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Justice be done
[ By Georg Sticker and Dorothee Hutter ]
The jail in Kigo near the Ugandan capital of Kampala houses some 900 inmates, twice as many as it was designed for. Most are on remand. Depending on the charges, the inmates are tried in different courts. The jail owns a truck that brings them there. The truck, however, also serves to supply the institution with food, wood and water. It is getting old and may break down any minute. As a result, no one knows for sure that the inmates will get to court on time.
Those who are so fortunate immediately face a number of additional obstacles. Will their lawyer show up? Does the court have all of the documents it needs? Have there been any procedural flaws? If any of these things go wrong, the trial may be postponed for weeks or even months.
Justice is a time-consuming and unreliable affair in Uganda. At the beginning of 2006, 21,822 cases were pending, some 2,000 more than one year earlier. The number is not only increasing because the crime rate is growing. Another important reason is the ongoing lack of institutional cooperation.
Reforming only a single part of the justice system will not remedy the situation. Back in 2000, that was evident to all those who teamed up in Africa’s oldest sector-wide approach on "Justice, law and order” or JLOS (see box next page).
Since then, quite a bit has changed. In 2004, the International Human Rights Networks and the Nordic Consulting Group concluded in an interim evaluation that coordination, communication and cooperation had improved in the justice system. Recent figures reflect that trend. For instance, the average time spent on remand for felonies dropped from 24 to 15 months. At the same time, the number of persons on remand in these matters for more time than legally admissible dropped decisively, from a staggering 30 % to below one percent. Nonetheless, much remains to be done.
The sector-wide approach implements some innovative ideas to improve the justice and penal systems as well as reduce the number of inmates. For example, those found guilty of minor crimes may now be sentenced to social work instead of incarceration – a novelty in Uganda. In any society that, like Uganda’s, has a tradition of penalisation along with a number of traditional means for reconciliation, it is no easy thing to introduce new concepts.
So long as people, who were wronged, remain unaware of the new approach, they are likely to think that criminals stay unpunished when they see the culprits still moving around freely in their neighbourhoods. That is something the National Community Service has pointed out. Therefore, awareness-raising campaigns are underway in the institutions of justice as well as the general public.
At the same time, social-work sentences need to be better enforced. The Youth Ministry's Probation Service has been entrusted with this task, but enforcement could be improved.
On the other hand, the benefits of the new method are obvious. Social work serves society at large. At the same time, the number of inmates is reduced, leaving more resources for those incarcerated. Moreover, resocialisation problems are reduced, and the livelihoods of fewer families are affected as fewer fathers are locked up. More than 80 % of all perpetrators are men whose legal incomes are crucial for their families.
The campaign began in four pilot districts, where those found guilty of committing minor offences were sentenced to social work. For instance, they had to clean health centres or repair school furniture. Only 10 % of those sentenced to social work became repeat offenders, far below the rate of those incarcerated (40 to 60 %) as JLOS documents reveal.
Whoever wants to improve workflows, should start by asking customers. That is exactly what Uganda's Commercial Court did when it set up so-called "user committees", where representatives of industry tell justice officials what they need.
Accordingly, the Commercial Court has streamlined a couple of procedures. In addition, mediation and out-of-court settlements are now available in cases of business disputes, to the particular benefit of small companies. Settling disputes out of court is much less expensive and faster than in court, and disgruntled parties are much more likely to seek mediation than to sue someone.
For alternatives to conventional procedures to materialise, justice officials and legislators have to open up to new ideas, as they are the ones who have to establish the required legal framework. Doing so pays, at least according to the International Finance Corporation, a subsidiary of the World Bank. In 2004, its report "Developing business and infrastructure in Africa" stated that commercial dispute resolution had not only been streamlined recently in Tanzania and Uganda, but had even become more efficient than in many industrialised countries.
Paralegals in conflict regions
Uganda's justice system faces special challenges in the north, which has been suffering from near civil war for more than 20 years. State institutions are very weak in this region. In the District of Gulu, for example, only 160 police officers serve some 600,000 residents. Courts are rarely in session, and sessions are not regularly scheduled.
Many people in Gulu are not aware of their constitutional rights. Experience has taught them that it is better to simply shy away from the police, militias and soldiers. Few can afford lawyers, who are very rare anyway. Moreover, those born in camps for internally displaced people are also unfamiliar with traditional value systems as well as stable community networks and extended families. Daily life in the camps is haunted by frustration, disease, poverty and a lack of prospects. In cases of conflict, usually the strongest prevail.
In view of such challenges, civil-society actors have come up with innovative instruments. For example, the Commission for Justice and Peace of the Catholic church’s Gulu Diocese has trained 120 paralegals. These paralegals are not simply playing assistant sheriff, acting as grass-roots judges, or offering cheap legal advice. Rather, they are volunteers with some training in basic issues of civil and human rights, law and order as well as conflict mediation.
They help settle disputes, inform victims of violence about their rights, and – what matters most – pass on information about felonies to justice officials. A consortium of bilateral state donors in cooperation with international civil society supports the paralegals programme as well as not-for-profit and private-sector "legal aid clinics".
Paralegals and legal aid clinics will be relevant for a long time. More than a million internally displaced people will return home at some point. When they do, decisions will have to be made concerning who owns what land and who has claims to which water source. Traditional village structures have been damaged, and, in many cases, the institutional memory of the village elders, who used to settle such disputes, is lost. The state will hardly be able to establish formal systems of law and order in the short term.
Furthermore, traditional rules must be taken into account at the local level. Time and again, such traditional systems conflict with the official legal system. Often, a pragmatic balance has to be struck between either finding quick punishment for an offence or prosecution according to Uganda’s penal code. The latter may often not be viable, and if so, still take quite some time.
Those who want to see justice served better in Uganda must take into account all relevant components as well as all relevant actors. They may also have to go down unconventional paths. For a number of reasons, the state cannot ensure a formal system of law and order always and everywhere. Accordingly, it simply will not suffice to merely improve legislation and infrastructure.
On the other hand, the complexity of an integrated, sector-wide approach should not be underestimated. Weak components can thwart the entire reform process. Innovative steps are needed, leading to quick, visible progress, in order to garner support for the project as a whole. While it does take time to integrate civil society and the private sector in the process, such efforts make sense in terms of raising people’s awareness and convincing them.
Comprehensive reforms in Uganda's sytem to enforce rule by law are a complex and cumbersome long-term task. It will not be done overnight. Fortunately, the initial successes prove that rising to the challenges is worthwhile.