It is a well-settled jurisprudential assumption that law cannot be understood without the social milieu in which it has developed. I will not hesitate to posit that, with patriarchal systems in communities still very visible, the human rights of women and other groups should not be sacrificed at the expense of patriarchal overlords.
It is not in dispute that informal justice systems such as customary and traditional dispute resolution mechanisms are more accessible and affordable than formal justice systems, though both international and national human rights standards must be emphasized, as somebody once said that law without local content is like blood without bowels.
Human rights must be fully observed in the implementation of AJS so that the assets of women, PWDs, and other vulnerable groups are respected.
Uganda does not have a comprehensive and uniform law on the Alternative Justice System, and the nearest to this is the Conciliation and Arbitration Act. However, the Arbitration and Conciliation Act appears to focus more on arbitration, especially disputes of a commercial nature, than the Alternative Justice System.
Countries like Kenya, Rwanda, and Ghana are a little bit more advanced in the formulation of the legal framework and implementation of the Alternative Justice System. For example, the Abunzi or reconciliation committees and Gacaca have helped in healing communities that were ravaged by communal disputes in Rwanda.
Cultural institutions must be very central as far as the resolution of community disputes is concerned. Once they are properly supported, this will go a long way in addressing issues of the infamous case backlog constantly sung in judicial circles. In spite of the fact that the Judiciary now has about 100 judges, court case backlogs are still a problem, simply because communities feel court is the only forum as far as the resolution of disputes is concerned. They need to be educated about alternatives outside sanctioned mechanisms.
The United Nations 2030 Agenda for Sustainable Development estimates a situation whereby by 2030 there should be universal access to justice for all communities.
If correctly used, the Alternative Justice System may turn out to be a panacea to the infamous court backlogs that the Judiciary is grappling with. In Uganda, conservative estimates indicate that 95% of cases are resolved using the Alternative Justice System, while in Kenya the figure stands at about 90%. This shows that Alternative Justice Systems are responsible for managing cases outside formal court systems. However, this is still higher. Unlike Alternative Dispute Resolution, which is mainly conducted with the guidance of courts of judicature, the Alternative Justice System is still lagging behind.
The Alternative Justice System has three pillars in its operations. Firstly, we have the autonomous Alternative Justice mechanisms; this process is run entirely by the community, as the community selects and approves the third parties involved in resolving disputes.
The second pillar is third-party institutions; these can be state-sanctioned. Lastly, there is the court-annexed Alternative Justice System, which operates with manpower provided by courts and can include a group of elders.
In Uganda, both Buganda and Acholi have done well in Alternative Justice mechanisms. In Acholi, the Mato Oput reconciliation mechanism is on record for solving very difficult murder cases, especially non-intentional murders (manslaughter), in the community or between other communities. The Kanyamunyu case (Uganda v Kanyamunyu) is the latest high-profile example. There is also poro lok, which is Acholi for negotiation, and this technique restores social harmony among clans.
To make the Alternative Justice System a more effective tool in reducing court-related backlog, documentation and support of cultural institutions is important. There is no documented data, for example, on some of the disputes resolved by cultural institutions in Uganda. This is something that should be archived and taken judicial notice of as resolved. Under the Kenyan legal system, once you choose to use AJS or ADR, you do not then inconvenience the court with the same petition later on appeal; the matter must be entirely resolved using the chosen pathway.
Whereas I take cognizance of the fact that AJS is entirely independent of other forms of ADR such as Alternative Dispute Resolution, there is still a nexus between the two. Cultural institutions, which are now champions in promoting the Alternative Justice System in the country as the Judiciary 2023 strategy appears to communicate, need an instrument of their own to roll out this program meaningfully in the form of an Act of Parliament so that courts take judicial notice of these pronouncements. We do not need competing legal frameworks.
An evaluation of the current efforts on the Alternative Justice System appears to promote Alternative Dispute Resolution instead of the Alternative Justice System.
The writer is the spokesperson of the Bugisu Cultural Institution and an interdisciplinary legal scholar.
