How poverty can deny you justice

Monday December 18 2017

Some of the inmates at Luzira assemble to meet th

Some of the inmates at Luzira assemble to meet the Internal Affairs minister during his visit to the prison last year. PHOTOS BY ALEX ESAGALA 

By Abdul-Nasser Ssemugabi

For two years, a peasant family was hopelessly stuck in a legal crisis, facing murder charges: Deus Tumwine*, 15 and his brother Lawrence*, 13, in Ihungu Remand Home, their father in an adult prison in Hoima.

Back in 2008, Imanriho, their herdsman, had allegedly stolen the family’s savings. Villagers mobbed on him, but just when Tumwine’s father tried to stop them, one landed a huge stone on his head that finished him off. Meanwhile, the two boys were at school and only heard of the commotion. Days later they were arrested. (This story was reported by BBC and The Washington Post. We hide children’s names).

In 2009, as a prefect in the juvenile detention centre, Tumwine was accused of another murder. Rose Mpairwe, the matron, could illegally take the children to dig in nearby farms, for her gains, and whoever refused faced her wrath. Innocent Kirungi, a new detainee, was sick and could not dig. The matron forced Tumwine to whip him for disobedience. She also ordered the boys to bury Kirungi up to his neck. When he tried to escape, the unforgiving matron ordered four boys to give him 40 lashes. The next morning Kirungi was found dead in the dormitory.

In 2010, Jim Gash and lawyers from Pepperdine University, California visited Ihungu. It was ‘Divine Collision’ as Gash, a law professor, who led the rescue mission, called it.

Two months later, court acquitted the family of Imanriho’s murder—Lawrence and their father were released. But Tumwine faced another murder count (of killing Kirungi). The state-appointed lawyer who represented Tumwine and Mpairwe, the matron, decided to defend Mpairwe who faced maximum penalty at the expense of Tumwine, who at 17, faced three years on conviction. He never let him talk to counter Mpairwe’s word, yet some witnesses were seen taking bribes to pin the boy.

Still, court convicted both of murder. Mpairwe was given 10 years; Tumwine was sentenced to a year's probation but having been remanded two years already, he was released.

But disturbed by Tumwine’s criminal record, Gash returned from USA to launch an appeal and in 2015, court quashed the conviction, ruling that the teenager was denied a fair hearing.

Thanks to that ‘Divine Collision’ (as Gash named his book about the case), Tumwine is now a free, clean student of medicine.

But many poor Ugandans, young and old, crave that divine intervention as they waste away in prisons, enduring lengthy remands or waiting for the executioner’s strike after being sentenced to death. They just cannot afford justice.

Depleted by justice

Evans Africa Gabula was this vibrant teenager, with virgin dreams of a good education and a prosperous career. Imagine a high-schooler whose essay won him an invitation to the BBC’s Bush House. But today, he struggles for a living in a swampy Kampala suburb, condoling with his ageing mother, after 27 years in prison (17 on death row) for treason.

Edward Mpagi with his wife Joyce Alice in

Edward Mpagi with his wife Joyce Alice in Nsambya. Mpagi was released from death row in 2000 after it emerged that the person he was accused of killing was found alive. BY ABDUL-NASSER SSEMUGABI

In his memoirs ‘Downing Stone’, Gabula strongly professes his innocence and accuses Godfrey Kamukama, a security operative who fabricated charges on him to steal his money.

In 1986, Gabula presented his aforementioned essay at Stratford University, Virginia. Impressed, the Black Caucus raised US$5m to his cause of forming The States Union to unite Africa against the “borrowed ideologies” of capitalism and communism and adopt Ubuntuism.

By then foreign currency was restricted and Gabula trod the necessary steps with the money which was in form of traveller’s cheques. He says, Lieutenant Kamukama was at first helpful, attending States Union meetings, as he infiltrated and hatched sinister allegations on the members, and particularly the leader, Gabula. First: illegal possession of foreign currency, then treason.

At first, Gabula used his money to put up a spirited defence. His lawyer Edward Elue made two trips to the US (one cost $16,000) to gather evidence and bring witnesses from US. Thrice, his client was acquitted by the Court Martial and High Court.

But determined to finish him off, Gabula says, his tormentor embarked on quashing his finances. After re-arresting Gabula, Lt Kamukama allegedly connived with the Local Council chairman to dupe Gabula’s semiliterate mother into selling her land in Jinja Town. She lost her home and rentals which facilitated his only son’s legal battles. “This was the last straw that broke the legendary horse’s back,” Gabula writes.

His mother homeless, Gabula could no longer hire a lawyer. After being tortured at Gadaffi Barracks in Jinja, he forcibly confessed. The fourth trial was the most heart-breaking: his state-appointed lawyer—whose name he doesn’t even know—only met him in court on the days of trial; the judge denied his witnesses a chance and Gabula was convicted of treason and sentenced to death in 1993. “They convicted me because of poverty,” he says.

On death row Gabula met Edward Mpagi who was convicted in 1982. Both retell the grisly executions they witnessed as they awaited their own turn, like they happened yesterday.

Ironically, Mpagi and his cousin Fred Masembe were arrested for robbery, (which they also denied) but were convicted of killing their neighbour. Masembe died in prison but Mpagi says their ordeal resulted from wrangles between his family and their tormentors. Mpagi was released in 2000, 18 years later when the person he was accused of having killed was still alive.

In 2004, Gabula then heading the prison school he founded, welcomed Patrick Zizinga to death row. Zizinga’s story had clear similarities with Mpagi’s and Gabula’s.

Like Mpagi, Zizinga was arrested for aggravated robbery, but in 2004 was sentenced to death for murder of his wife. However, his wife still lives, albeit with gruesome memories of her persecution by her husband’s tormentors. Like Gabula, Zizinga lost his property, cars, etc, amid several detentions; his persecutors robbed his bank account of about Shs60m. His friends got him a lawyer, when he could no longer hire one, but he under persecution, did not help much. Zizinga was sentenced to death. Released after nine years in 2013, he’s still battling to rescue his land on Entebbe Road: 351 acres on Block 380, Kajjansi and 3.49 acres on Block 708 Kyadondo, which were grabbed by his tormentors.

Can’t pay the piper, can’t call the tune

State must provide and facilitate a lawyer for a defendant in a case that carries a death sentence or life imprisonment. State must also facilitate the defendant’s witnesses to ensure a fair trial (Article 28 of the Constitution).

Unfortunately, state-appointed lawyers, called state briefs in Uganda, are more reviled than revered. Death row inmates, survivors, relatives, human rights activists and judges, say these lawyers “just don’t help.”

In the above cases, except one, defendants lost their litigations in the hands of state briefs. “I met the lawyer on the day of the trial, I didn’t even know his name,” most indigent defenders tell you.

Gash’s dedication gave Tumwine justice, just like the Foundation for Human Rights Initiative (FHRI), in the famous Suzan Kigula case reduced death row convicts from 417 by 2003 to 170 today.

A recent study of the socioeconomic background of the Kigula petitioners by FHRI concluded that 93 percent of the convicts were “an overwhelmingly impoverished population,” whose legal representation under the state brief system was inconsistent with the “fair trial” enshrined in Article 28(3)(d) of the Constitution.

Yet the woes of poor defendants in capital cases are not unique to Uganda. In USA, where the death penalty still exists, public defending in Missouri, Utah, Idaho, Florida and Gash’s California, faces serious funding crises. Public defence lawyers are accused of paying little attention to detail, and rushing poor defendants into pleading guilty (to save time).

But it is worst in Louisiana, where the system is funded by fees and fines. In 1984, when the local bar divided all of Shreveport’s lawyers alphabetically, to represent the poor, Glenn Ford, accused of murder, was defended by two attorneys: one experienced in oil and gas, another an upstart in small motor accident insurance cases.

At the trial, the Guardian reported, they failed to challenge prosecutors’ selection of an all-white jury, which then found Ford (a black man) guilty after deliberating for only three hours. Ford spent the next 30 years on death row before being exonerated in March 2014.

Patrick Zizinga narrating his nine-year death

Patrick Zizinga narrating his nine-year death row ordeal on the 2017 World Day Against the Death Penalty at the Human Rights House in Nsambya. PHOTO BY ABDUL-NASSER SSEMUGABI

Poor Ford died of lung cancer a year after he was released from prison, with no compensation from Louisiana.

Public defenders too are frustrated by high caseloads and little pay. Tina Peng, serving in New Orleans, Louisiana, wrote in The Washington Post September 3, 2015 “I miss filing important motions; I am unable to properly prepare for every trial.

“I plead some of my clients to felony convictions on the day I meet them. If I don't follow up to make sure clients are released when they should be, they can sit in jail for unnecessary weeks and months.”

According to the American Bar Association, a public defender should not handle more than 150 felony cases a year, but in 2014, Peng handled double that.

For dire demand, the random practice that denied Ford justice continues in Louisiana. In one judicial district, one woman runs the entire system, from cleaning her office to representing clients in court. In Winn Parish, prosecutors double as public defenders.

Imagine that is in USA, where there’s a robust criminal justice system. But in Uganda, those “unnecessary weeks and months” Peng decries, are actually years.

Fredrick Mbaziira of Mbaziira & Co. Advocates told me that some of the 660 remanded in Kigo Prison are desperately waiting for that chance to plead guilty for a lenient sentence, because since the Kigula case, death is no longer mandatory.

In his eight-year practice, Mbaziira has also served as a state brief, handling aggravated defilement, rape, murder, et al, winning some and losing some.

A pastor, who was accused of raping a woman who did his laundry, but whose alleged victim did not appear in court, was acquitted.

But the ruthless man who defiled, impregnated and hacked his stepdaughter to death in broad daylight, was sentenced to death. “Not even Jesus could win that case,” Mbaziira said. “He was so remorseless and I was so unfortunate to represent him.”

Mbaziira, a Makwanyane Fellow of the Cornell University Law School, USA, professes passion for the poor man’s justice, but says poor government funding makes the state brief a very inefficient scheme.

During the interview that Friday afternoon at his firm on Carol House, Bombo Road, he showed me a cause-list of 17 cases he would handle in 40 days beginning November 1. Two other advocates had been assigned 17 each, but for the 51 cases, he told me, court offered a paltry Shs9.8m.

We did the simple math: each lawyer got Shs3.26m, meaning each case carried Shs192,000. Some files had five co-defendants, meaning each individual is represented for Shs38,000.

“That doesn’t even fuel my car to and fro court for a day,” Mr Mbaziira said.

As a private attorney, he charges Shs200,000 for just a warning letter, and at least Shs5m for a criminal case. “If you are moneybags, we can even charge you Shs100m.”

The Poor Persons Defence Act 2000 provides that State will pay a lawyer a maximum of 50 currency notes to defend a poor man in a capital case. A currency note is worth Shs20,000 which means Shs1m.

But state briefs end up getting Shs200,000 per case or even less. Why? “The judiciary operates on just a third of its budget,” said Paul Gadenya, the chief registrar of the judiciary. He explained that in a criminal session of 40 cases (of 40 days), a judge is allocated Shs40m. That is Shs1m per case, for the judge’s allowances, the witnesses’ expenses and the lawyer’s expenses.

He admits that under such circumstances, a lawyer so passionate for the defendant’s justice faces the tough choice of spending his own money on research, investigations, regular prison visits or doing just what fits the slim State budget.

“And it’s not the best advocates, who take up the state brief, rather it’s the average ones,” Gadenya adds. “So the suspect might not receive the best counsel…” His general assessment: “Yes, they try very much, but they can do better.”

Explaining the cause of inexperience, Jaffer Senganda, president of Muslim Centre for Justice and Law, a voluntary legal aid service provider, says “Civil suits are lucrative; so the best lawyer would prefer a land case, sure that if he wins even if his client is poor, can sell part of that land and pay him, reasonably.”

But win or lose, there is little or no gain for a state brief in a capital case.

I asked Mbaziira whether losing many cases has negative implications on a state brief’s record. He answered ‘NO’, unless one is implicated in corruption.

Hence, it’s not just the poor defendant who cannot afford justice; even the State that can’t facilitate comprehensive criminal investigations or command its underfunded public attorney. As Mbaziira simply put it, if you can’t pay the piper, you can’t call the tune.

But the biggest worry, like Peng wrote in the Washington Post, whenever a public defender is constantly required to do more with less, it’s the client to suffer.