Awaiting Trial

Pepperdine lawyers combat one of Uganda's most pervasive legal problems

April 16, 2010  | 5 min read

A history of civil unrest and a shortage of trained lawyers have caused a big problem in Uganda’s legal system: backlog. Cases often languish for years without trial, while the accused remain in prison.

For many Ugandans, the case backlog is personal. Behind each case waiting for trial, there are real people awaiting justice. The most heartrending examples occur when children are accused of crimes. Since 50 percent of Uganda’s population is under 14, juvenile justice is an ever-increasing need.

After children are arrested in Uganda, they face an arraignment where they are charged with a crime. It can take several months before they are even charged, during which time they are held in jails with adults. After they are charged, they are sent to a “remand” home to await their hearing.

In late January, a contingency of lawyers and alumni from Pepperdine volunteered their time to help these children with their cases. The group included Jim Gash (JD ’93), professor of law and associate dean for student life; Jay Milbrandt (JD ’08), director of Pepperdine’s Global Justice Program; as well as alumni David Barrett (JD ’91) and Ray Boucher (JD ’84).

The Pepperdine group joined recent alumnus John Napier (JD ’09) in Kampala, Uganda, where he is stationed for a yearlong Nootbaar Fellowship, helping to reduce the case backlog in Uganda’s commercial court.

Working in conjunction with the court-assigned probation officer, magistrate judge, the lawyer representing the children, and John Niemeyer, the country director from the organization Restore International, the Pepperdine group traveled three hours outside of Kampala to Masindi, Uganda, to a remand home (one of five in the country) that held 18 boys and three girls.

The children (ages 13-17) were held in two one-room structures, one for girls and one for boys. The building had no plumbing, no electricity, and very little light. One by one, the lawyers took the children out the building and interviewed them about their cases.

As the lawyers interviewed the children, Napier and Niemeyer kept the project moving by procuring files and meeting with officials. “The work is hugely important in seeing justice facilitated and expedited for the children,” Napier says. “Though some of them admit guilt, it is still in their interest to be able to get in front of a judge and be heard. Some of them have served time in the remand home far past what a sentence would have been.”

Two of the boys in the home spoke English and acted as the translators. The Pepperdine group later learned that the boys were brothers accused of murder and had been in the remand home for two years awaiting a hearing.

“The boys, Henry and Joseph, were accused of beating a man to death,” explains Gash. “The man who was killed had been working for the boys’ father as a herdsman for two days before he disappeared with 225,000 shillings (equal to around $115) he had stolen from under their parents’ mattress. We also learned that the beating took place near their home between 8 and 9 a.m., while Henry and Joseph were in school.”

The Pepperdine group brought in the boys’ mother from a town more than 30 miles away, who verified that the kids were in school. They also contacted the boys’ teacher, who corroborated their story. “After speaking with the brothers, the four of us made it a personal mission to get these brothers out of the remand home and back into school,” Gash says.

Another tragic story involved a young girl named Natakunda Scovia, who had given birth to a child at 16 and had been held in the remand home for six months. Previously, she lived with her grandmother, who was an alcoholic. Natakunda had wanted to seek help for her sick, two-week-old baby, but her grandmother prevented her from doing so. While her grandmother was gone, the baby died. When she returned, she accused Natakunda of killing the child. After her interview, the Pepperdine group determined that she was not responsible for the child’s death and recommended that she be released from the remand home.

By the end of the four days, the Pepperdine group had written 22 briefs on behalf of the children and scheduled the children’s trials with the court. They presented their briefs to the presiding justice, Justice Ralph Ochan, who, after reviewing the briefs, indicated that most of the cases would be dismissed.

On a typical weekday, John Napier travels to the commercial court of Uganda, not via bus or motorcycle, but in a private car with a driver and on occasion, an AK-47-armed escort. The armed escort isn’t strictly necessary but was given to Napier by the court as a precaution.

The commercial court—a division of the High Court of Uganda—has begun using alternative dispute resolution (ADR) to help solve the backlog problem. Previously, the commercial court could only handle 100 cases per year, but now they process more than 500.

“The commercial court requires each case to go into mediation before going to court,” explains Napier. “The process is simple. Both parties come before the mediator, a neutral third party, and tell him or her the circumstances of the case.” Napier, who was accredited as a mediator by the commercial court, works on cases in the millions of U.S. dollars or billions of Ugandan shillings.

Despite the high stakes, Napier isn’t exactly a seasoned lawyer. Only one year ago, he was a law student facing a more than tough job market. At the end of his final semester at Pepperdine, Napier landed a yearlong fellowship from Pepperdine’s Herbert and Elinor Nootbaar Institute on Law, Religion, and Ethics. The fellowship provided a stipend for Napier to live in Kampala, Uganda, and to provide legal service to the country’s commercial court. He left for Africa only two weeks after taking the California Bar Exam.

Typically scheduled for three mediations a day, Napier experienced one of his most intense cases during his first week on the job. As he was observing a case presided over by Justice Geoffrey Kiryabwire, a justice on the High Court, Napier was instructed to take the parties out of court and to his office for mediation. He spent five hours negotiating with the parties, settling everything except for the exact terms of payment. After another 45 minutes with Justice Kiryabwire, the entire case, which had languished in the court system for more than 10 years, was resolved.

“There is little room for corruption because the mediator is not allowed to make the agreement for the parties; he can only facilitate talks between them,” says Napier of the benefits of mediation. “This alternative to court proceedings is the best opportunity for clients to exercise control over a dispute since the parties themselves come to an agreement.”

After earning a master of dispute resolution from Pepperdine’s Straus Institute, Napier is thrilled to be able to put his mediation skills to use and reduce the case backlog. “One of the advantages of doing these mediations is that Ugandans see me as a neutral third party,” says Napier of his many successful sessions. “I don’t have any Ugandan biases; I’m completely outside the circumstances.”

With four months left of his fellowship, Napier hopes to do all he can to decrease the case backlog. “If mediation is more prominent, more accepted, and better understood by the time I leave next year, along with a reduction in the backlog in the commercial court, then I will feel like my time here has been a success.”