Plea bargaining as a response to challenges in the Criminal Justice System in Uganda, Will it Work?

 On September 28, 2015, PILAC organised a public lecture on plea bargaining which was facilitated by the DPP, Honorable Justice Mike Chibita and the Secretary of the plea bargaining Committee at the Uganda Law Reform Commission, His Worship Andrew Khauka. The lecture was hosted at the School of Law and was blessed with the presence of the Principal, School of Law, Dr. Damalie Naggita – Musoke, the former Dean, Professor Ben Twinomugisha, Dr. Ronald Ruhweza, the Coordinator PILAC, Associate Professor Christopher Mbazira, PILAC staff and the students of the School of Law.

 In the welcome remarks, the Coordinator PILAC, Dr. Christopher Mbazira thanked the DPP for honoring the invitation to come back to his former school to share his knowledge as a senior practitioner. He mentioned that the reason for the choice of the day’s topic and presenters was to offer an opportunity to the CLAPMOC students particularly and the law students generally to appreciate the operation of plea bargain as a workable alternative to criminal trials and by which justice is achieved in a short time and at a low cost. In her comments, the Principal, Dr. Damalie Naggita-Musoke also noted that the day’s lecture was marking the first engagement between the school of Law and the Directorate and added that it was a good opportunity to expose students to the deeper workings of plea bargaining as a criminal justice system which she noted has the potential to reduce on the case backlogs as well as the periods spent in detention.

This objective was welcomed by the two presenters who noted that it was timely for both the School of law and the Directorate to conduct the lecture in order to create awareness about the process amongst the future generation of the legal profession. They noted that the process begun in 2013 in light of the challenges of the colonial criminal justice system that emphasizes prosecutions and ultimately sentencing. That in the case of Uganda, these included; over 50% of the accused  being on remand 10,000 of whom were capital offenders. That as of August 2015, over 9000 accused were committed for trial in the High Court yet in lieu of the judge to population ratio, each of these cases can only be disposed of in a period of 5 years meaning that the accused would have to be on remand for that period! This when added to the cost of each trial, feeding costs for the period on remand as well as the issue of congestion in the prisons, one cannot help but to think of a more workable approach. That Uganda’s new approach is being inspired by the United States’ approach to the criminal approach where 90% of the cases are resolved in plea bargaining yet they have more resources and personnel.

The DPP observed that plea bargaining has proven to have the capacity to involve the victims in the justice system for example through consultations prior to conclusion of and sentencing in a plea bargain through an impact statement. On the contrary, this is never the case in a criminal trial where the judge uses his discretion to sentence. To the extent that the accused persons in capital offences are privileged by the constitutional guarantees of fair trial which for example require them to be represented, at the expense of the state, by a lawyer of their choice unless they express willingness to hire their own lawyers which is 99% and 1% likelihood respectively in Uganda’s case.  A decision deriving from such a system while may have the capacity to deliver justice strictly speaking, it may not necessarily appear so to do in the eyes of the people.  Interestingly, a plea bargaining exercise offers that opportunity both to the victims and also those accused persons who are willing to confess their crimes and serve a quicker and negotiated sentence more over with very few appeal cases there from; this further reducing on the current problem of backlog. 

The DPP noted that the only challenge that is affecting the process so far is misconception of the concept; with some people wrongly thinking that it is a substitution of criminal responsibility where by upon making the bargain the accused then is set free. But that on the whole, the process is good in as much as it tends to quicken the justice process. In terms of the statistics, the first pilot exercise with the process yielded a conviction rate of 86% compared to 56% in the traditional formal criminal trial system. The rate of success was 80% as compared. In terms of success in disposing of the cases, the same pilot exercise was rated at 80% while the traditional trials having employed all efforts yielded a marginal 50%.

Therefore in response to the question whether plea bargaining will work, the DPP observed that it is working with the most recent example being the cases of corruption in the Office of the Prime Minister (OPM) where 20 culprits who had embezzled sums less than 10 million had their cases plea bargained thereby saving on expenses and time which would have been spent on trials whose success would be a game of chance given the standards of proof required of evidence in lieu of the investigation challenges in these criminal processes. As a way forward therefore, the DPP noted several further steps that are being taken in order to improve bargaining. These include: mainstreaming the plea bargains in the entire legal framework right from the point of arrest so that those who are willing to plead guilty can proceed to sentencing straight away, plea bargain 50% of the cases, put in place a system of asset recovery and forfeiture in cases of corruption, improve investigations, as well as having a quicker response to cases.

As an entry point for the academia at law school and the students, Justice Chibita called upon the academia to, in as much as possible, do positive criticism of the process because only then will the process be improved. To the law students, the DPP was hopeful that a partnership with PILAC’s CLAPMOC project would go a long way in mitigating the human resource challenges at the directorate. That these will help in interviewing and sensitizing complainants and the accused persons about the value of the process and the need for their participation. From this symbiotic relationship, both the Directorate and the students will benefit with students having a bigger share since they will be prepared to take on the process at the Directorate during their practice after Law School. Above all, he called upon all members to avoid getting involved in criminal activity so that they do not increase the number of cases. Finally, he advised the students to read hard and pass so that they qualify to join the noble legal profession.

 

Report by Brian Kibirango