The Plea Bargaining Hands On Training Conducted In Western Uganda Prisons

UCU students

The teams

Uganda has one of the best legislation, a strong legal fabric and is largely composed of the common wealth country legal ingredients putting reference to her historical developments. However, as a new legal initiative in the continent, the lacuna that exists in the legislation about plea bargaining in the country has been a big one.

The Uganda Christian university (UCU) team 2017 that was selected to be part in the plea-bargaining training had its hands-down into practice and discovered what happened in the contemporary world. The team from UCU joined arms with students from Pepperdine University, American advocates, Ugandan private advocates, the Judiciary, Paralegals together with International Justice Mission (IJM) representatives and headed for success within the regions of Fort portal, Bushenyi, Kasese, and Mbarara.

Plea Bargaining

Plea bargaining is a 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. The process relieves the accused person from anxiety of criminal prosecution, and encourages them to accept their criminal responsibilities with victim participation in the adjudication process.

The plea bargain rules provide that a plea bargain may be initiated orally or in writing by the accused or the prosecution at any stage and time of the proceedings, before sentence is passed. While a plea bargain may be entered into at any point in the process, even after a trial has begun, most may be entered into before a trial, freeing up valuable resources and sparing court’s time.

After the bargaining, if the accused accepts the prosecution’s offer or vice versa, a deal is struck and a plea bargain agreement is executed amongst the parties.

Important to note is that sometimes, defense counsel helps the accused to negotiate this plea bargain and to appreciate the terms of the plea bargain agreement.

Once a plea agreement has been reached, the accused and the prosecutor appear in court and the details of the plea bargain are clearly stated for court record. The judge then asks a few questions to determine whether the agreement was reached without any faults.

The Background to plea bargaining in Uganda

Plea bargaining has been a myth in Uganda for the past years unlike in western countries. The recent efforts to introduce this concept in Uganda have been ignited by the American Law Dons and legal scholars.

The Ugandan legal system and the Judiciary at large has faced the problem of case back log as the greatest hinder to justice dispensation. In 2014, the American Law school planted the roots of plea bargaining in Uganda with talks between Pepperdine University and the Ugandan Judiciary. It was after few months, in 2015 when under the leadership of Professor Jim Gash, the Dean of the School of Law at Pepperdine University, signed the Memorandum of Understanding on Wed, 28^thOctober, 2015 with the judiciary of Uganda. The Memorandum of Understanding extended the US and School of Law’s collaboration on improving Uganda’s judicial system and the rule of law in the country.  A delegation of ten high-ranking Ugandans was in attendance, including: Chief Justice Bart Katureebe, Principal Judge Yorokamu Bamwine, Chief Registrar Paul Gadenya, and Director of Public Prosecutions Mike Chibita. Professor  Jim Gash led “A Conversation with the Chief Justice of Uganda” about the challenges Uganda faces and the recent successes achieved under the existing partnership with Pepperdine.

In the states, the constitutionality of plea bargaining and its legal footing were established by Brady v. United States (1970). The U.S. Supreme Court warned, in the same decision, that this was conditional only and required appropriate safeguards and usage—namely that plea incentives so large or coercive as to overrule defendants' abilities to act freely, or used in a manner giving rise to a significant number of innocent people pleading guilty, might be prohibited or lead to concerns over constitutionality.

In Uganda, a relatively similar trial process is enunciated under Article 28 of the 1995 constitution however in the journey of effecting justice, trials become more sloppy, procedural, protracted and more expensive, putting plea bargaining at a better take.  For example Justice Burger describes plea bargaining as, “an essential component of the administration of justice and a highly desirable part of the process.” He further adds that when plea bargains are broken, remedies exist. It has been argued that given the prevalence of plea agreements, the most important rights of the accused may be found in the law of contracts rather than the law of trial procedure.

Legislation in Uganda

Plea bargaining in Uganda has been entrenched in a number of legislations including;

The Judicature (Plea Bargain) Rules 2016 the rules were signed into law on the 4^th day of May 2016 by the chief justice Bart Katurebe. The salient features of the rules are the Objectives, Scope of plea bargain, Court participation in plea bargain, Form of plea bargain agreement, recording of plea bargain agreement by the court, Protection of plea bargain process and the bibliography of the accused person. It should be noted that these rules have been put in place to ensure the most effective way of case reduction and are to be used as law that will be governing the plea bargain process in Uganda.

The Constitution (Plea Bargains) Practice Directions July 2014. The Hon. Principal Judge Yorokamu Bamwine, who also chairs the Plea Bargaining Taskforce which was mandated to draft the Constitution (Plea Bargain) Practice Directions, explained that the Judiciary resolved to adopt plea bargaining system as an option to manage the soaring case load in excess of 8000 cases awaiting trial

The Constitution (Sentencing Guidelines) under the 1^st Schedule Form A, of 2013. This is majorly descriptive in nature and it states clearly the punishments and sentences given to convicts considering all circumstances. The guidelines help the plea bargaining session to determine which offence is suitable for particular case. It’s supplementary to the penal code and it’s detailed on each offence and its punitive nature. It lays down mitigating factors, aggravating factors on necessary offences. Provides for the victim impact assessment form and prevents prosecutors from creating a miscarriage of justice by giving disproportionate sentences.

THE HANDS ON TRAINING AT THE PRISONS

The whole project was a great experience with a lot of learning, realizing the advantages of the project, challenges and other legal concerns that arose during the training. It was such a privilege to be part of the team as led by the most amazing lecturer Madam Achieng Miriam who equally participated in the activity.

We set off from the university premises on the 4^th day of June 2017 at 9:30am and arrived in Fort Portal by 5:30pm, lodged in Youth Empowerment Centre and went for dinner at one of the hotels in the district. During dinner, we were grouped into eight teams each consisting of a law student from Uganda Christian university, one from Pepperdine university, one attorney from the US, a Ugandan advocate and a paralegal from each of the districts we went to with the guidance of Prof. Jim Gash, Danny Dewalt and Nicole Banister.

We were briefed on what we were going to do in the four days as we were assigned to work as defense counsel for the accused persons in the negotiations with the state attorneys of the various areas who represented the office of the director of public prosecution which acted on behalf of the victims/complainants and the state. We concluded the evening with a prayer and left to go to our beds in preparation for the entire activity.

Day 1.

On Monday 5^th after breakfast we proceeded to Katoojo Prison which is the biggest prison in Fort Portal. We then teamed up and went to meet the inmates as we awaited the Judiciary headed by the Principal Judge Yorukamu Bamwine to launch the project. Speeches were heard from the Commissioner of the Prison, the Resident Judge of Fort Portal and finally from the Chief Guest the Honorable, Principle Judge Yorukamu Bamwine whose final remarks set the project started. It is worth noting that the launching session as described above was carried out in all the prisons we went to for avoidance of repetition in this report.

Katoojo prison consisted of mainly capital offenders who had participated in crimes like murder, manslaughter, aggravated defilement and aggravated robbery among others. We were able to handle 59 files while in the prison in which most of the accused persons came to an agreement with the prosecution on the proposed sentences and 6 failed. The day was closed with entertainment of about 20 minutes in which both the inmates and the participants danced to the music that was set forth in the prison. Additionally, the inmates were given cows to slaughter in celebration of the event.

Day 2.

Which was Tuesday 6^th, we set off to Mubuku prison in Kasese, a prison that consisted mainly of misdemeanor/minor offences which included theft, threatening violence, obtaining money with false pretence and judgment debtors among others. It was not so difficult to convince the prisoners as most of them were remorseful and empathetic for what they had done. Most of them who were on remand for over 3 months were given community service by the state. The prisoners were happy and at the end of the session, male inmates were given a bull to slaughter and the females were given two goats.

Bull for slaughter

Day 3 being a Wednesday was spent in Bushenyi main prison; it was mixture of capital offenders and petty offenders. We had 8 files allocated to each team and some teams were able to handle more than the allocated files. It was also reported in this prison that some of the inmates that were transferred from Kasese to Bushenyi main prison for remand had been transferred without their files and as such, they were unable to participate in plea bargaining. The day ended with a match between the inmates and the participants who were majorly represented by students from Pepperdine university.

Day 4-Thursday marked the end of the plea bargaining project in western Uganda as staged in Mbarara main prison. Most of the inmates we handled were arrested for being rogues and vagabonds and had been on remand for over two weeks for this offence because of lack of legal representation and paralegals to help them. Plea bargaining as a  project was a blessing to them as they agreed to be committed to community service instead of being on remand.

The Plea Bargaining Conference

The sessions were meant to end on Friday but were cut short due to the public holiday (Heroes day). We therefore headed back to Kampala on Friday and awaited the 3^rd annual plea-bargaining conference which was held on the 15^th day of June 2017 at Imperial Royale hotel in Kampala the Principal Judge Yorakamu Bamwine, the chief guest. The conference was mainly educative and focused on different people in the legal profession the judges and magistrates, private practitioners, state attorneys, prison officers paralegals and, representatives from IJM, Uganda Christian Lawyers Fraternity (UCLF) and Uganda Law Society (ULS). Many issues were discussed among which included the advantages and disadvantages of plea bargaining, challenges faced in the process wherein it was reported that most of the trial judges and magistrates tend to undermine the agreements reached upon. This was addressed by the chief guest urging them to respect such agreements as concluded. The conference was successfully concluded at 6 pm and this marked the end of the project.

LESSONS LEARNT

Ø  As law students, we appreciated how criminal justice can be practiced that is through perusing evidence on record to ascertain whether there is sufficient evidence to incriminate the accused.

Ø  We also had the opportunity to play and understand the role of the defense advocate in a plea bargaining process like mitigating the sentence, interviewing the victim, and talking to the prosecution on bargaining the sentence.

Ø  We also obtained practical skills to having agreements reached at as we were exposed to real life situations.

Ø  We also appreciated the fact that it is important to build rapport before one sets forth their work as an advocate as this makes it easier for the inmates to disclose the truth about the allegations as made. This we did by explaining to them that we were their lawyers and that all the work we were doing was for their benefit and not for the benefit of the prosecution as most of them assumed in the beginning of the interviews.

ADVANTAGES OF PLEA BARGAINING

During the project, we came across a variety of positive implications registered by the plea bargain system in the judiciary and these included the following;

Ø  It offers a great hope to the criminal justice in Uganda. This is true because it gives a unique opportunity to speed up the trial process hence reducing on congestion in prisons. It is a great achievement because Uganda was ranked 7^th in international journal criminology as world most congested prisons. For example in Bushenyi prison according to the officer in charge he stated that the prison is over congested as it has more than 1000 prisoners a place set to accommodate 300 prisoners.

Ø  The system is a nightmare of case backlog in the sense that during the project, we managed to secure a variety of convictions wherein most of the offences were frivolous and vicious or petty offences like Assaults. No wonder Principal judge Yorokamu Bamwine while in Bushenyi prison stated that “Breast feeding mothers who are charged with petty offences like assault should be released” .

Ø  It helps build the public confidence in the justice system as the victim and the accused person are involved in the sentencing process.

Ø  It’s advantageous as it upholds the right to a fair and speedy trial guaranteed under the Constitution. This is because it takes short to conclude a case than the usual court trial

Ø  It saves time and government resources since less is required for parties to come to an agreement and have the accused person sentenced. There is no question as to whether plea bargaining reduces the amount of time expended on trials. Warren Burger, past Chief Justice of the United States Supreme Court, estimated that judicial resources in the United States would have to be doubled if only 20 percent of all criminal cases went to trial. In any event, plea bargaining is an important part of the criminal justice system. It is so important that the Supreme Court has stated that it “is not only an essential part of the process but a highly desirable part.” Per Santobello v. New York, 404 U.S. 257, 261 (1971).

Ø  It also encourages reconciliation of the accused person and the complainant because the process involves participation of both parties and as such, community relationships are firmly built.

DISADVANTAGES.

Ø  It undermines the role of evidence in criminal cases since the process does not include the mention of tendering of evidence.

Ø  It seems a mockery of justice to the other party especially the aspect of having a criminal be given an opportunity to bargain for a lesser sentence.

Ø  It undermines justice and seems to defeat the purpose of criminal law as it encourages imposition of lesser offences instead of deterrent sentences.

Ø  Its most likely going to encourage corruption in judiciary especially prosecutors who may be bribed in order to be give the accused persons lenient sentences.

CHALLENGES ENCOUNTERED.

Ø  Ignorance among the prisoners about the system. This slowed down the procedure as we spent more time sensitizing them about it and ended up not completing the allocated files. For instance in one case in which the accused had continuously defiled his three daughters and infected them with HIV/AIDS but insisted on a sentence of 5years. A lot of time was spent making such inmates realize that plea bargaining was not away to get off the hook and this frustrated the entire project.

Ø  Some police files were missing and as a result, we weren’t able to handle the cases as allocated hence causing delay in the procedure. It was not until we got the files that we got some work done. This was a great set back to the project most especially in Mubuku prison where most files were missing hence causing justice to be delayed.

Ø  There were also limited state briefs involved in the project and as such, many cases were allocated to one Advocate for example in Mubuku Prison we had few Advocates yet files were many which in fact hindered access to justice to some prisoners.

Ø  There was also another challenge concerning the plea bargain agreement which was specifically designed for capital offences over which the High court has jurisdiction yet we had a variety of petty offences which are tried by magistrate courts.

Other issues noted that the Judiciary and all those concerned may need to address.

1.   The time suspects spend in police cells. It was noted from some of the suspects we interacted with that some spend about two weeks in police cells before being produced to court which is contrary to the provision of the constitution that require persons arrested to be presented in court within 48 hours.

2.   It was also noted that most people spend more than the mandatory period of remand in prisons before trial. We had a case of a person that had been on remand for four years and six months and had never been produced before a judge, but checking on the file there was no evidence against him and the facts showed that he was innocent, and the prosecution agreed he was innocent yet he had been in prison for all that long.

3.   There seems to be a lot of corruption at police level, while in Mubuku prison in Kasese some of the accused persons that has been remanded for rogue and vagabonds made mention of the fact that when arrested they are requested by police officers to pay some money to be released and those that fail are remanded as such, there might be need to investigate such allegations

Recommendations

l  We recommend that the government sets aside funds to facilitate more activities aimed at extending plea bargaining to prisons.

l  There should also be continuous participation of the law students in plea bargaining projects in prisons in order to lay a foundation for future participants and trainers of the program.

l  It would also be a good idea to have plea bargaining as a requirement for pro bono in order to have more advocates involved in the process so as to meet the goal of fighting case backlog.

l  Sentencing guidelines should be amended to include the maximum and minimum penalties in cases of bargaining in order to avoid inconsistencies in sentences especially for cases with similar facts.

l  Plea bargaining should involve a community /social worker to access the prevailing conditions of the victims to the crimes in question in order to have justice met not only on the accused’s side but also the victim or complainant’s side.

l  Equal attention should be extended to petty offences to have such offenders sentenced to community sensitization or be cautioned instead of custodial sentences that congest prisons.

l  The exercise should be extended to other regions like the north and east among others.

l  There is still need to educate the prisoners on how the project works, that it is not just to set them free but to help them get a fairly lesser sentence and speedy trial because most of them misunderstood its operation and as a result, some innocent ones registered to plead guilty in order to be released.

l  The number of state briefs should be increased and on full time basis at every police station to negotiate and reach upon agreements so as to quicken up the process and ease disposal of cases.

l  Police files should be accessed in time to avoid unnecessary delays. This can be affected by availing photocopies to the defense counsel in time before the session is scheduled.

ONE OF OUR SUCCESS STORIES.

In a certain case, the accused had been charged with armed robbery and had previously been offered 15 years and turned it down. During the training, The prosecutor offered him 11 years and four months. He had spent one year and three months on remand. We asked him his story and he stated that “…i was standing outside a shop when the merchant asked me for change for a customer. i agreed to give him the change and the merchant said he would pay me back later. I went to the merchant's house later that night to collect the money. The merchant did not want to pay me, and the merchant's wife attacked me with a rod. i fought back and we were both injured by the rod. Both of us reported to police, and she reported that I had stolen money which was under the carpet...”

Upon bringing of the police file, we reviewed it. The information was consistent with what the accused had said, and also found several inconsistencies in the victim's statement which we brought to the attention of the prosecutor and upon negotiation, we were able to get his charge reduced to criminal trespass and assault and therefore agreed to a sentence of one and a half years. With time already served, he would be released in three months. He was so excited, smiled, shook our hand and ran around telling his friends. He returned to us several times throughout the day to thank us.

Plea bargaining was not only academic but also a life changing experience which impacted on our lives as students and also enhanced our understanding of the world. Despite the criticisms, the practice should be embraced in Uganda's jurisprudence to permit a substantial conservation of prosecutorial and judicial resources. The plea bargain, or negotiated sentence, enables the parties to avoid the delay and uncertainties of trial and appeal, and it permits swift and certain punishment of law violators with a sentence tailored to the circumstances of the case at hand. With the above, it is our prayer that it be held as a precious innovation and mother of justice.

This account was by 4^th year law students of UCU Prossy Basemera, Kyomugisha Linnet Sarah, Nababi Gloria , Nkasiima Janet, Abaasa Amon, Odong Fredderick, Mpalanyi Victor Vicent, Kyazze Andrew, Twesigye Kakuhikire Boris, and Kayiiyi Joy A Second Year Law Student under the supervision of Ms. Mirriam Achieng.