The Conundrum: The Judiciary is Suffering from Judges Who Cannot Balance the Law with Common Sense and Ubuntu

The Ugandan judicial system is so monetized that there is a famous saying that the poor cannot win a case.
In Uganda fraudsters collude with magistrates to keep postponing bogus cases to force an innocent person to capitulate and make concessions

On 28^thNovember 2022, a conference for the registrars and magistrates was held in Kampala. And the sameexposed a lot about the state of the Ugandan judiciary. During the conference the Ugandan Chief Justice, Hon Owinyi Dollo made some sweeping statements, and also took the opportunity to castigate Prime Minister Jessica Nabanja for having intervened to save an old woman from jail.

Speaking on that Monday afternoon at Mestil Hotel in Kampala, upon opening the Annual Registrars and Magistrates’ Conference, Owinyi-Dollo went bare knuckles in responding to the actions of Nabanja who had previously, stormed the Mengo Magistrate`s Court and grilled a Grade One Magistrate, Amon Magezi.

Magezi had ordered for the imprisonment of a widow of seven children, over a land dispute. Can you imagine!This Magezi man was not living to his name! Although he was quoting the law, his decision lacked common sense and a sense of compassion – Ubuntu. But amidst thunderous applause from the judicial officers, Owinyi-Dollo said Nabbanja’s actions are unacceptable in a country that has a constitution that recognizes the judiciary as one of the three equal but independent arms of government.

“The judiciary of Uganda will never be intimidated under my watch…I also want to commend the Rt. Hon. Prime Minister for her zeal except that this time it got misplaced,” Dollo said, attracting a standing ovation. Ms Nalule had been jailed over an outstanding civil debt of UGX2.8M. This amount, she had failed to pay back and when matters were subjected to a judicial process, the Magistrate ruled that she had to get jailed but the Prime Minister came to her rescue.

The Law Vs Ubuntu

This case had so many dimensions, one of which was that it led to a direct clash between the judiciary and the executive. This is simply because the judgement lacked common sense and humanity. Under the law, which disregards Ubuntu, the old lady had one option to appeal for another hearing. From this appeal, she would perhaps get another hearing which would rule in her favor. But that was not the case.

Since she was poor, Ubuntu should have been exercised to see how she pays up without leaving the seven children without a guardian angel. The Prime Minister rightly intervened and cleared her loan arrears and lambasted the courts for being insensitive to a very poor 80-year-old woman with such a baggage of seven orphans to look after.

It’s understandable that the magistrates stick to the law. But it’s also not necessarily for the law that harmonizes society. sometimes its common sense and compassion that can harmonize the world. The law is designed as a set of rules to follow in guiding society to a common good. But sometimes the law can be very harsh, like we have seen in this case. The man who coined the saying that `the law is an ass` might have had a point.

The judges must identify cases that lead to a clash between the law and humanity. Where the law is tending towards a harsh outcome, the judge needs to reconsider and weigh the options. The law was designed in such a way that it does not discriminate between age, as the the case in this particular one.

It is not a case of ruling in favor of someone simply because they are older or advanced in age. The law is anchored on facts of the case upon which the magistrate makes his or her judgment. But we have seen cases where some judgments have led to mob justice. For instance, it’s in Uganda where you find a magistrate ruling in favor of a landlord to evict hundreds of people from land where they have inhabited for more than 50 years.In that case, the law should be put aside in favor of Ubuntu. Sometimes, the rich landlords have colluded with judges. This has led to such unfortunate scenarios.

Poor Funding:

One of the biggest challenges in the Ugandan judicial process is that the Criminal Investigations Departments are not well funded. You don’t need a clone scientist to reveal that no case can be concluded successfully without concrete evidence. This obviously means that the investigative arms of government need to be well funded to achieve total justice, like we see in the western world.

Justice cannot be secured in a poor environment using rudimentary means. You need a sophisticated manpower that can trace all the dots related to a given case to secure a reliable conviction. Although government tried to increase the budget for the judiciary, more funds need to be pushed into the investigative departments like the CID.

Delaying Tactics

Because evidence cannot be easily secured to lead to an obvious conviction, this has led the courts to use the trick of delaying cases by postponing them for years. A fraudster who wants somebody’s land can file a nonexistent (assault) case against that particular land owner and then bribe the magistrate to keep postponing the case.

This continuous delays and postponements are a nightmare that forces the legitimate landowners to make concessions which may lead to unnecessary settlements with the fraudulent opportunist.

This is done out of fatigue of having to go to court every week. This, mostly forces the legitimate innocent person to capitulate and yield to the whims of the fraudster. This delaying tactic has been the main cause of the huge case backlog where some courts still have cases as far back as 2015 on their files!

Securing phone records

A phone is very important tool that can be used in tracing criminals but in Uganda, even tracing the phone calls is a tall order that requires a lot of money from the police. In most cases, courts meander into unnecessary irrelevances, yet a mere trace of the phone call records can easily put the criminal at the exact scene of crime. You will instead find phone records omitted as part of evidence because they are too expensive to secure.These challenges have made the Ugandan judicial system so monetized and expensive in line with a famous local saying that the poor cannot win a case.

8:12 pmhe Way Forward?

If there is any sector that needs a revolutionary overhaul, then it’s the Ugandan judicial system. We need a complete review about case backlog so that cases are given time limits to either be completed or deleted from the files within a period of less than a year. This should be, to avoid the delaying tactics used by fraudsters.

Phone records should be secured from the telecom companies at no costs to help in intercepting criminals with evidence. The justice system should dictate that where phone records are related to a criminal case, they should be secured promptly for free of charge to help put the criminals to the sword of justice. Most important of all, Ugandan judges must learn to balance the law in tandem with common sense and Ubuntu.