A discussion of the development of criminal law in Uganda can be divided into three epochs: the pre-colonial era, the colonial period, and the age of independence and post-independence characterised by nation-building efforts. James Read rightly notes that the development of the penal system can be divided into two major phases: first, the introduction of western apparatus that gradually replaced the practices of traditional societies, and second, the testing and modification of the new legal order to apply to conditions in Africa. As Uganda's legal history is long and complex, this chapter will explore only the most significant developments in criminal law, Criminal procedure, and punishment. These legal developments are intertwined with events in Uganda's political and constitutional history.
See Full PDF See Full PDFRestorative justice in African states has gained a signifi cant profi le through transitional justice process, but remains very much at the fringes of mainstream practice in criminal justice systems. Th is article reviews the challenges faced by criminal justice systems in the contemporary African state and the promise of restorative justice from both theory and practice, using Uganda as an example. It is proposed that restorative justice as a concept and restorative customary practices specifi cally have the potential to address the issues facing justice systems in Africa today. In particular, a state such as Uganda can seek to legitimise restorative approaches through centralised legislation, but allow such practice to be interpreted in a way relevant to custom by the grassroots community courts that exist at the base of the formal legal system.
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On 10 th August 2016, the Inspector General of Police together with other police officers were charged in a criminal case allegedly for acts of torture meted against members of the public by certain elements in the Uganda Police Force. A lot of political and legal debate ensued as to the legality of the process; it's implications and what it portends for the IGP as a person and the Uganda Police Force in general; the rule of law; security of the country and the independence of the Judiciary. As an available mechanism for enforcing the Prevention and Prohibition of Torture Act, 2012, it is paramount to understand how private prosecution is instituted, conducted and what parties need to know about this legal mechanism in the continuous and much needed fight against torture in Uganda. This paper attempts to examine the lego-historical premise for Private Prosecution and its justification in a democratic society; it examines the law on private prosecutions in Uganda with respect to how private prosecutions are originated, how it is conducted, controlled and what legal practitioners must watch out for when undertaking private prosecution; It also attempts to rationalize the justification for Private Prosecution with respect of under the Prevention and Prohibition of Torture Act, 2012; and lastly it attempts to examine the practice and future of private criminal prosecutions in Uganda and offer lessons learned.
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The demand for accountability for international crimes in Africa has directed new attention to national courts as major agents for ending impunity, as the numerous cases to be decided cannot be handled exhaustively by the international courts. However, African states are faced with political, economic, institutional and legal challenges, making such a role seem unattainable. The principle of legality, specifically the core element of non-retroactivity, is cited often as one such major legal challenge, alongside immunities and amnesties. Given the extent of atrocities in Africa and the call for accountability, it may be asked whether African courts and legislators should hesitate at the road block of the principle of legality in the pursuit of accountability. It could be argued that the despicable nature of the atrocities without a doubt elevates justice above legality and technicalities of law. Yet there are some who sternly warn against trivialising the law in the name of justice and advocate for a balanced application of both concepts. This debate is central to the principle of legality in the domestic prosecution of atrocities and Africa’s national courts cannot avoid it.
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This thesis is about achieving local procedural legitimacy through fair, culturally relevant sentencing procedures. Its scope, is reconciling international due process guarantees and a traditional notion of rights, in sentencing procedures of the International Criminal Court. My interest in this topic arose from the 2003 Uganda Law Reform Commission study on sentencing legislation reforms. There, participants regarded clan courts as functional in rural areas, because they had more informal, conciliatory sentencing processes than the ‘alien’ national courts. I later became aware that incorporation of traditional restorative processes may also help solve problems of legitimacy at the international level, as manifested in the case of Joseph Kony, discussed in Chapter 1 of this thesis. I then investigate whether the international sentencing framework could accommodate features of traditional restorative process despite incongruent standards, and if so, how this could be achieved. I argue that procedural rights ought to underpin this reconciliation, harnessing aims of international criminal justice with traditional restorative justice. Through my translation model, I propose small structural changes to international sentencing practice, and doctrinal reforms based on precedent. Using critical legal analysis and a small empirical study, the thesis demonstrates how translation could achieve just, culturally apposite sentencing outcomes. The International Criminal Tribunal for Rwanda and the Special Court for Sierra Leone provide insight into challenges to accommodating African normative standards. Nominal guidance from the African human rights mechanism and national courts, on an African notion of procedural fairness, further complicates this reconciliation. I conclude that we could translate laws across divergent legal systems, drawing from experiences of clan courts that assimilate legal structures and concepts from national courts. Major international instruments: Rome Statute 1998, United Nations International Covenant on Civil and Political Rights 1966 and the African Charter on Human and Peoples’ Rights 1981, are evaluated against this model.
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Journal of Global Justice and Public Policy
This Article analyzes some theories that have shaped various countries’ penal policies while focusing specifically on the developments in the United Kingdom and Uganda, two neo-liberal countries that share some common history, although culturally different. Despite several authoritarian regimes around the globe that have been implicated in gross human rights abuses, there is a decline in capital punishment globally. The highest rate of incarceration is found in neo-liberal societies, where capitalism and individualism flourish. However, it is also in these societies that relentless campaigns by religious and human rights organizations and world bodies like the United Nations have resulted in the reduction of the death penalty in particular and penal reform in general.
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International law and domestic human rights litigation in Africa
This chapter examines the approach that courts in Uganda have taken with regard to the application on international law. Judges have on many occasions not been comfortable engaging with questions of international law that have arisen in domestic cases. In these instances, they have chosen to substantially avoid engaging with the international law aspects of the disputes by deciding the cases on municipal law grounds where possible. However, sometimes the failure to invoke applicable international legal norms has been a deliberate strategy on the part of advocates who might either have felt that arguments based on international law may not be availing, or were themselves not adequately conversant with the relevant norms. At other times, courts have used international law as an aid to interpretation of domestic law, particularly in the context of constitutional litigation. The courts’ use of international law constitutes a recognition that the Constitution of Uganda (1995), and the Bill of Rights in particular, was inspired by and based upon the international human rights law regime. Judges have therefore felt comfortable having regard to the jurisprudence of international and regional human rights tribunals to shed light on the scope of constitutional provisions that mirror those in various conventions on human rights.
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The Africa Portal backgrounder series offers brief background information and commentary on current policy issues of concern to Africans—especially in the areas of conflict, energy, food security, health, migration and climate change. Written by seasoned, up-and-coming scholars on Africa, the backgrounders are published exclusively on the Africa Portal and are available for free, full-text download. The Africa Portal is an online knowledge resource for policy-related issues on Africa. www.africaportal.org AFRICAPORTAL a project of the africa initiative BACKGROUNDER
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Potchefstroom Electronic Law Journal
This article investigates the challenges of the application of international law in a domestic setting as depicted in the ongoing trial of Thomas Kwoyelo. Kwoyelo, a former child soldier and commander in the Lord's Resistance Army, is being prosecuted for the commission inter alia of murder, kidnapping with intent to murder, and pillaging, all as war crimes and crimes against humanity under International Humanitarian Law, Customary International Law and the Penal Code Act of Uganda. He is currently standing trial at the International Crimes Division of the High Court of Uganda. This trial is a unique test for the Ugandan judiciary, as it is faced with its first prosecution of an individual charged with crimes under international law. In a bid to apply international law domestically the Court has faced several challenges which have disabled the progress of the trial on many levels, arguably at the expense of the accused and the victims at large. The article primarily seeks to ana.
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