Plea bargain: A case system the judiciary says will curb backlog

Extra-ordinary situations call for extreme measures. This is the critical thinking in the Judiciary and its partners in the Justice, Law and Order sector (JLOS), faced with soaring case backlog, especially in criminal matters.
The population at prisons recently hit a record high – almost eight times their built capacity, and the Judiciary needs a miracle to clear the current case backlog and reduce the congestion.

The numbers
Statistics indicate that of the more than 41,000 inmates in Uganda prisons today, only 18,000 are convicts while the rest have been committed to the High Court awaiting trial.
If all the 54 High Court judges were to fully engage in criminal trials under the colonial and conservative case management system (one case per day), each would be assigned 556 cases, and they would each require not less than 18 months to accomplish the assignment.
At an average cost of Shs1m per case, this will translate into a whopping Shs30b budget for the assignment.

The bigger problem
However, judges have civil cases to attend to, in addition to more criminal cases the police keep turning in to add on to their baggage.
Worse still, some judges have been clocking their retirement age, and their replacement is nowhere in sight. The latest to retire include; Edmund Lugayizi, Vincent Kibuuka-Musoke, Anup Singh Choudry, Vincent Zehurikize with Akiiki Kiiza opting for greener pastures.
In the circumstances, JLOS has opted for “Plea bargain” as an alternative to manage case backlog that will lead to the decongestion of prisons. This system is quite popular in the developed world.
So what is Plea bargain?
A Plea bargain is an agreement in a criminal case between the prosecutor and the accused person whereby the latter agrees to plead guilty to a particular charge in return for some concession from the prosecutor.
A voluntary plea of guilt under this mechanism may see the number or severity of the charges against an accused person or their punishment reduced.
Principal Judge, Justice Yorokamu Bamwine, who also chairs the Plea Bargain TaskForce, told a Consensus Building workshop last year that it was time for action. “My Lords, the situation on the ground as regards workload is alarming…something must be done and we are the people to do it.
“Inmates in prisons are yearning for justice and so are their relatives and friends. We must approach reforms with a purpose. The current initiative is mainly to decongest prisons and make it possible for suspects who want to plead guilty do so at the earliest possible opportunity.”

Rolling it out
This idea was initiated in April 2013 with the appointment of a nine-member Taskforce headed by the principal judge. Others include three High Court judges, the Chief Registrar, a representative of the Attorney General, a representative of the DPP’s office, the commissioner general of Prisons, and a representative of the Uganda Law reform Commission
With support of US-based Pepperdine University, the plea bargain system has taken root in Uganda.
It is likely to become a popular feature in Uganda’s criminal justice system, following a recent successful pilot at the Nakawa High Court circuit.
The pilot involved cases from Nakawa presided over by Justice Lawrence Gidudu, Mubende -Justice Lamech Nsubuga Mukasa, Koboga - Justice Wilson Masalu Musene, Mpigi - Justice Henry Peter Adonyo and Entebee - Lady Justice Elizabeth Nahamya.
According to Andrew Khaukha, the programme coordinator and Taskforce secretary, out of the original 694 suspected capital offenders targeted, 261 inmates embraced the programme, and agreements were closed in a record three weeks.
“Out of the 261 cases in the pilot project, we secured 60.5 per cent convictions,” explains Khaukha, adding that, “being the beginning, 29.5 per cent suspects dropped off the process along the way – some may have mistaken it for an amnesty of sorts, while others may have joined the programme for selfish reasons.”
So far, the Judiciary has rolled out the programme in three High Court circuits countrywide including, Nakawa, Mbarara and Jinja. Masaka is next in line to be followed by Soroti and Mbale.
He adds, “10 months later, the clearance rate stands at 72 per cent for 826 cases handled in various High Court circuits.”

Testimonies from the pilot project
Susan Wakabala, one of the lawyers involved in this pilot initiative, gave two examples of how the suspects benefited from it.
She explained that one suspect who was facing a charge of aggravated defilement that attracts a maximum penalty of death, was handed 18 years in jail upon embracing the Plea bargain process.
The other suspect who benefited from the initiative was facing aggravated robbery that also attracts a maximum penalty of death, whose charge was reduced to simple robbery and sentenced to six years in jail.
Given the advantages that the plea bargain initiative has come along with, the Judiciary is looking at extending the programme to Jinja and Mbarara High Court circuits this September where another 390 suspected capital offenders have volunteered to join.
According to the Director of Public Prosecutions, Justice Mike Chibita, Plea bargain should be embraced at the earliest opportunity even when the case is still at police. “In developed economies such as USA, 90 per cent of cases are plea bargained and yet the country is well resourced, why not Uganda?” he wondered.
The Chief Registrar, Paul Gadenya, says plans are underway for the programme to be locally funded through JLOS resources.

The process
It starts with sensitisation of all stakeholders (judges, prosecutors, inmates, defence lawyers and prison officers).
Both the prosecutor and defence lawyer are encouraged to disclose vital information to help in the determination of a sentence, as long as the disclosure serves the ends of justice.
Just like in the truth telling processes, the victims too are invited to see that justice is done. Pre-trial session meetings are held before a judge to confirm the agreement between all parties.

Advantages
There are minimal chances of appeal since an agreement is struck with everyone’s consensus. Appeals may only come in respect of the sentence.
“Criminal law is lately moving away from retribution. Restorative justice is taking root as it promotes reconciliation, reintegration and a culture of offenders owning up responsibility. Plea bargain is the way to go,” Khaukha says.
The process is also cheaper and it helps the Judiciary plan better for criminal sessions, since cases deserving a full trial are known in advance.
Substantiating on Khaukha’s stand; while speaking at the opening of the New Law Year of 2015, Justice Steven Kavuma said, out of the 7,000 cases, 826 cases were disposed off under the Plea bargain system, 10 months after the project was rolled out.
He said that each case cost about Shs300,000 instead of Shs1.5m budgeted for the traditional full hearing.

Earlier initiatives

The Judiciary had previously instituted a number of initiatives to address the issue of case backlog, although they did not have as much impact as the plea bargain.
They included setting up of special criminal sessions where a trial judge is assigned 40 cases to try within 40 days. Normal pleas of guilt have been encouraged previously in these sessions, but without a bargain option.
There are also quick-win sessions where magistrates are switched to manage cases in their counterparts’ jurisdictions on the assumption that they would handle and resolve more cases in the shortest possible time.
Sentencing Guidelines were also introduced in Legal Notice No. 8 of 2013 to promote an approach of uniformity and consistency during sentencing.

300,000

AMOUNT IN SHILLINGS SPENT ON EACH CASE UNDER THE PLEA BARGAINING PROJECT

826

NUMBER OF CASES DISPOSED OFF UNDER PLEA BARGAINING PROJECT so far

900M

AMOUNT IN SHILLINGS JUDICIARY SAVED UNDER THE PLEA BARGAINING PROJECT