Monday December 18 2017

Justice for the poor: How the search is shaping up

Affected. Inmates at Luzira Maximum Security

Affected. Inmates at Luzira Maximum Security Prison during a recent visit by military officers. Many prisoners are victims of wrongful detention without trial. PHOTO BY ALEX ESAGALA 

By Abdul-Nasser Ssemugabi

“You are not in prison because no one wants you there, or because no one has accused you,” one death row survivor told me. But no one understands this better than Crispin Mugume, who used to think every prisoner is a criminal. Then studying law at Makerere University, Mugume (not real name), was arrested at night and detained in a police station in Entebbe. After a month, he was released on bond, but not aware of the charges. When he was rearrested in 2003, Mugume refused to pay the Shs3m bribe police demanded for his release, even when he was threatened with murder charges.

“I couldn’t raise that money, and I knew would be released soon, after all I was very innocent,” Mugume, who believed justice would obviously prevail, told me. He did not know he would spend six years in Kigo Prison. Actually, a murder happened at the police station, but Mugume and two others—a doctor and a bar manager—were arrested as a cover up of police’s guilt. Upon conviction, Mugume and the co-accused could face a maximum sentence of death. That was before Supreme Court pronounced itself on the Suzan Kigula case which annulled the mandatory death sentence.

“Every passing day,” Mugume told me. “I lost hope, wondering who would save me and prove my innocence. My family couldn’t do anything.”

Help did not come until 2007 when Uganda Christian Lawyers’ Fraternity (UCLF), a non-governmental legal aid service provider, began giving prisoners legal education and evangelism.

However, after deeper engagements with inmates, UCLF realised that most remands and convicts were victims of improper legal representation; hence the urgent need to provide it.

One such victim was Mugume. Eunice Nabafu, the UCLF executive director says they took on his case first, to secure bail for him. But a stone hit two birds. Courts work on a first-in-first-out basis, meaning cases are cause-listed according to dates. But UCLF lobbied and within one year, Mugume’s case was first-tracked. Ironically, it happened that prosecution had no case file against Mugume. He walked out free, without trial, after six years of wrongful, baseless detention.

“I can’t thank UCLF enough, because if they hadn’t intervened mine would be a completely different story,” Mugume, now a paralegal at UCLF, told me as he processed bond for two suspects at the Central Police Station in Kampala.

Similarly, two who brothers had been remanded for five years for rape, were rescued by UCLF. During trial, their alleged ‘victim’ denied having been raped. She confessed that her brother had used her to win a land dispute with the accused.

The rich vs the poor

Doubtless the poor, out of need, are susceptible to crime as they strive to attain the basics of life they desire or retain the little they have. And as one legal practitioner said “the law was originated to protect the rich against the poor.” But the latter statement has had far-reaching implications as the poor, the world over, have greatly suffered grave marginalisation under the law—even when they are completely innocent—as if to mean that the most precious human need is justice, not the cars, or houses, or land or the money to buy all those.

Ms Nabafu says justice isn’t necessarily winning a case; rather it’s the quality of legal representation one gets. Putting it into perspective, she weighs the chances of a rich man against those of a poor man in the criminal justice system.

She says: while the poor man will only meet his state-appointed lawyer in court, the day his trial begins, the rich man’s legal representation begins from the time of arrest.

The rich man can easily get police bond or bail (free or bribed). For his money, influence and connections, he can easily get sureties and convince court to release him. That temporary freedom can help him and his lawyer prepare his defence: engaging his witnesses, gathering evidence and influence a quicker trial.

Justine Nankya spent 23 years in Luzira (19 on

Justine Nankya spent 23 years in Luzira (19 on death row). PHOTO BY ALEX ESAGALA

It is otherwise for the indigent prisoner, who cannot afford these constitutional liberties.

While bail gives one a sense of innocence (even in the public eye) the longer one stays in jail, the more one loses hope in justice.

Despite a rigorous but successful bail application, Ms Nabafu’s client stayed in jail. “He hadn’t told me he had another count of aggravated robbery.” Another bail application failed when his files got misplaced. His mother, despite wishing her son to resume his studies, got frustrated and gave up on the chase. Since 2014, the boy is still locked up.

“That’s why many will tell you ‘counsel I didn’t commit the offense’ but let me plead guilty, maybe the judge will have some mercy.”

Granted, pleading guilty saves the poor man the financially draining trials, the sentence depends on the judge’s discretion. You can have a murder charge turned into manslaughter, or other mitigating factors like being a minor, of old age, ill health, can influence a lesser sentence than death.

But plea bargains need clever legal calculations, which state-appointed lawyers might not have time for.

Still, if you plead guilty when you are innocent, Ms Nabafu warns, you can only appeal against the sentence, not the conviction. Living with a criminal record also has its disturbing consequences, which compelled American law professor Jim Gash to appeal against Deus Tumwine’s murder conviction (cited in Part One: How poverty can deny you justice), luckily successfully.

Such is the yawning gap between the rich and the poor in our criminal justice system the State has left volunteers to bridge.

Who qualifies?

Since 2010, Muslim Centre for Justice and Law (MCJL) has offered voluntary legal aid services to poor, vulnerable Muslims.

Jaffer Senganda, the MCJL president, says many approach them with various legal needs but all legal aid service providers carry out a means-merit test to assess one’s financial status and the credibility of the claim (in civil litigation—frivolous cases can be dismissed with hefty costs).

One of the beneficiaries, I will call Hajara, was sentenced to life in prison for murdering her husband. Years into her sentence, relatives sought help.

MCJL lodged an appeal on grounds that: she committed the offence in self-defence; she is of old age; has to cater for her children and she has HIV. The judge commuted her sentence to four years. She will return home next year. Some juvenile detainees have also benefitted.

To supplement the inadequate state brief scheme and improve on legal representation for the poor, government launched the Justice Centres Uganda (JCU) in 2009.

Despite the challenges, mainly underfunding, Aaron Besigye, the JCU national coordinator, is quick to show their contribution. He recently handled 18 appeal cases (murders, robbery, aggravated defilement and treason) and within one month, the 26 convicts got lesser sentences, ranging from six months to 25 years—none was resentenced to death.

He said social inquiry report by social workers revealed that while some of the victims’ families and communities had forgiven the offenders and were willing to take them back, others were still bitter, threatening to lynch the offenders on sight.

Meanwhile, a psychiatric assessment revealed that due to long incarceration some convicts had reformed, some had hardened.

On his part, Besigye reviewed the judgements considering the gravity of the offenses and the evidence adduced.

Notably, he found out that all the convicts had not had a thorough representation: most met their lawyers (state briefs) in court on the day of the trial; the lawyers did not prepare their defences well, let alone understand the prosecution’s case.

And Besigye calls that “professional misconduct” on the part of those lawyers because: “If you know the money is too little, let the accused get another lawyer, because unbefitting representation would be more injustice,” he says. “A person whose likely penalty is death or life imprisonment should get the best representation to avoid miscarriages of justice.”

Mr Jaffer Senganda, the MCJL president.

Mr Jaffer Senganda, the MCJL president. COURTESY PHOTO

Bottlenecks

According to a 2015 report by their umbrella body LASPNET, most legal aid service providers largely depend on the “unpredictable” donor funding.

As such their coverage is not proportional to the ever-rising demand while some have closed shop as donors pulled out.

Muslim Centre, for instance, has offices only in Kampala, Mpigi and Mayuge, serving Butambala, Mbale, Tororo and Iganga. Uganda Christian Lawyers Fraternity serves Kampala, Mukono, Gulu, Kasese, Wakiso and Masaka.

Even Justice Centres, a State initiative, is also donor-funded and currently operates in only seven centres.

With prevalent poverty levels many Ugandans cannot hire lawyers—yet government’s legal aid is limited to criminal litigation. So private legal aid service providers end up offering much more than just pro-bono representation. They also do legal education, advice and counselling, research and advocacy and brokering out-of-court settlements, among other interventions.

The negative attitude of legal practitioners is another deterrent. Advocates Regulations, 2009 requires that a lawyer provides at least 40 hours of free services a year, or be fined Shs400,000 or have a practicing licence revoked. But the general practice, most prefer paying the fine.

Actually, according to a 2015 JCU report, of the 1,700 certified practitioners, only 500 are registered under the pro-bono scheme.

Muslim Centre also faces a reputation dilemma. They cannot directly take on cases involving their own. For instance, Muslim clerics accused of murdering fellow Muslims. “The divisions are so deep we don’t want to be seen like we are taking sides,” Senganda says. “We can only work with our colleagues to ensure that the cases are handled well.”

Likewise, they don’t litigate in aggravated defilement, for fear of reputational damage.

Systemic challenges like the shortage of judicial officers—only 48 judges instead of 82—slow the court process, violate prisoners’ rights and make litigation more expensive. This partly explains the overdue remand periods (two, three, six years, which contravene the law that grants a prisoner mandatory bail after spending six months on remand before being committed for trial) and the “inordinate delays” in the appellate process which the Supreme Court decried in the Kigula case. The recent sit-down by prosecutors just worsened matters.

“‘Counsel, I committed the offense but I have this amount (of money), can you approach the judicial officer to overturn the case?’” Ms Nabafu quotes some clients. “Others have the courage to bypass the lawyers to approach the judicial officers. And litigants know which judicial officer can be compromised, for instance ‘if you don’t have this amount, that judge won’t grant you bail.”

In 2015, an ex-death row convict told me of a court clerk who asked for Shs2m to burn his appeal file, to kill off the case.

Corruption at all levels of our justice system makes the already underfunded legal aid more expensive. “Seriously, it makes our work hard, we can’t budget for all those bribes,” Ms Nabafu says.

Senganda of MCJL adds that poor complainants are easy to compromise: “Many pull out of cases to settle for simple bribes or are simply threatened.”

Paul Gadenya, the chief registrar of the judiciary, acknowledges the threat of corruption, noting that some judicial officers have been sacked thus far. He also noted that a plan is underway to automate courts to address the problem of file misplacement.

When relatives give up on you

During her 23 years in Luzira (19 on death row), Justine Nankya’s family gave up on her, quickly. “Only my old mother visited me once a year,” she says. And that’s the story of most death row inmates.

Yet, a prisoner’s family can play a key role in counselling, gathering evidence, standing surety and paying bail money.

While some just can’t afford the regular prison visits, Senganda of MCJL says, others just wish the accused stays in prison, after messing up his estate.

Most pro-bono advocates do not pay for their clients’ bail money but Ms Nabafu of UCLF says some families fail to raise the money after the advocate has endured the draining process.

From his training at Cornel Law School, Fredrick Mbaziira of Mbaziira & Co. Advocates learnt of a wide range of mental conditions that can result into crime, hence the need for thorough investigation. He, however, notes a glaring lack in the know-how, citing ‘experienced’ police investigators who cannot even tell “what constitutes a rape case.”

If inadequate investigations are dangerous, torturous methods of interrogation are disastrous. Evans Gabula (17 years on death row) told me how officers at Gadhafi Military Barracks suspended heavy stones on his testicles, caned him every day and starved him with hunger—which coerced him into confessing treason.

Mbaziira also decries biased mindsets.

“To some judges, prosecutors and investigators once you are arrested you are guilty, and however much the lawyer tries to prove otherwise, it’s hard when the judge convicted you upon reading the indictments.”

Going forward

We asked the death row survivors, who were wrongly condemned by our criminal justice system on the way forward. Edward Mpagi (18 years on death row) suggests improved investigations; Patrick Zizinga (nine years on death row) suggests a criminal review commission, Gabula requests for a reduction in the severity of punishment and a reasonable pay to the state brief lawyers to motivate them for better services. Another, a victim of the court martial and thus still barred by law to speak publicly, is so passionate on “erasing the archaic laws,” among others.

Meanwhile the advocates suggest the formation of a National Legal Aid Body, similar to Legal Aid South Africa, as the ideal answer to all the aforementioned challenges.

South Africa has the best state-funded legal aid model in Africa, with a whooping US$129m budget in 2016-2017.

But a 2015 cost-benefit analysis by LASPNET estimates that Uganda’s needs about Shs17.8b (US$4.8m) for the first year. That figure is close to what government spends on prosecution.

Since his ‘divine collision’ with teenage Tumwine* in 2010, Professor Gash moved here with his family of five, serving as a special adviser to Uganda’s judiciary for six months. Since then Gash influenced several improvements in our criminal justice system and he told me via email that he still considers it “a privilege to work alongside my friends in the Judiciary to offer whatever assistance I can as they seek to bring efficient justice to Ugandans.”

That’s the commitment we all must espouse because like one public defender said “It shouldn’t be cheap to take away someone’s liberty.” After all, we are all potential prisoners.

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