Criminalizing civil disputes amounts to abuse of legal process, says judge

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Criminalizing civil disputes amounts to abuse of legal process, says judge
Justice Margaret Mutonyi.

The Directorate of Public Prosecutions (DPP) has been asked to desist from charging litigants in civil matters with criminal offenses to mitigate abuse of legal process and reduce case backlog.

High Court Judge Margaret Mutonyi said that if we criminalise matters that are civil in nature, then it will increase the burden on the criminal justice system.

“We are going to have people who are not supposed to be in prison; finding their way as remand prisoners and if the magistrate or a judge has not been very kin, we are going to have people who are not supposed to be convicted of any criminal offence because there is no criminal conduct in their actions. We shall find them in prison as convicts,” Justice Mutonyi said.

She wondered the effect of pursuing the criminal path to someone who knows that their dispute is about land ownership.

“Litigants should not be at liberty to choose which path to pursue because the Constitution mandates the DPP to have regard to public interest and interest in the administration of justice and the need to prevent abuse of the legal process. Whereas the litigants might be in for the criminal path, once the DPP realizes that pursuing that case would lead to abuse of the legal process, then they should not be left to decide more so when it comes to land matters.”

She cited cases like criminal trespass, intermeddling with the estate of the deceased person, malicious damage to property and breach of contracts where parties abuse the court process to subdue their counterparts.

City lawyer Felix Kintu Nteza said that civil matters have been criminalized to the extent that obvious civil contests between individuals relating to their rights to property or contracts executed have been criminalized where the DPP decides to charge litigants with offences arising out of civil matters.

He said that land disputes have been primarily criminalized where people are fighting to assert their rights to property and instead they are slapped with criminal charges which have far reaching consequences.

According to Kintu, DPP has been slapping criminal charges on parties in commercial matters relating to breach of contracts even where such contracts have been partly performed.

He asserted that the criminal justice system has been  abused to the extent of being used for collateral purposes, blackmail, coercing litigants with legitimate civil claims into unfavorable settlements and in some instances used for extortion.

He said that the ODPP has a duty to advise complainants on the best course of action because legal practitioners have a duty to contain abuse of the court process since it is a matter that goes to the root of the administration of justice.

"...the DPP has a duty to look at the law broadly to decide whether to prosecute or not in deciding whether to prosecute or not. Where the facts of the alleged crime arise out of a bonafide civil contest over property or contracts. The DPP should not prosecute but advise the complainant to pursue civil remedies because justice can be obtained either through criminal or civil law," he said.

He implored the ODPP to always keep in mind  Article 120 (5) of the Constitution and Section 209 of the Magistrates Court Act.

Kintu also castigated the DPP for not walking the talk of the rule of law especially in instances where the High Court has issued orders of stay of criminal proceedings on grounds of abuse. He said that such matters should immediately be withdrawn from Court since they were not to be prosecuted.

George William Byansi, the Deputy Director of the Public Prosecutions (DPP) said that crimes are created by statute and not created by DPP where it is not, which is termed as criminalization.

“A litigant should be at liberty to choose which option to follow without dictating on what should be followed whether civil or criminal path because what guides our (DPP) decisions are the evidence and the laws creating the offences. I see nothing wrong either in law or practice that should stop both cases going on where the evidence and then facts disclose both options,” he said.

However, Byansi observed that there are instances where the system can be abused and matters that are not supposed to be criminal are treated as such.

“State attorneys should take caution while reading the police case files to ensure that all ingredients in the case are understood before you charge. The practice of litigants challenging criminal proceedings and seeking for stay on ground that the same issues they are being charged in criminal are the same being litigated upon in civil will always be there but if our charges are well though and justifiable, we believe that the courts should always agree with us and look at all the circumstances and facts,” he explained.

They were speaking at the seventh session organized by the Uganda Association of Prosecutors to discuss various topical issues within the country’s judicial system and the enforcement of the law.

Alex Bagada, an Assistant Director of Public Prosecutions moderated the Online session which attracted prosecutors, judges, legislators and lawyers in private practice.

He conceded that there is a big challenge that certain criminal offenses especially in the jurisprudence of land other cases are reported to the police and files are sent to the ODPP for perusal and legal guidance.

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