Wandi Kaweche
LLB (UNZA) Associate Chartered Institute of Arbitration (ACIArb)
Introduction
Alternative Dispute Resolution (ADR) encompasses various mechanisms for resolving disputes outside traditional court proceedings, including mediation, arbitration, and conciliation. While ADR is widely accepted in the civil justice system, its application in criminal matters remains limited, particularly in common law jurisdictions like Zambia, which follow adversarial criminal procedures.
One notable restriction is the prohibition of arbitration in criminal cases. Section 6 of the Arbitration Act No. 19 of 2000 states that, unless expressly permitted by written law or granted by a court, criminal matters cannot be settled through arbitration. However, the question remains: Is ADR appropriate for resolving criminal disputes?
The Chief Justice of Uganda, Hon. Alfonse Chigamoy Owiny-Dollo, believes so. During a speech in Lusaka, Zambia, he encouraged the Zambian judiciary to embrace innovation and expand the use of ADR in criminal cases.
ADR in Uganda’s Criminal Justice System
The Ugandan judiciary has actively incorporated ADR in criminal proceedings through various mechanisms, including:
- Compensation as an alternative or supplement to imprisonment.
- Plea bargaining and sentence bargaining for all categories of criminal cases.
- Victim participation in determining appropriate sentences.
- Diversion programs for juvenile offenders.
- Reconciliation for personal and domestic offenses.
- Community service for minor offenses.
- Payment of fines in property-related crimes.
Use of Reconciliation in Criminal Matters
Ugandan courts are required to promote reconciliation in certain criminal cases, allowing amicable settlements for private offenses that are not felonies or aggravated in nature. Courts may approve compensation or other terms, leading to the suspension of proceedings.
Under the Judicature (Reconciliation) Rules, SI No. 41/2011, offenses eligible for reconciliation include assault, adultery, criminal trespass, child neglect, simple theft, and similar offenses.
Use of ADR in Plea Bargaining
Plea bargaining, or “negotiating a plea,” is an agreement between the prosecution and the accused, where the accused pleads guilty in exchange for a reduced charge or a more lenient sentence.
The Plea Bargaining Process in Uganda
Under the Plea Bargaining (Judicature Plea Bargain) Rules, SI No. 43/2016, the process follows these steps:
- Initiation – Either the accused or the prosecution may initiate plea bargaining before sentencing.
- Court Consultation – The court is informed of the negotiations and provides sentencing recommendations.
- Execution of Agreement – If both parties agree, the agreement is executed and filed in court.
- Court Confirmation – The court ensures the accused understands their rights before proceeding.
- Recording the Plea – The charge is read, and the accused pleads guilty. The court verifies that the plea was made voluntarily.
- Rejection of Agreement – The court may reject an agreement if it finds the sentence too lenient, in which case the case proceeds to trial.
- Ethical Considerations – Prosecutors must consider the interests of victims, complainants, and the community, while courts must guard against corrupt or unjust bargains.
Challenges in Plea Bargaining
A key concern in plea bargaining is the risk of abuse through corruption and misrepresentation. In DPP v. Ongoriya Moses & Wanamama Mics Isaiah (C.R.A. No. 44/2024), a prosecutor unlawfully amended a murder charge to manslaughter without justification, resulting in a lenient sentence. The Principal Judge overturned the agreement, emphasizing that plea bargaining should not allow offenders to escape responsibility but should instead facilitate timely justice and reconciliation.
Unlike Zambia, Uganda does not have mandatory sentencing laws, allowing greater flexibility in plea agreements. This has contributed to the success of ADR in criminal matters, reducing case backlogs and saving state resources.
Can ADR Be Used in Criminal Matters in Zambia?
There is growing interest in adopting ADR in Zambia’s criminal justice system. A perusal of various pieces of such as the Plea Negotiations and Agreements Act, Criminal Procedure Code and the Children’s Code Act reveals that there are various forms of ADR Mechanisms available in criminal matters. These include; Plea Negotiations, Mediation and Reconciliation. The foundation is there but what is needed is robust use of those mechanisms. For example, as stated earlier, Uganda does not have mandatory sentences for offenses, unlike Zambia. Therefore, a first step would be to introduce plea bargaining as a pilot program for misdemeanor offenses, as alluded to by the Hon. Chief Justice of Uganda.
Conclusion
While ADR is traditionally associated with civil disputes, Uganda has demonstrated its potential in criminal matters through reconciliation, plea bargaining, and alternative sentencing. Although Zambia faces legal challenges, adopting ADR for minor offenses could be a step in the right direction. Expanding ADR in criminal matters would not only ease court congestion, be cost saving for the state but also enhance access to justice and promote innovative approaches to crime resolution.
