The Man by the Water Pump
Over the summer of 2008, I along with Micheline Zamora, then a fellow Pepperdine Law student and now fellow alumnus, served as law clerks to Justice Edmund Lugayizi of the Ugandan High Court in the Criminal Division. In that capacity, we were principally tasked with developing ideas the court could consider to better abide by its constitutional duty to provide a speedy hearing to accused persons - to process its cases more efficiently while still maintaining due process protections. Justice Lugayizi specifically requested that we look into the practice of plea and sentence bargaining, and whether it could be utilized in Uganda.
At the time, the need for fresh ideas and bold reforms, like that of plea and sentence bargaining, was painfully evident; and today it is even more so. The nation's case backlog is excessively high, and the judges are not permitted to issue bail, so if you are accused of a crime and the State prosecutor receives an indictment to prosecute, you are sent to what is called a "remand home" for holding until your day in court comes to be. As can be imagined this waiting period is by no means short, and the conditions are no different from that of a prison.
On one of our first days in Uganda, back in 2008, I was able to visit the nation's central remand home at Luzirya, and see with my own eyes to the effects of the backlog. The facility had been designed to hold approximately 300 people. That day, it held over four times that number, and the figure was growing. There were no holding cells – merely British colonial era barracks. Each man had been allotted a stiro-foam mattress pad and each night was lined shoulder to shoulder from one end of the structure to the other. The plaster ceiling in the barrack we entered had completely disintegrated and when inside all you saw were rotting wood beams and a tin roof. There was a stench of sweat and body odor – no doubt exacerbated by the humid climate and overcrowding. Under the pressure of a growing population, the prison administrators had been forced to make due by cramming in as many inmates as they could into each structure. I asked the prison warden how long one of his inmates could expect to be on remand before having their day in court. I'll never forget the grimace that came across his face followed by his resigned answer: "I've personally seen anywhere between six months and seven years, and I've heard of over a decade up-country." As he spoke on, I could see passed the left of his shoulder into the remand yard where the inmates were being allowed to mill about under the afternoon sun. I scanned across the crowd – all of them were dressed in bright yellow jumpsuits – and came to focus my attention on one inmate casually seated next to a water pumping station. He caught my gaze and smiled at me, I smiled at him, and I wondered to myself: how long has that man been in here and not had a chance to plead his innocence?
The challenging state of the Ugandan criminal justice system is the unfortunate manifestation of systemic problems of courtroom process, culture, and funding. Uganda has been a solely litigation based system for most of its modern existence with no alternative dispute resolution mechanisms in place. The culture among the attorneys is to be as adversarial as possible, employing every delay tactic and refusing to share discovery with the opposing side. In fact, defense attorney's here typically do not even learn of the case the state plans to bring against their client until the trial begins. Further, the personnel and facilities necessary to speedily dispense justice are simply not available nor are they likely to become available in the future. The system is simply struggling on all fronts.
Micheline and I came to seriously consider plea bargaining as a means by which the backlog could be greatly reduced and a far more just and efficient administration of the law implemented. We also were cognizant of the risks it could pose if not carefully framed and implemented. Corruption could broach its ugly head and the entire benefits of efficiency destroyed by the resulting manifest injustice. Intensely mindful, we spent the better part of two months researching the intricacies of plea bargaining – particularly the different forms it has taken across the globe – and if there was a model that could be applied to Uganda. From out of our efforts, we ultimately arrived at a system we felt could be implemented effectively; a process of strict checks and balances with heavy judicial oversight during the attorney negotiation process.
We prepared a report and delivered a presentation to the Principal Judge of Uganda as well as the senior criminal justices of the High Court. At the meeting's conclusion, there was a general excitement about the idea and the potential benefits it could bring to the administration of justice in Uganda. Later, it was reviewed by the Chief Justice of Uganda and he too signaled approval. To begin the movement towards implementation, last summer four justices came to the US to go on study tour of our criminal justice system. The trip cemented their resolve to go forward with its adoption, and for the past few months, two of the senior justices have taken the initiative to open the door for plea and sentence bargaining in their criminal sessions. Just last month, one of the justices had a criminal session of fifty cases in the rural town of Masindi. Normally such a session translates into about four months of litigated wrangling. By using plea bargaining principles, he was able to complete the session in twenty days – an efficiency realization of one-hundred days, processing the case-load in 1/6 the standard time.
The gradual implementation of the practice is now set to grow. I am here to help as its implementation moves forward. It is not an exaggeration to suggest that plea bargaining could revolutionize the criminal justice system here in Uganda in a very positive way; but, just as easily it is not an exaggeration to suggest that it could become a vessel of tremendous abuse. Important considerations of due process and important protections against corruption and coercion need to be carefully assessed before it goes forward.
As the process moves along, I know I will be thinking back to that prisoner at Luzirya, seated beside the water pump, who smiled at me. I never found out what he was accused of doing. I never even got his name, but I do know that he has a God-given right to timely justice and plea bargaining is a means by which that can be facilitated. He is the motivation – the face it seems to me for the abstract work of policy and law that lies ahead. I will be thinking of the man by the water pump.
I am so excited about the work to come. What in life more can be more fun than creating something that could breathe a positive change into the world?
Greer Illingworth, JD '10