Observations About the Supreme Court of Uganda
by Nicole Hutchinson (JD/MPP '12)
Last week I was able to see several hearings that took place in the Supreme Court. Prior to watching the cases I had read most of the case files and was caught up on what the major issues were in the cases. In addition, on some of them I had written a memo to the Chief Justice about what the policy outcomes for ruling for a certain party would be and what I felt the Supreme Court should decide. The Chief Justice told me that he appreciated hearing my perspective on the cases because I had brought up several issues that he had not thought about.
For confidentiality reasons I cannot post details about the individual cases, but I can give a few observations about the workings of the Supreme Court. The current Supreme Court session is dealing with civil appeals, so the cases that we are looking at for the most part deal with contract (mostly business contracts between international corporations) or property issues (which deals a lot with human rights issues because a lot of women get their land stolen by their husband's family when their husbands die). For civil appeals the Supreme Court is required to have a quorum of five judges to hear cases, whereas for constitutional or election appeals they are required to have seven.
Prior to appearing before the Supreme Court, the parties have the opportunity to file written briefs. The parties are not required to submit written briefs and if they do submit written briefs they are not required to present oral arguments. The decision on whether to submit briefs or give oral arguments appears to be decided by agreement of the parties. One of the most interesting things to me was that the lawyers are often not prepared. One of the lawyers stood up in front of the Supreme Court and said that he had not turned in his brief and would like more time to finish his brief. I was absolutely shocked by this. I can only imagine what Justice Scalia's (or any of the other justices) reaction would be if a lawyer showed up to the United Supreme Court and said I am sorry but I am not prepared. Some of the justices seemed a little annoyed that they had come to court just to hear that the lawyer was not prepared, but they allowed the lawyer to have the extra time! This example has been relatively representative of the way in which the lawyers in Uganda seem to operate. The other students and I have been continuously surprised by the number of lawyers that are unprepared and ask for more time and those who merely just do not show up because they are not ready. To us it appears to be a complete lack of respect for the judicial system and something that has been very difficult for us to understand. When we have asked our respective judges about the problem they are often surprised and thought that this was a huge problem that all judicial systems face.
As a side project, some of us are doing research on the implementation of a system of sanctions for lawyers that do not come prepared and how this could be implemented in Uganda to help to mitigate the effects of this problem. Uganda has a huge problem with backlog. For instance, one of the cases that came before the Supreme Court has been litigated for well over ten years. The bigger issue is with the criminal cases where people have been accused of a crime, but they are sitting in prison for four or five years before their cases are heard by any judge. These are people who have not been convicted yet, but just suspected of a crime! Uganda does have a system of being innocent until proven guilty and therefore they are essentially keeping people that are presumed innocent in jail until they have a chance to bring them in front of a judge.
There are many reasons for why there is such a problem with backlog. These include
the fact that Uganda has a lack of judges and magistrates, particularly in the rural
areas, there is a lack of support staff, there is a lack of facilities, there is a
lack of lawyers in many parts of the country (in particular public defenders for criminal
cases because there is no official system of public defenders and instead they just
require lawyers in private practice to serve as public defenders from time to time,
like jury duty in the United States), and the fact that trials take such a long time
because the parties are unprepared. While the implementation of a system of sanctions
will not mitigate all of these problems it will help to address one of the major problems,
and in particular the one that the judiciary has the most control over.
Another interesting aspect of the Supreme Court is that anyone is allowed to argue in front of the Supreme Court, including the parties themselves. I witnessed a case where the plaintiff got up and gave the oral argument himself. This was very surprising to me since very few people have the opportunity to argue in front of the United States Supreme Court. When I discussed this point with the Chief Justice he was surprised to hear that the average person does not argue in front of the Supreme Court in the United States. I think it was most surprising to me because in the United States so many lawyers would jump at the chance to argue in front of the Supreme Court that by the time the case got that far the parties would have several lawyers offering to represent them and large numbers of special interest groups offering to pay for the legal services. I must say that the person I saw argue in front of the Supreme Court here did do a very good job and was more prepared than many of the lawyers I have seen, even though he did get a little agitated when some of the justices gave him a hard time.