Authored by - Francis Ojok (International Arbitration and Dispute Resolution)
I. INTRODUCTION
Mediation is a process by which a neutral third person facilitates communication between parties to a dispute and assists them in reaching a mutually agreed resolution. In Uganda, this is not a new form of resolving disputes. Since time immemorial, it was the only known form of dispute resolution at home, with elders serving as mediators, in the communities, with traditional leaders serving as mediators. And between clans, with clan leaders as mediators.
According to section 5(1) of the Institution of Traditional or Cultural Leaders Act, 2011, a person is installed as a traditional leader if they derive allegiance from birth or descent following the custom, usage, tradition, and consent of community members.
customary practice of mediation in Uganda changed from 1896 to 1962, when Uganda became a British colony. During this period, colonial rulers introduced new laws and regulations which made traditional or customary practices redundant or outright outlawed them for being contrary to "natural justice." They also introduced a new form of leaders and governance based on the principle of "democracy." Lastly, they introduced an adversarial justice system based on the common law principle. The changes introduced were foreign to Ugandans and their traditional values. As such, it was obvious that violence would follow post-colonial Uganda.
On October 9, 1962, Uganda became an independent nation. Four years later, it witnessed its first political violence., the Kabaka Crisis of 1966. It resulted in the exile of Kabaka- the King of the Buganda tribe, who was the ceremonial president, to Britain, and Dr. Apollo Milton Obote, the then prime minister, performing duties of the president's office, declared himself the president. While away on official duties at an Organization for African Union meeting, his trusted Army Commander, Idi Amina Dada, overthrew his government by a military court. Amin ruled Uganda from 1971 using a decree till 1979, when a coalition of Tanzanian soldiers and Ugandans in the diaspora overthrew his government. The Uganda-Tanzania war of 1979 resulted in a series of dominoes that reinstated Dr. Apollo Milton Obote in power for the second time. The Obote II government lasted until 1986 when it was overthrown by the National Resistant Army ("NRA") using a gorilla war tactic. This period is known as "the bush war period." It was led by President Yoweri Kaguta Museveni.
The NRA is now the National Resistance Movement ("NRM"), the ruling party. However, since assuming power in 1986, it has faced several unsuccessful civil conflicts. One of which is the Holy Spirit Movement. It began in 1986 by Alice Lakwena. She claimed to be a messenger from God and believed that if you spear yourself with shea oil, bullets cannot harm you. She was defeated in 1987 and flew to exile in Kenya, where she died in 2007[1]. Another is the Lord Resistant Army ("LRA"), led by Joseph Konya. It started in Northern Uganda in 1987 and lasted until 2008, when the Uganda government drove them away into the neighboring countries of Congo and the Central African Republic in a mission called Operation Iron Fist. To date, the LRA crisis is considered one of East and Central Africa's cruelest and most enduring armed conflict.
Throughout this period, courts did not recognize or adopt mediation. However, community members continued referring family, communal, or clan disputes to traditional leaders, elders, clan leaders, religious leaders, or elected local council leaders for mediation, with several successes, including the ceasefire agreement of 1995. LRA and Uganda Government signed it. Betty Bigombe, the then State Minister for Northern Uganda, was the mediator.
Another one is the Juba Peace Talk of 2006. The talk resulted in the signing of a cessation of the hostility agreement between the Uganda government and LRA, Dr. Riek Machar, the vice President of South Sudan, served as the mediator.
The recent success story relates to a temporary cessation of hostility between the Acholi ethnic group and the Madi ethnic group over the disputed Apaa land. This temporary agreement was mediated by Apaa Land Conflict Committee, comprising government-elected leaders from both ethnic groups, traditional leaders from both sides, and religious leaders. The Apaa land conflict lasted for ten years. It claimed several lives and left many from the Acholi and West Night Subregion homeless.[2].
II. WHERE MEDIATION IS NOW IN UGANDA
When writing this article, several initiatives are underway to improve mediation practices in Uganda. Some of these changes include
A) Codifying Mediation into Laws.
There is no stand-alone mediation Statute. However, several statutes and laws provide for mediation, including the Land Act (Cap 227). Section 88 recognizes traditional leaders' authority to determine disputes over customary tenure or serve as a mediator between persons in a dispute over any matters arising out of customary tenure, constituting approximately 75% of Uganda's land. Other forms include Mailo and Freehold land tenure.
Categories of disputes community members often refer to traditional leaders to mediate include[3]: (1) disputes over customary land tenure; (2) domestic violence, especially in customary marriage; (3) inheritance; and (4) violent conflict between one or both parties from the same community as the traditional leader.
Where the District Land tribunal believes that parties' interest would be served best through mediation, section 88 vests them with discretionary power to advise them to pursue mediation instead of litigating it before the tribunal. Afterward, they may adjourn the case for a period they consider fit to enable parties to use the services of the traditional authorities, a mediator, or some other person to mediate the dispute.
Furthermore, section 89 obligates each District Land tribunal to appoint on an ad hoc basis one or more persons who will serve as a district mediator. Both parties must agree to such a person serving as a mediator. They must: (1) be of high moral character, proven integrity, and capable by skill, knowledge, work, standing, or reputation to bring disputing parties to negotiate and reach a mutual satisfaction agreement to their land dispute; (2) independent and not subject to the direction or control of any other person; (3) guided by principles of natural justice, general principles of mediation. However, it cannot compel the party to a mediation to arrive at any conclusion or decision on any matter the subject of the mediation.[4].
Another one is the Civil Procedure Rule, Order XII.[5]. It obligates courts to hold a scheduling conference to sort out the possibility of mediation. Suppose it fails to settle at the scheduling conference, the court may order alternative dispute resolution before a bar member, or the bench named by the court if it thinks the case has good potential for settlement outside the court. Must be completed within 21 days after the order date unless extended for a period not exceeding 15 days on application to the court. Must show sufficient reasons for the extension.
The most recent one is the Judicature (Mediation) Rules 2013, passed under section 41(1) of the Judicature Act. It makes mediation mandatory for all civil action before proceeding to trial.
B) Professionalization of Mediation Practice
Over the years, there have been several private mediation institutes established. They serve as the gatekeepers of mediation. They maintain lists of qualified mediators or neutrals, guide the processes through their rules, and provide continuous training on mediation and other forms of dispute resolution. Some of these institutes include (1) Praxis Conflict Center, founded by the former chief judge, Justice Bert Katurabe, in 202; (2) International Centre for Arbitration and Mediation in Kampala ("ICAMEK"), established in 2019; (3) CIArb Uganda Chapter. Launched September 23, 2022; (4) Centre for Arbitration & Dispute Resolutions. Established by Section 67 of Arbitration and Conciliation Act Chapter 4. They are all headquartered in Kampala, the Capital City of Uganda
C) Introduction of Courts Annex Mediation Program
Court annex mediation is relatively recent. It was first introduced in the High Court, commercial division, in 2007 by the Judicature (Commercial Court Division) (Mediation) Rules, 20076. The rule made it mandatory for every litigant to mediate before proceeding to litigation. It was a massive success, especially in reducing the case backlog. As such, the Rules Committee adopted the Judicature (Mediation) Rules 2013- which make it mandatory for all courts to refer every civil action to mediation before proceeding to trial. They passed it in their power to make rules for regulating the practice and procedure of the Supreme Court, the Court of Appeal, the High Court of Uganda, and all other courts in Uganda subordinate to the High Court.[6].
Court annex mediation is free. A Judge, Magistrate, Registrar, a person certified by the court, or a person certified by CADER, qualifies to serve as a mediator. Parties may also choose any other qualified person to mediate their dispute. However, they will be responsible for paying their fees. Mediators must:
(1) disclose matters regarded as a conflict of interest;
(2) not give legal advice or counsel parties during mediation;
(3) act somewhat towards parties in mediation. In case of power imbalance or abuse of process by one party, mediators ought to try and balance the power and ensure the process is fair;
(4) be impartial and must not have any bias in favor of any party or discriminate against any party.
III. REASON FOR THE TREMENDOUS ATTRACTIVENESS OF MEDIATION
Since 2007, mediation has gained tremendous traction in Uganda. The unique features and principles that make mediation attractive include the following:
a) Confidentiality
Mediation is to be in confidence, except when the law requires it, or both parties agree to it in writing. As such, parties, mediators, and other participants must keep any information gained during mediation confidential. They cannot disclose anything said or information gained through mediation to outsiders, including the court. Parties cannot also compel the mediator to appear as a witness, consultant, or expert in any litigation or other proceedings related to the mediation. This obligation is effective at the commencement of mediation and continues even after mediation.
b) Self-Determination
Mediation is self-determining. It limits mediators' power only to facilitate a conversation between parties. Furthermore, it cannot make decisions or compel parties to agree or comply with a particular decision—the power to make decisions in mediation rest solely with the parties.
c) It is voluntary
Parties participate in mediation voluntarily. They are free to walk out of it, with or without reason, except for court-mandated mediation, which obligates litigants to mediate all civil actions before proceeding to trial. Even in that situation, parties can discontinue it whenever they feel mediation is not working for them.
d) Settlement terms do not bind parties until it becomes binding.
Any mediated agreement is not binding on the parties. Unless it is in writing, they should file such a consent agreement to the court; once the registrar seals it with a court seal, it becomes as binding
as a court judgment.
e) It is informal.
There are no strict procedures to be followed in mediation. Different mediators facilitate their mediation using evaluative or facilitative mediation techniques. They apply these techniques from either narrow or broad lens depending on the mediator's style, the nature of the disputes, and the wishes and interests of the parties[7]. These techniques are known as the “Riskin’s Grid.”
IV. ADVANTAGE
a) It is time effective.
Timely resolution of disputes is premised on the principle that "justice delayed is justice denied," which Uganda Constitution provides for under Article 126(2). It states that "justice shall not be delayed." All other laws providing for mediation emphasize this. For Example, Mediation Rules, rule 8, provides for 60 days. Except when extended for a period not exceeding ten days[8]. CPR also provides for 21 days after the order date. Except when extended by application to courts for a period not exceeding 15 days. With sufficient reasons for the extension[9], a mediated Settlement is not Appealable.
These are all impossible in litigation, where it takes so long for the court to reach a verdict. After a judgment, the aggrieved party has a right to appeal against such decisions according to the laws. If it is a magistrate court judgment, they can appeal it to the high court[10]. If it is the high court decision, it is appealable to the court of appeal, and the court of appeal's decision is appealable to the supreme court.
b) It is cost-effective.
Uganda is a developing country with a GDP per capita of USD 858.1$. According to the Uganda Bureau of Statistics ("UBOS"), the national poverty rate in 2019/20 was about 30 percent, lower than the international poverty rate of 42.2 percent[11]. Most of the Uganda's population, i.e., 84%, live in rural areas, relying on agriculture as their source of income. Most cases filed in courts are by those small circle wealthy, educated who understand and can afford the costs associated with litigation against the poor, uneducated rural Ugandans. As such, mediation becomes the only avenue for true justice where one can attain justice regardless of the financial situation because it is cheap and sometimes free. For example, court annex mediation.
c) Parties have autonomy over the process and authority to make decisions.
Mediation allows disputing parties to be part of the process and make decisions best suited for their case, which becomes binding on them. They also control mediation processes by choosing their ideal mediator, the language used, and the mediation timeframe.
d) Mediation preserves and restores relationships.
Ugandans are among the most welcoming and friendliest people in the world[12]. Being hospitable is embedded in Uganda's cultural and social bond that flows in the blood of every Ugandan. It aligns with the African principle of "Ubuntu, " and the Uganda constitution recognises it by promoting reconciliation between parties. However, the combative and adversarial legal system has no room for nurturing relations. Instead, it tears communities apart and turns families against each other. Only through mediation can disputing parties rekindle their relationship since there is no winner or loser, and they engage in empathy.
e) It is confidential.
The continuous duty to keep confidential anything said, or information obtained during mediation is binding on mediators, parties, and other participants. Except when the law requires such disclosure or parties consented to such disclosure in writing. However, since litigation and court are public institutions, the public has the right to access them. As such, it is impossible to guarantee the confidentiality of sensitive information in litigation since records of proceedings form part of the public record and are accessible by anyone. There is also a risk of public interference with the process. It is only through mediation that the close door mediation dispute resolution protects parties with information-sensitive information from the risk of it leaking to the public.
V. CHALLENGES
a) Uncertainties in Enforcing Mediated Settlement
No guarantee that the court will enforce mediated settlements, especially those reached through community mediation. It is because community mediators lack basic mediation training. As such, courts are reluctant to enforce agreements presumably reached without following mediation principles by community mediators. Regardless of the uncertainties, community leaders actively mediate communities' disputes. They include traditional/cultural leaders, religious leaders, and elected local council leaders.
b) Lack of Training or Limited Training, if any.
Most courts' annex mediators are lawyers or law trained. However, law schools in Uganda, including Law Development Centre, only offer one optional Alternative Dispute Resolution ("ADR") course. It covers Negotiation, Mediation, and Arbitration. By the time students graduate from law school, they have minimal knowledge about mediation. Nevertheless, they are trusted to serve as court mediators without requiring further mediation training.
c) Lack of Trust in the Process. Esp. Court Annex Mediation
When disputing parties file a court case, they are emotionally ready to see the counterpart suffer and pay. To their surprise, when they get to court, they are compelled to mediate before proceeding to trial. At times, that is their first-time hearing about mediation. At the commencement, the mediator tells them his duty is limited to facilitating communication to help them resolve, but not to decide for them or compel them to a particular decision. It is much to be taken in by emotionally charged persons to digest. As such, leading to their lack of trust in the process.
d) Bias. Influence by training and financial incentives.
Traditional legal training favors litigation over mediation, which is why at the inception, mediation faced lots of backlash from lawyers trained in law school, the art of jealous advocacy. Most traditional lawyers yearned to appear in court to gain popularity since the more famous you are for winning for your client, the higher your billable hours. By the time they graduate, they are ready to show their articulate argument for their client, but since they cannot advertise their services, the court is the only place for them to shine.
Furthermore, the success of mediation rest on how well you can collaborate with all stakeholders in mediation. However, law school does not offer any training on teamwork and collaboration. Instead, it teaches law students with an individualistic approach where one wins and the other loose. All these factors lead to their biases which, if not constantly checked, can curtail mediation even when they are participating as party counsel.
e) Public’s Ignorance about Mediation and its advantages
Not until April of 2018 when USAID, under its Supporting Access to Justice, Fostering Equity and Peace (“SAFE”) program, embarked on activities to improve the quality of mediation, including workshops that resulted in developing Instructor’s Guide for Mediation Trainers[13]. The traditional knowledge of mediation was limited to those recognized by culture and customs. However, it is patriarchal and contrary to the customary internationally accepted principle of mediation, and it is an advantage. The public's lack of information about mediation hinders successive mediation, especially from marginal groups.
VI. WHAT LIES AHEAD, AND WHAT WAY FORWARD TO IMPROVE MEDIATION IN UGANDA
There are challenging times ahead. Influenced by rapid population growth, which is now at 47.12 million, the refugee crisis, i.e., Uganda is the largest refugee hosting country in Africa- with a total of 1,518,570 refugees. There is also an increase in the commercialization of land and unemployment. There is hope, as evidenced by top Ugandan legal scholars and leaders, including the Chief Justice of Uganda's Supreme Court and Minister of Justice and Constitutional Affairs, enrolling in a master of dispute resolution studies at Pepperdine University's Straus Institute for Dispute Resolution. Although this is a great move, it is not enough. Improving mediation practices in Uganda requires more, such as:
a) Decentralization of Mediation Institutions
All private mediation institutions are in Kampala, the capital city of Uganda. Home to 3.651,919 people out of the total population of 47,741,451[14][15]. Establishing private mediation institutions only in Kampala leaves 45,511,595 other people, scattered in the approximately 136 districts in Uganda, service less. Therefore, to ensure everyone benefits from their services, they should decentralize and establish branches in other parts of the country.
b) Sensitize the Community about Mediation
Law schools in Uganda offer introductory mediation training. So those who went to law school may benefit from it. However, most Ugandans who did not go to law school or did not go to school at all do not know about mediation. According to the Uganda Bureau of Statistics, Uganda's general literacy rate in 2020 was 76.5%. As such, there must be a deliberate effort to educate Ugandans about mediation. Education institutions must revise their curriculum to ensure robust mediation teaching in law schools and other colleges and institutions.
c) Standardize Mediation Certification Training
Holding a particular reputation or position, e.g., traditional, or traditional leader, being elected to a particular office, or being law-trained, is not enough to qualify one to be a mediator. Although the reputation and experience gained from those offices may make them influential and instrumental in persuading parties to engage in difficult communication to settle, it is not enough. Therefore, they should at least undergo basic mediation training. The mediation rule must be revised to dictate that for one to be a mediator, one must have completed at least basic mediation training and be certified, regardless of their social position.
d) Set up Mediation Centers in the Local Communities.
There are zero mediation centers throughout Uganda. Only court annex mediation is attempting to bring mediation to the larger population since every Uganda court has mediation facilities. All courts in Uganda are seated in urban centers. However, over 80% of Ugandan citizens live in hard-to-reach rural areas. Those rural duelers are isolated because of the poor condition of roads and inadequate public transport infrastructure. They can also hardly afford to travel to urban centers to access court because of high poverty and unemployment, exacerbated by climate change. Their inability to access court is part of why most community disputes are reported to local leaders and are either mediated at one of the disputing party's homes or at the local leader's home.
Disputes referred to traditional leaders are mediated at their palaces. The lack of facilities makes it impossible effectively administer mediation under the accepted international customary standards, which is why it is essential to establish community mediation facilities equipped to hold mediation in a way that guarantees compliance with mediation principles.
[1] New York Times, Alice Lakwena, Uganda Rebel, Dies (Jan. 19, 2007) [2] Oryem Nyeko, Uganda Moves to End Longstanding Land Conflict, Human Right Watch (August 20, 2021) [3] Mitigating land-based conflicts in northern Uganda, A Must Guide for Stakeholder Mediation, Sensitization and Reconciliation Processes, A Publication of URI & ARLPI, and Supported by IFA/ZIVIK Volume IV, (2012). At: https://www.uri.org/sites/default/files/media/document/2017/Mitigating%20Land%20Book%20final.pdf [4] Section 89, Land Act (Cap 227) [5] ORDER XII of the Civil Procedure Rules (Statutory Instrument 71-1) [6] Section 41(1) of the Judicature Act (Chapter 12) [7] Dwight Golann & Jay Folberg, Mediation: The Roles of Advocate and Neutral (Aspen 2nd) (2011), at: https://pepperdineuniversity-lawlibrary.on.worldcat.org/oclc/681535239 [8] Rue 8 of the Judicature (Mediation) Rules 2013 [9] ORDER XII of the Civil Procedure Rules (Statutory Instrument 71-1) [10] Section 220 of the Magistrate’s Courts Act [11] World Bank, Poverty Indicator. At https://databankfiles.worldbank.org/data/download/poverty/987B9C90-CB9F-4D93-AE8C-750588BF00QA/current/Global_POVEQ_UGA.pdf [12] BBC, Living in… the world’s most welcoming countries. At https://www.bbc.com/travel/article/20170215-living-in-the-worlds-most-welcoming-countries [13] Community-based mediation in Uganda: Training instructor’s guide [14] World Population Review, Uganda Population 2022 (live) at: https://worldpopulationreview.com/countries/uganda-population [15] World Population Review, 2022 at: https://worldpopulationreview.com/world-cities/kampala-population
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