In Uganda, some 30,000 of its 35 million people are behind bars. Prisons are operating at 200 - 300 per cent over capacity. Over 6,000 inmates are on remand for capital offences, many of whom have been awaiting trial for years. Whilst no executions have taken place since 1999, and despite the abolition of the mandatory death penalty in 2009, hundreds of prisoners remain on death row and, according to Amnesty International, five individuals were sentenced to death last year. In reality, the number is likely to be far higher as the death penalty is staunchly defended by the courts of law, just as it is in the court of public opinion. Moreover, recent judicial decisions have rendered the sentencing regime for capital offenders extremely complicated, confusing not only the inmates and their lawyers, but the trial judges, too. As it stands, capital offenders face a number of draconian sentencing possibilities: the death sentence; a whole life tariff; or lengthy fixed-term sentences, with or without remission.
Given these sobering statistics, it is unsurprising that local and international bodies, such as the Uganda Human Rights Commission and the UN, have denounced Uganda’s prison accommodation and overcrowding as grossly degrading, its food, water, health and social care provision as either woefully inadequate or non-existent, and torture as an abhorrently regular occurrence. Under such circumstances, access to justice is an unmitigated illusion. Indeed, the international community became so concerned by lengthy pre-trial detention that various countries clubbed together to create a legal aid fund. It is due to international donors that capital offence trials actually take place.
Capital Offence Trials – Right to Effective Representation?
Under the donor-sponsored criminal justice system, a capital offence cause list consists of around 35 cases and involves 50 to 60 defendants, or ‘accused’. One cause list is heard by a High Court judge who listens to the evidence, decides guilt and passes sentence. The judge has 40 days to dispose of all 35 cases, which are split between four or five state briefs. If the practical logistics of hearing such a high number of capital cases in such a short time-frame do not undermine the most rudimentary fair trial rights, the quality of defence representation most certainly does.
Only those charged with a capital offence are entitled to free ‘legal representation’. Although remuneration for this work is determined by the judge who presides over the trial, budget limitations mean that defending a capital case will usually earn around 50 pounds – a criminally low sum given the seriousness of the charge. Pay is so poor that, as one judge confided, state briefs are either ‘inexperienced graduates or failed lawyers’. With some exceptions, state briefs are seen by their colleagues as the poor - essentially destitute - cousin of an otherwise prosperous and glamorous profession.
During the capital offence trials which I observed, state briefs invariably met with their client for the first time on the morning of trial. They spent just a few minutes discussing the case with their client in front of other defendants, prison staff, prosecutors and witnesses and they rarely request copies of the evidence, such as the police file. They also rarely cross-examined witnesses, allowing the prosecution’s evidence to go unchallenged, or challenged the admissibility of evidence - and they never called witnesses. Co-accused were routinely represented by one state brief despite the potentially for grave conflicts of interest. Pleading guilty was standard advice.
In turn, there is clearly no effective legal aid and no effective defence Bar in Uganda. Even though the most basic and fundamental right to effective representation is consistently and comprehensively violated, there is no prospect of lawyers striking over defence pay and conditions here. The project which I coordinated attempts to redress the chronic paucity of competent defence representation in Uganda.
Organising intensive training sessions was one way in which I sought to achieve this. Declan O’Callaghan of Landmark Chambers undertook a two-day training session for around 80 members of the legal fraternity. Richard Harvey of Garden Court Chambers also completed a week-long training event comprised of smaller workshops for the defence Bar and the judiciary. I also gave regular training to condemned inmates and those awaiting capital trials, discussing basic topics such as defences, mitigation and court processes, and I provided materials for the prisons’ libraries so that inmates can help educate themselves and each another.
These training sessions enabled us to bring together various players within the Ugandan criminal justice system including defence lawyers, prosecutors, judges, civil society organizations, law lecturers, students, prison authorities and government departments. They facilitated constructive dialogue in a multi-disciplined environment which not only covered problems arising from the capital punishment regime but, importantly, discovered practical solutions, too. Indeed, the senior judiciary have already accepted some recommendations of a report completed by Richard Harvey, including the need to give state briefs more notice of trials and earlier disclosure of evidence.
The other part of the project involved selecting and training seven students from Makerere Law School, Kampala, to become volunteer paralegals. Under my supervision, the students entered prison, interviewed inmates in relation to the capital charges against them, researched and evidenced points in relation to their defences and mitigation. This background information was documented and discussed with the state briefs before trial. In the time I was there, the students’ work achieved a number of exceptional successes. For instance, in a case of aggravated defilement (where the inmate was accused of having sex with someone under the age of 18 while infected with HIV), the students secured the attendance of the alleged victim (the accused’s wife) and her birth certificate, which proved that she was in fact over 18 years of age. The case was dismissed. Had the students not worked so conscientiously to secure such vital yet basic information, it would not have been available at trial, and the outcome would doubtless have been very different.
On leaving Uganda, two individuals replaced me: Liam Loughlin of 1 Inner Temple Lane and Amelia Montgomery, the current project coordinator. They are in the process of refining the project and offering further intensive training to state briefs and the students. They are assisting with a capital offence cause list which started in June, again comprising 35 cases to be heard within 40 days. In a revolving process, they will remain until August 2012, after which CCPS intends to send legally qualified criminal practitioners to develop the project. The eventual goal is to incorporate the project within a Ugandan legal institution whilst continuing to offer training programmes to strengthen capacity and improve standards at the Ugandan defence Bar.
Most certainly, this project is not a quick fix - it will require continued financial support and the dedication of those such as Declan, Richard, Amelia, Liam and, of course, the students; all of whom have selflessly invested substantial amounts of time and energy into making the project a success.
This project is also not a form of modern-colonialism: it is not about sending UK lawyers to ‘save’ Ugandans facing the death penalty. Rather, it is about harnessing the goodwill among the Ugandan criminal justice community and building on their expertise, exposing the future generation of lawyers to prisoners, prison conditions and prisoners’ rights, inspiring an ethos of social responsibility and promoting the belief that things can and do change.
With the humane approach and visionary leadership of CCPS director Professor Peter Hodgkinson OBE, I am sure that the project will continue to build capacity, thus saving lives. Although the project is in its infancy, it is initiatives like this which offer the best hope for sustainable improvements in the justice system because they give local lawyers the skills, knowledge and know-how to represent effectively some of the world’s poorest and most vulnerable individuals.
The start-up phase of the project was generously funded by the British High Commission, Uganda. If you or your Chambers would like to support CCPS by making a donation, or you would like to get involved with one of our projects, please don’t hesitate to contact us. Details can be found on the CCPS website: http://www.westminster.ac.uk/research/a-z/centre-for-capital-punishment-studies.
Graeme L. Hall is due to start pupillage with Doughty Street Chambers in October 2012.
- Capital offences include: murder, kidnap with intent to murder, terrorism, aggravated robbery, aggravated defilement;
- Execution method: hanging;
- Last execution in 1999;
- Last execution by court martial in 2003;
- Mandatory death penalty abolished in 2009.
35 million people living in Uganda;
- 30,000 people in jail;
- 17,000 inmates over capacity;
- Over 6,000 inmates on remand for capital offence;
- Prisons operating at between 200 – 300 per cent over capacity.