Roots of alternative dispute resolution in Uganda

Monday January 14 2019

 

By Helga Akao

Alternative dispute resolution (ADR) on the international scene has long been used throughout the court systems around the world significantly reducing court backlog. In light of its settlement results, the method has also been applied by both the private and public sectors.

Therefore, time and money that would otherwise be spent in costly and lengthy litigation, have been saved. In Uganda, the method is not so common, but things are changing.

ADR refers to methods of dispute settlement that do not involve litigation in the courts. The ADR mechanisms are arbitration, mediation and conciliation. Long before ADR was introduced into our judicial system, there already existed mechanisms of conflict resolution in many cultures.

The aim of dispute resolution then was to restore peace, keep the concept of community alive and the tribe together. It focused on encouraging reconciliation and restoring the relationship of the parties.

Whenever there was conflict, the parties usually sought the aid of a third party to help them arrive at a solution.

This third party was often someone respected in the community, whose opinion was valued and was either a chief, an elder or a person known to be wise. This was the manner in which everything was handled, including what would now be considered a criminal matter in today’s judicial system. (A good example found within the Lango culture of northern Uganda).

Traditional conflict resolution methods valued the community and the long-term relationships of the parties, a platform ADR values. Uganda could have adopted this system much earlier, however, there were concerns that certain legal rights were not always protected under this system such as in cases of defilement and domestic violence.

Uganda thus did not readily incorporate ADR into her judicial system. In addition, there was a belief that encouraging ADR would deter adherence to the rule of law and cause confusion in the justice system.

As years went by, alternative dispute resolution of which conciliation, mediation and arbitration are a part, was first formally introduced in Uganda through the enactment of the Arbitration Act in 1930. This was followed by Order 43 of the Civil Procedure Rules SI 63-3 which provided for arbitration under order of court.

However, at the time the adversarial system of dispute resolution was much more favoured than ADR. It was rare that cases got sent to arbitration – a request for arbitration was sometimes seen as an attempt to oust the jurisdiction of court. There was a perception that ADR processes were inferior to litigation.

With a growing preference for ADR mechanisms on the international scene, Uganda too became more open to ADR in order to encourage trade and foreign investment. This led to the enactment of the Investment Code Act 1991 (Cap 92) that encouraged the amicable resolution of investment disputes. This was highly favoured by foreign investors who sometimes appointed foreign arbitrators to resolve their disputes.

Also, a known fact that the Royal Courts of England were embracing ADR further encouraged its adoption in Uganda because of a shared common law judicial system.

In 1994, the Justice Platt Report on judicial reform recommended the increased use of ADR alongside litigation and the creation of a Commercial Division of the High Court.

Uganda also adopted the policy of encouraging reconciliation between parties whether in criminal or civil cases and this was enshrined in the 1995 Constitution of Uganda. The general attitude towards ADR changed a great deal as courts now saw ADR as a means through which parties could be reconciled.

In 1998, the Civil Procedure Rules were amended to enable courts to assess matters through pre-trial conferences before proceeding to trial. This enabled them to determine whether a matter could be resolved through arbitration or mediation as trial was seen as a last resort. The courts became important drivers of ADR.

In 2003, the then Chief Justice Benjamin Odoki issued Legal Notice No 7 of 2003 which introduced the first pilot project of court-based mediation at the commercial division of the High Court. Court-based mediation was introduced to reduce the problem of case backlogs. Here Ugandan courts did not only embrace ADR through arbitration but it was at this time that mediation took on a prominent role in the justice system.

Following the successful implementation of the pilot project in the Commercial Court in 2013, mediation was rolled out to all divisions of the High Court and is now mandatory prior to proceeding to litigation with a civil matter and as such, the public is beginning to embrace it and see its advantages.

Ms Akao is a lawyer. This article was co-authored
with Mr Joseph Paul Ekemu, also a lawyer

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