During a National Legal Aid Conference held in October 26th-28th, 2011 at the Speke Resort and Country Club-Munyonyo, the President of Uganda Law Society James Mukasa Sebugenyi while discussing granting of civil Legal Aid: Testing the means and merits of the case noted one of Reginald Heber’s famous quotes, "Without equal access to the law, the system not only robs the poor of their only protection, but it places it in the hands of their oppressors, the most powerful and ruthless weapon ever created." Reginald Heber Smith, Justice and the Poor, 1919.
This quotation denotes the importance of protecting the indigent and the marginalized from exploitation while in the process of accessing justice to ensure equal access to justice to all whether poor or rich. Equal access to justice is the cornerstone of a democratic society and sustainable development. For the poor, it does not always have to be a case of Ambrose Bierce’s definition of a law suit where he described it as “A machine which you go into as a pig and come out of as a sausage” in the Devil’s Dictionary.
The sentencing practice in Uganda has been largely described as unscientific, uncertain, vague, inconsistent, and erratic. The poor have often received inexplicably higher sentences than the rich in almost similar cases. Even mandatory bail is often delayed where the poor are involved. Sentences have generally been either too soft or too harsh to the mystification of the public who often do not appreciate why certain sentences are imposed.
For a long time now, there has been the need to have clear sentencing guidelines under which the judicial officers should base themselves to pass specific sentences. This would inevitably mean that the poor and the rich will have to face the same sentences unless the judicial officer has strong reasons to depart from the set range. Such guidelines will further ensure that the rights of the victim and the community are taken into account prior to arriving at an apt sentence within the prescribed range. This will give criminal justice a new approach other than the traditional defense centered approach hence reforming the system.
Currently, the objectives which guide a court on sentencing include uniformity of sentence, rehabilitation, reformation, punishment, protection of society, and deterrence.
According to Justice Law & Order Sector (JLOS) which has been working with the Chief Justice in conjunction with DANIDA, the new sentencing guidelines will provide for sentences which further reflect the seriousness of the offence bearing in mind the degree of harmfulness or risked harmfulness of the offences, degree of culpability, and prevailing circumstances. The guidelines are aimed at regulating and providing for standardization of sentencing in Uganda.
The guidelines will ignore things like the economic status of the convict and help address undesirable sentencing disparity in the criminal justice system. They will further make sentencing more predictable and transparent which will be crucial in strengthening public trust in the Judiciary. The guidelines, which should be made available to the entire public, will make the whole process more open and less mysterious.
To further streamline criminal justice in the country, there is also need for clear guidelines to regulate the administration of the law of bail in courts of law. This will protect the poor from the commercialization of bail. If left unimpeded, it will continue to deny poor inmates on remand who have substantial sureties in circumstances where non-cash bail would be applicable but no money to oil the wheel for what is per se a constitutional right hence encumbering equal access to justice for the indigent.
As we await the establishment of a Sentencing Council by Parliament, it would be very positive if the Chief Justice considered operationalising the sentencing guidelines as soon as they are complete through a Practice Direction under Article 133 of the 1995 Constitution of Uganda in the interest of criminal justice.
Anthony Masake
Mr. Masake works with Uganda Law Society
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