Plea Bargaining Report

by Greer Illingworth (JD '10),

As I have discussed in previous posts, the criminal case backlog in Uganda is extreme and as a result prison system is suffering from severe overcrowding. This unfortunate reality is a direct manifestation of the courts inability to dispense of cases in a timely and efficient fashion. The statistics and anecdotal stories I have heard of men waiting years, sometime decades, for their trial are just awful. And this goes without mentioning those victimized parties who have to endure years of uncertainty before getting a sense of closure or justice. Much of the backlog can be attributed to the fact that Uganda is a solely litigation based system with no alternative dispute resolution mechanisms. Further, the personnel and facilities necessary to speedily dispense justice are simply not available nor are they likely to become available in the future. As a consequence, the three criminal judges in the High Court of Kampala and a dozen or so lower court magistrates scattered about the countryside are expected to handle the entire backlog of something around 45,000 cases. The system is simply a failure both in design and execution.

When Micheline and I started, Justice Lugayizi, as the Head of the Criminal Court, requested we work with him to develop and advocate for the adoption of alternative dispute resolution practices that would help the court dispense of cases without having to always conduct such long, costly main trials. The crux of ADR in the criminal field is plea bargaining and Justice Lugayizi specifically requested that we detail the mechanics of the practice and provide a recommendation as to how it may be incorporated in Uganda.

Plea bargaining in its most basic form involves a negotiation between the prosecutor and the accused of the specific charges that he will face at trial. Usually, in return for a plea of "guilty" to a lesser charge, a prosecutor will dismiss the higher charge. The judge then reviews the plea to ensure it was made knowingly, voluntarily, and there is a sufficient factual basis to support the charge. After this, the case is dispensed with and the court moves on to other matters.

In America, about ninety-percent of all criminal cases are now resolved before going to trial. Plea bargaining has become one of the most, if not the most, important facet of our society's administration of criminal law. After all, if every charge were subjected to a full-scale trial, the need for more personnel and facilities would have to be multiplied by the thousands and practically speaking there is neither the money nor the will to have such a gigantic judiciary. So, as Americans, we have taken the approach that as long as plea bargaining is properly administered it should be encouraged. Over the years, it has become more refined and is now almost universally accepted across the nation as an equitable and efficient supplement to litigation.

Dealing with unreliable internet as well as a limited law library at the court house, Micheline and I made gradual progress on our research until on Monday felt we were ready to present our findings to Justice Lugayizi. Our final report discussed plea bargaining's nuts and bolts, its constitutional basis, the scholarly arguments for and against its use, and ultimately recommended that the system outlined in the Federal Rules of Criminal Procedure should be employed in Uganda.

Micheline and I were more or less pleased with what we had produced considering what we had to work with. Upon receiving and reviewing our report, Justice Lugayizi asked if we would be willing to formally present the findings before the senior officials of the High Court, including the Principal Judge of Uganda (who is the highest ranking judge and in charge of setting all of the courts policies). We obviously said yes and were particularly excited because plea bargaining is a customary practice and not a legislative enactment. As such, the power is completely in the judiciary's hands to initiate the process with the cooperation of the prosecutor's office. If the officials of the court could be convinced then work could begin to get it started.

The meeting was held in the chambers of the Principal Judge and the odd set up of the room meant that when speaking I had to stand in the center and sort of rotate around throughout. A powerful thunderstorm had just passed through the city when the meeting began and the streets were bustling again with people. Justice Lugaizi rose and gave a nice introduction when that lonely moment of speaking began. I stood to my feet buttoning my coat and the presentation began. It lasted about thirty minutes and overall seemed to go well. During the closing remarks, however, I got a bit carried away. I cited the following quote made by the Chief Justice of Uganda last year and from there went a little overboard with my language.

The judiciary must live to its responsibility of being the last hope for mankind and create a new world order built on sound human and moral principles including equality, peace, freedom, and social justice…We must be prepared to walk the talk.

I basically began to call them out as complacent, slow to take action. That they talk a lot, but they have failed to walk. I'm sure each of them probably thought "who does this 20-something year old from America think he is to come here and lecture us on how to run our judiciary?" Micheline even said I was a bit blunt; but, I really didn't care too much at the time because Ugandans only really respond to such direct challenges. Directness works in Uganda and our situation wasn't an exception.

When we finished, all of the officials present agreed that plea bargaining needs to be adopted and all of them additionally agreed with the same or closely similar system to what we recommended. Throughout the question and answer session, they kept reiterating the line that they will "walk not talk." The Principal Judge even said that they will "sprint." I sure hope so. A lot depends on it.