Law is not law unless is capable of commanding an obedience to instructions or directions set in the letter as debated and passed by the gods of that specific law. Usually ignored is the fact that apart from that important trait, there is the inevitable call unto the law to be as practicable as possible. It is human nature that when people get used to it, they will either overlook it, find ways around it or, considering the consequence of breach, obey it to the book. There is therefore need that that book should be practicable, and capable of being upheld; for the law does not demand citizens to be magicians but rather law abiding.
The above is applicable for both substantive law which simply sets the RIGHTS AND OBLIGATIONS, and procedural law which dictates a set of rules to follow to obtain a legal remedy before any court or tribunal.
This article makes an effort to analyse how practicable is the Procedural laws for litigation for both the experts and reasonable Ugandans/laymen, and how are the rules so water tight to ensure the ends of Justice for those in sought of that rare commodity.
Who is a reasonable man in Uganda? A reasonable man in Uganda is that man you meet walking on the streets, takes a taxi or a boda boda home, listens to radio in his small garden, and owns a small mobile phone, and has a National identity card. The million dollar question is whether the current procedural law/rules can serve justice to such ordinary man to shield his property, business, and his peace depending on the legal issue at hand.
The Civil Procedure Act Cap 71 commenced in January 1 1929 providing for procedure in Civil Courts both in the High Court and magistrates courts. Section 19 of the said act provides for institution of suits and provides that every suit shall be instituted in such manner as may be prescribed by rules. The act further provides for the timing of the process, who can sue, how to serve court documents on any party in a suit, how to execute (enforce orders in court) and how to challenge any decision by any aggrieved party. The rules referred to in Section 19 of the Act are majorly Civil Procedure Rules (Statutory Instrument No.71-1) and other rules pertaining to district registries and registrars, judicial review, service of summons in foreign countries, and SI 71-4 on judgement debtors (those who have lost a case) and subsistence allowance.
We therefore proceed to do an exposé on the application of some of the rules and whether the reality fits in the letter and the Spirit of the Procedural rules.
A big controversy has been on the requirement to file mediation case summaries along with the pleadings, even when one proceeds under Order 36 of the Civil Procedure Rules(CPR). The order gives anyone suing for a liquidated sum (loosely to say any suit involving money or money’s worth) to file and get a judgement without giving a chance to the person they have sued to defend themselves. Except by making an application to be given a chance to defend themselves. Take further notice that, the mediation rules insist that parties must mediate the dispute as the first step before commencing the normal court process. The flaw in these two rules is how a party suing is expected to mediate when he is saying the defendant has no defence to the claim, and also how the defendant is expected to attend mediation hearings before his/her application for leave to appear and defend has not been fixed/allowed.
Credit is given for the provision of the “small claims procedure” rules wherein; a party who is claiming less than 10,000,000 UGX may sue to recover the said sum without a lawyer in a speedy, and straight forward process, and expect the ruling as fast as ten days from the date of the hearing. The rules are pro-society as there is no tedious process and lawyering required, that even the poor who cannot afford legal services can still get desired remedy.
Another example of procedural flaws was witnessed in the recently concluded LC1 elections; both parliament and local government legislations (The Local Governments Act) dictates that one can only challenge an election in court after the results of that election had been gazetted. Even when the Electoral Commission had publically announced that it would not gazette the results due to financial challenges, most of the cases that were commenced challenging the elections by the aggrieved village chief were dismissed on a preliminary objection that they were premature since the results had not yet been gazetted. However, the decision by the EC is currently being challenged in the High Court for being Illegal. Regardless, for yet another time a rigid procedure was a barrier of justice to those that sought it.
Another controversial area of procedure regards service of the court process. Order five of the CPR provides for Issuance and service of court documents. The rules provides how to serve a person, who serve is the party is not around at his /her known address, and who to serve in case of entities. There has been a constant call to evolve the rules of service with the developing technology by permitting service through phone applications such as; whatsApp, and thus confirm that someone has received the court papers once they have read, blue ticked or replied the message or email. The rules also provide for substituted service that enables one to serve a party they have failed to trace physically through newspapers. It should however be noted that less than 25% of Ugandans buy newspapers on a daily basis, especially those in rural areas. The hard and cold fact is that some people have been victims of the system and thus only realise that there is a case against them when court bailiffs are knocking on the door.
The rules also provide for enforcement of rights. If one fails to pay the Judgment debt, the rules prescribe different ways of enforcing the orders of court ranging from attachment of assets to civil prison. The impractical nature of the rules of execution by civil Prison is that regardless of the amount of debt, one can only be arrested once, and for only a period of six (6) months. This may not necessarily serve the purpose of execution as the judgment creditor may not necessarily recover their monies.
The most impracticable part however is the provision of enforcement of conjugal rights where civil procedure legislation provides that court can give orders forcing one to fulfill her/his conjugal duties. Rare is such a precedent but, one wonders how such orders would be enforced or supervised. This makes the provision as redundant as a no trespass signpost in the middle of Kampala.
A full study of the law pertaining to civil procedure gives one clear conclusion that it might be as hard as the very word in its primary sense to find your way through the tedious court process except with the help of the expert. It can also be argued that some of the provisions are colonial in nature having never been amended since its enactment around 1929.
It is understandable that the custodians of Justice desire to have a clear and rigid process that may not be violated or diluted by those seeking justice. However it should be a core value that those rules can easily be decoded by Ordinary Citizens who are at the very base of the Justice triangle.
It should be more about serving justice, timely conclusion of the cases, and giving court goers a remedy, and not a strict search of the form and letter as dictated by procedure, unless an expert is involved.
In conclusion, question as to whether the justice suit is tailored to fit the people is meant for is debatable and shall always be as long as the society is still defined by class differences, with the definition of what is relative and fair so grey. It seems to be so true therefore that law is choir with one voice that must be sang by every member. Any other euphony no matter how convenient and nice it may be is judged as a discord, and is always punished by the composer.
THE WRITER IS A LEGAL ASSOCIATE AT PACE ADVOCATES