Paper Dated 17^th 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 17^th September. 2019

ACCESSING THE EFFECTIVENESS OF PLEA BARGAINING IN UGANDA COULD REDUCE CASE BACKLOG IN CAPITAL OFFENCES SIGNIFICANTLY

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.

INTRODUCTION

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 12^th March 2019 300 inmates expressed willingness to take part in the plea bargain exercise[13] and Gulu Prison on 16^th 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.

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