IN THE HIGH COURT OF UGANDA SITTING AT KAMPALA

Reportable
Misc. Criminal Application No. 151 of 2020
In the matter between

KANYAMUNYU MATHEW MUYOGOMA APPLICANT

And

UGANDA RESPONDENT

Heard: 6 November, 2020.

Delivered: 9 November, 2020.

Criminal Procedure — Adjournments — they are intended to enable a party to present

his or her case as fully as necessary but within the limits of the law, or to respond fully
to the evidence and arguments of other party — the duty of the court is to ensure that a
party is given a reasonable opportunity to prepare his or her case. The court has no
duty of ensuring that a party takes the best advantage of the opportunity to which he is
entitled — The potential interference with the orderly progression of the trial should be
considered — The court has to strike a balance between the interests of the applicant,
that of avoiding unnecessary delay relating to the trial of the rest of the accused and the
public interest in the efficient allocation of judicial resources, consistency of verdicts,
convenience of witnesses and finality of litigation — The equality duty requires judicial
officers, in the exercise of their functions, to avoid inequitable devotion of the resources
available to court, to individual cases at the expense of others — Faced with time and
other resource limitations, the court should not disproportionately devote more time and
other resources than is absolutely necessary to the trial of a single case, at the expense
of multiple others in waiting — many times, a party who seeks a delay will file an
unnecessary motion raising one or more legal or procedural issues, or fail to comply
with a deadline set by court — It is also not uncommon for such a party to change
counsel at the eve of the hearing, to file constitutional references and petitions.

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Plea Bargaining — while Criminal trials ensure that factual and legal issues are
examined thoroughly and resolved through a process that guarantees the accused
procedural safeguards, before the application of penal sanctions, on the other hand,
plea bargains present a process where such factual and legal issues are resolved
through a process of negotiation and inquisitorial proof, resulting in a counseled guilty
plea, that is both voluntary and intelligent, which is an admission of factual guilt — A
guilty plea is not equivalent to a confession — in some cases plea bargains may be
delayed until late during the course of the trial, as the accused seeks to test the
prosecution version of the events to the maximum — After the trial has begun, the rights
guaranteed to an accused during the fact-finding phase of the criminal process can only
be terminated by a change of plea; thereafter the scope of negotiation is restricted to
determination of the appropriate penalty (or post-penalty), not a discussion of any of the
rights accorded during the fact-finding phase of the criminal process — Rules 5 and 8
(3) of The Judicature (Plea Bargain) Rules, 2016 create an infinite number of potential
bargaining options and outcomes throughout all stages of the trial. Unless regulated by
court, the assortment of concessions that could be offered by an accused in return for a
sentencing or charging consideration would be virtually unlimited and open to abuse —
a judicial officer who has participated in a failed plea bargain negotiation in which he or
she has not become privy to facts relating to the actual guilt of the accused in
circumstances akin to a confession, need not recuse him or herself from the trial — the
process of plea bargaining should not result in prolonging the trial but should rather
abridge it — a party who elects to plea bargain after commencement of the trial ought to
come with bona fide reasons to condone the delay.

Constitutional Law — Article 28 (1) of The Constitution of the Republic of Uganda,

1995 guarantees to each person accused of an offence, a fair, speedy and public
hearing before an independent and impartial court established by law -— The most
important right of the criminally accused is the right to a fair trial. Derogation from the
enjoyment of this right is constitutionally prohibited — The guarantee relates not only to
the time by which a trial should commence, but also the time by which it should end and
judgment be rendered; all stages must take place in a “speedy” manner — One aspect
of a fair trial is the taking of reasonable steps to prevent avoidable delay so as to
guarantee a speedy hearing — article 126 (1) of The Constitution of the Republic of
Uganda, 1995 requires courts to administer justice “in conformity with law and with the
values, norms and aspirations of the people” — The essential purpose of this provision
is to bring broader social interests affecting the public at large into judicial consideration,
so as to harmonise the pursuit of individual rights with the needs of the entire
community for whose interests the courts are viewed as guardian. It is a reminder to the
courts regarding the importance of changing social conditions to their decisions — since
minds could easily differ over the contents of such values, norms and aspirations, their

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identification and application cannot be based on pure judicial intuition — the rule of
thumb is that policy is a matter for the legislature and not for the courts, save in an area
not covered by legislation in which the courts must revise old rules or formulate new
ones — so long as human language remains imprecise and human capacity to predict
the future limited, it will fall to judges to fill the gaps in the laws and rules. This though is
not justification enough for transplanting policy into law or make decisions that virtually
supplant the legislative enactments themselves — It is only when courts are confronted
with a dispute for which there is no clear statutory answer, that they must render
decisions in accordance with their own conceptions of justice, equity and good
conscience — wherever existing legal authority proves inadequate, decisions ought to
be based on sound legal principle and legal policy, because Law, at its very foundation,
is conceived and derived from values — questions of legal right and liability should
ordinarily be resolved by the application of the law and not the exercise of discretion —
If the interpretative choice is between making a value judgment and applying a rule, a
court exercising criminal jurisdiction should prefer the rule.

Traditional justice mechanisms - Restorative justice is the process through which

remorseful offenders accept responsibility for their misconduct to those injured and to
the community that, in response allows the reintegration of the offender into the
community — the processes are undertaken only after a person has admitted
committing an offence — In its current form, mato oput has no effective system of
regulation and review in place. It is shrouded in legal ambiguity and as a result its
interface with formal criminal justice is opaque — resort to restorative justice
approaches within the context of traditional justice rests on the assumption that there
exists within the affected community adequate meso-social structures i.e. ordered sets
of relationships, for example, residence, kinship, or lineage, that create the intra-societal
power and coercion, which make dispute settlement possible — It presupposes that the
disputants are part of the same moral / social community. That they live in close
proximity to one another or are related to one another, and typically wish to continue
living in the community — traditional justice has hitherto been adopted in relatively tight-
knit and inter-dependent social settings to limit revenge, to prevent blood feuds, to
prevent inter and intra-tribal wars, to welcome former child combatants in post-conflict
Northern Uganda back into their local communities, all being situations in which
accountability, healing, and reconciliation is key for peaceful and harmonious
reintegration and co-existence — it is not empirically proved that traditional justice
mechanisms can appropriately deal with ordinary crime allegedly committed hundreds
of kilometres away, by persons who are not members of that local community —
traditional justice should play a complementary role to the formal justice system, but not
serve to displace, undermine or delay it..

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_____________________________________________________________________
RULING
______________________________________________________________________
STEPHEN MUBIRU, J.
Introduction:
[1] This is a formal application made under section 53 of The Trial on Indictments
Act, and Rule 2 of The Judicature (Criminal Procedure) (Applications) Rules,
seeking an order suspending the main trial until the applicant has concluded an
on-going traditional justice process and a likely plea bargain thereafter.

i. Procedural history leading to the application;

[2] The applicant stands jointly indicted with another, for the offence of Murder. It is
alleged that the two accused on the 12th of November, 2016 along the Kampala-
Jinja highway, near Malik Car Bond, opposite Uganda Manufacturers’
Association main gate in Nakawa Division, Kampala District, murdered Akena
Kenneth Watmon. The applicant was arrested on 12th November, 2016. He was
charged on 22nd November, 2016 and remanded. He was on 31st January, 2017
committed to the High Court for trial. He was 4th October, 2017 granted bail
pending trial. The case first came up on 18th December, 2018 for commencement
of the trial. On that occasion, the applicant pleaded not guilty and the case was
adjourned to 21st January, 2019 for hearing. When the case came up on that day,
the State Attorney representing the prosecution applied for adjournment on
ground that the prosecution had not complied yet with the requirement of pre-trial
disclosure. The case was adjourned to the next convenient session for that
purpose.

[3] Almost a year later on 11th December, 2019 the case came up next for fixing a
hearing date. It was fixed for 8th January, 2020. On that day counsel for the
accused sought an adjournment on ground that the third accused was
indisposed, suffering from a kidney complication. In the interests of guaranteeing

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 a speedy trial for the applicant and his co-accused, the court directed a separate
trial for the indisposed third co-accused under the provisions of section 52 (1) of
The Trial on Indictments Act. The trial of the applicant and his co-accused thus
commenced on that day and by 21st February, 2020 a total of thirteen
prosecution witnesses had testified. The defence was unable to cross-examine
the 13th prosecution witness as the session had come to an end. Thus the
prosecution was unable to lead evidence of one witness supposed to be re-called
for cross-examination and close its case, because the time allotted to the criminal
session had elapsed. Further hearing of the case was adjourned to the next
convenient session.

[4] When the case came up next on 27th October, 2020 the prosecution indicated
that their 13th witness was present in court ready to be cross-examined by the
defence. Instead counsel for the applicant sought an adjournment on grounds
that they had filed the instant application whose purpose was likely to be
compromised if the hearing proceeded before it was fixed and disposed of. After
listening to both parties the court reluctantly granted an adjournment to 6 th
November, 2020 for purposes of continuation with the trial, and for the applicant
to fix the application for hearing. The application has now been brought to the
attention of the court for its consideration, together with the submissions filed by
counsel for the applicant.

ii. Nature of the application and the arguments in respect thereof.

[5] By the application, the applicant seeks an order that the court adjourns or
suspends the trial to enable the applicant conclude a process of reconciliation
initiated under the Acholi traditional justice mechanism so as thereafter, to
“enable a more meaningful and judicious plea bargain to be undertaken.” In his
affidavit supporting the application, the applicant states that he began a process
of reconciliation with the family of the deceased before the trial began on 8th
January, 2020. It is a very elaborate process that provides meaningful

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 reconciliation with the family of the victim. The applicant has completed the first
three of the four phased process, i.e. truth telling, forgiveness, restitution and
reconciliation. He could not gain audience with the mediator Rwot David Onen
Acana II until 26th July, 2020. He participated in the truth telling and forgiveness
phase (Nyang Lok / Tito Lok) on 12th September, 2020. He participated in the
reconciliation process (Culo Kwor) on 13th September, 2020. He could not
complete the last phase (Mato Oput) due to the illness and death of the mother of
the deceased on 9th October, 2020. It is necessary to promote reconciliation and
the culture of cooperation, understanding, appreciation, tolerance and respect for
each other’s customs, traditions and beliefs guaranteed by The Constitution of
the Republic of Uganda, 1995.

[6] He avers further that on 23rd October, 2020 he began a plea bargain process but
the prosecution indicated that the trial should continue until the applicant opts to
plea bargain. The applicant indicated that it was important to conclude the
traditional reconciliation process before engaging in a meaningful plea
negotiations. Pre-trial publicity surrounding the case projected the applicant in
negative light in a manner that was inflammatory and divisive along tribal lines,
which is damaging to national unity and his successful re-integration into society
at the end of the trial. The on-going traditional process may help in restoring
inter-tribal unity between the people of Ankole and those of Acholi. The three
processes of trial, plea bargain and cultural reconciliation can be mutually
supportive. Useful lessons could be learned from a successful completion of the
cultural reconciliation in a manner that does not undermine the trial or plea
bargain process. He is prejudiced at the moment for having to participate in all
three processes at the same time. It is therefore necessary to suspend the trial
for such a time as is reasonably necessary for completion of the other two
processes.

[7] The application is supported further by the affidavit of Mr. David Okello the
mediator and coordinator of the traditional reconciliation process on behalf of the

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 victim’s family. He witnessed the applicant give an honest narration of what led
to the unfortunate incident of the death of the victim. On 12 th September, 2020 he
witnessed the applicant kneel down and ask for sincere forgiveness from the
victim’s family and the Acholi mediation and Blood Compensation Committee. On
13th September, 2020 he witnessed the applicant pay blood compensation to the
Acholi mediation and Blood Compensation Committee for causing the victim’s’
loss of life. The applicant has undergone the most important and binding phase
but is yet to undergo the crowning ceremony of drinking the bitter herb and
sharing a first meal with the victim’s family as the symbolic seal of principled
reconciliation between the two families and peoples. It is of utmost importance
that both families complete that process as a means of restoring harmony
between the applicant’s family, clan and people with the victim’s family, clan and
people. Continuation of the trial will greatly hinder the process of traditional
reconciliation.

[8] Further support for the application is offered by the affidavit of Mr. Olaa Ambrose
the Prime Minister of the Ker Kwaro Acholi, the supreme cultural institution of the
Acholi. He verifies the traditional and cultural processes that have been
undertaken this far in pursuit of justice and reconciliation between the family of
the applicant and that of the victim. The applicant participated in the dialogue
(Laro Lok) and fact telling (Tito Tyen Lok) phase of the process on 12th
September, 2020 during which he gave a satisfactory account of the events that
led to the death of the victim. He participated in the reconciliation process (Culo
Kwor) on 13th September, 2020 and paid the necessary compensation to the
Acholi Traditional Mediation and Blood Compensation Committee. The
proceedings were thereafter adjourned indefinitely to a date to be communicated
by the Ker Kwaro Acholi in consultation with the family of the victim. The system
does not seek to replace the criminal proceedings in court but only to handle its
reconciliatory aspects and thereby enhance the court’s ability to dispense justice.
Media sensationalism surrounding the case provoked sentiments of tribalism that

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 run contrary to the national goals of peace and unity. The “Mato Oput” will help in
healing those divisions and the case will serve as a reference in future disputes.

iii. Submissions by counsel for the applicant;

[9] Counsel for the applicant filed written submissions in which they argued that the
applicant initiated a process of mato oput that is on-going, which is expected to
be concluded before the end of December, 2020. This will be followed by a plea
bargain process of which the Director of Public Prosecution has already been
notified. The process of plea bargain will benefit the accused, the victims and the
state. Constitutional provisions require the court to administer justice in
conformity with the law, the values, norms and aspirations of the people as well
as to promote reconciliation between the parties. It is on that account that the
court ought to accommodate the on-going reconciliatory informal justice mato
oput by suspending or adjourning the trial.

iv. Submissions by counsel for the respondent;

[10] The learned Chief State Attorney representing the prosecution responded that
the application seeks for an adjournment of the main trial to permit the future
consideration for a possible plea bargain, subject to the anticipated cultural
reconciliation process in the Acholi Tradition. The law governing adjournment is
section 53 of The Trial on Indictments Act. The reasons being advanced are not
among those envisaged in law. They submitted that the court cannot be as asked
to adjourn a trial in anticipation of future events. The reasons being advanced in
the application are speculative. They are aimed at defeating the right to a fair and
speedy trial as enshrined in the constitution. The right to a fair and speedy trial
applies not only to the accused but all parties affected by the case. This case has
been in the judicial system since February, 2016. Before today’s session it had
come up in two previous sessions. Even in this session this is the second time it
comes up. They prayed that the court exercises its duty to curtail delays and

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 dismiss the application. It has the potential of resulting into a mistrial; hence the
application should be dismissed to ensure that the integrity of the trial is
preserved.

v. Principles that guide the grant of adjournments in criminal trials;

[11] In applications of this nature, the court must consider all of the circumstances
bearing on a motion to adjourn or suspend the trial. The potential interference
with the orderly progression of the trial, however, is one such circumstance.
According to section 53 of The Trial on Indictments Act, adjournments to be
granted on account of two situations, namely; the absence of a witness, and / or
other reasonable causes. The paramount consideration when granting a prayer
for adjournment is to enable a party to present his or her case as fully as
necessary and within the limits of the law, or to respond fully to the evidence and
arguments of other party.

[12] The factors which might guide court in the determination of whether or not to
grant the application for an adjournment include; (a) the reasons for the
adjournment; (b) the timeliness of the application and the length of the
adjournment sought; (c) where the reason for the application is a legal issue
which is scheduled for adjudication in the future, the prospects of that issue being
resolved in a manner favourable to the applicant; (d) whether the applicant would
suffer prejudice if an adjournment were refused and whether that prejudice could
be mitigated by the court making a particular order; (e) whether refusal of an
adjournment would be contrary to the rules of natural justice or undermine a fair
trial; (f) whether an adjournment would undermine or frustrate the objects of any
applicable legislation; (g) whether the circumstances giving rise to the need for
an adjournment were self-induced or involved any misconduct by the applicant;
(h) the desirability of resolving criminal proceedings expeditiously and avoiding
any fragmentation; (i) the need for finality in litigation; and (j) the interests of
justice.

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[13] In deciding on a motion for adjournment, the court should consider such factors
as the duration of the proposed adjournment, whether the party moving for
adjournment was diligent in light of the reasons justifying the motion, whether the
other party and the court had prior notice of the intention to seek the
adjournment, whether the applicant seeks an improper tactical advantage, and
whether the adjournment will actually improve the ability to prosecute the case or
the accused to respond to the case against them and thereby enhance the
overall fairness of the trial. Likewise, the court must also consider the risk of
prejudice to the accused and the extent to which such prejudice may be cured by
methods other than denying the adjournment, such as granting a short stand
over or permitting the accused to recall witnesses for cross-examination. The
above list is not exhaustive; particular cases may present different circumstances
that also bear on the proposed adjournment. One aspect of a fair trial is the
taking of reasonable steps to prevent avoidable delay so as to guarantee a
speedy hearing.

[14] The court should not lose sight of the paramount consideration of the right
guaranteed by Article 28 (1) of The Constitution of the Republic of Uganda, 1995
which guarantees to each person accused of an offence, a fair, speedy and
public hearing before an independent and impartial court established by law. This
guarantee requires that criminal trials should be conducted and concluded in the
shortest appropriate period of time. The guarantee relates not only to the time by
which a trial should commence, but also the time by which it should end and
judgement be rendered; all stages must take place in a “speedy” manner.

[15] According to The African Commission on Human and Peoples’ Rights’ Principles
and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003,
the key attributes of a fair trial include;- (i) an independent, competent and
impartial court; (ii) a public trial where proceedings are held in public and
judgment given in public; (iii) the presumption of innocence until one is proved or
pleads guilty; (iv) the right to be informed of the nature and cause of the charge

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 against him or her, promptly, in detail, and in a language which he or she
understands; (v) the accused must be given adequate time and facilities to
prepare a defence and to communicate with counsel of his or her own choosing;
(vi) the accused must be tried without undue delay; (vii) the accused must be
tried in his or her presence, and defend himself in person or through legal
assistance of his or her own choosing, or to have legal assistance assigned to
him or her, in any case where the interests of justice so require; (viii) the right or
opportunity to examine, or have examined, the witnesses against him and to
obtain the attendance and examination of witnesses on his or her own behalf
under the same conditions as witnesses against him or her; (ix) the right to free
assistance of an interpreter if he or she cannot understand or speak the
language used in court; (x) the right not to be compelled to testify against himself
or herself or to confess guilt; (xi) the right not to be tried or punished again for an
offence for which one has already been finally convicted or acquitted in
accordance with the law and penal procedure; (xii) the right to appeal.

[16] Principle 5 of the Principles and Guidelines on the Right to a Fair Trial and Legal
Assistance in Africa, explains that the right to a trial without undue delay means
the right to a trial which produces a final judgement and, if appropriate a
sentence without undue delay. Factors relevant to what constitutes undue delay
include; - the complexity of the case, the conduct of the parties, the conduct of
other relevant authorities, whether an accused is detained pending proceedings,
and the interest of the person at stake in the proceedings. In principle 6 (b) it is
noted that the accused is entitled to a hearing in which his or her individual
culpability is determined. It is further observed that group trials in which many
persons are involved may violate the person's right to a fair hearing.

[17] Since one of the reasons advanced for the adjournment is to create an
opportunity for a plea bargain negotiation, the court also ought to be mindful of
Rule 5 of The Judicature (Plea Bargain) Rules, 2016, by which a plea bargain
may be initiated orally or in writing by the accused or the prosecution at any

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 stage of the proceedings, before sentence is passed. The court now proceeds to
consider the grounds advanced for seeking the adjournment.

vi. Resort to traditional justice mechanisms as a justification for halting

a criminal trial.

[18] The most important right of the criminally accused is the right to a fair trial.
Derogation from the enjoyment of this right is constitutionally prohibited (see
article 44 (c) of The Constitution of the Republic of Uganda, 1995). Criminal trials
ensure that factual and legal issues are examined thoroughly and resolved
through a process that guarantees the accused procedural safeguards, before
the application of penal sanctions. On the other hand, plea bargains present a
process where such factual and legal issues are resolved through a process of
negotiation and inquisitorial proof, resulting in a counselled guilty plea, that is
both voluntary and intelligent, which is an admission of factual guilt. By entering a
plea bargain, the accused waives almost all the procedural rights, guaranteed by
the right to a fair trial.

[19] Models of justice are commonly divided into three main categories: retributive,
deterrent and restorative. Retributive justice focuses on the moral dimension of
justice. It emphasizes the notion that perpetrators of a crime or those who fail to
abide by laws or customary norms “deserve” to be punished for their wrongdoing.
On the other hand, a deterrent view of justice focuses on the instrumental
dimension of justice. It emphasises that punishment for wrongdoing is necessary
to prevent further violations of the law and to signal the boundaries of socially
acceptable behaviour. Finally, the restorative view of justice focuses on the need
to rebuild or restore relationships and / or socio-economic status. This form of
justice includes scope for compensation as a way of correcting wrongdoing and
achieving justice.

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[20] The contemporary criminal justice system in Uganda is driven by the retributive
objective of punishment. This traditional penal approach to crime views the state
as the primary offended party or victim of the criminal offence and places those
harmed by the offence, and the community, in passive or subsidiary roles as
witnesses or assessors. The penal or retributive criminal proceeding aims at
determining guilt and imposing an appropriate punishment. Retributive justice
aims to impose punishment or deprivation proportionate to the offence which was
committed. It is not that the system entirely ignores the effect on the victim of the
offender’s conduct; instead this effect on the individual victim may be considered
in determining the category of the offence or the seriousness of the legal
violation. The system therefore opts for mechanisms that can produce an
acceptable result in the shortest possible time, with the least possible expense,
with the minimum stress on the participants and will defer to alternative
mechanisms only where they provide more expeditious options to the traditional
criminal trial processes.

[21] On the other hand, restorative justice is a way of seeing crime as more than
breaking the law; it also causes harm to people, relationships, and the
community. One of the stated goals of restorative justice is to promote
reconciliation so as to build and rebuild relationships. Restorative Justice is a
theory of justice that emphasises repairing the harm caused by criminal
behaviour. It is best accomplished through cooperative processes that allow all
willing stakeholders to meet. Restorative justice is thus a process through which
remorseful offenders accept responsibility for their misconduct to those injured
and to the community that, in response allows the reintegration of the offender
into the community. The emphasis is on restoration: restoration of the offender in
terms of his or her self-respect, restoration of the relationship between offender
and victims, as well as restoration of both offenders and victims within the
community. What constitutes appropriate reparation is decided through a process
of negotiation involving not only the offender and the victim but the respective
families and social networks who have also been harmed by the criminal act.

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[22] From the restorative justice perspective, crime is understood as harm to
individuals and communities, rather than simply a violation of abstract laws
against the state. Those most directly affected by crime, i.e. victims, community
members and offenders, are therefore encouraged to play an active role in the
justice process. Rather than focus on offender punishment, it focuses on
restoration of the emotional and material losses resulting from crime. The
offenders therefore must be willing to be accountable for their actions, which
includes; (i) a full and free acknowledgment of their part in what happened and
the harm that their actions have (or may have) caused to specific persons and /
or communities; (ii) expressions of genuine remorse for their actions; and (iii) a
willingness to make amends or repair the harm they have caused. To be
successful, participation in the process should be voluntary for each person,
which includes ensuring that they are not coerced, pressured, or induced by
unfair means.

[23] The contention that traditional justice mechanisms facilitate reconciliation should
be viewed in the context of a broader debate seen in transitional justice literature
regarding the relationship between retributive justice and peace / reconciliation.
Many of the discussions on this topic, however, are merely theoretical and not
empirically grounded. It is further not entirely clear, what the applicant advances
as reconciliation or who he is seeking to reconcile with; individuals, communities,
or the whole society. More importantly, it is necessary to question just how
realistic or achievable that is. Noble as the goal may be, courts have never been
equipped nor had sufficient resources to fully achieve the peace-building role. If
the court is to aid reconciliation in the manner suggested by the applicant, it is
essential that it is well informed about mato oput and understands its processes,
yet there is very little published data concerning this traditional justice
mechanism.

[24] It is in the context of the 2007 Juba Agreement on Accountability and

Reconciliation that mato Oput first gained concerted national and international

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 publicity. It was stipulated in that agreement that traditional justice measures and
institutions should be promoted alongside formal legal arrangements to ensure
justice and reconciliation. It was agreed that traditional justice systems should
more appropriately be viewed as parallel to formal justice, rather than as an
alternative. The Agreement specifically mentioned traditional justice mechanisms
such as Culo Kwor (among the Acholi and Langi for homicide), Mato Oput
(among the Acholi), Kayo Cuk (among the Langi), Ailuc, Tonu ci Koka and others
practiced in communities affected by the conflict. This culminated in The National
Transitional Justice Policy (adopted on 17th June 2019) which is designed to
address the justice, accountability and reconciliation needs of post-conflict
Uganda, though a range of processes and mechanisms associated with society’s
attempt to come to terms with a legacy of large-scale past abuses and human
rights violations in order to ensure accountability, serve justice and achieve
reconciliation. Transitional Justice consists of both judicial and non-judicial
processes and mechanisms including prosecution initiatives, truth-seeking,
reparations programmes, institutional reform or an appropriate combination
thereof.

[25] It is the applicant’s contention that he has undergone the first three phases of the
process and is only left with the final stage of that traditional justice process. The
process left has been outlined as follows;
A. Preparation:
Preparing the reconciliation mix to drink is done by an elderly
person (senior of all in age). The elder prepares from the roots,
opwut. The roots are dug up and pounded on a stone to form some
sort of powder. The powder is mixed up with the fruit juice in a new
calabash carefully placed on the ground.

B. Short rite of purification:

Before the family of Otim sets to go to the designated village site of
reconciliation, a brief rite of purification is performed by simply
spitting into the mouth of the reconciliation sheep. Otim holds open
the mouth of the sheep he is leading and spits some saliva into it.
That done, he then leads the black sheep to the farmyard of the

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mother of Okeny. On reaching the farmyard, the sheep is laid on its
back on the ground and its head in the north direction. The sheep is
then stabbed by one of the elderly persons, master of the ceremony
with a sharp knife. Successively another of the elderly persons lay
another reddish-white sheep on its back on the ground, its head in
the opposite south direction. This sheep is presented to the elderly
persons by the family of Okeny killed. The elder then stabs it also
with a sharp knife. The close relatives of Otim gather in the north
direction of their slain sheep and likewise the close relatives of
Okeny gather on the side of their sheep. The two opposite
direction, north and south of the heads of the ritual sheep signify
the diversification of enmity which must be brought close together
and the families of the two will no longer entertain hostilities but
become reconciled and live in peace.

C. Drinking the reconciliation mix (matto opwut).

The elderly person, master of ceremony, will take the blood of the
two slaughtered sheep and pour it into the opwut and acuga mix to
form a single mix of reconciliation drink. The close relatives of the
person killed and those of the killer come close to each other and
converge on the mixed juice from their opposite directions in a
gesture signifying end to hostilities and beginning of reconciliation.
Having converged on the calabash containing the mix of the
reconciliation drink, the killer and a close relative of the one killed
begin to drink. They both kneel down and close on to the calabash,
their hands are folded behind, as seen from the photo) and they
bend on to drink from the calabash without holding it by hands. In
this way they drink from the calabash three times and then leave
way to their close relatives who have come to witness the ritual
ceremony. Otim will start to drink followed by the relative, father of
slain Okeny. The mother of the one killed always stands by bitterly
weeping her slain son or daughter. The elders will always keep her
company in an effort to show kindness and affection and restrain
her from excessive mourning which could otherwise provoke the
close relatives of the slain into revenge. They also invite her to
partake of the opwut reconciliation mix. Meanwhile the carcass of
the sacrificial sheep is cooking on fire.

16
 D. Consuming the liver of the sacrificial sheep
The liver of the two sheep is roasted, cut into pieces and put on the
fresh hides of the slaughtered sheep and then eaten. Otim takes a
piece of liver and feeds it into the mouth of the close relative of the
slain Okeny who consumes it. Likewise the close relative of the
slain takes a piece of liver and feeds it into the mouth of the killer
who consumes it. The rest of the meat of the sheep is cooked for
consumption.

E. Examination of and blessing the indemnity

Meanwhile the meat is cooking in the fire some elders come up to
examine the indemnity which the family of the killer must pay to the
family of the slain person. They are two fat and healthy cows which
have become substitute of paying indemnity with a person namely
a girl. When accepted, the elders bless the indemnity by smearing
the chest of each person present with the content of the entrails of
the sheep. The content is put on the chest of all persons present
saying:
“Let these cows produce many and only female off-springs.
We all do mistakes,
May peace and calm now return among us”.

E. Celebrating the reconciliation:

In this way reconciliation rite is accomplished. An older person
begins to drum from the royal bwola drum. The women shout
ululations and clan mottos while an old man drums. On hearing the
drums sounded the people from all over the neighbourhood come
and join in the happy dance and merry making. The feasting
continues even for a second day when more bulls are slaughtered
to feed the people who have witnessed the reconciliation.

(See The Uganda Coalition for the International Criminal Court’s

working paper; Approaching National Reconciliation in Uganda;
Perspectives on Applicable Justice systems (2007).

[26] There may be variations in details of the reconciliation rite but essentially the rite
includes purification, making confession, making compensation and finally
coming together in a joyful celebration which must involve eating together from
the same dish and drinking from the same calabash, but all of these activities

17
 occur only after a person has admitted committing an offence. In the instant
application, the applicant has not adverted to the question whether or not he
admits having committed the offence. The application is completely silent on this
perspective, yet it is what triggers the reconciliatory part of the process. He has
only adverted to having made a genuine exposition of the events that led to the
death of the accused. This creates a degree of scepticism regarding the
genuineness of that process.

[27] On the other hand, despite the adoption of the Transitional Justice Policy, the
traditional justice principles and processes have not been detailed and developed
further. As a result, there may be a gap between the ideals or aspirations for
restorative justice and actual practices. Without established rule-based
safeguards or method of adjudication, during that process;- victims may attempt
to shame the offender, the offender may be inhibited in his or her expression for
fear of upsetting the victims, an offender may be dealt with in a harsh and
discriminatory manner without recourse to any oversight organ, there are no
mechanisms to address the concern that political, financial or other external
influences may corrupt the process hence rendering such a process vulnerable
to undue influences, distinctions along the lines of family, wealth or gender may
play a greater role there than in the formal court system, lack of established
enforcement measures, it may not have been fully scoured of inconsistencies
with basic principles of human rights as to make it consistent with constitutional
standards, it may not be possible to have equity or proportionality across
outcomes, there is no procedure for transferring the case to the formal courts at
the request of the accused, etc. In its current form, mato oput has no effective
system of regulation and review in place. It is shrouded in legal ambiguity and as
a result its interface with formal criminal justice is opaque.

[28] That aside, despite the extent to which the ceremony of mato oput has become
known both inside and outside Uganda, its performance is relatively rare in
contemporary Acholi, especially in the reintegration of former LRA combatants

18
 (see Thomas Harlacher, Francis Xavier Okot, eta al; Traditional ways of Coping
in Acholi, Cultural provisions for reconciliation and healing from War, (2006)
Caritas Gulu Archdiocese). There is no empirical evidence, outside occasional
anecdotal narratives, to support the effectiveness of that process.

[29] It is not in doubt though that traditional and informal actors rarely extend beyond
their highly localised sphere of influence. Application of restorative justice
approaches within the context of traditional justice thus rests on the assumption
that there exists within the affected community adequate meso-social structures
i.e. ordered sets of relationships, for example, residence, kinship, or lineage, that
create the intra-societal power and coercion, which make dispute settlement
possible. Secondly, it presupposes that the disputants are part of the same moral
/ social community. That they live in close proximity to one another or are related
to one another, and typically wish to continue living in the community.

[30] In this application, mato oput has been romanticised as a kind of magic bullet to
resolve virtually any type of crime. It is not clear though to this court as to how
this traditional justice practice, that has hitherto been adopted in relatively tight-
knit and inter-dependent social settings to limit revenge, to prevent blood feuds,
to prevent inter and intra-tribal wars, to welcome former child combatants in post-
conflict Northern Uganda back into their local communities, all being situations in
which accountability, healing, and reconciliation is key for peaceful and
harmonious reintegration and co-existence, can appropriately deal with ordinary
crime allegedly committed hundreds of kilometres away, by persons who are not
members of that local community.

[31] At the policy level, traditional criminal justice might serve as an alternative to
formal criminal justice. In other cases, the two might work in a complementary
manner with, for example, the former dealing with less serious offences, and the
latter with more serious offences. Then again, traditional criminal justice might
under certain circumstances serve to undermine formal criminal justice (and vice

19
 versa) by proclaiming simultaneous jurisdiction and thereby confusing parties as
to which is the appropriate forum. All these are policy considerations on which
Parliament is yet to declare itself, yet the rule of thumb is that policy is a matter
for the legislature and not for the courts, save in an area not covered by
legislation in which the courts must revise old rules or formulate new ones. It is
only in the latter situation that policy, in the sense of the motivating equitable and
practical reasons behind the development of legal principles, legitimately plays a
constant although usually imperceptible role in the decisional process.

[32] Courts apply pre-existing rules (statutes) formulated by Parliament and other
legislative bodies. For practical purposes, all primary legislation and most
secondary legislation is about giving effect to policies for change. But not all such
change requires legislation. In applying legislation, courts must also interpret
them, typically transforming the rules from generalities to specifics and
sometimes filling gaps to cover situations never addressed by lawmakers when
the legislation was first drafted. So long as human language remains imprecise
and human capacity to predict the future limited, it will fall to judges to fill the
gaps in the laws and rules. This though is not justification enough for
transplanting policy into law or make decisions that virtually supplant the
legislative enactments themselves. It is only when courts are confronted with a
dispute for which there is no clear statutory answer, that they must render
decisions in accordance with their own conceptions of justice, equity and good
conscience (see section 14 (2) (c) of The Judicature Act). The bottom line though
is that traditional justice should play a complementary role to the formal justice
system, but not serve to displace, undermine or delay it.

[33] Legal systems cannot be built or sustained by reference only to generally

expressed values. Neither, however, can they be built upon strict textually-rooted
rules alone. It is in light of this that article 126 (1) of The Constitution of the
Republic of Uganda, 1995 requires courts to administer justice “in conformity with
law and with the values, norms and aspirations of the people.” These values,

20
 norms and aspirations find their expression not only in the formal law, but also in
societal expectations, behaviour and actions (which may, in time, also come to
be reflected or incorporated within the law, but which, in any event, do not require
formal legal expression for society to understand their correctness or
importance). The provision therefore is acknowledgement that although the law is
stable, it cannot stand still. The essential purpose of this provision is to bring
broader social interests affecting the public at large into judicial consideration, so
as to harmonise the pursuit of individual rights with the needs of the entire
community for whose interests the courts are viewed as guardian. It is a reminder
to the courts regarding the importance of changing social conditions to their
decisions.

[34] Although a court should not shrink from applying the values, norms and
aspirations of the people to any new and extraordinary case that may arise,
however, since minds could easily differ over the contents of such values, norms
and aspirations, their identification and application cannot be based on pure
judicial intuition. It brings to mind the proverbial metaphor of the "very unruly
horse and when once astride it you never know where it will carry you" (see
Richardson v. Mellish (1824) 2 Bing 229, per Burrough J., at 252; 130 E.R. 294
at 303). It would be wrong for a judge to set out in pursuit of a personal policy
agenda and hang the law.

[35] There is an important balance to be struck. Values, norms and aspirations are
not clearly identifiable separate entities, but expressions along a gradation of
particularity. “The proper balance to be struck must recognise the requirement
that rule and principle conform to moral standards as the gauge of the law’s
flexibility and as its avenue for growth, and in order to accommodate changes in
society’s conceptions of the application of unchanged values. The balance must
also recognise the danger of absence of adequate rules that may confound law
by a drift into a formless void of sentiment and intuition” (see Chief Justice of the
Federal Court of Australia, James Allsop; Values in Law: How they Influence and

21
 Shape Rules and the Application of Law, 2016 Hochelaga Lecture, Centre for
Comparative and Public Law, Faculty of Law, University of Hong Kong).
Therefore, wherever existing legal authority proves inadequate, decisions ought
to be based on sound legal principle and legal policy, because Law, at its very
foundation, is conceived and derived from values.

[36] Moreover, any single constitutional right is but a component in an ensemble of

interconnected and interacting provisions which must be brought into play as part
of a larger composition, and which must be given such an integrated
interpretation as will fit it harmoniously to the general constitutional order. While
article 28 (1) of The Constitution of the Republic of Uganda, 1995 spells out
specific legal principles, article 126 (2) (d) thereof states broad values and ideals,
the application of which might make criminal law very uncertain, yet questions of
legal right and liability should ordinarily be resolved by the application of the law
and not the exercise of discretion. The court cannot resolve the issue at hand as
a matter of judicial discretion. It would be contrary to the rule of law and contrary
to the principles of legal certainty.

[37] The ideal of legal certainty has long shaped views of the judicial role. Courts
should minimise the distress, uncertainty and confusion of parties affected by
criminal law. Criminal law and procedure should be certain, so that it can be
easily enforced and so that people can know where they stand. In the context of
criminal trials, and particularly at the point of ascertaining criminal liability, it has
thus been said that “the operation of the criminal law should be as certain as
possible. If the interpretative choice is between making a value judgment and
applying a rule, a court exercising criminal jurisdiction should prefer the rule” (see
Taikato v. The Queen [1996] HCA 28; 186 CLR 454 at 466 per Brennan CJ,
Toohey, McHugh and Gummow JJ).

[38] International, regional and domestic instruments provide for fair trial guarantees
in criminal cases. Whereas article 126 (2) (d) of The Constitution of the Republic

22
 of Uganda, 1995 requires courts to promote reconciliation between parties when
adjudicating cases of a criminal nature, this has to be done “subject to the law.”
In the instant case, asking court to defer to traditional justice mechanisms by
advancing an argument largely premised on the court’s duty to uphold the
values, norms and aspirations of the people in the administration of justice, the
applicant seeks to halt a trial that is at an advanced stage, a trial that is governed
by well-established substantive and procedural laws, in preference for a
reconciliatory traditional justice mechanism that currently has no regulatory
framework for ensuring that it complies with domestic, regional and international
human rights standards relating to criminal trials.

[39] The applicant has not produced any empirical evidence of the reconciliatory
potential of mato oput. It has not been demonstrated that the applicant has the
leverage nor that the persons in charge of the mato oput have the skills and clout
necessary to curb an inclination to delay the process, when it arises. The process
is not regulated by any laws, rules or standard guidelines and thus lacks proper
mechanisms for accountability. Deferring the continuation of the trial to such a
process would occasion a miscarriage of justice. That part of the argument fails.

vii. Resort to plea bargaining as a justification for halting a criminal trial.

[40] The most eminent explanation usually offered for the inevitability of plea
bargaining is the theory of case load pressure. The idea is that plea bargaining is
essential to clear case backlog without the enormous costs and delays which
would be generated if the system relied on trial alone. The Judicature (Plea
Bargain) Rules, 2016 are primarily designed to obviate lengthy hearings thereby
enabling our criminal justice system to cope with an ever increasing number of
registered criminal cases and in order to avoid a growing backlog of pending
cases. Plea bargaining was primarily instituted to decongest court and improve
court efficiency, and has resulted in the reduction of cases aged over three years

23
 old from 24% in 2017 to 17% in 2019 (see Uganda’s Budget Speech, 2020, para.
24).

[41] Rule 3 of The Judicature (Plea Bargain) Rules, 2016, states the overall
objectives of plea bargaining as being; - (a) to enhance the efficiency of the
criminal justice system for the orderly, predictable, uniform, consistent and timely
resolution of criminal matters; (b) to enable the accused and the prosecution in
consultation with the victim, to reach an amicable agreement on an appropriate
punishment; (c) to facilitate reduction in case backlog and prison congestion; (d)
to provide quick relief from the anxiety of criminal prosecution; (e) to encourage
accused persons to own up to their criminal responsibility; and (f) to involve the
victim in the adjudication process.

[42] Rule 4 of The Judicature (Plea Bargain) Rules, 2016 defines plea bargaining as
the 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
offence, or recommend a particular sentence acceptable to the accused subject
to approval by Court. Sentence bargaining is a method of plea bargaining in
which the prosecutor agrees to recommend a lighter sentence for specific
charges if the accused pleads guilty or no contest to them. Charge bargaining is
a method where prosecutors agree to drop some charges or reduce a charge to
a less serious offence in exchange for a plea by the accused. In order for an
agreement to plead guilty to be valid, the accused must (i) accept the plea
bargain in full awareness of the facts of the case; (ii) accept the plea bargain with
full awareness of the legal consequences; and (iii) accept the plea bargain in a
genuinely voluntary manner. The bargain must not run counter to any important
public interest.

[43] Plea bargains involve compromise, the accused agrees not to take his or her
case to trial; the prosecution agrees to a less severe punishment than the law

24
 might allow. Most plea negotiations are primarily discussions of the merits of the
case, in which defence counsel point out legal, evidentiary, or practical
weaknesses in the prosecution case, or mitigating circumstances that merit
lenience, and argue based on these considerations that the accused is entitled to
a more lenient disposition than that originally proposed by the seriousness of the
offence charged. One needs though to analyse what exactly is traded off in the
process.

[44] On the one hand, the prosecution stands to benefit in a number of ways,
including; - the fact that prosecution resources do not allow for a high trial rate, a
lightened caseload, assurance of a conviction since no case is a foregone
conclusion, in return for damaging testimony against another accused, not having
to deal with emotionally traumatised witnesses, etc. On the other hand, the
accused stands to benefit by way of; having opportunity for a more lenient
sentence than if convicted at trial, trade risk of chances of acquittal at trial for
certainty, avoiding the stigma of a public trial and the attendant media attention,
avoiding undue anxiety by resolving the issue as quickly as possible and moving
on, avoiding expense and exposure that can be exceptionally draining on an
accused since the longer a trial takes, the more expensive it tends to be,
damning evidence is not disclosed, etc.

[45] One fact is assured in all cases; when the offence occurs, the facts are set and
cannot change. It is only perspectives and interpretation of the facts that may
vary as each side of the trial seeks to persuade the court to decide in its favour. It
is thus understandable why in some cases plea bargains may be delayed until
late during the course of the trial, as the accused seeks to test the prosecution
version of the events to the maximum. This may change when the accused
realises the prospects of his or her version succeeding are not as high as initially
thought. At that point, a plea bargain may present the accused with the most
advantageous way out. Regarding the timing of plea bargains, in Inensiko Adams
v. Uganda, H.C. Criminal Appeal No. 004 of 2017, cited with approval in Luwaga

25
 Suleman Alias Katongole v. Uganda, C.A Criminal Appeal No. 858 of 2014, it
was stated that:
“…ideally plea bargain should be at the time of plea taking to
enable the state, the accused and defence counsel agree on
amending the charge sheet or indictment where necessary with a
view of dropping some counts if they are multiple, reducing the
charge to a minor cognate offence, using accused as state witness
or taking responsibility of the criminal conduct early enough etc.
…..The court is obliged under the rules to embrace plea bargain
any time before sentence when either party before it expresses
interest in the process unless it is intended to pervert the cause of
justice." (Emphasis added).

[46] The Judicature (Plea Bargain) Rules, 2016 are necessarily predicated upon a
determination that the constitutional right to a fair trial may be waived in
exchange for inducements such as a reduction in the charge or sentence. While
the objectives of plea bargaining envisage the right of the accused to a speedy
trial, plea bargaining raises a general concern as to whether the accused enters
into a plea bargain and pleads guilty to the charged offence voluntarily or not.
Without a fact-finding or investigating mechanism, the process is essentially
concerned with what the outcome should be after a person has admitted
committing an offence, rather than address the question whether the accused is
“guilty” of the crime or not.

[47] A guilty plea thus is not equivalent to a confession. The reasons people plead
guilty after plea bargaining are numerous, and actual guilt may or may not have a
bearing on the decision to plea bargain. Even an innocent accused person may
rationally prefer a specified lenient sentence to the risk of a much harsher
sentence resulting from a wrongful conviction at trial. It is thus not inconceivable
that some accused may in some cases enter into plea bargaining involuntarily,
primarily due to insurmountable coercive circumstances they might be going
through at the time, such as the pursuit of expedited release or escape from pre-
trial indeterminate detention, among others.

26
[48] By entering a plea of guilty, the accused forfeits a broad range of potential legal
and constitutional procedural safeguards that would otherwise have been
available had the case gone to trial. All attributes of the right to a fair trial are
equally important and are non-severable from each other. The accused cannot
bargain away or waive some of the attributes. When an accused has solemnly
admitted in open court that he or she is in fact guilty of the offence with which he
or she is charged, he or she may not thereafter raise independent claims relating
to the deprivation of constitutional rights that occurred prior to the entry of the
guilty plea.

[49] Since all attributes of the right to a fair trial are equally important and are non-
severable from each other, the timing of a plea bargain becomes of crucial
importance. Before the trial commences, waiver of the right would potentially
attract a reduction in the charge or sentence, or both. From the outset, the
accused chooses to plead guilty pursuant to a plea agreement in which he or she
trades off his or her full package of trial rights for a reduction in the charge or for
a reduced sentence for forfeiture of his or her rights guaranteed during the fact-
finding phase of the criminal process. After the trial begins, all procedural
attributes of the fair trial right kick in and theoretically are no longer part of the
negotiation.

[50] After the trial has begun, the rights guaranteed to an accused during the fact-
finding phase of the criminal process can only be terminated by a change of plea;
thereafter the scope of negotiation is restricted to determination of the
appropriate penalty (or post-penalty), not a discussion of any of the rights
accorded during the fact-finding phase of the criminal process. Although Rule 5
of The Judicature (Plea Bargain) Rules, 2016, states that a plea bargain may be
initiated at any stage of the proceedings, before sentence is passed, yet on the
other hand Rule 8 (3) of the Rules requires a judicial officer who has participated
in a failed plea bargain negotiation to recuse him or herself from the trial.

27
[51] When the two provisions are read together, they open up an infinite number of
potential bargaining options and outcomes throughout all stages of the trial.
Unless regulated by court, the assortment of concessions that could be offered
by an accused in return for a sentencing or charging consideration would be
virtually unlimited and open to abuse. Ridiculous proposals could be made with
the sinister motive of forum shopping and frustration of the trial. The potential for
abuse can be mitigated in a number of ways though.

[52] Firstly, since a guilty plea is not equivalent to a confession, a judicial officer who
has participated in a failed plea bargain negotiation in which he or she has not
become privy to facts relating to the actual guilt of the accused in circumstances
akin to a confession, need not recuse him or herself from the trial.

[53] Secondly, it is the trial rather than plea bargaining that is the official baseline
system proclaimed in the Constitution as the mode of resolving criminal cases.
Plea bargaining is best seen as complementary and not an alternative to a trial
system. Since plea bargaining primarily aims to end the trial for the accused by
prioritising its procedural expediency, the process of plea bargaining should not
result in prolonging the trial but should rather abridge it. Resort to plea bargaining
should therefore only be considered if the time required to conclude it is shorter
than the time it would otherwise take to conclude the trial. In the instant case, the
trial can be concluded within five days of day-today sittings, yet the applicant
seeks a more than two months’ adjournment to plea bargain. The request runs
counter to objectives (c) and (d) of the Rules which aim to facilitate reduction in
case backlog and prison congestion and to provide quick relief from the anxiety
of criminal prosecution.

[54] Thirdly, a party who elects to plea bargain after commencement of the trial ought
to come with bona fide reasons to condone the delay. If electing to plea bargain
necessitates an adjournment as a result of a lack of diligence on the part of the

28
 party requesting it, the court may be justified in refusing to grant the adjournment
if doing so will only result in prolonging the trial unnecessarily.

[55] It is the duty of court to balance public interest in the efficient administration of
criminal justice against the individual's constitutional rights. The court has to
strike a balance between the interests of the applicant, that of avoiding
unnecessary delay relating to the trial of the rest of the accused and the public
interest in the efficient allocation of judicial resources, consistency of verdicts,
convenience of witnesses and finality of litigation. There is a distinction though
between expeditiousness and expedience. The court accepts that as between a
speedy trial and an equitable trial preference should be given to the latter. But
the two are not necessarily opposed to each other: a trial is inequitable if it is too
long drawn out. Speed, in the sense of expeditiousness, is an element of an
equitable trial. The aspiration must be for a system where it is exceptional for a
case whose trial has begun and progressed this far, to have its progression
suddenly halted to enable the accused make up his or her mind as to whether or
not he or she should plea bargain. Allowing this application in the circumstances
of this particular case would be tantamount to deferring to expedience at the
expense of expeditiousness.

[56] Since plea bargaining is a voluntary process, there is little doubt that one or both
parties can exert enough control over the process to slow it down. A party may
have a variety of reasons for doing so. If the parties are left to their design, the
plea bargaining process may be an avenue to the eventual failure of a trial.
Although the court accepts that making up one’s mind whether to plea bargain or
not can reasonably require a lengthy period of time, every effort should be made
to bring cases to trial as expeditiously as possible. Consequently, adjourning a
trial that has advanced this much, in which the prosecution is almost closing its
case, for purposes of enabling the accused decide when and on what terms he
will negotiate a plea bargain more than month into the future, should occur in
very exceptional and rare cases.

29
[57] It is not in doubt that the processes used to achieve the restorative justice
objective can intersect with the formal criminal justice system or institutions in a
number of ways. The minimum elements of a restorative justice require a
process in which the victims and their offender(s) meet face-to-face and that they
come to some understanding, which constitutes the outcome that they have
determined, currently it is primarily through plea bargaining.

[58] However, Article 21 (1) of The Constitution of the Republic of Uganda, 1995
stipulates that all persons are equal before and under the law. Principle 5 of The
Uganda Code of Judicial Conduct, 2003 requires judicial officers to accord equal
treatment to all persons who appear in court, without distinction on unjust
discrimination. As the words of the judicial oath make it clear, the principles of
exercising equality and fairness of treatment have always been fundamental to
the role and conduct of judicial officers. The equality duty requires judicial
officers, in the exercise of their functions, to avoid inequitable devotion of the
resources available to court, to individual cases at the expense of others.
Resource allocation is a key factor that projects the perceived fairness of,
equality and efficiency of the criminal justice system.

[59] The court should not only have regard to the interests of the litigants, but should
also take into account the effect of an adjournment on court resources, and the
public interest in achieving the most efficient use of court resources. Decisions
on applications for adjournment call for the court’s consideration of the promotion
of judicial economy in which efficiency and equity are often inextricably related.
Faced with time and other resource limitations, the court should not
disproportionately devote more time and other resources than is absolutely
necessary to the trial of a single case, at the expense of multiple others in
waiting. One of the biggest contributors to delays is the number of procedural
matters requiring the court’s intervention that take up valuable court time and
other judicial resources.

30
[60] The ideal in the management of case progression is reflected in section 122 of
The Magistrates Courts Act which states that “….when the hearing of evidence
has first begun the trial shall be continued from day-to-day until the trial is
concluded, unless the court finds the adjournment of the trial beyond the
following day to be necessary…” There is no doubt that lengthy delays can give
rise to serious questions regarding fairness to the accused. Therefore, the
continued momentum of the case needs to be maintained, especially at this
critical stage, which requires strong judicial intervention. Case management and
progression requires that the court ought not to be unjustifiably diverted to focus
on activities and processes occurring outside the courtroom.

[61] It is not in doubt that an accused cannot be blamed for trying to take full
advantage of the resources afforded by the law in their defence as long as his or
her conduct is not obstructive. Although the court should not presume that an
application for adjournment is made with the design to deliberately delay the trial
or on account of mala fides, however a relatively belated application for
adjournment in order to consider the possibility of an election to plea bargain
raises concerns of a possible abuse of the process by using it as a delaying
tactic. It has been in the past a not uncommon practice for persons charged with
criminal offences to attempt to put off the evil day for as long as possible, first by
seeking adjournments of the trial and later, by constitutional references and
petitions coupled with orders of suspension of the trial.

[62] A delaying tactic is any reason or excuse given to intentionally prevent a trial
from proceeding at an ideal pace. The usual purpose of delaying tactics is to
postpone the resolution of the case or to confuse the court about the merits of
the case, or trigger a reason for its eventual stay. Because delaying tactics are
contrary to one of the goals of a trial (an expeditious resolution of the case), they
tend to be perceived negatively. By prolonging the process, they increase costs
and expenses and often the anxiety of all participants. When delaying tactics are
used, there is usually little doubt of their occurrence.

31
[63] Most of the time, a party who seeks a delay will file an unnecessary motion
raising one or more legal or procedural issues, or fail to comply with a deadline
set by court. The court must then rule on the motion or address the
noncompliance before the process can continue. It is also not uncommon for
such a party to change counsel at the eve of the hearing, to file constitutional
references and petitions. Some of these occurrences have already manifested
themselves in the current proceedings as a result of which the case has
traversed three previous sessions and now threatens to spill over into a fourth,
yet during that time, multitudes of other cases of a similar import have been
decided by this court. It should be a very exceptional reason that would justify the
kind of adjournment sought.

[64] It is important to remember that the duty of the court is to ensure that a party is
given a reasonable opportunity to prepare his or her case. The court has no duty
of ensuring that a party takes the best advantage of the opportunity to which he
is entitled (see Sullivan v. Department of Transport (1978) 20 ALR 323). Justice
delayed is justice denied. Lengthy trials and multiple adjournments are
particularly hard on victims and their families, as well as on accused persons,
whose stress can be worsened as the time between the laying of charges and
the end of the trial stretches out month after month or year after year.

[65] When these delays become very lengthy, the court may find that the accused’s
constitutional right to a speedy trial (as guaranteed by article 28 (1) of The
Constitution of the Republic of Uganda, 1995) has been breached. If this
happens, the only judicial remedy available in Uganda is an order for a stay of
proceedings (see Uganda v. Shabahuria Matia, H. C. Criminal Revisional Cause
No. Msk-00-CR-0005 of 1999 (unreported), which ends the process without a
completed trial on the merits of the case. Stays can have a harsh impact on
victims and affect public confidence in the criminal justice system. When stays
are granted in cases involving allegations of serious criminal offences, such as
murder, it shocks the conscience of the rightful thinking members of society.

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 They represent a failure to properly prosecute crimes and thereby protect our
society. The reputation of our criminal justice system is at stake.

[66] The right to an expeditious trial as a right guaranteed to all accused by article 28
(1) of The Constitution of the Republic of Uganda, 1995 is of paramount
consideration for the court in balancing whether or not to proceed. Decisions that
improperly or unjustifiably prolong the trial should be avoided. Thus the trial
court’s duty to ensure the fairness and expeditiousness of the trial proceedings
entails a delicate balancing of interests, including the public’s and victims’
interests in seeing a trial on the merits of the case, and that of the accused to a
speedy and equitable trial, particularly in cases, as in the present one, where
there is more than one accused person. In joint trials, each accused is accorded
the same rights as if he or she were being tried separately. An adjournment of
the nature proposed would prejudice the co-accused who does not stand to
benefit at all from that process, by exerting undue emotional and mental stress
from having the charges hanging over her for so long.

[67] Furthermore, the pace of the trial is largely determined by the size (in terms of
number of accused, the quantity of evidence and witnesses involved) and the
complexity of the facts and of the law. This is not a particularly complex case in
light of the number of counts, allegations, and nature of the crime charged such
that the prosecution was able to present almost all its witnesses at twelve
sittings; as follows;- 8th January, 2020 - 4 witnesses; 9th January, 2020 – 1
witness; 4th February, 2020 – 2 witnesses; 6th February, 2020 – 2 witnesses; 11th
February, 2020 – continuation with the testimony of P.W.9; 12th February, 2020 –
1 witness; 13th February, 2020 – 1 witness; 14th February, 2020 – continuation
with the testimony of P.W.11; 18th February, 2020 – a trial within a trial involving
– 4 witnesses; 19th February, 2020 – continuation with the testimony of P.W.11;
20th February, 2020 – 1 witness; 21st February, 2020 – 1 witness.

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[68] The majority of the prosecution witnesses have given relatively short,
uncomplicated testimony. Given that the prosecution is left with one or two
witnesses to close its case, the adjournment sought will lead to an unduly
prolonged trial in violation of the right of both accused to a fair and speedy trial.
The extent of the proposed period of trial delay disproportionately exceeds the
time reasonable for a case of such a relatively limited scope and scale as to
constitute prejudice. In light of the right to a fair hearing, which right is non-
derogable, a trial is not a measure of last resort.

Order:
[69] In the circumstances of this case, the court is not satisfied that the applicant’s
intention to plea-bargain upon conclusion of the on-going process of mato oput,
which is speculatively expected to be concluded before the end of December,
2020 in light of the inevitable indeterminate delay that will be occasioned by the
adjournment or suspension sought, is sufficient to outweigh the constitutional
right of the accused to an expeditious trial. The application is accordingly
dismissed;

_____________________________
Stephen Mubiru
Session Judge

Appearances
For the Applicant : Mr. Kabega MacDusman, Mr. Caleb Alaka and Mr. Evans
Ochieng.
For the Respondent : Mr. Jonathan Muwaganya, CSA and Ms. Anna Kiiza, CSA.

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