Wednesday June 11 2014

Judiciary struggling with manpower shortage

Supreme Court judges led by Justice Benjamin Odoki (R) take their seats in court to listen to the case of the expelled NRM ‘rebel’ MPS last year.

Supreme Court judges led by Justice Benjamin Odoki (R) take their seats in court to listen to the case of the expelled NRM ‘rebel’ MPS last year. PHOTOS BY ABUBAKER LUBOWA/ AISWAL KASIRYE 

By Emmanuel Mulondo & Anthony Wesaka

My Lord, what do you consider to be the reasons affecting justice delivery in our country?

For the Judiciary the major challenge is the personnel. Do we have sufficient number of judges? Do we have sufficient numbers of magistrates? Are these numbers well deployed in the areas where there are disputes? The answer is no. We have been working our way towards 60 judges. We have always estimated that may be the ideal number would be 80 but we are still far from that number.

Two, the Supreme Court did not have enough judges in terms of numbers. In the beginning they were supposed to have seven and for a very long time it had four, hardly enough to make the quorum to hear major constitutional appeals. Now we have tried to raise the number to 11, which is a good beginning. But sadly, they are not yet eleven because one of the judges, Amos Twinomujuni passed on sometime last year and even before that, they were nine. So that leaves a gap of three vacancies.

The other big thing is the welfare and remuneration of these people. Take the magistrates for example. They are spaced out in a big geographical area. Forty chief magistrates, with 120 districts, means on average each is in charge of three districts. This is a big geographical area. In principle they are not facilitated with transport and it is quite a challenge.

How about other players in the game? Say the prisons. They were all built 50, 60 or 70 years ago. The structures are run down.

When you come to the police, they are not well trained. If the accused person reaches court the challenge is to nail that accused person but because of gaps in investigations court may acquit somebody who should not have been acquitted, or convict where there should not have been a conviction.

Then you go to lawyers. Sometimes there are black sheep in the fold. We have such big numbers from law schools and this could also be affecting the quality of training both at the law schools and the Law Development Centre. I don’t think the teacher-student ratio is that good. When you have 200, 300 students in a class, then you are looking for disaster.

There’s another challenge which is systemic. Lawyers are trained to battle it out. It is a battle and is called the adversarial method of justice. The judge sits in the middle and the lawyers for both sides, each on one side, ready to battle. Traditionally, that may be what was meant to be but the end result it is very lengthy, very costly, emotionally charged, antagonises the parties rather than bring them together, and sometimes you wonder whether it is really justice. We have to make a radical change.

My lord you have talked about many problems. In your view, are any of these surmountable?
Many of these are surmountable but they have budgetary implications. We have to come to appreciate as a nation, that the Judiciary is a fundamental part of governance. Unless and until we appreciate that the Judiciary has enough resources, then we shall continue having these impediments to delivery of justice.

In Luzira prison, there’s a facility for young convicts, the young convicts are trained to better their lives, even to go to school – secondary and lately university, that is only Luzira. But in principle our prisons should be like that – rehabilitate individuals so that when come back to society they can be better people.

The police only look at the poor conditions they are living in, the barracks. These translate into the kind of investigations they do, the kind of security, public order, safety and so on. Training should be ongoing because new laws are always coming up, our judges should keep abreast with these. But all the issues I am talking about have budgetary implications.

There’s a big problem of corruption and abuse of authority in the lower echelons of the bench. Maybe it is the poor welfare forcing them into this.

These are professional people we are talking about, who have taken an oath to do a good job. If you are lax in that, you cannot give me an excuse of not having a car, not having a good library and so on. We are talking about a magistrate who reports on duty on Tuesday and vacates his station on Thursday - that is indiscipline. A magistrate who engages in corruption or in any form of abuse should have no excuse. If you have excuses and you feel you are not being remunerated for what you are doing, the door is wide open – go and look elsewhere but if you think you are going to stick in the judiciary then be loyal to your oath because you took an oath to do justice to all manner of people without fear or favour. I know not all judicial officers are doing this. There are wonderful judicial officers doing a good job but there are few who are errant, who are rogues.

My Lord you have your clients, the public. What should they do to fight for their rights and also help you achieve your goals as an institution?

I want to call upon my clients, the public and all those institutions in the judicial sector to do one big thing. And that one big thing is, don’t shout about corruption in the judiciary. Resist it as an individual. It is not easy especially when you have a case and the magistrate stands between you and success. But don’t cave in. When you cave in then don’t blame the magistrate.

Take the blame 50 per cent because corruption takes two people. If my clients say “I would rather lose this case than lose the corruption fight,” that would reduce corruption in the judiciary by 50 per cent. But two, those who must do it, please bring the evidence to me, to the JSC, to the Inspector of Courts in the Judiciary. Their work is to listen to complaints against judicial officers. So let people come to me or those people with concrete evidence then we see where this country is going. If you bring allegations and there’s no evidence, what am I supposed to do? The weapon is not in my hand but in the hands of my clients.

Ruth Sebatindira - Uganda Law Society president

Has Uganda Law Society lived to its role of advising the Judiciary and other justice related institutions in upholding the rule of law in the country?

The ULS and the Judiciary are partners in the delivery of justice so we share, listen to each other and support each other. At the last annual judges conference we shared that; the Judiciary needs a Chief Justice and a Deputy Chief Justice; that judges need to cut down on the workshops and adjournments and start the business of hearing cases; that there should be judicial activism and proactivity at the bench; that the bar takes lead in responding to unfair criticism of the Judiciary by promptly issuing public statements when such situations arise.

We also agreed that lawyers will be penalised for wasting time in the courts without reasonable cause, cases with no real prospects of success will not be left in the court system and judges are going to be more strict on case management, delays caused by the unavailability of witnesses are avoided and submissions are appropriately to the point.

When complaints go to the Judiciary about our members’ conduct, this information comes to us at the ULS and when we get complaints about judicial officers misbehaving, we too share it with the Judicial Service Commission. The aim of these engagements is to ensure fairness and impartiality. We have engaged and continue to engage Parliament, government, and Justice, Law and Order Sector (JLOS) to see increased funding for the Judiciary and that a quota of the national budget is allocated to the Judiciary as a standing national obligation protected by legislation.

The ULS that you lead has been accused of being a “barking dog” that can’t bite. In short, the society just threatens action against those flouting the rule of law but does nothing to cause change. What is your take on this allegation?

Our statements condemning violations of human rights or the law cannot be underestimated. Our TV appearances are public legal education and awareness tools which get the citizens to think critically about the legal issues that affect them and how they can get remedies from the courts. Perhaps we should be faulted for not translating to other languages so that all citizens understand what we are saying when violations of human rights have occurred.

On many occasions, we get officials asking us, when we have issued these statements, what they can do to improve and how the ULS can help to ameliorate a situation. As you saw, last year had many rule of law challenging scenarios; the closing of media houses, the beating of one of our members’ by the police, the return of the kiboko squad, tear-gasing innocent citizens, etc. We condemned each of these occurrences in public and using the JLOS platform we engaged the police and other security organs.

There are many ways that we can approach our challenges and one of them is demonstrations, sit down strikes and the other is to engage stakeholders and hold dialogues over our challenges. We accomplish a lot by engaging sector players and talking through the issues.

What challenges is the society facing and what modalities are you putting in place to counter them?

Uganda does not have a Chief Justice to perform these functions as provided by the Constitution since the retirement of Hon Justice Benjamin Odoki as Chief Justice on the 23rd of March, 2013.
The Judiciary has been and continues to be managed without a head of administration and supervision as required by the Constitution. And since the retirement of Justice Alice Mpagi Bahegeine as Deputy Chief Justice, the Judiciary has been and continues to be without a Deputy Chief Justice to deputise for the Chief Justice.

The power to appoint the Chief Justice and the Deputy Chief Justice lies with the President acting on the advice of the Judicial Service Commission and with the approval of Parliament. The Judicial Service Commission has advised the President but H.E. the President has not heeded the advice.
The other challenge is that as ULS, we need to increase the number of our legal aid clinics so that we have a bigger coverage and get these clinics close to the people. For most of our clients, it is an irony when they have to pay high transport costs to come to our clinics. We also need to hire more staff for our existing clinics and buy more equipment.

Any successes?

Our call for recruitment of judges was heeded to, so was our call for increment in their remuneration and we are thankful to government for this. A lot of improvements still need to be made, for example, the Judiciary will need to double the number of judges to realistically deal with all the cases coming to it.

Our Pro Bono Scheme is growing with now 1,100 members’ serving 4,300 clients from 113 advocates serving 250 clients. This is a big success for us as the bar because our members are giving freely and generously of their time and professional expertise to the helpless. We implemented the Kigula mitigation project where we helped prisoners that were on death row be able to get reduced sentences under the support of DGF.

Our partnership with the National Curriculum Development Centre to embark on constitutional literacy in schools has yielded great results with ULS contributing to the Curriculum for O-level and we will proceed to the A-level curriculum.

Director of Public Prosecutions (DPP) Mike Chibita

What is the process of prosecuting a case that ends up with the DPP? Could you also tell us how a case can be discontinued?

A complaint is raised, usually to the police about an offence. Police investigates and the file is sent to the DPP to determine if enough evidence exists for the suspect to be charged. If the evidence is not enough then further inquiries are undertaken or the file closed if the evidence is too scanty. As stated, where evidence exists the suspect is taken to the appropriate court and charged with the offence.
A case can be discontinued if the complainant makes an additional statement to the effect that they have lost interest in the case and the DPP deems that without the complainant’s input the case will be impossible to prove in court. Cases are mostly discontinued where witnesses are not available for any one of various reasons.

At a recent press conference, you boasted of having registered 51 per cent conviction rate against the targeted 50 per cent. How did you attain this score beyond the scoreboard?

Fifty one per cent conviction rate is good in that it is beyond our targeted 50 per cent, but it is still too low. We are confident that with improved investigation and prosecution and with plea bargaining [a situation where after investigations a suspect is confronted with overwhelming evidence and given a chance for a lower sentence on condition that they plead guilty] on board we shall be able to improve the rate. One of the other factors that should help improve the conviction rate is prosecuting cases when they are still fresh and witnesses are available and willing to testify. Delays in having cases heard affects the quality of evidence.

How is the directorate handling the sophisticated cases associated with this new wave of technology?
Every so often new waves of crime come along. With the proliferation of computers and the increased use of IT in financial transactions, a new frontier has opened up in the area of cyber-crime. The criminal justice system is therefore challenged to rise up to the occasion and catch up with the criminals in this arena. Training of investigators, prosecutors and judicial officers in this new area is therefore imperative. Some training has already taken place and more is planned.
Any success registered that has seen a reduction in crime in the country?

Police keeps the statistics of crime in the country and are better placed to comment on whether crime has reduced or increased.

Any challenges?

We have challenges that are being addressed. Lack of enough computers for staff, inadequate computerisation in the area of communication, record keeping and tracking of files. Staff motivation is low due to poor conditions of service; the absence of a constituted Public Service Commission has affected our recruitment and promotional exercise. We are renting in a number of places, including at the headquarters and this affects our operations.

Where do you see the directorate in the next 10 years in relation to prosecuting cases and reducing crime?

Thanks to JLOS, in 10 years, the directorate should have its own home. I foresee a time where the directorate will plea bargain more than 50 per cent of the cases and conviction rate rising to 80 per cent and above. Computerisation of most of our processes should have taken place and at the touch of a button one should be able to know the status of any case anywhere in Uganda. We should have a full-fledged Victims’ Rights Desk by then. In 10 years’ time the directorate should be able to prosecute all criminal cases within one year of the commission of an offence. This is dependent upon our moving in tandem with all our stakeholders, the Judiciary, police, prisons and the citizenry.

What has been the most difficult case that the directorate has ever successfully prosecuted and why do you call the most difficult?

Every case we deal with in the directorate is difficult. We are always glad to successfully put criminals away for safe custody. Whenever we fail to do that for one reason or another, we find that difficult to take because a criminal will have been unleashed back into the public arena.

Recently the directorate created 11 regional offices, why was this so?

The directorate has more than 100 stations country,wide therefore in order to increase efficiency through close monitoring and inspection it became imperative to open up regional offices. We also needed to synchronise our operations with those of our partners, police and the Judiciary. The plan is to have a regional office wherever there is a High Court Circuit.