They say if you want to lie or confuse, use statistics.
All the arms of governance play a critical role in service delivery by enabling a conducive business environment and offering equal opportunities for everyone to succeed. However, an inefficient Judiciary (Supreme court and all lower courts), slows down the whole system in a way that is more pervasive than the other two arms (executive and legislative) combined.
In my experience, there are three major causes of case backlog in Uganda:
- Poor quality investigations
- Inadequate incentives to the current judicial officers, and
- Judicial processes bureaucracy
Before I explore each in turn, refer to the article published by the Daily Monitor on October 6, 2020, titled “Case backlog: appoint more judicial officers.” According to the article, I quote:
“By 2019, the case backlog stood at about 36,009 cases, with the Land Division of High Court with 5,681 cases, Anti-Corruption Court (61), Commercial Court (5,454), Criminal Division (1,276), Civil Division 1,364, Execution and Bailiffs (2,832), Family Division (2,705) and 33 at International Crimes Division.
There are 189 Grade 1 Magistrates, and only 32 Grade 2 Magistrates, and 47 chief magistrates out of the desired 100. There are 60 judges out of the desired 82, 14 Justices of the Court of Appeal and 12 justices of the Supreme Court for an adult population of over 51.9 percent.
By these statistics, it would take one judge of the High Court to hear and dispose of 1,214 cases per year, which is humanly impossible. It has been reported as of August 2020, Shs4 trillion is still locked up at the Commercial Court as the backlog stands at 5,454 cases, which is an increase from 2019, and as a country, we are losing not only justice but suffocating the economy. Think about the pending cases, these represent at least one person at the minimum and this, therefore, means we have more than 72,000 Ugandans whose fate is in the hands of the courts.
In light of this, the Minister for Justice and Constitutional Affairs tabled a motion for a resolution in Parliament to increase the number of judges from 60 to 82 because the current number (57) was found to be inadequate.”
Indeed, if you want to lie or confuse, use statistics. Much as the Judiciary needs more staff, just like any other arm of government, it must first address the three key issues of quality investigations, better pay, and incentives to judicial officers and fix judicial process red tape, as I explain below.
Poor quality investigations
Many civil matters go to court because either party thinks the evidence is not watertight enough for them to lose on the balance of probabilities. Over 80% of the cases that have been thoroughly investigated, with relevant evidence collected, preserved, and analyzed by competent experts are always settled out of court with exception of rare cases where one of the parties is stubborn. Because criminal matters must be proved beyond a reasonable doubt to avoid an innocent person serving jail term, cases usually drag on as the prosecution asks for more time to gather further evidence to prove means, motive, and opportunity – all key ingredients that require watertight evidence which is not easy to find.
If you want the courts to be effective, the government must invest more in the quality of investigators, pay them well and manage the investigations risks. Today, over 90% of all cases before court involve some digital traces.
Yet, digital forensic capabilities are not mature in Uganda. Basic steps like standard operating procedures for first responder, crime scene management, evidence preservation orders, management, and presentation are not well documented and communicated. Courts do not yet have special masters who are subject matter experts and have been specifically trained to support courts to examine cases and evidence brought before them. Despite the presence of courts throughout the country, there are no special investigators per district to support such courts in an expert witness. Imagine court must first issue a subpoena for an expert to go to court. In case such a person needs facilitation, such a process takes over a month, and that how cases keep being adjourned for lack of a witness or an expert.
Those who talk about case backlog rarely explain the time it takes to conclude a case from reporting the matter in court to disposition. Many times, cases stall due to lack of evidence, or witness or subject matter expert to assist the court. However, with good investigations and investigators, many such factors would have been considered in the submission evidence file and would go a long way to shorten the process. When a judge or magistrate finds a critical piece of evidence missing, prefers to easily adjourn the case, which in the long run contributes to the case backlog.
Inadequate incentives to the current judicial officers
One of my preferred quotes goes, “it does not matter how much you have, if you do not know how to use it, it will still not be enough.” When it comes to how the Judiciary makes use of the rich skills of all judicial officers, this saying is spot on. You cannot rear one cow and expect to get 10,000 litres of milk per month. In your dreams.
The already brilliant and well-trained judicial officers must be adequately renumerated to be comfortable and happy in their roles. “Those who must is entrusted much is expected.” One of the easiest ways to miscarriage justice is to keep adjourning court cases to the next month. After five or ten such adjournments, one of the parties that have been frequently coming may miss. And that could be the only day the matter is heard and disposed of! To avoid such schemes, reward judicial officers well. If the private sector is more attractive to the lawyers, the system is exposed to sofa factor risks and comradeship. Judicial officers should have a successful and enriching career like their counterparts in the private practice, otherwise, we coped with the wrong system. Imagine a judicial officer awarding over the US $300,000 in damages can hardly afford a decent house for his or her family!
Once it is attractive to work as judicial officers, thanks to the pay and the attendant perks, many young lawyers can aspire to join. Then performant contracts and targets can be set for the officers to meet. Those who fail to hit the targets may then be managed accordingly by subjecting them to performance improvement programs and termination. As long as judicial officers look at governance roles as a steppingstone into the private sector, we shall continue having the problem of case backlog, after all, that is what provides opportunities later when the officer resigns and joins the private sector. It is interesting, is it not?
Judicial processes bureaucracy
Last, but not least, Judicial processes bureaucracy, is self-explanatory. I once read a research paper where law students were tasked by their Professor to work on a project for a local district judge. The project was interesting, and below is an extract.
“The project problem: study jury investigation process and make recommendations how to improve it.
The students are said to have interviewed several judges, lawyers, former jurors, and other court officials in the district. They also asked the police officers and court users all kinds of questions one would think of to improve the judicial process. Questions about gender mix of judicial officers, religious and cultural backgrounds, how many jurors were young versus older ones, and what kind of information they were allowed to have in the jury room, etc. Did the trials last days, weeks, or months. Even questions like how late judicial officers were made to work into the evening and what kind of food they were fed, were asked. And of course, how many judicial officers are ideal in proportion to the district population.
To their surprise, none of all these things seemed to matter much.
What did matter, it turned out, was the shape of the table in the jury room! In courtrooms where there was a rectangular table, the juror sitting at the head of the table (even if that was not the juror foreman) tended to dominate the conversation. This kept some jurors from sharing their points of view openly. But in Juror rooms that had a round or oval table, the jurors tended to be more egalitarian (or equal), and their debate of the facts was more thorough and robust. The team concluded it was those juries with round tables that came to the most accurate and just verdicts.
The students were excited about this finding for two reasons. First, they felt like they had found a novel solution to improving the jury deliberation processes. And second, it was such an easy thing to change. Imagine, instead, if they had concluded that the jury needed to be seated with more intelligent, open-minded, better-educated jurists.
The students and their Professor presented their findings to Chief Judge. The judge immediately issued a decree to all the courthouses in his jurisdiction, with immediate effect, “All jury rooms that have round and oval tables, are to have the tables removed. Replace them with rectangular tables.”
Now read the last two sentences again. It is not a mistake.
In direct contradiction to their recommendations, the judge removed all the round and oval tables and put them in rectangular tables. Why? Because the judge’s objective in improving the jury deliberation process wasn’t to make it more robust, fair, or even accurate. It was to make it faster. He wanted to reduce the backlog of cases clogging up his court docket. The students were mortified. They thought they were single-handedly fixing the sometimes-brutal consequences of an imperfect judicial system. Instead, they were unwittingly responsible for making it, in their eyes, a little bit less perfect. They may have finished the year with an A on their report card, but they felt completely defeated.
The lesson always is clear about the objectives before you embark on a research project.
Back to Uganda, when it comes to the case backlog, is it by mistake or by intention? That is for you to ponder.
Mustapha B Mugisa, Mr Strategy is a director at Institute of Forensics & ICT Security, www.forensicsinstitute.org.