Ndabamanya Duncan, is a Magistrate Emeritus in Uganda (Courtesy of Ndabamanya Duncan)
By Atwine Allen – DIPLOMATIC TIMES
KAMPALA, UGANDA – Ndabamanya Duncan, is a Magistrate Emeritus in Uganda. In this chat with Diplomatic Times’ East Africa correspondent, Atwine Allen, in Uganda, he speaks about the judiciary in Uganda and how justice is served. Excerpts from her chat:
How would you describe the justice delivery system in Uganda?
Uganda’s legal system is based on the English legal system that was imported into Uganda by the British colonialists, hence the justice delivery system in Uganda is based on the English system, the reason it is basically not understood by many Ugandans who initially were used to their unwritten customary law. Today in Uganda, the justice law and order sector is trying to harmonize justice delivery systems, the reason emphasis is put on Alternative Dispute Resolution (ADR) methods. So that apart from referring disputes to court; other methods like Mediation, Negotiation, Arbitration, Conciliation, can be invoked for quick, cheap, confidential, and informal justice delivery. If all Ugandans can adopt these innovations then the parties in dispute can remain in full control of any settlement agreed, corruption cannot distort the process and the parties can maintain their rights if no settlement is reached. It is now mandatory that every civil suit must be referred to a mediator unless such a civil action has a question of law which can dispose of it off. Juvenile justice is still a big challenge in Uganda since the laws in place cannot be enforced with the infrastructure, Human resource, Financial and other psychological and attitude phenomena. Criminal justice delivery is also a big challenge due to the lack of Human resources (Judges, Magistrates, State Attorneys, expert witnesses like police surgeons, forensic experts) hence justice cannot be delivered as quickly, fairly and cheaply as the law provides. The Administration of Justice Bill has for so long been pending in parliament. It should be passed into law so that justice delivery in Uganda can be improved. At the moment a lot needs to be done as justice delayed is justice denied.
“Firstly, there should be a single justice system, our leaders should adopt either the phenomenon that a person accused of an offence is presumed innocent until proven guilty or that a person accused of an offence is presumed guilty until he/she proves his/her innocence.”
How has the journey been since you joined the bar, serving in the capacity as a Magistrate?
In the last 34 years, working as a magistrate, I have discovered that the more a society develops, the higher the crime rate and need for justice. I have acquired skills on how to manage society, writing well-reasoned judgments and interpreting the law of the land. I have upheld many people’s legal rights and punished many wrong doers; thus, I have skills for administering justice by enforcing laws in the dispensation of justice. I have become an independent, impartial, efficient and competent administrator of justice with no fear, favor, and affection or ill will. Experience has helped to develop capacity to resolve disputes between individuals, business entities or the state with high integrity thus retired as MAGISTRATE EMERITUS.
Ndabamanya Duncan, is a Magistrate Emeritus in Uganda (Courtesy of Ndabamanya Duncan)
Do you think Ugandans really understand the role of the magistrate in the pursuance of their legal rights?
This is in the Negative, Ugandans generally do not understand their rights and if they do so then, they are negligent. A quick example of judgment in civil matters say” Land rights” A person buys land under customary tenure but does not mind to measure its size or plant clear boundary marks. Another borrows money from a money lender, he mortgages his/her land and the mortgage agreement reads that he/she has sold such land and then a lender signs as buyer who has paid cash in full, this is common and as I delivered judgments I would only sympathize with such poor Ugandans. Family matters say maintenance orders to care for their children, if at all Ugandans know their responsibilities and rights then no parent would be taken to court for failure to provide maintenance for his children. To date I still find it hard to enforce conjugal rights say ordering husband and wife to cohabit and enjoy the right to sexual intercourse where marriage has broken down. Ugandans don’t know or understand their rights as citizens.
Ndabamanya Duncan, is a Magistrate Emeritus in Uganda (Courtesy of Ndabamanya Duncan)
In that case, what in your advice should people do, when faced with challenges of pursuing their rights, especially in the face of injustice by public servants?
With due respect, I am not aware of any rights of the common people in the streets that are being abused by the council authorities. What I know generally is that no right is absolute, every right has limitations. Thus if “council authorities require common people to abide by the rules, regulations and directives then the common people fail to abide, it cannot be held that the council is abusing their rights. An example like no person shall not do business in an unlicensed place and you find vendors along all streets then council arrests the common people who also resist the arrests. In doing so, their merchandise gets spoilt, who is right? Who is wrong? And who is abusing the others rights? My general charge would be disobeying lawful orders.
How human is the law of the land to the general interest of the citizens?
Uganda has the most detailed constitution 1995(as amended) that provides for fundamental human rights, inter alia, all people are equal before the law. There are several statutes enacted by our parliament to guarantee justice for all, we can talk about local council courts Act 2006. For example, to ensure that there is access to justice for all at village levels, Parliament has made laws providing for participation of the people in the Administration of justice.The Rules Committee has come up with several statutory instruments introducing modes of alternative dispute resolutions to ensure that justice is done and be seen to be done for all. It is my opinion the law of the land guarantees justice for the common man
What is your view about the modern justice system in Africa against the backdrop of traditional laws?
Upon our history where in the past, pregnant girls would be drowned at Kisiizi falls or left in the wilderness at an island on Lake Bunyonyi South Western Uganda to die, or where some local chiefs would punish wrong doers by several strokes of Cain (corporal punishments) or where we had torture chambers and where we had only one high court of Uganda at Kampala with very few Judges. And upon comparison with the justice system in Africa today that we now talk of very many established High Court Circuits, Regional Courts of Appeals, the East African Court of Appeal and other Regional Tribunals in place I think justice delivery in Africa is at an advancing rate (Above 50%).
What is your view about cross border migration amongst African countries?
There is no justification for the border barriers that exist amongst African countries. Africans need to be free to migrate from one country to another with the recent developments in the East African Community and the African Union, I do not see the essence of strict border migration.
Do you think African leaders should harmonise the justice system in the continent to ensure common justice service?
Firstly, there should be a single justice system, our leaders should adopt either the phenomenon that a person accused of an offence is presumed innocent until proven guilty or that a person accused of an offence is presumed guilty until he/she proves his/her innocence. If that is agreed by our leaders then we should establish a supreme court of Africa which can have jurisdiction to hear all Appeals from Regional courts of Appeal like the East African Court of Appeal. Our leaders should therefore introduce the same curriculum in all law schools and allow lawyers to practice in all African Courts. Now that we have the East African Legislative Assembly we should also come up with an African Legislative Assembly so that we enjoy being on one continent and this will ensure independence of the Judiciary more so when the courts are determining rights against incumbent African Leaders. By doing so, our African Leaders can harmonize their justice system to ensure delivery of justice.
