|
Paper
Dated 17th September. 2019
ACCESSING THE EFFECTIVENESS
OF PLEA BARGAINING IN UGANDA COULD REDUCE CASE BACKLOG IN CAPITAL
OFFENCES IN SIGNIFICANTLY
|
PLEA BARGAIN IN UGANDA
Paper Dated 17th September.
2019
ACCESSING
THE EFFECTIVENESS OF PLEA BARGAINING IN UGANDA COULD REDUCE CASE BACKLOG
IN CAPITAL OFFENCES SIGNIFICANTLY
|
By
MWESIGWA ONESMUS LLB(HONS)(UCU, DIP LP (LDC)
PAPER ABSTRACT
This study assessed the legal status of plea
bargaining in Uganda’s criminal justice system. The study focused on the
challenges facing the access of effective plea bargain in Uganda’s criminal
justice system and its role in reducing case backlog of capital offences. To be
able to better understand this virgin area of study in Uganda, the study looked
at the several research papers on the topic with particular focus on the plea-bargaining
best practices. The study also makes findings, and proposes recommendations.
The term plea bargain
means the process between an accused person and the prosecution, in which the
accused person agrees to plead guilty in exchange for an agreement by the
prosecutor to drop one or more charges, reduce a charge to a less serious
offense, or recommend a particular sentence subject to approval by court.[1] Once the plea bargain process is complete, it is reduced into a plea
bargain agreement entered into between the prosecution and the accused person
regarding the charge or sentence against an accused person.[2]
Case backlog on the other hand refers
to those cases that are not resolved within time goals that courts have set
down for themselves.[3] However a stricter definition is that
backlog of cases are confined to those cases which are ready for trial but yet
to be disposed of and without any definite time for disposal.[4]
BACKGROUND
Plea bargain in Uganda is regulated by the Judicature (Plea Bargain) Rules 2016 which
were established under the Judicature
Act section 41 (1) and (2) (e).[5]
Plea bargain is a new innovation in the Uganda’s
Criminal justice system with most of the judicial officers and other
stakeholders in the criminal justice system learning on the job. The procedure
is yet to be internalized by both the prosecution and courts at both the trial
and appellate level.[6]
In March 2017, a
report of the Case Backlog Committee was released by the Case Backlog Reduction
Committee of the Judiciary, which advised that there be an established early plea-bargaining schemes in the criminal justice
system.[7]
In 2018, the Judiciary was able to complete
2,000 cases[8] which was attributed
to the spearheading of plea bargain initiative.
It is therefore imperative to state that achieving effectiveness of
plea bargain could go a long way in reducing case backlog in criminal matters.
UGANDA’S CURRENT SCENARIO
Uganda’s High
Court faces serious challenges with case backlog; this has resulted in many
suspects spending over 24 months on remand awaiting trial.[9] In the case of Uganda v Aberninga
Francis[10] the accused, had spent two years on
remand prior to his plea bargain hearing whereas in Uganda v Oryema Pastore[11],
the accused had been on remand for two years and three months prior to
his plea bargain hearing.
Given the
seriousness of capital offences, and the need to dispense justice faster and
more effectively its worthwhile stating that access to effective plea bargain
can help the High Court of Uganda in reducing case backlog and in particular
capital offences.
CHALLENGES
Troubled criminal justice systems face serious
challenges in introducing reforms that better protect their citizens from both
crime and human rights violations. Finding more efficient and fair ways to
resolve criminal cases is a fundamental part of the process of rule of law
development[12] but this comes with challenges and the same can be said for plea
bargain in Uganda.
LACK OF ADQUATE SENISATION OF PRISON INMATES
The Judiciary has in the recent past partnered with
the Justice, Law and Order Sector (JLOS), Pepperdine and Yale Universities to
conduct certain plea bargain training to inmates in selected prisons across the
country including Mbarara prison where on 12th March 2019 300
inmates expressed willingness to take part in the plea bargain exercise[13] and Gulu Prison on 16th June 2018[14] among others.
Amidst such efforts, plea bargain is still yet to
be widely practiced and have its best practices put at the forefront of the
initiative. Many inmates
in the several prisons on remand for charges of
capital offences are still unaware of plea-bargain programme and the handful
that have heard about the programme, a majority of them do not understand
clearly how it operates.
CHALLENGES SOME JUDGES AND OTHER STAKEHOLDERS FACE
Judges play a central role in our criminal justice
system in ensuring that the rule of law is adhered to. In relation to plea
bargain in Uganda, some Judges appear not to have fully appreciated the best
practices of plea bargaining in the wake of its introduction onto Uganda’s
Criminal Justice system.
In the case of Insenko Adams v
Uganda[15] the learned Judge Hon.Lady Justice Margaret Mutonyi, noted that;
“There is no doubt that plea bargaining is a new
innovation in the Uganda Criminal justice system with almost no precedent. It
is a response to challenges in the criminal justice system in Uganda and being
new, most of the judicial officers and other stake holders in the criminal justice
system are learning on the job. The procedure is yet to be internalized by both
the prosecution and courts at both the trial and appellate level.”
While visiting inmates in Mbarara District in March
2019, the Principle Judge Hon. Justice Yorakum Bamwine stated that;[16]
“For a long
time, you people have complained that Judges change sentences after you have
agreed on them. Our message to all the judicial officers is that once they
agree on sentences presented to you and you are in agreement with it, when you
go to court, kindly don’t change it.”
The above observations are a clear indication that
our Judiciary, notably Judges have not acquainted themselves with the plea bargaining
best practices bringing a strain to the access to effective plea bargain. It’s
thus clear to note that there is no clear and deliberate program to adequately
train the different stakeholders in regards to plea bargaining and this has had
an effect on the effective access to plea bargaining in Uganda.
Other stakeholders like prosecution lawyers,
defence lawyers and police also have demonstrably little knowledge on the
practice of plea bargain posing a serious challenge to the access of effective
plea bargain.
ANTICIPATED CHALLENGES
Given that the plea bargain initiative is still in
its early years, it can be stated that there exists anticipated challenges that
are yet to manifest. For Uganda’s criminal justice system to offer effective
access to plea bargaining as a toll to reducing plea bargaining in Uganda, such
challenges should be looked at in hindsight and adequate measures put to
mitigate them.
Public Perception
In the wake of the plea bargain initiative is the issue of public
perception towards the practice should be a serious concern. Plea bargain in
Uganda if not “marketed” the right way can in the alternative contribute to a
public perception that the legal system is corrupt. [17] This is so because
plea bargaining is most often an informal negotiation behind closed doors and
with little transparency.[18] Where plea bargain commonly results, or is perceived to result, in little or no jail time, it can
look like defendants are negotiating their way out of criminal responsibility.[19]
In the case of Uganda v Butare Matayo[20], the accused was
indicted with the offence of aggravated robbery contrary to sections 285 and
286(2) of the Penal Code Act. The Judge rejected the plea bargain agreement of
3 years and sentenced the accused to one year and six months imprisonment. Such
discrepancies in sentencing can give rise to perceptions of an unfair or unjust
legal system. This can have a serious implications on overall perceptions of
the legal system which is working
hard to reinforce trust in legal institutions.
Serious Concerns
of Coercion of confessions
Many a times prosecution uses confessions by defendants as evidence in a
trial and this heavy reliance by some prosecutors may encourage continued
routine coercion of confessions.
Even where coercion is not a concern, plea bargain offers an incentive
for defendants to admit guilt regardless of whether they committed the crime
charged or not. The offer of decreased charges or sentencing may be enough to
convince innocent defendants to plead guilty. In addition, where prosecutors
offer a deal in return for cooperation, defendants may offer exaggerated or
falsified information to get a better plea agreement.[21]
Need for
affordable representation
Plea bargain involves having the defendant’s lawyer
carry on the plea bargain negotiations on his or her behalf. The inception of
plea bargain in Uganda has seen a heavy reliance on legal aid service providers
to offer this service. However, due to the limited number of legal aid
practitioners in Uganda, a large number of defendants are left without
representation. If large numbers of defendants are unrepresented in criminal
cases due to a shortage of
defense lawyers, or a lack of funding to pay for their services, this can prevent plea bargain from being widely used.[22]
INADEQUACIES WITH THE PLEA BARGAIN RULES
In the case of Inensko Adams v Uganda[23] court observed that the rules[24] give the judicial officer the opportunity to superintend
over the proceedings to ensure there is no miscarriage of justice or abuse of
the process making it a mockery of justice. The judge or judicial
officer may recommend a particular sentence which in his or her opinion serves
the justice of the case.
Rule 8(2) provides that, “The parties shall inform court of the plea bargain negotiations
and shall consult the court on its recommendations with regard to
possible sentence before the agreement is brought to court for approval
and recording.”
The Rules do not give the judicial
officer discretion to impose his own sentence but rather discretion to reject a
plea bargain agreement all together. This will occur where the court is
satisfied that the agreement may occasion a miscarriage of justice, it may
reject it under rule 13 of the above-mentioned rules and refer the matter
for trial subject to rule 8(3).[25]
The challenge arises where the trial
Judge does not approve the agreed position. He would then have to comply with
rule (8)(3) of the Plea Bargain Rules of 2016 which provide that he may not
preside over the trial in a failed bargain where one has heard.
Rule 8(1) and (3) of the Plea Bargain
Rules of 2016 provides that;
(1)"The
court may participate in plea bargain discussions” and (3) “subject to sub rule (1). a
judicial officer who has participated in a failed plea bargain negotiation may
not preside over a trial in relation to the same case”.
The learned Judge Hon. Lady Justice Margaret Mutonyi in
the case of Inensko Adams v Uganda[26] stated that, such scenarios may be exceptions to the general rule. As
much as I want to believe that to be true, Uganda has not had enough plea bargain
case scenarios to come up with a conclusive stand.
In the absence of that, it remains to
stand that a case where plea bargain has failed, has to be handled by another
Judge which defeats the very purpose of reducing case backlog. In fact, in such
a scenario it’s possible that more time could be wasted on the part of Judges
especially those who take part in the plea bargain process only to hit a dead
end and the case has to be heard by another Judge altogether.
UNREGULATED
NATURE OF PLEA BARGAIN NEGOTIATIONS
There is no plea bargain negotiations procedure designated to be followed
while conducting a plea bargain negotiation. The process is entirely informal
in nature. In The unregulated nature of plea negotiation makes the practice
vulnerable to abuse.[27]
For plea bargain to function, prosecutors need to have the discretion to
decide when to offer plea bargains and what the offer should include. This can
lead to different legal outcomes for otherwise similarly situated defendants.[28]
Usually, prosecutors are a step ahead in the understanding of plea
bargaining as against defense lawyers who for the most part could be
experiencing plea bargain for the first time. Pitting trained prosecutors
against defendants with little legal knowledge in an informal plea negotiation
can put a defendant in a vulnerable position.[29]
As a result, this process can be easily abused and in the worst-case
scenario, escalate tensions between an accused and the complaints where the
negotiations go sour.
RECOMMENDATIONS
The recommendations point to two main issues that
need to be addressed so as to achieve effective access to plea bargain and
reduce case backlog in Uganda criminal justice system. The two major issues to
be looked at are; first, providing training to all stakeholders to better
understand and appreciate plea bargain best practices. Second; to have
continuous sensitisation of both the public and prison inmates on remand of the
importance of plea bargaining.
TRAINING
Training is the most important tool in the
development of the understanding of plea bargain in Uganda and anywhere for
that matter.[30] When new laws come into force, there is
undoubtedly a need to train the judges, prosecutors, defense lawyers, and
police. Training will go a long way in equipping the deferent stake holders
with the relevant skills to be able to facilitate effective access to plea
bargain in Uganda’s criminal justice system and held reduce case backlog in
capital offences.
PUBLICATION AND PUBLICISING
The Judiciary with
the assistance of the different stakeholders should embark on a massive public
information campaign to publicize plea bargain to the general public. Some
publicity has been done by the Judiciary with several media houses reporting on
the same, however a lot more needs to be done. This can help to reduce or avoid
issues of public distrust of plea bargain.
SUMMARY OF FINDING
The following findings were observed during the
process of preparing this paper.
a)
Plea
bargain has had a tremendous contribution to the judiciary’s efforts to reduce
case backlog in the criminal justice bench book.
b)
Efforts
have been by the judiciary to extend training to some prison inmates in several
prisons in Uganda about the availability and use of plea bargain.
c)
The
different stake holders; that prosecutors, defense lawyers and judges are
getting ever more exposed to the use and practice of plea bargain.
d)
However,
there is need for increase in the use of plea bargain to reduce case backlog in
the criminal justice system.
RECOMMENDATIONS
The following recommendations are hereby proposed
to enhance effective access to plea bargain.
a)
Training
Programs should be initiated by the Judiciary to equip the different
stakeholders on the relevant skills and knowledge to facilitate effect access
to plea bargain.
b)
More public
sensitisation should be done to have the masses better under understand and
appreciate the importance of the plea bargain initiative.
c)
Continuous
sensitisation of inmates on remand charged with capital offences should be
carried out to make known to the inmates of the plea bargain imitative
d) The Judiciary should work with Legal Aid practitioners to add more
efforts in availing defendants competent representation for plea bargain
negotiations.
e) Measures need to be put in place in order to ensure that defendant’s
rights are not violated during the plea-bargaining process. This call for a
better understanding of the defendant’s rights by the different stakeholders.
f) The Judiciary needs to put a monitoring system to ensure that plea
bargain processes are conducted within the confines of the law and the no
miscarriage of justice is occasioned.
g) The Judiciary should engage NGO’s and International Organisations with
vested interest in plea bargaining to supplement the judiciary in monitoring
and evaluating the performance of the program. They will act to hold
accountable the different stakeholders while making useful recommendations
along the way.
CONCLUSION
Plea bargain can make a huge
contribution to improving the criminal justice system by reducing case backlog
especially in capital offences. However effective access to plea bargain needs
to be strived for in order to meet the ends of justice. Therefore, the effective access to plea
bargaining will help strengthen our criminal justice system and reduce case
backlog in capital offences in Uganda.
REFERENCES
Research Papers
1.
Plea
Bargaining as a Legal Transplant: A Good Idea for Troubled Justice Systems.
Cynthia Alkon. Texas A&M University School of Law
2.
APCOF Policy Paper: Pre-trial Detention in Uganda,
Roselyn Karugonjo-Segawa
3.
Introducing
Plea Bargaining in Post Conflict Legal Systems by INPROL, March 2014
4.
A report of the case backlog committee, dated 29th
March 2017.
5.
A report of the case backlog
committee dated 24th January 2018
Website sources
Statutes
1. The Judicature
(Plea Bargain) Rules, 2016
Case law
1. Inensko Adams v
Uganda Crim Appeal No. 004 of 2017
2. Uganda v Butare
Matayo Criminal case No. 0028 of 2017.
3. Uganda v Oryema
Pastore Criminal Case No. 0097 of 2016
4. Uganda v Aberninga
Francis Criminal Case No. 0167 of 2016
[4]A report of the case backlog committee, dated 29th March
2017.
[12] Plea Bargaining as a Legal Transplant: A Good Idea for
Troubled Justice Systems. Cynthia Alkon. Texas A&M University School of
Law.
[16]
https://www.softpower.ug/principal-judge-dpp-warn-judges-against-altering-plea-bargain-sentences
[30] Plea Bargaining as a Legal Transplant: A Good Idea for
Troubled Justice Systems. Cynthia Alkon. Texas A&M University School of Law
No comments:
Post a Comment