The Impact of Plea Bargaining on the Criminal Justice Delivery: A Case Study of the Uganda High Court Criminal Trials

By Gladys Kisekka Nakibuule

Developing criminal justice systems? This is a paradox to unveil for one to justify any meaning of this administrative/judicial paradigm in the contemporary criminal jurisprudence.
Nakibuule explores insights on plea bargainings impact on criminal justice delivery. Learn what plea bargaining could be to an ordinary court user in a set sociopolitical economy of a developing state with a struggling criminal justice system.

• Language: English
• Publisher: AuthorHouse
• Release date: Aug 16, 2017
• ISBN: 9781546203179

Gladys Kisekka Nakibuule

Dr. Nakibuule Gladys Kisekka is a Female- resident of Manyago, Plot 3 Kitumbu Rd. Entebbe Municipality, Wakiso District). She is born to Gladys Nora Kakoma Kisekka & Edward Daniel Kisekka(both deceased) of Mengo Bulange village, Rubaga Division, Kampala District; on 2nd/August/1967, Mulago Hospitaland is a last born to her late mother Gladys. Dr. Nakibuule attended Namirembe Infants School; and Mengo Primary School for her junior education. She attended Trinity College Nabbingo for Uganda Certificate and Advanced Certificates for her secondary education (1980- 1986). She is a Lawyer (holder of LLB (Hons) Makerere University Kampala 1990 & Dip LP Law Development Center Uganda, 1991. Dr. Nakibuule is an Advocate on the roll since July 1992. She is an ICC ‘Judicial Expert’ (2007-date). She holds her PHD in Legal Studies , Atlantic International University, Honolulu, Hawaii, (USA), 2016. Dr. Nakibuule holds too an MBA (ESAMI) Arusha, 2012; an LL.M (Public International Law (International Criminal Law specialization), Leiden University Netherlands, 2000; PG.Dip (International Law & Organization For Development) The ISS Hague Netherlands 1999; PG. Dip (Law & Justice) Copenhagen, Denmark, 1996; and numerous accreditation and certificates (to date) in legal related jurisprudence from national & International Institutions, including Pepperdine University, Los Angeles (USA) 2008 in Mediation Skills. She is highly computer literate . Currently, Dr. Nakibuule serves as the Registrar Research and Law Reporting at the Judicial Training Institute. She has been in judicial service for now 26 years; (mostly as a Registrar (2005-date) serving in different courts of record; and as a Magistrate Grade 1 to Chief Magistrate (1991- 2005) across Uganda. Briefly, she also worked as a State Attorney (Department of Civil Litigation) Ministry of Justice (1991); & interned with Ssegendo & Co. Advocates (1990). She is a Member of Uganda Judicial Officer’s Association (twice its Vice Chairperson); National Association of Women Judges (NAWJU); FIDA (Ug); and several NGOs dealing with disadvantaged and vulnerable groups. Dr. Nakibuule is Christian; married (7th/May/1994) with four children. She enjoys reading, research, fitness exercises; and outreach activities.

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2017 Gladys Kisekka Nakibuule. All rights reserved.

No part of this book may be reproduced, stored in a retrieval system, or transmitted by any means without the written permission of the author.

Published by AuthorHouse     08/14/2017

ISBN: 978-1-5462-0318-6 (sc)

ISBN: 978-1-5462-0317-9 (e)

Library of Congress Control Number: 2017912187

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Because of the dynamic nature of the Internet, any web addresses or links contained in this book may have changed since publication and may no longer be valid. The views expressed in this work are solely those of the author and do not necessarily reflect the views of the publisher, and the publisher hereby disclaims any responsibility for them.

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DECLARATION

The Sworn Statement

I hereby state that this thesis is my own work, and, to the best of my knowledge, it does not contain materials previously published or written by other people, nor has its content ever been substantially accepted in exchange for academic grades or university degrees from AIU or other post-secondary institutions, except when properly acknowledged within the document.

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This is ded

icated to Maama Wange-Giida (Mummy Gladys Nora) and to Senga Elizabeth Kayogoma. My sweethearts, my great lionesses. Rest in peace.

Your baby Giida,

July 2015

CONTENTS

Acknowledgments

Abstract

Chapter 1: The Introduction

1.0. Introduction

1.1. The Problem Statement

1.2. The Problem Discussion

1.3. Objectives of the Study

1.4. The Research Environment

Conclusion

Chapter 2: The Background and Literature Review

2.0. Introduction

2.1. Background

2.2.0. Literature Review

2.2.1. The Concept of Plea Bargaining

2.2.2. The Paradigm Shift: From Legality to Opportunism

2.2.3. Plea Bargaining in Comparative Jurisdictions

2.2.3.1. Plea Bargaining in Some of the Common Law Jurisdictions

2.2.3.2. Plea Bargaining in Some of the Civil Law Jurisdictions

2.2.3.3. Plea Bargaining in International Criminal Justice Models

2.2.4. The Regulatory Plea-Bargaining Framework in Uganda

Conclusion

Chapter 3: The Thesis Conceptual and Theoretical Frameworks

3.0. The Thesis Statement

3.1. Hypotheses and Research Questions

3.2. The Conceptual Framework

3.3.0. The Theoretical Framework

3.3.1. The Public Policy Theory for Plea Bargains

3.3.2. The Due Process Theory in Plea Bargains

3.3.3. The Contract Law (Negotiation) Theory under Plea Bargains

3.3.4. The Prisoner’s Dilemma Theory vs Positive Justice

Conclusion

Chapter 4: The Study Methodology

4.0. Introduction

4.1. The Data Collection and Analysis Methods

4.2. The Research Materials Used

Conclusion

Chapter 5: Strategies, Data Processing, Analysis, and Research Findings

5.0. Introduction

5.1. Demographics of the Respondent Sample Cases

5.2. Plea Bargaining in Indicted Cases Controls Court Case Backlog as to Improve Criminal Justice Efficiency (Ha1). How Does Plea Bargaining in Trials Impact Uganda’s Court Case Backlog?

5.3. Plea Bargaining in Indicted Cases Reduces Prison Congestion as to Achieve Criminal Justice Efficiency (Ha2). What Relationship Does Plea Bargaining in Trials Have with Uganda’s Prison Congestion?

5.4. Plea Bargaining in Criminal Trials through Adopted Mechanisms Enhances Positive Criminal Justice Delivery (Ha3). Which Mechanisms Should be Adopted to Promote Plea Bargaining in Criminal Trials to Attain Positive Criminal Justice Delivery’s Efficiency in Uganda?

5.5. Research Findings

Conclusion

Chapter 6: The Conclusion

6.0. The Research Recap

6.1. Conclusions

6.2. Recommendations

General Conclusion

References

Appendices

Appendix A: List of Committed Prisoners from Kiboga Court

Appendix B: Research Instruments

ACKNOWLEDGMENTS

I give foremost thanks to my God Almighty for the wisdom and resilience to undergo this understudy under difficult career and social challenges. God, you are great!

I am indebted to the Uganda judiciary, in particular, my immediate supervisor, Chief Registrar Paul Wolimbwa Gadenya, for the tolerance with my doctoral path demands despite my official schedules. You have abundantly encouraged and pruned my research skills through several assignments. Unknowingly, but I believe by destiny, you assigned me to prepare the first plea bargain circuit pilot sessions while I was the designate central high court circuit deputy registrar at the Nakawa High Court. I delved into the assignment with all my strength, hence this project. I thank you.

To Andrew Khauka, the secretary of the Plea Bargaining Project Committee, Uganda, you are my great friend. You held my hand, guided me, encouraged me, and recommended me as your registrar of Sentencing Guidelines and Special Projects, under which plea bargaining falls. Remain blessed.

To my office support staff at different stages, Arthur Peter Batwala, Julie Kiguli, Luswata Tonny, Namatta Rosette Bridget, and Rhoda Kizito (Teli-Atagyula); my drivers; and all those who looked after me during the hectic office hours and field research, you did a great job.

Special thanks go to my research assistants, Julius Mwesigwa, and Stephen Settimba. Managing my results’ speed demand is a challenge.

Last but not least, I owe this success to my whole family, Vincent, my children, and Jolly, my house help. Mummy was always typing away. I apologize for the distracted attention when you needed me most.

May God reward you all with the greatest desires of your hearts.

Gladys Kisekka Nakibuule,

July 2015

ABSTRACT

The quest looms for solutions to the chronic delay of criminal trials in the Uganda judiciary. Delays cripple its criminal case backlog and in turn aggravate prison congestion. This research is an understudy of the impact of plea bargaining on a sample 295 Uganda High court criminal trials of 2014–2015 of the central High Court Circuit based in Nakawa, Kampala. The research assesses the plea bargaining reform tool’s impact on court case backlog, examines its relationship to prison congestion, and explores its adoptable mechanisms that can enhance the Uganda criminal justice delivery’s efficiency. The hypotheses are three. One is that plea bargaining controls court case backlog. Two is that it reduces prison congestion as to achieve criminal justice efficiency. Three is that through adopted mechanisms, it enhances positive criminal justice delivery.The study raised research questions testing these hypotheses. The study used a conceptual framework that plea bargaining, subject to coordinate intervening variables, achieves effective criminal justice. The study analyzed it under the theoretical framework of public policy, due process, contract, and innocent prisoner dilemma theories. The study reviewed cross-jurisdictional and scholarly literature and randomly gathered data that the study processed and interpreted. The data analysis of the 295 pretrial detainees as research data cases by way of the demographics as well as their trends in comparative trial situations revealed breakthrough findings and raised questions about the alternatives. The study drew conclusions and recommendations. The research’s implication is to further enrich the criminal justice jurisprudence on the efficacy of plea bargains to troubled criminal justice systems.

Chapter 1

THE INTRODUCTION

1.0. Introduction

This chapter highlights the research problem, which is the delay of the high court criminal trials. Delays are driven by various intertwined intervening factors. Trial delays increase the high court case backlog that hypes prison congestion despite the criminal justice reform efforts in Uganda. The chapter then discusses the plea bargaining concessional strategy as a probable solution to trial delays, subject to both the legalistic and opportunistic front criticisms. It questions plea bargaining‘s susceptibility, legitimacy, and balance for the Uganda criminal justice’s efficiency. The third part of this chapter gives the research’s objectives. The overall objective is to assess the impact of plea bargaining in criminal trials on positive justice in the Uganda criminal justice system. The fourth part of this chapter briefly gives the research’s environment. The environment is an understudy of sampled high court criminal trials for 2014 and 2015 for the Central High Court Circuit located at Nakawa, Uganda. In this part, an impact analysis is proposed to weigh plea bargaining’s efficacy on the Uganda’s criminal justice system.

1.1. The Problem Statement

It is a disturbing sociolegal problem as to why there are persistent delayed high court criminal trials. The delayed trials have mainly caused a criminal case backlog in Uganda’s judiciary. In tandem, delayed trials have increased prison congestion (Justice Law and Order Sector [JLOS] Annual Report, 2013). The delays are chronic, despite Uganda’s various judicial reforms (Judiciary Strategic Investment Plan [JSIP] III 2011, 2015–2016). Currently, these judicial reforms include the plea bargaining strategy, and this research scrutinizes its efficacy. The trial delays have made the Uganda judiciary’s constitutional mandate of legitimate speedy justice, captioned below, a mirage (Arts. 28, 126–127, Constitution 1995). This mandate encompasses Uganda’s international obligations too (UNDHR 1948, ICCPR, ICESCR 1966).¹

Judicial power is derived from the people and shall be exercised by the courts established under this constitution in the name of the people and in conformity with law and with the values, norms, and aspirations of the people. In adjudicating cases of both civil and criminal nature, the courts shall, subject to the law, apply the following principles: Justice shall be done to all irrespective of their social or economic status; Justice shall not be delayed; Adequate compensation shall be awarded to victims of wrongs; Reconciliation between parties shall be promoted; Substantive justice shall be administered without undue regard for technicalities (Ar. 126 Constitution, Uganda 1995).

1.2. The Problem Discussion

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The mirage in the Uganda judicial mandate is pronounced for high court criminal trials that comprise capital offenses under the high court’s exclusive jurisdiciton in law. Its plausible explanation is that across the Justice Law and Order Sector (JLOS) institutions, reasons for trial delays amass as bottlenecks. These bottlenecks include lack of statutory period for pretrial committed detainees;² the high-court criminal session system that handles limited trials; long and at times poor police investigation processes; limited judicial and prosecutorial resources; and infrastructure. Further are the legal constitutional intricacies of the presumption of innocence with the strict prosecution burden of proof in criminal trials (the legality principle) and the right to bail and due process in fair criminal trials. So are the defendant’s education levels; lack of legitimacy of the legal/judicial processes; incompetency of defense counsel and prosecutor; limited court and prosecution stopover spreads that discourage witnesses; and corruption. There is no specific tool, beyond state nolle prosequi, to address case time and case cost for a capital criminal trial in place as to reduce high court trial delays in the current judicial political setting.

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As a result, across criminal trials, the aforementioned bottlenecks unreasonably burden the justice of needy and marginalized groups. This is not to mention the physical distance between JLOS institutions, the cost of accessing them, language and attitudinal barriers, and existence of conflict situations. Yet, while all kinds of disputes occur daily, peoples’ judicial needs and expectations in the justice system are wound with their livelihoods, particularly earnings and welfare. In turn, Uganda judiciary’s and other JLOS agencies’ failure to aptly respond to their judicial demands negates the scarce judicial economic and social development efforts. To enhance access to justice for all, priority ought to be on minimization of the case costs of justice (fees, other costs, and distance) to ensure quality judicial services and adequate prevention and response to crime, non indiscriminately.³

The Uganda’s Judiciary Monitoring and Evaluation Framework for Judiciary Strategic Investment Plan (JSIP) III⁴ was designed to generate and provide information that will enable the Judiciary measure its short to medium term performance on the four key outcomes stipulated in the strategic plan. It employs a results-based management approach. Its key tenet is utilization of results generated through the monitoring and evaluation processes to catalyze institutional-wide learning and action. Its intention is to foster accountability to the court users, ensure the judiciary’s commitment towards the JSIP III’s performance benchmarks, and allow Judiciary make a critical reflection on her practices inter alia to foster efficiency, effectiveness, and responsiveness. The framework covered performance indicators that included impact, output, and outcome indicators, expected along the key outcome areas and outputs of JSIP III. The criteria meant to assess each indicator included the indicator definition, what it measures, how it is measured, the frequency of reporting, the baseline year, target values, and responsible center. For example, to achieve the key output of justice for all, the impact indicators are a proportion of population who state that they have confidence in the courts of law and the proportion of the public who is confident with the enforcement of court judgments and orders for a baseline year of 2013 and 2014. The outcome indicators to achieve the Legal and Regulatory Framework Strengthened are outputs that include the proportion of cases that are completed within twelve months of filing, disposal rate of cases at 140 percent, and average time taken to dispose of cases. For the outcome of "access to justice enhanced is inter alia, the output indicator of the proportion of pending cases that are more than two years old (case backlog). This framework’s results are not yet published. Therefore, Uganda’s judiciary performance is scientifically unevaluated.

Further, Uganda is a young democracy with scattered priorities, mainly bending toward the executive arm’s necessities, such as security costs. According to the Uganda National Budget Framework Paper FY 2014–2015 – FY 2018–2019, security and defense was the first strategic budget priority for the financial year (FY) 2013–2014. In FY 2014–2015 sector nominal allocations, the JLOS’ allocation was 778.5 billion Uganda Shillings (UGX) as compared to