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1 Regent J. Glob. Just. & Pub. Pol. 123 (2014)

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INTRODUCTION

Good morning. When I stand here, I stand on behalf of my country, Uganda, and we are so lucky that in Uganda we recognize God. This is a very interesting panel that is condensing a lot of things together. It’s a panel that is condensing the law, diplomacy, and the Gospel. When you mix all these together, I don’t know what you come up with. I find myself condensed in the middle of all this, a person who has gone through the criminal justice system as a police officer, as a public prosecutor, as a diplomat, as a Christian Counselor. I’m also a traditional peacemaker, so I find myself actually condensed in sharing with you these few minutes, but I hope God is going to help us get the best from this time.

The presentation today, and before I proceed, I want to just again re-echo that when God prompts you to do something good, just do it. I think Jim and John will remember that David was prompted to do something good, and he just did it, and that is the result you can see. There are many things that you can do that will have a lasting impact in one person’s life, in a community’s life, in a nation’s life, and in part, the whole globe. My presentation today explains reconciliation and restorative justice, the role of lawyers in reforming the law, the rule of law, and how the judge can address the development of justice in places of violence. Actually, the second one also includes the role of lawyers and diplomats.

My brother, Mike, is in a very difficult place. The Director of Public Prosecution, where I had the privilege of working for 10 years, you are mandated to actually achieve prosecution, to achieve as many convictions as possible. We are geared towards prosecuting the offenders and ensuring that we complete them. But it’s interesting that we also have provisions that deal with reconciliation in our legal provisions, and I’m going to talk about that in a bit. Over the last two days, we have heard, from very enlightened, well experienced, and distinguished speakers, emphasis on the rule of law. As we come to the end of this symposium today, we can all agree that every one of us shares the belief that the rule of law is a foundation of equitable state relations and the basis upon which just and fair societies are built. A lot has been discussed by various speakers, and I’m pleased to add just a little bit of my thoughts to what has already been discussed.

RECONCILIATION AND RESTORATIVE JUSTICE

Reconciliations and restorative justice is a simple term. It’s a people-focused approach to justice with a spirit of promoting social bond and peace for a progressing peoples and communities. In general terms, restorative justice refers to an alternative model for facing crime, which is based on the social importance of reconciliation between parties, victims, and perpetrators. It advocates for a criminal law model that pays attention to the victim and the harm he or she has suffered as a result of the crime. The Constitution of the Republic of Uganda is a people-focused constitution. We have talked about this constitution. Brian has mentioned a little bit about it. In the promulgation of this constitution, we took care of the history of the people of Uganda, where we have come from as a people, the wounds deeply rooted in us as a people, and then we came up with a constitution that is actually people-focused.

Our Constitution puts the people – makes the people supreme. It focuses on the supremacy of the people, not the law, and not the state. It is not the state that is supreme. It’s not the law that is supreme. It is the people who are supreme. That’s why it was promulgated with a people-focused approach to justice. Under Article 126(1), there’s a very clear provision there that, “[j]udicial power is derived from the people and shall be exercised by the courts established under this Constitution in the name of the people and in conformity with the law and with the values, norms and aspirations of the people” of Uganda.^[1]

In the same spirit, clause (2)(d) of this constitution, makes it a very interesting provision. It provides for the role of the courts to promote reconciliation between parties to disputes of both criminal and civil natures.^[2] Justice Mike was talking about it, and I don’t think he should apologize for what he did in communicating with the victims and the relatives of the BIC victims as he was going through the case of accident. This is entrenched within the legal provision. It is the role of the courts to promote reconciliation as we go through the cases. It doesn’t mean that the accused has to go unpunished, but in some cases, the accused actually walks out forgiven and pardoned by the victims.

That’s why section 160 of the Magistrates Court Act provides that in criminal cases, the Magistrates Courts “may promote reconciliation, and encourage and facilitate the settlement in an amicable way, of proceedings [especially] for assault, or for any other offense of a personal or private nature, not amounting to felony and not aggravated in degree, in terms of payment of compensation or other forms approved by the courts, and may, thereupon, order the proceeding to be stayed.”^[3]

While working in the courts, I was involved in lots of these kinds of settlements where you find people coming, those who were supposed to be your witnesses and they come to your office as a prosecutor and said, “We have already looked through this case in the village. We have sat down. We saw that there is no need for us to keep coming to court. We have agreed to forgive the offender. He has accepted to put off all the bills that was involved in the treating of the victim and we don’t think that we should carry on with the case. We want to withdraw this case.” We would just facilitate the reconciliation and the withdrawal of the case in a legally provided manner.

According to these provisions, the main objectives of the state’s response to crime should be the satisfaction of the victim’s needs and the reestablishment of social peace in that way. More than punishing the offender, criminal law seeks the reconciliation and recognition of the victim’s suffering, reparation of her harm, and restoration of her dignity. As for the perpetrator, he or she is reintegrated and reincorporated into the society, a society that is prepared to receive him, in order to reestablish social bond and a peaceful cohesion within the community.

From the restorative perspective, retributive punishment is seen as insufficient for reestablishing a peaceful social coexistence. It does not give primary importance to the victim’s suffering and needs, nor does it allow for the adequate reincorporation of the delinquent in the community. In contrast, the retributive paradigm is only concerned with the future, instead of the past. In so doing, it does not focus on evaluating the guilt of the sufferer and the offender, but promotes all those mechanisms capable of making him conscious of the harm he caused, admitting his responsibility, encouraging trying to repair the harm.

The practice of reconciliation and restorative justice is deeply rooted in the culture of our people back home in Uganda to the extent that we believe that no crime, no offense is unforgivable. We believe that no offense is irreconcilable, including capital offenses. This is very interesting. When Brian talked about Northern Uganda, where I come from, this is the case. Yesterday, when brother Edward was presenting, I sympathize with him a little bit. On part of this UCLF, I know that we failed in the north because cases were not actually being prosecuted well where lawyers – in the way that ordinary lawyers wanted to see cases go to the conclusion. But we have saturated this region with the teachings, both general legal teachings and also principles of reconciliation. They know that the best way to go is to go through consultative settlement of disputes.

THE POWER OF THE MANGO TREE SETTLEMENT

In that spirit, many of the offenses, many of the cases that go to court, eventually find its way through conciliation. Actually, the term “mango tree settlements” came from us. I think it was found on the website of Advocates International, and many people started using it. It came when we tried to settle a case, which had latest for over twelve years, a long dispute between a school and a community, and it was boiling up. It was going to be a big, big blast. It was going to be bloody. But as special reconciliation ministers in Africa, we gathered the administration of the school together and the neighbors and everybody involved and we sat under a mango tree. We went through the case from morning to evening. We left the mango tree in the middle of the day, in the hot sun, walked through the boundaries, and we came back. We listened to witnesses, those who had been chairmen of management committees years ago – who understand the boundaries, who understand how things have been going. At the end of the day, we were able to resolve the dispute.

And on that day, I had one of the vice presidents of Peacemaker Ministries who was visiting with us, and he sat with us. He was able to tolerate how we walk through cases. I went back and made this story about the mango tree justice. We brought reconciliation between all parties who were involved in this dispute. We derived a creative solution of resolving these boundary disputes. All boys of the school came up, who were also around, and said, “We are going to pay for alternative land somewhere else to re-settle some of the people who were part of the conflict.” At the end of the day, the matter was resolved.

We also entered a conflict that was very nasty that involved the death of four people where a UPDF – then, it was an NRA soldier – went back home to Northern Uganda. Of course, in Northern Uganda, we were in a conflict situation; so when a soldier is coming home, he tries to have some weapons with him, so that in case of anything, he can defend himself. When he came with his weapons, he had grenades, and one day he went to drink. He had a grenade inside his clothes, but after taking a few drinks, he realized that he did not have the money to pay for the drink, but the money was at home. He left it in his other clothes.

When he told the lady who was selling the beer, he said, “I realize that I left the money in my other clothes at home. Can I run home and come back and pay you?” The woman said, “No, you must pay me now. I need my money. You soldiers who come home, you sometimes grab people’s things by force.” She did not believe that he could go and bring back the money. He said, “No, I’m telling you the truth. My home is not far away from here and you know me.” They were from the same village. They happened actually to be my relatives, both of them, both parties.

The boy – I call him a boy because he was younger, although he was an adult already – he decided to start walking. The lady ran after him and grabbed his waist and started pulling him. “I want my money. I want my money.” He said, “Please, don’t touch me. I have a weapon inside.” The lady thought he was just joking. Other people came and starting pulling her and said, “Yes, yes, a grenade. Please, leave him.” In the middle of the struggle, the grenade blasted and four people died on the spot. The father of the boy, who was not there – in our community where such a situation happens, the relatives of the victim pursues the relatives of the offender, even where the offender is also dead, and that is exactly what happened.

They ran after the family of the offender, took away whatever they could take, goats, cows, chickens, food from the granary. These people ran away for their lives and the matter eventually – there was no person specifically who could be taken to court in this particular case, but the community had remained hurt by the offense. The relatives of the different parties involved, these people went to a different village where they stayed for seven years. They could not come back to this village, the family of the offender, who has also died and was later buried. Eventually, somebody advised him and said, “You need to go to court because you need to go home.”

He went to court and they had to come and recover their land. Their land was taken away by the families of the different victims. He wanted to get back to their land. It was very difficult. They were suffering in a foreign place. These people were later on arrested. A number of people were arrested who were having the land of these people. When the case remained in court, we were allotted that we should come in as Peace and Reconciliation Ministries in Africa. We started counseling the different parties involved and said, “These people were actually innocent according to the law. You took their land for nothing. The truth is they are innocent. They are not party to any crime. This is the position of the law. You are all at a loss in terms of the deaths that occurred. There’s no particular person directly responsible for this incident, and you are going to lose this case. You have been in prison, you have come out, you have been remanded a number of times, you are walking every day. You are not going to win this case.”

So, we sat down under the mango tree several days and we came up with an arbitration, went through arbitration, left mediation stage, went to arbitration stage. We handled it, but the case in court was still there. And then, at the end of the day, we came up with a reasonable arbitration decision. We came up with an agreement, which eventually acted actually as a consent judgment. We went to court. Part of the agreement was being signed on the ballot of the court, and eventually the court had the case withdrawn. With the parties reconciled, they migrated back from the village where they had gone into the community. Today, they are living together. That is the power of the mango tree settlement.

RECONCILIATION VERSUS TRADITION

There are other things that I will talk about in this aspect where we believe there is no offense that is not reconcilable. There is no dispute that is irreconcilable. We understand the provisions of the law. Now, we have a culture called Mato Oput and Kiuchi, which is within the spirit of the Ubuntu of South Africa. This culture and tradition is only found within my tribe and in a tribe of the Acholi people. Kiuchi is from my Lango tribe, and Mato Oput is in the Acholi tribe. This is a traditional ritual of reconciliation that happens whenever a conflict involved death caused by a member of the community.

We have what we call clan systems. I belong to a clan. John may belong to another clan. God forbid, if I happen to kill John, the family and the clan of John will run after my family, even when I’ve already been arrested and remanded and actually going through mentions of my case, which has not yet come to hearing and I have my attorney or I still don’t have an attorney. I will be in prison, but my family will be on the run. My father will not be able to settle in the village. My brothers will not be able to settle in the village. They will be on the run because the community, the family of John will be running after my family for revenge.

But we have chiefs and kings who John had the privilege of going along with me to train them in the principles of peacemaking, the principles of mediation, the principles of arbitration, how to go through negotiations of these kinds of difficult disputes. We have trained them all through the process of peacemaking. Now, these chiefs, in addition to the cultural practices that they used to have, we have given them all weapons, the knowledge that we have used to train them based actually on Christian principles. They would come together. They’re in charge of conflict that ensured death. The chiefs are responsible for those kinds of offenses and responsible for mediating.

He would walk – so even if they kill me, I am the chief. So, he would walk to that village and he will mention that I come in peace. I come in peace. I am the chief of revenge from my clan in charge of this kind of situation that has befallen our community. Then, they will also receive a chief from that side. They will sit down and say, “We want peace. We want to discuss the issue and resolve it.’ It will be difficult. He will actually be walking also with a spear, but the spear will not be used because he will go in the name of peace. The two will start negotiation, and there will be a community meeting again sometimes under the mango tree, or at the home of one of the chiefs. In most cases, they look for common ground. Then, they go through discussions and they say, “What are we going to do?”

The family of the victim says, “It’s no more. The law is clear.” It is not written law, but cultural norms that have existed for years. If you kill my son, you pay us seven cows. That’s the position. If you have the cows, pay us quickly. If that is the case, we are going to bring the cows. Not only the family of the victim, but the entire clan will contribute for the cows. They will bring the seven cows and give them to the family of victim and another two cows, bulls, will be raised; they will be slaughtered and shared as a symbol of reconciliation between the parties.

Mato Oput is a symbolic action that will be taken like a ritual. They will mix some bitter concoction in a gourd, and then the chief of negotiation from the other side will come and meet the chief of negotiation from this side, and the two of them will drink from the same gourd, a very small gourd. In the process of sipping this bitter concoction, their forehead will meet. As their foreheads meet, it’s the symbol of reconciliation that we used not to see eye to eye, but now, we are seeing each other eye to eye inside the gourd. We used not to drink – they used to say, “We shall drink from the well,” when you are going through conflict before it is resolved, that we can only share water from the well. I cannot drink well water from your pot. But now, after reconciliation has been achieved, you can now drink from the same pot, from the same gourd.

All the bitterness that has been going on in the process of the conflict, we are now going to drink it away and it is over. Once that is done and reconciliation has been achieved, one thing remains: the offender, who is languishing in prison on remand. This is now – Mike’s role becomes critical here. Many of this community are witnesses of how the offense occurred. What will happen at the end of this–they will also request the other clan and say, “What do you think about our son?” “We agree with you he should come back.”

When I was talking, I said that the offender will come back to a reconciled community that is prepared to receive him and will not revenge. They will write a petition to the Director of Public Prosecution and a number of them will sign this petition, including the chiefs and kings, and say, “We are not willing to proceed with this case.” Many times, when I was working with the DPP, I’ve seen the DPP writing another prosecution decision made by none other than my brother alone. Nobody else makes the decision except him. It is within his own discretion to decide that he’s going to withdraw the case against the offender, and he will not give reasons when he’s writing to the courts about the withdrawal of that. He will not say it because the community has reconciled. He will just say that the Director of Public Prosecution has decided to drop charges against so and so.

Once that letter arrives in the courts, the offender, on that day, when it will have come for mention or whatever, he will walk away, and he will go back to a reconciled community. He has murdered. He has blood on his hands. He has not been sentenced. He walks away and will live in the same community. He will again drink together with the people whom he killed their relative, and that will be it. That is how deep it is from our cultural perspective. We believe that there is no crime, which is unforgivable. That is a situation where we find the Kwoyelo case coming up.

The people were actually agitating for amnesty saying, “We need him forgiven and come home.” Interestingly, when Kwoyelo was first arrested, “Thomas Kwoyelo” at that time, I was still in Gulu. I was the first prosecutor to attend to the hearing of his case and [I] developed different charges that eventually were being used to prosecute him. What happened is that many of the people from his clan, not necessarily his relatives, but the people from the region believe that whatever crimes he has committed, he can still be forgiven. And when he comes home, we shall perform these rituals and it will be fine. If the rituals are not done, they believe that some omens will follow you. Something bad will happen to you.

We do not only believe in the punishment through imprisonment or something. If you kill somebody and your clan or community doesn’t go through this process of reconciliation, you have a disturbed life even if the court drops your case due to lack of witnesses or evidence. You may come back acquitted, but you will not have peace. You have disturbed life. That’s what they believe and in most cases, it happens until the community agrees to receive you in a good way. That is the most powerful tradition that we have in Northern Uganda and it is existing and works.

HOW CHRISTIANITY INFLUENCES HOW WE THINK ABOUT RECONCILIATION

It is important to understand that the notion of reconciliation that underlies restorative justice generally implies an absolute agreement among all social actors, including the victims and perpetrators, regarding the need and the utility of forgiveness, pardon, and the value of the reestablishment of a social tie and harmony. It must be noted that the notion of reconciliation and restorative justice underlies the fact that we are created for reconciliation. Since God created us to need relationships, He has also provided instruments in His word to help us make our relationships work and also grow strong.

This is a deeper understanding that goes beyond the legal paradigm of this world, the understanding of God’s creation and God’s grace. The reason why God created man in the Garden of Eden was so that He may relate with man. And then, He created Eve, so that man may have relationship. He created us for relationships, that we will live together in harmonious relationship. When man sinned and the relationship broke, man was cast away from the garden and man was divided from God. Because relationship is so critical to God, very important to God, God again, in Christ Jesus, decided to give His own life to come down and redeem the relationship and He died on the cross so that we may be reconciled to Him and reconciled to one another.

So, the entire understanding of this principle, to me, is based on all God valued, relationship, and to God. Just like in my tribe, no offense is irreconcilable, even the offense triable by the International Criminal Court, war crimes, whatever. That’s where transitional justice comes in. That’s why the Gacaca court had to work. The community in Rwanda had to use Gacaca, community coming together to decide on the fate of the inmates who had taken part in genocide. Many of them testified, they told the truth, and they were given a lesser sentence and they walked out.

In 1996, 1997 and again in early 2000, I did a lot of discussion with prisoners in said Rwandan prison. I had a lot of testimony about how – listening to the offender talking with the victim, and eventually, “I cannot do much for you. All I can do for you when I’m released, I will build your house.” This was one – I remember this because I did some recordings – where the victim, a woman whose husband was killed, was testifying on how, in case he is released, he will come and help this woman: build a house for her. I’ll explain how the woman survived. He said, “You survived from us. We were just like dogs. We were so brutal. We were killing people like mad. We were behaving like dogs. You survived after we killed your husband. We tied heavy stone on his leg and we throw him in the water, but because you were pregnant, we could not kill you because we thought it was going to be a bad omen to us, and that’s how you survived.” And they started crying, and both of them started crying. Later on, they get reconciled.

THE ROLE OF CHRISTIAN LAWYERS AND DIPLOMATS

Well, what are our roles as lawyers and diplomats in reforming the rule of law? Both lawyers and diplomats understand that the rule of law is fundamental for building equitable state relations and the basis upon which just and fair societies are built. We daily engage and should be committed to the efforts of reforming the rule of law in the global community of nations as a basis for our calling and practice. As a general principle, we should see our legal and diplomatic positions as both a calling and a God-given opportunity.

This is a very interesting point. I try not to mix the lawyer together with the diplomat because I find myself in the middle of this. We all have similar responsibilities. Both lawyers and diplomats are very enlightened people. The lawyer knows the law. The lawyers know the directions a country should take to be considered a country working or governed within the principles of the rule of law. Where the leadership has deviated from the principles of the rule of law, lawyers understand. Diplomats, they are internationally exposed and they know what is good and right. They’re exposed to information and the opportunities of meeting leaders, including leaders of their own countries. They are respected and accepted within countries of their postings, especially in third-world countries. We have seen diplomats engaged in criticizing government and bringing government to account when they start abusing the rights of their people and deviating from the fundamental principles of the rule of law.

It is important that as we practice law, we should know that we have a calling, a God’s calling, to be agents of transformation, including the transformation and reformation of the rule of law within our communities and in countries where God takes us. As lawyers, many times you end up picking up a case or deciding to sue a sovereign nation for abuse of human rights for things not being done, things that are not consistent with fundamental rights and principles, unconstitutional ways of behaviors within a country being perpetrated by a state. You decide to take a country to court, not because you expect payment, but because you’re looking at social change.

You’re looking at the benefit that will accrue to the members of your community, to people in your country who are going to benefit from the change that will come up in case you win the case and bring legal transformation. We have to take ourselves as people who are privileged and people who have the opportunity to serve our people, to serve the citizens of the world with our profession, with our knowledge and skills. As a lawyer, when people walk to your law firm, especially as a Christian lawyer, you cease to see them as money opportunity. You see them now as another opportunity to bring a smile on the face of somebody in the middle of a conflict, a new satisfaction, just like the satisfaction of our brother Edward will not be in the driving of that luxurious Mercedes in the city where you’re practicing law.

Your satisfaction will be seeing people walk out of court or come out of a dispute celebrating how you have helped them work through the conflict and come out praising God because you were there. Your satisfaction is going to be in seeing God glorified in your work. At the end of your case, is God pleased with what you have just done? Have you been so much taken away and ended up grubbing money in corrupt ways and corrupted justice? You are full of shame. You are haunted in the quiet of your house. You’re haunted even when you’re driving your luxurious car because you know somebody is suffering. The community is not changed because you have corrupted justice.

That’s where we find our brother Mike now. He is placed in the position where his decision is critical, but he has the opportunity to glorify God from that office. So, our opportunity is to serve, seeing clients who walk into our offices as God-given opportunities to make a difference, opportunities to serve with integrity and setting examples for others. Diplomats should be good listeners and correct conveyors of information. The best diplomat I’ve come to learn is the one who listened very well, who takes his time to listen.

While I’m in the United States, I’m very keen to hear what they’re talking about in my country. When I get the chance to meet my president, as I did a few weeks ago, I know what to tell him, and I should be able to tell him the truth because my words will guide him. What I’m telling him is not from the public domain, but is between me and him, and I’m the only person with that opportunity. Nobody else has that chance to meet him and tell him what others are saying. Others may fear to tell him. If he listens to you and he takes precautions and change, that’s your satisfaction. So, many times people fear to tell the truth. People don’t care. They take the positions as an opportunity to get rich and to make names, but we need to know that this is a God-given opportunity for us to bring glory to Himself.

Ladies and gentlemen, Senior Diplomats of the United Nations General Assembly by declaration A/RES/67/1 of 24 September 2012, “reaffirm that human rights, the rule of law, and democracy are interlinked and mutually reinforcing and that they belong to the universal and indivisible core values and principles of the United Nations.”^[4] “[T]he rule of law applies to all states equally, and to international organizations, including the United Nations . . . . [A]ll persons, institutions and entities . . . are accountable to just, fair and equitable laws and are entitled [to] . . . equal protection of the law” without discrimination.^[5]

It is therefore the role of both diplomats and lawyers to dedicate themselves to supporting efforts that uphold the sovereign equality of all states, that promotes respect for the territorial integrity and political independence of states, defends states from threats or use of force in a manner inconsistent with the United Nations Charter, and in upholding the peaceful resolution of disputes in conformity with the principles of justice and international laws, given the strong interrelationship between the rule of law and development, advancing the rule of law by both lawyers and diplomats at the national and international levels is essential for sustained an inclusive economic growth.^[6]

Both lawyers and diplomats have the duty of promoting the principles of good governance and ensuring that states are committed to the effective, just, and nondiscriminatory delivery of public services, such as criminal, civil and administrative justice, commercial dispute settlements, and legal aid.^[7] Understanding that the independence of the judiciary and the judicial system, along with the impartiality and integrity is a prerequisite for upholding the rule of law.^[8]

The wider body of criminal law developed at the United Nations, provides the basis for peaceful resolution of conflicts and the means to ensure there is no relapse into fighting. The universal standard setting power of the General Assembly,^[9] the enforcement power of the Security Council,^[10] and the judicial power of the International Court of Justice all provide indispensible tools to defend the rule of law.^[11] Diplomats and lawyers should press and encourage state actors using diplomatic and legal means to commit themselves to the equal application of the law at the national and international levels to uphold its highest standards in their decision-making and to accept the jurisdiction of the courts of justice.^[12]

Last, but not least, lawyers, as well as diplomats, should play key roles in encouraging and facilitating the settlement of international disputes among states using peaceful means, inter alia, foreign “negotiation[s], enquiry, good offices, mediation, conciliation, arbitration and judicial settlements, or other peaceful means” acceptable within the culture norms and practices of the peoples.^[13]

THE ROLE OF THE CHURCH IN PROMOTING JUST SOCIETIES

Ladies and gentlemen, I go to the final parts of my presentation looking at the role of the church. How can the church address the development of justice in places of violence? First and foremost, the main question to ask and answer here is: Is the church playing its role well as gatekeepers in places of violence, or rather, it’s answering, “Am I your brother’s keeper?” As it was the case with Cain and Able, feeling conflict rather than being a catalyst to peaceful resolution of conflict. Both brother Mike and Edward remember one time during our fellowships when we were taught about the gatekeepers and were given this example about the gatekeeper in China, who was bribed and allowed enemies to enter the gate. The wall of China is too strong, but if you don’t put a faithful and trusted person at the gate, then your gates are going to be infiltrated and you’re going to lose your people.

As Christians and as Church, we are to act like gatekeepers to protect our nations against all kinds of evil practices. We can only do that if we present ourselves as people of integrity, who resist from every temptation to be corrupted. At the churches, in concert with other groups in civil society, better placed than our positions, lawyers and diplomats to articulate the vision for the future that is gracious and hopeful, sowing seeds of love, justice, mercy, kindness, and peace. The church is critical in the development of justice, peace, and reconciliation in places of violence. First and foremost, by leading with examples, leading by words, not by deeds.

The church should be exemplary in the way members conduct themselves and how they respond to conflict. We should be setting examples for the world by following the principles of justice as it is written in the Gospel, keeping in mind that for the churches to lead the way in fostering justice and reconciliation, it will take leadership from the clergy and public figures, as well as moral steps by people at grassroots. You will agree with me that the early church was able to influence the society of their times, not by preaching. They gained converts by their actions, by practice.

As the Bible says in the book of Acts 2:42-47, the Bible says, “They devoted themselves to the apostles’ teaching and to fellowship, to the breaking of bread and to prayer. Everyone was filled with awe at the many wonders and signs performed by the apostles. All the believers were together and had everything in common. They sold property and possessions to give to anyone who had need. Every day they continued to meet together in the temple courts. They broke bread in their homes and ate together with glad and sincere hearts, praising God . . . . [T]he Lord added to their numbers daily those who were being saved.”^[14]

Ladies and gentlemen, it was not by going out. The one way that the church can use to reform the rule of law and change and transform our communities is by doing the right thing from within the church. It’s not just by going to talk out there. This is very interesting to me because I got to realize that God Himself adds people. God, Himself, will add people who are not interested in going into violence when the church is practicing non-violence. In Rwanda, for instance, it’s a shame to realize that the church was involved in fueling genocide. But today, we need to have the body of Christ willing and able to sow a different example, to sow seeds of peace, seeds of justice.

I remember the example of one pastor near my village who was involved in a dispute with his neighbor, a land dispute. He came and they were quarrelling, interestingly. He said, “Man, I’ll remove the collar and throw the Bible down and I will handle you man-to-man.” Just that word was enough to make the neighbor migrate to another church because I don’t believe in a clergy with a collar on his neck ready to confront a conflict physically, and ready to go into violence.

Why am I talking about land conflict? This is a major thing that we have been involved in in Northern Uganda. Here, you find that the clergy set a very bad example before a man, whom is mandated to shepherd into love, justice, and good works. The neighbor later migrated to another church, as he did not see the seed of Christ in the clergy, and therefore, no value sitting under his teaching for the rest of his life. In Uganda, Peace and Reconciliation Ministries in Africa, that I had the God-given opportunity to found, has been trying to help church establish quasi-judicial system referred to as Biblical Justice for Peace and Reconciliation.

In trying to help the church in our efforts towards the development of justice in times of conflict, I’ll be able to set good examples for the body of Christ. It establishes mechanisms of resolving conflict among the body of Christ, starting from the courts of first instance to the Supreme Court level by training pastors and elders basic principles of law, negotiation, mediation, and arbitration. I happened to take John and a small team recently to meet one of the chairmen, who is an elder in a church, who sits in an interdenominational court where they settle these kinds of disputes and it’s working.

They’re applying the teachings of Jesus based on Matthew 18:15 downwards where they encourage people to use the one-on-one approach and then eventually, where people cannot get reconciled, they use Corinthians I 6:1–8, where Paul himself cautioned the church not to use the earthly or worldly court in settling their matters, but appoint among themselves men and women who are capable of resolving disputes to act like judges. So, the church can be a good influence by practicing examples, principles of non-violence, settlement of disputes. We have seen this work in Northern Uganda, and I believe that if the church everywhere can adopt conciliatory settlement of disputes, we can avoid sending fellow Christians to court and encourage resolution of conflict among believers from within the body of Christ.

Finally, I’ll conclude with this famous quote of Abraham Lincoln that was used by Kenneth Star many times when I worked with him teaching communities in Northern Uganda the art of peace and reconciliation a few years ago. “Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser — in fees, expenses and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough.”^[15] If you think about business, there is plenty in peacemaking.

Ladies and Gentlemen, thank you. It has been a privilege and great honor being with you all.

1. CONST. OF THE REP. OF UGANDA OF 1995 art. 126, § 1. ︎
2. Id. § 2(d). ︎
3. Magistrates Courts Act, 1971, c. 16, § 160 (Uganda). ︎
4. G.A. Res. 67/1, ¶ 5, U.N. Doc. A/RES/67/1 (Nov. 30, 2012). ︎
5. Id. ¶ 2. ︎
6. Id. ¶ 3. ︎
7. Id. ¶ 12. ︎
8. Id. ¶ 13. ︎
9. Id. ¶ 27. ︎
10. Id. ¶ 28. ︎
11. Id. ¶31. ︎
12. Id. ︎
13. Id. ¶ 4. ︎
14. Acts 2:42–47 (NIV). ︎
15. FREDERICK TREVOR HILL, LINCOLN THE LAWYER 102–03 (1906). ︎

The post ADVANCING THE RULE OF LAW IN EAST AFRICA: LESSON LEARNED FROM AFRICAN LAW AND CULTURE appeared first on Regent University School of Law.

1 Regent J. Glob. Just. & Pub. Pol. 115 (2014)

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INTRODUCTION

Before I get into the presentation let me just, first of all, since I am Ugandan—sort of, I have been there for six years—the first thing I have to do is say, “Praise the Lord.” That is what you do in Uganda. And you also bring greetings, so I do bring greetings from Uganda Christian University in Mukono. We are fresh off celebrating our hundredth year as an institution. We originally started as a theological college, Bishop Tucker, and we have been a university since 1997. And we have various friends of the institution here, and there are friends that were here at Regent. So, I feel at home here even though I have not been home in about a year and eight months.

So, a quick story. When you drive around—maybe this is an experience and a story combined—but when you drive around and you are in line on the interstate and then that person decides that they are just not going to follow the rules. They go off the side of the road, and then they try to get in. And you are sitting there and you’re just frustrated, you know? And you are hoping that other person will not let him in and you get the chance not to let them in. If you go to Uganda and you have that emotion, you will die of a heart attack or something will happen to you. It may be the greatest difference between an American and a Ugandan—how we react to that situation, like someone cutting in line. I know that sounds like an overstatement, but bear with me, because I think it goes to what is in our DNA as Americans. We feel like if everybody just plays by the rules—everybody does what they are supposed to do—things are going to work a lot better. So if you just stay in the line and you do that, then you will get there eventually. And we will not have to worry about all the other people blocking the other people and we will just get there. And there are a lot of emotions like that where you feel, as an American, “Man, can’t we all just cooperate and play by the rules together and it will be okay.” And the Ugandan is just like, but you know, nobody else is going to follow the rules. And then that is what they are going to do. I might follow the rules but they can do what they are going to do, and I do not worry about it. I have to take care of myself, because ultimately Uganda is not going to take care of me. I can take care of my family maybe. Or my family can take care of me. Close friends can take care of me. So I think when we think about the rule of law, there is also something that is very big: just that core expectation of what you can expect from society. A place like Somalia, of course, has even less expectations. But in Uganda, there are just not a lot of expectations of what society is going to do for you. It is, “Can you survive?” “Can you navigate this place the best you can?” Obviously one of the big things I am going to talk about in a second about a tipping point, but with the rule of law, you have to have a tipping point. You have to have a buy-in that this system can work. And I think that is a big problem with a lot of people in Uganda is they do not feel like the system can work. They feel like it is broken. They do not understand it. It is too expensive. It is for other people.

So, we are going to talk about barriers in the Ugandan context—barriers that prevent the rule of law from being advanced. There is your map of Uganda. We have a very Ugandan flavor to the festivities here, which is great. And there are other issues to talk about—especially even we could talk about Eastern Congo as an East African issue as well as South Sudan, as well as the ICC controversy in Kenya, as well as Somalia. There are a lot of very interesting and tragic and important things happening in East Africa. But we are going to focus a bit more on Uganda maybe than we will the other places. So there you see, that is where—there on the map you look down at the lake—we do have a Lake Victoria. We just do not have Victoria Falls. So we got Lake Victoria there, and Mukono, which means, “hand,” is right there over Victoria. So that is where we are, just for your reference. And Kampala is there 20 kilometers to the west, and as we went over last night at dinner, it is the size of Oregon. That is the official geographic thing you are supposed to know. We are going to save the barriers as surprises. Get to them one at a time.

LANGUAGE

The first barrier is language. This is your map of language groups in Africa. You have got down in the lower left the languages where people click and things like that. And then you have got the big purple swath of Zulu languages, and then you have got some Nilo-Sahara languages. You can see that Uganda is in a place where some colors come together. And you could add another color too if you wanted to add, for example, Kushite languages. So you’ve got like 50—40, 50, 60 languages—depends on who is counting. Is Norwegian a language or not? Who is counting the languages? Lots of languages. And Swahili really did not take off in Uganda for various reasons. People have different theories—why they say people do not know Swahili. So, English is the universal language. And so English is the language of the courts. Obviously for colonial reasons as well. But it is not what most people are speaking as their day-to-day language. So you have a court system that exists in one language, and you exist in another language. This makes you not want to go to court. It’s not a surprise.

The Ugandan Constitution has a provision that says, “We are going to put the Constitution in all the languages in Uganda.” I have finally—after four years of trying—I have now paid for my own photostat copy of the Luganda Constitution, which I finally received. I think we have the best working version of the Rancoli Constitution at UCU that our students have worked on putting together. I think that is about it. And this Constitution is not new. It is seventeen years old or so. So this requirement is out there to do this, and it has not been done. So, of course, the Ugandans, what are they going to say? Can you expect the government to do something for you? You cannot expect the government, necessarily, to translate the Constitution into the language you speak even though the Constitution says it was supposed to and a lot of time has gone by. And it creates interesting situations. Wills. So, we work with International Justice Mission. We go around and help people write wills, which is great, because usually people respect the wills and they help things go better at the time of death with property succession. And they will say: “Oh by the way, you could write this will in your local language.” “Oh great.” And so some people choose to write the will in the local language, which is cool. But, when it has to go to court, at the end of the day, when it has to go to the probate process, by law, it has to be translated. And so there are professors sitting around at Makerere that make extra money translating wills into Luganda, because they are the only official translators. So you have told these people they can have it in their own language, but then they have got to pay to have a translation done by a translation professional. These are the kinds of things—like why could they not just probate it in the language? Why can you not have somebody who knows the language and just probate it in that area? But you have these kinds of barriers, and it keeps people on the outside looking in.

RESOURCES AND CAPACITY

Resources and Capacity was gone over earlier, and it is sort of the obvious one. This is supposed to be a picture, I think, of someone getting ready to go to the local council court. This is very typical—people going to court under mango trees and with local individuals. And it is a great idea, as far as ideas go; but in terms of implementation, it is a program that often is not funded. And now the legal capacity of it to render decisions is called into question, because people on local councils were supposed to be replaced by law. They were not, and so now, they are basically mediating, effectively. It can be said that it is not real. Whatever they do has no legal mandate, because they have not replaced the officials that are supposed to be there that make it a legally active body. So, no capacity, no resources. Sounds great—and is good on the ground. And so what are people doing? They are making it work anyway. Right? I cannot afford to go to court. I do not speak English. Yes, they say this court is not real. Yes, they do not keep records. Yes, I have got to pay these people to show up. But it is the best option I have got. So, people are still going to these courts and doing these sorts of things. So, resources and capacity. We could go on and on and on, but oftentimes there are ways to get around resources and capacity. In this case, there is an easy solution to capacity: re-up the local council members officially and get them legally recognized again. That could be done. But for political reasons, it is not being done.

“STICKY” COLONIALISM

All right, then I have this one. It is “Sticky” Colonialism. What is sticky colonialism? Well, first of all, you see that Lady Justice there has a wig on her head, right? But people like the wigs in Uganda, so you do not want to be down on the wigs. It does add pomp and circumstance to the process. Now, the younger generation may not be as big on the wigs, but I think the wigs are okay. It is more about the aspect of colonialism—not about whether you wear a wig—but whether you feel that you have dominion over your own legal system or you feel that you just got this legal system from somebody else and you are curating it—like those computers that you keep in the basement in Afghanistan because you do not want to mess it up. And I think in Uganda, you have had the “we-do-not-want-to-mess-it-up” attitude. You can read things that I have written if you really want to spend time slogging through some stuff that is more substantive, but I am trying to use my time the right way here. And so, I have an article that sort of explains this aspect of colonialism more. But a great example is in the context of customary law. We heard an earlier talk about customary law. What is that? That is the common law of Uganda. It is the law that existed on the ground—people that were there, how they handled their matters. So, the British come in and they have common law. The common law becomes the real common law, and the customary law becomes something that goes away, essentially—unless people are practicing it in their own places, as long as they do not take it to court and take it up different levels.

Uganda has provisions that recognize customary law in marriage and in other contexts. But the problem is proving customary law in court is very difficult. The judges cannot just know customary law. Customary law is treated like a fact. Imagine if you are a lawyer and instead of just citing Lexis or WestLaw, finding your case, and citing your Supreme Court case, every time you wanted to try a customary law case, you had to prove the law—not just the facts. And how do you prove the law? By finding the oldest man in town and trying to see if he can remember how everything was since time immemorial and tell you what it was. Because he must be the only one that knows what everything has been since time immemorial. Because that is what the law is—some law that has been around forever. It’s fine if you have tablets that came from Mount Sinai. You can say: “That is the law. There it is.” But if you do not, it becomes very difficult. So you have this customary law; it is what people are practicing. But because you adopt the colonial attitude towards how customary law is proven, which was established by the British courts that were in East Africa, you basically disempower the judges and disempower litigants from having the customary law recognized in the formal court system.

LEGAL PLURALISM

So why do I have pictures of ladies when I talk about legal pluralism? We talked about hybrids—this is sort of like hybrids—it is all these different forms of law that are existing at once. It is because women are the most problematic aspect. When we hear a talk about Sharia Law, we want to talk about people’s hands getting chopped off, and we want to hear about women having to not drive, right? The previous speaker was careful not to mention those sort of stereotypical aspects of Sharia Law. But, when it comes to legal pluralism, you cannot get around the issue of how women are treated. There is no way around it. And these customary laws are oftentimes patrimonial. And so that means that all the property is going to go through the man, typically. If there were a death, the woman would go back to her old family and leave. The family would often just keep the children and she would go her way. Obviously, you are treating women differently. You are saying they cannot have property. The Islamic laws—they have their own rules about property too. So you have a Constitution that says men and women have to be treated the same. Everything has to be according to the Constitution. But when you start stripping out the different treatment of women and men from a law of succession system, the whole law of succession system does not make sense anymore. The law of succession kept the land in the same people—kept it going right there. And when you have both sides of families claiming interest to land and going different ways, things get very complicated. The system worked okay, but it was not constitutional.

It is still done on the ground. So how do you deal with the reality that it is still done on the ground? So different people are engaging it, and they are trying to say: “Well, we can change customary law. We can make customary law so it meets standards of human rights, standards of our Constitution.” They do that in South Africa. They do that in Namibia. They do not do that in Uganda. It is all or nothing. It is time immemorial—what was time immemorial? Is it in line with these principles? If it is not, it is repugnant; cut it down. Well, that is fine as long as you can take it to court. But if you are living in a legal system that is in your own language and it is not going to court, you are living in a parallel world. You are living outside of that rule of law. You are living in a different rule of law.

IMMATURE COMMON LAW

Another barrier—it is all related—is an immature common law system, which is related to that “sticky” colonialism. The example is: there is this case. It is a United States Supreme Court case from 1904. It is called South Dakota v. North Carolina. It is an eleventh amendment bond case. What happened was, once they passed the eleventh amendment, people could not sue states. There were all these Confederate states that had a bunch of bonds that they were not honoring. People realized they could not recover against the Confederate states directly. So what do they do? They go to places like South Dakota and sell their bonds on the cheap. And South Dakota says: “Yay, we still have an article in the Constitution that allows us to go after other states, so we are going to try it out.” And the Supreme Court said: “Yes, you can, South Dakota. You have scored big. You can collect these bonds. You have made a nice purchase for yourself—a tidy profit.” Had to tide them over until they discovered all this petroleum or whatever they have done now in South Dakota. They are doing well again in South Dakota.

So there is this case, and it has a dissenting opinion from a judge that says you have to read the Constitution as a whole. It is the dissent; it is not the majority opinion. Somehow this case became part of Ugandan jurisprudence, because a very famous judge named Justice Kenny Hamba decided that he was going to cite it for this principle. He cited the case wrong. He had the wrong date. So no one ever read the case, because it was not cited correctly. No one really knew where it was. But people kept citing the case, and they started calling it Smith v. Dakota; they started calling it South Carolino, South Caroline, or different things, because they were not reading the law. So, they are in a common law system, but they are not reading the case. And this case has been cited—I do not know—fifteen times in Uganda. In three recent high-profile cases in Kenya it was cited. In the presidential election case it was cited incorrectly, because people are not reading the case. They are simply taking law, really as aphorisms, and saying, “This is a principle; this is a principle.” But who can blame them? Because building a thick common law is difficult. Building a common law that really has careful distinctions between factual situations is difficult. And when you come from a colonial heritage where you did not get the right to mess with the law in the first place, are you really going to think you have the power and the license to make your own common law in a meaningful way? So, instead, common law almost becomes like the law of equity—just a bunch of principles.

CORRUPTION

So, corruption. No, Malcolm Gladwell is not corrupt. The point of putting Malcolm’s mug there is that it is important to reach a tipping point.^[1] Right now, if you practiced law in Uganda, it is very hard to be ethical. It is really hard to do things the right way. We have someone on the panel that actually does that. It is really exciting. He inspires the students at UCU, at my university, because he comes and tells them: “You can do it. You do not have to pay bribes. You can do it this way. It took me awhile to get my reputation, but now I have it and now they do not mess with me. So if you just do it the right way long enough, and be a little patient, and put off having that really nice car for five or six years or ten years, eventually you will get there.” But I think in Uganda, there has to be enough advocates that think you can practice law doing it the right way, and they are not there right now. And it would take a lot of cloning or a lot of instilling something in our young people. We try to give this talk to our young people and say: “You can do it. You can practice.” And they walk the right way, some of them have a gleam in their eye and say, “I can,” and then three of them are walking away going, “I know how it really works. I was at that law firm during the break, and this is how you have to practice law in Uganda.” So, eventually reaching that tipping point where you cannot get away with doing things corruptly. Where are we? How far away is it? I do not know. The more things are technological, the harder things become to fix. Uganda is a cash society. It sure makes it easy to do things when everybody is running around with big wads of cash as opposed to every single thing happening on an electronic transaction. But what sort of things are going to tighten things up? I think eventually things will tighten up, and eventually people will hold people more accountable and feel like you cannot get away with things. But when everybody owes somebody else a favor, it becomes difficult.

FALLEN CULTURE

I am not going to say culture, because I do not think culture is bad. There is awesome culture, and then in every culture there is fallen culture. And Uganda has some fallen culture like child sacrifice. It does not get much more fallen than that. Of course we have our own fallen culture in terms of a death toll that I think we are all aware of in this country. But in Uganda, there is the sacrifice of children that happens. It is just horrible. It is just as bad as anything you can imagine. Fortunately, it does not happen just constantly, but it happens way, way, way more than anyone would like.

One thing that is pretty cool—Heather Pate and I wrote a paper, along with another UCU student. It is interesting, because it addresses those things about new laws. We have a human trafficking law, and it actually addresses child sacrifice, interestingly enough in the human trafficking law. We do not need more laws about child sacrifice. We just need to enforce the law, and we just need people to think that they know they can go after it.

I think the other cultural problem that is really devastating in Uganda also has to do with children: the sexual abuse of children. And it puts a huge tax on the justice system. How many defilement cases take up high court court dockets! And I think it takes a toll on the judges just to have to see case after case—and the prosecutors—case after case of sexual abuse to children. It makes the justice system something you do not want to be a part of, because if you go there, that is what you see in a high court session—a few murders, and then, essentially, a statutory rape case after statutory rape case. So addressing these issues of where culture is fallen is another challenge. With that, I am finished with my time. Thank you.

1. Malcolm Gladwell authored a book called The Tipping Point. ︎

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