue such rights against the State in
Uganda.
Ninety four percent of the respondents believed that an inefficient court
system led to violation of individual human rights.3
4.2
Loss of Trust in the Judiciary
When the public loses trust in the judicial system, then more people will shun the
courts, thereby hampering their right to due process.
Trust is defined as the belief that something is good, honest, sincere and that they will
do what you expect of them or do the right thing4 . Loss of trust manifests itself in
different ways. When you are betrayed by someone, it is highly likely that you will not
easily trust them again.5
Trust is fragile and can be lost instantly or there is hysteresis whereby a long earned
trust may be eroded and then suddenly lost. When a person feels that they have been
3
Supra note 1
th
The Oxford Advanced Learner’s Dictionary (7 ed) © 1997 India. Oxford University Press 1586
5
th
The effects of betrayal (n.d) retrieved September 19 2010 from http://www.changingminds.org>explanations?
Trusted-cached. The effects of betrayal.
4
122
betrayed, they may well seek some form of justice that is putting right what they feel has
been wronged including their sensibilities 6
However justice and fairness are different things and vary with context. From a personal
view justice means “making me feel better”. From a national view, it means carrying out
the law, no matter how unfair this may seem7
American authors have written on the subject of loss of trust in their courts from which
an analogy can be drawn with the situation in Uganda.8
It is noted that a party‟s desperate financial condition, loss of custody of a child, denial
of a claim for money, a finding of guilt and the possibility of a prison sentence place the
party in an excruciating situation from which he cannot extricate himself. Thus he lashes
out by harshly criticizing the judge. In addition to a party who is dissatisfied, angry or
irate at the outcome of a particular case, a party who is mentally unstable finds it difficult
to accept a loss. This situation also may result in criticizing or harassing the court.
Members of the public who have the mistaken belief that the court was out of line with
the law or was unfair will criticize such a judiciary.
Dissatisfaction with the work of the courts may evoke an inappropriate response like
judge bashing, attacking particular decisions or vying to limit judges‟ powers. In the US
public confidence in the Federal Judiciary just like it is in Uganda,9 appears to be
spiraling downward. The idea that citizens should have faith and trust in the judicial
system is being lost. Judges and the courts are being besieged by assault from the
6
Supra note 1 chapter 3.
Supra note 2 chapter 3.
8
Joyce J. George (2007). Judicial Opinion Writing Handbook. W.M.S. Hein Publishing 2007 also at
htt://www.books.google.com/books?sbn837732344.
9
Supra chapter 3 note 1.
7
123
public, legislators, aspiring politicians, and misinformed or wayward activists. The
system is viewed by those who criticize it as being anything but impartial or fair. The
proliferation of criticism from the pubic, legislators as well as other branches of
government directed at judges is the origin for the decline of public confidence and
support in the courts.
There will be loss of trust in any judicial system when attorneys and judges strike deals
behind closed doors to achieve politically expedient results, when overzealous
prosecutors conceal information or misstate facts to sway rulings, or when judges fail to
excuse themselves in cases involving their private interests10
Litigants who come to court with a lot of enthusiasm lose the trust they have in the
courts when the cases they have brought are not seen to move or when the expense of
litigation escalates. Indeed the President and several prominent members of civil
society are on record for having blasted the Judiciary as incompetent11. Justice David
Wangutusi does not have kind words either. At a three days workshop organized to
sensitize judicial officers on the internationally acceptable mechanisms of torture
prevention and provision of access to justice for victims of torture in Gulu, the judge said
that the public had lost faith in the courts because his colleagues in the Judiciary
conduct themselves in a manner that erodes public confidence in the justice system 12
This assertion is fortified by results from recent surveys, where respondents asked in an
opinion poll to rate the performance of 11 randomly selected institutions in Uganda on a
10
Watts, J.C (n.d) when justice isn‟t served. Retrieved October 3, 2010 from www.jc.watts.com/columus/JCW-justice-deniedpdf
11
Supra note 17
12
Muboka, J. (2009 January 30) Public has no faith in courts- Justice Wangutusi Daily Monitor, 9.
124
scale of 1-10 with lower digits indicating worse show13. One in every pair of 2000
respondents vouched for the army as the most trusted public institution, with the
Uganda Police, Electoral Commission and the Judiciary ranked bottom lowest.
Respondents said they have less faith in the courts of law, which may underline the
growing cases of mob justice as detailed in the police crime reports. Eighty nine percent
of the respondents did not believe that the Judiciary was up to the task of executing its
primary mandate of dispute resolution.14
4.3
Lawlessness
An individual cannot have due process of law when a state of lawlessness exists. The
term law is defined as the whole system of rules that everyone in a country or society
must obey.15 The noun lawlessness denotes a state of anarchy or disorder usually
resulting from a failure of government. It also denotes illegality as a consequence of
unlawful acts or defiance of the law16. From the religious point of view, everyone who
practices sin also practice lawlessness, and sin is lawlessness.17
The apostle John further writes that God gave his commandments and laws to man to
govern the way man lives. These laws are for the good of all and are meant to preserve
the gift of life which God has given. When man obeys God‟s law, there is liberty and
freedom to enjoy the gift of life with others without fear. When a person rejects the plans
13
Daily Monitor and the Deepening Democracy Program commissioned the opinion poll conducted country wide
th
th
between April 19 and May 6 By TNS/Research International, an independent global research company also cited
at http/www./thecitizen.co.tz.news/2-internationalnews/2282armyisUgadnas most of trusted. Accessed on
12/29/2010
14
Supra note 1 chapter 3.
15
th
Oxford Advanced Learners Dictionary 7 Ed at page 835
16
th
Lawlessness (n.d) Retrieved on December 29 2010 from
www.audioenglish.net/dictionary/lawlessness.thmcached
17
World Bible Translation Centre ( © 2006) Holy Bible. Easy to read revision, USA, Fort worth, Taxes
125
and purposes of God for their life in pursuit of their own, they are committing sin. It is
noted that crime is negative feature in any established modern society18
You only need to read the morning paper or listen to the news to know this. Crime
statistics are soaring in most countries and travel in many parts of the world is
increasingly dangerous. More and more we need to ask the Lord‟s protection in our
daily lives meaning that we live in an era of lawlessness.
A slow and inefficient judicial system can lead to lawlessness in the country. People are
bound to take the law in their hands once they have lost faith in the courts. Besides, no
civilized society can remain stable without a mechanism whereby its members can
resolve their disputes peacefully and where necessary in a binding fashion. The
alternative to such a mechanism is chaos at best, and unbridled violence at most.19
While opening the 13th Annual Judges Conference in Mbale the Prime Minister of
Uganda is quoted saying20;
“there is general loss of trust in the judicial system and loss of confidence
in the judicial officers and this is evidenced by the public taking the law
into their own hands resulting in episodes of mob action. Although police
reports indicate that a total of 332 cases of mob action were reported in
2009 compared to 368 cases in 2008, experts says the number is still high
and could reflect the peoples’ distrust of the entire legal system.”
According to the 2006 police crime report, a total of 197 people in Uganda were killed in
mob justice21. The police spokesperson then Mr. Semeo Nsubuga attributed the cause
18
The Man of Lawlessness. Growth in God (n.d) Retrieved on 28 January 2011 from
www.growthingod.org/information/word/division/sin/definition.htm
19
Supra note 100
Professor Apolo Nsimbi Prime Minister of Uganda. Daily Monitor Newspaper18-1-2011 at page 2-Reported by
David Mafabi in Mbale
20
126
to ignorance of the law by the public and an insufficient police force. He revealed that
Uganda had about 20,000 police personnel to 31 million people, which is a ratio of
1:1500, and yet the international recommended ratio is 1:500.
According to the executive director of the Foundation for Human Rights Initiative 22,
statistics from the police indicated that from January to June 2009, 199 cases of mob
justice had been reported. He noted that such cases increased to 368 in 2008 from 187
in 2007, which is 100% rise. Mohammed Ndifuna of the Human Rights Network also
attributed increase of mob justice to the public‟s loss of trust in judicial services23, while
the Inspector General of Police Major General Kale Kaihura attributed the increase to
the courts‟ failure to resolve conflicts on time. The Chief Justice of Uganda Mr.
Benjamin Odoki on his part blamed delayed investigation of cases by the police and the
insufficient number of judicial officers instead24. Seventy seven percent of the
respondents were convinced that the inability of the Judiciary to dispose of cases
quickly led to an increase of mob action.25
4.4
Increased Costs of Litigation
Whenever the cost of litigation becomes expensive, less people will be able to afford
court services, meaning that the majority who are less wealthy are denied due process.
21
Police Crime Report (2006). Retrieved on March 3, 2011 from
htt://www.newvision.co.ug/D/9/583/mob%20justice
22
rd
Sewanyana , L. (2009 September 23 ) Mob Justice expected to increase. The New vision, 3.
23
th
Kyalimpa. J. (n.d). Uganda mob justice increase as court backlog escalates. Retrieved on 17 March 2010, from
http://www..ipesnews.net/news/asp?idnews=49598
24
Ibid
25
Supra note 1 chapter 3
127
Court costs (also called law costs or in the United States, Attorneys‟ fees) are the cost
of handling a case which depending on legal rules may or may not include the costs of
the various parties in a law suit in addition to the costs of the court itself.26
Court costs can reach very high amounts, often far beyond the actual monetary worth of
the case. Cases are known where one party wins a case but loses more than the
monetary value of the subject matter in court costs. Court costs may be awarded to one
or both parties in a law suit or they may be waived. Court costs or fees for expenses
pass from the courts to attorneys, who in turn pass them to their clients or in some
cases to the losing party.
Court costs usually include filing fees, charges for serving summons, court reporter
charges for depositions (which could be expensive), court transcript and copying papers
and exhibits.
Attorneys‟ or advocates‟ fees can be included as court costs only if there is legislation to
that effect. If a losing party does not agree with the claimed court costs (included in a
filed cost bill) he or she may move the judge to “tax costs”, meaning reducing or
disallowing the cost, resulting in a hearing at which the court determines which costs to
allow and in which amount.27
According to lady justice Stella Arach Amoko, one of the most adverse effects of a slow
judicial process is increased costs of litigation28. This in turn creates anxiety and
unpredictability in the lives of the litigants who cannot predict how long a case will take
26
Court Costs (n.d). Retrieved on June 12 2010 from http://www.en.wikipedia.org/wiki/courtcosts.
Legal Definition of court costs. (n.d). Retrieved on June 12/ 2010 from
http://www.legaldictionay.thefreedictionary.com/courtcosts
28
Supra chapter 3 note 108.
27
128
and how much it will cost. Sometimes litigants are forced to abandon their cases
because of high costs. From the researcher‟s experience as a judicial officer, on
average for a trial lasting about six months or more where parties are represented, any
taxed bill of costs is not less than five millions Uganda shillings. Mr. Wandera Boaz a
registry supervisor at the Uganda Commercial Court concurs with the aforementioned
assertion29, except that costs in the Higher courts are more than in magistrates‟ courts.
In the recent past the Auditor General of Uganda Mr. John Muwanga in a forensic audit
has exposed “dirty play” in the payment of court awards in which tax payers lost billons
of shillings as government lawyers in the Ministry of Justice dodge court proceedings,
while others misplace vital documents.30
An investigation sampling 45 case files was conducted to ward off collusion in the
payment of court awards and to assess the adequacy of procedures for verification and
settlement of claims. Various shortcomings were revealed in the settlement of claims
against government.
29
An interview was conducted with Mr. Wandera Boaz a registry supervisor at the Uganda Commercial court on
24-8-2011. The officer randomly selected nine completed files where the trial had lasted between six to one year.
The files were HCT-MA-198/2011 Sam Aniagyei Obeng & Anor V MTL Real Properties Ltd and another, costs taxed
and allowed at 4,500,000/=, M.A No. 3/2010 from CS No 266 of 2008, Rukundo Seth & Co. Advocates V Dr. Aggrey
Derrick Kiyinji allowed at 10,457,000/= C/S No. 329/2010 Tropical Bank LTD V I. Lukonge Baker Masembe
Muhammed allowed at 9,501,814/= CS 145/2011 Crown Buildings and Products Ltd V Globe Consortium
International Ltd allowed at 10290600/=, CS No. 210/2011 Mugalu Isa V Majunga Jordan Kalenge allowed at
3,181,000/=, CIS No. 0450/2011 Hared Petroleum Ltd suing through its Attorney Ms. Maxm Barnard V Giant
Uganda Ltd allowed at 8,992, 147/=, CS No 439/2010 Industrial Steel Master (U) Ltd V Mohammed Eihag Baballa
Luala allowed at 4,444, 203/=, CS No. 126/2011 Century Rural Dev Bank Ltd V Immaculate Ssentamu, Dr.
Ssentamu John allowed at 3,181,000/- and CIS No. 833/2007 Nahurina Sam Basiriri V Stirling Civil Engineering Ltd
allowed at 3361057/=. The average cost is 9,767,646.78/=
30
Mugerwa, Y. (2011 June 13) . Government Losing Billions as AG faults Justice. Daily Monitor, 4.
129
For instance a review of the case of Munderi Paula Dr. V Attorney General 31revealed
that on July 21,1989, under Statutory Instrument No. 24, the Minister of Lands acquired
plot 775 Block 244 but did not compensate the rightful owners. Later the complainant
sued the government on December 1, 2003 claiming compensation of Shs. 250 million
as valued by a private valuer. However on April 8 th, 2009, judgment was delivered in
favour of the plaintiff, who was awarded Shs. 700 million with interest of 1 percent per
annum from November 11, 2003, until full and final payment was made. Payment
available on file indicated that a total of over shs. 1.4 billion was paid during the year
under review in full settlement of the claim. This resulted in a nugatory expenditure of
shs 1.2 billion from the initial valued amount of shs. 250 million. Mr. Muwanga noted
that this expenditure could have been avoided if timely action had been made to settle
the initial claim of Shs. 250 million and the responsible government officials should
account for the loss.
According to the JLOS Sectorwide Baseline and follow up survey32, the cost of
accessing a JLOS institution varied from 38% of the public who rate the police as being
cheap to 65% of those who rate the Judiciary to be expensive. The public found Local
Council Courts to be accessible with 81% who can access them easily. Seventy four
percent found their settlement of disputes to be fast and 77% found them to be cheap.
31
Munderi Paula Dr. V Attorney General HCC 704 of 2003.
Released during the twelfth Joint Government of Uganda /Development Partner Annual Review at Sheraton
th
Kampala Hotel Uganda on June 25-26-2007. Justice Law and Order section (2007 June 25 ) Sector wide Baseline
and follow up survey. Kampala. Author. Also cited at
http://www.JLOS.go.ug/aide%/20memoire%20covering%2012%reviewpdf
32
130
In the United State of America it is reported that lengthy civil cases have become the
norm throughout the court system especially in Federal Courts33. These delays were
costing businesses in the US millions of dollars and the economy billions of dollars a
year. The slow pace of the civil justice system and the high costs of litigation were
attributable largely to the sheer number of civil suits. Eighty four percent of the
respondents thought that the longer a case remained in the court, the higher the cost of
litigation.34
4.5
Domestic and Foreign Investment Hampered
Citizens in any country with little or no investments will be less wealthy and yet most of
the legal services are not free. Their right to due process is automatically affected as a
result.
Investment has different meanings in finance and economics35. In finance, investment is
the commitment of funds through collateralized lending or making a deposit into a
secured institution. In economic theory or in macro economics, investment is the
amount purchased per unit time of goods which are not consumed but are to be used
for future production.
According to a director at the Uganda Investment Authority,36 every investor needs
political stability economic stability, good infrastructure, markets, productive competitive
labour, liberalized banking and finance, streamlined government machinery, dialogue,
th
33
Warmer, D. (1993). Civil Courts on Trial : Reform of the Civil Justice System: Retrieved on June 12 2011 from
http://www.findarticles.com/article/m/154/10
34
Supra chapter 3 note 1.
35
Investment (n.d). Retrieved on 12 June 2011 from http://www.en.wikipedia.org/wiki/investment
36
An interview with Mr. Lawrence Byenzi, Director in Charge of the Investment Facilitation and After care division,
st
Uganda Investment Authority at the Investment Centre, TWED Plaza plot 22 Lumumba Avenue on 21 August 2011
131
quality of life, incentives and justice before investment. He notes that a slow judicial
system discourages both domestic and foreign investment because it means that
disputes cannot be solved quickly. Business competitiveness will be affected and
corruption enhanced. This was the reason why the government of Uganda established
the Commercial Court, which specializes in the settlement of commercial disputes
faster. It is reported that the greater the number of judges in a country, the faster cases
get resolved, which gives confidence to businesses. This becomes a disincentive to
bureaucratic and corrupt politicians who tend to relax behind lengthy legal procedures
even if they do get caught.37
According to the Uganda Investment Climate Statement 201038, Heritage Foundation
2009 Index of Economic Freedom listed Uganda‟s economy at No 63 of 165 countries
and as the 4th freest economy of 46 Sub-Saharan Africa countries based on factors
such as the ease of doing business, openness to trade, property rights and fiscal and
monetary policy. It was noted that some foreign businesses have complained that some
judges delay rulings on disputes involving politically well connected parties. Concerning
transparency of the regulatory system, it was found that Uganda‟s legal system is not so
transparent. The courts particularly at the upper level had made independent judgments
in the past. However some parties to legal proceedings took advantage of the legal
systems‟ inherent delays and incoherence to manipulate judicial outcomes. Indeed
37
Saile sh. A. (2010 December). Judges population. Retrieved on June 12 2011 from
http://www.financialexpeses.comjudgespopulation/209381/us
38
Uganda Investment Climate Statement (2010). Retrieved on June 2011 from Kampala. US Embassy.gov/Uganda2010investmentclimatepdf
132
reports show that less than half of the business community in Uganda is satisfied with
the laws that are necessary for business and economic growth.39
4.6
Other Effects of Delayed Justice
According to a newly appointed judge of the High court of Uganda Flavia Ssenoga
Anglin,40 unscrupulous litigants take advantage of the delays to further injustice against
the poor and vulnerable parties. Because they know that the courts do not take a lead in
ensuring that cases are disposed of, they are reluctant to admit the weaknesses in their
cases and so perpetuate the cases indefinitely. Unprofessional advocates do not help
matters. So with no indication as to when the case will end, frustrated litigants many
times abandon their cases thereby denying them justice. As a result injustices go
unpunished and rights remain unenforced.
She further notes that a slow justice system leads to congestion in prison which
escalates expenditure on their maintenance, let alone increased chances of real
corruption with the temptation to deal with cases where litigants are willing to pay. Case
backlog will result where cases are abandoned and they lose position.
4.7 Conclusion
The National Objectives and directive principles of State policy provide that the State
shall be based on democratic principles which also provide for a sound Executive,
Legislature and Judiciary.41
The objectives also provide for the establishment of
institutions and procedures for the resolution of conflicts fairly and peacefully, and the
39
Supra note 24
Ssenoga, F.A (2007). The Impact of the Amendments of the Magistrates’ Courts’ Act and the Penal Code Act.
Kampala. Paper delivered to Magistrates at the Uganda Judicial Studies Institute in 2007.
41
The 1995 Constitution of Uganda as amended. National Objective number II, Chapters 6,7 and 8.
40
133
provision of adequate resources so that all organs of government that provide checks
and balances function effectively.42
An inefficient, ineffective and underresourced Judiciary that can not discharge its
primary mandate resulting in the creation of case backlog, inevitably undermines the
notion of democracy and the will of the people of Uganda.
42
Ibid
134
CHAPTER FIVE
CONCLUSION AND RECOMMENDATIONS
5.0
Conclusion
This research narrowed down to the challenges facing the Uganda Judiciary towards
the administration of justice as an institution. However this should not be taken out of
context when Uganda as a State is considered in a broader sense. A study done by
UNESCO has ranked Uganda among the least developed of the developing countries
based on different criteria like a three year average estimate of the gross national
income per capita, a threshold of $ 905 (Shs, 810,000) and a threshold of $ 1086 (Shs
2,172,000) for graduation from LDC status.1
Uganda is among the world‟s 30 nations that receive debt relief committed under the
Heavily Indebted Poor Countries Initiative.2
In addition, out of 177 countries, Uganda whose status on the world failed states‟ index
is “alert” which is the lowest, was among the 37 worst performing countries in 2010. In
2007 and 2008, Uganda ranked number 15 and 17 respectively among the 20 worst
states.3
1
Kulabako ,F. (2009 August 11) Uganda named among least developed of developing countries. Daily Monitor, Business, 28 also at
http://www.ababaka.com/cms/index/plp?option=com
2
International monetary fund and International Development Association, heavily indebted poor countries (HIPC) Initiative. Statistics update
March 31 2004. Retrieved on June 13th 2011. Retrieved from http://www.un.org/special-rep/ohrlls/idc/HIPC.pdf
3
Patrick, S. (2007). Failed States and Global Security. Empirical questions and policy dilemmas. International studies review.
Blackwell publishing, 9,644-662. Also cited at http://www.en.wikipedia.org.wiki/failedstates. Among the political indicators of a failed state are
the criminalization and delegitimization of the state, endemic corruption or profiteering by the ruling elites, resistance to transparency,
accountability and political representation, wide spread loss of popular confidence in state institutions and processes, widespread violation of
human rights, widespread abuse of legal political and second generation rights including those of individuals, groups or cultural institutions
e.g. harassment of the press, politicization of the judiciary, internal use of the military for political ends, public repression of political
opponents, killings or cultural persecution. It is common knowledge that most of the above situations are a reality in Uganda, with the
persistent attack of the judiciary by the executive and its invasion by the military in the so called “Black Mamba assault” .
135
So although Uganda has ratified several international instruments and enacted
domestic legislation to ensure due process, she has to graduate upwards according to
the list of worst states, if the justice system is to improve. Uganda has to adopt good
developmental governance that supports investments, technological development and
rebalancing between the State and the market as one of the solutions out of poverty
and poor service delivery.
President Museveni
rightly
observes that we share judicial concepts with the
developed world, but notes that what Africa needs is social economic transformation
instead of transplanting modern concepts of development onto backward societies.4 He
lists education, health for all, security, industrialization, infrastructure and agricultural
modernization and supporting a private- sector led economy as some of the stimulants
of development that all institutions including the Judiciary must support.
Case backlog in our courts has been likened to the old folklore of the monstrous ogre
whose head was overgrown with untidy hair.
When the cunning Mr. Hare failed to trim this undesirable sight to size, elder tortoise
advised that the answer to this seemingly insurmountable problem was the adoption of
a holistic approach, involving a multitude of hair cutters devoted and sworn to repeated
and persistent collective confrontation of the threat.
There is no single approach that can suffice to confront the problem of case backlog.
There is need to radically adopt a multipronged approach that targets practical solutions
4
President Museveni of Uganda while opening the annual forum of Southern African Chief Justices at the
Common Wealth Resort in Munyonyo Kampala. In attendance were 11 Chief Justices, 2 Deputy Chief Justices and
other Judicial officers. Kagolo, F. (2011 September 12) Museveni Warns on Delayed Justice. The New Vision 3.
136
even if they may be unorthodox as long as they result in the delivery of justice at the
end of the day. All stakeholders in the justice law and order sector should work together
to eliminate the phantom.
5.1
Recommendations
5.1.1 Reorganization of Labour in the Judiciary
5.1.2 Jurisdiction question
The researcher had a month long study leave to Denmark to learn from their justice
system5. In order to promote efficiency, Denmark reformed its judicial system so that
lower judicial officers were given original jurisdiction in most of the cases with the Higher
Bench retaining appellate jurisdiction. This study has shown that professional members
of the Lower Bench6 have effectively handled cases that were hitherto a preserve for
members of the Higher Bench. Following the enhancement of their jurisdiction, 7 the
Constitution and the enabling laws like the Judicature Act, Trial on Indictments Act,
Criminal Procedure code Act, Penal Code Act, Magistrates‟ Courts Act could be
amended to grant the Lower Bench which is more spread out on the ground,8 original
jurisdiction in most of the cases in the country. The higher courts could then be freed of
much of the case backlog and left to fine-tune decisions from the lower courts by way of
appeal, revision or review. Because committal proceedings will be avoided, the
populace will access justice quickly, a phenomenon that will boost its confidence in the
Judiciary. The majority of judicial officers from the lower bench support this position.9
5
He obtained a diploma in the Justice Law and Order Course 2005 undertaken by different judicial officers for
Uganda every year
6
Magistrates Grade 1 to Registrars
7
Supra
8
Supra
9
th
Nsamba H. (August 17 2012) Magistrates ask for right over capital offences. New Vision, 4. This formed part of
rd
the recommendations during the 3 annual magistrate’s and registrar’s conference in Kampala.
137
Recently JLOS stakeholders recognized the fact that members of the Lower Bench
including magistrates Grade one can handle all capital offences effectively10. They
recommended the enhancement of magistrates‟ jurisdiction so that all cases are evenly
spread among the few judicial officers in the country to avoid redundancy and wastage
of labour.
5.1.3 The Court of Appeal /Constitutional Court
The Judiciary spokesperson reported in the recent past that the Court of Appeal was
overwhelmed by the volume of work, which justifies the increase in judges numbers 11.
The Secretary to Judiciary reported 1624 cases pending before the same court12
Other pundits13 have concluded that the Constitutional Court is not fit for purpose given
the Court‟s many decisions that have been overturned by the Supreme Court.
Advocates and litigants interviewed for this study who have taken cases to the highest
court reveal that on average the process does not descend below five years, due to
case backlog14.
It is recommended that Uganda emulates the Republic of Kenya by scrapping this court
so that the Supreme Court becomes the second and final Appellate/Constitutional
Court. Judges of the Court of Appeal can then be absorbed onto the Supreme Court.
10
JLOS District Coordination Committee (DCC) for Western Region Annual Evaluation Workshop held at Lake View
th
Hotel Mbarara on 14 April 2010.
11
Kisawuzi, O.E (2009 March 14) Court of Appeal Overwhelmed. (Letter to the editor). Saturday Monitor, 6. He is
the Judiciary spokesperson
12
Alupot, M. (2009 July 14) Judiciary asks House for 12 more judges. The New vision, 6.
13
Kamya, A. G (2009 July 28) Constitutionals Court not fit for purpose. Daily Monitor, 12.
14
Supra
138
This move will not only lessen the process of trial through the judicial hierarchy, but will
also save the taxpayer billions of shillings that are used to maintain the said institution15
5.1.4 Appropriate title for Judicial Officers
A “judge” is defined as an officer with authority to decide cases in a law court while a
“Justice” is a title given to a high court Judge.
16
“Judge”, Justice and court are often
used synonymously or interchangeably while “Magistrate” is defined as an inferior
judicial officer such as a justice of the peace17. To the ordinary person Judge and
magistrate means the same thing18. These different titles to judicial officers create
confusion among the public and a sense of discrimination among members of the
profession. Uganda could emulate Rwanda by
redesignating all its judicial officers as
judges19. First instance courts (Lower Bench judicial officers) would be redesignated as
“junior judges/justices” while appellate judicial officers (Higher Bench) judges/Justices”
5.1.5 Judiciary Administration
Jesus teaches;
“no one can be a slave of two masters; he will hate one and love the other;
he will be loyal to one and despise the other. You cannot serve both God
and money”.20
15
For instance in FY 2009/10, 14.6 billions was required to construct the Court of Appeal and other Courts Supra
note chapter 3 note 67
16
Oxford Advanced Learners International Dictionary New Edition page 642 to 645
17
Blacks Law Dictionary (© 1947) UK, Sixth ed 841 and 951
18
E.g. in Luganda one of the local dialects the phrase “Omulamuzi” means any person who adjudicates upon
disputes without differentiating between judges, justice or magistrate
19
th
According to Justice Kadigwa Gashongore Head of the Rwandese Commercial Court while at the 9 East Africa
th
th
Judges and Magistrates Association 10 -15 October 2011. Imperial Botanical Beach Hotel Entebbe.
20
Mathew 6:24. Holy Bible. Easy to Read Version. World Bile Translation Centre. Fortworth Taxes
139
As the study has shown, there is a two-tier system of administration in the Judiciary which
is the judicial service run by the Chief Registrar and finance and support staff
management under the Secretary to Judiciary. It is not surprising to find these two
functions looping, thereby creating unnecessary duplicity. It is recommended that all
judicial officers from the Chief Justice to the lowest magistrate be freed from the burden of
administration so that they concentrate on case adjudication.
The Secretary to Judiciary and his or her team could then manage the day to day affairs
of the Judiciary but in consultation and cooperation with judicial officers. Advocates who
are non-judicial officers could be co-opted under the Secretary to Judiciary to handle the
function of administration of judicial services previously under the Chief Registrar. The
Chief Justice could then be the titular head of the Judiciary down to the respective judicial
officers in charge of the different divisions and stations. In the alternative, the function of
administering the Judiciary could be passed on to the Judicial Service Commission or a
separate agency like it is in Denmark.
5.1.6
Finances
The Judiciary Administration Bill aims at promoting the independence of the Judiciary by
operationalising its financial and administrative independence to ease the delivery of
justice21. The Bill should also provide for the appraisal of judges. The Executive and
21
S. 4 provides for the objectives of the bill which are to operationalize the constitutional provisions
relating to the administration of the Judiciary; streamline the administration of the judiciary; improve
the efficiency and effectiveness of the courts and strengthen the independence of the judiciary through
improved service delivery and accountability. Judiciary (2002). The Judiciary Administration Bill ed Kampala
140
Parliament should pass the same without additional delay. It is further recommended that
in future government should approve the Judiciary‟s entire budget with no cuts so that the
institution is able to function efficiently. It is further recommended that the resource
envelop should be distributed as equitably as possible within the Judiciary. Priority should
be given to inputs that directly affect the Judiciary‟s core function of adjudication of cases.
Because the Higher Bench and the Lower Bench are charged with a similar task of
administering justice, funding of their activities should be as uniform as possible without
any discrimination. It is further recommended that judicial officers leave the administration
of finances to the Secretary to Judiciary and her team in all the courts, so that the former
can concentrate on case adjudication. The Salaries and Allowances (specified officers)
Act Cap 291 could be abolished as it tends to promote discrimination between judicial
officers during resource utilization. In the alternative, the Act could be amended to cater
for judicial officers from the Lower Bench as well.
The body charged with the administration of the Judiciary should publish an annual
performance report concerning all its activities during the financial year.
Although the Deputy Secretary to The Treasury has reported that increased expenditure
through the national budgetary allocation over the years has not resulted in quality public
service delivery characterized by rampant corruption22, the administrative reforms
recommended in this study will mitigate this effect.
22
Oketch, L. M. (2009 December 27). Higher Budget allocation not yet helpful-Treasury Daily Monitor, 29. Mr.
Keith Muhakaniza says Uganda’s Budget has been increasing over the year i.e. budget for 2008/09 financial year
was 6 trillion Shs. 2009/10 financial years has 7 trillion shs but the quality of pubic service delivery remains poor
characterized by rampant corruption.
141
5.1.7 Funding to JLOS Stakeholders
As we have noted above, the Judiciary does not operate in a vacuum but in concert with
other stakeholders like the police, prisons, DPP and the public. In most instances the
recommendations aimed specifically at the Judiciary in equal measure do apply to those
other institutions. The Police department should adequately be funded so that concrete
investigations can be conducted as efficiently as possible in order for the Bench to
exercise justice as by law. State attorneys should be well facilitated in order to effectively
represent the State. The prison department should be equipped with suitable prison
facilities all over the country so that the rights of remandees are not abused. Adequate
transportation should also be availed so that suspects are saved the inhuman and
degrading treatment of walking long distances to face trial in court. Continuous
sensitization of the public should be conducted about court procedures. Above all
adequate pay commensurate to the standards of living in the country should be given to
all employees under the justice sector in order to eliminate corruption and to promote
efficiency.
5.1.8 Information Technology (IT)
If judicial services are to improve, one of the first steps must be to migrate from the use
of long hand to recording court proceedings. It‟s not only primitive and archaic, but it
gives a wrong impression to court users in particular to the foreign investor who is used
to litigating before the European Court of Justice at Luxemburg, where judges enter the
courtroom without pens.23 Deliberate efforts should be made by the Judiciary to install
23
Supra, see Justice Amoko.
142
digital court recording equipment in all the courts in the country. It is reported that the
cost of such equipment per court is about 45 million shillings.24 So the said amount of
money is not too much to cover the number of courts in the country. In order to minimize
the risks and the cost of transporting suspects to court rooms, teleconferencing
technology could be introduced in the Uganda justice system. This technology could
also become vital when dealing with cross border litigation.
On computerization, the Judiciary should strive to computerize all the courts in the
country. Adequate budgetary support should be dedicated towards the maintenance of
this component. A laptop per judicial officer policy could be adopted and implemented to
create more efficiency.
5.1.9
Independence of the Judiciary
The Judiciary Administration Bill25 (with amendments) should be passed immediately to
operationalise chapter 8 of the 1995 constitution (with necessary amendments) so that
the body charged with the administration of the Judiciary attains more financial and
administrative independence. Adequate funding should also be provided in order to
minimize political interference. Appointment of judicial officers should be left to the
Judicial Service Commission in consultation with the Executive and the Legislature.
The Executive and other arms of the State should respect and honour all lawful court
orders passed against the government or any other body by the Judiciary. The
President should respect the Judiciary by desisting from utterances that could be
24
25
Interview with Dr. Kitogo - Principal Information Technology Officer of the Judiciary on 23-10-2010
It can be access from the High Court Main Library Kampala.
143
interpreted as inciting public disaffection against the Third Arm of the State. Security
agencies should take heed. The Chief Justice has recently recommended thus;26
“the Government should demonstrate more commitment to upholding the
independence of the Judiciary, promote and protect fundamental rights
and freedoms, and provide the necessary financial and human resources
to clear the backlog of cases. There should be merit based appointment of
judges, and the judiciary should be granted adequate powers to review
actions of the government”27
5.1.10
Small Claims Procedure
There is no doubt that the small claims procedure which provides for filing of a claim in
court on one form, with a brief record of proceedings followed by the judgment on one
form within 14 days and minimal costs will go along way in the fight against case
backlog28. Justice Kiryabwire in his study above recommends a pilot phase of 2-3 years
to test the proposals preferably in one magisterial area in each region,29 but the same
study shows that the procedure is successful in countries like South Africa, Canada, the
United States and the United Kingdom30. It is clear that the procedure is long over due
and should be inaugurated in all magistrates‟ courts without any further delay of piloting.
What is required is the sensitization of the judicial officers and the public about its
implementation.
Pecuniary limitations in jurisdiction in the procedure could be left out so that litigants
choose either to proceed under the same, or the Civil Procedure Rules.
26
See note 33.
Ibid.
28
See Sections S.7,14,20,21,23,26,27 and 31 of the draft bill of the small claims procedure rules
29
Ibid at page 49
30
Ibid at page 33-35
27
144
5.1.11 The Judicial Service Commission
As noted above,31 some of the functions of the Judicial Service Commission include the
implementation of programmes for the education of both judicial officers and the public
about justice and the processing of complaints from the public about the administration of
justice. It is recommended that the Judicial Studies Institute be handed over to the said
Commission so that judicial officers managing the same are redeployed to handle case
adjudication. The Commission could then organize the different workshops and seminars
for judicial officers and different stakeholders in order to ensure continuing legal
education. .The same could be done with the Inspectorate department within the
Judiciary. As far as disciplining of judicial officers is concerned, the Commission should
first investigate every complaint before officers are tried by its disciplinary committee. This
will weed out frivolous and malicious complaints.
The study also revealed that the
Commission takes an average of between 3- 4 years to complete a given case on hearing
before it. That affects the efficiency of a concerned judicial officer who sometimes has to
travel every month from his or her upcountry station to Kampala for trial without
allowances. The Commission should amend its rules of procedure in order to enhance
quick disposal of complaints. Against a backdrop of correction than dismissal, the
Commission could co-opt procedures like alternative dispute resolution (ADR) in its
curriculum.
31
Article 147 of the 1995 Uganda Constitution
145
The Judiciary lacks a policy on performance standards against which performance can be
assessed.32
The Commission should formulate a performance policy framework of evaluating the
performance of each individual judicial officer or court in order to ensure accountability.
On welfare, the J.S.C should review and make recommendations about the terms and
conditions of judicial officers every end of financial year. Remuneration of judicial officers
should take into account the elastic economic conditions prevailing in the country.
5.1.12 Appointments and Promotions
In order to ensure more judicial independence, Uganda could set an example to the rest
of the world by vesting the powers of appointment of all judicial officers in the Judicial
Service Commission, with the approval of Parliament, away from the Executive arm of the
State. Just like in the United States system, the public should be involved in the vetting
process in order to eliminate less qualified persons. This move will ensure that only
qualified persons with high moral chapter and competences are appointed judicial
officers. There should be consistent and timely appointment to the Bench at every level.
In Kenya Parliamentary proceedings while vetting judicial officers are directly broadcasted
on national television for the benefit of the public33.
32
Revealed by Justice Lawrence Gidudu during the Annual Review Workshop for Magistrates Grade One in charge
of stations at Colline Hotel Mukono Kampala on 1-6-2011
33
Kenya is the only country in the World that televises interviews for its judges twice (in the judicial service
commission and in parliament). It’s probably the only country where the candidates for chief justice and the
Supreme Court are not handpicked or nominated by the president. Jobs are advertised and the JSC shortlists,
interviews and sends its pick to the president. Onyango, O.C (2011 June 22) Have faith, by 2030 Uganda will be a
democracy: Pointers from Kenya. Daily Monitor, 10.
146
On promotions, during a consultative meeting with members of the African Peer Review
Mechanism (APRM) at Kampala High court,34 the Chief Justice called upon the
President to prioritize the promotion of serving judicial officers over other advocates in
order to eliminate discontentment in the Judiciary. Justice Wangutusi at the same event
was reported as expressing concern over government‟s failure to move judges of the
High court to higher ranks adding that this frustrates their efforts to serve the public
because they know that their limit is to serve on the High Court Bench. Therefore the
Chief Justice‟s recommendation could be implemented. In addition the Chief justice‟s
recommendation of putting in place a mechanism of hiring temporary judges from
suitable persons to replace those serving on commissions and tribunals could be
explored.35
5.1.13 Judicial Corruption and Misconduct
The head of the European delegation in Uganda has reported that Uganda is losing 500
million dollars annually through corruption and is ranked number 126 out of 180
countries36. The Judiciary like any other government department is not spared of
corruption, but facts not perceptions are needed to fight it37. Several recommendations
have been made under this respect. For instance justice Stella Amoko has
recommended better pay for judicial officers and support staff to reduce their
susceptibility to bribery.38
34
Afedrara, L. (2009 October 17) Odoki calls on government to promote serving judges, Saturday Monitor, 3.
Maseruka, J. (2009 August 19). More Judges wanted in Court. the New Vision, 5.
36
Vincent De Vasscher at the Inauguration of the Commercial court building in Kampala Supra
37
Supra
38
Supra Justice Amoko Stella. Arach.
35
147
The Minister of Ethics and Integrity39 suggests that the business of fixing corruption
should be a shared responsibility among various actors, principally the government, civil
society organizations (who include the media and religious organizations) and citizens.
The President has proposed a change in the law to deny bail to suspects charged with
corruption, terrorism, treason and defilement until after 180 days on remand,40while the
Inspector General of Government (IGG) has petitioned the Constitutional Court to
outlaw bail pending appeal to persons already convicted of corruption41.
Other players have launched office fellowships to fight corruption where a network, of
Christians at the workplace require and encourage fellow Christians to resist, expose
and fight all kinds of corruption for the Glory of God.42 The fellowship also gives awards
to workers who register the most outstanding success in fighting corruption at their work
places, while seeking divine intervention for appointing authorities to replace corrupt
government officials, with righteous ones.
Recently the government has launched citizens‟ forums (Barazas) where every six
months the office of the Resident District Commissioner (RDC) organizes citizens‟
meetings at village or Sub County centres where residents demand accountability from
their leaders43. The Minister of State for Finance44 was reported saying that these
forums would ensure that public officials and the community engage in constructive
debates aimed at improving service delivery. The Judiciary could follow the above lead
39
Dr. James Nsaba Buturo. (2009 November 30). Fighting corruption: Can the war be won? The New Vision, 16.
Ibid
41
Muhumuza, R. (2009 December 4) IGG Petitions Constitutional Court on Bail pending Appeal. Daily Monitor, 3.
42
Mulondo, M. (2009 November 20), Office Fellowships to fight corruption. The Sunday Vision, 20.
43
Kato, J. (2010 January 7). Citizens forums to promote transparency. The New Vision, 4.
44
Ibid
40
148
and improve its mechanisms of explaining its operations to the less informed public.
Every court in the country should have one open day atleast once in a given year.
However stemming corruption requires strong oversight by Parliament, a well
performing Judiciary, independent and properly resourced audit and anti-corruption
agencies, vigorous law enforcement, transparency in public budgets revenue and aid
flows as well as space for an independent media and a vibrant civil society.45 The
Judiciary should explore every lawful lead that will rid the institution of corruption
tendencies.
The Inspector General of Government has reported the existence of about 290 pending
cases of judicial officers appearing before the Judicial Service Commission Disciplinary
Committee46. It is recommended that judicial officers strive to abide by the law, judicial
oath, and the judicial code of conduct in their day-to-day operations. Prosecution at the
anti corruption court should not only target the poor like retired Justice Katutsi asserts.47
5.1.14 Public Service College
The Ministry of Public Service is to start a civil service college that will mold all public
servants to deliver services efficiently48. This college should be established without
delay so that all judicial officers are initiated in the art of right public service values, so
that they are more efficient in the delivery of justice.
5.1.15
Alternative Dispute Resolution
45
Supra Mr. Kalinge, Nyago
th
Baku, R. (Guest) (2010) IGG’s address at the 12 Annual Judges’ Conference. Kampala NTV News 6pm
47
Wesonga N. & Atage S ( Daily Monitor September 14 2011). Corruption court only for the poor .Katutsi
48
Nalubega, F. & Miti, J. (2009 September 7) Public Service to build college for Civil Servants. Daily Monitor, 36.
46
149
Jesus teaches:
“if someone brings a law suit against you and takes you to court, do your
best to settle the dispute with him before you get to court. If you do not, he
will drag you before the judges, who will hand you over to the police and you
will be put in jail---until you pay the last penny of your fine49”
A senior international law advocacy officer has recommended the adoption of
alternative dispute resolution methods by the Uganda Judiciary in order to reduce the
case backlog that has rocked many law courts50. It is recommended that the Rules
Committee of the Judiciary convenes a consultative forum of all judicial officers,
advocates and other JLOS stakeholders with the agenda of exploring ways of making
ADR methods like mediation, conciliation, arbitration, more practicable.
Judicial officers should endeavor as much as possible to exercise their constitutional
mandate of promoting reconciliation in criminal cases.51
The Principal Judge has hinted that the Judiciary is considering a policy in which judges
and magistrates will arbitrate minor cases involving small amounts of money in order to
reduce congestion in prisons and reduce backlog of cases52. He added that arbitration
had helped to settle 80% of the cases in the commercial court, adding that if the same
system was embraced in the Judiciary, it would solve the cases that usually take a long
time. There is need for the Judiciary and other stakeholders to consider ADR more
seriously.
49
Luke 12:57:59 Holy Bible (Easy to read version) Fortworth Taxes.
Mr. Steven Munyantwali is the Executive Director for International Law Institute. He said ADR is legal practice
adopted in the Commonwealth Countries to settle disputes without necessarily going to court and is one way of
promoting judicial effectiveness and legal reform in Sub Saharan Africa
51
Article 126 of the 1995 Constitution, Section 160 of the MCA
52
Justice James Ogoola PJ Uganda at Busia Chief Magistrates Court on a country wide tour to access justice
delivery in the country. The New Vision Newspaper Tuesday August 11 2009 at page 8 reported by Egessa Hajusi
50
150
5.1.16
Plea Bargaining.
The Principal Judge has also asserted that the Judiciary must adopt new methods of
dispensing justice that save both time and resources53.
The judge proposed the increased use of plea bargaining in order to decongest prisons
and to help reduce case backlog. It is recommended that legislation introducing the
practice of plea bargaining in the Uganda criminal justice system should be enacted as
soon as possible.
5.1.17 Demystifying the Courts
Appropriate Attire for Judicial Officers
The lord Chancellor‟s department in the United Kingdom conducted a survey of 2000
persons, where 69% of the respondents did not want civil judges to keep their wigs.54
Indeed it is further reported that judges in the United Kingdom commercial court have
already jettisoned wigs, claiming they are inappropriate to modern business litigation,
much of it with an international element. Other senior judges argue that wigs contribute
to an image of remoteness and made them out of touch with ordinary people. In
Uganda, Mr. Tambiti,55 opined that it was comical that judges and the Speaker of
Parliament still wore woolen garb on their heads. He wondered why certain things could
not be done the Ugandan way, as long as that was decent.
53
Justice James Ogoola while speaking at a stakeholders round table meeting on prison conditions in Kampala;
th
the Daily Monitor Newspaper 13 October 2008 at page 2 reported by Apaul Amoru
54
Clare Dyer (2007 January) Civil courts judges prepare to cast aside their wigs after 300 years. Legal editor. The
guardian. Also at Http://www.guard.an.co.uk/2007/jan/05/law.ukcrim.
55
Tambiti, J.L. (2011 May 27) what really is Ugandan 49 years after independence? Daily Monitor, 11. Article
appeared with the Chief Justice of Uganda adorning woolen garb. Napoleon Bonaparte abolished the English wig in
France as being out of fashion when he assumed office in 1799. Napoleon. Film directed by Yves Simoneau based
on a book Napoleon by Max Gallo
151
In order to identify with the people from whom judicial power is derived, it is
recommended that judicial officers discard the wigs and adopt simple robes probably
with an element of backcloth to symbolize our African heritage. This will also save the
state unnecessary expenses.56 Uganda could also emulate Kenya which has set aside
titles like “ my lord”, “your worship”, in favour of referring to all judicial officers as “your
honour,” as a sign of courtesy.57
5.1.18
Court Proceedings in Local Languages
The Under Secretary from the Ministry of Justice has concurred with district officials
from western Uganda who want court proceedings to be conducted in local languages
because English is hard for the ordinary person58. The Judiciary exercises its mandate
in accordance with the norms and aspirations of the people59. If the people demand
court proceedings in the language they understand, then the Judiciary could explore
ways of how this can be implemented without deviating from international standards
pertaining to fair trial. The institution then will not only be spared the cost of employing
court interpreters but also the ever unending unethical practices usually associated with
the latter. During court hearings, witnesses should be allowed to sit, and no one should
be penalized for contempt of court, because they have laughed or a phone has rang.
Judicial officers should desist from barking or using abusive language towards court
users. There should be a customer care desk at each court registry, and cause lists
should be reflected on electronic monitors for easy direction of court users.
56
th
Supra, the Guardian. Wigs became essential wear in society in the 17 century during the reign of Charles II. A
judge’s wig costs £800 and a full bottomed wig about £ 2000.
57
Supra note 18 . According to the Deputy Chief Justice of Kenya.
58
Mazige, J. (2009 February 18) Conduct Court Proceedings in Local Languages- District Chiefs. Daily Monitor, 8.
Mr. Ernest Bafaki
59
Article 126 1995 Constitution.
152
5.1.19
Innovations in Procedures
A newly appointed judge of the High Court of Uganda has come up with a number of
recommendations, which could be adopted in the fight against case backlog.60 He
proposes the adoption of unorthodox responses but without breaching the law
to
eradicate case backlog. The researcher associates himself with those views.
5.1.20 Criminal Proceedings
Under criminal procedure, on top of adopting plea bargaining in our system, police
statements could be admitted in court as evidence. The Judge noted that one of the
factors contributing to making a trial procedure long and winding was the fact that state
counsel have to lead witnesses to adduce in court, evidence particulars of which are
largely contained in the witness police statement.
The courts have both held that police statements do not have the force of evidence, but
at the same time allowed defence counsel to successfully challenge the veracity of the
witness evidence on account of any inconsistency between the police statement and
evidence adduced on oath. There should then, in appropriate cases really be no harm in
making the witness own the police statement on oath with provisions for any correction
and additions as he or she may offer. This would circumvent the tedious process of
leading a witness to state afresh in court what is largely in his or her police statement,
and significantly cut down the time taken in presenting the prosecutions case. The
60
Chigamoy. D . A (2010 April 14). New Approaches to dealing with case backlog. Paper presented at the JLOS
District Coordination Committee meeting for Western Uganda. Regional Annual Evaluation workshop held at Lake
View Hotel Mbarara.
153
police should be sensitized on how to record proper statements taking into account the
rights of suspects so that justice can be done.
5.1.21
Reintroduction of Summary of Witness Statements
The judge notes that in the not too distant past, the DPP used to avail the accused a
meaningful summary of what to expect from each witness it intended to call at the trial.
This most useful practice was abandoned and the law changed to the present one
where the accused is given a summary of evidence, which cannot at all afford anyone
adequate information to prepare a defence (rumour has it that it was due to lack of
stationery). A return to the practice of the past would not only prepare the accused, but
also enable defence counsel to offer better advice to an accused with the possibility of a
plea to a lesser cognate offence or a direct plea of guilty.
5.1.22 Instant Penalty Schemes
The instant penalty scheme employed by the traffic police in Uganda could be
expanded to cover other less serious offences like affray. Offenders could then be fined
or sanctioned at the scene of crime or at the police station. This will ensure that only
deserving cases are preserved for the courts.
5.1.23
Civil Proceedings
Alternative dispute resolution mechanisms such as mediation, scheduling and strict
adherence to issues and disposal of cases by means of largely non adversarial
methods with the conspicuous participation or guidance of the judge would go a long
way in ensuring early disposal of cases. Applications for remedies such as injunctions,
leave to defend or summary procedure under Order 36 of the CPR or appeal or stay of
154
execution are normally accompanied by affidavits which is evidence on oath 61. When
the matter comes up for hearing, the judge has already formed an opinion in a particular
direction. So what is in the applications and affidavits should not be repeated by the
parties or their counsel in court. However, the court could seek clarification from time to
time or allow cross examination where necessary before making a quick decision/ruling.
5.1.24
Practical Decentralization of Sessions
Many of the cases giving rise to backlog owe their notoriety for such delay to the failure
of witnesses to turn up when summoned. The main reason contributing to this is the
inability of the witnesses to afford the transport costs they are burdened with to attend
court, especially from remote areas.
Failure to attend court results in the courts consigning the cases to the “next convenient
session” thereby building case backlog.
Witnesses could be paid their transport allowances at their homes or at the nearest
police post to enable them move to court, from where they are then paid their return
transport allowances and other entitlements. The Local councils and local police can be
involved in this. In the event of any mischief or abuse of this process by a witness, the
local police and Local councils can help in tracing such witness for a refund.
By decentralizing court sessions, people will see justice being done in their villages.
More witnesses will attend and faith restored in the judicial system. A good relationship
will be built between local government and the Judiciary.
61
Orders- Civil Procedure Rules
155
In addition the judge suggests that deployment of a number of judges for a limited time
to tackle case backlog in a selected area (as was successfully done in the Gulu circuit
some time back) and as was due to be massively replicated in western Uganda, was a
radical decision well taken. This could be augmented with appointments to the Bench of
members of the Bar to serve on contract for a limited period of time on attractive terms.
In the short run, before the law concerning jurisdiction is further amended every
magistrate could be afforded atleast 2 sessions in a year to handle and dispose of
cases. The researcher concurs with the judge‟s views and the same should be
implemented as soon as possible.
5.1.25 Engaging the Youth about the Law and Justice
Preventing crime, means that the courts should be less burdened with case backlog
because less criminal cases are reported.
Government should adopt a policy that
enlightens the youth, right from primary level, about the law and the administration of
justice. About the advantages of being law abiding citizens, and how individual rights
can be enforced. This could be through tailor-made curriculums on the law and justice in
schools. Religious bodies could also be co-opted, given that many people have faith in
them.
5.1.26 Transfers and Judicial Business
Rotation of judicial offices around the country should be done evenly balancing between
serving in remote and urban areas. Officers should be consulted before transfer in order
to take into account different needs and considerations. Then as far as judicial business
is concerned, a mechanism should be devised to ensure that the same is evenly
distributed among judicial officers to enhance efficiency. A policy of “first in first out”
should be promoted with exception to special interest groups like the young, sick,
156
elderly, pregnant, and experts like medical personnel given priority while handling
cases.
5.1.27 Performance Policy Formulation and other Measures for Improvement
The Judiciary today lacks a comprehensive performance policy and standards against
which to measure performance. The Judiciary could adopt some elements of corporate
governance from the corporate world in this area. An appropriate performance appraisal
system targeting output from individual judicial officers should be put in place.
Performers then, should be rewarded by say study visits to foreign Judiciaries and other
awards. This will have a great motivating effect. Non performing judicial officers who are
a liability to the institution and the tax payer could then be indentified and weeded, if
they fail to improve.
In order to be more transparent and accountable to stakeholders and the public from
which the Judiciary derives its mandate, the institution has to come up with an annual
report detailing all its activities and how the funds disbursed are utilized. Then it would
became easier and justifiable to allocate more resources where there is real deficiency.
In addition, the Judiciary can improve on its image by adopting the policy of corporate
social responsibility. Here, judicial officers could undertake projects like blood donation,
tree planting, and even charity walks under different themes like walks against judicial
corruption, infant and maternal mortality, poverty eradication, support for the Millennium
Development Goals (MDGs) and others.
In order to improve on performance, the Judiciary needs to adopt a comprehensive
health insurance policy for judicial officers, support staff and their families.
The idea of sports could also be incorporated because games help alleviate stress and
have a great unifying factor. The Judiciary could maintain a football team which could
periodically engage teams from the Executive, the Legislature, the National Football
team or a team from the public and even teams from other East African Judiciaries.
157
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APPENDICES
APPENDIX I
INTERVIEW GUIDE FOR CONSUMERS OF JUSTICE IN UGANDA
1. Section 1
Background Information
Description of area
(Kampala, Masaka, Fortportal, Bundibugyo
Kawmwege etc)
Description of Interviewee
(Name, age sex profession, level of education)
2. Section 2
Topics and guiding questions
A. Legal system in Uganda
i.
Do you understand the structural set up of the formal court system in
Uganda?
ii.
Do you consider the current legal system to be complicated?
iii.
Do you understand the language and proceedings used in court?
iv.
Do you understand the various court divisions and where each case should
be filed?
v.
Do you understand the roles of a judge, magistrate, state attorney, court
support staffs, advocates, police, prisons etc in the administration of justice.
vi.
What do you have to say about the time one takes to litigate from the lowest
to the highest court in the country?
B. Access to justice
i.
Do you think Uganda has enough formal courts?
ii.
Do you think Uganda has enough judges and magistrates?
iii.
Are you at the court in relation to an ongoing case?
iv.
If yes, how long has the case been on going?
v.
If your case has been delayed, under what circumstances did this occur?
vi.
How would you rate the level of efficiency of a judge?
173
vii.
How would you rate the level of efficiency of a magistrate?
viii.
What would be the most appropriate age for one to serve as a judge?
ix.
Do you think that judges and magistrates are adequately utilized?
C. Judicial Independence
i.
Do you think the Judiciary is independent enough to execute its mandate?
ii.
Do you think the Judiciary is facilitated adequately?
iii.
Do you think that Judges and magistrates are remunerated adequately?
iv.
Do you think that unsatisfactory terms of service of judicial officers influences
corruption in the Judiciary?
D. Judicial integrity
i.
Do you think the judiciary is corrupt?
ii.
How would you rate the level of corruption of the following:a. Judges
b. Magistrates
c. Advocates
d. Police orderlies at court
e. Prisons
f. Court bailiffs
g. State attorneys
h. Court bailiffs
i.
The public
E. Case backlog
i.
What do you understand by case backlog?
ii.
What do you think are the major causes of case backlog in the Judiciary?
iii.
What can be done to eradicate case backlog?
F. Consequences of judicial inefficiency
i.
What are the consequences of an inefficient judicial process vis a vis ones right
to due process?
G. Administration of justice
i.
How can the administration of justice be improved in Uganda?
174
APPENDIX II
FOCUS GROUP DISCUSSION GUIDE FOR JUDICIAL OFFICERS
1. Identification information
Location
2. Topics
a. Legal framework governing the Judiciary
b. Major tenets of due process.
c. Case backlog, its causes and consequences
d. Reforming the administration of justice
3. Guiding questions
a. Comment about the hierarchy of the formal court system vis a vis the time
taken to litigate to the highest court.
b. Do you think judicial officers will become more efficient as case adjudicators if
the function of administering the Judiciary was delinked from them?
c.
Do you think a separate agency and not the Chief Justice should head the
Judiciary?
d. Do you know the major components under the right to fair trial?
e. What are some of the major causes of case backlog in the Uganda
Judiciary?
f. What are the consequences of an inefficient Judicial system vis a vis one‟s
right to due process?
g. What reforms should be implemented in order to improve justice delivery in
Uganda?
175