PART II: In 2007, Justice Patrick Tabaro spoke at Makerere University about the problem of backlog of cases in Uganda’s judicial system and alternative dispute resolution (ADR) could help.As the issue of alternative justice returns to public discussions, today we publish the second and last part of the slightly edited version of the paper Justice Tabaro presented.
It is well known that many cases which can be settled out of court are filed for litigation because ADR is not properly appreciated. There are jurisdictions in which in one court several hundred disputes enter annals of legal history as resolved, notably in the United States of America.
In this paper the causes of conflict in our society would have been useful to treat. It is certainly intriguing to wonder whether our society is not conflict prone; it is only in Uganda, as opposed to Kenya and Tanzania, which share the same legal system as ours, that governments have changed by force six times since independence.
Conflicts beget disputes. However, I express no opinion as to the factors that engender disputes in Uganda, and the underlying causes. In scholarship, there is opinion that due to historical reasons, civil law countries have applied ADR more readily than common law countries.
The argument is that since the French revolution of 1789 power has shifted to the ordinary people; therefore the judiciaries in the Francophone countries, administering Roman French Law, easily concede authority to non-state actors to resolve disputes.
As a matter of fact there is a whole office, of the Mediator of France, set aside for mediating disputes, including those between government and private individuals. As an example, we can take the USA and the UK to highlight the gravity of backlog and how ADR has been utilized to address the malaise.
As early as 1906, at a conference to address backlog in USA, Roscoe E Pound remarked “We have reached the point where our systems of justice, both state and judicial, may literally break down before the end of its century”.
Pound expressed fear that American society was in danger of being overrun by hordes of lawyers, hungry as locusts, and brigades of judges. It is not far from the truth to say that with slight modification the remarks can apply to Uganda today. R.E. Pound was talking about the problems that result from backlog of cases and how some people can profiteer.
In April 1976 the chief Justice of the supreme court of USA Justice Warren E. Burger called a conference on causes of popular dissatisfaction with administration of justice in the USA. It was attended by judicial officers, civil rights activists, public litigation lawyers and academics.
At the conference the idea of enabling people to resolve their own conflicts was mooted. It would appear the conference sparked off interest in alternative methods and ways of settling disputes.
In 1990, congress passed an act to require all federal agencies to develop policies on the use of ADR. It was made obligatory to appoint an ADR specialist and appropriate employees trained in ADR techniques. In 1991, an Executive Order was passed and obliged federal agencies to use negotiation or third-party settlement techniques in appropriate cases.
The appropriation of ADR as we know it today, apart from out-of-court settlement, did not feature in UK pay until 1999, with the introduction of the Woolf Reforms, named after chief Justice Woolf, who chaired the commission that introduced them.
He closely studied the system as applied in USA. Under the English ADR reforms, not only are alternative dispute resolution mechanisms introduced, the system is simplified and technical terms are done away with.
ADR comprises of an impressive package, applicable to various situations, depending on circumstances and nature of the disputes. The modes are Mediation, Arbitration, Early Neutral case Evaluation, Summary Jury Trial, Mini Trial, Private (Rent a Judge Proceedings) Multi-Door Court House, etc.
ADR owes its origin to techniques employed by various communities beginning with puritans in the 1600s, the new Amsterdam, the Jews in Manhattan’s East side, the Scandinavians in Minnesota and the Chinese in the west, and business people in resolving their disputes.
Although African communities in USA are not mentioned, those techniques are available in African traditional principles and mechanism of conflict resolution. In Uganda, with the amendment of Civil Procedure by The Civil Procedure (Amendment) Rules, 1998, mediation, arbitration and other forms of settlement, are introduced. Later, with the enactment of the Arbitration and Conciliation Act (Cap. 4 Laws of Uganda), conciliation was formalized.
A centre for arbitration and dispute resolution (CADER) was introduced. It is the nearest equivalent of America’s Multi-Door Court House. Here a judge has discretion to order ADR if he/she is satisfied that settlement is the best option. This discretion is rarely used except in the Commercial Court, where it was recently decided that before parties litigate, they must first explore ADR avenues.
The development of ADR in Uganda has interesting history. Although America takes centre stage especially with the assistance of Washington D.C Judiciary, the idea came from Canada in 1990, when Ambassador Tomusange, then Uganda’s High Commissioner to Canada, met informally, with Justice Ntabgoba, now retired Principal Judge. After the meeting, Ambassador Tomusange interacted with Canadian government officials and it so happened that the government of Canada was willing to extend aid to Uganda.
The Judiciary was proposed. Subsequently, a Canadian delegation met judges and it was clear that lawyers were presumed to be so learned that it was rarely necessary to access new information. Eventually the idea that judges, private legal practitioners and academicians should interact and learn together became acceptable.
The Leisserman delegation clinched the matter. A workshop was held here at Makerere University. Judges and other judicial officers became converted to the idea that in this ICT/knowledge-based society, learning constantly and acquisition of new techniques cannot be dispensed with. Private practitioners followed later but they have not whole-heartedly acceded to alternative justice philosophy. In truth, ADR has not been given the publicity that it deserves.
Australia in the common law tradition has gone furthest in utilizing ADR. It has harnessed indigenous ideas of reconciliation and compensation as opposed to punishment, in the Criminal System.
The magic wand for dealing with backlog in Uganda
The article of the Constitution which obliges judges to promote reconciliation, says that in adjudicating cases of both a civil and criminal nature the courts shall, subject to the law, apply the following principles – (among others):-
a) Justice shall not be delayed
b) Adequate compensation shall be awarded to victims of wrongs.
c) Reconciliation between parties shall be promoted.
Also, judicial power shall be exercised in conformity with values, norms and aspirations of the people (Article 126 (1) of the Constitution). Under the Civil Procedure Rules, Court has power to order ADR before a member of the Bar or the Bench named by the court.
The constitutional provisions above combined with Order 12 of Civil Procedure Rules to promote alternative justice can form the magic wand for curbing or eliminating backlog from the legal system. This is because courts can ignore technical rules, which delay adjudication, and are empowered to order ADR before judges, Magistrates and Advocates. It is proposed that mediation be popularized since mediation can be pursued as is already done in the Commercial Court, as is an imperative option.
We have already demonstrated that ADR is mandatory, as a matter of law, in the USA. For ten years, since introduction of ADR under the Civil Procedure (Amendment Rules/1998 (now Order 12 of Civil Procedure Rules), education in alternative justice has been more or less confined to the legal profession, the business community and the general public is not fully conscious of its significance or potential as a mechanism for dispute resolution.
When it is implemented, it is due to local councils when they exceed their powers, in default, in a word. The term alternative justice itself has not gained much publicity or popularity. Here education and publicity are the watchwords. It deserves emphasis to point out that application of alternative justice is not a retrograde step in adjudicating disputes. What has resolved the conundrum of backlog in other countries, such as USA, Australia, or UK, is not esoteric jurisprudence but, rather, recourse to traditional justice.
An attempt has been made to show the link with African civilization, as is the position in Australia. ADR is in accordance with the Constitution, African cultural values and aspirations. Mediation and arbitration can be done by non-lawyers. Although currently Africa bears many characteristics of instability, civil strife, famine and other aspects of negativity, there is still available large areas of civic and cultural life, which can be interrogated to enrich the legal system by focusing on alternative justice.
In this direction it can be pointed out that Africa is the home of philosophy generally. The word philosophy has no root in any European language, Greek inclusive. It comes from the Egyptian word “Sofia” which in ancient Egypt meant divine speech or deep thought because these were the hallmarks of wisdom. Early Greek philosophers who were on the world scene from 650-300 BC were conscious that they were not equals of the Egyptian sages.
The Greek thinkers called themselves lovers or admirers of Egyptian wisdom, hence philosophers (philo=love, Sofia=wisdom). The African idea of compensation, reconciliation and not punishment, accords with Ubuntu from Bantu Philosophy. I should point out that Ex-President Clinton is popularizing the idea in American universities as the idea of “I am because you are, and you are because I am” – the inter dependency of all human beings and stability. It is a realization that reconciliation promotes harmony and stability. Bill Clinton sourced the idea from Africa.
At the annual conference of Britain’s Labour Party just before Premier Tony Blair left office, Bill Clinton made Ubuntu the cornerstone of his presentation. Since the backlog statistics at the start of this paper were compiled, backlog has assumed critical proportions. There are on average 1,000 cases for each judge to determine. There is no amount of dedication or level of efficiency that is humanly possible to clear the backlog within the present framework, and our present wind set.
The answer is ADR or alternative justice. For practical application of mediation, arbitration- reconciliation and compensation in an African setting the reader is referred to Dr. E.E. Evans Pritchard - The Nuer, A description of the Modes of Livelihood and Political Institutions of a Nilotic People -Oxford University Press, 1940. He was one of the best known European anthropologists, before independence.
The principles among the Nuer embody “Ubuntu” under Order 12 of the Civil Procedure Rules; it is a legal requirement to attach a summary of evidence to pleadings when they are filed. From the summary, which should be the substance and not the shadow of the evidence in support of the claim or the defence, court, after the scheduling conference, should be in a position to decide whether the matter is suitable for ADR or litigation?
Since delivery of the paper in 2007 at Makerere, there have been some changes in approach to backlog in the Judiciary: mediation is obligatory in the commercial court, while special sessions targeting backlog in other divisions have been mounted countrywide. It is reported that in the commercial court, the rate of disposal of cases has increased five times over. The special sessions have eliminated stale cases inter alia, thus paving the way for dealing with recent cases.
The author is a retired judge.